Making an application for a UK visa is a comparatively expensive process, and Immigration rules can be complex, therefore, any mistakes the applicant makes can have severe implications in terms of time, stress and finances. It is for this reason that one is best advised to use a qualified UK immigration lawyer when applying for a visa, which can potentially save the hassle and cost of things going wrong.
Although using a UK immigration solicitor reduces the chance of an application being refused, it is by no means 100% guaranteed to be successful (anyone disputing that is not being honest). Things can go wrong… and sometimes the Home Office make mistakes.
We have experienced this on occasion in our practice, and we understand how stressful it is to have an application refused even though the applicant meets the criteria for a visa. This article deals with those unfortunate circumstances and explains the necessary steps to remedy things if a visa application has been refused.
Which decisions are appealable and grounds of appeal
The general rules of appeals are set out in s. 82 of the Nationality, Immigration and Asylum Act 2002, as amended by Part 2, s. 15Immigration Act 2014.
There are three situations in which there is a right of appeal:
- Refusal of a protection claim
Additionally, the appeal must be brought on one or more of the following grounds, as stated in s.84 of the Immigration Act 2014:
- Removal of the appellant from the United Kingdom would breach the United Kingdom’s obligations under the Refugee Convention;
- Removal of the appellant from the United Kingdom would breach the United Kingdom’s obligations in relation to persons eligible for a grant of humanitarian protection;
- Removal of the appellant from the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention).
- Refusal of Human Rights claim
An appeal under section 82(1)(b) (refusal of human rights claim) must be brought because the decision is unlawful under section 6 of the Human Rights Act 1998.
- Revocation of protection status
An appeal under section 82(1)(c) (revocation of protection status) must be brought on one or more of the following grounds:
- The decision to revoke the appellant’s protection status breaches the United Kingdom’s obligations under the Refugee Convention;
- The decision to revoke the appellant’s protection status breaches the United Kingdom’s obligations in relation to persons eligible for a grant of humanitarian protection.”
Check if you have the right of appeal!
An applicant can only appeal the decision if he/she has the legal right to appeal. Normally the refusal letter will state whether a person has a right of appeal.
Where there is NO Right of Appeal
If there is no right of appeal, the applicant would need to bring into action the more expensive process of Judicial Review, which is where they sue the government by challenging the decision’s legality. This is a complex and very costly process, and it is important to take detailed advice from a UK Immigration solicitor before embarking on it.
Lodging an Appeal
The location of the applicant whose application has been refused determines the method and timing of an appeal;
- From within the UK: To appeal within the UK, the applicant has 14 days after the decision date and should use form IAFT–5.
- From Abroad: To appeal a decision from outside the UK, the applicant has 28 days to appeal after they receive the decision. Generally, they should use form IAFT – 6 for appeals against a decision of an Entry Clearance Officer and, for example, form IAFT – 7 for appeals, which can only be exercised after they have left the UK.
Where and What to Send:
The appeal form should be sent to the court using the address on the form, NOT to the Home Office. It should include a copy of the refusal decision being appealed against and a summary stating the grounds for appeal.
It is crucial to follow the immigration rules and appeal procedure to succeed and have the precise Grounds of Appeal accompany your appeal, as the appellant (the person appealing) may need to obtain court permission if they seek to significantly change the grounds later on.
Please note: that Solicitors and Immigration Lawyers have a different and more effective system of filing client applications. They can also pursue the appeal via an integrated case management system linked with the court, for which the lawyer has login details and can effectively manage everything online through an online case management system for legal professionals called MyHMCTS
Types of Hearing – Oral or Paper
When lodging an appeal, the appellant can choose to have an oral hearing – a hearing that they or their representative can attend and give evidence at in person, or a paper hearing, where the judge makes a decision strictly based on the information in their appeal form and any documents supplied to the tribunal.
It is worth mentioning that generally, the chances of success are higher when an appellant chooses to give evidence in person, especially in human rights cases, as the judge can question them. They also have the opportunity to present the human side of the argument.
It costs £80 for an appeal without a hearing( Appeal on Paper Only), when the judge decides based on the documents you have submitted, and £140 with a hearing (Oral Hearing), where the appellant has a chance to give evidence in person.
In-Country or Out-of-Country Right of Appeal General Rule
Additionally, section 92 of the National, Immigration and Asylum Act 2002, determines whether the decision can be appealed from inside the UK or if it can be made only from abroad.
Generally, when the appellant was inside the UK when he / she made a claim, the appeal can be made from within the UK unless his claim has been certified as being clearly unfounded under section 94 or 94B of National, Immigration and Asylum Act 2002.
Clearly Unfounded Certification – No right of appeal
A claim could be classed as clearly unfounded under section 94 if the appellant is entitled to reside in a country considered as safe (the list of countries deemed safe can be found here) in the context of protection and human rights claims.
Human rights claims might be certified under section 94B of the National, Immigration and Asylum Act 2002 as clearly unfounded where the appellant has been removed from the UK but there is no real risk of serious irreversible harm to the appellant before any appeal is concluded.
Where a person has not been given an in-country Right of Appeal or no right of appeal, the only way to challenge such a decision may be by bringing an action again the government – a Judicial Review where the legality of the decision can be analysed by a high court judge. However, a Judicial Review is a much more expensive and lengthy process compared to an appeal,
Crucially, a Judicial Review usually does not allow the judge to analyse the merit or demerit of the application and substitute the Home Office decision, e.g. by ordering the visa to be granted, but rather only can quash the Home office decision by asking them to reconsider the application.
Pre-hearing and Hearing
Following giving notice of appeal on the prescribed form as discussed above, sometimes there will be a pre-hearing to determine the issues in dispute and the evidence necessary to deal with them. It is highly beneficial to use a UK immigration solicitor who will help to state the accurate grounds of appeal and who is familiar with the immigration rules and appeal procedures.
Regarding the actual hearing, all cases are generally listed for hearing at 10 am. The judge will decide on the day the order in which the cases will be heard, so the appellant may have to wait. Nonetheless, they must appear in court around 30 mins to 1 hour before the scheduled time, as they need to go through the security check and inform the court clerk about their arrival.
The appeal will probably be heard by one judge. The Home Office representative will be sitting on one side of the room, and the appellant should sit on the other side with their lawyer if they have one. During the hearing, the appellant will be asked some questions, and there will also be time for their witness(es) to give evidence (if they have any).
At the end of the hearing, the Home Office will state to the judge why the appeal should be dismissed. Then the appellant will have time to make their argument, explaining to the judge why the appeal should be allowed (if the appellant has a lawyer, he/she will make closing submissions for them).
It is usually crucial to ask for help from an experienced UK Immigration Lawyer. At the appeal hearing the judge will determine whether or not to uphold the original decision. It is important to remember that it is the appellant’s responsibility to provide as much relevant evidence as possible to support their case, and it can save time and money if it is done the first time properly.
Relevance of the Bundle and Skeleton Argument
In addition to making closing submissions, a solicitor will help the appellant to prepare a court bundle with all the necessary evidence in a logical manner to guide the judge in assessing the case. The bundle should be followed by an index, showing the page numbers of each document.
The bundle should also contain a Skeleton Argument with brief background details and a written submission, which should define the issues, and refer to the relevant law and the documentation evidence in the bundle. The Skeleton Argument should be as brief and concise as possible; the hearing is the time to advocate the matter; thus using a qualified UK immigration lawyer can make a huge difference. Where the issues are complex, it is of the highest importance that a comprehensive bundle is prepared.
Please note that proper preparation for the hearing and the submission of a relevant bundle can make a positive impression on the court and place you in a good position before the hearing even starts.
There is a timescale for submitting the bundle, and generally, it should be received by the court no later than five working days before the full hearing.
After the Hearing:
Normally, the appellant will receive a decision in writing in 28 days. If the court allows the appeal, the decision will be implemented within several weeks, and the Home Office should take the necessary steps to follow the decision.
If the appellant loses the appeal, he /she may be able to appeal to a higher court (Upper Tribunal), but only if a legal mistake was made by the tribunal. However, this is much more complex, and an appellant can seek permission to appeal the matter further strictly because there was an error of law.
If you have been unfortunate enough to have been refused a visa, using an experienced UK immigration solicitor when lodging an appeal can provide many benefits and help ensure the process goes smoothly. We have assisted many clients in successfully appealing a Home Office decision and will be honest with you from the outset about your chances of success. Please contact us if you have questions about the process or would like us to assist you in lodging an appeal.
You may contact us by filling in our Quick Enquiry form any time you need professional support or have any questions. Alternatively, you can call us during office hours on 07544669131 / 0116 3800 744
Cross Border Legal Ltd is a UK Solicitor law firm regulated by the under the Solicitor Regulations Authority and is Headed by Mr Tito Mbariti, a UK Immigration and Human Rights Solicitor who is a practising lawyer and member of the Law Society of England and Wales.