This guidance relates to UK immigration appeal procedure after the spouse, EEA, and human rights visa application refusal. Accordingly, provides the details of UK visa appeal rights after the implementation of Immigration Act 2014. And also, the details of UK visa and immigration appeal fee, time limits, tribunal decisions, waiting and processing time and the success rate during 2010-19. Moreover, also explains if UK spouse visa appeal is allowed after a successful challenge, which overturned the refusal decision, then how long will the Home Office take to process visa in 2019?

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The Right of Appeal

Perhaps, for most of the applicants, the meaning of challenging a refusal decision is to file an appeal against the refusal. However, Immigration Act 2014 has greatly curtailed the rights of appeal after a UK visa refusal, especially after its full implementation in April 2015. Apparently, the introduction of the Immigration Act 2014 has removed a number of appeal rights against the Home Office decisions. Perhaps, refused applicants can now only appeal by first asserting a fundamental right to enter or remain in the UK. In fact, these appeal rights are only limited to Protection claim, Removal of Refugee Status, Human Rights (UK spouse visa appeals on human rights grounds), or the European Free Movement.

Quite clearly, the removal of appeal rights under the 2014 Act has been phased. Perhaps, initially focusing on leave to remain applications under points-based system (PBS). Accordingly, in October 2014, refusals for points-based (PBS) applications from students and dependents had their associated appeal rights removed. Moreover, the Home Office also removed the appeal rights for non-European Foreign National Offenders. Furthermore, in March 2015, the scope of the 2014 Act extended to include the remaining in-country points-based decisions.

Full Right of Appeal

After the implementation 2014 Act 2014, majority of UK immigration appeals result from refusals where fundamental rights have been raised. Accordingly, at present, applicants have a full right of immigration appeal against the UK visa refusal decisions in the following situations:

  1. Refusal of a human rights/protection claim and also revocation of protection status as per Part 5 of Nationality, Immigration and Asylum Act 2002. Please note: in case of UK spouse visa refusal, applicants have a full right of appeal on human rights grounds.
  2. Refusal of entry clearance and refusal to vary leave to remain, where the application was made before the enforcement of the 2014 Act
  3. Refusals relating to the issuance of an EEA family permit. And also a few other EEA decisions – as per Reg 26 of the 2006 EEA Regulations.
  4. Deprivation of Citizenship – u/s 40A of the British Nationality Act 1981

Types

The different types of UK immigration appeal relate to:

  1. Human Rights Appeals (present aka UK Spouse Visa Appeals)
  2. Managed Migration (Closed)
  3. Entry Clearance Appeals (Closed) (previously aka UK Spouse Visa Appeals)
  4. UK Family Visit Visa Appeals (Closed)
  5. Deport and Other Appeals (Closed)
  6. Deportation Appeals
  7. Deprivation of Citizenship Appeals
  8. Asylum, Protection, and Revocation of Protection Appeals
  9. EEA Free Movement Appeals

1. Human Rights Appeal (UK Spouse Visa Appeals)

Indeed, following the implementation of the Human Rights Act 1998 a separate category for appeals introduced in 2001. Perhaps, to allow the consideration of Human Rights arguments where these grounds were not considered at the original human rights appeal. Perhaps, since then, a range of in-country case types raising Human Rights grounds has been recorded under this category when they would have been more appropriately recorded against another case type. Accordingly, the Tribunal has made a recent change to its administrative processes to record such cases more suitably. Therefore, this explains the drop in numbers in the Human Rights (Other) appeal category in 2017/18.

What deems as a Human Rights claim?

For human rights appeals, the starting position is that there is a right of appeal against refusal. However, if paragraph 353 applies, then further submissions do not amount to a fresh claim or where the claim is certified under section 96 then there will be no right of appeal. Moreover, if the application is certified under section 94 or 94B then the applicant has no right of appeal until the applicant leaves the UK.

Implications of Section 3C of the Immigration Act 1971

In fact, an applicant can make a human rights application even if he/she has a leave to remain in the UK under section 3C of the Immigration Act 1971 as a consequence of an ongoing appeal against the refusal of another application. Perhaps, no other applications under the rules other than the following types of applications can be made where the applicant has 3C leave. However, if an applicant withdraws the appeal then he/she will no longer be prevented from making any other application under the rules. Moreover, the applicant may make an application once the appeal rights are exhausted.

In fact, the following claims made under the Immigration Rules are normally considered as human rights applications. And usually, attract a full right of appeal against refusal.

  1. Appendix FM (family members), but not section BPILR (bereavement) or section DVILR (domestic violence)
  2. Family Members under Part 8 of Immigration Rules where the sponsor is present and settled in the UK or has refugee or humanitarian protection in the UK, not paragraphs 319AA to 319J (points-based system (PBS) dependents), paragraphs 284, 287, 295D or 295G (sponsor granted settlement as a PBS Migrant)
  3. Long Residence (276B)
  4. Private Life {276ADE(1) or 276DE}
  5. Asylum under Part 11 of Immigration Rules
  6. Partner or Child of a Member of HM Forces under Part 4 or Part 7 of Appendix Armed Forces, and paragraphs 276U, 276AA, 276AD, and 276AG

2. Managed Migration (Closed)

The managed migration appeals were filed against the refusal to extend stay in the UK. Additionally, the managed migration appeals also included revocation appeals. However, 2014 Act has greatly affected the right of immigration appeal against the extension of stay in the UK.

3. Entry Clearance Appeals (Closed)

In fact, the entry clearance appeals were for exercising non-suspensive right of appeal from outside the UK. However, in the post-2015 regime, there is no scope for entry clearance appeals, except for appeals on human rights grounds for UK spouse and family settlement visa refusal decisions.

4. UK Family Visit Visa Appeals (Closed)

In fact, family visit visa appeals were against decisions relating to temporary visitors to see their family in the UK. Perhaps, even prior to the 2014 Act, there had been changes to UK family visit visa appeal rights. Apparently, the Immigration Appeals (Family Visitor) Regulations 2012 restricted the right of appeal to a narrower definition of a family visitor. And subsequently, the Crime and Courts Act 2013 removed the full right of appeal for family visitors.

From 25 June, 2013, there will be no right of appeal against the refusal of a family visit visa application

Home Office

5. Deport and other appeals (Closed)

In fact, this category included Human Rights appeals up to and including 2009/10, Deportation and Deprivation of Citizenship appeals up to and including 2014/15. However, in the post-2015 regime, this category discontinued after FY 2014/15.

6. Deportation Appeals

Apparently, these appeals are against deportation orders made against people by the Home Secretary. However, deportation appeal is now only for Foreign National Offenders who are EEA nationals. In fact, the non EEA offenders can only appeal against a deportation order on human rights grounds.

7. Deprivation of Citizenship Appeals

Quite clearly, the deprivation of citizenship appeals up to and including 2014/15 included in Deport and Others appeals. However, since 2015/16 the Deprivation of citizenship appeals has been categorized separately. Moreover, even after the implementation of the 2014 Act, appeal rights under European law such as the deprivation of Citizenship and some Deportation appeal rights have remained unaffected.

8. Asylum, protection and revocation of protection appeals

Perhaps, the asylum appeals against a refusal to grant asylum include asylum claims which raise Human Rights grounds. Moreover, in the post-2015, this category also includes appeals relating to protection claim and revocation of protection appeals. Quite clearly, the number of asylum appeals filed per year has remained quite consistent in the pre and post-2015 period.

Cuts to government legal aid since 2013 have reduced the financial incentive for immigration lawyers to take on time-consuming asylum appeals.

BBC

9. EEA Free Movement Appeals

Perhaps, the post-2015 regime introduced EEA Free Movement Appeals against a decision under the EEA Regulations (2006 or 2016) relating to:

  • a person’s entitlement to be admitted to the UK
  • a person’s entitlement to be issued with or have renewed, or not have revoked, a registration certificate, residence card, derivative residence card, document certifying permanent residence or permanent residence card (but does not include a decision that an application for the above documentation is invalid)
  • the cancellation pursuant to Regulation 25 of EEA Regulations 2016, on grounds of public policy, public security or public health, or on grounds of misuse of rights, of a person’s right to reside in the UK
  • a person’s removal from the UK
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How to file Immigration Appeal against a UK Visa Refusal Decision?

After a refusal decision, an applicant can lodge an immigration appeal against an appealable UK visa refusal decision. In fact, online immigration appeals are quicker than appeals by post or fax. Therefore, in order to avoid delays in the processing of UK visa appeal one can lodge an immigration appeal online. And can also pay the fee by using a credit or debit card.

However, an appellant must lodge an appeal within the respective 5, 10 or 28 day time limit. Certainly, the purpose of an appeal is to overturn a refusal decision. Therefore, a successful challenge of UK visa refusal decision greatly depends on the grounds of the immigration appeal. Moreover, clear and to the point presentation, especially with reference to immigration rules and legal precedence, is critical for successfully overturning the refusal decision. Perhaps, at times inadvertently if the right of appeal is not mentioned in a refusal letter for an appealable decision and also the decision-maker fails to provide a Notice of Appeal even in such situation an applicant is entitled to file an immigration appeal.

Notice of Appeal Forms

Rule 6 of the Asylum & Immigration Tribunal (Procedure) Rules 2005 provides that an appellant can initiate an immigration appeal by submitting a notice of appeal against an appealable refusal decision in line with the 2005 Rules. Accordingly, an appellant needs to submit an appeal against a refusal decision on an appropriate notice form:

  1. An appellant can file an in-country appeal by using either IAFT-1 or IAFT-5 appeal form
  2. Appeals against appealable Entry Clearance Officer refusal decision can be filed by using either IAFT-2 or IAFT-6 notice form
  3. perhaps for exercising a non-suspensive right of appeals against Removal Directions, Bail Notices or Deportation Order from outside the UK, an appellant needs to use IAFT-3 or IAFT-7 notice form.
  4. Form IAFT 5 (DIA) is for detention appeal for appellants detained at an Immigration Removal Centre. In fact, the IAFT 5 (DIA) is issued with the refusal letter, when the appellant has a right of appeal from inside the UK.
  5. Moreover, an appellant can request the first-tier tribunal for permission to appeal to the upper tribunal immigration by using IAUT-4 Notice Form.

Please note: the notice of UK visa and immigration Appeal Forms for decisions made before April 6, 2015, are IAFT-1, IAFT-2 and IAFT-3. And the notice of UK visa and immigration Appeal Forms for decisions made after April 6, 2015, are IAFT-5, IAFT-6 andIAFT-7.

Suspensive and non-suspensive appeals

A suspensive immigration appeal allows appellants to remain in the UK during the case hearings. Whereas, non-suspensive appeals can only be heard after an appellant leaves the UK. Accordingly, an appellant can lodge a non-suspensive UK immigration appeal from outside the UK. However, if an appellant lodges a non-suspensive appeal before leaving the UK then it deems as an abandoned appeal.

Types of Hearings

If an appellant (representative) plan to attend the hearing then can opt for an oral hearing of the UK immigration appeal. However, if no one intends to attend the visa appeal then may opt for a paper hearing-determines on the papers. Perhaps, an oral hearing provides a better opportunity to win an appeal successfully.

Time Limits

In terms of Rule 7 of The Asylum and Immigration Tribunal (Procedure) Rules 2005, an appellant needs to lodge an immigration appeal with the First-Tier Tribunal within the stipulated period from the date of service of an appealable decision. Therefore, in a nutshell, the immigration appeal time limit is 10 days for in-country appeals, 5 days for detention appeals and 28 days for appeals from outside the UK. Therefore, immigration appeal time limit for asylum claims, UK spouse or family visa appeals on humanitarian grounds from outside the UK is twenty-eight 28 days. However, it is better to file an appeal as soon as possible

Moreover, the time limits to lodge an appeal on Form IAFT-7 from outside the UK against an in-country decision is also 28 days after the departure of the appellant from the UK. In fact, when a person 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 United Kingdom.

Late Appeals

The Rule 10 of Tribunal Procedure 2005 requires appellants to request an extension of the time in which to lodge an appeal. Therefore, if an appellant fails to lodge an immigration appeal against a UK visa refusal within the respective (5, 10 or 28 days) timelines then needs to explain the reason for the delay. In fact, the appeal tribunal has the powers to entertain such requests if there are special circumstances.

Moreover, if an appeal has been brought outside the relevant time limit, and the appellant did not give any application for late appeal, even in such instances the Tribunal can extend the time limit. And accordingly can notify the person and give an opportunity to file written evidence within specified time limits to demonstrate that due to special circumstances a UK visa and immigration appeal was not lodged within the specified time limits.

Immigration Status of the Appellant

In terms of Section 3C (2) of the Immigration Act 1971, provides for a statutory extension in the leave to remain of a person in case of a pending appeal under section 82(1) of the Nationality, Asylum and Immigration Act 2002. Therefore, leave to remain in the UK is statutorily extended until the final determination of a UK immigration appeal.

Fees

In terms of Section 3 of First-Tier Tribunal (Immigration & Asylum Chamber) Fees Order 2011 the UK Immigration and Spouse Visa Appeal Fees for a paper appeal is £80 and that for oral hearings £140. Although, an appellant usually needs to pay the Fees at the time of lodging an appeal; however, Section 5 of the 2011 Order gives exemptions to a number of types of appellants. Nevertheless, if an applicant is required to pay the UK immigration and spouse visa appeal fees but failed to do so then this will cause delays in UK immigration appeal processing or even disposing the appeal as invalid.

Rises of up to 500% in immigration tribunal fees have been dropped in an abrupt U-turn by the Ministry of Justice.

The Guardian

One-Stop Notice

Apparently, the UK immigration appeals system contains quite a few controls to prevent the abuse of the system. Perhaps, these controls prevent repeat, clearly unfounded or late claims usually to delay removal and deportation. Therefore, the Home Office normally serves a written one-stop notice under Section 120 of Nationality, Immigration and Asylum Act 2002, which requires an appellant to state all the reasons (outside the scope of the original application) for leave to enter or remain in the UK. And also including grounds for not removing the appellant. Moreover, the notice also warns the appellant of the penalties for not complying with the requirement.

Nevertheless, the one-stop notice allows an applicant to raise any additional reasons or grounds. Perhaps, the additional grounds may permit an applicant to remain in the UK or get a right of appeal. However, if the applicant does not respond to the Home Office notice but makes a late claim and the claims are refused, then it is certified under Section 96(2) of the 2002 Act.

Grounds

An appellant needs to inform the tribunal of the reasons for which he/she disagrees with the decision in the Refusal Letter. In fact, the grounds of appeal may also include any information that the Refusal Letter does not mention. Moreover, an appellant needs to explain whether he/she has raised these issues before or not. Accordingly, the appellant may give as much details as possible to raise all the grounds against a UK visa refusal in the notice of immigration appeal form. However, the Tribunal may not consider all the grounds that an appellant raised in the appeal. For instance, the tribunal may not consider grounds which are not part of the Home Office’s decision. However, if the Home Office agrees then the Tribunal may consider the new grounds.

The appellant can provide as much detail as possible as the appellant may not be able to do so at a later date. Moreover, the appellant can attach any evidence or additional sheets of paper if and where necessary.

What an appellant may include in the Grounds of Appeal?

Accordingly, then the appellant may contest that the:

  1. appellant disagrees with the Home Office’s interpretation of the situation in their home country
  2. Home Office has incorrectly suggested that the appellant could live safely in another part of the country of origin
  3. Home Office has incorrectly stated that the claim is not credible
  4. refusal decision incorrectly states that the appellant does not qualify as a refugee on grounds of race, religion, nationality, membership of a particular social group or political opinion (under the criteria of the 1951 Geneva Convention)
  5. Home Office has incorrectly stated that specific articles of the European Convention on Human Rights (ECHR)do not apply to the case.
  6. decision is unlawful under section 6 of the Human Right Act 1998
  7. removal or decision to revoke protection status breaches would breach the UK’s obligations under the Refugee Convention or in relation to persons, who are eligible for humanitarian protection
  8. refusal decision is tantamount to restricting EEA free movement rights
  9. decision for Deprivation of Citizenship is unlawful

Moreover, if the appellant disagrees with the decision for any other reason then also include it in the grounds of appeal. And can raise additional grounds and New Matters.

Documents Checklist

Perhaps, there is no need to provide original documents. Such as Passports, Birth Certificate, Marriage Certificates, Identification cards. Indeed, the handling of original documents results in delays. Therefore, it is sufficient to furnish photocopies of the supporting documents.

An appellant can send completed appeal form, along with a copy of the Refusal Letter, Reasons for Refusal and photocopies of any other related documents to the First-tier Tribunal either by post or facsimile. Moreover, for the successful creation of a UK immigration appeal, an appellant must ensure to provide:

  • Credit/debit card details
  • A copy of the Refusal Letter
  • Grounds of immigration appeal
  • In case of late appeals, the reasons for filing an out of time appeal
  • Photocopies of the documents
  • A filled and signed Notice of Appeal Form

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UK Immigration Appeal Process and Procedure

The First-tier Tribunal (Immigration and Asylum) has the jurisdiction to handle appeals against certain decisions made by the Home Office. Accordingly, the decisions mostly relate to entry clearance, deportation and permission to stay in the United Kingdom. Moreover, the Tribunal also has jurisdiction over immigration bail.

The First-Tier Tribunal Procedure sets into motion after the filing/lodging an appeal against an immigration or UK spouse visa decision. Usually, a presenting officer (POs) or sometimes a case owner (CO) in asylum appeals, represents the Home Office at hearings. However, in some significant cases, Home Office many instruct a counsel. Moreover, the following legislation allows the tribunal to decide how to conduct the hearing:

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

Immigration and UK Spouse Visa Appeal Processing Time 2010-19

During 2016/17 and 2017/18, the average UK immigration appeal waiting time (in the recent past aka UKBA appeal processing time) from the receipt of an appeal to determination in the FTTIAC was 46 and 50 weeks, respectively. However, in 2018/19 the average UK immigration appeal processing time has significantly decreased to 40 weeks i.e. approx. 9 months. And, in the Oct-Dec 2019 Q3, the average UK immigration appeal waiting time has further reduced to 30 weeks i.e. approx. 6-7 months.

Moreover, in 2016/17 and 2017/18, the waiting time for 50% of the immigration appeals was 48 and over 52 weeks, respectively. However, in 2018/19 the processing time for 50% of the immigration appeals decreased to 34 weeks i.e. approx. 7 months. And, in the Oct-Dec 2019 Q3, the waiting time for 50% of the UK immigration appeals has further reduced to 23 weeks i.e. approx. 5 months. Moreover, in the Oct-Dec 2019 Q3, the waiting time for 25% of the UK immigration appeals is only 13 weeks i.e. approx. 3 months.

British Parliament Report

According to Parliamentary Under-Secretary of State at the Ministry of Justice Lucy Frazer since 2010 till March 2018, the average yearly waiting time for an immigration tribunal appeal hearing has oscillated between 14 to 45 weeks with the following yearly break-up:

  • 2010 – 16 weeks
  • 2011 – 14 weeks
  • 2012 – 14 weeks
  • 2013 – 20 weeks
  • 2014 – 25 weeks
  • 2015 – 24 weeks
  • 2016 – 43 weeks
  • 2017 – 45 weeks

1. Directions

Once an immigration appeal is lodged, the tribunal will issue an acknowledge receipt. And accordingly will also give directions that are the legal instructions from a judge to the two parties to the appeal i.e. the Appellant and the Respondent. Please note the applicant is the Appellant, and the Home Office/Immigration Officer/Entry Clearance Officer (ECO) is the Respondent to an Appeal. Usually, the tribunal issues a couple of types of directions i.e. per-hearing 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.

2, The Hearing Date

The tribunal may fix a hearing date according to the workload and administrative consideration. However, if the appellant is in the UK, and the appeal relates in whole (or in part) to an asylum claim, the tribunal needs to set the appeal hearing no later than 35 days after it receives the notice of appeal or 35 days after the tribunal decision to consider a late notice of appeal. Moreover, 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.

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 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 state that 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

3. Pre-hearing directions

The tribunal issues pre-hearing 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 the pre-hearing 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 corroborating evidence against the Home Office decision.

Appeal Bundles

The tribunal directions instruct the Respondent to file and serve the required evidence on which the respondent will defend that refusal decision is correct and lawful. This evidence is presented in a bundle of documents and referred to as the Respondent’s bundle, which may 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 (ECM) review, if it is available

In fact, the Home Office needs 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. Moreover, documents are often missing in the Respondent’s Bundle. And the bundle has issues relating to proper indexation and pagination. Nevertheless, the tribunal judges are usually tolerant of failings of the respondent. However, an appellant should not expect such level of tolerance.

The applicant’s documents are usually referred to as the Appellant’s Bundle. And 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

Is it necessary to provide documents before the final hearing?

Yes, quite 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. Accordingly, if the Respondent altogether fails to produce a bundle a judge may adjourn an appeal. However, if an Appellant fails to provide a bundle, the judge may dismiss the appeal.

4. Matters to be Considered

The Tribunal may consider the following matters in an immigration appeal against an appealable UK visa refusal decision:

  • all refusal decisions where the appellant has an appeal right
  • any matter raised as additional grounds in response to a one-stop notice, including those raised before and during the appeal
  • evidence about any matter which connects to the essence of the decision
  • prove that an already submitted document is genuine or valid
  • the circumstances of the applicant at the date of the decision. However, this does not exclude later evidence which sheds light on earlier conditions
  • human rights, race relations, asylum or European Economic Area (EEA)grounds of appeal
  • a new matter that Secretary of State (SSHD) has examined and given the Tribunal consent to do so

5. Adjournment

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.

New hearing date

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.

6. Withdrawal

As per Rule 17 of 2005 Rules, an appellant or his/her representative can withdraw an immigration appeal any time before determination. Accordingly, can give a written notice of withdrawal, except when can withdraw orally before the tribunal. However, if the Home Office notifies the tribunal that it has overturned the refusal decision to which the appeal relates then also an appeal treated as withdrawn. Accordingly, the tribunal notifies all the parties that the immigration appeal against a UK visa refusal decision has been withdrawn or treated as withdrawn due to overturning the refusal decision. However, even 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.

Is it possible to reinstate a withdrawn appeal?

No, it is not possible to reinstate a withdrawn appeal. However, an appellant can argue the appeal was withdrawn incorrectly and is, therefore, extant (ongoing) appeals. If the appellant directly contacts the Home Office for reinstating the immigration appeal then the Home Office usually advice the appellant to contact the tribunal. Moreover, in the case of removal appeals, the immigration officer usually informs that enforcement action will not suspend. However, this may defer removal until the outcome of the referral.

Therefore, an appellant may show caution towards Home Office’s invitations to withdraw the immigration appeal against an appealable UK visa refusal decision. In fact, these invitations to withdraw can adversely affect the appellant’s future appeal rights.

What if the appellant dies before the final determination?

If an appellant dies before determination then the appeal usually considers as withdrawn. However, if the tribunal may deem appropriate then can allow a representative to continue proceedings. Moreover, an immigration appeal may continue after the death of an appellant if it includes dependents.

7, Abandonment

An immigration appeal may become abandoned if an appellant lodges an in-country appeal and then leaves the United Kingdom. However, in term of Rule 18 of the 2005 Rules requires the appellant needs to inform the appellate authorities. And on receipt of information, the Tribunal formally serves a notice on all parties that the immigration appeal against UK visa refusal decision has been abandonment. Nevertheless, an appeal under EEA Regulations may become abandoned if the appellant has:

  • been issued with one of the following documents under the EEA regulations:
    • registration certificate
    • residence card
    • derivative residence card
    • a 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

Please note, a pending appeal under EEA Regulations becomes abandoned if an appellant leaves the United Kingdom.

8. Determination

In terms of Section 86 of 2002 Act, the Tribunal needs to determine i.e. reach a decision on any matter raised as a ground of appeal. However, 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. Therefore, a tribunal whilst determining an immigration appeal may overturn a UK visa refusal decision if the Home Office’s decision was unlawful under the Immigration Rules and other legislations. Moreover, the tribunal may also overturn a UK visa refusal decision if the discretion within the rules should have been exercised differently by the Home Office/ECO/Immigration Officer. However, in all other circumstances, the tribunal may dismiss the immigration appeal against the UK visa refusal decision.

Determination without Hearing

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
Is a written determination still necessary?

Yes, the tribunal needs to issue a full written determination even if the appeal is determined without hearing. 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.

9. Non-statutory Recommendations

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). In fact, the immigration officer usually only act upon such recommendations if the determination and/or recommendation disclose clear exceptional or compassionate circumstances, which were not previously considered and warrant the exercise of discretionary powers outside the Immigration Rules. Therefore, the Home Office needs to consider these recommendations as soon as reasonably possible.

Acceptance of Recommendations

If the Home Office agrees to accept the tribunal’s recommendation then usually overturns the refusals decision. Moreover, inform the appellant that any outstanding appeal will be treated as abandoned. And also inform the tribunal or appropriate court.

Non-acceptance of Recommendations

If the Home Office does not accept the tribunal’s non-statutory recommendation then sends a letter to the appellant. Perhaps, the letter usually states that the tribunal’s recommendations does not disclose circumstances which were not previously considered. Therefore, does not merit an exercise of discretion outside the Immigration Rules.

10. Case-specific directions

Perhaps, after the first hearing, the tribunal may give case-specific directions to the Home Office for additional explanations, submissions, and considerations. In fact, the tribunal can give case-specific directions at the case management review hearing. Accordingly, the Home Office needs to provide 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’s response on that issue (referring to relevant precedents or documentary evidence). Moreover, 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 the 2005 Rules.

11. Finally Determined Appeals

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

Deportation Appeals

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.

12. The Final Judgement

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 in the courtroom, but this may happen. In fact, for non-asylum cases, the tribunal usually sends a written determination to parties within 10 working days. However, for asylum appeal, the tribunal serves the determination on the Home Office. And the Home Office serves the determination on the appellant no later than the date on which the Home Office contest the decision. And in all other cases no later than 28 days after receiving the determination from the tribunal. Accordingly, in case of a non-asylum appeals, the immigration tribunal decision time is usually 2-3 weeks after the hearing.

PROCEDURE AFTER AN IMMIGRATION APPEAL ALLOWED OR DISMISSED 2020

If the tribunal allowed the appeal then this means that the appeal is successful and has overturned the immigration or UK spouse visa refusal decision. However, the Home Office’s Allowed Appeal Review Team still has an opportunity to consider the grounds challenging the decision. Therefore, if there are available grounds then the Home Office goes ahead and challenges the decision in the Upper Tribunal. Nevertheless, the Home Office needs permission of the FTTIAC to appeal within 5 working days. If the First Tier Tribunal does not give permission then Home Office needs to directly seek permission of the Upper Tribunal within 7 working days. Moreover, if the Upper Tribunal upheld the decision of the First Tier Tribunal then Home Office can also challenge the decision in the Court of Appeal. However, before doing so, the Home Office first needs permission within 12 working days.

Appeal allowed: how long will Home Office take to process visa?

If the Home Office’s Allowed Appeal Review Team does not recommend challenging the decision then the case working team that had made the initial refusal decision needs to implement the overturned decision of the Tribunal. In fact, there is no specific timeframe for implementing the successful immigration or UK spouse visa appeal decision. However, the Home Office usually takes 8 weeks or 40 working days to process visa after a successful appeal allowed against UK spouse entry clearance refusal decision.

Waiting time after UK spouse visa appeal allowed 2019

If an appeal allowed and overturned the UK spouse visa refusal decision then an appellant usually receives a call letter from British Embassy/ECO within 4-8 weeks. Perhaps, usually the call letter instructs the applicant to submit the passport at the UK visa application centre (UKVAC), where the applicant had submitted the original application. Therefore, the appellant needs to submit the call letter and the passport at the UKVAC. And the UKVAC dispatches these to the British Embassy for processing. Afterwards, there is a further waiting time of usually 2-4 weeks before the appellant finally gets the UK spouse visa after a successful appeal. Therefore, the total waiting time in 2019 to get a UK spouse visa, after successful appeal allowed, is usually at least 2-3 months.

Appealing against the Decision of First Tier Tribunal

If the tribunal upholds the decision then the appellant can lodge an appeal with the Upper Tribunal. However, an appellant can only appeal if he/she is quite certain that the First-tier Tribunal has made an error of law in its judgement. Nevertheless, more than 35-40% of the immigration and UK spouse visa appeals are successful in the Upper Tribunal.

Accordingly, an appellant needs to request for a permission within 5 or 28 working days, if the appellant is inside or outside the UK, respectively. And there is no fee for permission to appeal on IAFT-4 Notice Form. Moreover, needs to enclose any documents relating to an error of law in judgement of the First-Tier Tribunal. And accordingly can send the IAFT-4 Notice Form with supporting documents to the First-Tier Tribunal by post, facsimile or email. If the First-tier Tribunal either refuses permission or gives permission to appeal on limited grounds then an appellant can directly request the Upper Tribunal for permission within 7 or 56 days for in-country and entry clearance appeals, respectively.

Supporting Documents

Accordingly, an appellant needs to enclose the following documents with IAUT-1 Application Form:

  1. a copy of the written statement of reasons from the First-tier Tribunal
  2. copy of the notice of refusal of permission to appeal by the FTTIAC or refusal to admit the application for permission
  3. copy of the grounds of appeal to the First-tier Tribunal
  4. any other supporting documents relevant to the application that was before that First-tier Tribunal
  5. any written evidence in support of Part DIAUT-1Form, relating to reasons for any delay and/or Part FIAUT-1 relating to reasons for appealing

And send the IAUT-1 Form with supporting documents to the Upper Tribunal (Immigration and Asylum Chamber) by post or facsimile. If an appellant does not send the requisite supporting documents then the appeal may either be delayed or not considered/admitted by the Upper Tribunal. As per procedure, the Upper Tribunal contacts an appellant when it receives an IAUT-1 application form. If an appellant does not receive any intimation within 5 working days then it is advisable to contact the Tribunal Customer Service Centre by quoting the appeal number.

The onward rights of appeal

In fact, an appellant initially needs to seek permission to appeal from Upper Tribunal (Immigration & Asylum Chamber). However, if permission is denied then an appellant can proceed directly to the appellate court of the applicable jurisdiction. Perhaps, the domestic onward rights of appeal are derived from where the most recent hearing has taken place. Accordingly, the onward rights of appeals are made at the appropriate jurisdiction i.e.

  1. The Court of Appeal in England and Wales
  2. Court of Session in Scotland
  3. Court of Appeal in Northern Ireland

Moreover, if necessary, then further onward rights of appeal are addressed to the Supreme Court of the United Kingdom.

UK Visa and Immigration Appeal Statistics

From 2010/11 to Q3 2019/20, the FTTIAC decided 668,400 appeals. Accordingly, allowed/granted 302,921 and dismissed/refused 365,479 immigration appeals. Therefore, the average UK Immigration Appeal Success and Refusal Rate of the FTTIAC is 45.32% and 54.68%, respectively. However, in recent years the UK Immigration Appeal Success rate of the FTTIAC is showing an upward trend. Accordingly, the UK Immigration Appeal Success rate of the FTTIAC during 2017/18 and 2018/19 has been 49% and 52%, respectively. Moreover, the immigration appeal success rate of the FTTIAC during the first 3 quarters of 2019/20 has been 52%, 51% and 50%.

UTIAC

From 2010/11toQ3 2019/20, the UTIAC decided 60,674 UK Immigration appeals. Accordingly, allowed/granted 22,346 and dismissed/refused 38,328 immigration appeals. Therefore, the average UK Immigration Appeal Success and Refusal Rate of the UTIAC is 36.83% and 63.17%, respectively.

Home Office loses 75% of its appeals against immigration rulings

The Guardian

The Effective UK Visa and Immigration Appeal Success Rate

Since in case of dismissal/refusal, an appellant can file an appeal against the determination of the FTTIAC in the UTIAC. Therefore, the UK immigration appeals decided by UTIAC largely represents the refused immigration appeals in the FTTIAC. Accordingly, the effective UK Visa and immigration appeal success rate is approx.48.66% during 2010-19.

The Legal Framework

Apparently, for filing immigration appeals against a decision the legal framework consists of two tribunals i.e. the First-Tier Tribunal and the Upper Tribunal. Quite indeed, HM’s Courts & Tribunals Service manages both the tribunals. And the immigration and asylum chambers are responsible for UK visa and immigration appeals.

Accordingly, an appellant needs to initially lodge an appeal with the First-tier Tribunal. Perhaps, the First-tier tribunal can either allow or dismiss an appeal. However, the decision can be challenged in the Upper Tribunal. Here it is important to note that the Upper Tribunal is the superior court of record. And it is a separate body from First Tier Tribunal. Therefore, the Upper Tribunal can decide whether the First-tier Tribunal has made a mistake of law. And if the First-Tier Tribunal has made a mistake of law, then the Upper Tribunal can also direct the first-tier tribunal to remake its decision.

Appeal Notices

According to Official Statistics, from 2010/11 to Q3 2019/20, the First Tier Tribunal Immigration & Asylum Chamber (FTTIAC) and Upper Tribunal Immigration & Asylum Chamber (UTIAC) received a total of 820,993 and 75,889 Appeal Notices. However, since 2014/15 there has been a considerably decreased in the receipts of Appeal Notices.

Year FTTIAC UTIAC
2010/11 146,104 8,965
2011/12 122,371 9,631
2012/13 103,923 7,224
2013/14 104,996 7,712
2014/15 91,627 9,202
2015/16 76,920 7,970
2016/17 54,439 6,276
2017/18 45,340 8,264
2018/19 43,838 7,276
April-June 2019/20 Q1 9,910 1,264
July-Sept 2019/20 Q2 10,509 1,154
Oct-Dec 2019/20 Q3 11,016 951
Receipts 820,993 75,889

Please note that FTTIAC and UTIAC replaced the Asylum and Immigration Tribunal (AIT) on 15 February 2010.

Disposals

FTTIAC

From 2010/11toQ3 2019/20, FTTIAC disposed 886,440 immigration appeals. And determined 75.40% of the appeals i.e. determined 668,400 of the total 886,440 disposals. Accordingly, the remaining 24.60% of UK immigration appeals were withdrawn, struck out or deemed invalid/out of time.

UTIAC

The UTIAC from 2010/11toQ3 2019/20, disposed 78,371 immigration appeals. And determined 77.42% of the appeals i.e. determined 60,674 of the total 78,371 disposals. Accordingly, the remaining 24.58% of the UK immigration appeals were either withdrawn or remitted.

Year FTTIAC UTIAC
2010/11 162,204 7,316
2011/12 132,649 9,073
2012/13 98,733 9,560
2013/14 100,122 8,902
2014/15 91,421 8,654
2015/16 69,696 8,066
2016/17 69,184 7,393
2017/18 64,265 6,979
2018/19 59,311 8,241
April-June 2019/20 Q1 12,927 1,769
July-Sept 2019/20 Q2 13,981 1,477
Oct-Dec 2019/20 Q3 11,947 941
Disposals 886,440 78,371

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