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Immigration Tribunal Appeals: A Practical Guide (1)

We recently examined immigration appeals in the context of the new digital MyHMCTS system and in the context of the Covid-19 Pandemic. This is the first of four posts that considers what happens if your visa or immigration application is refused and you wish to appeal the refusal decision.

The factors and considerations below cannot be considered an exhaustive list. The approach to an immigration appeal will depend on the individual facts and circumstances. There are many practical considerations. You may need to seek specialist legal advice as the presentation of an immigration appeal will be different depending on the issues and available evidence. 

What Immigration Decisions Can You Appeal Against?

You can appeal to the Tribunal if a decision is made 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.

In some instances, usually where there is no right of appeal, you may have a right of administrative review. It is sometimes possible to appeal, even where the Home Office asserts you do not have a right to do so, but you will need to argue jurisdiction before the Tribunal.  Examples may include a returning resident visa where there are strong family ties. 

What May Constitute a 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 will therefore attract a right of appeal if refused. Rights of appeal Version 10 Guidance on when there is a right of appeal against decisions in immigration cases, including mechanisms to prevent repeat rights of appeal and prevent delay from appeals against unfounded claims published on 18 December 2020 recognises generally as human rights claims applications made under:

  • Paragraph 276B (long residence) 
  • Paragraphs 276ADE(1) or 276DE (private life) 
  • Paragraphs 276U and 276AA (partner or child of a member of HM Forces) 
  • Paragraphs 276AD and 276AG (partner or child of a member of HM Forces), where:

o the sponsor is a foreign or Commonwealth member of HM Forces and has at least 4 years’ reckonable service in HM Forces at the date of application 

  • Part 8 of these Rules (family members) where: 

o the sponsor is present and settled in the UK or has refugee or humanitarian protection in the UK, not paragraphs 319AA to 319J (points-based system (PBS) dependents), paragraphs 284, 287, 295D or 295G (sponsor granted settlement as a PBS Migrant) 

  • Part 11 (asylum) 
  • Part 4 or Part 7 of Appendix Armed Forces (partner or child of a member of HM Forces) where: 

o the sponsor is a British Citizen or has at least 4 years’ reckonable service in HM Forces at the date of application 

  • Appendix FM (family members), not: section BPILR (bereavement) or section DVILR (domestic violence) 

With reference to applications made using form FLR(O) and SET(O) the guidance 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.”

Refused applications made on the basis of domestic violence or bereavement do not necessarily result in a right of appeal, as they are not considered by the Home Office to be human rights claims in and of themselves. However, it may be possible to advance human rights arguments within those applications and argue to the Tribunal, if not recognised by the Home Office, that there is a right of appeal.  We examined this in an earlier blog  post to our Knowledge Centre.  It is a matter for the 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.

The 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”.

The guidance continues:

“Where a person has extant leave on a human rights basis and is seeking leave to remain of a different duration on the basis that the grant of limited leave is itself a breach of their human rights, that application is not a human rights claim. The rationale for this is that the second application (for example, for indefinite leave to remain) is in reality, an upgrade application rather than a human rights claim. The applicant is merely seeking a more generous form of leave than that which they have already been granted. 

The refusal of an application seeking a more generous form of immigration leave does not constitute the refusal of a human rights claim. That claim has been recognised and leave granted. The avenue for challenging a refusal of an upgrade application is judicial review. 

For example, where an applicant has leave to remain as a partner and makes an application for indefinite leave to remain which is refused there is no right of appeal against that refusal”.

The above is simply the Home Office’s position, and the courts have established that Home Office guidance is not an aide to statutory interpretation. However, if a person has extant leave on the basis of human rights and received a refusal, then that person would not be required to leave the UK as set out in s.113 of the 2002 Act. As such, it is important to consider in advance matters such as the timing of the application or the existence of a right of appeal against refusal.

Protection and Human Rights Claims – Certified As Clearly Unfounded

A protection or human rights claim can be certified as ‘clearly unfounded’ under section 94 of the Nationality, Immigration and Asylum Act 2002.  

This restricts an appeal right from within the UK, and means an individual can only bring an appeal once they have left the UK. Further, if an appeal that has been brought within the UK and the Secretary of State certifies the claim to which the appeal relates under section 94, the appeal must be continued from outside the UK. This is often referred to as a non-suspensive appeal. 

This is different to the position where further submissions may be rejected as not amounting to a fresh claim under paragraph 353 of the Immigration Rules. In that case there is no human rights or protection claim to certify and there is no right of appeal whatsoever.

A 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.  You may wish to consider seeking advice in this regard. 

The cases of R v Secretary of State For The Home Department Ex p Thangarasa and R v Secretary of State for the Home Department, Ex p Yogathas [2002] UKHL 36 and ZL & VL v Secretary of State for the Home Department and Lord Chancellor’s Department [2003] EWCA Civ 25 confirm that 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.

The Home Office Certification of protection and human rights claims under section 94 of the Nationality, Immigration and Asylum Act 2002 (clearly unfounded claims), Version 4.0 published on 12 February 2019 sets out the consideration for a caseworker: 

  • 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

If a claim is certified, and you leave the UK, you will have 28 days from departure to lodge the appeal. The time that has lapsed since the decision was made is not a relevant consideration and it is therefore important to keep and provide evidence of the date of your departure from the UK.

We will set out further legal considerations such as time limits for appealing and other practical matters in Part Two. 

Contact our Immigration Appeal Barristers

For expert advice and assistance in relation to an immigration appeal please contact our immigration barristers in London on 0203 617 9173 or via the enquiry form below.

This article was co-written by Alexandra Pease and Alex Papasotiriou.

SEE HOW OUR IMMIGRATION BARRISTERS CAN HELP YOU

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