01707 264277
kit@kspsolicitors.com
Suite G, 19 - 25 Salisbury Square, Old Hatfield, Hertfordshire, AL9 5BT
If a visa application is refused by the Home Office or the British Embassy it may be possible to challenge the decision. There may be, depending on the situation, a right of appeal or a right of administrative review.
Appeals are held before a Judge at the First-Tier Immigration Tribunal in the UK, and the Tribunal can hear appeals against decisions made either in the UK or outside the UK.
Rights of appeal have been significantly reduced in recent times, and most types of visa application no longer have the right of appeal. Only cases concerning human rights, asylum or removal from the UK now have the right of appeal, but other types of visa application do have the right of administrative review, which is a quite different sort of process.
Administrative review is carried out by an official of the Home Office or the British Embassy, and it is a relatively simple review of the decision to ascertain if an error has been made.
Appeals are generally more complex than administrative reviews. Unlike the administrative review process, the appeal process typically involves preparing witness statements, creating bundles of papers for the Tribunal hearing and the provision of legal representation at the Tribunal. And the appeal system has a hierarchy of tribunals and courts, such that if an appeal is unsuccessful before the First-Tier Tribunal there may be a right of appeal to the Upper Tribunal and thereafter there may be a further right of appeal to the higher courts.
Appeals/administrative reviews are a complex area, and unsuccessful applicants need competent advice as to the best way forward for them. Depending on the facts, in some cases, it is better not to try to challenge the decision but instead to submit a fresh application.
There are various types of appeal with which we can help:
The First-tier Tribunal consists of independent immigration judges. This is an essential process in the categories listed above including a full right of appeal with an immigration judge ready to listen to oral arguments from both parties as well as witnesses that attend the Tribunal hearing. They will also review further supporting evidence and make an impartial decision. The burden of proving your case lies on the balance of probabilities. This means that if the judge is considers you to be less likely liable than liable, then the decision will be made in your favour. With the right representation, you have a good chance of success.
If the judge agrees that your application should have been approved by the Entry Clearance Office, they will overturn the decision, putting it in writing within four weeks. This verdict will also be sent to the relevant decision-making individual to contact you again so as to issue you with your visa.
When appealing at the First-tier Tribunal, if successful, the judge may direct a repayment of the fee paid by the client. This sum is £140 for an oral hearing, or £80 if you elected to not appear before a judge, thereby rendering the decision to be made based on the written argument documentation alone.
If you have attended the Immigration and Asylum Chamber (IAC) before the First-tier Tribunal and the decision has been made by the judge to refuse your appeal thereby maintaining the validity of the original decision to refuse you, you have a further right to appeal. This takes the form of a written application for permission. If this application is refused you are then able to ask the Upper Tier Tribunal directly for the right to appeal.
An application for permission will be made to the Upper Tier Tribunal which is comprised of more senior immigration judges and effectively asks to be allowed to appear before them in their court to argue that an error of law exists.
Your application will need to be made within five working days of the date of the First-tier Tribunal’s refusal or within two working days if the appeal was determined under the fast track process for asylum cases, or within 28 calendar days if the appellant is outside the UK. This also must be based on an error in law. The appeal will not be against the decision of the judge that refused your application for permission, although we can refer to this decision in our grounds. The appeal will still be based on the legal error committed by the first judge at the oral hearing.. Appeal to Upper Tier Tribunal following granting of permission
Once an immigration judge has reviewed the application for permission to appeal to the Upper Tier Tribunal, they will make a decision on whether to order reconsideration or not. If they make an order, the matter will be listed for a senior immigration judge to hear the grounds, so that they can decide whether there has been a material error of law made by the original immigration judge. Therefore the order for reconsideration does not result in an immediate right to have your case reheard but rather provides you with the opportunity to deliver your argument before a senior judge.
If the judge agrees that there has indeed been an error, they will order the case to be reheard. They may limit what exactly will be considered or may order a full rehearing. This usually takes place at/on the same time/day as the reconsideration hearing. In some cases, the Upper Tier Tribunal may remit the case back to the First-tier Tribunal to be reheard. They will either replace the original decision or maintain the original judge’s decision.
KSP Solicitors has a dedicated team of advocates that specialise in representing clients at the Tribunal, giving you the best chance of success. When Reiss Edwards is instructed to appear at the Tribunal, our services will include:
If your make an application for a non Points-Based System visa and it is refused, you will be given the right to appeal the decision. This right is not restricted to Section 84(1)(b) and (c) of the Nationality, Immigration and Asylum Act 2002 like the Administrative Review process is for Points-Based System applicants. This means that if your written appeal is refused, you will have the right to further appeal before the Immigration and Asylum Chamber (IAC)..
If you receive a refusal, known as a Notice of Immigration Decision, or a Reasons for Refusal letter, the right of appeal that you have will be included. Usually this will be a full right of appeal which means importantly, that you can argue that a legal error has been made by the Entry Clearance Officer.
The following visa applications attract a full right of appeal:Once your written appeal is lodged, the First-tier Tribunal will send a notice of pending appeal confirming the date by which a decision will be made. This will be sent once the required appeal fees have been settled.
The appeal will then be sent to the Entry Clearance Manager to review. If they are satisfied that you have alleviated the burden of proof in your case, they will issue you with your visa. If they are not satisfied, then you will receive a Notice of Hearing listing your case to be heard by the First Tier Tribunal.
An Entry Clearance Manager at the Visa office will review their decision to refuse your application, in light of your appeal form and any supporting documents that you have sent. If they are satisfied that your application meets the Immigration Rules, they may overturn their original decision and issue you with a visa or entry clearance.
The process of applying for a visa can be difficult and stressful. The decision-makers, consisting of the UKBA, Secretary of State, Entry Clearance Officers and immigration judges make mistakes that require rectifying. You may have submitted an application yourself, or used an immigration lawyer that you feel did not prepare your application to the highest standard. In these circumstances, the right to appeal is of great importance. Whilst there are limitations in some cases as to the documents that you can submit when appealing, with a skilful advocate, the right to appeal is another opportunity to prove that you are a genuine applicant and that you are able to fit into the category for which you have applied. It is an opportunity to think innovatively and offer solutions that cannot be considered simply on a paper appeal..
Immigration detention bail is a request for or an application to either a Chief Immigration Officer (CIO) or an immigration judge for release of a person from immigration detention.
If you have been detained, we will need to consider the basis on which you have been detained and how we can seek your release. If verbal requests are not successful, then representations are made to a Chief Immigration Officer (CIO) requesting temporary release/bail.
The Home Office is bound by law to review your detention, so if there are important factors to bring to their attention, such as ill health and family problems, it is in your interest to raise these.
If a successful application for bail is made, you are likely to have conditions imposed on your release. For example, residence at a specified address, reporting to a police station or an immigration official and/or providing of a surety.
If an immigration judge makes a decision to release you, they may impose similar conditions to those of a Chief Immigration Officer. You will likely reappear before the same judge for a substantive appeal hearing on your immigration status.
If you have been served with a notice of intention to deport, you will have the right to appeal. Whilst the rules in this area of law have changed, the fundamental right to appeal remains.
The right to appeal a notice of intention to deport must be made within five working days from the date of receipt of the notice. Once the appeal is submitted in time and with the correct forms, it will be listed to be heard by an independent immigration judge of a First-tier Tribunal at the Immigration and Asylum Chamber. The judge will decide whether the decision to deport is correct or against the law.
When preparing for such an appeal hearing, it is important to consider all of the evidence and the reasons as to why you cannot be returned to your home country. The UK is duty-bound with regards to returning individuals who would face persecution if returned, in accordance with the Refugee Convention, or the European Convention of Human Rights. If, however, you do not fall within the Convention rights, you will need to evidence that your deportation falls into the category of the most exceptional of compelling and compassionate circumstances and that these grounds outweigh the public interest in deporting you.
If you are able to prove that deportation would be contrary to the UK’s obligations under the European Convention of Human Rights, you will be granted no more than 30 months of leave to remain. As this is a form of discretionary leave, conditions may be attached according to the Secretary of State’s findings, or indeed an immigration judge.