Get the information you need to practice law Quickly, Easily and No Subscription Required.
What is KnowHow?
Detailed Practice Notes written by our Professional Support Lawyers, guiding you through the key issues in each topic.
Appeals - overview
This topic currently covers immigration appeals to the First-tier Tribunal (Immigration and Asylum Chamber) (FTT) and, in particular, provides guidance on:
which immigration decisions attract a right of appeal to the FTT
how to submit an appeal to the FTT
appeal procedure and relevant timelines, and
preparing for the appeal
The FTT is an independent tribunal within the HM Courts and Tribunal Service. Appeals are decided by immigration judges.
Rights of appeal
Not all decisions taken by the UK Border Agency (UKBA) attract a right of appeal. The legislative framework is not straightforward. For all non-European Economic Area (EEA) decisions (see below) you need to check:
if the immigration decision that the applicant is seeking to challenge is defined as an immigration decision in the Nationality, Immigration and Asylum Act 2002 (NIAA 2002)
if any of the listed circumstances in NIAA 2002 that could render the decision ineligible for a right of appeal apply, and
for in-country applications, whether it is possible to exercise the right of appeal from within the UK
There are no rights of appeal for entry clearance applications in a number of categories other than on human rights and race discrimination grounds. These include:
all applications in PBS categories - though there is provision for an administrative review (AR) of the decision by an entry clearance manager who was not involved in the original decision, and
all applications in the visitor category except for family visitors
See Practice note: Submitting an administrative review request.
An application for leave to remain in any immigration category that is submitted while a person has valid leave will always attract a right of appeal if the refusal means they will no longer have any leave. An application submitted out of time will not attract a right of appeal unless an asylum or human rights claim has been raised, in which case the appeal would be limited to those matters. An appeal will suspend removal in these purposes for as long as it is pending. Appeals submitted in time will automatically extend a person's leave under the Immigration Act 1971, s 3C.
Where there is no right of appeal (or AR), the only remedy will be judicial review, which is expensive and to succeed will require the decision to be unlawful according to public law principles. See: Judicial review - overview.
A separate legislative framework exists for applications submitted under EU law and other relevant decisions. The Immigration (EEA) Regulations 2006, SI 2006/1003, reg 26 imparts a right of appeal to the immigration tribunal ‘against an EEA decision’.
‘EEA decision’ is defined in reg 2 as a decision made under the regulations that concern’s a person’s:
entitlement to be admitted to the UK
entitlement to be issued with or have renewed, or not to have revoked, a registration certificate, residence card, document certifying permanent residence or permanent residence card, or
removal from the UK
Grounds of appeal
The prospective appellant's grounds of challenge must fall within one of the listed grounds of appeal in NIAA 2002, s 84. These include:
the decision is not in accordance with the Immigration Rules
the decision is otherwise not in accordance with the law - this will be the relevant ground where the UKBA has not followed a published policy or if its decision breaches public law principles such as the principle of fairness, and
removal of the appellant from the UK in consequence of the immigration decision would breach the UK’s obligations under the 1951 UN Refugee Convention or would be unlawful under the Human Rights Act 1998, s 6
An appeal must be lodged with the tribunal within 10 business days of the date that appellant was notified of the decision, if they are not detained, and 28 business days for an entry clearance decision. There is some provision for applying to the tribunal to extend this deadline in exceptional circumstances.
Fees were introduced to appeals to the FTT from 19 December 2011.
FTT appeal procedure is governed by the Asylum and Immigration Tribunal (Procedure) Rules 2005, SI 2005/230 and the practice directions of the Immigration and Asylum Chambers of the FTT and Upper Tribunal (UT). Standard directions provide for an indexed and paginated bundle of evidence, witness statements to be relied on, a chronology of events and a skeleton argument to be served on the tribunal and the UKBA no later than 5 working days before the full hearing date for in-country appeals and 10 working days for out-of-country appeals.
Appeals can be decided either orally or on the papers. In the majority of cases an oral hearing is preferable as it allows the appellant (or, in the case of entry clearance appeals, their representative or UK sponsor) to respond to submissions made by the UKBA and questions raised by the latter or the immigration judge.
If an appeal is not allowed, it is possible to appeal to the UT on a point of law. Unlike the FTT, the UT is a court of record. This means that its determinations can be relied on as authority in subsequent tribunal cases. Guidance on appeals to the UT and higher courts will be included in Lexis®PSL Immigration in due course.
To find out more about PSL Contact us or call 0207 400 2984