Receiving a Refusal Decision can be a very stressful time, however, there are often efficient and cost-effective ways to challenge negative decisions. Depending on the nature of the refusal, you may be able to challenge by way of a Court Proceeding. This is usually conducted by the Immigration and Asylum Chamber First Tier Tribunal
If your appeal to the First Tier Tribunal is refused, you may be able to challenge the matter further to the Upper Tribunal and possibly even to the Court of Appeal
Alternatively, you may be able to challenge the decision by way of an Administrative Review. This is an action which requires the decision maker to review their decision in light of a perceived 'Case-working Error' made by them. If upon review an error is found, the decision maker will reverse their original negative decision within 28 days
If you do not have any avenue to challenge a decision, you may be able to ask for a Judicial Review of the decision. These applications are lengthy, but often very effective as your case will usually go into the consideration of a Senior Judge
Appealing Against a Refusal
If your application from within the UK or overseas has been refused, you may be able to successfully challenge the decision. Depending on the circumstances, an erroneous decision could be reversed within a matter of days. Depending on where you made your application, you will normally be provided with 10 working days (within the UK) or 28 days (outside the UK) to submit your appeal. Submissions must be made to the Court that deals with Immigration Matters, namely the First Tier Tribunal (Immigration & Asylum Chamber), also known as the 'FTT'.
Once you have successfully lodged your appeal with the FTT. You may be required to wait for a period of up to 12 months before your case reaches the trial room. On the day of the hearing, your case will be heard by an Independent, Unbiased Immigration Judge. Both you and your sponsor will be given the opportunity to speak and so will the other party, the Home Office. If your matter proceeds to an appeal, it is vital that you have an experienced lawyer from the outset, as this could be the difference between winning or losing the case.
If the matter is decided against you, the case will need to be assessed to see whether an onward challenge to a higher court is warranted.
Furthermore, although an appeal may seem as though the only option, often it is better in pursuing a new application altogether. This will not only save you time but expenses. Speak to me today so that I can review your decision and advise you as to the best way to proceed.
Who is the First Tier Tribunal (FTT)?
They are the Public Body responsible for handling appeals against Home Office decisions relating to:
permission to stay in the UK
deportation from the UK
entry clearance to the UK (arriving in the UK)
Note: The FTT also handle applications for immigration bail from persons who are being detained by the Home Office. See 'Detention, Bail and Deportation' for further information.
Remember that the FTT is wholly independent of the government. A judge has a duty to listen to both sides of the argument before making an informed decision.
When can I appeal to the FTT?
Not all refusals by the Home Office carries an automatic right of appeal. In some circumstances, a person who has been refused from within the UK may be asked to leave the UK prior to being given the chance to appeal. In such circumstances, you may be able to apply for Judicial Review. Alternatively, on some occasions, a refusal decision is simply not accompanied by a right to appeal. However, generally speaking, you may be able to appeal to the First-tier Tribunal (Immigration and Asylum Chamber) if the Home Office has:
refused your protection claim (also known as ‘asylum claim’ or ‘humanitarian protection’)
refused your human rights claim (usually under Article 8 of the ECHR)
made a decision under the European Economic Area (EEA) Regulations, for example, the Home Office has decided to deport you or refused to issue you a residence document
decided to revoke your protection status
decided to take away your British citizenship
What Happens at the Hearing?
The FTT will usually write to you weeks before the hearing date to notify you of the date, time and location of your hearing. It is advisable to have a Legal Representative on board by that time as he or she will need to prepare and submit your Trial Bundle of Papers to the FTT and the Home Office within 5 days of the hearing.
On the day of the hearing, the following are likely to be in attendance:
a judge or judges, sometimes with other tribunal members
any witnesses (including your sponsor if you have one)
an interpreter (if you have asked for one)
a Home Office ‘presenting officer’
It is unlikely that you will receive your decision on the day of your hearing, and Judges usually provide written decisions within 2 weeks of your
What happens if I win my appeal?
Upon receiving your decision, if you have won your appeal the Home Office may still have an opportunity to challenge the decision. They usually have 14 days to submit a challenge. In essence, they will be applying to the FTT for permission to take the matter to the Upper Tribunal.
If the Home Office choose not to challenge the decision of the FTT, they will revise their original decision. If they do not revise their decision within a reasonable time, your representative should be able to put sufficient pressure on the Home Office to speed up the process.
What happens if I lose my appeal?
If you lose your appeal you can ask for permission to appeal to the Upper Tribunal. However, such challenges are usually made if there has been a legal error made by the FTT Judge. For example, the FTT Judge applied the law incorrectly, didn't follow the correct procedures or simply got the law wrong. Speak to me today if you find yourself in such a position and I will assess your case for you.
Applying for Judicial Review
It is quite common to find that many refusal decisions from the Home Office do not provide any form of appeal or avenue for a challenge. In such circumstances, you may be able to apply for the decision against you to be Judicially Reviewed. As part of such action, you must be able to demonstrate that the Home Office has acted outside of its powers in an unfair or disproportionate manner. If the matter proceeds to Court, a senior Immigration Judge will review the arguments put forward and make a finding.
Note: There is a 3-month time limit to submit your application for Judicial Review from the date of receiving the refusal decision. This is a highly specialised area of the law and you should contact me to assess your case at your earliest convenience.
What is Judicial Review?
In short, a Judicial review is an application made to the Court in which a Judge reviews the lawfulness of a decision made by a public body (including the Home Office). The Judge will not, therefore, make a decision as to whether the decision was correct, but rather review the way that decision was made.
The types of decision that fall into the remit of Judicial Review can vary, but in essence, if you have been refused an Immigration application and there are no alternative remedies available (i.e. no right of appeal or administrative review) then there may be a claim for Judicial Review. Speak to me in confidence should you require your mater to be assessed.
Following the pre-action protocol (PAP) in judicial review matters
It is important to state that Judicial Review is the last resort action. The matter should be resolved without litigation where possible, and this is also the direction the Court provides to us. In order to comply with this, it is very important to follow the Judicial Review Pre-action Protocol before commencing a claim. Moreover, there are good reasons to follow the Protocol, firstly you might find that your decision is reversed by the Home Office upon receipt of the letter before claim, and secondly if you fail to follow the Protocol this may result in costs sanctions being placed against you by the Court.
Submitting an application for judicial review
Judicial review is a two-stage process. Firstly, you should obtain permission to apply for judicial review from the Court. If permission is granted by the Court then the second stage is the substantive claim. The matter will initially be heard 'on the papers' meaning that you will not attend a face-to-face hearing. If the matter is refused, you may be able to renew the application, as long as the matter was not found to be 'totally without merit' when heard on the papers.
If your matter is refused, the case is closed. If you find yourself in such situation, please contact me as there may be alternative visa options not considered by you.
Applying for Administrative Review
It should be noted that the recent Immigration Act 2014 has removed the right of appeal for various categories. Instead, you will be given the chance to ask for your decision to be reviewed. Such applications for Administrative Review are usually made online (with a small fee) and should be made within 14 or 28 days of the refusal decision. If the Home Office had made a case working error, such as misapplying the Immigration Rules it should be highlighted to them as part of such application. If successful, matters are usually resolved within 28 days of submission.
How do I apply if I am outside the UK?
As part of your refusal decision, it will state whether you have the right to ask for a review. To be eligible to apply the following should apply:
You are outside the UK and applied from there
you don’t have a right of appeal against the refusal
If the above applies to you, your application must be made within 28 days of getting the decision.
It is vital that your application is presented through a reputable Legal Representative as you will need to highlight exactly the Casework/Legal Error made the decision maker to stand any realistic chance of a successful review. You should expect to receive the result of the administrative review within 28 days.
How do I apply if I am within the UK?
If your application was refused without a right of appeal but with a chance to ask for a review, you must apply for an administrative review within 14 days of getting the decision (or 7 days if you are in detention).
Again, you are likely to receive a decision within 28 days of making your application for administrative review.
If you would like to know more about any of the above please contact me by email or phone.
If having read the above you have an Immigration related question in mind? Contact me today and let me help you get you back on track!
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