What is the Immigration Appeal Process in the UK?
With the Home Office constantly amending the UK Immigration Rules, there has been an increase in refusals for both in-country applications and entry clearance applications.
This is partly due to the fact that the Immigration Rules have become complex and detailed; the guidance policy which usually accompanies each visa category can be quite lengthy and contain legal terms that a layperson may not necessarily understand which can have serious implications.
At OTS Solicitors we have many clients who seek our advice and guidance once their application is refused as they were under the impression that they could successfully make an application to the Home Office without expert legal advice and knowledge. Clients often overlook the fact that the Immigration Rules are not user friendly and any unfamiliarity with the Rules could cause misunderstandings of the requirements and mislead applicants easily, this is especially evident in Tier 1 entrepreneur extension applications, Indefinite Leave to Remain application based on the 10-year long residence route as well as applications for permanent residence under the EU Regulations.
A major implication of this is that if an applicant is not aware of certain requirements or if they fail to provide the correct evidence in the correct format as required by the Home Office, the application will be refused.
What are the options available following a refusal decision from the Home Office?
In some cases, applicant’s may wish to submit an administrative review which will require the Home Office to review their decision however, it is important to note that the application will be reviewed by a different caseworker who will assess the application and supporting documents again. The request for administrative review must be based on certain grounds which differ depending on whether it is an entry clearance application or an in-country application. It is therefore strongly advised to seek professional legal advice from a specialist Immigration solicitor who will be able to assess the case and subsequently advise on the grounds to rely on.
An Administrative Review decision is likely to be served within 28 days however, this may vary depending on the complexities of the case.
Alternatively, applicants may wish to lodge an appeal against the Home Office decision depending on whether they have been given a right of appeal. For those that are provided with an in-country right of appeal, the refusal decision received from the Home Office will provide the applicant with a deadline of when they must submit their appeal. It is worth noting that an appeal will allow an independent adjudicator to assess a case whereas an application for Administrative Review only requires the Home Office to review the case. If an in-country application is refused, the applicant will be provided with 10 days to appeal the Home office refusal decision. However, if an entry-clearance application is refused, the applicant will be provided with 28 days to appeal the decision made by the Entry Clearance Officer.
What steps should be taken in the appeal procedure?
In order to successfully submit an appeal to the First-tier Tribunal, the relevant form needs to be completed and the grounds of appeal must be attached which essentially details the reasons for appealing the Home Office refusal decision. This is an extremely important step in the appeal process as the entire appeal and the evidence requested in support of the appeal will weigh heavily on the grounds of appeal. As such, it is vital that the grounds of appeal are drafted by an experienced Immigration solicitor who is able to skilfully draft detailed valid grounds.
It is also at this stage that the applicant will have the option of requesting an oral hearing or a paper hearing; it is always often better to request an oral hearing as it will provide the applicant and the legal representatives with the opportunity to present the case in more detail and stand before the Judge at the hearing.
Once the appeal has been lodged, the Home Office will automatically begin reviewing their decision and if they do not withdraw their original refusal decision, the First-tier Tribunal will notify the appellant and the Home Office of the hearing date. At this stage, it is vital for the legal representatives to compile their appeal bundle by initially requesting supporting documents from the applicants and begin drafting detailed witness statements; the type of documents requested will depend on the type of application and the reasons for the refusal of the application.
An experienced barrister will also need to be instructed on the matter to represent the applicant during the hearing. Both parties must provide their appeal bundle five days prior to the hearing date to the opposing party and the Tribunal; the legal representatives must provide a copy of the appeal bundle to the barrister as the barrister must have sight of the bundle prior to the scheduled hearing.
If the appellant has requested an oral hearing, the barrister and the Home Office Presenting Officer (HOPO) will raise their concerns and cross-examination the appellant and any witnesses. Alternatively, if a paper hearing was requested the Judge will only consider the appeal bundle and the appellant will not attend.
Once the hearing has concluded, the Judge will need to provide the Determination within four weeks however, this may vary depending on how complex the case is.
What to do when an appeal is dismissed by the First-tier Tribunal
If the appeal is successful, the Home Office will need to grant the visa however, in cases where the appeal is dismissed, the appellant will need to seek further legal advice on whether to appeal the First-tier Tribunal’s Determination.
The Determination can only be appealed on the basis that the presiding Judge made an error in law; this can be difficult to demonstrate and as such instructing the right Immigration specialists on a case is crucial to the success of an appeal.
The initial step involved in appealing the First-tier Tribunal’s decision is to request for permission from the First-tier Tribunal to appeal to the Upper Tribunal within five days. If this is granted, there will be a further hearing. If permission is not granted, there is the option to request for permission to appeal from the Upper Tribunal.
This is a basic overview of the procedures involved in the UK Immigration appeal system and there may be other options to consider including submitting a Pre-Action Protocol letter prior to submitting a judicial review. Please click here for a detailed discussion on the judicial review procedure in the UK.
It is important to note that the options available to applicants/appellants will depend on the circumstances of their case as well as the merits of their case which will determine the remedy to be sought. The most crucial aspect of the entire process is selecting the right Immigration solicitors with care and detailed consideration as this will have a significant impact on the outcome of the appeal.
How can OTS Solicitors assist?
At OTS Solicitors, we work closely with retired Immigration Judge, Mr Paul Gulbenkian who provides us with insight knowledge and guidance on each individual case. Our specialist Immigration solicitors are therefore able to provide a customised assessment of every case to ensure that our clients are provided with the outcome sought. Please call our offices on 0203 959 9123 and we will be glad to carry out an initial assessment on your appeal matter.