The UK Home Office grants several million visas each year, and refusal rates (other than for asylum claims) are relatively low. If you do face the heartbreak of a negative decision, what can you do? Plans may have to change and futures rethought. However, in some cases, negative decisions can be appealed, and you can make your case to a Tribunal Judge. Not every decision can be appealed – often you will be given a right of administrative review, which is an internal Home Office process. It is important from the outset that you know what remedies you have if the Home Office does not grant your application.
Appeals can be made from both inside and outside the UK. If you applied for a family visa from abroad, you may be able to appeal, but will not be allowed to enter the UK to make your case. Your UK sponsor – normally a family member – will be able to attend a hearing on your behalf. Remember however that many applications from abroad are not appealable – notably the refusal of a visit visa, where the only remedy (other than re-application with stronger evidence) is judicial review. Some applicants inside the UK are given a non-suspensive right of appeal, which means the Home Office can remove them from the UK to their own country, and they can appeal from there. Such cases are relatively rare. Normally, if you receive a negative, appealable decision while you are in the UK, you are allowed to remain here while you pursue that appeal.
Rights of appeal against immigration and asylum decisions have been cut down significantly over the years. You are now only able to appeal on two main grounds – that the Home Office decision breached your (or others, eg family members and children’s) human rights contrary to the UK’s obligations under the European Convention on Human Rights (ECHR), or your removal from the UK would be contrary to our obligations under the Refugee Convention.
What matters in non-asylum cases is that you made a “human rights” application. A lot of the cases we deal with here at Latitude Law would be considered human rights applications. These sorts of applications involve a person’s family and private life. They cover applications as partners, parents and children but they also cover applications from people who are applying based on their residence in the UK or the life they have formed here. Some common cases that are not human rights applications are study and work-based applications.
If you made a human rights application, and you are refused, you will normally be granted a statutory right of appeal. You must exercise this right by filing your appeal, within the deadline, with the First Tier Tribunal, Immigration and Asylum Chamber. The deadline is usually 14 days if you’re inside the UK and 28 days if you’re outside the UK. Late filing is possible if there is a good reason like delays in receiving the decision or illness.
In many cases, if you can appeal you should. Tribunal Judges are, on the whole, more sympathetic decision makers than the Home Office and they are better able to assess complex or incomplete evidence before making decisions.
Once you’ve filed the appeal the Tribunal’s Legal Officers will manage its progress. Legal Officers are not lawyers, they will not give legal advice, but they will help move your appeal forwards and issues instructions (called directions) telling you and the Home Office what needs to happen next.
The general progression of an appeal is as follows:
- You receive the negative decision from the Home Office and file the appeal within the deadline.
- The Tribunal checks the filing to make sure you can appeal the decision, if you can, the appeal will enter the system and start to progress through the following stages.
- The Home Office will be directed to provide their evidence – usually all of the evidence provided with the application and any additional evidence they wish to rely on to support their negative decision.
- You will then be directed to provide any additional evidence you wish to rely on to support your appeal. You do not need to provide evidence already provided by the Home Office. Note that there are restrictions on filing evidence of “new matters” – you may need Home Office permission for such evidence to be admitted.
- The Home Office will review your additional evidence and decide if they wish to proceed with the appeal.
- If the Home Office wish to proceed, the hearing date will be set and you, your sponsor and your legal representative if you have one will appear before the Judge to make your case. The Judge will hear the case and issue a written decision, usually within 2-4 weeks.
Usually, if the Judge finds in your favour the Home Office will implement the decision and grant you the visa or status you initially applied for. The Tribunal is not, except in special circumstances, a costs jurisdiction, which means you cannot recover legal fees from the Home Office if you win.
Importantly, the Immigration Tribunal is independent of the Home Office. Tribunal Judges do not work for the Home Office and they are not controlled by the Home Office. This means that, in theory, you and the Home Office are equals in the appeal.
One important consequence of being ‘equal’ is that both you and the Home Office can challenge the decision of the Judge. If the Judge finds in your favour the Home Office can seek to appeal. If the Judge finds for the Home Office you can seek to appeal.
Challenging the decision of a Judge is called a “permission to appeal” application – you must apply for permission to appeal. The permission application will be assessed by a different Judge. Permission to appeal applications turn on “material errors of law” they are much more than disagreements with the Judge’s decision.
Appealing a Home Office decision can take many months, so it may be worth considering a re-application instead, which can often be decided more quickly. Taking advice from experienced legal representatives is of course recommended if you find yourself in the appeal system.