This collates the details relating to the information, which is usually included in notices of decision i.e. how, where and to whom an appeal notice is issued by Her Majesty’s HOME OFFICE. Accordingly, the post highlights the details of the following aspects concerning Notices of an Appeal Decision:
- Contents of Notices;
- Notifying Residual Grounds of Appeal;
- Means & Date of Service;
- Serving Notices on File;
- Who Receives Notices.
Serving Appeal Notices for Appealable Decisions
Contents of Appeal Notices
For an appealable decision, the notice of decision may usually contain some/most of the of the following statutory requirements:
- Date of Decision– The Date of Decision is the date on which the Home Office has made the decision. Including a DATE of Decision is not a statutory requirement, but only part of good practices of the Home Office UK.
- Date of Service– Date of service of the decision is only a good practice rather than a statutory legal requirement. This is part of the appeals coding entry completed by the decision-maker at the top right of all notices of decision. It will be the actual or deemed date that an individual will receive the decision.
- Statement of Reasons to Explain the Refusal- A Statement of reasons is required to explain the refusal under 5(1)(a) & 5(2) of the 2003 Regulations. A summary paragraph included in the text of the notice or added separately in a ‘reasons for refusal letter’. If an appeal can be made u/s 83 of the Nationality, Immigration & Asylum Act 2002, the immigration officer is required to include a statement of reasons for the refusal of the asylum claim, even if that claim was refused separately earlier, and reasons for refusal were issued then (referring to previous correspondence as necessary).
- Name of the Country or Territory- Where the decision relates to a refusal of a leave to enter the UK, deportation order u/section 5(1) of the Immigration Act 1971 or remove a person from the UK – the name of the country or territory to which the person is to be removed (reg 5(1)(b) of the 2003 regulations) is required to be included in the Notice of Appeal Decision. If the person can lawfully be removed to more than one country, the immigration officer is required to specify all such countries. This includes removal decisions taken following a refusal of leave to enter.
- Rights of Appeal– It is statutory that the Home Office provides advice to the applicant regarding the right of appeal and the statutory provision on which any appeal will be based in agreement with the regulation 5(3)(a) of the 2003 Regulations. It is usually incorporated into template headings and will usually form the basis of the statutory basis of refusal.
- Appeal to be brought in the UK or Not- This relates to whether or not an appeal may be brought in the UK as per regulation 5 (3)(b) of the 2003 regulations, and is also part of the appeals coding entry, which is usually mentioned at the top right of all notices of decision.
- Grounds of Appeal– Grounds on which an appeal may be conducted as per Regulation 5(3)(c) of the 2003 Regulations as u/s 84 of the Nationality, Immigration & Asylum Act 2002.
- Appeal’s Form– The notice of the decision is required to explain the facilities available for advice and assistance to an applicant with the appeal in agreement with Regulation 5(3)(d) of the 2003 Regulations. The applicant is required to be informed of the legal aid agency in the notice of the decision. A blank appeal form is required to be included indicating the time limits for appealing and also elaborating details of how to submit the form.
Notifying Residual Grounds of Appeal through Notice of Decision
This pertains to grounds of appeal that are notified through a Home Office’s notice of the decision, including decisions which can only be challenged on residual grounds.
Normally, a right of appeal u/s 82(2) of the Nationality, Immigration & Asylum Act 2002 (the 2002 ACT) can be brought on any one or more of the grounds of appeal listed u/s 84(1) of the 2002 ACT. However, there are certain circumstances in which the right of appeal can only be brought on a limited number of grounds (residual grounds) such as:
- Asylum (does not apply in entry clearance cases);
- Human Rights;
- Race Discrimination;
Notice of Decision- That could be Challenged on Residual Grounds
If a decision can only be challenged on residual grounds, the immigration officer is required NOT to enclose a blank appeal form with the notice of a decision, and the notice must not include details of either:
- appeal rights; or
- the help available to those lodging an appeal;
In such cases, the notice of decision must only give a statement of:
- the reasons for the refusal;
- (in removal cases) the country (ies) to which removal is proposed;
As a matter of good administrative practice, the notice of the decision is required to include the completed appeal coding at the top right to help Her Majesty’s Courts & Tribunals Service to identify if an appeal is out of time or invalid.
If a person has raised human rights or race relations in his/her application, then the notice is required to be served along with a notice of appeal.
Where a person later claims that the residual grounds apply, the immigration officer is required to re-serve the notice of decision under Reg 4, and the time limit for appealing will run from the date when a notice of decision was re-served.
Means and Date of Service
- Serving a Notice– Under Regulation 7(1) of the Immigration (Notices) Regulations 2003 a notice of decision can be:
- served by:
- sent by:
- post (first class recorded delivery) to an address provided by the applicant or representative;
- document exchange – to a document exchange no. or address;
- communicated electronically;
- collected by the main person who is subject to the decision or his/her representative.
- served by:
- Serving Notice by Post– Under regulation 7(1)(c)(ii) of the 2003 Regulations, if no address or an updated address for correspondence has been furnished by an applicant, the notice can be served at the last-known address (or place of business in case of a representative). It is the applicant’s or representative’s responsibility to intimate the Home Office of any change to address for correspondence.
- Deemed Date of Service: Notices Served by Post within the UK– A notice sent by post (as detailed above) to an address within the UK is deemed (considered) to have been served two (2) business days after it is posted unless an applicant can provide evidence to establish otherwise. Saturdays, Sundays, Christmas Day, Bank Holidays, and Good Friday do not count as business days.
- Deemed Date of Service: Notices Posted Overseas– A notice sent outside the UK is deemed to have been served twenty-eight (28) calendar days after it was posted unless an applicant can provide evidence to establish otherwise. In some cases, an actual date of service can be ascertained such as:
- when somebody is detained;
- a notice of the decision is served at a reporting event.
Serving Notices on File
When it is not possible to serve a notice of the decision, the immigration officer is required to record the reasons for this and place the notice on file. The notice is then statutorily deemed to have been served.
- Requirements- Serving Notices on File– To serve a notice on file, all of the following requirements are required to be met:
- an applicant’s whereabouts are not known;
- no address has been furnished for correspondence, and the dealing officer does not know the last known or common place of abode or place of business of the applicant;
- the address provided to the immigration officer is defective, false or no longer in use by an applicant;
- no representative is knowingly designated to act on behalf of the applicant.
- an applicant’s whereabouts are not known;
- Decision Notice- Serving Notices on File– If a decision is not appealable, the immigration officer is required to:
- clearly, note the circumstances and reasons why normal service is not possible in case of legal action later (it may be necessary to provide the aforesaid record as a shred of evidence, along with the original notice of decision);
- sign and date the notice of decision;
- place it in the file;
Serving a notice of the decision on file terminates the application and starts the period for appealing. If the application was made in time, service also triggers the provisions of section 3C of the Immigration Act 1971. 3C leaves end at the end of the period for appealing if no appeal is lodged and from that point on the applicant is an overstayer.
- Locating a Person: Serving Notices on File– If the applicant is subsequently located, the immigration officer is required to give him/her:
- a copy of the notice of decision at the earliest (although the notice of the decision is not served again as it was deemed to have been served when it was placed on file);
- details of when and how it was furnished;
- any additional documents relating to the right of appeal (the time for appealing does not start again, and the person would not normally have a right of appeal – although they can make an, out of time, application to the Tribunal setting out why they could not be served with the earlier decision).
An out of time appeal can still be accepted by the Tribunal if the Tribunal believe it would be particularly unjust to prevent an appeal proceeding.
Who Receives an Appeal Notice?
Main Applicants and their Representatives
The notice is usually served on:
- the applicant, who is the subject of the immigration decision;
- the applicant’s representative;
Where an applicant is under 18 and has no representative, the notice is served on a parent, guardian or any other adult with responsibility for the child.
It is not a requirement of the Immigration (Notices) Regulations 2003 (the 2003 regulations) to serve the notice on both the applicant with a right of appeal and his/her representative, but it is the usual practice of the Home Office to do so.
Section 84 of the Immigration & Asylum Act 1999
Notice is not served on an applicant’s representative when that representative is not:
- registered with the Office of the Immigration Services Commissioner (OISC), or;
- exempt from registration with OISC.
All dependants refused in line with the main applicant are required to be notified of the immigration decision made in their case. For a person to be regarded as a dependant, he/she is required to meet the stipulations of the Immigration Rules for that type of application.
Dependants of Applicant’s Claiming Asylum
In asylum cases, both the main applicant and the dependant are required to be notified in writing of an immigration decision.