The Appeal Process in UK for the Scenario of Visa Application Rejection


A number of laws have been passed in the United Kingdom over the years that help regulate the immigration procedure for any person who wishes to come to the country. These laws set forth a certain number of visa categories on the basis of which, people coming to the country are categorized based on their reason for entering the UK. For example, a person who wishes to come to the UK for travel purposes will apply for the Tier 5 visa, person who wishes to come to the UK as a student will apply on the T4 visa and so on. Each purpose has its own visa category, with a total of 4 functional visa categories (t1 visa UK, t2 visa UK, t3 visa UK, t4 visa UK) and currently one ineffective visa category (Tier 3 visa).  The applicant applying on any of these visa categories fills out a visa application form and submits it to the UK’s Home Office which is responsible for all immigration related cases and queries. The Home Office shall review the visa application submitted by the applicant and come to a decision by it.

Now, in the scenario that the visa application is rejected, a letter containing the reasons for refusal is sent to the applicant. Along with the letter containing the grounds for refusal, the applicant also informed of their rights to appeal the decision taken against them. The right of appeal also exists for asylum applicants and also all other immigration related cases such as cases concerning human rights violations for foreign nationals. All of this is outlined in Part 9 of the Immigration Rules. The Immigration Rules are compilation of laws passed over the years with help related to all categories such as tier 1 visa guidance, t1 visa UK guidance for business visas, guidance for student visas etc. It should be noted that certain persons are given limited appeal rights depending on their case.

Further elaboration regarding sections of the appeals process is outlined below:

What grounds allows an applicant to appeal the decision taken against his/her visa application?

If the applicant’s case falls on any one or more of the below mentioned grounds, he/she will have a legal right to appeal against the decision taken against them. These grounds are:

  • If the applicant feels he/she has been wrongfully discriminated against based on his/her race.
  • Based on any reason of the applicant having his/her human rights violated, and the reason is clearly defined in the European Convention on Human Rights, an appeal can be lodged against the decision taken. It can also happen if the applicant is of the opinion that the Secretary of State, responsible for immigration matters, has wrongfully made a decision against you (based on Section 84 of the Nationality, Immigration and Asylum Act of 2002).
  • If by law the decision defies the 1951 UN Convention that relates to status of Refugees. The applicant would have grounds for appeals as the United Kingdom has a responsibility to oblige to this convention.
  • If the Secretary of State, who heads the Home Office, has defied any of the immigration laws of the UK (that are compiled in the Immigration Rules) because of the decision taken against the applicant.
  • The decision taken against the applicant was generally against the laws of the United Kingdom
  • The person, who took the decision against the applicant, did so in a manner where he/she violated the discretion of the applicant and should have handled the case in a manner where the discretion of the applicant should have been handled better.

Appeals on the Basis of Racial Discrimination

Any person, who feels he/she has a decision taken against them regarding their visa application which is racially motivated, can lodge an appeal in an appeals court. Although this reason is not based off of any immigration law, it is lasting and can work as grounds for appeal. The appeal can work against a decision taken by the Secretary of State on the basis of race and should be noted that is not subject to any law that is defined in the Equality Act of 2010 rather a by-product of general UK law.

The One Stop Notice Procedure

The Nationality, Immigration and Asylum Act of 2002, in Part 5, states that any person lodging an appeal against his/her immigration case must define all grounds and reasons for challenging the decision, such as a case of settlement, asylum, discriminative behavior or a violation of a person’s human rights must be submitted together. The government of the UK sends the person who has been denied entry into the country or permission to leave the country with a One Stop notice. This notice is a recent change in the appeals process and aims to simplify the procedure for applicants.

Note that the One Stop Notice exists for all people who are currently within the United Kingdom, and there request to leave or enter the country has been denied, or a request for asylum as been denied, or racial discrimination exists, or is a case of human rights, or the person is being deported.

The appeal must lay out a genuine reason with reasonable proof that has not been already stated in the original visa application, as a mandatory requirement of the notice. The notice also notifies the applicant of the repercussions for non-compliance with the stated requirements. The law allows all categories of visas (tier 1 investor visa UK, t1 entrepreneur, t4 student visa, t5 visitor visa etc.) in the immigration process to be given a One Stop notice. This means that any person who has entered the country illegally or has stayed in the country longer than the legal allotted to him/her can also be given a notice.

The One Stop notice is defined as a paragraph within the notice of removal that is given to applicants (who are currently within the UK).

Hierarchy of Appeal Courts in UK

The First Tier Tribunal (FTT)

When any applicant lodges a request to challenge the decision taken against his/her immigration case, it is directly sent to the First-tier Tribunal where the appeal is heard. The tribunal reopens and further looks into the decision that the immigration officer in the Home Office took. It can also be observed by overseas diplomatic posts that have the ability to issue visas. The most common and main appeals that are observed at the FTT are:

  • Asylum claims that have been denied by the Home Office.
  • The applicant has been denied permission to enter the UK or to leave the country based off of any visa category (such as a student visa, work visa, tier 1 investor visa UK, t1 entrepreneur visa etc.).
  • Any individual who is currently in the UK and has been ordered by the Secretary of State (of the Home Office) to be deported.

The appeal is heard by a Judge or a panel of the FTT who/that possesses the ability to change the Secretary of State’s decision. The decision that the tribunal will take is given to the applicant in writing referred to as a determination.

Now, in the case the FTT also supports the Home Office’s decision and does not change it, the applicant can still request the FTT to further take the case up at the Upper Tribunal. The Upper Tribunal is the next court in line of the hierarchy that possesses the ability to change the First-Tier Tribunal’s decision. This can be done by submitting an application, referred to as an IAFT-4, form to the FTT. When the applicant submits this form, the First-Tier Tribunal has the ability to either revise its own decision, or allow the person to further take the case up in the Upper Tribunal.

Note that in the scenario the tribunal accepts the applicant’s appeal and changes the original decision in favor of the applicant, the tribunal can ask the Home Office to give back the application fee that was submitted prior to submitting the original application.

The office of the FTT is located in the city of Loughborough, United Kingdom.

The Upper Tribunal (UT)

This tribunal, referred to as the Upper Tribunal Immigration and Asylum Chamber (UTIAC) is responsible for the Tribunals Service that usually includes the records and forms part. The Upper Tribunal is a superior court that reviews the decisions taken by the First-tier Tribunal in cases related to immigration, nationality and asylum. The appeals are subject to review by one or more Senior (or designated) Immigration Judges. These judges also sometimes come with non-legal members. These members are authorized to act as part of an independent judicial body as appointees of the Lord Chancellor.

If again the applicant sees the application being refused, the matter still can be further taken up in the Court of Appeal. Now, in case the FTT didn’t allow you to take the matter up at the Upper Tribunal or allowed you to only take up the case based off on limited grounds, you can bypass the FTT by filling out IUT – 1 Application to the Upper Tribunal for permission to appeal to the Upper Tribunal. This is an application form which the applicant can use to directly file an appeal with the Upper Tribunal.

Mostly, applicants should realize that appeals taken up in the First Tier Tribunal are only revised if there’s an error in the law. Any person who wishes to further enquire about the appeal procedure of the Upper Tribunal (UT) can do so on their official web address. The Immigration and Asylum Chamber is located in the city of London.

The Court of Appeal

If under the circumstances of the applicant’s appeal still being rejected by the Upper Tribunal, a chance to further have the case reviewed in the next superior court in the hierarchy exists. This court is referred to as the court of appeal and reviews appeals (under certain conditions) against the decision of the Upper Tribunal. Note that no specific exists to appeal to this court rather if the UT blocked you from appealing to the Court of Appeal, you can directly go to the Court of Appeal to have your decision reviewed. However, even if this court is directly approached, a form titled N161 still has to be filled and submitted. The form must be submitted within 14 days of the original decision taken by the UT.  Applicants having further queries regarding cases in a court of appeal can visit the official web address www.justice.gov.uk/tribunals/immigration-asylum-upper/appeals

It should be noted that only an error in law is the only ground for an appeal that is taken up in this court.

The Supreme Court

The final authority of the UK that can hear the applicant’s case is the Supreme Court of the United Kingdom. Any case regarding immigration that has already been decided upon by the Upper Tribunal can be reopened at the request of the applicant.

 

 

 

The European Court of Human Rights (ECHR)

If the applicant has already exhausted all his/her options to have his/her case heard under UK law, he/she can take the matter up at the ECHR that can overlook the Supreme Court decision. This is the next step in superiority of the hierarchy in cases related to immigration.

Judicial Review Process

If the applicant finds of all his/her options exhausted regarding immigration case, a judicial review can still be filed. In it, a judge reviews the legitimacy of the decision taken by any of the public bodies against the applicant. The person lodging the appeal hear can also challenge the Secretary of State’s decision.

In case the judicial review is successful, the judge holds the power to order the following:

  • A declaration
  • Mandatory order
  • Quashing order
  • Prohibiting order
  • Injunction
  • Damages