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.