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Immigration Tribunal Appeals: A Practical Guide (2)

We recently examined immigration appeals in the context of the new digital MyHMCTS system and in the context of the Covid-19 Pandemic. We considered what immigration decisions you may appeal against in Part One, what is a human rights claim and claims certified as clearly unfounded.

This is the second of four posts to our Knowledge Centre that considers what happens if you receive a visa or immigration refusal decision and are planning to appeal.

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.

In this post we examine some of the practical considerations when appealing to the Immigration and Asylum Chamber of the First-tier Tribunal.

Time Limits – Lodging an Immigration Appeal at the First-tier Tribunal

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.

We consider below the limits for appealing where an immigration decision is certified and an Appellant decides to leave the UK.  

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 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:

  1. Whether the delay is serious or significant, or not;
  2. Whether there is a good reason for the delay;
  3. 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].

Urgent – Expedited Immigration Appeals

It is possible to request for 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.

Oral or Paper Immigration Appeal Hearing?

Where a 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.

Section 3C Immigration Act 1971 and Immigration Appeals

If your leave to enter or remain is extended pursuant to section 3C Immigration Act 1971, examined in an earlier article available on our Knowledge Centre, 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 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 those circumstances.

What if I Leave the UK Whilst my Immigration Appeal is Pending?

If you decide or wish to leave the UK whilst your immigration appeal, brought within the UK, is pending, you will need to consider your position as this will result in the appeal being treated as abandoned, unless it is certified under section 94 or 94B of the 2002 Act. 

If your leave is extended by virtue of section 3C of the 1971 Act, leaving the UK will also bring that to an end.

Can I Enter the UK Whilst my Immigration Appeal is Pending?

As mentioned above, 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.

We will set out further legal considerations and the starting point for appeals in Part Three. 

Contact our Immigration Appeal Barristers

For expert advice and assistance in relation to an immigration appeal please contact our immigration appeal 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

To arrange an initial consultation meeting, call our immigration barristers on 0203 617 9173 or fill out the form below.

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