UK Spouse Visa Appeal Process First Tier Tribunal

This explains the appeal process of the First-Tier Tribunal Immigration and Asylum Chamber (FTTIAC) for challenging the UK spouse, unmarried partner, and fiancé visa refusal decision. Moreover, provides the guidance on the FAQs relating to filling, time limits, fees, processing time, success rate, appeal allowed how long will the Home Office take to process visa?

1. Overview 2. Guidance Notes 3. Directions 4. Hearing Date 5. Pre Hearing Directions 6. Matters to be Considered 7. Adjournment 8. Withdrawal 9. Abandonment 10. Determination 11. Non-Statutory Recommendations 12. Case-Specific Directions 13. Finally Determined Appeals 14. Judgement

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1. Overview

After the implementation of the Immigration Act 2014, an applicant can file an appeal on human rights grounds to challenge a UK spouse, unmarried and fiancé visa refusal decision with the FTTIAC.

First-Tier Tribunal (Immigration and Asylum) Chamber (FTTIAC)

The First-tier Tribunal (Immigration and Asylum) has the jurisdiction to handle appeals relating to entry clearance, extension, indefinite leave to remain (ILR) deportation and permission to stay in the UK.

The First-Tier Tribunal Procedure sets into motion once an appeal in lodged. A presenting officer (POs) or sometimes a case owner (CO) in asylum appeals, represents the Home Office at hearings. In some significant cases, the Home Office may instruct a counsel.

Process

The appeal process is multi-step procedure, which usually may take 6-9 months to conclude. In a nutshell, the UK spouse visa appeal process may include instructions relating to:

  1. Directions
  2. Hearing Date
  3. Pre Hearing Directions
  4. Matters to be Considered
  5. Adjournment
  6. Withdrawal
  7. Abandonment
  8. Determination
  9. Non-Statutory Recommendations
  10. Case-Specific Directions
  11. Finally Determined Appeals
  12. Judgement

Legislations

The following legislation allows the tribunal to decide how to conduct a hearing:

  • Nationality, Immigration & Asylum Act 2002
  • Asylum & Immigration (Treatment of Claimants etc.) Act 2004
  • Asylum & Immigration Tribunal (Procedure) Rules 2005
Appeal Against UK Spouse Visa Refusal Decision

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Now YOU can get the Best Advice and Representation for All Types of UK Visa and Immigration Applications!

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*What Happens Next?

Multilingual qualified London based immigration specialists will get back to you, usually, within 2-3 working days. If you have not attached any documents, then the UK based Law firm may ask for the relevant Case-Specific Document(s) such as Refusal Letters, Deportation Orders, Application Forms etc. Moreover, after reviewing the papers and information, the legal advisor may advise a course of action and quote the fees for processing the application.

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2. Guidance Notes

Time Limits

In terms of Rule 7 of The Asylum and Immigration Tribunal (Procedure) Rules 2005, an appellant need to lodge an appeal with the First-Tier Tribunal within the stipulated period from the date of service of an appealable decision. Therefore, concisely, the time limits are 5, 10 and 28 days for spouse visa detention, in-country and entry clearance (outside the UK) appeals, respectively. 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 appeal within the timelines, then needs to explain the reasons for the delay. The tribunal has the powers to entertain such requests if there are unusual 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 then the Tribunal can extend the time limit.

Paper or Oral Hearings

If an appellant (representative) plans to attend the appeal proceedings, then can opt for an oral hearing. However, if no one intends to attend then may opt for a paper hearing. An oral hearing provides a better opportunity to win an appeal successfully.

Fees

In terms of Section 3 of First-Tier Tribunal (Immigration & Asylum Chamber) Fees Order 2011 the fees for a paper appeal and oral hearing are £80 and £140, respectively.

Notice of Appeal Forms

Rule 6 of the Asylum & Immigration Tribunal (Procedure) Rules 2005 provides that an appellant can initiate an appeal by a notice of appeal. Accordingly, an appellant need to submit an appropriate notice form:

  1. IAFT-1 or IAFT-5 Form for an in-country appeal
  2. IAFT-2 or IAFT-6 Form for an Entry Clearance Appeal
  3. Appeal Form IAFT-3 or IAFT-7 for Removal Directions, Bail Notices or Deportation Order from outside the UK
  4. Form IAFT 5 (DIA) for Detention Appeal
  5. IAUT-4 Notice Form to request the first-tier tribunal for permission to appeal to the upper tribunal

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.

How to file a UK Spouse Visa Appeal?

After a spouse, unmarried partner or fiancé visa refusal, a person can lodge an appeal online or by post or fax. The online appeals are quicker than appeals send via post or fax. Accordingly, 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. For the successful creation of a UK immigration appeal, an appellant need to provide:

  • Credit/debit card details
  • A copy of the Refusal Letter
  • Grounds of 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 such as IAFT-5 or IAFT-6

There is no need to provide original documents such as Passports, Birth Certificate, Marriage Certificates etc. Please note, the handling of original documents may cause delays. Therefore, it is sufficient to furnish photocopies of the supporting documents.

How to make a successful appeal?

A successful challenge of UK visa spouse, unmarried partner, fiancé visa refusal decision depends on the grounds of appeal. Therefore, clear and to the point presentation, especially with reference to immigration rules and legal precedence, is critical for successfully overturning the UK spouse visa refusal decision.

Immigration Status of the Appellant in the UK

The Section 3C (2) of the Immigration Act 1971 provides for a statutory extension in the leave to remain of a person due to a pending spouse visa appeal under section 82(1) of the Nationality, Asylum, and Immigration Act 2002. Therefore, leave to remain is statutorily extended until the final determination of a UK spouse, unmarried partner, fiancé visa appeal against a refusal decision.

Waiting Time

The UK spouse visa processing time is usually within 6-9 months.

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.

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

3. Directions

UK Spouse, Unmarried Partner, Fiancé Visa Refusal Appeal Process

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 the reasons for not providing any evidence or document.

4. Hearing Date

UK Spouse, Unmarried Partner, Fiancé Visa Refusal Appeal Process

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 decide 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
  • participating and has told the tribunal

5. Pre-hearing Directions

UK Spouse, Unmarried Partner, Fiancé Visa Refusal Appeal Process

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 crucial 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 need 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.

6. Matters to be Considered

UK Spouse, Unmarried Partner, Fiancé Visa Refusal Appeal Process

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

7. Adjournment

UK Spouse, Unmarried Partner, Fiancé Visa Refusal Appeal Process

When and where possible, it is expedient to avoid adjournments. If an adjournment is necessary, then the party requesting it must notify all the parties. 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 can 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.

8. Withdrawal

UK Spouse, Unmarried Partner, Fiancé Visa Refusal Appeal Process

As per Rule 17 of 2005 Rules, an appellant or their 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.

9. Abandonment

UK Spouse, Unmarried Partner, Fiancé Visa Refusal Appeal Process

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.

10. Determination

UK Spouse, Unmarried Partner, Fiancé Visa Refusal Appeal Process

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 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.

11. Non-Statutory Recommendations

UK Spouse, Unmarried Partner, Fiancé Visa Refusal Appeal Process

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

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 inform the tribunal or appropriate court.

Non-acceptance

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.

12. Case-Specific Directions

UK Spouse, Unmarried Partner, Fiancé Visa Refusal Appeal Process

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.

13. Finally Determined Appeals

UK Spouse, Unmarried Partner, Fiancé Visa Refusal Appeal Process

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.

14. Judgement

UK Spouse, Unmarried Partner, Fiancé Visa Refusal Appeal Process

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 ten 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.

Decision Overturned

Procedure after an Appeal is Allowed

If the tribunal allowed the appeal, then this means that the appeal is successful and has overturned the 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.

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

If the Home Office’s does not challenge, then needs to implement the court’s decision. Although, there is no specific timeframe for implementing the decision; however, the Home Office usually takes 8 weeks (40 working days) to process spouse visa after an appeal is allowed against refusal decision.

Please note, once an appeal is allowed then an appellant usually receives a call letter from British Embassy/ECO within 4-8 weeks. This letter instructs the applicant to submit the passport at the visa application centre (VAC), where the applicant had submitted the original application. There is a further waiting time of usually 2-4 weeks before the appellant finally gets the UK spouse visa after a successful appeal.

Decision Upheld

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

UK Spouse Visa Appeal Process