UK Immigration Appeal Process: Appealing Against UK Visa Refusal

The relates to UK Immigration Appeal Process for appealing against a UK visa refusal under Section 82 of the Nationality Immigration and Asylum Act 2002, which provides the details of Right of appeal against an ‘immigration decision’ such as refusal of entry clearance and leave to enter the UK, spouse visa refusal, refusal to vary leave to enter or remain in the United Kingdom, appeal against a deportation or removal order etc. Accordingly, the post covers the following topics:

  1. UK Immigration Appeal Process for Appealing Against a UK Visa Refusal
    • Lodge an Immigration Appeal
    • Directions of the Appeals Tribunal
    • Immigration Tribunal Appeal Bundle
    • Immigration Appeal Hearing Date
    • Immigration Appeal Decision Waiting Time
  2. First Tier Tribunal Immigration Appeal Process
    • Immigration Appeal Hearing Process
    • Appeals Directions
    • Asylum Claim Appeal: Hearing Date
    • Matters to be Considered in Appeals
    • Appeal Hearing in the Absence of a Party
    • Adjournments of Immigration Appeals
    • Withdrawals of Appeals
    • Abandoned Appeal Immigration
    • Appeals Abandoned under EEA Regulations
    • Appeal Hearings of Dependants
    • Appeal Determination: First Tier Tribunal Immigration Decisions
    • Immigration Appeal Decision Time
    • Immigration Appeal Refusal What Next?
    • Finally Determined Appeals

Appealing UK Visa Refusal: UK Immigration Appeal Process

UK Immigration Appeal Process- Appealing Against UK Visa Refusal

In terms of Immigration (Notices) Regulations, 2003 a written notice is required to be intimated to an applicant for an immigration decision that attracts a right of appeal.

Lodge an Immigration Appeal

Accordingly, if the applicant deems appropriate then can lodge an immigration appeal against an immigration refusal decision with the tribunal within the deadline period. An appeal needs to be filed as soon as possible as the maximum period allowed after the notice of appeal is 14 days for in-country appeals, 5 days for detention appeals and 28 days for appeals from outside the UK.

Directions of the Appeals Tribunal

Once an immigration appeal is lodged, the tribunal will issue an acknowledge receipt and give “directions” that are the legal instructions from a judge to the two parties to the appeal i.e. the Appellant and the Respondent. The applicant is the Appellant, and the Entry Clearance Officer (ECO) is the Respondent to an Appeal.

Immigration Tribunal Appeal Bundle

The directions instruct the Respondent to file and serve the required evidence on which Respondent will be relying on during the appeal hearing. This evidence is presented in a bundle of documents – referred to as the Respondent’s bundle. The Applicant’s bundle is usually referred to as the Appellant’s Bundle.

The Respondent’s bundle must include:

  • application form(s);
  • copies of documents that had been submitted with the application of the appellant;
  • a copy of the reasons for the refusal; and
  • a copy of an Entry Clearance Manager’s (ECM) review, if it is available;

Documents are often missing in the Respondent’s Bundle. Moreover, it is often not indexed and paginated. Tribunal judges usually are tolerant of failings of an Entry Clearance Officer (ECO); however, an appellant should not expect such level of tolerance.

Immigration Appeal Hearing Date

An immigration appeal hearing date is scheduled by the court, and the Respondent’s Bundle is required to be received before the deadline, instructed in the directions, but such might not always happen. In some occasions, the Respondent will not provide the bundle until the hearing date. If the Respondent altogether fails to produce a bundle a judge is likely to adjourn an appeal; however, if an Appellant fails to provide a bundle the appeal is most likely to be dismissed.

The Appellant’s Bundle is required to be submitted to the Home Office lawyers and the tribunal well before the hearing, usually five (5) working days of the hearing date.

Immigration Appeal Decision Waiting Time

The hearing will eventually take place. The judge usually does not announce the outcome of the hearing, but this sometimes does happen. Normally an applicant receives a written decision within two or three weeks after the hearing.

After that, either a visa will be granted if the appeal is allowed or in a case of an adverse decision the appeal can be lodged with the Upper Tribunal.

First Tier Tribunal Immigration Appeal Process

Once an appeal is filed then the Appeal Process sets into motion. Depending on the nature of the immigration appeal, empirically, the First Tier Tribunal Immigration Appeal Process Time has been approximately 6-9 months, the average processing time has increased during 2017 from 35 to 51 weeks and the immigration appeal success rate is 50%.

Immigration Appeal Hearing Process

The Home Office is normally represented at hearings by either a presenting officer (POs) or sometimes by a case owner (CO) in asylum appeals. However, in some significant cases, counsel is more likely to be instructed.

Immigration Appeal Hearing Legislation

The following legislation allows the tribunal to decide how the appeal hearing will be conducted:

  • Nationality, Immigration & Asylum Act 2002;
  • Asylum & Immigration (Treatment of Claimants etc) Act 2004;
  • Asylum & Immigration Tribunal (Procedure) Rules 2005.

Appeals Directions

The Tribunal has the power to make both parties (the appellant as well as the respondent) provide documents before the final hearing. If either of the parties fails to comply with the deadline, it can result in the appeal being determined without a hearing, in line with Rule 15 of the Asylum & Immigration Tribunal (Procedure) Rules 2005. The tribunal issues couple of types of directions:

  • prehearing directions: and
  • case-specific directions;

Responses to directions are required to include:

  • details of the information being provided; and also
  • any reasons why elements of the request cannot be provided;

Pre-hearing Directions

These directions are issued to both parties when a case is first listed, and documents need to be provided before the hearing. The appeal bundle usually satisfies these directions and only needs to be supplemented with a separate skeleton argument when the appellate authority identifies specific issues.

For such issues, a reference to the reasons for refusal letter and any supplementary letter(s) would normally suffice. It is not necessary to provide or refer to precedent cases as what is being sought is the evidence to support the Home Office decision.

Case-specific Directions

These are requests from the Tribunal to the Home Office for additional explanations, submissions, and considerations. They are often issued after a first hearing but can be given at a case management review hearing. The Home Office will have already provided a skeleton argument in the form of the notice of decision or reasons for refusal letter, and there is no set format for this additional material. It must simply and briefly set out what each additional issue is and the Home Office response on that issue (referring to relevant precedents or documentary evidence).

Unreasonable or impossible directions

The tribunal must be informed when their deadline for receiving additional papers is unreasonable or impossible to meet. A written explanation of why the direction fails to meet the requirements of Rule 45 of 2005 Rules is required to be provided.

Asylum Claim Appeal: Hearing Date

When the appellant is in the UK, and the appeal relates in whole (or in part) to an asylum claim, the tribunal must set the appeal hearing either:

  • no later than 35 days after it receives the notice of appeal;
  • 35 days after it has decided that a late notice of appeal can be considered;

If an asylum appeal is to be determined without a hearing, then the tribunal must decide this no later than 35 days after the receipt of the appeal notice.

Matters to be Considered in Appeals

In appeals against immigration decisions made u/s 82 of the 2002 ACT, the Tribunal must consider:

  • all Home Office decisions where the appellant has an appeal right u/s 82 of the 2002 ACT;
  • any matter raised as additional grounds in response to a one-stop notice, including those raised before and during the appeal, provided they meet the grounds of appeal definition u/s 84 of the 2002 ACT;

In suits u/s 82 or 83 of the 2002 ACT, a tribunal can consider evidence about any matter which it believes is connected to the essence of the decision, including evidence which involves a matter arising after the date of the decision, with the following exceptions:

  • in entry clearance and certificate of entitlement cases – the tribunal can only consider the circumstances as they stood at the date of the decision being appealed; this does not exclude later evidence which sheds light on earlier conditions;
  • in cases under the points-based system the tribunal can only consider evidence that was submitted in support of, and at the time of executing, the application, which was considered by the Home Office decision-maker (including evidence requested under evidential flexibility arrangements) – however, exemptions exist to allow evidence submitted after the decision to be considered:
    • in support of human rights, race relations, asylum or European Economic Area (EEA) grounds of appeal;
    • in support of the grounds that do not relate to the attainment of points;
    • to prove that a document already submitted is genuine or valid;

Precedent, Country Guidance and Practice Directions

The tribunal is bound by precedents set by:

  • higher courts;
  • starred or reported tribunal determinations;

It is also required to treat country guidance cases as providing authoritative findings on country conditions in asylum or human rights appeals, provided the case depends on the same or similar evidence to that considered in the relevant case, and there has not been a significant change of circumstances since the country guidance case.

The tribunal must also follow practice directions issued by:

  • the senior president or president of the tribunal;
  • the president of the Immigration & Asylum Chamber.

Appeal Hearing in the Absence of a Party

Rule 19 of the Asylum & Immigration Tribunal (Procedure) Rules 2005 allows appellate authorities to hear an appeal in the absence of a party or representative, providing that party or representative:

  • was given notice of the date, time and place of the hearing;
  • has provided no satisfactory explanation for the absence;

Rule 19, of the 2005 Rules, also states appellate authorities can hear an appeal in the absence of a party if:

  • a representative of the participant is present at the hearing;
  • the party is:
    • outside the UK;
    • suffering from a communicable disease;
    • likely to behave in a violent or disorderly manner;
    • unable to attend due to illness, accident or some other good reason;
    • unrepresented and cannot be given notice of the hearing;
    • not minded to participate and has told the tribunal.

Adjournments of Immigration Appeals

Adjournments should be avoided where possible. If one is necessary, the party requesting it must:

  • notify all parties;
  • show good reason why an adjournment is necessary;
  • produce evidence to establish any fact or matter relied on, in support of the application;

The tribunal must be persuaded as to why an appeal cannot be determined justly were it to proceed as planned. If they are so persuaded, they will set a new hearing date, for the appeal to be heard or determined within 28 days of the adjournment, unless there are exceptional circumstances that would prevent this.

Withdrawals of Appeals

Under Rule 17 of the Asylum & Immigration Tribunal (Procedure) Rules 2005, appeals can be withdrawn by the appellant or their representative on their behalf at any time before they are determined.

Notifying a Withdrawal of Appeal

Notice of withdrawal is required to be given in writing except when an appeal is withdrawn orally before the tribunal. An appeal is also treated as withdrawn if the Home Office notifies the tribunal it has withdrawn the immigration decision to which the appeal relates.

If an appeal is withdrawn or treated as withdrawn, the tribunal serves a notice to this effect on all parties. If the tribunal does not provide this notice, however, it does not invalidate the withdrawal. The withdrawal takes effect as soon as the Home Office, the appellant or their representative provides proper notice to the tribunal.

Incorrectly Withdrawn Appeals

Withdrawn appeals cannot be reinstated, but an appellant can argue the appeal was withdrawn incorrectly and is, therefore, extant (ongoing). The immigration officer is required to tell appellants who wish to reinstate an appeal:

  • to contact the tribunal directly;
  • that enforcement action will not be suspended to allow them to do so – however, where such an application has been made the Home Office would normally defer removal until the outcome of the referral is known;

Invitations to Withdraw Appeal

Invitations to withdraw made by the Home Office are usually made with caution as these can adversely affect the appellant’s future appeal rights and leave the Home Office open to accusations of coercion, that is, having forced the appellant to withdraw.

Death of an appellant

Although an appeal can be treated as withdrawn if an appellant dies before their appeal has been determined, the tribunal, where the tribunal considers it necessary, can allow a representative to continue proceedings. For instance, such an event may occur if the appeal also includes dependants, who require determination.

Abandoned Appeal Immigration

Section 104(4) of the 2002 Act requires suits u/s 82 of the Act to be treated as abandoned when an appellant:

  • lodges an in-country appeal whilst in the UK and then leaves the UK;
  • is granted permission to enter or remain in the UK, unless the appellant:
    • is given leave for more than 12 months and the appeal is on asylum grounds;
    • has appealed on race discrimination grounds;

In these circumstances, it is for the appellant to give notice they want to pursue the appeal.

Appeals Abandoned under EEA Regulations

Paragraph 4(2) of Schedule 2 to the Immigration (European Economic Area) Regulations 2006 (EEA regulations) also says an appeal shall be treated as abandoned if the appellant has:

  • been issued with one of the following documents under the EEA regulations:
    • registration certificate;
    • residence card;
    • derivative residence card;
    • document certifying permanent residence;
    • permanent residence card;
  • been issued with an accession worker card under the Accession (Immigration and Worker Authorisation) Regulations 2006 (Bulgarian and Romanian nationals only);
  • had their passport stamped with a family member residence stamp;

However, a pending appeal under the EEA regulations must not be treated as abandoned solely because the appellant has left the UK {regulation 25(4)}.

Informing the Appellate Authorities of Appeal Abandonment

Rule 18 of the 2005 Rules requires the appellant or their representative to inform the appellate authorities if an appeal is abandoned. On receipt of such notice, the Tribunal must serve formal notice on all parties informing them the appeal is being abandoned.

Section 104(4) of the 2002 ACT does not apply to appeals brought by a person while outside the UK or to appeals u/s 83 or 83A of that Act.

Appeal Hearings of Dependants

Rule 20 of the Asylum & Immigration Tribunal (Procedure) Rules 2005 provides for the appeals of the main applicant(s) and his/her/their dependents to be heard together.

If only the main applicant appeals, Tribunal cannot consider a position of the dependants. However, dependants cannot be removed until an appeal of the main applicant has been determined. If only dependants appeal, they can still appeal in the UK if either:

  • their application for a further leave had been made in time (subject to requirements u/s 88 and 88A of the Nationality, Immigration & Asylum Act 2002 which both apply to dependants); or
  • they raise asylum or humanitarian protection grounds.

Appeal Determination: First Tier Tribunal Immigration Decisions

In terms of Section 86 Nationality Immigration and Asylum Act 2002, the Tribunal must determine, i.e. reach a decision on any matter raised as a ground of appeal and any matter that section 85 of the 2002 ACT requires it to consider. If the tribunal fails to do so, it can be an error of law and form the basis of an application for an onward appeal.

The tribunal must allow an appeal if either:

  • the Home Office’s decision was not in line with the law (including the Immigration Rules);
  • discretion within the rules should have been exercised differently (a refusal to depart from the rules does not count as an exercise of discretion in this context).

In all other circumstances, the tribunal must dismiss the appeal.

Nationality, Immigration and Asylum Act 2002

86 Determination of appeal
(1) This section applies on an appeal under section 82(1), 83 or 83A.
(2) The Tribunal must determine—
(a) any matter raised as a ground of appeal (whether or not by virtue of section 85(1)), and
(b) any matter which section 85 requires it to consider.
(3) The Tribunal must allow the appeal in so far as it thinks that—
(a) a decision against which the appeal is brought or is treated as being brought was not in accordance with the law (including immigration rules), or
(b) a discretion exercised in making a decision against which the appeal is brought or is treated as being brought should have been exercised differently.
(4) For the purposes of subsection (3) a decision that a person should be removed from the United Kingdom under a provision shall not be regarded as unlawful if it could have been lawfully made by reference to removal under another provision.
(5) In so far as subsection (3) does not apply, the Tribunal] shall dismiss the appeal.
(6) Refusal to depart from or to authorise departure from immigration rules is not the exercise of a discretion for the purposes of subsection (3)(b).

Appeals Determinations Without Hearings

Rule 15(2) of Asylum & Immigration Tribunal (Procedure) Rules 2005 allows appellate authorities to determine an appeal without a hearing if:

  • all parties to the appeal consent subject to the exception in Rule 15(2)(a) of the 2005 Rules which allows the appeal to be determined without a hearing (without the appellant’s consent) where Lord Chancellor has refused to issue a certificate of fee satisfaction for the fee payable for a hearing;
  • the appellant is outside the UK and does not have a representative with an address for service in the UK;
  • a party has not complied with the procedure rules or a direction of the appellate authorities and the Tribunal is satisfied it is appropriate to determine the appeal without a hearing – if the party that has not complied is the appellant, the Tribunal can dismiss the appeal without determining it (this will rarely be appropriate, however, if there is evidence on which the tribunal can determine the appeal);
  • the tribunal is satisfied the appeal can be justly determined without a hearing; however, the tribunal must give the parties a chance to comment in writing;

The tribunal must still issue a full, written determination that informs the parties of any onward appeal rights (which are unaffected by the absence of hearing), although its contents may be limited where it has dismissed the appeal without a hearing.

The Asylum and Immigration Tribunal (Procedure) Rules 2005

Method of determining appeal
15.—(2) The Tribunal may determine an appeal without a hearing if—

(a) all the parties to the appeal consent;
(b) the appellant is outside the United Kingdom or it is impracticable to give him notice of a hearing and, in either case, he is unrepresented;
(c) a party has failed to comply with a provision of these Rules or a direction of the Tribunal, and the Tribunal is satisfied that in all the circumstances, including the extent of the failure and any reasons for it, it is appropriate to determine the appeal without a hearing; or
(d) subject to paragraph (3), the Tribunal is satisfied, having regard to the material before it and the nature of the issues raised, that the appeal can be justly determined without a hearing.

(3) Where paragraph (2)(d) applies, the Tribunal must not determine the appeal without a hearing without first giving the parties notice of its intention to do so, and an opportunity to make written representations as to whether there should be a hearing.

Immigration Appeal Decision Time

The tribunal must serve a written determination, which provides the reasons for its decision, on all parties.

Immigration Appeal Decision Time for Non-Asylum Appeal is 10 Days

For non-asylum cases, the immigration appeal decision time for Tribunal to send a written determination to parties is usually within 10 working days of its conclusion irrespective whether there has been a hearing or not.

Immigration Appeal Decision Time for Asylum Appeal is 28 Days

For asylum cases where the appellant has appealed from within the UK, the tribunal serves the determination on the Home Office and the Home Office must serve the determination on the appellant no later than the date on which before-mentioned application is made (if the Home Office wants to appeal the determination);  and in all other cases no later than 28 days after receiving the determination from the tribunal.

Immigration Appeal Refusal What Next?

When rejecting an appeal, or when an appeal is withdrawn, the court can make a non-statutory recommendation that the Home Office should exercise discretion in favour of the appellant (they often suggest the Home Office reconsider the application or grant discretionary leave).

Recommendation for Reconsideration of the Refusal Decision

The immigration officer usually only act upon such recommendations if the determination and/or recommendation disclose clear, exceptional, compassionate circumstances, which were not previously considered and warrant the exercise of discretionary powers outside the Immigration Rules.

The immigration officer is required to consider these recommendations as soon as reasonably possible and consider tribunal determinations which suggest the Home Office should reconsider a case but which are not strictly recommendations as if they were recommendations.

Accepted Recommendations

If the Home Office agrees to accept the tribunal’s recommendation and leave is granted the immigration officer is required to:

  • inform the appellant in a covering letter that any outstanding appeal (to the Tribunal or another court) will be treated as abandoned in line with section 104(4) of the Nationality, Immigration and Asylum Act 2002 (unless sections 104(4B) or 104(C) of that Act apply);
  • inform the tribunal or appropriate court.

Recommendations which are not Accepted

If the tribunal’s recommendation is not accepted, the immigration officer is required to send a letter to the appellant which:

  • gives details of the tribunal recommendation; and
  • states that the Home Office has decided the written determination does not disclose clear, exceptional, compassionate circumstances which were not previously considered and which merit an exercise of (using) discretion outside the Immigration Rules.

Finally Determined Appeals

An appeal is finally determined when it is decided by the tribunal, and all onward appeal rights have been exhausted.

Section 104(5) of the Nationality, Immigration & Asylum Act 2002 also says an appeal against the following immigration decisions is finally determined if a deportation order is made against the appellant:

  • refusal of leave to enter;
  • refusal of a certificate of entitlement u/s 10 of the 2002 ACT;
  • refusal to vary leave if the result is the applicant has no leave;
  • variation of leave if the result is the applicant has no leave (curtailment);
  • revocation of leave u/s 76 of the 2002 ACT;

In each case, the appellant will have had a right of appeal against the decision to make a deportation order. Rule 18 of the Asylum & Immigration Tribunal (Procedure) Rules 2005 requires parties to inform the appellate authorities if an appeal should be treated as finally determined in this way. The tribunal must then serve notice and take no further action, as with abandonments u/s 104(4) of the 2002 ACT.

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Related: UK Visa Refusals: How to Challenge Decisions?TOEIC Test Court Decision and UK Visa Appeals – Legal Framework

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