An individual can appeal to the First Tier Tribunal within 28 days of receiving the notice of refusal from the Entry Clearance Officer (ECO), if his or her application for entry clearance (UK Visa) is refused by the ECO and they are outside the UK. This is normally known as an entry clearance appeal.
An individual who is inside the UK and his or her application for stay in the UK Economy has been refused, they can appeal against the refusal of such an application to the First Tier Tribunal and this must be done within 10 working days from the date of receiving the refusal letter if the individual is not in detention. An appeal can be filed within 5 working days if the individual is in detention. An individual can file for an appeal within 2 working days if he or she has been detained and their asylum claim has been put under the fast track process.
An individual can file an application to the First Tier Tribunal for permission to appeal to the Upper Tribunal, if the appeal against the refusal of their application has been dismissed by the Immigration Judge sitting at the First Tier Tribunal. This type of application must be made within 28 days if the applicant is outside the UK and within 5 working days if he or she is inside the UK. On the grounds where the Immigration Judge at the First Tier Tribunal made a material error of law while determining the appeal, an application for permission to appeal to the Upper Tribunal can be made. A similar application can be made by the UKBA to the First Tier Tribunal based on the situation where the Immigration Judge made a material error of law when determining the appeal if the applicant's appeal has been permitted.
An additional application to the Upper Tribunal for permission to appeal to the Upper Tribunal can be made if the application to the First Tier Tribunal for permission to appeal has been declined by the First Tribunal. This application must be made by the applicant within 5 working days of receiving the decision if he or she is in the UK and within 28 days if he or she is outside the UK.
The matter for appeal hearing will be listed by the Upper Tribunal which decides whether the Immigration Judge made a substantial error of law or if the original decision of the Immigration Judge should be put aside, if an application for permission has been granted either by the First Tier Tribunal or the Upper Tribunal.
An application can be filed to the Upper Tribunal for permission to appeal to the Court of Appeal if the Upper Tribunal had dismissed the appeal. In the situation where such an application has been refused by the Upper Tribunal, another application can be made to the Court of Appeal for permission to appeal to the Court of Appeal. The Court of Appeal will hear and decide the appeal if permission has been granted.
The Administrative Review is a process where an applicant whose application for entry clearance or leave to remain in the UK has been refused by Home Office, UK Visas and Immigration (UKVI) requests that the decision be reconsidered; on the basis that the grounds for refusal was not in accordance with the appropriate and relevant facts and laws.
An Administrative Review against the rejection of an entry clearance application as a PBS Migrant should be made to the UKVI within 28 days upon the receipt of the refusal letter. The Entry Clearance Manager at the British Diplomatic Post (the British Embassy/High Commissioner/ Consulate) will review and give a decision on the Administrative Review request within 28 days by sustaining the rejection or withdrawing the reasons for refusal and agreeing to issue the entry clearance.
The Administrative Review against the refusal of an in-country application must be submitted to the Home Office, UKVI within fourteen days of the reception of the rejection letter or seven days for applicants who were in detention.
If a points based system application is refused by an Entry Clearance Officer, the applicant has a right to apply for an administrative review. The review should be lodged within 28 days from the receipt of the rejection letter. Summarily, an administrative review can be seen as a request to the Entry Clearance Manager (ECM) to review a decision made by the Entry Clearance Officer (ECO).
If an individual's admin review request is rejected and the rejection is maintained by the ECM, the applicant person has the option to challenge the rejection by way of Judicial Review in High Court within 90 days from the date of the rejection letter.
Our Services for Administrative Review Request
Reiss Edwards' immigration lawyers will do all the work by representing our client in his or her request to the ECM for administrative review until a decision has been made. This includes:
An Administrative Review may be brought, if an "eligible decision" has been made as specified in Appendix AR of the Immigration Rules. An individual's "eligible decision" may be reviewed under the Administrative Review process if they no longer have a right of appeal as a result of changes to the appeals system.
The Home Office, UKVI is known to have removed the right of appeal against refusal of specific applications that are made from inside the UK and this is done by virtue of the Immigration Act 2014. Based on the previous statement, an applicant will be given a right to pursue Administrative Review against the refusal of the application. From the date of the receipt of the refusal letter, an Administrative Review request must be made to the Home Office, UK Visas & Immigration (UKVI) within a 14 day period and it must be made within a 7 day period if the applicant is detained.
In the case of a working error, an Administrative Review will consider whether an "eligible decision" is wrong or correct based on that error.
Administrative Review is obtained against the refusal of the following applications:
By virtue of Immigration Act 2014, the appeal rights against refusal of applications have been limited further from the 6th day of April, 2015 and the individual will only be entitled to appeal against:
If you have submitted an application from outside the country and have been refused, you may be able to appeal the decision if you have reasons to believe there was an error with the decision. Please note that not all entry clearance applications carry with it a right of appeal. Importantly, rarely do Point based systems applications carry with them rights of appeal. You may, however, be able to do an administrative review for refusals of Point based system visa applications though.
Most family and human right based applications carry with them rights of appeal. Please speak to one of our specialist solicitors if you are considering appealing an entry clearance decision that may have gone against you.
Within 28 days of receiving the refusal letter, you can appeal against the decision of the Entry Clearance Officer if the applicant is given the right of appeal against the application refusal for entry clearance. Submission of the Notice of appeal can be sent to the First-tier Tribunal (Immigration and Asylum Chamber) in the UK or to the British Embassy or High Commission or Consulate in the applicant's country of origin.
There may be the option to challenge the refusal by way of judicial review in the High Court if the individual has not been given the right of appeal against the refusal of their application. An alternative decision will be to submit a fresh application to the British Embassy or High Commission or a Consulate.
It is important to note that there may be times where the best option and/or route going forward is to make a fresh decision. In other words, appealing a decision against you may not always be the best option, there may be times where a fresh application is the best course of action. Please contact us for a free immigration advice over the phone if you are unsure.
Reiss Edwards is a leading immigration solicitors firm based in central London. We advise on all matters of UK immigration including appeals, judicial reviews, and administrative review. Call us today on 020 3744 2797 or send us an email on info@reissedwards.com
An individual who has been given a right of appeal against the refusal of their application can challenge by way of an appeal to the First-tier Tribunal (Immigration and Asylum Chamber) the Home Office's (UKVI) decisions to refuse the application for stay in the UK. From the date after the notice of decision was sent by the Home Office, UKVI, the appeal to First-tier Tribunal needs to be filed within 14 days from that date.
There could be an option to challenge the refusal by way of Judicial Review in the Upper Tribunal if the applicant has not been granted the right of appeal against the refusal of his or her application. Although a different alternative would be the submission of a fresh application to the Home Office.
If your case is refused, you will be issued with a letter which confirms the reasons for the refusal and what right of appeal, if any, the decision attracts. With this letter, you should be able to ascertain if the decision maker has made an error in the findings made, or whether they have raised genuine flaws in your application that need attention.
There are some in country cases that attract an automatic statutory right of appeal if you have submitted your application prior to the expiration of leave, switching from a qualifying immigration category. For example Spouse visa, Unmarried Partner Visa, Same Sex Partner visas are able to appeal against a decision from inside the UK if they had leave that had been valid for at least 6 months and does not prohibit them from switching to the visa applied for. There are other visa categories that attract a right of appeal. If you are unsure if your case attracts a right to appeal, you should contact our offices for a free assessment.
If your appeal attracts a statutory right of appeal, you will need to specify what the error made is, referring to statute and where necessary, case law. Drafting grounds of appeal forms part of your case which will be viewed by an immigration judge. For this reason it is important that the drafting of grounds of appeal is done correctly and using good legal sense, depending on the approach intended by your lawyer.
If you submit your appeal within the 14 day period, the Tribunal will list your case for an appeal where an independent immigration judge will consider your appeal. The Home Office suggest that they actively review cases before they go ahead to an appeal if resources permit. As the Home Office are underfunded, resources may not often permit but it is nevertheless good practice to prepare a strong enough appeal to address the issues raised in your refusal in case a review is undertaken.
Unless the Secretary of State for the Home Office verifies the asylum and Human Rights claim as manifestly unfounded, there is a statutory right of appeal to the First-tier Tribunal, which is, the Immigration and Asylum Chamber against the refusal of asylum and human rights claim as an asylum seeker from the Home Office. By way of Judicial Review in High Court, the decision of the Home Office can be challenged if the claim for asylum or human rights is verified as manifestly unfounded and the right of appeal is not given by the Home Office.
It is required that the Notice of appeal must be submitted within 10 working days to the First-tier Tribunal, if the asylum seeker is detained at the time of decision, he or she must submit the appeal within 5 working days and if the asylum case is being considered under the Fast track process, the notice of appeal must be submitted within 2 working days of receiving the refusal letter. The Immigration Judge at First-tier Tribunal (Immigration and Asylum Chamber) is the individual who hears the asylum appeal.
Deportation Appeal
An appeal against a notice of intention to deport can occur by an individual if he or she has been served such a notice and this appeal must be done within 5 working days from the date of receiving the notice. The Immigration Judge is required to hear this appeal and he or she must decide if the deportation is in accordance with the law and the notice of appeal must be filed with the First Tier Tribunal.
Under the Refugee Convention or the Human Rights Convention, if an individual's removal pursuance to the order is contrary to the obligations of the UK Economy, the deportation order will not be made and this according to the Immigration Rules. Although there are some exceptional cases where the public interest in deportation is outweighed and this occurs where deportation will not be contrary to these UK obligations.
In the process where the private and/or family life of a foreign criminal has outweighed the public interest, paragraphs 398 to 399A of the Immigration Rules sets out some certain exceptions. Therefore, the exceptions to deportation are regarded as follows:
The provisions of the Immigration Act 2014, that is, the new out of country deportation appeal was enforced on 28 July 2014. The Secretary of State which is enabled by the new regime, can require any appeal against deportation to be brought from only abroad and this in both the EU law and UK law cases.
Certification of human rights claims made by persons liable to deportation
A new section 94B of the Nationality, Asylum and Immigration Act 2002 was created for the certification of human rights claim made by persons liable to deportation. The Act provides the following:
The 94B Appeal from within the UK that was made as a result of the certification of human rights claims made by persons liable for deportation.
Ordinary non EEA deportation cases
Case workers are required to seek and certify a case using the section 94B power in all cases and where meeting certain criteria would not result in a serious irreversible harm and this is done if the policy of the Home Office is that the process of deportation should be effective and efficient. A limited group of cases will be tested on by the new power under Section 94B which are:
Under this new power it is accepted by the Home Office that Article 3 and refugee cases should not be certified. A real risk of serious irreversible harm may arguably occur because it is not appropriate to certify protection claims which are made on the basis of the Refugee Convention and/or ECHR Article 2&3.
EEA Deportation Cases
On 28 July 2014, the Immigration that is European Economic Area (Amendment No. 2) Regulations 2014 (SI 2014/1976) came into force. An appeal against a deportation decision under Regulation 19 (13) (b) that can still be lodged in the UK but it no longer suspends removal proceedings can occur due to the Immigration (EEA) Regulations 2006 which is amended by these new Regulations except where:
In the situation where the initiation of an interim order to suspend removal proceedings occurs, the guidance of the Home Office declares that removal will not be suspended except the order is made where:
Under this new regime, a person who has been removed from the UK can apply to re-enter the UK so as to make submissions at the appeal hearing in persons. This is as a result of what Article 31(4) of Directive 2004/38/EC states.
The guidance reasons to limit this provision to cases where the appeal was lodged in time, a date of the appeal hearing has been set and submissions must be made by the individual in person. Under this approach, it has not been clarified if an individual with a legal representative would necessarily qualify for entry. It is also clearly stated by the guidance that permission for entry into the country must be sought after in advance, that is, an individual cannot just turn up at the border, and it would lead to refusal of admission. EEA cases and non EEA cases are given the same test phase and the same criteria also applies to both cases as stated by the guidance.
Serious and Irreversible Harm
It is acknowledged by the guidance that the test derived from the test for Rule 39 indications from the European Courts of Human Rights. It is required that the test will relate to the period between conclusion of any appeal and the deportation and after this process if successful the individual will return to the UK and it is also required by the test that the harm should be serious and irreversible. As stated below by the guidance are certain situations that in the opinion of the Home Office might not meet the test:
A family court case is suggested to be clearly wrong. It is necessary for an individual to be physical present during the contested family court proceedings because if he or she is not present in the UK it would be impossible to assess certain needed information.
These examples stated below are given by the guidance and they are of situations that in the opinion of the Home Office would not meet the test:
As stated by the guidance of the Home Office, the demonstration that there is no real risk of serious irreversible harm must be decided by the Secretary of State. It is the responsibility of the individual to provide documentary evidence, preferably from official sources if he or she claims that serious irreversible harm could occur due to a non-suspensive appeal, examples of the documentary evidence should include a family court order, a marriage or civil partnership certificate, a signed letter-headed paper from the GP responsible for treatment, documentary evidence demonstrating long-term co-habitation from the official sources etc.
Judicial Review of section 94B Certificates
The decision to impose a certificate is possible by the judicial review when referring to certificates such as "manifestly unfounded", "clearly unfounded" several "safe third country" and other appeal-limiting certificates and this usually leads to the effects of suspending removal. The substance of such a judicial review decides if;
The above statement may only be restricted to a situation where it is being determined if an individual's private and family life is caused by serious irreversible harm as stated in Article 8. It has been accepted by the Home Office that Article 3 cases will involve that same level of harm. It is also important to note if Article 6, that is a right to fair trial of the issue or an individual's common law can cause serious irreversible harm.
Sometimes it is also feasible for some cases to be brought from abroad by an individual and while in other cases it may not be feasible. Depending on certain facts an individual's involvement in family law proceedings might be considered an excellent example by the Home Office guidance where serious irreversible harm could be caused. It is also an example of a situation where it has been held by the European Court of Human Rights that an individual has the right to remain in the country in question in order to pursue their case: Ciliz v Netherlands (App no. 29192/95) followed and applied in UK domestic cases including MS (Ivory Coast) v SSHD (2007) EWCA Civ 133.
Deportation Appeal Lawyers
Application for the revocation of deportation order can be applied for by an individual against whom a deportation order has been issued and this must be done before or after his or her deportation from the UK. If the deportation order has been revoked by the Home Office, an individual can appeal against the Home Office concerning the refusal for the revocation of deportation order. The First Tier Tribunal will receive a filing of the appeal within 10 working days or 5 working days if the person is in detention and if the appellant is inside the UK. Although it would take within 28 working days to file the appeal if the appellant is outside the UK as a result of deportation.
Deportation Immigration Lawyers London
Reiss Edwards are professional immigration lawyers who deal with deportation appeals. Our service quality is self-evident based on the reviews from our clients about the services we have provided. Our immigration lawyers provide a fast, friendly, reliable and professional service and we can be contacted in our London office in relation to an individual's deportation appeal.
After an appeal to the First-tier Tribunal (Immigration and Asylum Chamber) has been dismissed by the Immigration Judge, an application to the First-tier Tribunal for permission of Appeal can be made to the Upper Tribunal.
From the date of receiving the appeal determination, an application for permission must be filed within 5 working days with the First-tier Tribunal. If the appeal was determined under the fast track process for asylum cases, the appeal can be filed within 2 working days and if the plaintiff is outside the UK the appeal must be filed within 28 calendar days.
Application to the upper tribunal may be necessary if you believe that there as a fundamental legal error with a decision that was reached by a lower tribunal. Appeals in this instance may be the best options if the matter is on any of the following: -
Our immigration solicitors can assist you with a written application to argue the reasons why the precious decision of the lower tribunal was wrong. Should the court agree that there is a material error in law, your case will be listed for hearing.
During this hearing, we will present your case in the best possible light. Our team of experts have over 40 years combined experience in dealing with these type of matters.
Please be informed that these types of matters (Upper tribunal hearings and application) may be extremely complex; as such it is important that you instruct the right team of immigration lawyers to represent you.
At Reiss Edwards, our team of legal experts will look in detail to Judge's decision to be ascertain whether or not there is a material error in law; to be sure that we offer our clients the best chance and a fair hearing. We think outside the box and consider all of the direct, indirect as well as personal circumstances as it relates to the matter.
Reiss Edwards do not assist with legal aid as such we will charge a fee for our legal advisory and representation services. Contact us today if you need to speak to someone about a refusal or an appeal you would like to make. Make sure to attach the refusal letter so we can have a clear picture of the Home Office's position before contacting you.
An application can be made for permission to appeal to the Upper Tribunal that is the Immigration and Asylum Chamber, if the same application has been refused by the First Tier Tribunal (Immigration and Asylum Chamber) in order to confront the willpower of an Immigration Judge at First-tier Tribunal.
The Upper Tribunal may hear an appeal a second time in order to help decide if there was a material error of law that was made by the Immigration Judge who in turn determined the appeal at First Tier Tribunal if the application for permission to appeal to the Upper Tribunal was successful and the First Tire Tribunal or the Upper Tribunal has granted the permission for appeal.
The Upper Tribunal has the authority to hear the appeal a second time and to determine the appeal for themselves, they also have the power to choose to maintain the decision of the Immigration Judge or to make new decisions themselves and setting the Immigration Judge's decisions aside. In certain cases, if the Upper Tribunal decides that there was no material error of law in the appeal determination of the Immigration Judge then the Upper Tribunal may remit the appeal back to the First Tier Tribunal.
The Upper Tribunal (Immigration and Asylum Chamber) can receive an application for permission to appeal to the Court of Appeal which in turn can be submitted to confront the decision of the Upper Tribunal on point of law. At the Upper Tribunal, the Senior Immigration Judge normally considers this application process. If the Senior Immigration Judge discovers an arguable material error of law in the decisions of the immigration Judge, he or she can decide to grant permission to appeal to the Court of Appeal.
An additional appeal can be made directly to the Court of Appeal to seek permission on the point of law in order to confront the decisions of the Tribunal if the application to the Court of Appeal on permission to appeal has been earlier refused by the Senior Immigration Judge at the Upper Tribunal (Immigration and Asylum Chamber). If it is discovered that there is an arguable material error of law in the Immigration Judge's decisions, permission to appeal will be granted by the court.
Please note that there will be no appeals to the court of appeal unless the appeal to the Upper tribunal has been concluded. The Upper tribunal ruled that there will no longer be rights of appeals to the Court of Appeal challenging decisions of the Upper tribunal until case in the upper tribunal is concluded.
It is important to note also, that certain decisions attract a right of appeal while some other decisions may not. Please contact our solicitors if you are unsure of whether you should appeal a decision or not. In some cases, it may be best to simply reapply.
Judgement in the case of Singh and Khalid vs SSHD [2015] EWCA Civ 74
This case was a case of two appealing bothering on Article 8 - Human rights.
Having first entered the UK in 1997 aged 22, Mr. Singh had had his asylum application refused and was served a removal notice by the Home office. He went ahead to apply for Indefinite leave to remain on the basis that he had stayed in the country continuously for more than 10 years. Significantly, he applied for ILR under the old rules as well as applying under article 8 of the ECHR.
It took a total of 6 years for the Home Office to process the application; however, in that period, his personal circumstance changed so also did the immigration rules. His application was considered under the current rules which meant that he did not qualify indefinite Leave to remain and had to wait for 20 years.
The court then ruled that the application should have been considered under the old rules. Whilst all that was happening, the applicant then made a fresh application; which was subsequently challenged in the court of law on the basis that a new application should fall under the new rules and not the old rules.
At Reiss Edwards, we can advise you on how best and when to prepare you immigrationapplication. Our Solicitors boast of a great deal of experience in immigration appeals and judicial reviews. Please contact us for a free assessment today.
An appeal is considered to be determined by the Court of Appeal on point of law after an application to appeal to the Court of Appeal has been successful or the Upper Tribunal has granted the permission to appeal.
The Court of Appeal has the authority to hear the appeal a second time and decide whether to maintain the Immigration Judge's decision or to make new decisions and set aside the decision of the Immigration Judge. After deciding if there was a material error of law in the appeal determination of the Immigration Judge, in certain cases the appeal may be remitted back by the Court of Appeal to the First Tier Tribunal.
When you are looking for permission to appeal to the Court of Appeal, there is no application form to be filled, you basically write what is 'a letter' to the home Office outlining two key things: -
You will need to serve all the decisions made by the Home Office to date; the court of appeal will normally be the one to prepare the bundle of the key decisions for you.
You will also need to have an advocate to argue your case before the judges in the court of appeal. Your advocate or legal representative will have to fill in the mandatory questionnaire that outlines the core of your case and arguments. Only if the court of appeal are satisfied with the two tests will they call for a substantive hearing.
In the meantime, the Home Office will review their position, and it may be the case that the parties can agree for the case to be withdrawn on consent; but the court of appeal must consent to that as well. Otherwise the hearing will proceed as normal.
How we can help
At Reiss Edwards, we have a team experienced immigration specialists who can advise you on how best to present your case to obtain the best possible outcome.
      |
Copyright 2017 - Immigration Lawyers London | +44(0)20 3744 2797 | info@reissedwards.com |