Immigration Appeals

A right of appeal to the First-tier Tribunal (Immigration and Asylum Chamber) will exist against an ‘immigration’ or ‘EEA’ decision as defined in statute and regulations. Notice of whether and how to appeal will be included in the decision. Where there is no right of appeal, for example, against a refusal to register or naturalise a person as a British citizen, the only remedy is by way of judicial review.

Where there is a right of appeal, such as to those refused a certificate of entitlement or in deprivation of citizenship cases, there are strict time limits to be observed. The grounds upon which an appeal can be brought may also be restricted. The right of appeal may also be exercisable out-of-country.

Once a notice of appeal is instituted it remains until it is finally determined, withdrawn or abandoned and an appellant cannot be removed from or required to leave the UK. An appeal against a refusal to vary (extend or change visa-type) leave will extend previous leave if the application is made before that leave expired even if the decision on the application was made after the leave expired. The Secretary of State can make a decision to remove a person with statutorily extended leave but removal directions cannot be given while the appeal is pending. Other immigration decisions may not have effect whilst an appeal against the decision is pending.

A notice of appeal has to be made on a form as displayed on the Tribunal’s website at the time. Reasons required in support of the statutory grounds of appeal need not be lengthy and if a one-stop warning has been given with the immigration decision, the statement of additional grounds served will also need to be considered by the Tribunal.

Decisions on timeliness of a notice of appeal and whether to extend time are preliminary decisions against which there is no right of appeal to the Upper Tribunal (Immigration and Asylum Chamber).

Once the notice of appeal is lodged with the FTT (IAC) it will serve a copy on the respondent who will in turn file with the FTT and serve on the appellant a bundle of documents. A number of further steps may be taken before the appeal is heard or determined such as the listing of a case management review hearing or issuing directions in respect of the appeal. Procedure Rules apply.

The determination is the decision by the Tribunal in writing to allow or dismiss the appeal and does not include procedural, ancillary or preliminary decisions. Written notice must be sent to every party to the appeal and normally not later than 10 days after the hearing finishes or the appeal is determined without a hearing. Special procedures apply where the appeal relates wholly or partly to an asylum claim.

Applications for permission to appeal to the Upper Tribunal against the decision of the FTT must be made to the FTT in the first instance who must consider whether to review the decision before deciding the permission application. The application for permission to appeal must be made in writing and received no later than five business days after the application is deemed to have been served with the written reasons for the FTT decision unless the appellant is outside the UK where the time limit is 28 days from deemed service.

If the FTT has refused permission to appeal or to admit such an application because of timeliness, an application may be made directly to the Upper Tribunal. The UT has its own Procedure Rules which govern, amongst other things, the form and content of the application. There are also Practice Directions, Statements and Guidance Notes applicable to both the FTT and UT (IAC).

There is no further right of appeal against any refusal by the UT (IAC) to grant permission to appeal and judicial review will only lie where some important point of principle or practice arises or some other compelling reason despite the existence of an error of law. The same test applies to any onward appeal against a decision by the Upper Tribunal following the grant of appeal. Such an application for permission to appeal to the Court of Appeal must be made in the first instance to the Upper Tribunal.

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