Out of Country Rights of Appeal - Law & Procedure
Visa nationals are required to make an entry clearance application before making any arrangements to travel to the UK. There are separate application forms available to apply for temporary and permanent immigration categories, and each requires a distinct set of documents and information specific to the immigration category. The applications can be straightforward, but often cases require to be presented carefully in order to avoid any disappointment.
Entry Clearance Officers will refuse applications where they are not satisfied the requirements of the Immigration Rule are met. They also do not make a right decision every time and misunderstand or overlook evidence submitted with the application. There may be more than one reason for the refusal of the entry clearance application, for example, failure to provide relevant documents, confusion during the interview, previous immigration history, etc..
1. Right of Appeal
Refusal of most types of entry clearance application triggers a right of appeal for the applicant. There is, however, no right of appeal for either the applicant or dependants travelling with the applicant in the following cases:
- If the application is for a visit to the United Kingdom, including a family visit, however if you have recently received a family visit refusal, and it is dated before 25/06/2013 or soon after, then please contact us as you still may have a right of appeal.
- If the application is applying to study in the United Kingdom for less than six months.
- If the application is applying to study in the United Kingdom, but the applicant has not been accepted for any course.
- If the application is refused because the applicant does not have an immigration document of a particular kind required under the Immigration Rules
- If the application is refused because the applicant does not qualify for entry clearance under the Immigration Rules because of age, nationality or citizenship.
- If the application is refused because the applicant is seeking to enter the United Kingdom for a purpose other than one for which entry is permitted in accordance with Immigration Rules.
2. Time Limitations
The appellant has got 28 calendar days to lodge an appeal against the decision of the Entry Clearance Officer. 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 the 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 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. Points-based system appeals
In out-of-country points-based system applications the applicant can appeal only on certain limited grounds. These are that the decision is unlawful by virtue of section 19B of the Race Relations Act 1976 (discrimination by public authorities), and/or that the decision is unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant’s Convention rights.
There is an Administrative Review, conducted by an Entry Clearance Manager, available to an applicant who has been refused under the points-based system. Administrative Review is the procedure for reviewing refusal decisions made under the points-based system where an applicant believes an error has been made in the decision. It is free of charge and the request must be made within 28 days from the date the refusal notice is received by the applicant. The applicant will receive the Administrative Review request notice with the entry clearance refusal notice. An applicant is not permitted to send any additional documents with the Administrative Review request notice, as the decision is reviewed only in the basis of the documents that were before the Entry Clearance Officer who made the decision. If the refusal is overturned, the applicant will be asked to send in their passport.
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5. Detailed Procedure
Whenever an Entry Clearance Officer refuses an entry clearance application that leads to a right of appeal, they 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 28 days from the service of the refusal letter. 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 Entry Clearance Officer (ECO) 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 (especially so in entry clearance appeals where the Entry Clearance Manager will review the decision on appeal). 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 Entry Clearance Post receives an appeal, an Entry Clearance Manager (ECM) will review the refusal of the original application in conjunction with the grounds of appeal and the documents submitted with the appeal form. They will make a decision to either uphold the original decision or overturn the decision, and grant leave to enter to the appellant. The entry clearance appeal process therefore stops when the appeal is favourably reviewed and the original decision is overturned.
If the original decision is upheld, the appeal process does not stop and proceeds to a hearing before an Immigration Judge in the tribunal, sitting in the Immigration and Asylum Chamber (IAC) in the UK. The appellant can request the appeal is considered without a hearing on the basis of papers alone. The respondent (the Entry Clearance Post) 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 decision of the Entry Clearance Officer.
- The decision of the Entry Clearance Manager upholding the original decision.
- Copy of the entry clearance application made to the Entry Clearance Officer.
- Copies of the documents submitted with the original application.
- Copy of the Notice of Immigration Decision.
- 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 appoint a representative who can represent him in the court proceedings in the Immigration and Asylum Chamber of the First-tier Tribunal (IAC). (The appellant will not be able to attend the hearing as he is outside the UK.)
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 any sponsor is extremely important, 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 any witnesses and the submissions made by the appellant's representative and by the Home Office Presenting Officer on behalf of the Entry Clearance Post. 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.