The Immigration appeal system in the UK provides migrants full access to justice in order to challenge the Immigration decisions made by the Home Office in certain eligible categories. There are three ways to challenge your decision, and they are Tribunal Appeals, Administrative Review and Pre-Action Protocol (PAP).
The appeals are heard by two tribunals: the First Tier Tribunal and the Upper Tribunal. The Home Office’s decisions are heard by the First Tier Tribunal, while the Upper Tribunal hears the First Tier Tribunal’s decisions. If the appeal is successful, an Immigration judge or panel will affirm the decision in writing.
Eligible Decisions for Appeal
The following Immigration decisions normally carry a right of appeal:
- Refusal of a Protection claim like asylum or humanitarian protection
- Revocation of protection status
- Refusal of human rights claim
- Revocation of Status or Deportation of EU Nationals or their family under the EEA Regulations 2016
- Revocation of British Citizenship
- Deportation, Refusal, Status Change or Revocation of leave or conditions under the EU Settlement Scheme
- Refusal or Revocation of Family Permit or Travel permit under the EU Settlement scheme
The Home Office will inform the applicant of the appeal rights when making an Immigration decision. The applicant must file an appeal with the First-tier Tribunal (Immigration and Asylum) within 14 calendar days after receiving the notice if they are in the UK, or 28 calendar days if they are outside the UK. Appeals can be determined written or through an oral hearing; the latter is favoured because it allows the appellant to state their argument in front of the judge.
Administrative review is a process whereby applicants can request their decisions be reconsidered by the Home Office if there has been a case working error and is the first available option for those decisions that does not warrant a right of appeal.
If an UK visa has been refused for entry clearance or leave to remain mainly under Points Based System (PBS), minister of religion, global mobility visa, start-up visa, and etc. or if the duration of leave grant is too short, then they are eligible for Administrative Review. A full list of eligible decisions can be found under the Immigration rules in Appendix AR.
The following are some examples of case working errors for the purpose of conducting an administrative review under Immigration rules:
- Applying the wrong Immigration rules or applying the Immigration rules incorrectly
- Wrongly calculating the points to be awarded for the application
- Error in calculating the period of leave granted
- Considered some or all the evidence submitted incorrectly
- Making an unreasonable decision on the credibility of the applicant
- Failing to apply the Secretary of State’s relevant published policy and guidance
- Failing to apply overstay exemption rules or wrongly calculating the period
- Incorrectly decide that supporting documents were not genuine
For applications submitted in the UK, a charge is due, if the review is successful, the fee is refunded. The administrative review must be requested within 14 days of getting the decision if in the UK or 28 days if the applicant is outside the UK. However, it is important to note that new evidence cannot be submitted in order to challenge the decision or fulfil the shortcomings at the time of the application.
Some Home Office decisions must be challenged by court proceedings within which an independent judge reviews the lawfulness of the decision or action made by the Home Office. This procedure is known as Judicial Review.
The first step is to send a Pre Action-Protocol (PAP), that notifies the Home Office of probable judicial review proceedings and gives them 14 days to respond. The objective of the pre-action protocol is to avoid unnecessary litigation. The Pre Action-Protocol letter emphasises the significant issues that will be presented, and it explains the legal grounds and indicates how the judgement was unlawful. The time limit to bring judicial review proceedings is as soon as possible and within 90 days from the original refusal decision. A pre-action protocol letter must be given to the Home Office within those 90 days.
Grounds for Judicial Review
The applicants may bring in a Judicial Review relying on the following grounds:
- Public authority has acted unlawfully
- Irrationality or unreasonableness
- Procedural impropriety and unfairness
- Breach of the Human Rights Act 1998
- Breach of UK’s obligations under the EU law
Judicial review is a complex legal process and is normally deemed as a remedy of last resort. The Home Office is a public authority therefore all of its decisions are challengeable by way of judicial review. If a decision by the Home Office is found to be unlawful, unfair or irrational then the decision will not be re-made by the judge, it will go back to the Home Office for reconsideration.
The judicial reviews in immigration law cases are normally heard in the Upper Tribunal, except for cases like unlawful detentions or statutory appeals in the High Court.
Please note that judicial review may not mean you can stay in the UK pending the outcome of your litigation and may not extend your leave to remain by virtue of section 3C of the Immigration Act 1971. The judicial review is not against the actual decision, but is against the decision-making process and the Home Office could reconsider the application and reach the same refusal decision.
The judicial review claim must be bought ‘promptly’ and in any event within 3 months (from the date of decision).
How can we assist?
Our team of UK Immigration Lawyers can expeditiously deal with any of the challenges mentioned above. We are a multi award winning law firm and pride ourselves in being approachable, innovative, and always going that extra mile to make sure our clients receive the individual attention they deserve. Our Immigration team maintains a high reputation and is committed to provide clear, transparent, and reliable advice to our clients. As an SRA-regulated firm, we act with the utmost integrity and pride ourselves in giving accurate and timely legal advice to increase your probability of success.