If a visa application has been refused by the Home Office, there may be the possibility to appeal against the decision to the First-Tier Tribunal, who can then over-turn the decision. In some circumstances there may be no right of appeal and therefore either an Administrative Review or Judicial Review may be sought. Under section 92 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”), it is outlined whether the individual has an in-country right of appeal or an out of country right of appeal. The Secretary of State for the Home Department (SSHD) has the power to certify claims so that an individual must make their appeal from outside the UK.
What is an Out of Country Right of Appeal?
If the claimant was outside of the UK at the time of which they made the claim, then the appeal must be made from outside the UK. The appeal must be made within 28 days from the date the claimant left the UK.
The nature of refused claims which bring about an out of country right of appeal are human rights claims whilst the claimant is outside the UK, revocation of protection whilst the claimant is outside of the UK, protection claims under s 94 of the 2002 Act and human rights claims made whilst the claimant is in the UK and certified under s 94 of the 2002 Act.
It is advised that you obtain legal representation such as our specialist immigration lawyers, in order to make an out of country appeal so that your appeal has the best chance of succeeding.
Certification Powers by the SSHD for an Out of Country Right of Appeal
Usually if a claimant was inside the UK when the claim was made, they have an in-country right of appeal, unless the claim has been certified by the SSHD. The SSHD has certification powers under section 94 of the 2002 Act. The following claims may be certified;
- a protection or human rights claim if the claim is clearly unfounded;
- a protection or human rights claim if the person is to be removed to a third country where there is no reason to believe that their human rights will be breached;
- a protection or human rights claim if it is proposed to remove them to a safe country for that claim to be considered safe third party country cases; or
- a human rights claim by those liable to deportation where if they are removed there is no real risk of serious irreversible harm before any appeal is concluded.
The certification of protection and human rights claims is necessary in order to safeguard the grounds of appeal by preventing appeals delaying removal, where human rights claims are clearly unfounded and by supporting the reduction of intake of false human rights claims.
If an individual makes a claim from within the UK but then leaves the country before the final conclusion of the appeal is reached, the appeal is classed as abandoned, unless if the claim has been certified.
EEA Out of Country Right of Appeal
Regulation 27 of the Immigration (European Economic Area) Regulations 2006 (“the 2006 Regulations”) sets out the decisions which sanction out of country right of appeals for EEA nationals. These include refusals to admit a person into the UK, revocation of admission into the UK, an exclusion order against an individual, refusal to issue an individual with an EEA Family Permit and to revoke or refuse to issue or renew any document under EEA Regulations whereby the decision is taken at a time when the relevant individual is outside of the UK.
However, if the individual is in the UK and can prove that they are a resident here, they can be judged to be an exception. The individual is deemed not to have been admitted into the UK under Regulation 22(3) of the 2006 Regulations, but instead at the date when the notice of the refusal decision is given should that individual had been in the UK for at least 3 months.
Using Legal Representations for a Successful Out of Country Right of Appeal
Legal representatives, such as our specialist immigration and visa law firm, are qualified to advise you on immigration law and your immigration status. It is possible to instruct an immigration and visa legal representative if you have an out of country right of appeal.
Our team of solicitors and barristers are specialist immigration lawyers who act in your best interest, offering a client-tailored approach from the outset. We can assist you with the preparation of your out of country appeal and ensure that you meet all the requirements of the relevant rules.
Preparation is the key to successful immigration applications. Our UK immigration and visa solicitors are here to guide you through the complex immigration rules and requirements. Our Solicitors can also draft comprehensive and strong witness statements in support of your appeal. These can prove essential for a successful appeal. In addition to this, our specialist immigration team can also assist in gathering necessary documentary evidence and provide substantial reviews of your documents to giving your appeal the best chance of overturning a Home Office decision.
If you wish to meet one of our lawyers, please call our Immigration Team so we can assess your case and arrange your legal consultation, which may be conducted via Skype.
Contact our London immigration solicitors today on 02071830570 or complete our contact form.