Appeal Against Visa Refusal UK: All You Need to Know!

1. Right of Appeal

Appeal Against UK Visa Refusal Decision

The introduction of the Immigration Act 2014 has removed several appeal rights against the Home Office decisions. Now, after visa and immigration refusal decision applicants can only appeal by first asserting a fundamental right to enter or remain in the UK. Accordingly, the rights to appeal are only limited to Protection claim, Removal of Refugee Status, Human Rights (such as spouse visa appeals), or the European Free Movement.

Phasing Out the Right of Appeal

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. The Home Office also removed the appeal rights for non-European Foreign National Offenders. 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.

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:

1. Refusal of a human rights/protection claim and 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.
2. Denial 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 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

Impact of Covid-19

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.

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.

Lord Chief Justice

2. Types

Appeal Against UK Visa Refusal Decision

The several types of UK visa and immigration appeals 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 (Spouse, Partner, Family Visa Appeal)

Indeed, following the implementation of the Human Rights Act 1998 a separate category for appeals introduced in 2001. To allow the consideration of Human Rights arguments where these grounds were not considered at the original human rights appeal. 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 they have a leave to remain in the UK under section 3C of the Immigration Act 1971 because of an ongoing appeal against the refusal of another application. 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 they 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. Even prior to the 2014 Act, there had been changes to UK family visit visa appeal rights. 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

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

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

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

3. Legal Framework

The Legal Framework for filing an appeal against a UK visa refusal decision consists of two tribunals i.e. the First-Tier Tribunal (FTTIAC) and the Upper Tribunal (UTIAC). HM’s Courts & Tribunals Service manages both the tribunals.

At times inadvertently if the right of appeal is not mentioned in a refusal letter for an appealable decision and the decision-maker fails to provide a Notice of Appeal even in such situation an applicant is entitled to file an immigration appeal.

First-Tier Tribunal

After a refusal decision, an applicant can lodge an immigration appeal in First Tier Tribunal against an appealable UK visa refusal decision. The online immigration appeals are quicker than appeals by post or fax. Therefore, 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.

An appellant must lodge an appeal within the respective 5, 10 or 28 day time limit. The purpose of an appeal is to overturn a refusal decision. A successful challenge depends on the grounds of appeal, especially with reference to rules and legal precedence.

Grounds of Appeal

An appellant need to inform the tribunal of the reasons for which they disagree with the decision in the Refusal Letter. The grounds of appeal may also include any information that the Refusal Letter does not mention. Moreover, an appellant need to explain whether they have 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 later. Moreover, the appellant can attach any evidence or additional sheets of paper if and where necessary.

What an appellant may contest?

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

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

Appeal Allowed

If the First-Tier Tribunal allowed the appeal, then this means that the immigration appeal is successful as it has overturned the UK 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. 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 twelve working days.

Procedure after an Immigration Appeal is Allowed

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

There is no specific timeframe for implementing the successful appeal decision. After an appeal is allowed then British Embassy/ECO sends a Call Letter within 2-4 weeks. The call letter instructs the successful appellant to submit the passport at the Visa Application Centre (VAC), where they had submitted the original UK visa application. Afterwards, there is a further waiting time of usually 2-4 weeks. Therefore, the Home Office (UKVI) usually takes 4-8 weeks to process visa after an appeal is allowed.

Appeal Dismissed

If the First-Tier Tribunal upholds the decision, then the appellant can lodge an appeal against the UK visa and immigration refusal with the Upper Tribunal. However, an appellant can only appeal if the First-tier Tribunal has made an error of law in the judgement. Please note, more than 35-40% of appeals are successful in the Upper Tribunal.

For appealing against the First-Tier Tribunal Decision, an appellant need to:

• request for a permission to appeal in the Upper Tribunal within 5-working days for appeals from inside the UK
• request for a permission to appeal in the Upper Tribunal within 28-working days for appeals from outside the UK
• enclose any documents relating to an error of law in judgement of the First-Tier Tribunal.
• send the IAFT-4 Notice Form with supporting documents to the First-Tier Tribunal by post, facsimile, or email. Please note, there is no fee for permission to appeal on IAFT-4 Notice Form.

If the First-tier Tribunal refuses or allows permission 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.

Upper Tribunal

Once a permission is granted then an appellant can lodge an appeal in the Upper Tribunal on IAUT-1 Application Form with the following documents:

1. written statement of reasons from the First-tier Tribunal
2. if applicable, refusal of permission to appeal of the FTTIAC or refusal to admit the application
3. copy of the grounds of appeal
4. other supporting documents relevant to the application that was before that First-tier Tribunal
5. any written evidence in support of Part D (IAUT-1 Form) relating to reasons for any delay
6. any written evidence in support of Part F (IAUT-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.

Home Office loses 75% of its appeals against immigration rulings

The Guardian

Onward Rights of Appeal

An appellant first needs to seek permission from Upper Tribunal (Immigration & Asylum Chamber). If UTIAC denies the permission, then an appellant can proceed directly to the appellate court. The onward rights of appeals against a UK visa and immigration refusal decision 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

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

4. Guidance Notes

Appeal Against UK Visa Refusal Decision

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 several 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

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 need 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. For exercising a non-suspensive right of appeals against Removal Directions, Bail Notices or Deportation Order from outside the UK, an appellant need 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 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 lodge 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. 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 need to lodge an immigration appeal with the First-Tier Tribunal within the stipulated period from the date of service of an appealable decision. Therefore, briefly, 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 exceptional 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 exceptional 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

The immigration appeals system in the UK has a few controls to prevent filing of repeat, clearly unfounded or late claims for delaying 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 and 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. The additional grounds permit a person to remain in the UK or get a right of appeal.

Please note, if an 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.