UK Immigration Appeal Process for filing appeal against refusal

Appeal Against a Visa or Immigration Decision UK The relates to UK Immigration Appeal Process for appeal against a visa or immigration decision UK under Section 82 of the Nationality Immigration and Asylum Act 2002. Section 82 provides the details of Right of appeal against a visa or immigration decision UK. The refusal decision may relate to entry clearance and leave to enter the UK, spouse visa, refusal to vary leave to enter or remain in the United Kingdom, deportation or removal order etc. Perhaps, depending on the nature of the immigration appeal, empirically, the UK Visa Refusal Appeal Procedure takes approximately 6-9 months. Most noteworthy: the average appeal waiting time of UK immigration appeal process has increased during 2017 from 35 to 51 weeks.  Moreover, the immigration appeal success rate is 50%. Finally, the Immigration Appeal Decision Time is usually 2-3 weeks.

UK Immigration Appeal Procedure Against Visa Application Refusal

In terms of Immigration (Notices) Regulations, 2003, for exercising a right of appeal, an appellant must have served with a written notice of appeal. However, in a few instances, due to an inadvertent mistake, a written notice of appeal might not accompany with the refusal letter. Therefore, it is important for an applicant to know the available legal recourse to challenge a refusal decision.

Immigration Tribunal Appeal Time Limit

Accordingly, an applicant can lodge an immigration appeal against an immigration refusal decision within immigration tribunal appeal time limit. The immigration tribunal appeal time limit is 14 days for in-country appeals, 5 days for detention appeals and 28 days for appeals from outside the UK. Perhaps, it is better to file an appeal as soon as possible. There is no point for delaying and filing a late appeal after immigration tribunal appeal time limit expires.

First Tier Tribunal Immigration Appeal Process

The First Tier Tribunal Immigration Appeal Process sets into motion after the filing of an appeal against a visa or immigration decision UK.

Usually, a presenting officer  (POs) or sometimes a case owner (CO) in asylum appeals, represents Home Office at hearings. However, in some significant cases, Home Office many instruct a counsel.

Immigration Appeal Hearing Legislation | UK Visa Appeal

The following legislation allows the tribunal to decide how the appeal hearing conducts for appeal against a UK visa decision:

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

Appeals Directions | UK Visa Rejection Appeal Process

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.

Certainly, 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 determine without a hearing. This is in line with Rule 15 of the Asylum & Immigration Tribunal (Procedure) Rules 2005.

Usually, the tribunal issues a couple of types of directions i.e. prehearing and case-specific directions. Moreover, responses to directions must include details of the information provided and also the reasons for not providing any evidence or document.

Pre-hearing Directions | Appeal Against a Visa or Immigration Decision UK

The tribunal issues directions to both parties after listing of a case. Moreover, both parties need to provide the documents before the hearing. The appeal bundle usually satisfies these directions. Moreover,  a separate skeleton argument may supplement the appeal’s bundle 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. However, it is not necessary to provide or refer to precedent cases. Accordingly, the important point to include is the collaborating evidence against the Home Office decision.

Case-specific Directions  | Appeal Against a Visa or Immigration Decision UK

These are requests from the Tribunal to the Home Office for additional explanations, submissions, and considerations. These directions often issue after a first hearing but the tribunal can give case-specific directions at a case management review hearing.

Accordingly, the Home Office may have already provided a skeleton argument in the form of the notice of decision or reasons for refusal letter. However, 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 | UK Immigration Appeal Process

It is critical to inform the tribunal when the deadline for receiving additional papers is unreasonable or impossible to meet. However, in such instances, it is a requirement to provide a written explanation as to why the direction fails to meet the requirements of Rule 45 of 2005 Rules.

Immigration Tribunal Appeal Bundle | UK Visa Appeal Process

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 submitted with the application of the appellant
  • a copy of the reasons for the refusal
  • a copy of an Entry Clearance Manager’s (ECM) review, if it is available

Moreover, documents are often missing in the Respondent’s Bundle. Perhaps, quite often the bundle has issues relating to proper indexation and pagination. At times, 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 | UK Immigration Appeal Process

The tribunal schedules an immigration appeal hearing date. Accordingly, it is essential to submit the  Respondent’s Bundle before the deadline. However, such submission might not always happen. Perhaps, on some occasions, the Respondent may 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 that the judge may dismiss the appeal.

Furthermore, an appellant needs to provide the Appellant’s Bundle to the Home Office lawyers and the tribunal well before the hearing. Usually, this may institute five (5) working days before the hearing date.

Hearing Date for Asylum Claim Appeal | UK Visa Appeal Process

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 the tribunal decision to consider a late notice of appeal

If an asylum appeal determined without a hearing, then the tribunal must make a decision within 35 days after the receipt of the appeal notice.

Matters Considered in Appeal Against a UK Visa Decision

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.

Moreover, in cases u/s 82 or 83 of the 2002 ACT, a tribunal can consider evidence about any matter which it believes connects to the essence of the decision. This includes 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. 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 submitted at the time of executing the application, which the Home Office decision-maker considered (including evidence requested under evidential flexibility arrangements). However, exemptions exist to allow to consider evidence submitted after the decision such as:
    • 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 binds by precedents set by higher courts and starred or reported tribunal determinations.

Moreover, the tribunal needs to treat country guidance cases as providing authoritative findings on country conditions in asylum or human rights appeals. However, the case needs to depend on the same or similar evidence and there is no significant change of circumstances since the country guidance case.

The tribunal must also follow practice directions of the senior president or president of the tribunal and 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. However, there is a requirement for giving a notice of the date, time and place of hearing to the party or its representative. Moreover, if the party or its representative fails to give a satisfactory explanation for the absence then appeal hearing in the absence of a party can also take place.

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; however, 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 it is not possible to serve a notice of appeal;
  • not minded to participate and has told the tribunal.

Adjournments of Immigration Appeal | UK Visa Appeal Process

When and where possible, it is expedient to avoid adjournments. If an adjournment is necessary, then the party requesting it must notify all the parties. Apparently, the notification must provide a good reason to explain why an adjournment is necessary. This may also include evidence to establish any fact or matter relied on, in support of the application.

The notification must persuade the tribunal as to why the appeal cannot determine justly if it proceeds as planned. If the notice of adjournment is able to persuade the tribunal then the tribunal sets a new date. Usually, the new hearing or determination date for the appeal falls within 28 days of the adjournment. However, due to exceptional circumstances, this may vary.

Withdrawals of Appeals | UK Visa Rejection Appeal Process

Under Rule 17 of the Asylum & Immigration Tribunal (Procedure) Rules 2005, appellants or their representative can withdraw appeals any time before determination.

Notifying a Withdrawal of Appeal Against a Visa or Immigration Decision UK

Accordingly, an appellant needs to give a written notice of withdrawal, except when an appeal can withdraw orally before the tribunal. However, if the Home Office notifies the tribunal that it has withdrawn the immigration decision to which the appeal relates then also an appeal treated as withdrawn. Usually, the tribunal serves a notice to this effect on all parties i.e. the appeal has withdrawn or treated as treated as withdrawn. However, if the tribunal does not provide this notice, it does not invalidate the withdrawal.  Moreover, the withdrawal takes effect as soon as the Home Office, the appellant or their representative provides proper notice to the tribunal.

Incorrectly Withdrawn Appeal | UK Immigration Appeal Process

It is not possible to reinstate a withdrawn appeal. However, an appellant can argue the appeal was withdrawn incorrectly and is, therefore, extant (ongoing).

The immigration officer needs to tell appellants who wish to reinstate an appeal to contact the tribunal directly. Moreover, in case of removal appeals, the immigration officer informs the appellant that enforcement action will not suspend. However, this may defer removal until the outcome of the referral.

Invitations to Withdraw Appeal | UK Immigration Appeal Process

An appellant may show caution towards Home Office’s invitations to withdraw the appeal. These invitations to withdraw can adversely affect the appellant’s future appeal rights. Moreover, these may leave the Home Office open to accusations of coercion. which may force an appellant to withdraw.

Death of an appellant | UK Visa Rejection Appeal Process

If an appellant dies before determination then the appeal usually considers as withdrawn. However, where the tribunal considers it necessary, can allow a representative to continue proceedings. Moreover, an appeal may continue if the appeal also includes dependants, who require determination.

Abandoned Appeal Immigration | UK Appeal Procedure

Section 104(4) of the 2002 Act requires suits u/s 82 of the Act to treat appeals 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 |  UK Appeal Procedure

Paragraph 4(2) of Schedule 2 to the Immigration (European Economic Area) Regulations 2006 (EEA regulations) also says an appeal 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 usually 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. Accordingly, the notice informs the parties about the abandonment of the appeal against UK visa and immigration decision.

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 | UK Immigration Appeal Process

Rule 20 of the Asylum & Immigration Tribunal (Procedure) Rules 2005 to hear the appeals of the main applicant(s) and dependents together.

If only the main applicant appeals, Tribunal cannot consider a position of the dependants. However, it is not possible to remove dependants until an appeal of the main applicant determined.

However, if only dependants lodge an 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.

For further details please refer Section 86 Determination of appeal Nationality, Immigration and Asylum Act 2002

Appeals Determinations Without Hearings | UK Immigration Appeal Process

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 satisfies that the appeal can be justly determined without a hearing. However, the tribunal must give the parties a chance to comment in writing;

Apparently, the tribunal must still issue a full written determination. Moreover, the determination informs the parties of any onward appeal rights. Most noteworthy: certain onwards appeal rights remain unaffected due to an absence of the hearing. However, the determination has limited contents where it has dismissed the appeal without a hearing.

For further details please refer Section 15(2) Method of determining appeal The Asylum and Immigration Tribunal (Procedure) Rules 2005

Immigration Appeal Decision Time

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

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.

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 UK Immigration Tribunal Appeal Process

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.

Not Accepted Recommendations | UK Visa Refusal Appeal Procedure

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 Appeal Against a Visa or Immigration Decision

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’s:

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

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