How to Appeal a UK Visa or Immigration Decision
In Part 1 of this comprehensive two-part guide to appealing against a Home Office visa or immigration refusal decision, we look at which immigration decisions have a right of appeal, what constitutes an appealable human rights claim and the circumstances in which the Home Office may prevent an individual from appealing a Home Office refusal decision.
We also look at the online immigration appeal process, time limits for lodging an appeal to the First-tier Tribunal (Immigration and Asylum Chamber), the circumstances in which it may be possible to appeal out–of-time and also how to seek an expedited immigration appeal hearing.
Finally, we look at immigration appeal fees, immigration status during a pending immigration appeal, the impact of leaving the UK while an immigration appeal is pending and the possibility of entering the UK during a pending immigration appeal.
In Part 2, we will look at the general approach of the First-tier Tribunal and Upper Tribunal to immigration appeals based on human rights, highlighting some of the most important case-law that appellants should be aware of, as well as the scope for raising new matters on appeal.
We will also examine various practical issues that need to be considered when presenting an immigration appeal, such as the Immigration Tribunal’s active case management of appeals, the possibility of seeking anonymity in immigration appeal proceedings, special measures, video links in immigration appeal hearings, immigration appeal processing times and what happens after an immigration appeal has been determined.
To discuss your immigration appeal with one of our immigration appeal barristers, contact our UK immigration appeal lawyers on 0203 617 9173 or complete our enquiry form below.
What UK Visa and Immigration Decisions Can You Appeal Against?
You can appeal to the First-tier Tribunal (Immigration and Asylum Chamber) against a decision of the Home Office to:
- refuse a protection claim;
- revoke protection status;
- refuse a human rights claim (this would include decisions to refuse to extend a spouse visa or refuse an adult dependent relative visa);
- refuse to issue a residence document, or remove a person under the Immigration (European Economic Area) Regulations 2016 (where saving provisions apply);
- deprive a person of their British citizenship;
- refuse leave to enter or remain, or refuse indefinite leave to enter or remain where limited leave is granted following an application made under the EU Settlement Scheme;
- vary the length or conditions of leave to enter or remain, cancel leave to enter or remain or revoke indefinite leave to enter or remain granted under the EU Settlement Scheme;
- refuse, cancel or revoke entry clearance under the EU Settlement Scheme Family Permit;
- refuse leave to enter where there is entry clearance under the EU Settlement Scheme Family Permit;
- cancel or vary leave to enter acquired by virtue of having entered the UK with entry clearance under the EU Settlement Scheme Family Permit;
- make a deportation order in respect of a person who has leave to enter or remain under the EU Settlement Scheme or entry clearance under Appendix EU: Family Permit;
- refuse or revoke a frontier worker permit, or remove or deport a frontier worker;
- refuse or revoke leave to enter or remain as an S2 healthcare visitor, or remove or deport an S2 healthcare visitor.
If you do not have a right to appeal because the decision you wish to challenge is not an appealable immigration decision, you may still be able to ask the Home Office for an Administrative Review. Only certain types of application carry a right of Administrative Review if refused. Our immigration appeal lawyers in London can advise you further.
It is sometimes possible to appeal, even where the Home Office asserts that you do not have a right of appeal, but you will need to argue jurisdiction before the Tribunal. Examples may include a returning resident visa where there are strong family ties. If you do not have a right of appeal then you may wish to consult our immigration appeal lawyers in order to discuss the options available.
What Is an Appealable Human Rights Claim?
The definition of “human rights claim” is in s.113 of the Nationality Immigration and Asylum Act 2002:
“human rights claim” means a claim made by a person to the Secretary of State at a place designated by the Secretary of State that to remove the person from or require him to leave the United Kingdom or to refuse him entry into the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to Convention).
Some applications made under the Immigration Rules are considered human rights applications and therefore attract a right of appeal if refused. Home Office guidance recognises the following applications as generally involving human rights claims:
- Long Residence applications;
- Appendix FM family member applications (this would include decisions to refuse entry or to extend on the basis of a spouse visa, civil partner visa or unmarried partner visa);
- Part 8 family member applications;
- Private Life applications;
- Partner or child of a member of HM Forces applications.
Some applications for leave to remain outside the Immigration Rules may also be treated as a human right claim with a right of appeal against a refusal decision.
Home Guidance guidance on leave to remain outside the rules on human rights grounds reads:
“Applications for leave to remain outside the rules on human rights grounds are made on forms FLR(O) for further leave to remain (LTR) and SET(O) for indefinite leave to remain (ILR). It is important to note that these forms are only to be used for human rights applications where there is no specific form available……….
These forms are multi-purpose and not all applications made on these forms are human rights claims. The FLR(O) and SET(O) forms require the applicant to tick a box indicating which application they are using the form for. Only one box may be ticked.
It is only where the applicant ticks the box ‘Other purposes or reasons not covered by other application forms’ that it should be treated as a human rights claim. Though even if this box is ticked, the application may not be a human rights claim.”
It is a matter for the Immigration Tribunal to determine whether it has jurisdiction, and the Home Office’s view on this is not determinative. In considering whether a human rights claim has been made, the Home Office will consider whether the application explicitly says it involves a human rights claim, whether it raises matters that may amount to a human rights claim, and whether the matters raised are capable of engaging human rights.
Home Office guidance reads:
“You should ask yourself whether, having regard to the human rights protected by the European Convention on Human Rights (ECHR), is it obvious that the application relates to one of those rights. If it is obvious that the application relates to one of these rights, a human rights claim may have been made”.
Can the Home Office Limit a Right of Appeal?
Clearly unfounded immigration claims
A protection or human rights claim can be certified by the Home Office as ‘clearly unfounded’ under section 94 of the Nationality, Immigration and Asylum Act 2002. Where a protection or human rights claim is certified as ‘clearly unfounded’, it is not possible to appeal against the refusal decision.
Before certifying a protection or human rights claim as clearly unfounded, the Home Office should, applying its own guidance, consider:
- the factual substance and detail of the claim;
- how it stands with the known background data;
- in the round whether it is capable of belief;
- whether some part is capable of belief;
- whether, if eventually believed in whole or part, it is capable of meeting the requirements of the Refugee Convention.
Applying the decisions of the House of Lords in R v SSHD Ex p Thangarasa and R v SSHD, Ex p Yogathas [2002] UKHL 36 and Court of Appeal in ZL & VL v SSHD [2003] EWCA Civ 25 a manifestly unfounded claim is a claim which is so clearly without substance that it is bound to fail. A claim can be manifestly unfounded even if it takes more than a cursory look at the evidence to come to a view that there is nothing of substance in it.
A clearly unfounded certificate can be challenged by way of Judicial Review. The merits of a challenge will depend on the evidence submitted with the original application and the basis for any refusal.
Our immigration appeal lawyers in London can advise on the merits of applying for Judicial Review of a clearly unfounded certificate.
Further submissions not amounting to a fresh claim
Where further submissions are rejected as not amounting to a fresh claim under paragraph 353 of the Immigration Rules, there is no human rights or protection claim to certify and so there is no right of appeal.
Submitting an Appeal after a Home Office Refusal
Online Immigration Appeal Process
MyHMCTS is an online case management system for legal professionals which is managed by HM Courts and Tribunals Services (HMCTS). The system allows legal professionals to submit, pay for and manage online case applications. It applies in various areas including immigration and asylum appeals.
The online immigration appeals system can only be used on behalf of appellants who are not in detention and not appealing an EU Settlement Scheme decision.
It is only possible to select the type of immigration appeal that best fits the case. Evidence and detailed legal argument will follow in accordance with directions.
Once an immigration appeal has been submitted, immigration appeal lawyers are able to build their client’s case including by providing an ‘appeal skeleton argument’ (ASA) and uploading supporting evidence,
What is an Appeal Skeleton Argument (ASA)?
An Appeal Skeleton Argument (ASA) is a brief summary of the case, a schedule of issues and the reasons why the appellant disagrees with the decision.
The Appeal Skeleton Argument (ASA) is uploaded along with documents in support of the appeal.
You may wish to seek professional legal advice and assistance from an immigration appeal lawyer in relation to the drafting of an Appeal Skeleton Argument.
Home Office Review of Immigration Refusal Decision
If all in the correct format and meeting the requirements, the Immigration Tribunal will then forward the ASA and bundle of supporting documents to the Home Office. The Home Office will then carry out a review. The review period will depend on the circumstances of the case, but the Tribunal will issue directions. The review is an important way to narrow the issues and on many occasions reach agreement as to the way forward, including by way of withdrawal with a view to grant.
As leading immigration appeal lawyers, it is our experience that a structured framework can lead to a meaningful Home Office review and potentially avoid any need for the matter to proceed to an immigration appeal hearing. It is extremely important that the reviewer is provided with all necessary information and that the arguments are clearly and succinctly advanced.
Further Evidence in Immigration Appeals
Under the online immigration appeals system it is possible to provide additional evidence after submitting a case, for example where additional information is provided by the client or in response to a Home Office review where further issues might need to be addressed.
Immigration Appeal Hearing at the First-tier Tribunal – If Necessary
If there is to be an immigration appeal hearing, the legal representatives will confirm any adjustments needed, for example an interpreter. All documents relating to the hearing will be combined into a ‘digital bundle’. This can be accessed via MyHMCTS.
You will receive a notice of hearing, containing the date and location of your immigration appeal hearing before an Immigration Judge of the First-tier Tribunal (Immigration and Asylum Chamber). You may be asked to attend the tribunal building in person, or you may be asked to attend remotely via video link or phone. Either way, your immigration appeal lawyer will accompany you on the day of the hearing, ask relevant questions of any witnesses and make legal submissions to the Immigration Judge as to why your appeal should be allowed.
Time Limits for Appealing to the First-tier Tribunal (Immigration and Asylum Chamber)
If you receive an immigration refusal decision, the first consideration, aside from whether there is a right of appeal, is the time limit to lodge any appeal to the First-tier Tribunal.
There is a distinction between immigration appeals lodged within the UK and those lodged outside the UK.
If you are lodging an immigration appeal from within the UK you must lodge your immigration appeal within 14 days of the decision being sent to you. This is despite a refusal referring to the date it is deemed to be served; we often see refusals that refer inadvertently to the old procedure rules.
If you applied for entry clearance and are therefore appealing from outside the UK, the deadline for lodging an immigration appeal is 28 days from receipt of the decision. It may therefore be important to keep evidence of how and when your immigration decision was received (for example, by email). It is important to note that appeals against the refusal of entry clearance applications or any applications made outside the UK can only be brought from outside the UK. However, if brought within the UK, there is no restriction on where the appeal may be continued from. For instance, where a person receives a refusal of entry clearance and subsequently enters the UK as a visitor, they will be unable to bring an immigration appeal against that refusal from within the UK and would have to leave to bring the appeal. Conversely, there is nothing preventing an individual from continuing their appeal from within the UK, after the appeal has been brought and the appellant has been admitted to the UK on a different basis (for example, as a visitor).
Time limits to appeal against decisions relating to the EU Settlement Scheme, where an administrative review application has been made, can, in some circumstances, begin from the date that the decision on administrative review is received.
It is important to remember that lodging the immigration appeal is calculated in calendar days, not business days. It is only when the last day for appealing falls on a day other than a working day, an appeal is in time if lodged the next working day. Working day means any day except a Saturday or Sunday, Christmas Day, Good Friday or a bank holiday, and 27th to 31st December inclusive.
Out-Of-Time Immigration Appeals
If you do need to appeal an immigration decision outside of the deadline, it is possible to do so, but the notice of appeal will need to include an application for an extension of time and the reason why the notice of appeal was not provided in time.
In R (on the application of Onowu) v First-tier Tribunal (Immigration and Asylum Chamber) (extension of time for appealing: principles) IJR [2016] UKUT 00185 (IAC), the Upper Tribunal confirmed that, in considering whether to exercise discretion to extend time for appealing an immigration decision, the Tribunal should apply the approach in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537; Denton v White [2014] EWCA Civ 906 and R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1663. The following would need to be considered:
- Whether the delay is serious or significant, or not;
- Whether there is a good reason for the delay;
- All the circumstances of the case, to enable the Tribunal to deal justly with the application for extension of time.
Further, in R (Hysaj), it was held that:
- There is no merit in constructing a special rule for public authorities; they have a responsibility to adhere to the court’s rules even if their resources are ‘stretched to breaking point’ [42];
- A solicitor or public body having too much work will rarely be a good reason for failing to comply with the rules [42];
- Particular care needs to be taken in appeals concerning claims for asylum and humanitarian protection to ensure that appeals are not frustrated by a failure by a party’s legal representatives to comply with time limits. The nature of the proceedings and identification of responsibility for a failure are matters to be considered at the third stage of the process [42];
- The inability to pay for legal representation cannot be regarded as providing a good reason for delay [43];
- In most cases the merits of the appeal will have little to do with whether it is appropriate to grant an extension of time. Only in those cases where the court can see without much investigation that the grounds of appeal are either very strong or very weak will the merits have a significant part to play when it comes to balancing the various factors that have to be considered at stage three of the process [46].
Expedited Immigration Appeals
It is possible to request an immigration appeal to be listed for a hearing or considered quicker than usual, if there is a good reason for that, for example if an appellant or sponsor is very ill, or there is risk of destitution.
An expedition request should be made setting out the reasons for which the appeal should be expedited. You will need to include evidence to demonstrate those reasons. The application and evidence will be reviewed and a decision will be made on whether the appeal should be expedited or not.
To discuss your immigration appeal with one of our immigration appeal barristers, contact our UK immigration appeal lawyers on 0203 617 9173 or complete our enquiry form below.
Immigration Appeal Fees
Where an appeal fee is applicable, for a paper immigration appeal it will cost £80 and for an oral hearing, £140. You will want to consider whether you wish for a Judge to hear evidence from you and other witnesses, as well as oral arguments from your representative.
It might be possible to get help with court fees and there are exemptions. There is no applicable fee if an appeal relates to a decision to deprive British citizenship, a decision to remove an EEA national pursuant to the EEA Regulations, the revocation of protection status or where an appellant is detained and has received a decision by the Detained Asylum Casework team (DAC or DIA) at the Home Office.
Further, there is no fee if you are provided with Asylum Support Funding, are in receipt of Legal Aid or you are the person (or someone with parental responsibility for the person) for whose benefit services or accommodation are provided by a local authority in certain circumstances.
Finally, there is no immigration appeal fee if the Home Office has waived your fee for the application that the refusal notice you are appealing relates to, in certain circumstances.
If you receive certain benefits or have limited savings or are on a low income you may be eligible to apply for help with your court fees.
Please note that a refusal letter may contain more than one decision. If so, a fee may be due notwithstanding that one of the decisions does not require a fee to be appealed. This is usually the case, for instance, where there is a decision to deport an EEA national under the EEA regulations and a refusal of a human rights claim included in one decision letter.
If your immigration appeal is allowed you can ask the Judge to consider a fee award or the Judge may consider this of their own volition. This will depend on whether the evidence and points have been raised properly and adequately thus giving the Respondent the opportunity to consider all matters properly.
Immigration Status During a Pending Immigration Appeal
If your leave to enter or remain is extended pursuant to section 3C Immigration Act 1971, examined in an earlier article, a refusal does not necessarily bring that leave to an end. Appealing in time, in those circumstances, results in the continuation of leave extended by section 3C. If the deadline to appeal has passed, leave extended by section 3C will come to an end. As such, it is very important to check and ensure deadlines are met. Section 3C will only revive if an extension of time to bring an out-of-time appeal is granted by the Tribunal, but only from the point permission was granted.
Fresh Application or Immigration Appeal?
Depending on the basis for the refusal, it may be possible to consider making a further application as well as appealing, or as an alternative. Whether this is possible will depend on the individual circumstances and whether there is extant leave or other options available. You may wish to seek specialist advice in relation to your position.
It is not possible to make a further application if your application has been refused, an appeal (or administrative review application) has been brought against that refusal and your leave is extended by virtue of section 3C. However, the Home Office guidance allows for the making of a protection or human rights claim in these circumstances.
What if I Leave the UK Whilst my Immigration Appeal is Pending?
If you wish to leave the UK whilst your immigration appeal, brought within the UK, is pending, you will need to consider your position carefully as this will result in the appeal being treated as abandoned..
If your leave is extended by virtue of section 3C of the 1971 Act, leaving the UK will also bring that leave to an end.
You may wish to consult an experienced immigration appeal lawyer before deciding to leave the UK while an appeal is pending.
Can I Enter the UK Whilst my Immigration Appeal is Pending?
Where an individual brings an appeal against a refusal of entry clearance from outside the UK, there is nothing preventing them from continuing the appeal from within the UK, for instance in order to give evidence at their appeal. An appellant might consider applying for a visit visa for that purpose or, if a non-visa national, applying for leave to enter as a visitor at the border.
However, given the recent refusal of entry clearance under appeal, the intention of the individual in applying to enter as a visitor may be questioned and the matter would have to be addressed accordingly.
Our immigration appeal lawyers can advise on the possibility of entering the UK as a visitor while an immigration appeal is pending.
Contact our Immigration Appeal Barristers
For further information on how to appeal a UKVI refusal decision to the Immigration Tribunal, please refer to Part 2 of our two-part guide to appealing against a Home Office visa or immigration refusal decision.
For expert advice and assistance in relation to a visa or immigration appeal, contact our immigration appeal lawyers in London on 0203 617 9173 or via the enquiry form below.
This article was co-written by Alexandra Pease and Alex Papasotiriou.
