Competition Service

The Enterprise Act 2002 created the Competition Service; a body corporate and executive non-departmental public body whose purpose is to fund and provide support services to the Competition Appeal Tribunal. Support services covers everything necessary to facilitate the carrying out by the Competition Appeal Tribunal of its statutory functions and includes, for example, administrative staff, accommodation and office equipment.

The Competition Service is subject to the provisions of the Freedom of Information Act 2000.

Freedom of Information

The Freedom of Information Act (the Act) establishes a general right of access to all types of recorded information held by public authorities, sets out exemptions from that right and places a number of obligations on public authorities.
The Competition Service (CS) is a public authority for the purposes of the Act. Information received, held or created by the Competition Appeal Tribunal (the Tribunal) in the carrying out of its judicial functions is exempt information and cannot be released under the provisions of the Act. Judgments and other non-confidential documents produced by the Tribunal can be found on the Competition Appeal Tribunal website.
Detailed information on the Act is available on the Information Commissioner’s Office (“the Commissioner”) website.

Before making a request

Before making a request information to the CS, applicants should check if the information has already been published on the publication scheme. If the information cannot be found, applicants can make a request under the Freedom of Information Act.

Making a request

Requests for information should be as specific as possible and give, where appropriate, a relevant time frame, for example 2008 to 2009 or January to April 2009.
Applicants should inform the CS how they would like the information provided to them, for example by post or email.
Applicants should provide their contact details.

When the competition service receives a request

Under the Freedom of Information Act, the Competition Service is required to respond to a request for information within 20 working days following the date on which the request was received. This time limit can be extended if a fee is requested or if the information being sought has to be considered under an exemption to which the public interest test applies.
If a fee is requested, the 20 working day deadline is put on hold and will start running again (from where it stopped, not back to the beginning of the 20 days) when the appropriate fee is received.
If the information being sought has to be considered under an exemption to which the public interest test applies, the timescale is extended by a “reasonable period”. In this instance the Competition Service will inform the applicant of which exemption(s) is being considered and an estimated date by which a decision regarding the application of this exemption is expected to be made.
If the information falls within one of the exemptions of the Freedom of Information Act, it is exempt information and does not have to be disclosed. When that happens, the Competition Servicewill tell the applicant which exemption applies and, in most cases, why the information cannot be released.

 

Fees

The Competition Service is entitled to make a charge for a request for information in accordance with The Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004. The Competition Service will inform the applicant where charges may apply.
If the cost of locating, retrieving and extracting the information is £450 or less, the Competition Service may charge for photocopying, printing and postage costs. If the cost is more than £450, the Competition Service is not obliged to comply with the request.

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Appealing against an employment tribunal judgment

Employment tribunal

You may only appeal to the Employment Appeal Tribunal (EAT) on a .

Broadly, a point of law is one which concerns the interpretation of the legislation and its application to the facts of the case.

Where the employment tribunal has made findings of fact based on the evidence it has read or heard, eg where the tribunal sets out what they believed actually happened, or why someone acted as they did, you cannot challenge this – even if you think that the tribunal was wrong to make those findings.

As well as appeals against judgments, appeals to the EAT can also be made against Interim decisions, directions or orders made by an employment tribunal. An appeal to the EAT may therefore be made where, for example, the tribunal has granted or refused to grant a witness order, a postponement or deadline extension.

In order for the EAT to accept your notice of appeal (EAT Form 1), you must ensure that you:

  • give full details of why you think there are grounds for appeal
  • enclose a copy of the claim (form ET1), response (form ET3), judgment and written reasons

If you have also applied to the employment tribunal for a review, you should also enclose a copy of the review application, judgment and written reasons. If the review judgment is awaited then you should say so.

If you believe that an employment tribunal judgment, decision, direction or order made during the proceedings is wrong, you should not wait until the final judgment (or the outcome of a review) to lodge an appeal.

Note that the employment tribunal normally destroys files within one year of sending the judgment to the parties involved.

If the notice of appeal is rejected

If your appeal application is incomplete and/or received without the correct supporting documentation, the EAT will regard it as not properly instituted.

In these circumstances:

  • they will write to you explaining what is missing and what you still need to do
  • the 42-day time limit remains, so you should comply with the request made by EAT within that limit

If the notice of appeal is accepted as properly instituted

If you provide all the required documents, or explanations for their absence, then the EAT will tell the other party (or parties) that you have appealed.

However, some time may elapse before they are asked to respond.

The EAT will first consider whether the appeal has any reasonable prospect of success.

Responding to a cross appeal

If the claimant – or one of the other respondents if there was more than one – cross appeals, you must lodge and serve a reply.

This must take place within 14 days of receiving the cross-appeal – unless otherwise directed.

You can download the cross appeal reply form from the Tribunals Service website (PDF, 5K). – Opens in a new window

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Representing yourself at the Upper-tier Tribunal

 

The Upper-tier Tribunal

This is part of the Immigration and Asylum Chamber. If your appeal is refused at the First-tier Tribunal, you can apply for permission to appeal at the Upper-tier Tribunal if you think the First-tier Tribunal Judge made an error in the way they applied the law in deciding your case.

Examples of errors of law include:

  • situations where a judge has made a mistake about the meaning of the Immigration Rules;
  • when a judge has not followed a binding decision of a higher court;
  • when a judge has overlooked important evidence;
  • when a judge made a decision that was not reasonably open to him or her on the evidence;
  • or where there has been unfairness in the way matters have proceeded.

It is crucial that in applying for permission to appeal, that you set out how you believe the First-tier Tribunal made an error in law.  You cannot simply say you disagree with their decision.

Permission

1. Apply for permission at the First-tier Tribunal

First, you apply to the First-tier Tribunal for permission to appeal at the Upper-tier Tribunal.

To apply for permission from the First-tier Tribunal to appeal at the Upper-tier Tribunal, you need to fill out a form called IAFT- 4. You should be sent a form with a copy of the First-tier Tribunal’s refusal of your case. You can also find it, along with guidance notes, at the Tribunal website.

You send the completed form by fax or post to the First-tier Tribunal (unless your case is in the detained fast-track system). The postal address is: First-tier Tribunal (Immigration and Asylum Chamber), PO Box 7866, Loughborough, LE11 2XZ. The fax number is 01509 221550. If you are in the detained fast-track system, you lodge the form with the detention centre in which are held.

Check for up-to-date details at the Tribunal website.

This form should be completed and sent to the Tribunal no later than five working days after the date the First-tier Tribunal’s refusal was served on you. (The time limit is 28 days if you are outside the UK and 2 working days if the case is a fast-track case). It is important to include with your permission application the First-tier Tribunal refusal you wish to challenge along with the full reasons why you think the Tribunal made an error of law.

Most of these applications will be decided on the papers, without an oral hearing.

2. Apply for permission at the Upper-tier Tribunal

If the First-tier Tribunal do not grant you permission to appeal at the Upper-tier Tribunal, you can apply directly to the Upper-tier Tribunal for permission to appeal there.

To apply for permission directly from the Upper-tier Tribunal, you need to complete a form called IAUT-1. You can find the form, and guidance notes, at the Tribunal website.

You send the completed form by fax or post to the Upper-tier Tribunal (unless your case is in the detained fast-track system). The postal address is: Upper Tribunal (Immigration and Asylum Chamber), IA Field House, 15-25 Breams Buildings, London EC4A 1DZ. The fax number is 0870 3240111. If you are in the detained fast-track system, you lodge the form with the detention centre in which are held.

See the tribunal website for up-to-date information.

The form should be completed and sent to the Upper Tribunal no later than seven working days after the date on which the First-tier Tribunal’s refusal of permission was sent to you. (The time limit is 56 days if you are outside the UK and 4 working days if the case is a fast-track case). The time limits are even shorter if the First-tier Tribunal’s decision was emailed to you or handed to you in person, rather than posted. Contact the Tribunal to ask them about time limits if this is the case for you.

If you send the application to the Upper Tribunal so that it will arrive later than the deadline, your application must include a request for an extension of time and explanation of why you were unable to send it in time. The Upper-tier Tribunal might not accept this, however, and may not consider your application for permission.

The Upper-tier Tribunal’s guidance states:

It is important to keep the reasons or grounds why you consider permission should be granted (“the renewed grounds “) as clear as you can. The Upper Tribunal Judge will not be assisted by a large number of pages with a great deal of irrelevant material.

 

If permission is refused

You may be able to apply for judicial review of the refusal of permission to appeal at the Upper-tier Tribunal, if you can demonstrate an error of law that raises an important point of principle or practice or show some other compelling reason for the case to be heard.

Note – there has been an increase of incidents recently in which the Home Office has received the refusal of permission to appeal to the Upper-tier Tribunal and has not notified the appellant. They have then detained the individual (either at a reporting event or through a raid on their home), at which point they inform them of the Tribunal’s refusal of permission. In this situation, the Home Office might inform you that you are ‘appeal rights exhausted’. You may still have legal options, however, such as judicially reviewing the refusal of permission.

If you are granted permission to appeal

If you are granted permission to appeal to the Upper-tier Tribunal, there will be either a hearing before one or more Upper Tribunal Judges or the case may be decided without an oral hearing on the papers available.

The Upper Tribunal will send you Directions setting out the steps that are required to be taken before the hearing. Make sure you read these carefully, and follow the instructions within the time-limits given in the Directions.

You may wish to submit written submissions (a summary of your case) and/or a skeleton argument (sets out the main arguments you wish to rely upon at the hearing) to expand on the grounds you used to apply for permission to appeal. You should explain in these documents why you think the First-tier Tribunal made an error of law. If you wish to submit these documents, you need to send them to the Upper-tier Tribunal and the Home Office in advance, as per the instructions in the Directions.

If you want the Upper-tier Tribunal to consider new evidence, you must submit it to the Tribunal and the Home Office in advance, explaining why it has not been submitted before (in your original application or first appeal).

The hearing

You will receive notice of the hearing that will tell you the date, time and location of the hearing. The Tribunal’s guidance suggests arriving at least an hour before the start of your hearing (either 10am or 2pm), to allow for time getting through security into the Tribunal.

The Tribunal Guidance says:

  • You need to bring with you all the documents that you consider are important to your case. These should include copies or the originals of the documents that you have already filed with the Tribunal and served on the Home Office in response to the Directions.
  • On arrival at the Tribunal make your way to the reception area where you will find on a notice board a list of the day’s hearings. Report to the receptionist who will tell you where your appeal will be heard and the name of the judge or panel who will hear it. Unless you are asked to wait in the reception area, you should go to the allocated court room and wait outside the door.
  • You will find that shortly before the start of the hearing, you will be approached by a court official who is called a clerk, who will arrange for you to take your place in the hearing room. If no one has approached you, then go back to reception for assistance.
  • Nearly all hearings are open to the public. If your appeal is not the first in the list, you can normally still go into the courtroom and listen to other cases. You may find this helpful, as you will see how the judge runs the court. Alternatively you can remain outside until your case is called.
  • It may be that the order of the list will change so that the cases are not heard in the same order as they appear in the list. It is important to keep in touch with the clerk if you are waiting outside the hearing room.
    Mobile telephones must be switched off whilst in the court room. You are not permitted to record the proceedings or take any photographs.
  • Everyone in the court room is expected to stand when the judge or panel enter. You will then be invited to sit. Thereafter there is no need to stand until the end of the hearing when the judge leaves the room. You can address the judge whilst seated. The judge should be addressed as Sir or Madam as appropriate.

Making your argument

Screen shot 2014-08-19 at 16.50.08You might want to write down a summary of the key points of your argument, to remind yourself what you want to say. You can give a copy of this to the judge if you want, as long as you also give a copy to the Home Office presenting officer as well.
If you have several points to make – for example, if you think the First-tier Tribunal made an error of law in three different ways – make this clear. You can say ‘my first reason is’, ‘my second reason is’ etc. Try and stick to one reason at a time, without mixing up different areas of argument (though if the areas of argument are connected, you can say this).

You can’t interrupt the judge, the Home Office presenting officer or a witness if they are in the middle of talking. If you think the judge is moving on to the next part of the hearing and you haven’t finished what you wanted to say, you can raise your hand.

If it is you who has been granted permission to appeal, you will make your argument first. The Home Office presenting officer with then respond, and then you will have a final chance to sum-up or respond to what the Home Office has said.

The decision

The judge will either make a decision, then-and-there, or they may ‘reserve’ their decision and let you know in writing at a later date.

If the judge makes the decision then-and-there that the First-tier Tribunal made an error of law:

  • they may proceed to hear the appeal in order to make a fresh decision immediately
  • they made decide that it is necessary to hear new evidence or consider new documents and so they will arrange a hearing at a later date
  • the judge will decide whether any findings of fact made by the First-tier Tribunal are to be preserved, even though the First-tier Tribunal’s decision been set aside.
  • the judge may sends the case back to the First-tier Tribunal (‘remits the case’) to re-decide the case, with no need for consideration of new evidence. The judge may give the First-tier Tribunal directions to make sure the error of law is not repeated. This is a possible outcome if the Upper Tribunal judge agrees with the First-tier Tribunal on findings of fact.
  • the judge may order the First-tier Tribunal to rehear the case, with a chance to hear new evidence. This is a possible outcome if the Upper Tribunal judge decides the findings of fact by the First-tier Tribunal can’t be relied upon.

If you lose your case at the Upper-tier Tribunal

If you were granted permission to appeal at the Upper-tier Tribunal, your case was heard, but the judge decided that the First-tier Tribunal did not make an error of law, there is the option of appealing that finding at the Court of Appeal. You will need to apply for permission to do this.

Accessing this level of the court process without a legal representative is very tricky.

 

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How to appeal against a visa refusal

There have been a number of recent changes to the rules and procedures on appeals against UK visa refusals and some rights of appeal have been removed altogether.

The UK Border Agency (UKBA) provides factual information on how to lodge an appeal but cannot give legal advice.

For instance, if you are in the UK and have been refused on an application to extend a UK visa and wish to appeal against the refusal you can visit the UKBA’s Appeals for extension, switching and settlement applications page.

If you have the right to appeal – your refusal letter should mention this – you may appeal to the First-tier Tribunal (Asylum and Immigration Chamber) of HM Courts and Tribunals Service.

At present you can submit an appeal by post or fax to:

First-tier Tribunal (Immigration and Asylum Chamber)
PO Box 6987
Leicester
United Kingdom
LE1 6ZX

Fax: (+44) (0)116 249 4214

The above details, as well as the process, are subject to change and you must check the UKBA website or take legal advice before submitting an appeal.

The Ministry of Justice website contains factual information on the appeals process, as well as downloadable forms and details of any fees payable to lodge the appeal.

If you win your appeal the Judge may ‘award’ or order the UKBA to compensate you any fees you may have paid: at present £80.00 for a determination on the papers (without a hearing) or £140.00 for a full oral hearing.

Appeals are made through the tribunal or court system and cases are decided by Immigration Judges who are independent of the UKBA or Home Office.

This differs from ‘administrative reviews’, which is an internal review system for visa refusals under the points-based system, for example a Tier 4 student visa, which does not carry a full right of appeal.

If the UKBA refuse your application, they will send you a ‘notice of the decision ’ letter which will state your appeal rights, if any.

Not all visa refusals have full rights of appeal. Some of the cases which attract full rights of appeal include:

  • partners, children and other dependent relatives of British citizens or settled persons, who are seeking to come to the UK with a view to settlement; and
  • family visitors, who want to visit qualifying family members in the UK
  • Some in country refusals on visa extensions
  • European or EEA refusals
  • Yellow or Blue Card refusals for Bulgarian and Romanians

If you have the right of appeal, the UKBA will normally will send you an IAFT-2 appeal form along with the refusal or notice of decision letter. They will include an information document explaining how to complete the appeal form.
In most cases, you will be charged a fee – £80.00 for an ‘on the papers’ (without a hearing) appeal or £140.00 for a full oral hearing – when you make an appeal.

Lodging or making an appeal

To lodge an appeal against a refusal you should:

  • complete form IAFT-2 and send it with your notice of decision to the tribunal address or fax; or
  • complete and submit an online appeal form on the Ministry of Justice website .

The appeal form must be completed in English, however, you can requested an interpreter at the hearing.

You should have valid grounds on which to appeal. In other words, you need to explain why you think the UKBA were wrong to refuse your application based on the application presented. There is no point in appealing just because you don’t like the decision or because you are now presenting new documents which you should have submitted with your visa application.

If you appeal using form IAFT-2, you or your legal representative (if you have one) must sign the form or it will be returned to you.

If you have documents supporting your grounds for appeal, you should send these with the form, although a full bundle of evidence and statements can be submitted prior to a full hearing.

Documents must be in English or accompanied by a certified translation. Use standard A4-sized paper only for your supporting documents without staples.

Your appeal form must be received by the tribunal within the time specified on your notice of decision, and will be deemed as accepted when the First-tier Tribunal (Immigration and Asylum Chamber) (FTTIAC) receives your payment.

The FTTIAC will then notify the UKBA or visa office that you have lodged an appeal against the refusal, by sending them a notice of receipt.

At this point an officer or Entry Clearance Manager (ECM) should review the refusal decision and may decide to overturn the refusal, but in most cases the appeal will proceed.

If they are defending the refusal the UKBA will write a statement explaining why the decision should be upheld and send this and all your papers or ‘the appeal bundle’ to the FTTIAC.

In practice, not all cases are defended, but you should prepare for your appeal to be opposed by a Home Office Presenting Officer (HOPO) at a full hearing.

It is the HOPO’s job to defend and oppose the appeal however much they may sympathise with your case.

The FTTIAC will:

  • list your appeal for hearing;
  • send copies of all the relevant papers (including the ECO’s written statement) and supporting documents to both parties including your representative or sponsor; and
  • advise parties of the date and time of your hearing.

An independent Immigration Judge will ‘hear’ your appeal in the UK in a formal setting at a tribunal or court. The Judges do not wear wigs and gowns and are normally helpful and approachable.

The Judge will examine and consider all the evidence provided by you or your legal representative and by the Home Office. He or she will ‘determine’ your appeal based on the details of your refusal case in accordance with the relevant UK Immigration Rules.

The Judge will normally inform the FTTIAC of his or her decision in writing no more than 10 days after the hearing. The FTTIAC will then send that decision (known as a ‘determination’) to everyone involved.

If the judge ‘allows’ or awards your appeal, his or her determination will be sent in writing to the relevant visa section or UKBA department, which will in turn contact you.

This process can take several weeks if not months. Allow up to 4 weeks for determinations to reach a visa section, and a further 8 weeks for this to be processed. The section will write to you using the contact details provided on your appeal form.

Remember also that the losing side has a further right of appeal and can apply to the Upper Tribunal for permission to appeal. Some cases have been known to go all the way through the appeal and supreme courts and to the European court.

Some human rights and Article 8 right to a family life appeals have gone on for as long as 10 years, which means the UKBA cannot remove you until the case has been finally decided.

In cases where you are not given a right of appeal, such as a removal order, you still may be able to apply to the Administrative Court for permission to lodge a Judicial Review to challenge the decision. The British legal system is fair but also complex. Laws are written by lawyers for lawyers. You will improve your chances of success if you seek specialist legal advice.

If you need any immigration advice or are worried about the new immigration rules or need help with Sponsorship or Tier 2, Tier 4, applying for university if your college has closed down, Visa, ILR, Settlement, Citizenship, Dependant Visa or an appeal against a UK Border Agency or British Embassy refusal, or if you have been waiting for a reply from the Home Office for longer than a year, please email:

Immigration Lawyers | Immigration & Visa Specialists | Monday to Friday 9am to 6pm | info@icslegal.com | 020 7237 3388

 

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Deportation and Removal

Deportation, referred to as “removal” in legal terms, occurs when the federal government orders that a non-citizen be removed from the United States. This can happen for different reasons, but typically occurs after the immigrant violates immigration laws or the more serious criminal laws. This section gives a broad overview of the deportation process, as well as some of the forms of relief available that may prevent deportation. Educating yourself about deportation will help you avoid the pitfalls that may cause deportation, and may allow you to stay in the U.S. if you do find yourself in deportation proceedings.

Expedited Removal

There are some limited circumstances in which a person is not entitled to removal proceeds. Those who entered the United States under the Visa Waiver program cannot, in most circumstances, get their case heard by an immigration judge. Part of the agreement that allows nationals of certain countries to enter the United States without first applying for a visa also stipulates that someone who violates the terms of the agreement can be removed without a hearing. Arriving aliens who lack documentation or attempt fraud upon entry are also, with some exception, subject to expedited removal.

Deferred Action

In some cases where the immigration courts have the ability to deport someone they may choose not to. One significant use of deferred action in recent years has been the Deferred Action for Childhood Arrivals (DACA). When the court exercises deferred action, it postpones the removal process for an individual or group of individuals, sometimes indefinitely. Deferred action does not, in itself, confer any additional benefits however.

Stay of Removal

A “stay of removal” refers to a temporary postponement of removal by the Department of Homeland Security (DHS). A stay is typically either automatic or discretionary. Automatic stays of removal refer to situations where the individual has an appeal or motion pending with the court that might result in the overturning of the order. Discretionary stays are requested in writing and are typically also tied to pending motions and appeals.

Reentry After Removal

Removal from the United States may result in bars, typically three or 10 years longer, though some offenses may result in a lifetime bar. Once the bar is removed, either through the passage of time or the grant of a waiver, the person may apply for and receive a new visa to enter the country. Illegal re-entry after a removal, exclusion, or denial of admission can result in a fine, imprisonment, or both. Penalties may be even harsher if the person has prior criminal convictions.

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Barring people with disabilities sparks calls for change.

The country’s human rights watchdog is calling for changes to a controversial immigration policy barring people with disabilities such as autism from residence in New Zealand when they need “significant support”.

Chief Human Rights Commissioner David Rutherford said the commission was concerned by two recent decisions, highlighted in the Herald on Sunday, to refuse residence to Brazilian disability advocate Juliana Carvalho and Belgian autistic schoolboy Peter Gourle, whose award-winning mathematician step-father Professor Dimitri Leemans slammed the decision in Britain’s Guardian newspaper.

“Disabled people and others concerned with the situation should take advantage of the Government’s recently announced 2016 review of the Disability Strategy to make submissions to Government on this matter,” Rutherford said.

“The Disability Commissioner intends to engage with relevant Government agencies to raise concerns about the position of disabled people and their families in the immigration process and to discuss the potential for legislative or policy changes in this area to better support the rights of disabled people.”

Labour immigration spokesman Iain Lees-Galloway has also called for a more “holistic” approach to immigration applications from disabled people and deaf Green MP Mojo Mathers said the “discriminatory approach” was wrong in principle.

“If today’s criteria had been applied to me when my family applied to migrate here back in 1981, it is likely I (or my mother who is a survivor of a major motorcycle accident) would have been rejected as well,” she wrote in a blog.

“It is time for a warmer, kinder, more compassionate immigration policy that respects human rights.”

Even NZ First leader Winston Peters said discretion should have been exercised in Peter Gourle’s case because of his stepfather’s contribution to New Zealand. But he said immigration numbers should be cut to make room for such cases.

“Our capacity to provide a humanitarian response in this and in other cases, including in terms of the number of refugees, is seriously compromised by an unfocused, random immigration policy that is bringing in a net more than 63,000 people every year,” Peters said.

But Immigration Minister Michael Woodhouse has no plans to review the policy for disabled people. “My concern is to ensure that the instructions are clear and fair and consistently applied by Immigration NZ, but that when an applicant does get a decision that they are unhappy with, they understand their rights of review and appeal,” he said. “Am I confident that is the case? Yes I am.”

Immigration NZ’s operational manual says residence can only be granted to people with “an acceptable standard of health”, which is defined as “unlikely to impose significant costs or demands on New Zealand’s health services or special education services”.

Autism, physical disability and intellectual disability are listed as “medical conditions deemed to impose significant costs and/or demands on New Zealand’s health and/or education services” when they need “significant support”.

Autism NZ chief executive Dane Dougan said the list was a clear breach of the United Nations Convention on the Rights of People with Disabilities. “We are looking to get legal advice on this,” he said.

But immigration lawyer David Ryken said immigration decisions were exempted from the Human Rights Act. The law gave limited discretion to immigration officers because of the risk of corruption, but allowed the Immigration and Protection Tribunal to recognise “special circumstances” on appeal.

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‘Law-abiding’ rapist let back into Britain because it would break EU law to deport him to Romania

Deported from UK

Married father-of-three Mircea Gheorghiu is allowed to return to the UK after being sent back to his home country last year

 

A Romanian rapist has been allowed back into Britain because it would break EU law and breach his human rights to deport him back to his home country, it emerged on Sunday.

Married father-of-three Mircea Gheorghiu was ordered out of the country after the Home Office discovered his criminal past following a drink-drive conviction here.

But the 47-year-old roofer has now been allowed to return to the UK to live in Walthamstow, East London, with his family because two judges ruled his crimes are not serious enough to justify his deportation, the Mail on Sunday reported.

The immigration tribunal heard EU citizens should only be removed before their appeal hearings in exceptional circumstances, because of their rights to free movement and human right to a family life.

Gheorghiu served two years and eight months of a six-year jail sentence in his native Romania for a rape in 1990 before moving to Britain illegally in August 2002.

He has also been jailed twice in Romania for “forestry offences” such as “cutting timber without a licence”.

In November 2007, he was convicted of drink-driving in the UK and banned for 20 months.

But it was only in June 2014 that the Home Office discovered his rape conviction.

In January 2015, the decision was made to deport him “essentially because of the serious nature of his overseas convictions, notably the conviction for rape”.

Gheorghiu was placed in an immigration detention centre for 46 days before being sent back to Romania.

He said: “The first I knew that anything was wrong was when the immigration officer knocked on my door at 7am. The officers said they had a few questions and asked me to come to the police station.

“They said they would bring me back but they lied and I was taken to a detention centre.”

While he was in Romania, his appeal took place and a judge ruled he no longer posed enough of a risk to be deported as he had been a “law-abiding and working member of UK society” for seven years.

An appeal by the Home Office was then rejected when the Upper Tribunal (Immigration and Asylum Chamber) upheld the ruling that Gheorghiu’s deportation was disproportionate.

Mr Justice Blake and Judge Nathan Goldstein said: “We consider it is of importance, he is reunited with his family as quickly as possible.”

The Home Office said: “The UK will seek to deport any EU national whose conduct represents a genuine, present and sufficiently serious threat.”

Source: http://www.telegraph.co.uk/

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Immigration Appeals and Administrative Reviews

In the current climate, the Government has gradually destroyed the rights of immigrants in the UK by applying stringent new rules in an effort to reduce migration with the aim of bringing down immigration numbers. Therefore, if you have been refused a visa, an extension of leave to remain or have been refused a point based system visa and have been provided with a right to appeal or been told that you can submit an Administrative Review, the need to obtain immediate professional and accurate legal advice is essential.

There are two main categories of visa refusals; the first is where an application is made in-country to the Home Office and the second, is where an application is made out of the country or in your home state or country, usually at a British High Commission or British Embassy. Confirmation of whether you have a right to appeal the refusal decision will be stated in the ‘Notice of Immigration Decision’ which will either be issued by the Home Office on behalf of the Secretary State for in-country applications or in an ‘Entry Clearance Refusal Notice’ issued by the Entry Clearance Officer for all out of country applications. Currently, in-country appeals must be lodged within 10 days of the date of receipt of the Notice of Immigration Decision and out of the country appeals must be lodged within 28 days of receipt of an Entry Clearance Refusal Notice.

 

The most common types of appeal rights arise from a visa refusal in the following categories:

– Human Rights appeals

– Removals/Deportation appeals

– Dependant appeals

– Fiancée/Spouse visa appeals

– EEA Regulation appeals

– PBS administrative reviews

To appeal a refusal decision, it is necessary to complete an appeal form and to draft cohesive Grounds of Appeal,  which explain why the refusal decision is incorrect and should be overturned. It should be noted that there is also an Immigration Tribunal fee to pay for the appeal to progress; this is currently £140.00 for an appeal via an oral hearing or £80.00 for an appeal via a paper hearing.

Once an appeal is lodged at the Immigration Tribunal, within the deadline specified, it usually takes an average of 4-6 months for the appeal hearing to be scheduled. You will have the option to elect the hearing to be dealt with “on the papers” or by an “oral hearing”. At an oral hearing, a Barrister should be present to argue to the case of the Appellant- this is the term used to describe the person who is appealing the refusal decision. During an oral hearing, witnesses can be called to give evidence on behalf of an Appellant with the aim of convincing the Immigration Judge to overturn the refusal decision and to allow the Appellant leave to enter or remain in the UK in the visa category they requested.

Ultimately, any appeal decision is based on the legal arguments and factual evidence provided in the application and the Grounds of Appeal. Usually the Secretary of State/Home Office will also be represented at the appeal hearing and their aim will be to try and convince the Immigration Judge that the original refusal decision issued is correct and should not be overturned. During the appeal hearing, the Immigration Judge will hear both sides of the argument, including evidence from witnesses and the Barrister is  representing the Appellant to during the appeal hearing. A decision can be expected from the Immigration Judge usually within 4 weeks of hearing the appeal.

It should be noted that if the Immigration Judge refuses the appeal at this stage and does not overturn the refusal notice, then the Appellant can still appeal further to the Upper Tribunal and there are still legal remedies available. Any such further appeal will need to be based upon showing that the Immigration Judge made an error in determining the correct immigration laws/rules and effectively arguing that due to the Immigration Judge making an error in law, their decision cannot be allowed to stand and therefore a more senior Immigration Judge is required to look at the decision and to overturn it.

Nonetheless, even if your appeal is unsuccessful at First Tier Tribunal you have the right to appeal to the Upper Tribunal and to the Court of Appeal. One additional route to appeal open to both Immigration Appeals and Administrative Review, is to issue Judicial Review Proceedings in the High Court. This route is available where it is believed that there has been a procedural impropriety or where the law has not been applied correctly by the Home Office. These are specialized applications and the need to ensure your application is prepared properly is paramount, as this is your last defense against a decision to restrain you from entering or remaining in the UK. Legal expertise is therefore essential.

Appeals are complicated matters governed by extensive immigration rules, laws and case laws and the need to obtain accurate and knowledgeable advice from a reputable immigration firm is essential from the point of receiving a refusal decision.

A Points Based System (“PBS”) refusal decision does not allow a right of appeal, instead it grants a person the right to request for an Administrative Review. It is best explained “as the review of an eligibility decision to decide whether the decision is wrong due to a case working error”. For example, it may be possible to successfully argue that, the decision maker incorrectly applied the Immigration Rules, did not give sufficient weight to the evidence that was submitted as noted in the notice of decision or has incorrectly refused an application on the basis that it was made more than 28 days after the original leave had expired. The errors of law which are denoted will be carefully reviewed, however an administrative review can only be requested once.

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Appeals & Tribunal Solicitors

If your immigration application is refused, the Immigration and Naturalization Service will write to you stating why your application was turned down. In these circumstances, you have the right to appeal the decision. As you will need to show that the decision that was made was not in accordance with current UK immigration policy, or nationality law, the services of our immigration solicitors are essential. Our expert immigration solicitors will explain the process in detail and help you challenge the decision and make an immigration appeal to a tribunal.

Judicial review involves a challenge to the legal validity of a decision made by a public body, such as the Home Office. Where decisions are made with no right of appeal or where all appeal rights have been exhausted, judicial review proceedings may, depending on the facts of your immigration case, be an appropriate step to take. The time-frames are short and so prompt action is required. Our solicitors are very experienced when it comes to immigration tribunals and have handled dozens of successful cases.

Immigration Lawyers | Immigration & Visa Specialists | Monday to Friday 9am to 6pm | info@icslegal.com | 020 7237 3388

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Understanding the UK Immigration Appeals Procedure

By Section 82(2) of the Nationality, Immigration and Asylum Act 2002, an appeal can be made against an ‘immigration decision’ as defined with the act. This includes (but is not limited to) refusal of leave to enter the UK, refusal of entry clearance, refusal to vary leave to enter or remain in the UK and a decision to make a deportation order. Note, however, that certain types of applicants, such as those applying for entry clearance as visitors, cannot appeal under Section 82 of the act.

The Immigration (Notices) Regulations 2003 provide that a decision maker (e.g. an entry clearance officer, immigration officer or the Secretary of State) must give written notice to an applicant in relation to any immigration decision taken which attracts a right of appeal. The notice must include a statement of the reasons for the decision to which it relates. The statement must advise the person of his or her right of appeal and the statutory provision on which the right of appeal is based. The notice must include the relevant procedure to follow and provide a deadline in which to appeal by.

The reasons an applicant can rely upon to make an appeal are contained within Section 84 of the Nationality, Immigration and Asylum Act 2002. An applicant can rely on one or more of the grounds set out within this section. If an appellant fails to disclose all relevant grounds of appeal, any attempt to raise new grounds at a later stage may lead to no appeal being allowed against the decision. Alternatively, (and more likely) a court will simply not entertain the new grounds relied upon by the appellant.

There are different stages and levels to the appeals procedure which are set out as follows.

First-tier Tribunal (IAC)

An appellant appealing in the UK to the IAC must give notice of appeal within five working days of receiving the decision if in detention, otherwise the time limit is 10 working days. If the appellant is outside of the UK the deadline is 28 calendar days after receiving notice of the decision.

At first instance, an appellant’s appeal will be heard at the First-tier Tribunal (Immigration and Asylum Chamber (IAC). All IAC appeals are heard in various appeal centres across the UK. An appeal to the IAC may only be started by giving notice of appeal on a prescribed form. An initial case management review hearing will be held when the issues are complex and there is a large volume of paperwork to consider. Directions are usually issued as to the filing of evidence.

At the full hearing an immigration judge will consider the evidence and the submissions of both parties and decide whether or not to uphold the decision of the Respondent (i.e. the Secretary of State). A judge will issue, within 2-4 weeks after the full hearing, a document called ‘Determination & Reasons’ which sets out the judgment and the reasons for arriving at that judgment.

Either party may appeal against the determination to the Upper Tribunal. This must usually be done within 5 to 7 working days or longer if the appellant is outside of the UK.

 

Upper Tribunal

An appeal against the decision of a First-tier judge lies on a point of law and permission is first required to appeal to the Upper Tribunal. If both the First-tier Tribunal and the Upper Tribunal refuse permission to appeal, that decision can be judicially reviewed as the Tribunals constitute a public body.

If permission to appeal is granted, then the Upper Tribunal will hear the case and determine whether or not the judge of the First-tier Tribunal made an error of law. A judge of the Upper Tribunal will then determine the outcome of the case and issue Determination & Reasons as before.

Either party may then choose to apply for permission to appeal to the Court of Appeal. This must usually be done within 12 days of receipt of the Upper Tribunal’s determination.

Court of Appeal

The Court of Appeal has the power to give any decision which might have been given by the IAC. It can also remit the matter for rehearing and determination by the IAC and then may offer the IAC, its opinion and make directions with which the IAC must comply.

Negotiating the immigration appeals procedure can be both complex and daunting. It is therefore recommended that you seek the advice of an immigration solicitor at an early stage.

To see how we can assist you with the immigration appeals procedure, please visit our website or contact us on 020 7237 3388 to arrange a consultation meeting with one of our legal experts.

Immigration Lawyers | Immigration & Visa Specialists | Monday to Friday 9am to 6pm | info@icslegal.com | 020 7237 3388

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