Navigating the UK visa and immigration appeals process can be challenging, especially with the ever-evolving legal landscape. This comprehensive guide aims to demystify the process by providing you with an in-depth understanding of appeal rights, the role of the First-tier Tribunal and Upper Tribunal, processing times, success rates, and more. With the knowledge gained from this guide and professional advice when necessary, you can increase your chances of a successful outcome in your UK visa or immigration appeal.
Table of Contents
1. Overview and Rights of Appeal
Appeals to the First-tier Tribunal (Immigration and Asylum Chamber) are a legal recourse when a decision made by the Home Office is in question. Your decision letter will inform you of your right to appeal, and consulting a solicitor or an immigration adviser is advised if you’re uncertain about your eligibility to appeal or need help navigating the process.
Navigating Your Appeal Rights for UK Visa and Immigration Refusal Decisions
The Immigration Act 2014 brought significant changes to the appeal rights available to applicants. In this section, we’ll highlight the remaining rights to appeal based on Protection Claims, Removal of Refugee Status, Human Rights, and European Free Movement, summarizing the key changes.
1. Protection Claims
Applicants can appeal against the refusal of a protection claim, which encompasses asylum and humanitarian protection claims. If the Home Office refuses such a claim, the applicant has the right to appeal to the First-tier Tribunal, focusing on the reasons for their fear of persecution or serious harm in their country of origin.
2. Challenging the Removal of Refugee Status
If the Home Office decides to revoke an individual’s refugee status or humanitarian protection, the person has the right to appeal against the decision. The appeal will be based on whether the revocation is justified and whether the individual still faces a genuine risk of persecution or serious harm in their country of origin.
3. Upholding Human Rights
Applicants have the right to appeal against a refusal of a human rights claim, such as a family or private life application under Article 8 of the European Convention on Human Rights. The appeal will focus on the proportionality of the Home Office’s decision and whether it interferes with the applicant’s right to respect for their private and family life.
4. Safeguarding European Free Movement
European Economic Area (EEA) nationals and their family members have the right to appeal against a decision made under the EEA Regulations, such as the refusal of a residence card or the deportation of an EEA national. The appeal will be based on whether the decision complies with the EEA Regulations and the relevant EU law.
Understanding the available appeal rights is crucial when challenging a UK visa or immigration refusal decision. Each type of appeal has different grounds and requirements, so obtaining expert legal advice is recommended to ensure the best possible chance of success.
2. Understanding the Appeal Process
Challenging a UK Visa Refusal Decision
The appeal process against a UK visa or immigration refusal decision involves a series of crucial steps that must be followed diligently. This section provides a comprehensive overview of the process, possible outcomes, and timeframes for receiving a decision.
Key Considerations
– Solicitors or immigration advisers should use the MyHMCTS service to appeal online.
– If you’re appealing for yourself without a solicitor or immigration adviser:
– From within the UK, you have 14 days to appeal from the date the decision was sent.
– From outside the UK, you have 28 days to appeal after receiving your decision.
– Apply online for faster processing. Include your Home Office reference number, supporting documents, and contact information.
– Fees: £80 without a hearing, £140 with a hearing. Fee exemptions may apply.
– You can request an oral hearing, or a decision based on the information in your appeal form and documents supplied to the tribunal.
1. Confirm Your Right to Appeal
Prior to initiating the appeal process, ensure you have the right to appeal against the decision. As previously mentioned, the Immigration Act 2014 limited the grounds for appeal, primarily focusing on Protection Claims, Removal of Refugee Status, Human Rights, and European Free Movement. Consult the refusal notice from the Home Office to determine your right to appeal and the applicable grounds.
2. Acquire and Complete the Appropriate Appeal Form
After confirming your right to appeal, obtain the relevant appeal form. Different forms exist for various types of appeals, such as IAFT-1 for in-country appeals and IAFT-2 for out-of-country appeals. Complete the form accurately, providing all necessary information, including the reasons for your appeal and any supporting evidence.
3. Pay the Required Fees
Fees are associated with filing an appeal, which vary depending on the type of appeal and whether you choose an oral or paper hearing. At the time of writing, fees are £80 for a paper hearing and £140 for an oral hearing. Pay these fees when submitting the appeal form. In some instances, you may qualify for a fee waiver or exemption, so be sure to review the guidelines.
4. Submit the Appeal Form Within the Deadline
Appeals must be submitted within specific timeframes. Typically, you have 14 days from the date on your refusal notice for in-country appeals and 28 days for out-of-country appeals. Submit your appeal form, supporting documents, and required fees within the stipulated deadline to avoid rejection.
5. Wait for a Hearing Date
After submitting your appeal, the First-tier Tribunal will review your application and schedule a hearing date. You will be notified of the hearing’s date, time, and location. Attending the hearing and effectively presenting your case is crucial for increasing your chances of a favorable outcome.
6. Tribunal Decision and Potential Outcomes
Following the hearing, the tribunal will issue a decision on your appeal. You will receive a written decision, usually within a few weeks. Possible outcomes include:
Allowing the appeal: The tribunal agrees with your appeal, prompting the Home Office to reconsider your visa or immigration application.
Dismissing the appeal: The tribunal disagrees with your appeal, upholding the original decision. You may still have the option to appeal further to the Upper Tribunal if you believe there was an error in the First-tier Tribunal’s decision-making process.
7. Timeframes for Receiving a Decision
The duration for receiving a decision on your appeal can vary based on the type of appeal, the complexity of the case, and the tribunal’s workload. Generally, it can take anywhere from a few weeks to several months to receive a decision. It is crucial to be patient and stay informed about your appeal’s progress during this time.
By carefully following the steps outlined above, you can navigate the UK visa and immigration appeal process and maximize your chances of a successful outcome. Remember that each case is unique, and it is always advisable to consult with an immigration expert for personalized advice and guidance.
Case Study: Overcoming a Spouse Visa Refusal Through the Appeal Process
Consider the case of Maria, a non-EU national who applied for a UK spouse visa to join her British husband. Her application was refused due to insufficient evidence of their genuine and subsisting relationship. Maria sought the help of an experienced immigration lawyer and appealed the decision. After submitting a comprehensive bundle of additional evidence, the First-tier Tribunal allowed her appeal and granted her spouse visa.
3. Role of the First-tier Tribunal
Appeal Against UK Visa Refusal Decision
The First-tier Tribunal (Immigration and Asylum Chamber) plays a crucial role in hearing UK visa and immigration appeals. In this section, we will discuss the tribunal’s jurisdiction, decision-making process, and possible outcomes. Additionally, we will explain how an applicant can appeal a First-tier Tribunal decision to the Upper Tribunal (Immigration and Asylum Chamber).
1. Jurisdiction of the First-tier Tribunal
The First-tier Tribunal (Immigration and Asylum Chamber) has jurisdiction over appeals against decisions made by the Home Office in matters related to visas, immigration, asylum, and nationality. The tribunal is independent of the Home Office and operates as a part of the UK’s judicial system. The primary function of the tribunal is to ensure that the Home Office’s decisions comply with UK immigration laws and regulations.
2. Decision-making process
The decision-making process at the First-tier Tribunal involves a thorough examination of the case, including reviewing the Home Office’s decision, assessing the appellant’s grounds for appeal, and evaluating any supporting evidence provided. The tribunal may conduct either an oral hearing, where the appellant and their legal representative can present their case in person, or a paper hearing, where the tribunal makes a decision based solely on the written materials submitted.
During an oral hearing, the tribunal may question the appellant, their legal representative, and any witnesses to gather further information and clarify any uncertainties. The tribunal will also consider any legal arguments presented by the Home Office’s representative.
3. Possible outcomes
After reviewing the case and hearing the arguments, the First-tier Tribunal will make a decision on the appeal. The possible outcomes include:
Allowing the appeal: The tribunal agrees with the appellant’s grounds for appeal and directs the Home Office to reconsider the case.
Dismissing the appeal: The tribunal disagrees with the appellant’s grounds for appeal, and the original Home Office decision is upheld.
The tribunal will provide a written decision, known as a determination, outlining the reasons for their decision and any relevant legal principles applied.
4. Appealing a First-tier Tribunal decision
If the appellant believes that the First-tier Tribunal has made an error in law when deciding their case, they may appeal the decision to the Upper Tribunal (Immigration and Asylum Chamber). The error in law could include incorrect interpretation of the law, procedural errors, or failure to consider relevant evidence.
To appeal to the Upper Tribunal, the appellant must first request permission from the First-tier Tribunal by submitting an application for permission to appeal within 14 days of receiving the determination (for in-country appeals) or 28 days (for out-of-country appeals). If the First-tier Tribunal refuses permission, the appellant can apply directly to the Upper Tribunal for permission within the specified timeframes.
If the Upper Tribunal grants permission to appeal, it will review the case and make a decision based on the alleged error in law. The Upper Tribunal may either uphold the First-tier Tribunal’s decision, set aside the decision and make a new determination, or remit the case back to the First-tier Tribunal for reconsideration.
Understanding the role of the First-tier Tribunal and the decision-making process is crucial for navigating the UK visa and immigration appeal process effectively. Engaging the services of an experienced immigration lawyer can further enhance the chances of a successful appeal.
Case Study: Winning an Asylum Claim at the First-tier Tribunal
For instance, let’s take the case of Amir, an asylum seeker from a war-torn country. The Home Office refused his claim for asylum, stating that he had not provided sufficient evidence to demonstrate a well-founded fear of persecution. Amir appealed the decision to the First-tier Tribunal, where the judge carefully examined the evidence, including his testimony and country of origin information. The judge ultimately allowed Amir’s appeal and granted him asylum in the UK.
4. Upper Tribunal and Beyond
Appeal Against UK Visa Refusal Decision
The Upper Tribunal (Immigration and Asylum Chamber) hears appeals against First-tier Tribunal decisions. In this section, we will cover the purpose and jurisdiction of the Upper Tribunal, its decision-making process, and the possible outcomes. We will also touch upon further appeal options to the Court of Appeal and Supreme Court, if applicable.
1. Purpose and Jurisdiction of the Upper Tribunal
The Upper Tribunal (Immigration and Asylum Chamber) is an appellate body that reviews decisions made by the First-tier Tribunal in cases where an error of law is alleged. Its jurisdiction extends to appeals against the First-tier Tribunal’s decisions relating to UK visa, immigration, asylum, and nationality matters. The Upper Tribunal is independent of the First-tier Tribunal and the Home Office and operates as part of the UK’s judicial system.
2. Decision-making process
When the Upper Tribunal receives an appeal, it will first assess whether the First-tier Tribunal made an error in law, such as misinterpreting the law, making procedural mistakes, or failing to consider relevant evidence. The Upper Tribunal may conduct a hearing to further discuss the alleged error of law with the appellant’s legal representative and the Home Office’s representative.
The decision-making process in the Upper Tribunal is focused on identifying and correcting legal errors made by the First-tier Tribunal, rather than reassessing the entire case.
3. Possible outcomes
After reviewing the case and assessing the alleged error of law, the Upper Tribunal will make a decision on the appeal. The possible outcomes include:
Upholding the First-tier Tribunal’s decision: The Upper Tribunal determines that there was no error in law and confirms the First-tier Tribunal’s decision.
Setting aside the First-tier Tribunal’s decision and making a new determination: The Upper Tribunal identifies an error in law, sets aside the original decision, and makes a new determination on the appeal.
Remitting the case back to the First-tier Tribunal: The Upper Tribunal identifies an error in law and sends the case back to the First-tier Tribunal for reconsideration in light of the identified error.
The Upper Tribunal will provide a written decision, outlining the reasons for their decision and any relevant legal principles applied.
4. Further appeal options
If the appellant believes that the Upper Tribunal has made an error in law when deciding their case, they may seek permission to appeal to the Court of Appeal. The process for appealing to the Court of Appeal is similar to the process for appealing to the Upper Tribunal, with the appellant needing to submit an application for permission to appeal within the specified timeframes.
In rare cases, where the Court of Appeal’s decision involves a point of law of general public importance, the appellant may apply for permission to appeal to the Supreme Court, the UK’s highest court.
Understanding the role of the Upper Tribunal and the decision-making process, as well as the further appeal options available, is essential for navigating the UK visa and immigration appeal process effectively. Engaging the services of an experienced immigration lawyer can further enhance the chances of a successful appeal.
5. UK Visa Appeal Processing Time
The average UK visa appeal processing time has seen fluctuations over the years. In 2010 and 2011, the processing time was relatively short, taking around 14-16 weeks. However, the following years saw an increase in waiting times, with 2013 reaching 20 weeks, and 2014 and 2015 hovering around 24-25 weeks.
The situation worsened in 2016 and 2017 when the processing time reached its peak, taking between 43 and 45 weeks due to a significant backlog of cases. Fortunately, since then, the UK visa appeal processing time has improved, dropping to 40 weeks in 2018 and further reducing to approximately 30 weeks by the third quarter of 2019.
It’s important to note that these processing times are estimates and may vary depending on individual cases and circumstances. To avoid potential delays, it’s always recommended to prepare and submit your appeal as thoroughly and promptly as possible.
Beyond 2019, processing times may continue to change due to various factors, including changes in immigration policy, staffing levels, and the volume of cases being processed. It is advisable to check the latest information on the UK government’s website or consult with an immigration lawyer to get the most up-to-date information on appeal processing times.
6. Appeal Against UK Visa Refusal Success Rate
Between 2010/11 and Q3 2019/20, the First Tier Tribunal Immigration & Asylum Chamber (FTTIAC) determined 75.40% of the immigration appeals, equivalent to 668,400 of the total 886,440 disposals. The remaining 24.60% of cases were withdrawn, struck out, or deemed invalid/out of time. FTTIAC allowed/granted 302,921 appeals and dismissed/refused 365,479 appeals, resulting in a UK Visa Appeal Success Rate of 45.32% and a Refusal Rate of 54.68%. In recent years, the UK Immigration Appeal Success rate of the FTTIAC has been trending upward, reaching 49% in 2017/18, 52% in 2018/19, and remaining consistent at around 50%-52% during the first three quarters of 2019/20.
UK Visa Appeal Success Rate in Upper Tribunal
The Upper Tribunal Immigration & Asylum Chamber (UTIAC) determined 77.42% of the immigration appeals, accounting for 60,674 of the total 78,371 disposals between 2010/11 and Q3 2019/20. The remaining 24.58% of cases were either withdrawn or remitted. The Upper Tribunal allowed/granted 22,346 appeals and dismissed/refused 38,328 appeals, resulting in a UK Visa Appeal Success Rate of 36.83% and a Refusal Rate of 63.17%. The UTIAC’s decisions represent the refused appeals in the FTTIAC, which translates to an effective UK visa and immigration appeal success rate of 48.66% during 2010-19.
Total Number of Appeals against UK Visa Refusal
According to Official Statistics, FTTIAC and UTIAC received a total of 820,993 and 75,889 Appeal Notices from 2010/11 to Q3 2019/20. However, there has been a decrease in Appeal Notices since 2014/15. From a peak of 146,104 (8,965) in 2010/11, Appeal Notices received by FTTIAC (UTIAC) have declined to 11,016 (951) in Q3 2019/20.
Total Disposal of Appeals Against Home Office Decision
Between 2010/11 and Q3 2019/20, FTTIAC and UTIAC disposed of a total of 886,440 and 78,371 Appeal Notices against Home Office decisions. The number of disposals has also decreased over the years, with FTTIAC (UTIAC) disposals dropping from 162,204 (7,316) in 2010/11 to 11,947 (941) in Q3 2019/20.
Impact of Covid-19
During July-Sept 2020, the First-Tier Tribunal Immigration and Asylum Chamber (FTTIAC) experienced a significant decrease in receipts and disposals (by 50% and 81%, respectively) compared to the same period in 2019. The caseload outstanding also rose by 9% over the same period.
The Covid-19 pandemic led the UK government to extend some visa and asylum rules, which resulted in a considerable drop in Immigration and Asylum receipts and disposals. With the guidance now ended and the Home Office starting to make decisions on visa applications again, UK immigration appeals are expected to see a rise in cases.
7. Conclusion
The UK visa and immigration appeal process can be complex, particularly in light of the changes introduced by the Immigration Act 2014. Understanding the different stages of the process, from the First-tier Tribunal to the Upper Tribunal and beyond, is essential for effectively navigating the system. Knowing the remaining appeal rights and the types of appeals that can be made will also help you determine the best course of action for your case. By referring to this comprehensive guide and seeking professional advice when necessary, you can increase your chances of a successful outcome in your UK visa or immigration appeal.
8. Frequently Asked Questions (FAQs)
Appeal Against UK Visa Refusal Decision: Key Points
What is the deadline for submitting an appeal against a UK visa or immigration refusal decision?
The deadline for submitting an appeal depends on whether you are in the UK or outside of the UK. If you are in the UK, you generally have 14 calendar days from the date of the refusal decision to submit your appeal. If you are outside of the UK, you have 28 calendar days from the date the refusal decision was received.
Can I submit new evidence during the appeal process?
Yes, you can submit new evidence during the appeal process. However, it is important to note that the tribunal may only consider new evidence if it is relevant to the grounds of appeal and directly impacts the outcome of the case. Ideally, you should submit all relevant evidence when you initially apply to avoid delays in the appeal process.
How long does the appeal process usually take?
The appeal process can take several months or even longer, depending on the complexity of the case and the workload of the tribunal. Generally, the First-tier Tribunal aims to provide a decision within six months from the date the appeal was lodged. However, this timeframe can vary, and some cases may take longer to resolve.
Can I stay in the UK while my appeal is pending?
If you had valid leave to remain in the UK when your application was refused, you may be allowed to stay in the UK while your appeal is pending. This is known as “Section 3C leave.” However, if you did not have valid leave to remain when the refusal decision was made, you may be required to leave the UK before submitting your appeal.
What is the difference between an appeal and an administrative review?
An appeal is a legal process where an independent tribunal reviews a refusal decision made by the Home Office. During an appeal, the tribunal can consider both the law and the facts of the case, and new evidence can be submitted. On the other hand, an administrative review is a process where the Home Office reviews its own decision, primarily to check for case working errors. An administrative review does not typically involve the submission of new evidence, and the scope of the review is limited to the information provided in the original application.
How will I receive details about my hearing?
You will receive a letter or email with details on how to attend your hearing, whether it’s in person at a tribunal building, remotely via video link, or by phone.
Who will attend the hearing?
The hearing will typically be attended by a judge, a clerk, other tribunal staff, your representative (if you have one), a Home Office presenting officer, witnesses, and an interpreter (if requested). Your sponsor, members of the public, and the press or media may also attend.
What if my appeal can’t be resolved at the hearing?
A: If your appeal cannot be resolved on the scheduled day or is adjourned as ‘part heard,’ the tribunal will arrange another hearing with the same participants.
How will I receive the tribunal’s decision?
You will be given the tribunal’s decision either in person or by post. You’ll usually receive a copy of the decision within 4 weeks of the hearing.
What are the possible outcomes of the tribunal’s decision?
The tribunal can either allow your appeal, which means the Home Office will have to reconsider its decision, or dismiss your appeal, upholding the Home Office’s original decision.
What happens if I win my appeal?
If you win your appeal, the Home Office will revise its decision. If your circumstances have changed since you first made your appeal, the Home Office may reconsider your entire application.
What can I do if I lose my appeal?
If you lose your appeal and believe there’s a legal mistake with the tribunal’s decision, you can ask for permission to appeal to the Upper Tribunal (Immigration and Asylum Chamber).
