UK visa and Immigration rules can sometimes be complex and it is comparatively a very expensive process, therefore any mistake made by the applicant can have serious implications in terms of time, stress and finances. It is for this reason that one is best advised to use a qualified UK immigration lawyer when applying for a visa, which could potentially save them the hassle and cost of when things go wrong. This article is to highlight the process of trying to remedy things if a visa application is rejected.
Obviously, although using a UK immigration solicitor reduces the chance of an application being refused, it is by no means 100% guaranteed (anyone saying that is not being honest). Things can go wrong… and frequently the Home Office get things wrong. This article deals with those unfortunate circumstances.
What decision are appealable and grounds of appeal
The general rules of appeals are set out in s. 82 of the Nationality, Immigration and Asylum Act 2002, as amended by Part 2, s. 15Immigration Act 2014.
There are three types of situation where there is a right of appeal:
- Refusal of protection claim
- Refusal of Human Rights claim
- Revoke of protection status
Additionally, the appeal must be brought on one or more of the following grounds, as stated in s.84 of the Immigration Act 2014:
1. Removal of the appellant from the United Kingdom would breach the United Kingdom’s obligations under the Refugee Convention;
2. Removal of the appellant from the United Kingdom would breach the United Kingdom’s obligations in relation to persons eligible for a grant of humanitarian protection;
3. Removal of the appellant from the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention).
An appeal under section 82(1)(b) (refusal of human rights claim) must be brought on the grounds that the decision is unlawful under section 6 of the Human Rights Act 1998.
An appeal under section 82(1)(c) (revocation of protection status) must be brought on one or more of the following grounds:
1. The decision to revoke the appellant’s protection status breaches the United Kingdom’s obligations under the Refugee Convention;
2. The decision to revoke the appellant’s protection status breaches the United Kingdom’s obligations in relation to persons eligible for a grant of humanitarian protection.”
You can only appeal your decision if you have the legal right to appeal. Normally the refusal letter will state if a person has a right of appeal or not.
EU Application Appeal
Also, it is worth mentioning that in addition to above, there is also right of appeal in most EU/EEA application e.g. application for residence card, family permit or Settled Status by EEA national of family member, this is governed by the Regulation 36 of The Immigration (European Economic Area) Regulations 2016
NO Right of Appeal
If you don’t have the right of appeal you would need to bring into action the more expensive process of Judicial Review, which is where you sue the government by challenging the legality of a decision. This is a complex and very costly process and you should take detailed advice from your UK Immigration solicitor before embarking on it.
Lodging an appeal
From the UK: To lodge an appeal from within the UK, you have 14 days after the day of decision, and you should use form IAFT – 5.
From Abroad: To appeal a decision from outside the UK you have 28 days to appeal after you receive the decision. Generally, you should use the form IAFT – 6 for appeals against a decision of an Entry Clearance Officer and for example form IAFT – 7 for appeals which can only be exercised after you have left the UK.
Where and What to Send:
The appeal form should be sent to the court, using the address on the form, NOT to the Home Office. It should include a copy of the refusal decision being appealed against, as well as short summary stating the grounds of appeal. It is crucial to follow the immigration rules and appeal procedure in order to succeed, as well as to have the precise Grounds of Appeal accompany your appeal, as you may need to obtain court permission if you seek to significantly change the grounds later on.
Types of Hearing – Oral or Paper
When lodging an appeal the appellants can chose to have an oral hearing – a hearing that you or your representative can attend and give evidence at in person, or a paper hearing, where the judge makes a decision strictly based on the information in your appeal form and any documents supplied to the tribunal. It is worth mentioning that generally the chances of success are higher when you choose to give evidence in person, especially in human rights cases, as the judge can question you and you have the opportunity to present the human side of your argument.
It costs £80 for an appeal without a hearing, when the judge makes a decision based on a documents you have submitted, and £140 with a hearing, where you have a chance to give evidence in person.
In country or out of country right of appeal general rule
Additionally, section 92 of National, Immigration and Asylum Act 2002 determines whether the decision can be appealed from inside the UK or if it can be made only from abroad. Generally, when the appellant was inside the UK when he made a claim, the appeal can be made from within the UK, unless his claim has been certified us clearly unfounded under section 94 or 94B of National, Immigration and Asylum Act 2002.
A claim could be classed as clearly unfounded under section 94 if you are entitled to reside in a country considered as safe (the list can be find here) in the context of protection and human rights claims.
Human rights claims might be certified under section 94B of the National, Immigration and Asylum Act 2002 as clearly unfounded where you are removed from the UK but there is no real risk for you of serious irreversible harm before any appeal is concluded.
Pre-hearing and hearing
Following giving a notice of appeal on the prescribed form as discussed above, sometimes there will be a pre-hearing to determine the issues in dispute and the evidence necessary to deal with them. It is very important to use a solicitor who will help you to state the accurate grounds of appeal and who is familiar with the immigration rules and appeal procedures.
When it comes to the proper hearing, all cases are generally listed for hearing at 10am. The judge will decide on the day the order in which the cases will be heard, so you may have to wait. Nonetheless, you must still appear in court around 30 mins to 1 hour before a scheduled time, as you need to go through the security check as well as inform the court clerk about your arrival.
Your appeal will probably be heard by one judge. There will be the Home Office representative sitting on one side of the room, and you should sit on the other side with your lawyer, if have one. During the hearing you will be asked some questions and there will be also time for your witness(es) to give evidence (if you have any). At the end of the hearing the Home Office will state to the judge why your appeal should be dismissed and then you will have time to make your argument, explaining to the judge why your appeal should be allowed (if you have a lawyer he will make closing submissions for you).
It is usually crucial to ask for help from an experienced UK Immigration Lawyer, as at the appeal hearing the judge will determine whether or not to uphold the original decision. You must remember that it is your responsibility to provide as much relevant evidence to support
youcase, as it can save you some money if you do it first time properly.
Relevance of the Bundle and Skeleton Argument
In addition to making closing submissions, a solicitor will help you to prepare a court bundle, with all the necessary evidence in a logical manner to guide the judge in assessing your case. The bundle should be followed by an index, showing the page numbers of each document.
The bundle should also contain a Skeleton Argument with brief background details and a written submission, which should define the issues, refer to the relevant law and the documentation evidence in the bundle. The Skeleton Argument should be as brief and concise as possible; at the hearing is the time to advocate your matter, thus using a qualified immigration lawyer can make a huge difference. Where the issues are complex it is of the highest importance that a comprehensive bundle is prepared.
Please note that proper preparation for the hearing and the submission of a relevant bundle can make a positive impression on the court and therefore place you in a good position before the trial even starts.
You must also remember that there is a timescale for submitting your bundle, and generally it should be received by the court no later than 5 working days before the full hearing.
After the Hearing:
Normally, you will get your decision in writing in 28 days. If the court allow your appeal, then the decision is implemented within several weeks and the Home Office should take necessary steps in order to follow the decision.
If you lose your appeal, you may be able to appeal to a higher court (Upper Tribunal) if you think that a legal mistake was made by the tribunal. However, this is much more complex, and you can seek permission to appeal the matter further strictly on the basis that there was an error of law.
If you have been affected by this issue or any other UK Immigration Matter, Please contact Tito, a UK Immigration and Human Rights Solicitor, for a Free Initial Consultation about your legal options – it’s free! Call 07544 669131 / 01163800744 Or on Skype: tito.mbariti.