Receiving a negative decision from the Home Office can be a difficult and scary time for people. For those planning to move to the UK, refusals significantly disrupt their plans and may also affect future applications where the reasons for refusal need to be addressed. For those trying to remain in the UK, a refusal is a threat to the lives they have made in the UK and could mean the prospect of facing removal.
Challenging a negative immigration decision comes down to the reasons for that decision, and this dictates what available options there might be. In some circumstances, challenging an immigration decision can be done through the appeals process. This article will discuss the appeals process, with a particular focus on initial appeals to the First-tier Tribunal.
What is an Appeal?
An appeal is a challenge of a relevant negative decision to be heard by the First-tier Tribunal (Immigration and Asylum chamber). Tribunals are independent from the Government, so they offer an impartial judgment of the decision that has been made. Therefore, whilst an appeal allows someone to challenge a negative decision, it also allows the Home Office to defend why it came to that decision.
Appeals are not available for all cases. Only cases where the decision is afforded the right of appeal, can an appeal be lodged. In most situations, the decision itself will let you know if you have the right to appeal.
However, generally the decisions that can be challenged by appeal are:
- Refusal or revocation of protection status (asylum or humanitarian protection)
- Refusal of a human rights claim
- Deprivation of British citizenship
- Applications made under the EU Settlement Scheme (EUSS)
Refusal of Human Rights Claim
Human rights claims generally come down to considerations of a person's right to family or private life in the UK. This means that refusals of applications giving rise to human rights claims are the most common cases where someone is afforded the right to appeal.
As part of a decision, the Home Office must consider any human rights grounds raised in the application, and should inform a person of their right to appeal if so.
In some instances, if it is considered that a human rights claim is clearly without substance, the Home Office can certify it as clearly unfounded with no right to appeal. The only remedy then is Judicial Review. In this article, we do not discuss the options available where people are not afforded the right to appeal; of course, it is vital to seek competent legal advice if you are in that position.
Lodging an Appeal
So, you have received a negative decision which is afforded the right to appeal. What do you do next?
Well, lodging an appeal can be a big decision. This is particularly given the costs and time that may be involved with taking the challenge all the way to court. At this stage, it can be useful to discuss the situation with a lawyer who can advise on the merits of an appeal; give you an idea of costs that may be incurred; or if there may be other options.
Not much time is given to lodge an appeal once a decision has been issued. If you are in the UK, an appeal must be lodged within 14 days of the date of that decision. If you are outside the UK, an appeal must be lodged within 28 days of the date of the decision. In circumstances where there has been a significant reason that an appeal could not be lodged in time, a request can be made to the Tribunal for an out-of-time appeal. The Tribunal must be given explanation as to why it was lodged late, and will first decide whether to accept the appeal as valid.
Lodging an appeal is generally done online, although sometime may need to be done by post or email. Legal representatives also have their own specific process for lodging appeals on your behalf. There is a court fee that must be paid, which differs depending on whether opting for the hearing to be heard on the papers alone (£80) or at a full oral hearing (£140).
Appeal on the Papers vs Oral Hearing
An appeal heard on the papers alone is where a Judge will consider the written evidence that is submitted to them (from both sides) and make their decision solely on that basis.
An oral hearing is where the evidence submitted as part of the appeal will be heard by a Judge directly in court, giving the opportunity for evidence to be expanded upon during a hearing. This is why oral hearings can be preferable in many circumstances, particularly if there are complex or emotional elements of a case that would be better presented directly to the Judge. It also provides the Judge with an opportunity to ask questions on the evidence provided, and for legal representatives to expand on legal principles supporting their case.
In a majority of circumstances, an oral hearing is the best option.
Submitting Bundles
Once an appeal has been lodged, the Tribunal will issue directions to both sides about how to progress with the appeal. Both parties will be issued with a notice of the request for an appeal.
The Home Office (now known as the 'respondent') will have 14 days after receiving notice of the appeal to provide a bundle to the Tribunal. This is generally a collection of documents related to the initial application, including the refusal.
The person making the appeal (now known as the 'appellant') will then have to submit their own bundle to the Tribunal. This generally must be done within 28 days from the date the Home Office submit their bundle.
The appellant's bundle is the point at which a person can raise the reasons why the Home Office decision is wrong, and to support these arguments with further evidence. There are very specific rules on how a bundle must be presented, including limits on the numbers of pages and how the bundle is formatted. These rules are very important, and are treated strictly for legal representatives. If not using a legal representative, the Tribunal will provide directions on how you should present your arguments and any additional documents, to support your case.
Home Office Review
The Home Office then has 14 days to provide a review of the arguments and evidence that you or your legal representative have submitted. This is an opportunity for the Home Office to address any of the issues raised; state whether there are specific parts that they dispute; and address whether they think an oral hearing will be necessary.
In some circumstances, the Home Office could decide to withdraw their original decision because the grounds raised by the appellant may be significant enough for them to realise that there has been a mistake in said decision. This could occur at any point before an appeal is heard.
Legal representatives will be able to consider this as part of their advice on the merits of lodging an appeal. It can take a long time to go all the way to a hearing and to receive the Judge's decision. However, sometimes the chances that the Home Office may choose to withdraw – because the evidence of their mistake is quite clear – could mean that lodging an appeal is a better option than others (for example, making a new application).
Of course, in many situations an appeal may be the only option anyway.
Directions by the Tribunal
The Tribunal is responsible for issuing directions about the management of an appeal. They will make requests for information on any procedural requirements for the appeal, including matters such as whether the appellants attend in person; whether remote attendance is permissible; or whether any translation or disability assistance may be required.
Directions can also be issued to clarify any preliminary issues, or additional requests by either party (such as submission of late evidence). In certain circumstances, the Tribunal may request that preliminary issues be resolved in a case management hearing – these are smaller hearings held before the main one.
If the appeal is proceeding to an oral hearing, the Tribunal is also responsible for listing a date for the hearing, and will notify both parties of the date that hearing will be heard.
Complying with Tribunal directions is very important. Failure to do so can lead to sanctions by the Tribunal, such as exclusion of certain evidence.
What Happens at an Oral Hearing?
The day finally arrives, and you are attending an appeal hearing.
You will not know the time of your hearing until you arrive at the Tribunal on the day. This can mean a lot of waiting around until your case is ready to be heard. When it is finally time, you will be led to the court room and to your seat. You are normally sat in the middle of the room facing the Judge's chair. Either side of you will be seats for your legal representative (if using one), and for the Home Office Presenting Officer. Hearings are also public, unless specifically requested to be private during the pre-hearing stages. This means that others could be in the room, although the Tribunal will need to be informed about the other witnesses attending (such as family members).
The Judge will enter the courtroom, and everyone shall be expected to stand (if able). The Judge, your legal representative and the Home Office Presenting Officer will have some brief discussions about the procedural elements of the hearing, and to ensure that everyone has the correct documents.
If you have provided a statement for your appeal, you will then be asked to adopt the statement to the record. It will also be in this situation that your legal representative (if using one) may ask some further question on your statement. The Judge may, at any time, also ask questions. The Home Office Presenting Officer then has the opportunity to cross-examine you and your statement. Your lawyer than has a final opportunity to re-examine you and your statement. This process also applies to any witnesses you may have that will be providing oral evidence in court as well.
After all evidence is concluded, the Home Office Presenting Officer will provide the closing arguments of their case. This is then followed by you / your legal representative providing the closing arguments of your case.
Judgements
Judges can provide their decision (called a judgement) on the appeal on the day of the hearing. In practice, this is rare and usually you will be waiting for a number of weeks until a judgement is received.
If the appeal is allowed (i.e. you are successful) the Judge will provide reasons for this decision in their judgment. It is then for the Home Office to either implement the judgement (which in most cases will be granting the visa or permission); or to challenge it in the Upper Tribunal.
If the appeal has been dismissed (i.e. you are unsuccessful) then careful consideration should be made with regards to the reasons given by the Judge. This is because you also have the same option of challenging the judgment in the Upper Tribunal, but only for specific reasons will this be permitted.
Challenging in the Upper Tribunal
Challenges to the Upper Tribunal are based on whether the Judge in the First-tier Tribunal erred in law in their Judgement. It is an opportunity to challenge a judgement, but only if it can be considered that an error may exist and therefore requires the review by the higher court.
Neither you nor the Home Office have an automatic right to appeal in the Upper Tribunal. Permission must be granted, and this begins by applying for permission to the First-tier Tribunal. If the First-tier Tribunal refuse permission, then an application can be made directly to the Upper Tribunal for permission to appeal. If permission is still refused, then you cannot take the case any further.
If permission is granted for the case to be heard in the Upper Tribunal, the procedure is similar to cases heard by the First-tier Tribunal. The key difference is that the Upper Tribunal is considering if there was an error in law, rather than consideration of new evidence.
If the Upper Tribunal considers the First-tier Judge did make an error, then they could choose to hear the appeal themselves and make a new decision on the matter. This could be done immediately or called for a further hearing at a later date.
Alternatively, the Upper Tribunal could send the case back to the First-tier Tribunal with options for the case to be either:
- Re-decided – where new evidence will not be heard, but specific consideration of the point of error in law found by the Upper Tribunal is not to be repeated;
OR
- Re-heard – where new evidence can be heard. Essentially a new appeal.
Finally, if the Upper Tribunal dismiss the appeal, it may be possible to challenge further to the Court of Appeal. However, permission must be granted to do so. Challenges to higher courts are significantly different and difficult, and in a majority of cases would only be pursued with the assistance of legal support. The complexities of challenging to the higher courts can be discussed at significant length, so I shall not address these further here.
Final Remarks
The appeals system can be a daunting and complex process for people to get their heads around. And it doesn't help that appeals may be the only option in certain circumstances. As such, there is significant value in discussing the process with a lawyer – not only for them to possibly provide representation, but also to advise on the merits of doing so.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
