In-Country Rights of Appeal - Law & Procedure
All non-settled persons residing in the UK (not EEA nationals) need to seek either an extension of leave to remain or variation of leave to remain in order to prolong their stay in this country. If the application for leave to remain is refused, they would usually have a right of appeal.
1. Right of Appeal
There is a general rule given in section 82 of the Nationality, Immigration & Asylum Act 2002 stating that where an immigration decision is made in respect of a person he may appeal to the Tribunal.
An immigration decision is defined as:
- Refusal of leave to enter the UK
- Refusal of entry clearance
- Refusal of certificate of entitlement under section 10 of the Nationality, Immigration and Asylum Act 2002
- Refusal to vary a person's leave to enter or remain in the UK if the result of the refusal is that the person has no leave to enter or remain
- Variation of a person's leave to enter or remain in the UK if when the variation takes effect the person has no leave to enter or remain
- Revocation under section 76 of the Nationality, Immigration and Asylum Act 2002 of ILE/R in the UK
- A decision that a person is to be removed from the UK by way of directions under section 10(1)(a), (b) or (c) of the Immigration & Asylum Act 1999 (removal of person unlawfully in the UK)
- A decision that an illegal entrant is to be removed from the UK by way of directions under paragraphs 8 to 10 of schedule 2 to the Immigration Act 1971 (control of entry: removal)
- A decision that a person is to be removed from the UK by way of directions given by virtue of paragraph 10A of that schedule (family)
- A decision that a person is to be removed from the UK by way of directions under paragraph 12 (2) of Schedule 2 to the Immigration Act 1971 (seamen and aircrews)
- A decision to make a deportation order under section 5(1) of that Act
- A refusal to revoke a deportation order under section 5(2) of that Act
The above is a long list of circumstances when an appeal can be lodged against the immigration decision. Although in out-of-country cases an appeal can be lodged only while remaining outside the UK, in in-country cases there are circumstances when the applicant is required to leave the UK in order to exercise his right of appeal. The applicant can exercise his right of appeal only while remaining in the UK in cases (c), (d), (e), (f) and (j) in the list provided above. In the rest of the cases, the appellant is required to leave the UK, and he can only exercise his right of appeal from outside the UK. The time of lodging the appeal would start running from the day the appellant leaves the country.
2. Time Limitations
If he is not detained, the appellant has got 10 working days to lodge an appeal against the immigration decision, while he has 5 working days if he is detained. Time starts running from the day when the notice of immigration decision is served on the appellant and not from the date of refusal. The appellant can however apply for an extension of time limit if he can show ‘special circumstances’ for the delayed submission of the appeal.
3. Grounds of Appeal
The appellant needs to give the reasons for making the appeal. This is normally done by relating the information and circumstances of the appellant to the relevant requirements of the Immigration Rules or other laws and also referring to the judicial precedents. The appellant can make use of the following grounds of appeal, where relevant, in order to address the reasons for lodging the appeal:
- That the decision is wrong under the immigration rules, or discretion under the rules should have been exercised in the applicant's favour.
- That the decision is discriminatory under the Race Relations Act 1976.
- That the decision breaches the applicant's human rights
- That the removal from the UK as a result of this decision would breach the applicant's human rights or the UK's obligations to refugees
- That the decision breaches Treaty rights in respect of an EEA national or dependant
- That the decision is otherwise unlawful
4. New evidential restrictions in respect of points-based system appeals
From Monday 23 May, 2011, Immigration Judges, in most circumstances, will not be able to consider evidence submitted after an application has been made, in appeals relating to applications made in the UK under the points-based system. The Tribunal may consider evidence adduced by the appellant only if it was submitted in support of, and at the time of making, the application to which the immigration decision related.
This restriction of evidence will relate only to points-based system appeals brought on the following grounds: that the decision is not in accordance with immigration rules; that the decision is otherwise not in accordance with the law; that the person taking the decision should have exercised differently a discretion conferred by immigration rules. It does not apply to points-based system appeals on human rights, refugee, EEA or race discrimination grounds so the Tribunal could, if applicable, consider ‘late evidence’ on these grounds only.
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5. Detailed Procedure
Whenever an immigration decision is made that leads to a right of appeal, the UK Border Agency should inform the appellant about his right of appeal and the time limit for lodging any appeal against the immigration decision. Appealing is a two-stage process:-
a. Submission of Appeal
The appellant is required to submit the Notice of Appeal, along with the relevant documents, within 10 working days (if not detained) / 5 working days (if detained) from the service of the Notice of the Immigration Decision. It should contain all the relevant information and documents, as well as the Notice of Immigration Decision, and address all the issues raised by the UK Border Agency in the refusal letter. The grounds of appeal section is a very important section of the appeal form and should be used to clearly and explicitly address all the relevant issues. Efforts should be made to obtain documents that might assist in showing that the appellant fulfils the requirements of the Immigration Rules or other relevant policies.
When the Notice of Appeal is lodged, the appeal will proceed to a hearing before an Immigration Judge in the tribunal, sitting in the Immigration and Asylum Chamber (IAC). The appellant can request the appeal is considered without a hearing on the basis of papers alone. The respondent (the UK Border Agency) prepares a bundle of documents for the hearing and sends it to the appellant and IAC for their information. The bundle of documents includes:
- The refusal letter and the Notice of Immigration Decision.
- Copy of the immigration application made to the UK Border Agency.
- Copies of the documents submitted with the original application.
- Any interview records.
- Any records of any checks made by the respondent regarding the credibility of documents submitted with the original application.
- Copy of the Notice of Appeal.
- Copies of the documents submitted with the Notice of Appeal.
- Any other documents which are relevant to the case.
If the appellant decides to have his appeal heard before an Immigration Judge, he can either represent himself before the IAC or appoint a representative who can represent him in the proceedings in the IAC.
The appellant is allowed to submit more documents or information. The appellant's representative prepares the documents and provides a copy of the bundle to the IAC and the Home Office Presenting Unit within the prescribed time limitations and in accordance with the IAC’s Directions. The appellant's representative is also allowed to use witnesses, where relevant, to help explain the genuineness of the case and the relevant circumstances. The presence of the appellant is extremely important (indeed required) so there is an opportunity to explain the circumstances of the application and assist an Immigration Judge to properly formulate an opinion.
The Immigration Judge considers the appeal in light of the bundle of documents submitted by both the parties, the oral evidence given at the hearing by the witnesses and the submissions made by the appellant's representative and by the Home Office Presenting Officer on behalf of the UK Border Agency. The hearing results in a written determination of the appeal by an independent Immigration Judge, which can be challenged on a point of law only (a serious mistake of fact will amount to a point of law) by the aggrieved party. The scope of the appeal would be restricted, and the parties would only be allowed to take up the legal issues remaining in dispute in the case. The immigration application may therefore be only a starting point in a legal process that might end up in the higher courts of the UK. This is the reason it is always advisable to seek professional advice and services before making any immigration application, otherwise the cost and the time involved in pursuing a remedy could be very inconvenient and distressing.