The appeals process can be confusing.
At times, it feels like a game of snakes and ladders, a labyrinth of different tiers, chambers, courts, and tribunals.
In this article, we (try to) explain the appeals process for immigration cases in an easy and digestible way.
All initial applications by foreign nationals for permission to enter or stay in the UK are made to the Home Office, a department of the UK government.
(In appeals the Home Office is technically known as the “Secretary of State for the Home Department”: in this article we will use “the Home Office” for short)
The Home Office decides whether any application for permission to enter or remain in the UK by someone who requires such permission should be granted or refused.
In some cases, where the Home Office makes a negative decision in an application, there may be a right of appeal. See our detailed piece on which decisions carry a right of appeal which discusses this in detail.
If you do not have a right of appeal, you may be able to apply for administrative review of the decision. This is an internal review process where the Home Office will ask a different caseworker to review the initial decision to refuse.
You may also be able to make an application for permission to pursue Judicial Review proceedings. This is different from an appeal.
Appeal to the First Tier Tribunal
If your initial application is refused and you do you have a right of appeal, this means you will have an opportunity to argue that the Home Office made the wrong decision, and your case will be considered by a judge.
In almost all immigration and asylum applications, the court of first instance is the First Tier Tribunal (Immigration and Asylum Chamber) (FTT).
If you are appealing a decision, you are known as the ‘appellant’, i.e. the person who is appealing, and the Home Office is the ‘respondent’, because they are responding to the arguments you are making.
There are strict formalities to be observed when making an appeal to the tribunal, meaning that you will need to decide and “lodge” your appeal within a certain timeframe and by a specified method. See our article on appeals basics for further details of this process, and also the FTT procedure rules.
The appellant and respondent will usually make their arguments in front of an FTT judge (there is a process where you can request a decision “on the papers”, although most appellants opt for an oral hearing before a judge), who then decides whether to “allow” or “dismiss” the appeal.
If the appeal is “allowed” it means the judge thinks that the Home Office made the wrong decision and, barring any onward appeal to a higher court by the Home Office (see below), you have succeeded in your appeal.
If the appeal is dismissed, it means that the judge has decided the Home Office made the correct decision. Unless you appeal against this decision to the Upper Tribunal, this will be the end of the appeals process.
Either way, the decision of the judge will be recorded in a written document known as a “determination”, and which should set out the reasons why the judge arrived at the decision that they did.
Appealing to the Upper Tribunal
If either party believe that the judge in the FTT got the decision wrong then it is possible to attempt to challenge this.
The Upper Tribunal (Immigration and Asylum Chamber) (UT), is responsible for handling appeals against decisions made by the FTT.
First applications to the FTT for permission to appeal to the UT
However, before either side – either appellants or the respondent Home Office – can progress to the UT, an application must first be made to the FTT requesting “permission to appeal” against the determination of the FTT.
Again, as per the procedure rules, there are strict time limits and processes involved, and the application for permission to appeal must be made within a certain time frame, and on a certain form.
For permission to be granted the party making the application must show that the decision of the FTT judge arguably contained an error of law, and that the error of law was material to the outcome of the appeal.
Examples of errors of law made by judges include (but are not limited to):
- overlooking important evidence
- taking into account irrelevant circumstances
- failing to properly explain a decision
- applying the wrong law, or misunderstanding the relevant law
A judge of the FTT (but not the judge who heard the original appeal) will consider the application for permission to appeal and will either grant permission to appeal to the UT, or will refuse it on the basis that it discloses no arguably material error of law.
Second (renewed) application to the UT for permission to appeal to the UT
If the FTT refuses the application for permission to appeal, you can ask the UT itself for permission to appeal. This is sometimes known as a “renewed” application.
The same rules apply in terms of what needs to be shown – that the original decision of the judge arguably contains an error of law that was material to the outcome – and the existence of certain formalities regarding time limits and the completion of certain forms.
A renewed application direct to the UT will be governed by the Upper Tribunal procedure rules.
If the application for permission is granted, the case will then proceed to the Upper Tribunal. If the application is refused, the only remedy against this decision is Judicial Review.
Third (and final) possible challenge to a refusal of permission to appeal: Cart JRs
Following the decision of the Supreme Court in Cart v the Upper Tribunal  UKSC 28, it became possible to make one final challenge to a decision of the Upper Tribunal to refuse permission to appeal. These applications are known as “Cart JRs”.
In this process, where a person has been refused permission to appeal by the FTT, and their renewed application to the UT is refused, an application can be made for permission to pursue Judicial Review proceedings against the Upper Tribunal to the Administrative Division of the High Court.
These applications are subject to the procedural rules of the High Court (known as the Civil Procedure Rules), and particularly Rule 54.7A, and the threshold to succeed is high. The High Court will only give permission to proceed if it considers
(a) that there is an arguable case, which has a reasonable prospect of success, that both the decision of the Upper Tribunal refusing permission to appeal and the decision of the First Tier Tribunal against which permission to appeal was sought are wrong in law; and
(b) that either –
(i) the claim raises an important point of principle or practice; or
(ii) there is some other compelling reason to hear it.
If successful in the High Court at the JR permission stage, the outcome will usually be that Upper Tribunal will grant permission to appeal and the appeal will proceed to the UT.
Getting permission to appeal in the UT: what happens next?
If either the FTT or UT has granted permission to appeal to the UT, then the next step will be an error of law hearing undertaken by the Upper Tribunal.
Error of law hearing in the UT
The purposes of this hearing will be to establish whether the determination of the FTT did, in fact, contain an error law.
In deciding this question the UT will usually hold an oral hearing which is attended by the parties, and who are given the opportunity to explain why they think the decision of the FTT was wrong in law. The other side will be given the opportunity to explain why they believe the decision of the FTT judge should stand.
The usual position is that no new evidence can be provided at this stage, and the UT judge (or judges, sometimes cases are heard by more than one judge) will consider only the documents and information that was before the judge at the initial hearing.
The UT will then usually issue a written decision (or “determination”) on this initial question of whether there has been an error of law.
If there has been an error of law, then the UT can then decide to either re-hear the appeal itself or can “remit” (or send back) the case to the FTT. In either scenario, the appeal will be heard again from scratch, in full.
If the UT decides that there has been no error of law, then this will be the end of the appeal.
Substantive re-hearing in the UT
It is possible an appeal to be substantively re-heard by the UT rather than sending it back to the FTT.
This means that it will be heard again, in full, like it was by the FTT judge, with witnesses giving evidence etc, the only difference being that the parties are in the UT and not the FTT.
And like in the FTT, the UT will produce a full determination giving reasons why it has either allowed or dismissed the appeal.
Where a case is re-heard in this way by the Upper Tribunal, the losing party will have a right of appeal to the Court of Appeal.
Court of Appeal
As with the process after a determination in the FTT, an application for permission to appeal must first be made to the court which made the decision (which in these circumstances would be the UT).
Application to UT for permission to appeal to the Court of Appeal
To succeed at this stage the appeal will have already been heard in full and dismissed by both the FTT and the UT, so it is a high threshold, known as the “second appeals test”. Permission will only be granted where
(a) the appeal would—
(i) have a real prospect of success; and
(ii) raise an important point of principle or practice; or
(b) there is some other compelling reason for the Court of Appeal to hear it
If the UT refuses permission to appeal to the Court of Appeal, it is possible to “renew” the application to the Court of Appeal.
Application to the Court of Appeal for permission to appeal (to the Court of Appeal)
An application for permission at this stage would need to meet the same criteria as the application to the UT, as confirmed at Rule 52.7 Civil Procedures Rules.
When the Court of Appeal considers an application for permission to appeal it can, if it considers it necessary, have an oral hearing. Otherwise it can grant permission “on the papers”.
If permission is granted at either the UT or Court of Appeal stage, there will be a full error of law hearing in the Court of Appeal.
The Court of Appeal has a wide range of powers in terms of disposing of an appeal. For example, if it finds that there has been an error of law, it can remit the appeal back down to the FTT for a full re-hearing.
Alternatively, it can effectively dismiss an appeal by upholding or restoring decision in the courts below of either the FTT or the UT.
If your case is refused in the Court of Appeal the highest court in the UK to which you can appeal is the Supreme Court.
As with the processes described above, an application for permission to appeal must first be made to the Court of Appeal before an application can be made direct to the Supreme Court.
Permission to appeal is only granted for applications that, in the opinion of the Justices, raise an arguable point of law of general public importance which ought to be considered by the Supreme Court at that time, bearing in mind that the matter will already have been the subject of judicial decision and may have already been reviewed on appeal.
Very few cases reach the Supreme Court, which will generally hear fewer than 100 appeals per year from the whole UK legal system.
European Court of Human Rights
It is possible, although very rare, for appellants to succeed in appealing to the European Court of Human Rights (ECtHR) where they have not been successful in the domestic courts.
Similar to the various appeal processes above, there is an initial merits-based permission stage, where the ECtHR (based in Strasbourg) will consider whether to consider the appeal in full.
One of the significant downsides of this option, apart from the fact that the vast majority of applications to the ECtHR are not given permission to proceed to a full hearing (let alone succeed), is the time is takes for a resolution.
A good example of this is the recent case of Unuane v The United Kingdom (application no. 80343/17) who had to wait over 3 years after making his application to the ECHR following the exhaustion of his domestic appeal rights for a decision.
Although Mr. Unuane was successful in his ECtHR application, he had already been removed from the UK by this point.