A Brief Guide To Immigration Tribunal Appeals

By Oshin Shahiean of OTS Solicitors

To say that the rules surrounding UK Immigration appeals are complex would be an understatement. At present, there are two sets of appeal regimes relating to the rights of appeals affecting Immigration status. This is because under the Immigration Act (IA) 2014, the rights of appeal relating to decisions under UK immigration law have been drastically reduced. These changes were phased in over a number of months across different Immigration categories. Those who applied for a visa under the Points Based System before the relevant cut-off date for changes to their particular category, are subject to the regime that existed prior to the Immigration Act 2014 coming into force. The legislation governing this process is the Nationality, Immigration and Asylum Act (NIAA) 2002.

So to clarify, if you applied for a visa prior to the IA 2014 changes affecting the appeal rights to that visa coming into force, the NIAA 2002 regime will apply. All other visa application appeals will be subject to the limited rights granted by the IA 2014.

Why the reform to Immigration appeals?

The appeal rules were reformed by the Home Office for two simple reasons:

1. Appeals take a long time to process, and during this time the Appellant has the right to remain in the country, even if the appeal takes years to resolve. This is not conducive to the Government’s policy of reducing Immigration; and
2. The appeals procedure is costly, and the Home Office was left with thousands of pounds’ worth of legal fees following long, complex appeals.

The rule of thumb under the IA 2014 is, unless the applicant has made a claim on either Human Rights or refugee grounds, there is no right of appeal for Points Based System migrants. This has, to a large extent, resolved the UK Governments’ problems described above.

The only options available outside of these narrow conscripts are Administrative Review or judicial review.

In an Administrative Review, the Court will only examine the administrative aspects of the decision-makers ruling to see if any errors were made. For example, if a person’s application for Indefinite Leave to Remain was declined because the decision-maker misread that the applicant had only resided in the UK for four years instead of the required five years, then Administrative Review would succeed.

judicial review is more complicated and costlier. In this case, the courts will review the legality of the Home Office’s decision. judicial review can only be sought after all other remedies have been exhausted and permission must be sought from the Court before a judicial review application will be heard. There is also a real risk that the applicant would become an over-stayer as their leave to remain in the UK would not automatically be extended when they file the judicial review action

The important distinction between rejection and refusal

If an applicant submits an application that the Home Office deems invalid, they will treat it as though it was never made. Therefore, the application is rejected rather than refused. An example of where an application many be rejected is where an applicant fails to submit a relevant document. A rejected application can be resubmitted but it is imperative that this is done before existing leave to remain in the UK has expired.

EEA decisions

EEA nationals who wish to challenge a decision can appeal under regulation 26 of The Immigration (EEA) Regulations 2006 which provides a right of appeal to the Immigration Tribunal ‘against an EEA decision’.

Situations where an appeal can be launched include:

• decisions relating to a person’s right to be admitted into the UK
• decisions relating to the awarding of or revocation of a residence card, derivative residence card, registration certificate or permanent residence card
• where a person is going to be removed from the UK
• cancellations under the right to reside under regulation 20A

Grounds for appeal where the Immigration Act 2014 does not apply

The grounds for appeal in situations where the IA 2014 does not apply are contained in section 84 of the NIAA 2002. They include:

• the decision was not made in accordance with the Immigration Rules
• the decision was not made in accordance with the law (ie established policy was not followed
• the deportation of the applicant would breach the UK Government’s obligations under the 1951 UN Refugee Convention or section 6 of the Human Rights Act 1998

Grounds for appeal under the Immigration Act 2014

To launch an appeal in cases where the IA 2014 appeals regime applies, the Appellant must show:

• that removal from the UK would be contrary to the Refugee Convention; or
• that removal would be contrary to the appellant’s rights under the European Convention of Human Rights 1998.

The procedure relating to appeals

Appeals should be lodged with the tribunal within 14 days of receiving a decision from the Home Office if the applicant is residing in the UK. If an applicant is subject to the detained fast track, and appeal must be lodged within 2 working days after the decision was received.

Appeals in the First-tier Tribunal can be decided orally or on the papers; however, orally is the preferred method as it provides the Appellant with the opportunity to answer questions raised by the Home Office or the judge and respond to any submissions by the Secretary of State for the Home Department.

Human Rights appeals

In the case of Mostafa (Article 8 in entry clearance) [2015] UKUT 112 (IAC) the Court held that if Article 8 of the European Convention on Human Rights (ECHR) is engaged, the refusal by the Home Office must be, ‘in accordance with the law and proportionate. The Court went on to say that where the refusal by the Home Office was based on the Appellant’s misrepresentation or not cooperating with officials or where the Appellants rights under Article 8 were not disproportionately affected, then the refusal would not be found to be disproportionate.

The safest strategy to take when submitting an application to the Home Office is to instruct your Solicitor to include any Human Rights arguments in his legal representation cover letter when you are submitting your application for a visa; this may prove crucial should the application be refused, as you would then still be able to appeal on Human Rights grounds.

Summary

In an attempt to control costs and the number of migrants entering the country, the UK Government has made the appeals process risky, complicated and expensive. It is imperative, therefore, that applicants instruct an experienced Immigration Solicitor to prepare their Immigration application so;

a) there is a reduced chance of it being refused; and

b) if it is refused, there is a reference to a Human Rights ground to ensure that there is a right of appeal.

OTS Solicitors, based in the heart of London, specialises in Immigration law. Our expert Immigration lawyers are regarded as some of the best in the UK. If you need legal advice with regards to appealing a Home Office decision, please phone our office on 0203 959 9123 to arrange an appointment.