Immigration Appeals

Introduction

Applicants in the UK have a very limited right to appeal. Only applicants in a specific category are provided with a right of appeal. There is one right of appeal against a limited number of decisions made by or on behalf of the Home Secretary. There are also limited rights given to an immigration applicant to appeal in the United Kingdom

Right of Appeal

The categories under which a right of appeal is given to an applicant to appeal within the United Kingdom are the following:

  • On refusal of a protection claim; or
  • Refusal of a Human Right claim; or
  • Revocation of protection status

In certain cases where there is no right to appeal given to an applicant, such applicant may be entitled to an administrative review of the refusal of his/her application.

Appeal in Protection Claims

(please refer to chapter on Asylum and Refugee)

Protection claims are claims which are made under asylum or humanitarian protections. Such a person upon the grant of protection holds either refugee or protection status. 

Appeal in Human Rights Claims

These include the applications which are made under the following categories

  • Long Residence
  • Private life
  • Asylum under Part 11
  • Family members under Appendix FM, but it but does not include bereavement and domestic violence cases

European Union Applicants

European Union Citizens enjoy the right of appeal in the case of a refusal by the Home Office to issue an EEA family permit and a few other EEA decisions under reg 26 of the 1 (EEA)

Deprivation of Citizenship

A person who is deprived of citizenship, has the right to appeal against the decision of the Secretary of State.

Grounds of Appeal

The appeal can be made on the following grounds:

  • The removal of the applicant from the UK will breach the UK’s obligation under the refugee convention
  • The removal of the applicant from the UK will breach the UK’s obligation in relation to a person eligible for a grant of humanitarian protection
  • The removal of the applicant from the UK will be unlawful under section 6 of the Human Rights Act 1998

Notice of Appealable Decision

The decision maker must provide a written notice to a person of any immigration decision taken in respect of him which is appealable

The notice normally includes a statement which clearly states the such person’s right of appeal, where that appeal can be lodged (in the UK or outside the UK), the grounds of appeal and other facilities which are available to such person for advice and assistance. The notice also includes the time limit within which an appeal application can be made and the address of the place to send or lodge the appeal.

Appeals System

The First Tier Tribunal (Immigration and Asylum Chamber)

The appeal can be made at the First Tier Tribunal, there are various appeal centres across the UK.

  • The appeal must be made on the appropriate prescribed form.
  • This is a complex area of law and it is advisable to involve experienced lawyers who must be familiar with Immigration and Asylum Chamber’s practice directions.
  • The process may start with an initial case management hearing

Hearing

At the actual hearing the court will decide whether to uphold (agree) the original decision of the Home Office. Where the decision is made against the applicant and judge agreed with the Home Office’s decision an applicant may be allowed to appeal further.

Upper Tribunal (Asylum and Immigration Chamber)

  • An appeal to the Upper Tribunal can only be made on the point of law.
  • Permission is required from the First Tier Tribunal to make a further appeal against their decision in the Upper Tribunal
  • An applicant can seek to appeal against the decision of the Upper Tribunal
  • However, the applicant must obtain permission to make an appeal from the Upper Tribunal
  • Where such permission is refused by either the First Tier Tribunal or the Upper Tier Tribunal, an applicant can go for a judicial review (Please refer to the chapter on Judicial review)

Appeals to Court of Appeal

Appeal against the decision of the Upper Tribunal can be made to the Court of Appeal. The Court of Appeal has the power to give any decision

Pending and Abandoning the Appeals

  • An appeal ceases to be pending where it is abandoned.
  • An appeal will be treated as abandoned where the applicant may have left the UK, been granted leave to remain or leave to enter the UK or deportation orders have been made or issued against him
  • An appeal will continue to be pending where a further appeal is made and until the decision of such appeal is concluded
  • The claimant may receive removal or deportation orders, however, whilst a person’s claim for asylum is pending he may not be removed from or required to leave the UK.

National Security and Appeals

A claimant who will not be permitted or allowed to make an appeal where the Secretary of State certifies that the original decision is based

  • In the interest of national security
  • In the relationship between the UK and another country
  • Or on public grounds

Where a person is subject to deportation on the grounds of national security, he can make an out of country appeal or he is allowed to lodge an appeal in the UK on human rights ground only.

EEA Nationals

In the case of European Union Nationals, they have a right to appeal against the decision of the Home Office, which related to admission in the UK, residence and withdrawal of certain documentation. Appeals will be conducted at the Immigration and Asylum Chamber (First Tier Tribunal) 

Frivolous, Unfound Human Rights or Asylum Claims

Where a person makes a Frivolous claim for asylum or on unfound Human Rights such person is not permitted to appeal against the decision of the Home Office.

Deprivation of Citizenship

Where a person is deprived of citizenship or receives orders which deprive him/her of their British Citizenship they have a right to appeal against the decision of the Secretary of State.

Administrative Review

Certain applicants are allowed administrative review instead of an appeal. An administrative review is a procedure where a person whose application is refused can apply to the Home Office for a review of the decision.

  • The review must be applied within 14 days in the case that the applicant has been in the UK since the original decision was made
  • The time period is 7 days where an applicant is in immigration detention
  • Where the request is against a decision which has been made overseas the time period is 28 days
  • The application can be filed online or by using the prescribed form
  • Only one review can be requested
  • It is usually completed within 28 days from the day the review is received by the Home Office
  • The Home Office’s Case Worker, Immigration Officer, or Entry Clearance Officer will carry out the review
  • The person who will review the case will not be the same person who made the original decision. It will be a different person
  • The reviewer will look into the claim made under administrative review and will look for any error of law and may request further information from applicant
  • The Home Office or reviewer has the authority and power to change the decision or stick with the original decision

Permitted categories for Administrative Review

  • In Country Tier 4 Applicant
  • In Country Tier 1, 2, or 5 migrant applicants
  • In country application for leave to remain (except an application by a visitor, a protection claims or human rights claim)

Disclaimer

While every effort has been made to ensure the accuracy of the information provided in this article, it does not constitute legal advice and cannot be relied upon as such. Each legal case and issue may have unique facts and circumstances, as a result legalally does not accept any responsibility for liabilities arising as a result of reliance upon the information provided. For further help and guidance, you can always rely on and seek advice from our experienced lawyers.

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