This guidance explains: How to File an Immigration Appeal Against a UK Spouse, Family or Partner Visa Refusal Decision? Accordingly, provides the details of UK Visa and Immigration Appeal Rights, Types, Procedure, Fee, Time Limits, Processing Time and Success Rate.
Rights Types How to File? Grounds of Immigration Appeal Waiting Time Appeal Procedure Decision Overturned Decision Upheld Legal Framework Success Rate
1. Right of Appeal
The Right of Appeal Against UK Visa Refusal Decision
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.
Curtailment of Right of Appeal
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 (such as spouse visa appeals on human rights grounds), or the European Free Movement.
No Right of Appeal for In-Country PBS Refusals
The removal of appeal rights under the 2014 Act has been phased. 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 such as Tier 1 High Value Migrants, Tier 2 Skilled Workers etc.
Full right of Appeal after Immigration Act 2014
After the implementation of Immigration Act 2014, majority of appeals result from UK visa refusal decisions where fundamental rights have been raised. Accordingly, at present, applicants have a full right of appeal against the UK visa refusal decisions in the following situations:
- Refusal of a human rights/protection claim and also revocation of protection status as per Part 5 of Nationality, Immigration and Asylum Act 2002. In case of family, spouse, partner visa refusal, applicants have a full right of appeal on human rights grounds.
- Denial of entry clearance and refusal to vary leave to remain, where the application was made before the enforcement of the 2014 Act
- 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.
- Deprivation of Citizenship – u/s 40A of the British Nationality Act 1981
We have now (Jan 5, 2021) entered lockdown for the third time. The courts and tribunals must continue to function. The position remains that attendance in person where necessary is permitted under the proposed new regulations.
Impact of Covid-19 on UK Immigration Appeals
During July-Sept 2020, the First-Tier Tribunal Immigration and Asylum Chamber (FTTIAC) receipts and disposals fell (by 50% and 81% respectively) compared to the same period in 2019. Caseload outstanding rose, by 9%, over the same period.
The decision taken by Government to extend some visa and asylum rules in response to the Coronavirus (Covid-19) pandemic, led to a considerable fall in Immigration and Asylum receipts and disposals. The UK immigration appeals are expected to see a rise in cases now the guidance has ended and the Home Office start making decisions on visa applications again.
Impact of Coronavirus on UK Visa and Immigration
For latest updates and details please refer to UK Visa Coronavirus (Covid-19) Guidance
2. Types
UK Visa Appeal Types
The different types of UK visa and immigration appeals relate to:
- Human Rights Appeals (present aka UK Spouse Visa Appeals)
- Managed Migration (Closed)
- Entry Clearance Appeals (Closed) (previously aka UK Spouse Visa Appeals)
- UK Family Visit Visa Appeals (Closed)
- Deport and Other Appeals (Closed)
- Deportation Appeals
- Deprivation of Citizenship Appeals
- Asylum, Protection, and Revocation of Protection Appeals
- EEA Free Movement Appeals
3. 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.
UK Visa 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.
Notice of UK Visa 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:
- An appellant can file an in-country appeal by using either IAFT-1 or IAFT-5 appeal form
- Appeals against appealable Entry Clearance Officer refusal decision can be filed by using either IAFT-2 or IAFT-6 notice form
- 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.
- 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.
- 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.
UK Visa Appeal Notices: Statistics 2010-20
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.
Suspensive or 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.
Paper or Oral 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.
UK Visa Appeal 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 Immigration Appeals after UK Visa Refusal
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 the UK
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.
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.
4. Grounds
Grounds of Appeal Against UK Visa Refusal
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:
- appellant disagrees with the Home Office’s interpretation of the situation in their home country
- Home Office has incorrectly suggested that the appellant could live safely in another part of the country of origin
- Home Office has incorrectly stated that the claim is not credible
- 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)
- Home Office has incorrectly stated that specific articles of the European Convention on Human Rights (ECHR)do not apply to the case.
- decision is unlawful under section 6 of the Human Right Act 1998
- 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
- refusal decision is tantamount to restricting EEA free movement rights
- 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.
Appeal Against UK Visa Refusal: 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
5. Waiting Time
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 on UK Visa Appeal Processing Time
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
6. Procedure
UK Spouse, Family, Partner Visa 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, partner, family visa refusal decision. 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. The following legislation allows the tribunal to decide how to conduct the UK spouse, family, unmarried partner visa hearing:
- Nationality, Immigration & Asylum Act 2002
- Asylum & Immigration (Treatment of Claimants etc.) Act 2004
- Asylum & Immigration Tribunal (Procedure) Rules 2005
7. Decision Overturned
Procedure after an Immigration Appeal is Allowed
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.
8. Decision Upheld
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:
- a copy of the written statement of reasons from the First-tier Tribunal
- copy of the notice of refusal of permission to appeal by the FTTIAC or refusal to admit the application for permission
- copy of the grounds of appeal to the First-tier Tribunal
- any other supporting documents relevant to the application that was before that First-tier Tribunal
- 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.
9. 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.
UK Visa Appeal Disposal: Statistics
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.
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 |
The onward rights of appeal against Spouse Visa Refusal
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 against a UK visa and immigration refusal decision are made at the appropriate jurisdiction i.e.
- The Court of Appeal in England and Wales
- Court of Session in Scotland
- Court of Appeal in Northern Ireland
If necessary, further onward rights of appeal are addressed to the Supreme Court of the United Kingdom.
10. Success Rate
UK Visa Appeal Success Rate: First Tier Tribunal
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%.
UK Visa Appeal Success Rate: Upper Chamber
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
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.