Appealing to the First-Tier Tribunal
Every year, tens of thousands of immigration decisions made by the Home Office are referred for an appeal to the First-tier Tribunal Immigration and Asylum Chamber (FTTIAC). The total volume of appeals has, however, declined hugely since 2010-2011; there were ~44,000 appeals lodged in 2018-19, ~92,000 in 2014-15, and 146,000 in 2010-11. Another interesting trend that started in 2018-19 is that more appeals (over 50 percent) are being allowed than are being rejected. The latest statistics from the Government also show that between January to March 2020, Human Rights (HR) appeal applications represented 43% of all of those received by the FTTIAC.
Not all immigration decisions can be referred for appeal though. In this article, we will review the decisions which can be referred to the FTTIAC and the process for doing so.
What is the First-tier Tribunal Immigration and Asylum Chamber (FTTIAC)?
For most people who make immigration applications to the Home Office, the process and terminology can be confusing, especially for those whom English is a second language. The FTTIAC is made up of seven appeal ‘chambers’ spread across the UK, with judges who listen to and settle immigration disputes (they don’t just handle immigration matters). Their main role in terms of immigration is to review decisions referred to them relating to permission to stay in the UK, deportation from the UK, entry clearance to the UK, and Home Office detention.
If you are considering appealing an immigration decision, the FTTIAC is the first place you will apply to.
Which immigration matters can be appealed to the FTTIAC?
When you receive a decision from the Home Office on an immigration matter or application, you will be advised if you have the right of appeal. If you do have the right to appeal, you do not need to apply to bring an appeal, you can proceed with your application to the FTTIAC.
The FTTIAC will only consider appeals on the following grounds:
- if your removal or the revocation of your protection status would breach the UK’s obligations under the Refugee Convention – this applies if you are eligible for Humanitarian Protection or under the Human Rights Act;
- a decision is deemed unlawful under section 6 of the Human Rights Act
- a decision regarding EEA nationals which not in accordance with EU law.
But not all Home Office decisions made in relation to human rights or protection will have the right to appeal. If the Home Office believes that there is clearly no case, then they may not allow an appeal.
Submitting your appeal to the FTTIAC
The first part of the appeal process is to issue a ‘notice of appeal’ to the FTTIAC. This can be issued by the individual themselves, or they may prefer the appeal to be handled by an immigration lawyer. The notice must be received by the FTTIAC within 14 days of the decision being appealed if you are in the UK, or within 28 days if you are outside the UK.
The form you will need to complete depends on what you are appealing – the forms can be found on the Government website[PM2] .
According to the latest version of the FTTIAC rules, the notice of appeal must:
- set out the grounds of appeal;
- be signed and dated by you or your representative - if the notice of appeal is signed by your representative, they must certify in the notice of appeal that it has been completed in accordance with your instructions;
- state whether you need an interpreter at any hearing and if so for which language and dialect;
- state whether you intend to attend a hearing (you can request an ‘oral’ hearing or to have your case decided ‘on the papers’ which means the judge will make their decision without you being present); and
- state whether you will be represented at any hearing.
The guidance also states that you must provide in addition to the notice of appeal:
- the notice of decision against which you are appealing – if this is not available, you must say reasons why
- the statement of reasons for that decision (if any);
- any documents in support of your case which have not been previously supplied
The appeal application fee is currently £80 without a hearing or £140 with a hearing, however, you may not need to pay if you qualify for legal aid, receive asylum support payments, or you are under 18 and receive support services from your local authority.
Once your appeal has been received by FTTIAC
Once your notice of appeal has been received by the FTTIAC, they will then send a copy to the Home Office. You will then receive a ‘notice of hearing’ from the FTTIAC confirming the location, time, and date of your appeal hearing. Also, on the notice of hearing will be details of the address and deadline to send any additional documents which you would like to be considered.
If you cannot attend the hearing (e.g. due to illness), you can ask the FTTIAC for an adjournment of your matter until a later date.
In addition to the heating, in some asylum appeal cases, the judge may determine it is necessary to hold a pre-hearing, referred to as a Case Management Review (CMR).
On the day of your hearing, you will be asked to present your evidence and to answer any questions raised by the Home Office Presenting Officer and/or the judge. After the Home Office Presenting Officer outlines the reason to dismiss the appeal, you will then be given an opportunity to explain why you believe your appeal should be allowed.
You will be notified of the outcome of your case approximately 21 to 28 days after the hearing in writing. In the event of a positive decision, the Home Office may decide to appeal, but if they do not, they will most likely reverse the decision made previously. A refused appeal decision may then be taken to the Upper Tribunal.
If you find yourself appealing a decision made by the Home Office for any of the reasons outlined earlier in this article, it is important to seek legal representation. This will ensure that the correct procedure is followed and that the necessary evidence is provided to ensure you have the best possible chance of a successful outcome. Being on the receiving end of a negative immigration decision can be frightening and worrying, but by seeking legal support from immigration solicitors as soon as possible, the burden can be removed from your shoulders, allowing you to look after your needs and those of your family.
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