Appeal Against Immigration Decision: Immigration Appeal Solicitor

The post provides information relating to appeal against immigration decision for UK Visa and Immigration Applications with a right to appeal. The in-country right of appeal UK and right of appeal outside UK for appeal against immigration decision are set out in S 82 of the Nationality Immigration and Asylum Act 2002. However, there are other appealable decisions- appeals against Refusal of Asylum, withdrawal of Refugee Status, appeal against deprivation of citizenship UK, automatic deportation UK and EEA Appeals– not covered under Section 82(2) of the 2002 Act. Since the right of appeal is granted in only a few instances, therefore, the post also cursorily explains the recourse for challenging UK visa refusal decisions with limited or no right of appeal. Accordingly, the post covers the following topics:

  1. Immigration Appeal Solicitors and UK Visa Refusal Decisions
  2. S 82 of the Nationality Immigration and Asylum Act 2002
  3. Appeal Against Removal Decision
    • Removal of a Person Unlawfully in the UK
    • Control of Entry
    • Persons with Statutorily Extended Leave
    • Family Member of a Person who is to be Removed
    • Seamen and Air Crews
    • Deprivation of the Right of Abode
  4. Appeal Against Deportation Order UK
    • Deportation Order under Section
    • Refusal to Revoke a Deportation Order
  5. Other Appealable Decisions
  6. Fresh Evidence on Appeal UK
  7. No Right of Appeal, Administrative and Judicial Review

Best Immigration Appeal Solicitors London

UK Visa Refusal Appeal Against Immigration Decision

An applicant can exercise the right to appeal against an immigration decision from outside and inside the UK and may lodge an appeal if the legal right to appeal is available, which is usually mentioned in the refusal letter. If either a limited right of appeal or no right of appeal is mentioned in a refusal letter then keeping in view the merits of the case, one can file a Judicial Review against an immigration refusal decision. Depending on the circumstances of an applicant, either an appeal or an administrative review followed by a judicial review can be filed against refusal of an entry clearance standard visitor visa application, leave to remain and indefinite leave to remain application under points based system such as Tier 1 Entrepreneur, Tier 1 Investor, Tier 2 General Worker, Tier 4 Student.

Time Limits to Lodge an Appeal from Outside the UK is 28 Days

An applicant is required to lodge an appeal from outside the UK as soon as possible- at the most within 28 days after the receipt of the refusal decision. In case an applicant is required to leave the UK before exercising the right to appeal, then 28 days to appeal starts from the day that a person leaves the UK.

If an appeal is lodged after the 28 days deadline then the appellant is required to give a cogent reason for the delay in filing the appeal. The appeal tribunal is empowered to decide whether or not to hear the appeal despite its late filing.

Time Limits to Lodge an in-country Appeal is 14 Days

Immigration decision appeal is required to be lodged from inside the UK within 14 days from the date of receipt of the refusal letter. If an appeal is lodged after the stipulated 14 days deadline then the appellant is required to satisfy the merits of hearing the appeal despite late filing and the immigration appeal tribune decides whether or not to proceed the matter further.

Immigration and Asylum Online Appeal

Online appeals are quicker than the appeals by post or fax, therefore, it is recommended to file an online appeal relating to entry clearance, extension and indefinite leave to remain decisions made after April 6, 2015:

  • Form IAFT-4 for an application to First-tier Tribunal for Permission to Appeal to Upper Tribunal;
  • Home Office decision to deport a European Economic Area (EEA) National (form IAFT-5);
  • Form IAFT-6 for appeal against entry clearance refusal decisions such as spouse visa refusal appeal under section 82(1) of the Nationality, Immigration and Asylum Act 2002 and human rights claim;
  • Home Office refusal under EEA Regulations relating to an application for an  EEA  family permit as a family member of an EEA national (form IAFT-6);
  • A refusal of protection or human rights claims, where an applicant can only apply after he/she has left the UK (form IAFT-7);
  • Certain decisions about applications submitted before 6 April 2015.

It is recommended to discuss with a specialist immigration appeal solicitors for success and best results as lack of a legal representative found to be a key factor for the variance in success rates.

Immigration Appeal Process Time UK

The average UK visa appeal decision time during 2017 has increased to 51 weeks from 35 weeks. Immigration Appeal Success Rate is 50%. Since 51 weeks is an average time, therefore, some appeals are decided within 6-9 months; whereas, other may remain pending even after a lapse of 12-15 months.

UK Immigration Appeal Fees

A fee of £80 for paper appeals and £140 for oral hearings (appeal) are required to be paid before lodging an appeal in the First-tier Tribunal (Immigration and Appeals Chamber). In 2016, the appeal fees were increased by 500%; however, the move was bitterly opposed and from November 25, 2016, all applicants were required to pay fees at previous levels. Moreover, the Ministry of Justice committed to reimburse the difference between the increased fee and the previous fee.

Ministry of Justice axes 500% rise in fees for immigration tribunals | UK news | The Guardian

Fees for an application to the first-tier tribunal dealing with immigration and asylum cases rose earlier this autumn from £80 to £490, while an oral hearing rose from £140 to £800. For the first time, appeals to the upper tribunal were being charged at £350 for each application and £510 for an appeal hearing.

Written statements – UK Parliament
From today all applicants will be charged fees at previous levels and we will reimburse, in all cases where the new fees have been paid, the difference between that fee and the previous fee.

Immigration Status while Appeal Pending

In terms of Section 3C of the Immigration Act 1971, leave is statutorily extended where a person had leave when they made an application or claim and that leave expired prior to the Secretary of State making a decision on the claim or application. Accordingly, leave to remain in the United Kingdom is extended until an appeal against refusal is finally determined.

Section 3D of the 1971 Act provides for the extension of leave to remain in the UK until any appeal is determined where a person’s leave is varied so that no leave remains. Where the right of appeal is exercised from within the UK, Section 78 of the 2002 Act provides that the appellant will not be removed while the appeal is pending.

Nationality, Immigration and Asylum Act 2002

78 No removal while appeal pending
(1) While a person’s appeal under section 82(1) is pending he may not be—
(a) removed from the United Kingdom in accordance with a provision of the Immigration Acts, or
(b) required to leave the United Kingdom in accordance with a provision of the Immigration Acts.
(2) In this section “pending” has the meaning given by section 104.
(3) Nothing in this section shall prevent any of the following while an appeal is pending—
(a) the giving of a direction for the appellant’s removal from the United Kingdom,
(b) the making of a deportation order in respect of the appellant (subject to section 79), or
(c) the taking of any other interim or preparatory action.
(4) This section applies only to an appeal brought while the appellant is in the United Kingdom in accordance with section 92.

S 82 of the Nationality Immigration and Asylum Act 2002

The appealable immigration decisions relating to either entering or remaining in the United Kingdom are set out in the subsection 2 of S 82 of the Nationality Immigration and Asylum Act 2002 and provides the Right of Appeal in relation to a UK visa and immigration refusal decision.

Nationality, Immigration and Asylum Act 2002

82 Right of appeal: general

(1) Where an immigration decision is made in respect of a person he may appeal to the Tribunal.
(2) In this Part “immigration decision” means—

(a) refusal of leave to enter the United Kingdom,
(b) refusal of entry clearance,
(c) refusal of a certificate of entitlement under section 10 of this Act,
(d) refusal to vary a person’s leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain,
(e) variation of a person’s leave to enter or remain in the United Kingdom if when the variation takes effect the person has no leave to enter or remain,
(f) revocation under section 76 of this Act of indefinite leave to enter or remain in the United Kingdom,
(g) a decision that a person is to be removed from the United Kingdom by way of directions under [section 10(1)(a), (b), (ba) or (c)] of the Immigration and Asylum Act 1999 (c. 33) (removal of person unlawfully in United Kingdom),
(h) a decision that an illegal entrant is to be removed from the United Kingdom by way of directions under paragraphs 8 to 10 of Schedule 2 to the Immigration Act 1971 (c. 77) (control of entry: removal),
(i) a decision that a person is to be removed from the United Kingdom by way of directions given by virtue of paragraph 10A of that Schedule (family),
[(ia)a decision that a person is to be removed from the United Kingdom by way of directions under paragraph 12(2) of Schedule 2 to the Immigration Act 1971 (c. 77) (seamen and aircrews),]
[(ib)a decision to make an order under section 2A of that Act (deprivation of right of abode),]
(j) a decision to make a deportation order under section 5(1) of that Act, and
(k) refusal to revoke a deportation order under section 5(2) of that Act.

Appeal Against Refusal of Leave to Enter

The refusal of leave to enter is Appealable u/s 82(2)(a) of the Nationality, Immigration and Asylum Act 2002.

Leave to enter can be refused at the port if the applicant does not satisfy the requisite requirements so as to qualify for entry. Only a person refused leave to enter who holds a valid entry clearance for the purpose for which he/she seeks entry can appeal against such a refusal decision.

Appeal Against Refusal Entry Clearance UK

Such immigration refusal decisions are Appealable u/s 82(2)(b) of the 2002 ACT. Entry clearance (including visa) will be refused at visa issuing posts overseas if an applicant does not qualify. Not all refusals of entry clearance give a right of appeal (please refer section 88A of the 2002 ACT).

Nationality, Immigration and Asylum Act 2002

88A Ineligibility: entry clearance
(1) A person may not appeal under section 82(1) against refusal of entry clearance if the decision to refuse is taken on grounds which—
(a) relate to a provision of immigration rules, and
(b) are specified for the purpose of this section by order of the Secretary of State.

(2) Subsection (1)—
(a) does not prevent the bringing of an appeal on either or both of the grounds referred to in section 84(1)(b) and (c), and
(b) is without prejudice to the effect of section 88 in relation to an appeal under section 82(1) against refusal of entry clearance.]

Refusal of a Certificate of Entitlement

Refusal of a Certificate of Entitlement under section 10 of the 2002 ACT is appealable u/s 82(2)(c) of the 2002 ACT.

A Person has No Leave to Enter or Remain in the UK

Refusal to vary a person’s leave to enter or remain in the UK if the result of refusal is that a person has no leave is appealable u/s 82(2)(d) of the 2002 ACT provided that:

  • the application was made whilst the applicant had a leave to enter or remain – (the application was in time); and
  • the applicant’s leave has expired by the time he/she is notified of a decision to refuse further leave;

Decisions relating to Curtailment or Revocation of Leave

A curtailment or revocation of leave decision is Appealable u/s 82(2)(e) of the 2002 ACT if a variation of a person’s leave to enter or remain in the UK when variation takes effect, a person has no leave to enter/remain (curtailment/revocation of leave).

Revocation of Indefinite Leave to Remain UK

The Revocation of indefinite leave to enter or remain under section 76 of the 2002 ACT are Appealable u/s 82(2)(f) of the 2002 ACT.

Appeal Against Removal Decision

The appealable immigration decisions relating to removal from the United Kingdom are set out u/s 82(2) of the Nationality, Immigration & Asylum Act 2002 (the 2002 act), the details of which are as under:

Removal of a Person Unlawfully in the UK

A refusal decision is Appealable under section 82(2)(g) of the 2002 ACT if a person is going to be removed from the United Kingdom u/s 10(1) (a), (b), (b)(a) or (c) of Immigration & Asylum Act 1999 (removal of a person unlawfully in the UK).

Control of Entry

An immigration decision is Appealable u/s 82(2)(h) of the 2002 ACT if an illegal entrant is about to be removed from the UK by way of directions under paragraphs 8 – 10 of Schedule-2 to the Immigration Act 1971 (control of entry: removal) (the 1971 ACT).

Persons with Statutorily Extended Leave

A refusal decision is Appealable u/s 82(2)(h)(a) of the 2002 act if a person is to be removed from the UK by way of directions u/s 47 of the Immigration, Asylum & Nationality Act 2006 (removal: persons with statutorily extended leave).

Family Member of a Person who is to be Removed

A refusal decision is Appealable u/s 82(2)(i) of the 2002 ACT if a person is to be removed from the UK under paragraph 10A of Schedule 2 (family member of a person who is to be removed) to the 1971 ACT.

Immigration Act 1971

SCHEDULE 2 Administrative Provisions as to Control on Entry etc.

Removal of persons refused leave to enter and illegal entrants

10A Where directions are given in respect of a person under any of paragraphs 8 to 10 above, directions to the same effect may be given under that paragraph in respect of a member of the person’s family

Seamen and Air Crews

A refusal decision is Appealable u/s 82(2)(i)(a) of the 2002 ACT if a person is to be removed from the UK by way of directions under paragraph 12(2) of Schedule 2 to the 1971 ACT (seamen and aircrews).

Immigration Act 1971

SCHEDULE 2 – Seamen and aircrews

12(1) If, on a person’s examination by an immigration officer under paragraph 2 above, the immigration officer is satisfied that he has come to the United Kingdom for the purpose of joining a ship or aircraft as a member of the crew, then the immigration officer may limit the duration of any leave he gives that person to enter the United Kingdom by requiring him to leave the United Kingdom in a ship or aircraft specified or indicated by the notice giving leave.

2) Where a person (not being a British citizen]) arrives in the United Kingdom for the purpose of joining a ship or aircraft as a member of the crew and, having been given leave to enter as mentioned in sub-paragraph (1) above, remains beyond the time limited by that leave, or is reasonably suspected by an immigration officer of intending to do so, an immigration officer may—

(a) give the captain of that ship or aircraft directions requiring the captain to remove him from the United Kingdom in that ship or aircraft; or

(b) give the owners or agents of that ship or aircraft directions requiring them to remove him from the United Kingdom in any ship or aircraft specified or indicated in the directions, being a ship or aircraft of which they are the owners or agents; or

(c) give those owners or agents directions requiring them to make arrangements for his removal from the United Kingdom in any ship or aircraft specified or indicated in the directions to a country or territory so specified, being either—

(i) a country of which he is a national or citizen; or

(ii) a country or territory in which he has obtained a passport or other document of identity; or

(iii) a country or territory in which he embarked for the United Kingdom; or

(iv) a country or territory where he was engaged as a member of the crew of the ship or aircraft which he arrived in the United Kingdom to join; or

(v) a country or territory to which there is reason to believe that he will be admitted.

Deprivation of the Right of Abode

A refusal decision is Appealable u/s 82(2)(ib) of the 2002 ACT if an order has been made u/s 2A of the 1971 ACT (deprivation of the right of abode).

Appeal Against Deportation Order UK

The appealable immigration decisions relating to deportation are set out in section 82(2) of the Nationality, Immigration and Asylum Act 2002 (the 2002 act).

Deportation Order under Section 5(1) of the Immigration Act 1971

A decision to make a deportation order u/s 5(1) of the Immigration Act 1971 (the 1971 act). The deportation process applies if:

  • the Home Office decides deporting the person is conducive to the public good, or the person is related to someone to be deported {3(5)(a) & (b) of the 1971 ACT);
  • deporting a person has been recommended by a criminal court u/s 3(6) of the 1971 act;

These decisions are Appealable u/s 82(2)(j) of the 2002 ACT; however, these do not apply to ‘foreign criminal,’ as defined u/s 32(1) of the 2007 ACT. There is a separate right of appeal u/s 82 (3A) of the 2002 ACT for such cases.

Refusal to Revoke a Deportation Order u/s 5(2) of the 1971 ACT

Refusal to revoke a deportation order u/s 5(2) of the 1971 Act are appealable under section 82(2)(k) of the 2002 ACT.

A deportation order remains in force until it is revoked. A person can apply for a deportation order to be revoked and refusal to revoke carries a right of appeal.

Immigration Act 1971

Section (3) General provisions for regulation and control.

(5) A person who is not a British citizen is liable to deportation from the United Kingdom if—

(a) the Secretary of State deems his deportation to be conducive to the public good; or
(b) another person to whose family he belongs is or has been ordered to be deported.

(6) Without prejudice to the operation of subsection (5) above, a person who is not a British citizen shall also be liable to deportation from the United Kingdom if, after he has attained the age of seventeen, he is convicted of an offence for which he is punishable with imprisonment and on his conviction is recommended for deportation by a court empowered by this Act to do so.

Section (5) Procedure for, and further provisions as to, deportation.
(1) Where a person is under section 3(5) or (6) above liable to deportation, then subject to the following provisions of this Act the Secretary of State may make a deportation order against him, that is to say an order requiring him to leave and prohibiting him from entering the United Kingdom; and a deportation order against a person shall invalidate any leave to enter or remain in the United Kingdom given him before the order is made or while it is in force.
(2) A deportation order against a person may at any time be revoked by a further order of the Secretary of State, and shall cease to have effect if he becomes a British citizen.
(3) A deportation order shall not be made against a person as belonging to the family of another person if more than eight weeks have elapsed since the other person left the United Kingdom after the making of the deportation order against him; and a deportation order made against a person on that ground shall cease to have effect if he ceases to belong to the family of the other person, or if the deportation order made against the other person ceases to have effect.
(4) For purposes of deportation the following shall be those who are regarded as belonging to another person’s family—

(a) where that other person is a man, his wife or civil partner, and his or her children under the age of eighteen; and
(b) where that other person is a woman, her husband or civil partner, and her or his children under the age of eighteen;]and for purposes of this subsection an adopted child, whether legally adopted or not, may be treated as the child of the adopter and, if legally adopted, shall be regarded as the child only of the adopter; an illegitimate child (subject to the foregoing rule as to adoptions) shall be regarded as the child of the mother; and “wife” includes each of two or more wives.

(5) The provisions of Schedule 3 to this Act shall have effect with respect to the removal from the United Kingdom of persons against whom deportation orders are in force and with respect to the detention or control of persons in connection with deportation.
(6) Where a person is liable to deportation under section 3(5) or (6) above but, without a deportation order being made against him, leaves the United Kingdom to live permanently abroad, the Secretary of State may make payments of such amounts as he may determine to meet that person’s expenses in so leaving the United Kingdom, including travelling expenses for members of his family or household.

Other Appealable Decisions

This page tells you about appealable Home Office decisions which are not ‘immigration decisions’ set out in section 82(2) of  Nationality, Immigration & Asylum Act 2002 (the 2002 act).

Appeals against Refusal of Asylum

A decision to refuse asylum is not in itself appealable but it is often accompanied by an appealable decision, such as a removal decision, and the asylum decision can be dealt with at that appeal.

However, u/s 83 of the Nationality, Immigration and Asylum Act 2002 a person refused asylum but has been granted leave to enter or remain for more than a year can appeal against the asylum refusal (on asylum or humanitarian grounds only).

Nationality, Immigration and Asylum Act 2002

83 Appeal: asylum claim
(1) This section applies where a person has made an asylum claim and—

(a) his claim has been rejected by the Secretary of State, but
(b) he has been granted leave to enter or remain in the United Kingdom for a period exceeding one year (or for periods exceeding one year in aggregate).

(2) The person may appeal against the rejection of his asylum claim.

Withdrawal of Refugee Status

Withdrawal of Refugee Status is Appealable u/s 83A of the Nationality, Immigration and Asylum Act 2002, provided the person is given limited leave on another basis.

Nationality, Immigration and Asylum Act 2002

83A Appeal: variation of limited leave
(1) This section applies where—

(a) a person has made an asylum claim,
(b) he was granted limited leave to enter or remain in the United Kingdom as a refugee within the meaning of the Refugee Convention,
(c) a decision is made that he is not a refugee, and
(d) following the decision specified in paragraph (c) he has limited leave to enter or remain in the United Kingdom otherwise than as a refugee.

(2) The person may appeal to the Tribunal against the decision to curtail or to refuse to extend his limited leave.

Deprivation of Citizenship UK

In terms of Section 40 British Nationality Act 1981, any British citizen, British Overseas citizen, British overseas territories citizen, British protected person, British National (Overseas), or British subject may – by order – be deprived of their citizenship/status if:

  • the Home Office judges it would be conducive to the public good; or
  • citizenship was obtained by fraud, deception or concealment of a material fact.

Such refusal decisions are appealable u/s 40A(1) of the 1981 ACT.

British Nationality Act 1981

40 Deprivation of Citizenship.
(1) In this section a reference to a person’s “ citizenship status ” is a reference to his status as—

(a) a British citizen,
(b) a British overseas territories citizen,
(c) a British Overseas citizen,
(d) a British National (Overseas),
(e) a British protected person, or
(f) a British subject.

(2) The Secretary of State may by order deprive a person of a citizenship status if the Secretary of State is satisfied that deprivation is conducive to the public good.
(3) The Secretary of State may by order deprive a person of a citizenship status which results from his registration or naturalisation if the Secretary of State is satisfied that the registration or naturalisation was obtained by means of—

(a) fraud,
(b) false representation, or
(c) concealment of a material fact.

(4) The Secretary of State may not make an order under subsection (2) if he is satisfied that the order would make a person stateless.
(4A) But that does not prevent the Secretary of State from making an order under subsection (2) to deprive a person of a citizenship status if—

(a) the citizenship status results from the person’s naturalisation,
(b) the Secretary of State is satisfied that the deprivation is conducive to the public good because the person, while having that citizenship status, has conducted him or herself in a manner which is seriously prejudicial to the vital interests of the United Kingdom, any of the Islands, or any British overseas territory, and
(c) the Secretary of State has reasonable grounds for believing that the person is able, under the law of a country or territory outside the United Kingdom, to become a national of such a country or territory.

(5) Before making an order under this section in respect of a person the Secretary of State must give the person written notice specifying—

(a) that the Secretary of State has decided to make an order,
(b) the reasons for the order, and
(c) the person’s right of appeal under section 40A(1) or under section 2B of the Special Immigration Appeals Commission Act 1997 (c. 68).

(6) Where a person acquired a citizenship status by the operation of a law which applied to him because of his registration or naturalisation under an enactment having effect before commencement, the Secretary of State may by order deprive the person of the citizenship status if the Secretary of State is satisfied that the registration or naturalisation was obtained by means of—

(a) fraud,
(b) false representation, or
(c) concealment of a material fact.

40A Deprivation of citizenship: appeal
(1) A person who is given notice under section 40(5) of a decision to make an order in respect of him under section 40 may appeal against the decision to the First-tier Tribunal.
(2) Subsection (1) shall not apply to a decision if the Secretary of State certifies that it was taken wholly or partly in reliance on information which in his opinion should not be made public

(a) in the interests of national security,
(b) in the interests of the relationship between the United Kingdom and another country, or
(c) otherwise in the public interest.

Special Immigration Appeals Commission Act 1997

2B
A person may appeal to the Special Immigration Appeals Commission against a decision to make an order under section 40 of the British Nationality Act 1981 (c. 61) (deprivation of citizenship) if he is not entitled to appeal under section 40A(1) of that Act because of a certificate under section 40A(2).

Automatic Deportation UK

As of 1 August 2008 (subject to a few exceptions), all foreign national prisoners with a custodial sentence of twelve (12) months or more are subject to automatic deportation u/s 32 of UK Borders Act 2007 (the 2007 ACT). If such a sentence is imposed, Home Office is lawfully obliged to make a deportation order.

The automatic deportation orders are Appealable u/s 35 of the 2007 ACT (the appealable decision is Section 32(5) of the 2007 ACT).

UK Borders Act 2007

32 Automatic deportation
(1) In this section “foreign criminal” means a person—

(a) who is not a British citizen,
(b) who is convicted in the United Kingdom of an offence, and
(c) to whom Condition 1 or 2 applies.

(2) Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months.

(3) Condition 2 is that—

(a) the offence is specified by order of the Secretary of State under section 72(4)(a) of the Nationality, Immigration and Asylum Act 2002 (c. 41) (serious criminal), and
(b) the person is sentenced to a period of imprisonment.

(4) For the purpose of section 3(5)(a) of the Immigration Act 1971 (c. 77), the deportation of a foreign criminal is conducive to the public good.

(5) The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33).

(6) The Secretary of State may not revoke a deportation order made in accordance with subsection (5) unless—

(a) he thinks that an exception under section 33 applies,
(b) the application for revocation is made while the foreign criminal is outside the United Kingdom, or
(c) section 34(4) applies.

(7) Subsection (5) does not create a private right of action in respect of consequences of non-compliance by the Secretary of State.

EEA Appeals

EEA refusal decisions are appealable under regulation 26 of the Immigration (European Economic Area) Regulations 2006.

Regulation 26 (1) provides for appeal rights to arise in cases where an EEA decision has been made.

A European Economic Area (EEA) decision means a decision under these Regulations that concerns:

  • a person’s entitlement to be admitted to the United Kingdom;
  • a person’s entitlement to be dispensed with or have renewed, or not have revoked, registration certificate residence card, derivative residence card, permanent residence card or document certifying permanent residence;
  • a person’s removal from the United Kingdom;
  • the cancellation pursuant to Regulation 20A, of person’s right to reside in the United Kingdom;

Regulation 26(2) – (5) sets out the requirements an appellant must meet to exercise the right of appeal under Regulation 26(1) and specific restrictions that apply where such right can be exercised.

Regulation 27 sets out the circumstances in which an appeal may only be brought outside the UK.

Schedule 1(1) of the EEA regulations provides for an appeal against an EEA decision to be heard at the First-tier Tribunal as though it was an appeal against an immigration decision u/s 82(1) of the 2002 ACT. Schedule 1(1) also provides for most of the provisions of sections 82 to 106 of the 2002 ACT to apply to EEA appeals.

The Immigration (European Economic Area) Regulations 2006

Appeal rights
26.—(1) Subject to the following paragraphs of this regulation, a person may appeal under these Regulations against an EEA decision.

(2) If a person claims to be an EEA national, he may not appeal under these Regulations unless he produces a valid national identity card or passport issued by an EEA State.

(3) If a person claims to be the family member or relative of an EEA national he may not appeal under these Regulations unless he produces—

(a) an EEA family permit; or
(b) other proof that he is related as claimed to an EEA national.

(4) A person may not bring an appeal under these Regulations on a ground certified under paragraph (5) or rely on such a ground in an appeal brought under these Regulations.

(5) The Secretary of State or an immigration officer may certify a ground for the purposes of paragraph (4) if it has been considered in a previous appeal brought under these Regulations or under section 82(1) of the 2002 Act(1).

(6) Except where an appeal lies to the Commission, an appeal under these Regulations lies to the Asylum and Immigration Tribunal.

(7) The provisions of or made under the 2002 Act referred to in Schedule 1 shall have effect for the purposes of an appeal under these Regulations to the Asylum and Immigration Tribunal in accordance with that Schedule.

Out of country appeals
27.—(1) Subject to paragraphs (2) and (3), a person may not appeal under regulation 26 whilst he is in the United Kingdom against an EEA decision—

(a) to refuse to admit him to the United Kingdom;
(b) to refuse to revoke a deportation order made against him;
(c) to refuse to issue him with an EEA family permit; or
(d) to remove him from the United Kingdom after he has entered or sought to enter the United Kingdom in breach of a deportation order.

(2) Paragraph (1)(a) does not apply where—

(a) the person held an EEA family permit, a registration certificate, a residence card, a document certifying permanent residence or a permanent residence card on his arrival in the United Kingdom or can otherwise prove that he is resident in the United Kingdom;
(b) the person is deemed not to have been admitted to the United Kingdom under regulation 22(3) but at the date on which notice of the decision to refuse to admit him is given he has been in the United Kingdom for at least 3 months;
(c) the person is in the United Kingdom and a ground of the appeal is that, in taking the decision, the decision maker acted in breach of his rights under the Human Rights Convention or the Refugee Convention, unless the Secretary of State certifies that that ground of appeal is clearly unfounded.

(3) Paragraph (1)(d) does not apply where a ground of the appeal is that, in taking the decision, the decision maker acted in breach of the appellant’s rights under the Human Rights Convention or the Refugee Convention, unless the Secretary of State certifies that that ground of appeal is clearly unfounded.

SCHEDULE 1
APPEALS TO THE ASYLUM AND IMMIGRATION TRIBUNAL
The following provisions of, or made under, the 2002 Act have effect in relation to an appeal under these Regulations to the Asylum and Immigration Tribunal as if it were an appeal against an immigration decision under section 82(1) of that Act:

section 84(1)(1), except paragraphs (a) and (f);
sections 85 to 87;
sections 103A to 103E;
section 105 and any regulations made under that section; and
section 106 and any rules made under that section(2).

Fresh Evidence on Appeal UK

The whole case relating to the appellant is reheard at an appeal hearing at the First-tier Tribunal (Immigration and Asylum Chamber).

Fresh Evidence and Appeals u/s 85(4) of 2002 Act

According to section 85(4) of 2002 Act, an Immigration Judge may ‘consider evidence about any matter, including evidence which concerns a matter arising after the date of the decision. which it thinks relevant to the substance of the decision’. The evidence may relate to an appellant’s time in the UK (if any) and the time spent in his/her home country. Moreover, an appeal application may include fresh evidence which was not originally submitted to the Home Office at the time of the initial application but that has been correctly served on both the Home Office and the appeal’s tribunal since this point.

Fresh Evidence and Appeals u/s 85(5) of 2002 Act

According to section 85(5), an appeal relating to an entry clearance refusal and certificate of entitlement cases by an appellant from outside the UK, the evidence is limited to matters arising before and on the date of the decision. However, section 85A (1) sets out the exceptions mentioned in section 85(5).

UK Spouse Visa Appeals and Fresh Evidence

For spouse visa refusal appeals under section 82(1) of the 2002 Act, the subsection 85(5) is applicable, which constrains the provision of fresh evidence. For instance, if it was found that a sponsor did not have enough funds to maintain a spouse, then only bank statements relating to the date of the decision could be accepted as evidence – not bank statements relating to the time just prior to the hearing date. Therefore, before making a decision to appeal or reapply it is important to discuss with specialist UK spouse visa immigration solicitors to make the right decision for a successful outcome!

In Country Appeal UK and Fresh Evidence on Appeal UK

In the recent years, the Immigration Rules have been evolving on the extent of including Fresh Evidence on Appeal UK – particularly with regards to in-country appeals before April 6, 2015, when Tier 1, 2, 4 or 5 migrants and then family members had the right to appeal if they had applied for leave to remain before 2 March 2015 (in case of Tier 4 migrants and family member before 20 October 2014) and the application was refused on or after 6 April 2015. And for other in-country appeals relating to changing (‘vary’) the length and conditions of stay in the UK and certificate of entitlement for applications made before April 6, 2015.

In quite a few instances, immigration judges stopped accepting any fresh evidence in these types of cases, i.e. any evidence that was not before the Visa Officer who made the initial Immigration Decision to refuse the application.

Nationality, Immigration and Asylum Act 2002

85 Matters to be considered
(1) An appeal under section 82(1) against a decision shall be treated by the Tribunal as including an appeal against any decision in respect of which the appellant has a right of appeal under section 82(1).
(2) If an appellant under section 82(1) makes a statement under section 120, the Tribunal shall consider any matter raised in the statement which constitutes a ground of appeal of a kind listed in section 84(1) against the decision appealed against.
(3) Subsection (2) applies to a statement made under section 120 whether the statement was made before or after the appeal was commenced.
(4) On an appeal under section 82(1), 83(2) or 83A(2) against a decision the Tribunal may consider evidence about any matter which it thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision.

(5) But in relation to an appeal under section 82(1) against refusal of entry clearance or refusal of a certificate of entitlement under section 10—
(a) subsection (4) shall not apply, and
(b) the Tribunal may consider only the circumstances appertaining at the time of the decision to refuse.

85A Matters to be considered: new evidence: exceptions
(1) This section sets out the exceptions mentioned in section 85(5).
(2) Exception 1 is that in relation to an appeal under section 82(1) against an immigration decision of a kind specified in section 82(2)(b) or (c) the Tribunal may consider only the circumstances appertaining at the time of the decision.
(3) Exception 2 applies to an appeal under section 82(1) if—
(a) the appeal is against an immigration decision of a kind specified in section 82(2)(a) or (d),
(b) the immigration decision concerned an application of a kind identified in immigration rules as requiring to be considered under a “Points Based System”, and
(c) the appeal relies wholly or partly on grounds specified in section 84(1)(a), (e) or (f).
(4) Where Exception 2 applies the Tribunal may consider evidence adduced by the appellant only if it—
(a) was submitted in support of, and at the time of making, the application to which the immigration decision related,
(b) relates to the appeal in so far as it relies on grounds other than those specified in subsection (3)(c),
(c) is adduced to prove that a document is genuine or valid, or
(d) is adduced in connection with the Secretary of State’s reliance on a discretion under immigration rules, or compliance with a requirement of immigration rules, to refuse an application on grounds not related to the acquisition of “points” under the “Points Based System”.]

No Right of Appeal, Administrative and Judicial Review

After April 6, 2015, in case of a refusal decision, Tier 1, 2, 4 or 5 migrants and their family members are not entitled to an in-country right of appeal. However, applicants may apply for an Administrative Review where they believe there is a fundamental case working error. Alternatively, an Applicant may have to resort to filing an Immigration Judicial Review claim.  The following Applications do not attract a Right of Appeal:

  1. Tier 1 Entrepreneur, Tier 1 Graduate Entrepreneur, Tier 1 Investor applications and Tier 1 Exceptional Talent visa applications;
  2. Tier 2 General, Tier 2 Intra Company Transfer, Tier Sportsperson and Tier 2 Minister of Religion visa applications;
  3. Tier 4 General Student and Tier 5 Youth Mobility Scheme visa applications;
  4. All dependent visas under the Points Based System.

If your Points Based System application has been refused and you wish to challenge the decision on the basis of a case working error then you must submit an Administrative Review within 14 days of receiving the original decision.  However, if your Point Based System application has been refused and the decision is unlawful you may wish to seek legal advice in regards to filing an Immigration Judicial Review claim.

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Related: File Immigration Appeal Against an In-Country DecisionRights of Appeal Immigration Act 2014UK Visa Appeal TribunalUK Visa Appeal Solicitors, UK Visa Refusals: How to Challenge Decisions? and Judicial Review Procedure Immigration Cases

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