In this post we discuss the role of the appeal process in immigration cases in the UK.
As ever, whilst we have significant experience assisting our clients with their appeals, every case is different. This post should not be taken as legal advice and is provided as generalised guidance only.
If you would like to discuss a potential appeal with an experienced immigration lawyer, check out our one-off consultation service.
What is an appeal?
The Home Office has been tasked with managing the immigration system in the UK, which includes providing decisions on all immigration applications, as well as deciding whether an individual should have their immigration status revoked and/or whether they should be removed from the country.
If the Home Office makes a decision that a person believes to be wrong, it may be possible to appeal to the First-tier Tribunal (Immigration and Asylum Chamber) against the decision. If the Tribunal agrees to hear the appeal, further evidence can be submitted, and an independent immigration judge will determine whether the Home Office’s decision was correct or not.
If the judge concludes that the Home Office decision was wrong, the appeal will be allowed, and the Home Office will usually revise their decision to comply with the Tribunal’s determination. If the judge concludes that the Home Office decision was correct, the appeal will be dismissed, and the Home Office decision will usually remain unchanged.
If the appellant or the Home Office lose the appeal, it may be possible to appeal to the Upper Tribunal (Immigration and Asylum Chamber) against the determination. However, only where it is arguable that the First-tier Tribunal’s determination was unlawful.
See our immigration appeals roadmap for further details about onward rights of appeal beyond the First Tier Tribunal.
What decisions by the Home Office come with a right of appeal?
There are only a small number of Home Office decisions that come with a right of appeal. Generally speaking, these are limited to:
- Decisions to refuse or revoke protection status, i.e. refugee status or humanitarian protection;
- Decisions to refuse a human rights claim, e.g. an application on the basis of private and family life;
- Decisions to revoke British citizenship; and
- Decisions to refuse, revoke or vary status under European law.
See our appeals collection for further detail on what grounds of appeal can be raised.
In order to appeal, an appellant must give “notice” to the tribunal.
In order to give notice, an appellant must complete and send a form to the tribunal providing certain details and within a certain timeframe (see below).
The exact form which must be completed depends on your particular situation, and a list of forms can be found on the GOV.UK site.
How long have I got to lodge an appeal?
Some Home Office decisions come with an in-country right of appeal, which means that the appellant can remain in the UK during the appeal process. However, some decisions only come with an out-of-country right of appeal, which means the appellant must bring their appeal from abroad.
If the appellant has been given an in-country right of appeal, they will usually need to lodge their appeal with the First-tier Tribunal within 14 days of the Home Office decision.
If the appellant has been given an out-of-country right of appeal, they will need to lodge their appeal with the First-tier Tribunal within 28 days of the Home Office decision. If the appellant has to leave the UK before being able to lodge their appeal, they will have 28 days from the date they leave the country.
Whilst it is possible to lodge an appeal outside of the above time limits, generally speaking, the Tribunal will only agree to hear an out-of-time appeal in exceptional circumstances.
Tribunal fee for lodging an appeal
Unless exempt, the appellant will normally have to pay a fee to lodge an appeal with the First-tier Tribunal. The fee amount will depend on whether the appellant wants the Tribunal to consider their appeal on the papers only or following an oral hearing (see below).
At the time of writing, the Tribunal fee for having an appeal determined on the papers only is £80 and for a full oral hearing is £140, however this is subject to change.
In some cases, the appellant will be exempt from paying the Tribunal fee. This includes appellants who are in receipt of Legal Aid funding.
Further evidence in support of appeal
Once an appeal has been lodged, and any required fee paid, both the appellant and the Home Office will usually submit further evidence in support of their position.
Whilst every case is different, the appellant will usually prepare an appeal statement responding to the Home Office’s reasons for coming to their decision. See our detailed post How to write a statement in support of your immigration appeal for further details on how to do this.
The appellant may also want to include medical or country evidence and, in some circumstances, expert evidence may be advisable.
Before the Tribunal consider the appeal, the appellant will normally submit a skeleton argument, setting out the key elements of their case.
Appeal determined on the papers
If the appellant requests that their appeal be determined on the papers only, the immigration judge will only consider the paper evidence put before them by the appellant and the Home Office and then decide whether to allow or dismissed the appeal.
Appeal determined following an oral hearing
If the appellant requests that their appeal be determined following an oral hearing, the appellant and any witnesses will need to attend a Tribunal hearing before an immigration judge.
Whilst an appellant is able to represent themselves at their appeal, they will often be represented by a solicitor or barrister, who will present their case for them.
The Home Office will have their case presented by their own representative, who will usually want to question the appellant and their witnesses.
In most cases, the judge will not give their decision on the day of the hearing but will go away and consider the case, and then write down their decision in a document called a “determination”.
Whilst most determinations will be provided within 4 to 6 weeks following the hearing, sometimes they can take longer.
If the appeal is allowed, and the Home Office will usually revise their decision to comply with the Tribunal’s determination. However, the Home Office may also seek to appeal to the Upper Tribunal (Immigration and Asylum Chamber) against the determination.
If the appeal is dismissed, and the Home Office will usually maintain their decision.
However, it may be possible for the appellant to appeal to the Upper Tribunal (Immigration and Asylum Chamber) against the determination.
See our immigration appeals roadmap for further details on appeal rights after the First Tier Tribunal determination.