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.
The following Immigration decisions normally carry a right of appeal:
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:
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.
The applicants may bring in a Judicial Review relying on the following grounds:
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).
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.
The applicant may submit the Judicial Review application if the Home Office does not adequately answer the Pre Action letter. Please note that the Judicial Review must be filed as soon as possible or within 3 months of the original negative decision.
The PAP is considered as an alternative dispute resolution method and involves assessing grounds for JR, negotiating with the Respondent (Home Office), entering mediation if required and sending a detailed letter before claim to the Home Office setting out the legal basis for challenging the decision.
Judicial Review should be pursued as a remedy of last resort and when there are no other options to challenge within the system, such as no right of appeal or administrative review and should be raised on any of the grounds mentioned above.
The applicant may approach the Court of Appeal to challenge the Judicial Review decision, normally the time limit is 21 days from the date the lower court made the decision being appealed.
The Pre Action-Protocol forms part of the Civil Procedure rules, sets out a code of good practice, and contains the steps that parties should generally follow before making a claim for judicial review. It is not necessary to follow this in urgent cases, for example, stopping the applicant’s removal when removal directions are set.
An appeal is considered by the court, by an independent judge, i.e. independent from the Home Office who made a decision to refuse your application. An administrative review is considered by the Home Office, i.e. by the same organisation who refused the application, but by a different caseworker. The administrative review is normally used as an option to point out any human errors made in making the visa decision. Processing time for a review is also shorter than for an appeal, normally around a month thus giving the applicant less time to choose an alternative way to remain in the UK.
If the applicant submitted an in-time application before the expiry of their previous visa and made an appeal before the (14 days); then under Section 3C of The Immigration Act 1971; the immigration status will continue to remain the same as of the previous visa category and the applicant can continue to enjoy the same benefits whilst appeal is under consideration.
An applicant has the option to appeal, they should do so because there are typically no administrative review options under certain circumstances. However, in the EU Settlement scheme, the applicant may simultaneously request an administrative review and an appeal.
Normally, the Upper Tribunal hears about the First-Tier Tribunal’s appeal rulings. Either the Home Office or the applicant can approach the Upper Tribunal if they believe there has been an error of law.
The applicant may receive reimbursement for any fees they spent while filing the appeal if your appeal is successful before a First-tier Immigration Tribunal.
The request for administrative review will be normally withdrawn (cancelled) if any other immigration or visa application is made.
According to the latest administrative review guidance, the Home Office’s decision might take around 6 months to complete (longer in some cases). If the decision is not received within 3 months, the Home Office will contact with an update.
The Home office will not seek to remove the applicant from the UK while an application for Administrative Review is pending.
If the result is not positive after receiving administrative review, our lawyers will assist you with the best possible steps. This may include making a new application or an appeal on human rights grounds where applicable or challenge the refusal decision by the form of a judicial review if it is made incorrectly.
One of the most significant benefits of the Administrative Review process is its low cost of £80 per application. Some applicants may be excluded from paying the fee under the following circumstances: You were not required to pay for the initial application, or the charge was waived; You can demonstrate that you are unable to pay the fee due to exceptional circumstances.
