Immigration appeals come about when applications are refused. For this reason they are often accompanied by much stress and heartache for the appellant and possibly their family. It is important to understand how the appeals system works in order to demystify the somewhat long and often confusing road ahead so this blog aims to clarify this process.
When the refusal comes through, the first thing your adviser will do is have a look at the reasons for refusal. These are set out in a letter from the Home Office. If there is an option other than appealing such as administrative review or a fresh application, this will be discussed with you. If the only or best option is appealing, your adviser will discuss the potential grounds of appeal with you.
Once you have decided to go to appeal, you will have either 10 days (if your refusal was in the U.K.) or 28 days (if your refusal was outside the U.K.) in order to lodge the appeal. Lodging the appeal means sending an appeal form and grounds of appeal to the court here in the U.K. It is very important that the grounds of appeal are drafted by an adviser as these cannot be changed later. The other decision that will be made at this stage is whether to opt for a court hearing or an appeal on the papers. Your adviser will advise you as to which option is better in your particular case.
Following lodging of the papers there is an automatic review process undertaken by the Home Office. This is where the decision in your case will be reconsidered by a more senior decision making officer. Where the original application was lodged outside of the U.K., this process can take up to nineteen weeks, often a little longer. Clients often ask if this can be speeded up. Unfortunately due to the fact that this review is part of an appeal process, it generally cannot be expedited although there is no harm in trying! On the flip side, where the original application was lodged in the U.K., the review process tends to take four to eight weeks.
If, at review stage, the officer reverses the original decision, the immigration permission requested will be granted. This means that there is no need to go to full appeal. Unfortunately this only happen in a small minority of cases; but this doesn’t mean that the case won’t be successful at appeal! In the majority of cases the initial decision will be upheld at review which means that the case will go on to a hearing. At this stage your papers will all be sent back to the court and allocated to a judge. You will receive a letter informing you of your hearing date if you have opted for a hearing in front of a judge. The length of time that it takes for your case to be listed can vary depending on the appeal unit dealing with your case but can be up to approximately 30 weeks in total from the date of the refusal.
Where you made a decision to have your hearing on the papers, a judge will review your case without you or anyone else present i.e. he will make his decision purely on the papers before him. He will then send out his decision. If you are having a hearing in front of a judge, your lawyers as well as your witnesses will all attend the Tribunal on the specified date. If they are in the U.K. the appellant will also be able to attend, but generally speaking where the appellant is outside the U.K. they will not be able to attend court unless they can obtain entry clearance as a visitor. Usually, the judge takes around 4 weeks to send out the result of the hearing but sometimes a decision is reached in court.
In cases where the appeal is successful, the determination of the judge is sent to the Home Office and they will issue the permission that was originally sought with the initial application. Where the appeal is unsuccessful, there is an option to ask for permission to appeal to the Upper Tribunal where the first judge made an error in law. This is something that your advisor will be able to advise you on fully.
As you can see, the appeal process has multiple stages and often takes longer than appellants tend to hope for. It can be particularly frustrating for appellants who are not in the U.K. and who cannot appear at the hearing. If the appellant is in the UK then practical issues such as the Home Office holding on to passports can cause difficulties. The most important aspect however is to choose your adviser with care and ensure that you are happy with the service you are being provided. If your life here in the U.K. is at stake, there can be fewer things more important than getting the appeal right!
If you or someone you know has had an application refused and would like to discuss an appeal, please contact us to speak with an experienced advisor.