In-Country Rights of Appeal – Law & Pro...

All non-settled persons residing in the UK (not EEA nationals) need to seek either an extension of leave to remain or variation of leave to remain in order to prolong their stay in this country, if they wish so.

It would be much easier to understand the various aspects of the incountry appeals under the following headings:

1. Right of Appeal

There is a general rule given in section 82 of the Nationality, Immigration & Asylum Act 2002 stating that where an immigration decision is made in respect of a person he may appeal to the Tribunal.

An immigration decision is defined as:

1. Refusal of leave to enter the UK
2. Refusal of entry clearance
3. Refusal of certificate of entitlement under section 10 of the Nationality, Immigration and Asylum Act 2002
4. Refusal to vary a person`s leave to enter or remain in the UK if the result of the refusal is that the person has no leave to enter or remain
5. Variation of a person`s leave to enter or remain in the UK if when the variation takes effect the person has no leave to enter or remain
6. Revocation under section 76 of the Nationality, Immigration and Asylum Act 2002 of ILE/R in the UK
7. A decision that a person is to be removed from the UK by way of directions under section 10(1)(a), (b) or (c) of the Immigration & Asylum Act 1999 (removal of person unlawfully in the UK)
8. A decision that an illegal entrant is to be removed from the UK by way of directions under paragraphs 8 to 10 of schedule 2 to the Immigration Act 1971 (control of entry: removal)
9. A decision that a person is to be removed from the UK by way of directions given by virtue of paragraph 10A of that schedule (family)
10. A decision that a person is to be removed from the UK byway of directions under paragraph 12 (2) of Schedule 2 to the Immigration Act 1971 (seamen and aircrews)
11. A decision to make a deportation order under section 5(1) of that Act
12. A refusal to revoke a deportation order under section 5(2) of that Act

The above is a long list of circumstances when an appeal can be lodged against the immigration decision. Although in out country cases, an appeal can only be lodged while remaining outside the UK but in in-country cases, there are circumstances when the appellant is required to leave the UK to exercise his right of appeal. The application can only exercise his right of appeal while remaining in the UK, in cases referred in (C) , (D), (E), (F) & (J) in the list provided above. While in the rest of the cases, the appellant is required to leave the UK and he can only exercise his right of appeal from outside the UK. Time of lodging the appeal would start running from the day the appellant leaves the country.

2. Time Limitations

The appellant has got 10 working days to lodge an appeal against the immigration decision, if he is not detained while he has 5 working days if he is detained. Time starts running from the day when the notice of immigration decision is served to the appellant and not from the date of refusal. The appellant can however apply for an extension of time limit if he has got some reasonable excuse for the delayed submission of appeal.

3. Grounds of Appeal

The appellant needs to give the reasons of making the appeal. This is quite important and it requires great expertise to draft the grounds of lodging the appeal. This is normally done by relating the information and circumstances of the appellant to the relevant requirements of the immigration rules or other laws and also referring to the judicial precedents. The appellant can make use of all or either of the following grounds of appeal in order to address the reasons of lodging the appeal more effectively:

• That the decision is wrong under the immigration rules, or discretion under the rules should have been exercised in the applicant`s favour.
• That the decision is discriminatory under the Race Relations Act 1976.
• That the decision breaches the applicants human rights
• That the removal from the UK as a result of this decision would breach the applicant`s human rights or the UK`s obligations to refugees
• That the decision breaches Treaty rights in respect of an EEA National or dependant
• That the decision is otherwise unlawful

4. Detailed Procedure

Whenever an immigration decision is made that leads to a right of appeal, the Home office informs the appellant(s) about his right of appeal and the time duration during which he may lodge an appeal against the immigration decision. This is a two-stage process:

1. Submission of AppealThe appellant is required to submit the appeal from along with the relevant documents within 10 working days (if not detained) / 5 working days (if detained) from the service of the notice of the immigration decision. It should contain all the relevant information and documents and address all the issues raised by the Home office in the refusal letter. The Grounds of appeal section is a very important section of the appeal form and should be used to clearly and explicitly address all the relevant issues. More efforts should be put in making arrangements for the availability of appropriate documents that could assist in explaining the way that the appellant fulfils the necessary requisites of the immigration rules or other relevant policies.When the Home office receives an appeal form, they review the refusal of the original application in conjunction with the grounds of appeal and the documents submitted with the appeal form. A more senior person reviews the whole case in the light of fresh documentary evidences and the grounds of appeal and makes his decision of either upholding the original decision or overturning the decision and granting leave to remain to the appellant. The process of appeal therefore stops when the appeal is being reviewed and the original decision is overturned resulting in the issuance of further leave to remain.If the original decision is upheld, the appeal process does not stop and proceeds to a full court hearing in the UK. The appellant however has got option to request the appeal to be done without a court hearing on the basis of papers alone. The respondent (SSHD) prepares a bundle of documents for the Court hearing and sends it to the appellant and AIT for their information and necessary action. The bundle of documents includes:
   • Brief notes of the Senior Caseworker regarding his decision of not overturning the original decision.
   • Copy of the immigration application made to the Home office.
   • Copies of the documents submitted with the original application.
   • Copy of the notice of original immigration decision.
   • Records of the checks made by the respondent (on behalf of SSHD) regarding the credibility of documents submitted with the original application.
   • Copy of the appeal form.
   • Copies of the documents submitted with the appeal form.
   • Any other documents which are relevant to the specific case.
   It is always open to the appellant either to go for a full court hearing or to request the AIT to decide on the basis of papers (bundle of documents) only.
2. Full Court HearingIf the appellant decides to have his appeal heard before the Immigration Judge, he can either represent himself before the AIT or hire the services of a professional who can represent him in the AIT. But it is always advisable for the appellant to be present as well and give evidence in support of their appeal.The appellant`s representative prepares the documents and provides a copy of the bundle to the AIT and the Home office Presenting unit within the prescribed time limitations and in accordance with the procedures. The presence of appellant is very important as the respondent also gets an opportunity to cross-examine the appellant while the appellant can explain the circumstances of his immigration matter in his own way.The Court hearing results in a judicial determination of the decision of the respondent (SSHD) by an independent judge which can be challenged on point of law only, by the aggrieved party of the case. The scope of the appeal would be restricted and the parties would only be allowed to take up the legal issues involved in the case. The further leave to remain application therefore is in fact a starting point of the legal mechanism and might end up in higher courts of the UK. This is the reason that it is always advised to take professional advise and services before making any immigration application otherwise the cost and the time taken by getting a remedy could be very distressing for you!!