UPPER TRIBUNAL IMMIGRATION APPEALS

A party who considers that the First-tier Tribunal made a legal error in deciding an immigration, asylum or human rights appeal may be able to appeal to the Upper Tribunal (Immigration and Asylum Chamber).

An Upper Tribunal appeal is not a second opportunity to argue the entire case simply because one party disagrees with the First-tier Tribunal’s conclusions. The proposed appeal must identify an error on a point of law, and permission to appeal is required.

Examples of potential errors of law include applying the wrong legal test, procedural unfairness, failing to consider material evidence, inadequate reasons and findings that are legally irrational or unsupported by the evidence.

Even where an error of law is identified, it must normally be capable of making a difference to the outcome. If the Upper Tribunal finds a material error and sets the First-tier Tribunal’s decision aside, it can either remake the decision itself or remit the case to the First-tier Tribunal for reconsideration.

Strict time limits apply at every stage.

1. What Is the Upper Tribunal (Immigration and Asylum Chamber)?

The Upper Tribunal (Immigration and Asylum Chamber) is a senior judicial tribunal. Among its functions, it determines appeals on points of law arising from decisions of the First-tier Tribunal (Immigration and Asylum Chamber). Its appellate jurisdiction should be distinguished from its separate jurisdiction to determine certain immigration Judicial Review claims.

In an ordinary Upper Tribunal immigration appeal, the central question is not whether the Upper Tribunal Judge would personally have reached a different conclusion from the First-tier Tribunal.

The questions are instead whether:

1. the First-tier Tribunal’s decision involved an error on a point of law;
2. any identified error was material;
3. the decision should be set aside; and
4. if it is set aside, whether the underlying appeal should be remade by the Upper Tribunal or sent back to the First-tier Tribunal.

Appeals can concern underlying cases involving:

• human rights;
• asylum and refugee protection;
• humanitarian protection;
• deportation;
• EU Settlement Scheme and other citizens’ rights matters;
• deprivation of British citizenship; and
• other decisions within the First-tier Tribunal’s immigration jurisdiction.

The underlying subject matter does not change the essential appellate principle: the Upper Tribunal is concerned with legal error in the First-tier Tribunal’s decision.

2. When Can You Appeal a First-tier Tribunal Decision?

Section 11 of the Tribunals, Courts and Enforcement Act 2007 provides a right of appeal to the Upper Tribunal on a point of law arising from a qualifying First-tier Tribunal decision.

Permission to appeal is required.

Either Party Can Seek Permission

It is not only an individual whose appeal was dismissed who can challenge a First-tier Tribunal decision.

Any party to the case can seek permission to appeal.

This means that:

• an appellant whose immigration appeal was dismissed may challenge the decision; and
• the Home Office may seek permission to appeal where the First-tier Tribunal allowed the appeal.

A person who has won before the First-tier Tribunal should therefore not assume immediately that the case is finally concluded. The Home Office has the same ability to identify an alleged error of law and seek permission to appeal.

Appeals Are Limited to Points of Law

The Upper Tribunal is not a general rehearing tribunal. A party must identify a legal error in the First-tier Tribunal’s reasoning or procedure.

It is not enough to argue:

• that another judge might have reached a different conclusion;
• that the party preferred different evidence;
• that the judge should have attached different weight to a witness; or
• that the outcome feels unfair.

A challenge to factual findings can amount to an error of law in appropriate circumstances, but the threshold is significantly higher than simply disagreeing with those findings.

Permission to Appeal Is Required

A party cannot normally proceed directly to a substantive Upper Tribunal appeal.

Permission must first be obtained from:

1. the First-tier Tribunal; or
2. if necessary, the Upper Tribunal itself.

The permission stage acts as a filter to determine whether there is an arguable point of law requiring consideration by the Upper Tribunal.

3. What Counts as an Error of Law in an Immigration Appeal?

There is no exhaustive list of errors of law. Whether a particular complaint amounts to legal error depends on the First-tier Tribunal’s decision, the evidence, the applicable legal framework and the circumstances of the hearing.

Common categories include the following.

Applying the Wrong Legal Test

A Tribunal may err by applying the wrong test or materially misunderstanding the correct one.

Examples might include:

• applying the wrong Article 8 proportionality test;
• misunderstanding the requirements of the Immigration Rules;
• using the wrong standard of proof in a protection case;
• misdirecting itself on internal relocation or state protection;
• misunderstanding the statutory deportation framework; or
• applying superseded legal authority.

The grounds for permission should identify the correct legal test and explain how the First-tier Tribunal departed from it.

Failing to Consider Material Evidence

A Tribunal is not required to mention every document or piece of evidence in its written reasons. However, failure to engage with evidence that was material to an important disputed issue may amount to an error of law.

The question is not merely whether a particular document is absent from the judgment. It is whether the reasons, read fairly as a whole, demonstrate that a significant piece of evidence or argument was overlooked in a way capable of affecting the decision.

Taking Account of an Irrelevant Matter

Legal error can also arise where the Tribunal relies materially on a consideration that should not legally have influenced the decision.

The grounds should explain both:

• why the matter was irrelevant; and
• why reliance on it mattered to the outcome.

Inadequate Reasons

A First-tier Tribunal judgment must explain sufficiently why the appeal has been allowed or dismissed.

Reasons do not have to respond individually to every argument. However, the parties should be able to understand why the important disputed issues were decided as they were.

An inadequacy-of-reasons challenge may therefore arise where, for example:

• an important conflict in the evidence is left unresolved;
• a decisive factual conclusion is unexplained;
• a central legal argument is not addressed; or
• the reasons are so unclear that the losing party cannot understand why they lost.

Procedural Unfairness

Procedural unfairness can amount to an error of law.

Examples may include:

• proceeding in a party’s absence without a fair opportunity to participate;
• failing to provide a party with material relied upon against them;
• preventing a party from addressing an important issue that arose at the hearing;
• serious interpretation failures;
• unfair treatment of a vulnerable witness; or
• deciding the case on a basis the parties had no reasonable opportunity to address.

The central question is whether the proceedings were fair.

Irrational or Perverse Findings

Tribunal judges are entitled to make factual findings and assess the weight of evidence.

The Upper Tribunal will not interfere merely because it might have evaluated the evidence differently. However, an error of law can arise where a material finding is irrational, perverse or not reasonably open to the First-tier Tribunal on the evidence before it. This is a demanding ground.

Mistake of Fact Giving Rise to Unfairness

In some circumstances a material mistake about an established fact can amount to an error of law, particularly where:

• the fact was objectively verifiable;
• the appellant or party was not responsible for the mistake;
• the mistake played a material part in the reasoning; and
• the resulting decision was unfair.

Not every factual mistake will satisfy that test.

4. Does the Error of Law Have to Be Material?

Yes, in practical terms an error will normally need to be material before the First-tier Tribunal’s decision should be set aside.

A Tribunal decision is not invalid merely because every sentence or aspect of its reasoning is imperfect. The question is whether the identified error was capable of affecting the result. For example, if the First-tier Tribunal misstated one part of the legal test but its other findings necessarily meant that the appeal would have failed in any event, the error may be immaterial.

By contrast, an error concerning a decisive issue may undermine the result.

When drafting grounds for permission to appeal, it is therefore important to explain:

1. what the error was;
2. where it appears in the decision;
3. what the correct legal approach should have been; and
4. why correcting the error could realistically have affected the outcome.

Grounds that identify an abstract legal mistake without addressing materiality may be insufficient.

5. How to Apply to the First-tier Tribunal for Permission to Appeal

The first application for permission must normally be made to the First-tier Tribunal itself.

The current form is IAFT-5. The application should identify the specific errors of law relied upon.

A good application for permission should not simply say that the First-tier Tribunal:

• was wrong;
• failed to believe the appellant;
• was unfair; or
• should have allowed the appeal.

It should explain the proposed error through the Tribunal’s actual reasoning.

Grounds for Permission to Appeal

Grounds should ordinarily:

• identify the paragraph or part of the decision challenged;
• state the alleged legal error;
• identify the relevant law where necessary;
• explain why the error is material; and
• state the result sought.

The grounds should be concise enough for the legal issues to be understood readily but detailed enough to show an arguable error of law.

What Documents Should Be Considered?

The First-tier Tribunal decision and reasons are central.

Depending on the ground, it may also be necessary to review:

• the appeal skeleton argument;
• witness statements;
• the hearing bundle;
• expert evidence;
• the Home Office review;
• Tribunal directions;
• the record of proceedings;
• counsel’s or solicitor’s notes of the hearing; and
• any relevant correspondence about procedural issues.

For example, a procedural unfairness ground may be impossible to assess properly by reading the written decision alone.

First-tier Tribunal Review

When considering an application for permission, the First-tier Tribunal also has statutory review powers in limited circumstances.

Where the Tribunal is satisfied that its decision involved an error of law, it may in an appropriate case review and set aside its own decision rather than simply grant permission for the case to proceed to the Upper Tribunal.

6. First-tier Tribunal Permission to Appeal Deadlines

Strict time limits apply.

The ordinary deadlines for asking the First-tier Tribunal for permission to appeal are:

Location	Ordinary Deadline
Applicant in the UK	14 days after the date on the written reasons
Applicant outside the UK	28 days after the date on the written reasons

The relevant decision notice and procedural rules should always be checked.

Late Applications

A late application can potentially be admitted, but an extension of time must be sought.

The application should explain:

• that it is late;
• how late it is;
• why the deadline was missed;
• when the party became able to act; and
• why an extension should be granted.

Evidence should be provided where the explanation depends on matters such as illness, hospitalisation, failure of service or another objectively verifiable circumstance.

The merits of the proposed appeal may be relevant to the overall assessment, but a strong ground of appeal should not be treated as automatic permission to disregard procedural deadlines.

The Tribunal expects procedural rigour.

7. What if the First-tier Tribunal Refuses Permission?

If the First-tier Tribunal refuses permission to appeal, the application can ordinarily be renewed directly to the Upper Tribunal. The same is true where the First-tier Tribunal grants permission only on limited grounds and the party wishes to pursue additional grounds that were refused.

Renewing the Application to the Upper Tribunal

The current form for a renewed application is IAUT1.

The application should ordinarily include:

• the First-tier Tribunal decision;
• the First-tier Tribunal’s permission decision or refusal to admit a late application;
• the proposed grounds of appeal;
• relevant supporting documents; and
• any explanation required for lateness.

The Upper Tribunal then decides whether permission should be granted.

Renewed Application Deadlines

Current ordinary deadlines are:

Location	Deadline for Renewed Application
Applicant in the UK	14 days after the First-tier Tribunal permission decision
Applicant outside the UK	1 month after the First-tier Tribunal permission decision

A late application must explain why it is late.

Limited Grants of Permission

If the First-tier Tribunal grants permission on some grounds but refuses others, the party may seek permission from the Upper Tribunal on the refused grounds. The existence of permission on one ground does not automatically permit the party to argue every other rejected ground.

Will There Be a Hearing About Permission?

Permission applications are often determined on the written material. When renewing permission directly to the Upper Tribunal, the applicant can indicate whether they wish the application to be considered at a hearing. The Upper Tribunal nevertheless decides the appropriate procedure and can determine the application without a hearing.

8. Is There a Fee for an Upper Tribunal Immigration Appeal?

No.

There is currently no Tribunal fee for:

• seeking permission to appeal from the First-tier Tribunal;
• renewing permission to the Upper Tribunal; or
• pursuing an immigration appeal in the Upper Tribunal once permission has been granted.

This does not mean that the process is cost-free.

A party may incur legal representation or expert costs, and a later appeal to a higher court can involve court fees and potential costs exposure.

9. What Happens After Permission to Appeal Is Granted?

Granting permission does not mean that the party has won the appeal. It means that the Upper Tribunal will consider whether the First-tier Tribunal decision contains the alleged error or errors of law.

The Tribunal may give directions dealing with:

• the issues to be determined;
• written submissions;
• bundles;
• new evidence;
• the respondent’s position;
• hearing arrangements; and
• whether any part of the appeal can be determined without a hearing.

Notice of Appeal

Depending on how permission has been granted and the directions made, the permission application may stand as the notice of appeal or a separate notice may be required under the Upper Tribunal Rules.

Any procedural notice accompanying the permission decision should therefore be followed carefully.

The Respondent’s Rule 24 Response

The respondent may file a written response under rule 24 of the Upper Tribunal Rules. Where the permission application stands as the notice of appeal, the response is ordinarily due within one month after the respondent is notified that permission has been granted, unless the Tribunal directs otherwise.

The rule 24 response should identify:

• whether the appeal is opposed;
• the grounds on which the respondent relies;
• any grounds on which the respondent was unsuccessful below but wishes to maintain; and
• whether a hearing is requested.

A rule 24 response can therefore:

• resist the error-of-law challenge;
• concede an error;
• accept one ground but resist another; or
• seek to uphold the First-tier Tribunal’s result for a different legal reason.

Reply to the Rule 24 Response

The appellant may, subject to directions, provide a written reply. In immigration and asylum cases the deadline is ordinarily one month after the Tribunal sends the response to the appellant, or five days before the hearing, whichever is earlier.

A reply should normally address matters genuinely arising from the response rather than repeat the original grounds at length.

10. Can You Submit New Evidence to the Upper Tribunal?

Potentially, but an Upper Tribunal appeal is not a general opportunity to rebuild the factual case with evidence that should have been produced before the First-tier Tribunal.

Rule 15 of the Upper Tribunal Rules gives the Tribunal broad powers concerning evidence.

In an immigration or asylum case, if a party wants the Upper Tribunal to consider evidence that was not before the First-tier Tribunal, they must give notice:

• identifying the nature of the evidence; and
• explaining why it was not submitted previously.

The Tribunal must also consider whether there has been unreasonable delay in producing it.

Evidence Relevant to the Error of Law

New evidence may occasionally be relevant to establishing what happened procedurally before the First-tier Tribunal.

For example, evidence might be required concerning:

• whether notice of a hearing was received;
• an interpretation problem;
• an unsuccessful attempt to file evidence;
• a medical emergency affecting attendance; or
• another alleged procedural unfairness.

Its relevance is then not necessarily to prove the underlying immigration case, but to establish whether the First-tier Tribunal process itself was legally flawed.

Evidence Relevant to Remaking

Different considerations arise if the Upper Tribunal has already found a material error of law and decides to remake the underlying appeal itself.

At that stage, further evidence may be required because the Upper Tribunal is determining the substantive appeal afresh to the extent necessary.

For example, circumstances may have changed considerably since the First-tier Tribunal hearing.

New Evidence Cannot Manufacture an Error Retrospectively

A First-tier Tribunal Judge cannot ordinarily be criticised for failing to consider evidence that was never put before them.

A party should therefore distinguish carefully between:

• evidence showing that the First-tier Tribunal made an error based on the material and procedure before it; and
• evidence that merely strengthens the underlying immigration case after the event.

The second category does not, by itself, establish an error of law.

11. The Upper Tribunal Error of Law Hearing

Once permission has been granted, the Upper Tribunal determines whether the First-tier Tribunal decision involved the making of a material error of law. This stage is often referred to as an error of law hearing.

What the Judge Must Decide

The Upper Tribunal may need to determine:

• whether the proposed ground identifies an error of law;
• whether the alleged error actually occurred;
• whether it was material;
• whether the First-tier Tribunal decision should be set aside;
• whether any factual findings should be preserved; and
• what should happen next.

Oral and Paper Determination

The Upper Tribunal can determine proceedings with or without a hearing, subject to the Tribunal Rules, directions and the requirements of fairness.

Some issues can be determined on written submissions. Others require an oral hearing, particularly where:

• procedural history is disputed;
• the legal issues require fuller argument;
• multiple grounds are pursued; or
• case management for a potential remaking is required.

Legal Submissions

An error-of-law hearing is principally concerned with legal argument.

The representative seeking to overturn the First-tier Tribunal decision will ordinarily address:

1. the relevant part of the decision;
2. the alleged error;
3. the governing legal principle;
4. materiality; and
5. the appropriate disposal.

The opposing party can explain why no error occurred, why any error was immaterial or why the decision should nevertheless stand.

12. What Happens if the Upper Tribunal Finds No Error of Law?

If the Upper Tribunal concludes that the First-tier Tribunal did not make a material error of law, the First-tier Tribunal decision remains in force.

This can occur even where:

• the Upper Tribunal would have expressed the reasons differently;
• another judge might have reached a different factual conclusion;
• the judgment contains an immaterial mistake; or
• some criticism of the reasoning is justified but does not undermine the result.

If the original appellant lost in the First-tier Tribunal, dismissal of the Upper Tribunal appeal means that the First-tier Tribunal’s dismissal remains effective.

If the Home Office brought the Upper Tribunal appeal against a First-tier Tribunal decision allowing an individual’s case, dismissal of the Home Office appeal means the First-tier Tribunal’s allowed decision continues to stand, subject to any further appeal.

13. What Happens if the Upper Tribunal Finds an Error of Law?

If the Upper Tribunal finds that the First-tier Tribunal decision involved an error on a point of law, it does not automatically follow that the decision must be set aside.

Section 12 of the Tribunals, Courts and Enforcement Act 2007 gives the Upper Tribunal a discretion as to whether to set the decision aside.

Where the error is material, the decision will commonly be set aside to the extent required.

Preserving Findings of Fact

Setting aside the decision does not necessarily mean that every factual finding disappears. The Upper Tribunal can preserve findings that are unaffected by the legal error. For example, where the First-tier Tribunal made several separate findings but only one part of its analysis was legally defective, unaffected findings may remain in place.

Conversely, where the identified error infects the entire factual assessment, there may be little or nothing capable of preservation. This can have a significant practical effect on the next stage. A remaking hearing limited by preserved findings may be much narrower than a complete rehearing of the original appeal.

14. Remaking or Remitting an Immigration Appeal

If the First-tier Tribunal decision is set aside, the Upper Tribunal must either:

• remake the decision itself; or
• remit the case to the First-tier Tribunal for reconsideration.

Remaking Is the Normal Starting Point

The relevant Practice Statements provide that the Upper Tribunal will ordinarily proceed to remake the decision itself where an error of law has been found.

That remains the normal approach even where some further fact-finding is required.

Remaking can occur:

• at the same hearing, where the case is ready;
• after further submissions; or
• at a later resumed hearing following directions for additional evidence.

When Will the Case Be Remitted to the First-tier Tribunal?

Remittal is more likely where:

1. the effect of the error was to deprive a party of a fair hearing or a proper opportunity to put their case before the First-tier Tribunal; or
2. the nature or extent of the necessary fact-finding makes remittal appropriate.

Examples can include a case in which:

• a party was unfairly prevented from participating;
• the entire credibility assessment needs to be conducted again;
• substantial oral evidence has never been properly considered; or
• extensive factual findings are required.

Does Remittal Mean Starting Again Completely?

Not necessarily. The Upper Tribunal can give directions about what happens on remittal and can preserve findings that were not affected by the error of law.

The First-tier Tribunal hearing on remittal may therefore range from:

• a relatively focused reconsideration of particular matters; to
• an effectively complete rehearing.

The Upper Tribunal’s disposal decision should be examined carefully.

15. How Long Does an Upper Tribunal Immigration Appeal Take?

There is no single overall processing time for Upper Tribunal immigration appeals.

The timetable depends on factors including:

• whether permission is granted by the First-tier Tribunal or must be renewed;
• whether the permission application is late;
• Tribunal listing capacity;
• whether the case requires an oral error-of-law hearing;
• the number and complexity of the grounds;
• whether new evidence applications arise;
• whether the case can be remade immediately;
• whether a separate remaking hearing is required; and
• whether the case is remitted.

Permission Stage

The Tribunal may determine permission on the papers. Where permission is refused by the First-tier Tribunal and renewed to the Upper Tribunal, there is an additional procedural stage before the substantive appeal can begin.

Error of Law Stage

After permission is granted, directions will be issued and the respondent may file a rule 24 response. The appeal is then listed or otherwise determined in accordance with the Tribunal’s directions.

Written Decision

Current HMCTS guidance states that parties will normally receive the Upper Tribunal’s written decision within 28 days. That is not a guaranteed statutory determination period, and some cases may take longer.

Remaking

Where the First-tier Tribunal decision is set aside, the final disposal of the underlying immigration appeal may require a further hearing. As a result, successfully establishing an error of law does not necessarily bring the overall case to an immediate end.

16. What Happens if You Win in the Upper Tribunal?

“Winning” in the Upper Tribunal can mean different things.

Permission Is Granted

Permission simply allows the legal challenge to proceed. It is not a finding that the First-tier Tribunal was wrong.

An Error of Law Is Established

If the Upper Tribunal finds a material error of law and sets aside the First-tier Tribunal decision, that is an important success, but it may not determine the underlying immigration appeal.

The Upper Tribunal must still decide whether to:

• remake the case; or
• remit it.

The Underlying Appeal Is Remade and Allowed

If the Upper Tribunal remakes the substantive immigration appeal and allows it, the position becomes similar to an allowed appeal at First-tier Tribunal level. The Home Office may nevertheless seek permission to appeal onward if the applicable test is met.

An allowed immigration appeal also does not always mean that the requested immigration permission is issued instantaneously. The Home Office must give effect to the Tribunal’s decision and may need to complete further administrative steps.

The Appeal Is Remitted

Where the case is remitted, the underlying immigration appeal remains to be determined again by the First-tier Tribunal.

The Upper Tribunal’s error-of-law decision may nevertheless narrow the issues or preserve findings that will bind the reconsideration.

17. What Happens if You Lose in the Upper Tribunal?

If the Upper Tribunal determines that the First-tier Tribunal made no material error of law, the First-tier Tribunal decision stands.

Alternatively, the Upper Tribunal may find an error, remake the underlying appeal and ultimately decide against the person who brought the original immigration appeal. The next question is whether an onward appeal to a higher court is available. This is not an automatic further stage. Permission is required, and where the Upper Tribunal was itself determining an appeal from the First-tier Tribunal, a more demanding second appeals test applies.

18. Can You Appeal an Upper Tribunal Decision to a Higher Court?

Potentially.

Section 13 of the Tribunals, Courts and Enforcement Act 2007 provides for an appeal on a point of law from qualifying Upper Tribunal decisions to the relevant appellate court.

The relevant higher court is:

• the Court of Appeal in England and Wales;
• the Court of Session in Scotland; or
• the Court of Appeal in Northern Ireland.

Permission is required.

The Second Appeals Test

Where the Upper Tribunal decision was itself made on an appeal from the First-tier Tribunal, onward permission is subject to the second appeals test.

This is deliberately more demanding than the ordinary test for permission from the First-tier Tribunal to the Upper Tribunal.

The proposed appeal must engage the applicable statutory and procedural requirement concerning:

• an important point of principle or practice; or
• some other compelling reason for the higher court to hear the appeal.

The applicable court rules may impose additional requirements concerning the prospects of success.

A party cannot therefore expect to proceed to the Court of Appeal merely by identifying another arguable disagreement about how the Upper Tribunal decided the case.

Permission Must First Be Sought From the Upper Tribunal

An application for permission to appeal onward should first be made to the Upper Tribunal. If the Upper Tribunal refuses permission, a further application can ordinarily be made to the relevant appellate court, subject to the applicable rules and deadlines.

19. Deadlines for Appealing From the Upper Tribunal

The deadline for asking the Upper Tribunal for permission to appeal onward depends on:

• whether the person is in or outside the UK; and
• how the Upper Tribunal decision was served.

Current HMCTS guidance gives the following ordinary periods:

Location and Method of Service	Deadline
In UK – decision sent by post	12 working days
In UK – decision sent electronically or personally	10 working days
Outside UK – decision sent by post	38 days
Outside UK – decision sent electronically or personally	10 days

Different periods can apply where the person is detained.

The notice accompanying the Upper Tribunal decision should always be checked.

If the Upper Tribunal Grants Permission

Once permission has been granted, current guidance gives the following deadlines for filing the onward appeal:

Jurisdiction	Deadline
Court of Appeal – England and Wales	28 days
Court of Session – Scotland	42 days
Court of Appeal – Northern Ireland	21 days

If the Upper Tribunal Refuses Permission

A party can ordinarily seek permission directly from the relevant appellate court.

Current public guidance gives the corresponding periods of:

• 28 days in England and Wales;
• 42 days in Scotland; and
• 21 days in Northern Ireland.

Court rules should be checked carefully because particular procedural circumstances can alter the applicable calculation.

20. What Happens if the Upper Tribunal Refuses Permission to Appeal?

Where the First-tier Tribunal refuses permission and the party renews their application to the Upper Tribunal, a refusal of permission by the Upper Tribunal will generally be final. The former route commonly known as a Cart Judicial Review is no longer available in ordinary immigration cases.

Section 11A Finality

Section 11A of the Tribunals, Courts and Enforcement Act 2007 provides that an Upper Tribunal decision refusing permission on a renewed application is final and ordinarily cannot be questioned through Judicial Review merely because the Upper Tribunal may have made a legal error.

This statutory restriction was introduced in 2022.

Exceptional Cases

Very narrow exceptions remain.

The statutory finality provision does not apply to certain fundamental questions, including whether:

• there was a valid application before the Upper Tribunal;
• the Upper Tribunal was properly constituted; or
• the Upper Tribunal acted in bad faith or in circumstances falling within the exceptional statutory natural-justice provision.

These exceptions are narrow and should not be understood as recreating the former Cart jurisdiction.

A person whose renewed permission application has been refused should therefore obtain specialist advice before assuming that another challenge is available.

21. Frequently Asked Questions: Upper Tribunal Immigration Appeals

Can I appeal a First-tier Tribunal immigration decision?

Potentially. You must identify an arguable error on a point of law and obtain permission to appeal. The Upper Tribunal does not simply rehear the case because you disagree with the First-tier Tribunal’s conclusions.

Can the Home Office appeal if I won in the First-tier Tribunal?

Yes. Any party to the First-tier Tribunal case can seek permission to appeal on a point of law. A person whose appeal was allowed should therefore check whether the Home Office seeks permission before assuming that the decision is final.

What is an error of law?

An error of law can include applying the wrong legal test, procedural unfairness, failure to address material evidence, inadequate reasons or an irrational finding. The precise assessment depends on the Tribunal’s decision and the case as a whole.

Is disagreeing with the First-tier Tribunal Judge enough to appeal?

No. The Upper Tribunal will not interfere simply because another judge might have reached a different factual conclusion. The challenge must identify a legal error rather than merely ask for the evidence to be re-weighed.

What is a material error of law?

A material error is one capable of affecting the outcome. If correcting the identified mistake could not realistically have changed the First-tier Tribunal’s decision, the Upper Tribunal may leave the decision in place.

How long do I have to seek permission to appeal?

The ordinary deadline for applying first to the First-tier Tribunal is 14 days after the written reasons if you are in the UK and 28 days if you are outside the UK. Different deadlines apply when renewing a refused application to the Upper Tribunal.

What happens if the First-tier Tribunal refuses permission?

You can ordinarily renew the permission application directly to the Upper Tribunal using form IAUT1. The current usual deadline is 14 days if you are in the UK and one month if you are outside the UK.

Is there a fee for an Upper Tribunal immigration appeal?

No. There is currently no Tribunal fee for seeking permission or pursuing an immigration appeal before the Upper Tribunal.

Can I submit new evidence in the Upper Tribunal?

Potentially, but special rules apply. If the evidence was not before the First-tier Tribunal, you must identify it and explain why it was not produced earlier. New evidence does not by itself demonstrate that the First-tier Tribunal made a legal error.

What happens at an Upper Tribunal error of law hearing?

The parties make legal submissions about whether the First-tier Tribunal made a material error of law. If an error is established, the Upper Tribunal then considers whether the decision should be set aside and how the underlying appeal should be determined.

Will my case be sent back to the First-tier Tribunal if I win?

Not necessarily. The normal starting point is that the Upper Tribunal remakes the decision itself. Remittal is more likely where there was serious procedural unfairness or extensive fact-finding is required.

Can I appeal from the Upper Tribunal to the Court of Appeal?

Potentially, but permission is required and a more demanding second appeals test applies where the Upper Tribunal was itself hearing an appeal from the First-tier Tribunal.

Can I judicially review an Upper Tribunal refusal of permission?

Generally not. Ordinary Cart Judicial Review was abolished in 2022. Section 11A makes a refusal of renewed permission by the Upper Tribunal final, subject only to very narrow statutory exceptions.