Appealing A Visa Refusal: Your Rights And The Processes

The UK’s Immigration Rules and Regulations coupled with the Home Office’s extensive guidance on visa applications and appeals can be complex to understand. Our immigration team are routinely instructed by visa applicants who have had refusals due to the Secretary of State not being satisfied the applicant meets all the requirements for the particular visa.

Our immigration solicitors and barristers understand that this can be a stressful time for an Applicant, especially when they have to consider the impact the refusal will have on their business, work or family life. Our leading immigration experts are well versed with the Immigration Rules to ensure that applications are executed thoroughly, including drafting detailed legal representations on their behalf to rebut any presumptions and leave no room for doubt when the Home Office case worker is assessing the application.

Where an applicant comes to us with a previous refusal or adverse immigration history, we are able to able to assess their situation, give tailored legal advice and discuss next steps and options available to the client. In the case of a refusal, we advise the client on challenging the Secretary of State’s decision and the appeal process in depth. In some circumstances, it may be necessary to challenge a decision by way of a Judicial Review.

Right of Appeal

The appeal process generally involves submitting an appeal form, providing supporting evidence, and attending a hearing where you can present your case.

It’s important to note that not all visa refusals are eligible for an appeal. Some visa categories, such as visitor visas, do not have a right of appeal, but applicants may have other options available, such as administrative review or reapplying. The specific reasons for the refusal and the type of visa applied for will determine the available avenues for challenging the decision.

Where you made an in-country application, you will have 14 days from the date of the refusal letter to appeal the decision. Out-of-country applications, however, provide 28 days from the date of the refusal letter to appeal.

Appealing In The First-tier Tribunal (“FtT”)

The Tribunal in which you have a right to appeal to varies case by case. It will initially begin in the First-tier Tribunal (“FtT”). This is the first level of the Immigration Tribunal which serves as the primary judicial body tasked with adjudicating appeals against rulings made by the Home Office concerning entry clearance, permission to reside in the UK, and deportation from the UK. Functioning autonomously from the Home Office, the Immigration Tribunal holds the authority to overturn decisions made by the Home Office that result in a refusal.

Not all immigration decisions made by the Home Office are eligible for appeal. There are circumstances in which you may have hold this right (in the FtT) which is typically granted if the Home Office has made decisions such as:

  • Rejecting your human rights claim or protection claim (also referred to as an “asylum claim” or “humanitarian protection”) or revoking your protection status;
  • Denying you a residence document or deporting you under the Immigration (European Economic Area) Regulations 2016 (with applicable saving provisions);
  • Revoking your British citizenship;
  • Refusing, revoking, or imposing conditions on your status, duration, or terms of stay, or deporting you under the EU Settlement Scheme;
  • Declining or revoking your travel permit or family permit under the EU Settlement Scheme, or restricting your rights to enter or leave the UK under those permits;
  • Refusing or revoking your permit or deporting you if you are a frontier worker;
  • Refusing or revoking your leave, or deporting you if you are an S2 healthcare visitor.

If your asylum or human rights claim has been certified as “clearly unfounded” by the Home Office, you will not have the right to appeal. However, you may have the option to challenge the certification through a Judicial Review.

If the decision you wish to contest is not an appealable immigration decision and you do not have the right to appeal, you may still be able to request an Administrative Review from the Home Office. Keep in mind that only specific types of applications carry the right to an Administrative Review if refused.

In some cases, it is possible to pursue an appeal even if the Home Office argues against your right to do so. However, you will need to present jurisdictional arguments before the Tribunal. For instance, this may be applicable in situations involving a returning resident visa where strong family ties exist.

If you are unsure whether your refusal decision allows for an appeal to the First-tier Tribunal (Immigration and Asylum Chamber), LEXVISA can provide you with guidance and advice.

Appealing In The Upper-tier Tribunal (“UT”)

The Upper Tribunal (Immigration and Asylum Chamber), often referred to as the Upper Tribunal (“UT”), serves as a higher-level court compared to the First-tier Tribunal (Immigration and Asylum Chamber). Its primary role involves adjudicating appeals against rulings made by the First-tier Tribunal concerning entry clearance to the UK, permission to reside in the UK, and deportation from the UK.

The UT handles applications for Judicial Review regarding certain decisions made by the Home Office concerning immigration, asylum, and human rights claims. This includes reviewing the lawfulness and fairness of these decisions.

Appealing to the UT against a decision made by an Immigration Judge in the FtT does not come with an automatic right. Instead, one must first apply for permission to appeal.

If permission to appeal is granted, only then can a decision from the FtT (Immigration and Asylum Chamber) dismissing an immigration appeal be appealed to the UT.

To seek permission to appeal to the UT, you must initially submit an application to the FtT. If the FtT rejects your application for permission to appeal, you have the option to submit a further application directly to the Upper Tribunal.

When applying for permission to appeal to the UT, you are required to present a written application that outlines the specific error of law made by the Immigration Judge in the FtT when dismissing your appeal against the Home Office’s decision. It is insufficient to solely express disagreement with the Judge’s findings.

Normally, applications for permission to appeal to the UT are determined based on the Immigration Judge’s decision and the written grounds of appeal provided by the appellant, without an oral hearing.

Permission to appeal to the UT will only be granted if the reviewing Judge is convinced that there is an arguable case highlighting the potential legal error made by the Immigration Judge in the FtT’s decision. In other words, there must be a reasonable basis to suggest that the decision to dismiss your appeal was legally incorrect.

The UT can be approached for appeal when there are various types of errors made by the FtT.

For instance, the decision of the FtT may be deemed legally incorrect if the Immigration Judge who dismissed your appeal:

  • Applied the Immigration Rules inaccurately or misconstrued them.
  • Failed to consider crucial evidence.
  • Lacked evidence or had insufficient evidence to support the decision.
  • Rendered a decision that contradicts a binding decision from a higher court.
  • Followed an incorrect procedure that resulted in unfairness.

Recognizing errors of law in a determination made by the FtT requires specialized legal expertise. It may be advisable to seek assistance from an immigration appeal lawyer who possesses expert knowledge in this area. Our immigration solicitors and barristers at LEXVISA have extensive experience in reviewing FtT determinations, identifying errors of law, and drafting grounds of appeal that support successful applications for permission to appeal to the UT.

How Long Does UK Immigration Appeal Take?

The duration of a UK immigration appeal can vary depending on several factors, including the type of appeal, the complexity of the case, the availability of hearing dates, and the workload of the immigration tribunal.

The processing time for an immigration appeal could range from several months to over a year. Simple cases might be resolved more quickly, while complex cases involving multiple issues or extensive evidence may take longer to be heard and decided.

It’s worth mentioning that there are different stages involved in the appeals process, and each stage may have its own time frames. The initial stage involves lodging the appeal, providing supporting documentation, and waiting for the case to be listed for a hearing. The waiting time for a hearing can depend on the caseload of the tribunal, and it may vary in different regions.

After the hearing, the immigration tribunal will issue a decision, which could be provided orally at the hearing or sent in writing afterward. The time taken to receive the decision can also vary, and it may range from a few weeks to a few months.

Instruct Our Expert Immigration Appeal Solicitors

Our immigration lawyers have the necessary expertise and experience to consider your refusal letter and advise you on the best route of action. If your application has been refused and you believe this is due to an erroneous on the Home Office’s part, please contact our experienced solicitors and barristers today so we can advise you of the next steps available to you and whether you are eligible to submit an Immigration Appeal or Administrative Review.

We are an Immigration law firm based in Middle Temple, London and our solicitors are fully authorised by the Solicitors Regulation Authority (SRA). Contact our specialist immigration team today and we can offer you a consultation in person or via telephone or Skype so we can explore your options. You can leave us a message on our Contact Form or give us a call on 02030110276.

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