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Appeals against refusals

The immigration appeals system allows decisions made by the Home Office, the Immigration Service and British posts abroad made by Entry Clearance Officer’s to be reviewed by an independent judicial body.

What is an appeal and who is it to?

An appeal is an opportunity to take your case to an independent immigration judge who will review all the evidence, listen to arguments on both sides and make a decision. Immigration appeals are heard by the Asylum and Immigration Tribunal (AIT).

What decisions can I appeal against?

You are not always able to appeal against immigration decisions that you disagree with. You can only appeal against certain types of decision. Usually, if you receive a refusal of some sort it will tell you about your appeal rights, but the immigration authorities sometimes get this wrong.

The main types of decision you can usually appeal against are the following:

· Refusal of permission (called ‘leave’) to enter the UK when you arrive at a UK port or airport

· Refusal of a visa to travel to the UK, unless you are a visitor not visiting family members or a student coming to the UK for a course of 6 months or less

· A decision on whether to vary or extend (or refuse to vary or extend) your permission to stay in the UK

· A decision to set removal directions

· A decision to make a deportation order or refusal to revoke a deportation order

This list is not complete. It is a simplified version of your appeal rights. We recommend that you seek legal advice if you are not sure about your right of appeal.

What decisions can’t I appeal against?

There are many types of decision by the immigration authorities against which there is no right of appeal to the Asylum and Immigration Tribunal. The following list is not a complete list but it covers the most common types of decision against which there is no right of appeal.

You have no right of appeal to the AIT if you are a visitor but are not visiting family members. Visitors only have a right of appeal if they are visiting one the following members of their family: spouses, parents, children, brothers and sisters, aunts and uncles, nephews and nieces and first cousins, the parents or siblings of your spouse, your stepparents, stepchildren or step siblings or an unmarried partner with whom you lived for two out of the last three years.

You have no right of appeal if you are a student coming to study a course lasting less than 6 months.

There is no right of appeal to the Asylum and Immigration Tribunal against decisions by Work Permits UK not to grant work permits or other Immigration Employment Documents, although you can submit additional supporting evidence and ask them to reconsider. If you have a work permit and are refused entry clearance, there is a right of appeal against that decision, though.

Does an asylum seeker have a right of appeal?

Most asylum or human rights claim refusal decisions would be accompanied by an immigration decision that can be appealed, such as a refusal of leave to enter, a refusal to vary leave or a decision to set removal directions. There will almost always be a right of appeal against refusal of an asylum application.

There are important exceptions to this. The first is if the Home Office thinks an asylum claim is clearly unfounded. In these cases, which are mainly sent to the Oakington, Harmondsworth or Yarl’s Wood detention centres, the asylum seeker is only able to appeal to the Asylum and Immigration Tribunal after removal from the UK. A process called judicial review can sometimes be used to challenge whether the claim really is clearly unfounded. The second main exception is where an asylum seeker is making a second claim for asylum. There may be no right of appeal in this situation, although legal advice should be sought.

If I have no right of appeal and get refused, is there anything else I can do?

Not having a right of appeal is not the end of the world. It means that you should be very careful about how you make your application in the first place and that you must make sure you provide as much evidence as possible to show you meet the requirements of the rules.

If you are refused, you can start by trying to persuade the decision maker (an entry clearance officer, for example) to change his or her mind. Firstly you need to find out what the reasons are for being refused. Then write to the decision maker with the reasons why you think you do actually fit within the rules and enclose more evidence to show that you do.

It may also be possible to challenge some decisions which do not have a right of appeal to the Asylum and Immigration Tribunal by a legal process called judicial review. This is an application to the High Court. It is a difficult type of challenge to mount and legal advice is essential. It is also very expensive.

What is the time limit for lodging an appeal?

Time limits are strict and if you are late, you are likely to lose your right of appeal. Sometimes a late appeal will be accepted, but you will need to provide very good reasons and legal advice would be sensible. The time limits are as follows:

Overseas refusals: 28 calendar days. However, an extra 28 days are allowed ‘for postage’ to make sure that you receive the decision you are appealing against, making 56 days in total

 UK refusals: 10 business days after you receive the decision you want to appeal against or 5 business days if you are detained. If you are not detained, an extra 2 days is allowed for postage, so it will normally be 12 business days from the date on which the decision was sent to you

The appeal forms must actually be received within this period, not just sent.

Which form should I use?

If appealing against a decision made inside the UK when you yourself are also inside the UK: Form AIT-1

If appealing against a decision made by a visa officer abroad: Form AIT-2

If appealing against a decision made inside the UK after you have left the UK: Form AIT-3

What should I write on the appeal forms?

Most of an appeal form is fairly straightforward and should cause you no problems. Some guidance is available on the form itself and in the guidance note that usually comes with it.

The most difficult part to understand is the ‘Grounds of appeal’ section of the form. This is the part of the form you use to state why you disagree with the decision that has been made. This depends entirely on the type of application you made, the reasons you were refused and what case you wish to advance against those reasons.

Essentially, the ‘grounds for appeal’ are simply the reasons why you disagree with the decision. You should state all your reasons because it may be difficult to raise new issues later on. If you have good, detailed grounds for appeal supported by strong evidence, there is a chance the decision maker will change his or her mind when he or she reads them and an appeal may not be necessary.

Where do I send the appeal forms?

If you are submitting an appeal from abroad, for example against refusal of entry clearance, you can either send it to the local entry clearance post or to the Asylum and Immigration Tribunal in the UK.

If you are submitting an appeal in the UK and you are not detained, you must submit your appeal to the Asylum and Immigration Tribunal.

If you are submitting an appeal in the UK and you are detained, you can either send it to the Asylum and Immigration Tribunal or you can give it to your custodian, the organisation that runs your detention facility. You must ensure you have written confirmation from your custodian that you have given them the appeal forms.

If sending your appeal form to the Asylum and Immigration Tribunal, the address is:

Asylum and Immigration Tribunal
PO Box 7866
LE11 2XZ
(Fax: 01509 221699)

If you post your appeal forms, we advise you to do so by registered or recorded delivery and keep proof of postage. If you are delivering it by hand, you should, ask for some record of receipt from the office receiving it. Make sure that you keep a copy of the completed appeal forms.

How long will I have to wait for my appeal to take place?

In entry clearance appeals, you may have to wait several months before the appeal takes place. Waiting times can be as long as six months to a year.

In asylum and immigration appeals from inside the UK, there will usually be a case management review hearing two weeks after you lodge your appeal and the full hearing will usually take place four weeks after you lodged the appeal.

Where does the appeal take place?

In all cases, the appeal will take place in the UK, even if you yourself are not in the UK. The Asylum and Immigration Tribunal has hearing centres in a number of different locations in the UK but their central administration is based in Loughborough.

Do I need a lawyer?

In all immigration and asylum appeals, you will have a much better chance if a competent and experienced specialist legal representative advises and represents you.

Please make an enquiry or give us a call on 0121 551 7483 for more information or to book consultation.

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