Immigration Appeal Grounds Against UK Visa Refusal Decision

This relates to Grounds of Appeal ImmigrationUK Immigration Grounds of Appeal available under Section 84 of the Nationality, Immigration & Asylum Act 2002. Accordingly, the post explains grounds of appeal available against a UK Visa and Immigration Refusal Decision, Residual Rights of Appeal, Asylum Claim, limits against decisions made under section 82(2), exceptions under section 88 of the 2002 ACT and one-stop appeal system under section 120.

UK Immigration Grounds of Appeal- Section 84 Immigration Act 2002

The grounds to an appellant to explain why the refusal decision is wrong are available under Section 84 of the Nationality, Immigration & Asylum Act 2002.

Accordingly, in terms with Section 84 of the Nationality, Immigration & Asylum Act 2002, an appeal under section 82(1) relating to the Right of Appeal of the ACT may be brought against a decision on any one or more of the grounds:

  • the decision is:
    • not in accordance with the Immigration Rules;
    • unlawful u/s 29 of the Equality Act 2010 which says a public authority cannot discriminate against a person in relation to race as defined u/s 9(1) of that Act;
    • unlawful u/s 6 of the Human Rights Act 1998 which says a public authority must not contravene (go against) its obligations under the European Convention on Human Rights;
    • otherwise not in accordance with the law (for instance it did not follow a published policy);
  • the appellant is a European Economic Area (EEA) national or member of the family of an EEA national, and a decision breaches the appellant’s rights under the community treaties in respect of entry to or residence in the UK;
  • the immigration officer (or the decision maker) should have exercised differently a discretion conferred (given) by the Immigration Rules;
  • removal of the appellant from the UK as a result of the immigration decision would breach the UK’s obligations under 1951 Refugee Convention or would be unlawful u/s 6 of Human Rights Act 1998 as being incompatible with appellant’s Convention rights.

Nationality, Immigration and Asylum Act 2002

84 Grounds of appeal
(1) An appeal under section 82(1) against an immigration decision must be brought on one or more of the following grounds—

(a) that the decision is not in accordance with immigration rules;
(b) that the decision is unlawful by virtue of section 19B of the Race Relations Act 1976 (c. 74) (discrimination by public authorities) [or Article 20A of the Race Relations (Northern Ireland) Order 1997] ;
(c) that the decision is unlawful under section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant’s Convention rights;
(d) that the appellant is an EEA national or a member of the family of an EEA national and the decision breaches the appellant’s rights under the Community Treaties in respect of entry to or residence in the United Kingdom;
(e) that the decision is otherwise not in accordance with the law;
(f) that the person taking the decision should have exercised differently a discretion conferred by immigration rules;
(g) that removal of the appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdom’s obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant’s Convention rights.

(2) In subsection (1)(d) “EEA national” means a national of a State which is a contracting party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 (as it has effect from time to time).

(3) An appeal under section 83 must be brought on the grounds that removal of the appellant from the United Kingdom would breach the United Kingdom’s obligations under the Refugee Convention.
[(4)An appeal under section 83A must be brought on the grounds that removal of the appellant from the United Kingdom would breach the United Kingdom’s obligations under the Refugee Convention.]

Equality Act 2010

Section 29 – Provision of services, etc.

(9) In the application of this section, so far as relating to race or religion or belief, to the granting of entry clearance (within the meaning of the Immigration Act 1971), it does not matter whether an act is done within or outside the United Kingdom.

Human Rights Act 1998

Section 6 Acts of public authorities.

(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

Residual Rights of Appeal

The 2002 ACT limits right of appeal in some cases by restricting the grounds on which a person can appeal. When the aforesaid occurs, a person is assumed to have a ‘residual rights of appeal’.

When somebody has residual rights of appeal he or she can only bring an appeal on certain grounds, which are those referred u/s 84(1)(b), (c), and sometimes (g), of the 2002 ACT:

  • that the decision is unlawful u/s 29 of the Equality Act 2010 (discrimination in the exercise of public functions) so far as it relates to race as defined u/s 9(1) of the ACT (discrimination by public authorities);
  • that the decision is unlawful u/s 6 of the Human Rights Act 1998 as being incompatible with the appellant’s rights following European Convention on Human Rights (ECHR);
  • that removal would breach the UK’s obligations under the 1951 Refugee Convention;

Asylum Claim

Appeals u/s 83 of the 2002 ACT, following a refusal of asylum but where the person has a leave to enter or remain for more than a year, can only be brought on asylum or humanitarian protection grounds.

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.

Limits Against Decisions Made u/s 82(2)

Normally, whenever there is a right of appeal against an immigration decision made u/s 82(1) of the 2002 ACT, any of the grounds listed in section 84(1) of that Act can be raised. However, section 88 of the 2002 ACT removes the right of appeal in certain circumstances and provides that an appeal can only be brought on residual grounds, which are those referred to in section 84 (b), (c) and (g) of the 2002 ACT.

Exceptions u/s 88 of the 2002 ACT

Appeal rights for the immigration decisions u/s 82(2)(a), (b), (d) or (e) of the 2002 ACT will be limited to residual grounds only if the decision is taken because of the person:

  • does not satisfy an age, nationality or citizenship requirement specified in the Immigration Rules (section 88(2)(a) of the 2002 ACT);
  • does not have a genuine immigration document of a particular kind or any immigration document (entry clearance, passport, work permit letter or immigration employment document, a travel document for non-UK nationals) (section 88(2)(b) of the 2002 ACT);
  • has failed to provide a medical report or medical certificate in line with a requirement of the Immigration Rules (section 88(2)(ba) of the 2002 ACT);
  • is seeking to be in the UK for a longer period than is permitted under the Immigration Rules (section 88(2)(c) of the 2002 ACT);
  • is seeking to enter or remain in the UK for a purpose other than one permitted under the Immigration Rules (section 88(2)(d) of the 2002 ACT)

Nationality, Immigration and Asylum Act 2002

Section 88 Ineligibility

(1) This section applies to an immigration decision of a kind referred to in section 82(2)(a), (b), (d) or (e).

(2) A person may not appeal under section 82(1) against an immigration decision which is taken on the grounds that he or a person of whom he is a dependant—

(a) does not satisfy a requirement as to age, nationality or citizenship specified in immigration rules,
(b) does not have an immigration document of a particular kind (or any immigration document),
(ba)has failed to supply a medical report or a medical certificate in accordance with a requirement of immigration rules,
(c) is seeking to be in the United Kingdom for a period greater than that permitted in his case by immigration rules, or
(d) is seeking to enter or remain in the United Kingdom for a purpose other than one for which entry or remaining is permitted in accordance with immigration rules.

(3) In subsection (2)(b) “immigration document” means—

(a) entry clearance,
(b) a passport,
(c) a work permit or other immigration employment document within the meaning of section 122, and
(d) a document which relates to a national of a country other than the United Kingdom and which is designed to serve the same purpose as a passport.

(4) Subsection (2) does not prevent the bringing of an appeal on any or all of the grounds referred to in section 84(1)(b), (c) and (g).

One-stop System

The one-stop system applies where a person has made an application for leave to enter or remain in the UK and an immigration decision (within the meaning of Section 82 of the Nationality, Immigration and Asylum Act 2002) has been taken or may be taken in respect of that person;

Purpose

Section 120 of the 2002 ACT seeks to make sure that all grounds of appeal are raised in a single appeal and prevents appellants from extending their stay by mounting a series of appeals.

An applicant can have one application running at a time until the Home Office makes a decision (any changes to that application are treated as variations). Applications attract only one decision and one appeal regardless of the number of times they are varied.

Main applicant

At any time, the Home Office may serve an applicant with a written one-stop notice (u/s 120 of the 2002 ACT). The one-stop notice:

  • requires the applicant to state all the reasons (outside the scope of the original application) why they wish to enter or remain in the UK, including any grounds on which they should be permitted to enter or remain or on which they should not be removed;
  • warns the applicant of the penalties for not complying with the requirement.

Notice is often served when an application is made and, while there is no obligation to serve a section 120 notice, it will often be served if an application is refused with a right of appeal in the UK. There is no limit to the number of times a person can be served with a one-stop notice.

One-stop notices can also be given to someone who has not made an application, for instance, someone who may be removed as an overstayer or illegal entrant. If an application is refused and the refusal attracts a right of appeal in the UK, the notice of decision or refusal letter can contain a paragraph giving the one-stop notice.

Living Illegally in the UK

For an entry clearance or remain to remain application in the UK for human rights claim, protection claim or against a removal or deportation decision, the applicant may be served a “one-stop notice” under section 120 of Act 2002 (as amended by the 2014 Act). The Notice under Section 120, allows the applicant to raise any additional reasons or grounds (other than those already raised in the application). These grounds may permit an applicant to remain in the UK or get them a Right of Appeal.

If no response is made to the notice but the person makes a late claim, if refused, the claim can be certified under section 96 of the 2002 Act, such that there will not be a right of appeal in the United Kingdom.

Nationality, Immigration and Asylum Act 2002

Section 120 Requirement to state additional grounds for application

(1) This section applies to a person if—

(a) he has made an application to enter or remain in the United Kingdom, or
(b) an immigration decision within the meaning of section 82 has been taken or may be taken in respect of him.

(2) The Secretary of State or an immigration officer may by notice in writing require the person to state—

(a) his reasons for wishing to enter or remain in the United Kingdom,
(b) any grounds on which he should be permitted to enter or remain in the United Kingdom, and
(c) any grounds on which he should not be removed from or required to leave the United Kingdom.

(3) A statement under subsection (2) need not repeat reasons or grounds set out in—

(a) the application mentioned in subsection (1)(a), or
(b) an application to which the immigration decision mentioned in subsection (1)(b) relates.

96 Earlier right of appeal

(2) An appeal under section 82(1) against an immigration decision (“the new decision”) in respect of a person may not be brought if the Secretary of State or an immigration officer certifies—
(a) that the person received a notice under section 120 by virtue of an application other than that to which the new decision relates or by virtue of a decision other than the new decision,

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Related: Appeal Against Immigration Decision, Immigration Appeal Success Rate and Rights of Appeal Immigration Act 2014