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Legalising your stay

Immigration Appeals and Administrative Reviews

 
In the current climate, the Government has eroded the rights of immigrants in the UK by
applying stringent new rules in an effort to reduce migration with the aim of bringing down
immigration numbers.
 
Therefore, if you have been refused a visa, an extension of leave to remain or have been
refused a points based system visa and have been provided with a right to appeal or been told
that you can submit an Administrative Review, the need to obtain immediate professional and
accurate legal advice is essential.
 
 
Big Ben and British Flag
 
IMMIGRATION APPEALS 
 
There are two main categories of visa refusals; the first is where an application is made in-
country to the Home Office and the second, is where an application is made out of country or
in your home state or country, usually at a British High Commission or British Embassy.
Confirmation of whether you have a right to appeal the refusal decision will be stated in the
‘Notice of Immigration Decision’ which will either be issued by the Home Office on behalf
of the Secretary State for in-country applications or in an ‘Entry Clearance Refusal Notice’
issued by the Entry Clearance Officer for all out of country applications. Currently, in-
country appeals must be lodged within 10 days of the date of receipt of the Notice of
Immigration Decision and out of country appeals must be lodged within 28 days of receipt of
an Entry Clearance Refusal Notice.
 
The most common types of appeal rights arise from visa refusal in the following categories:
  • Human Rights appeals
  • Removals/Deportation appeals
  • Dependant appeals
  • Fiancée/Spouse visa appeals
  • EEA Regulation appeals
  • PBS administrative reviews
To appeal a refusal decision, it is necessary to complete an appeal form and to draft cohesive
Grounds of Appeal which explain why the refusal decision is incorrect and should be
overturned. It should be noted that there is also an Immigration Tribunal fee to pay for the
appeal to progress; this is currently £140.00 for an appeal via an oral hearing or £80.00 for an
appeal via a paper hearing.
 
Once an appeal is lodged at the Immigration Tribunal, within the deadline specified, it
usually takes an average of 4-6 months for the appeal hearing to be scheduled.  You will have
the option to elect the hearing to be dealt with “on the papers” or by an “oral hearing”. At an
oral hearing, a Barrister should be present to argue to the case of the Appellant- this is the
term used to describe the person who is appealing the refusal decision. During an oral
hearing, witnesses can be called to give evidence on behalf of an Appellant with the aim of
convincing the Immigration Judge to overturn the refusal decision and to allow the Appellant
leave to enter or remain in the UK in the visa category they requested. Ultimately any appeal
decision is based on the legal arguments and factual evidence provided in the application and
the Grounds of Appeal.
 
Usually the Secretary of State/Home Office will also be represented at the appeal hearing and
their aim will be to try and convince the Immigration Judge that the original refusal decision
issued is correct and should not be overturned. During the appeal hearing, the Immigration
Judge will hear both sides of the argument, including evidence from witnesses and the
Barrister representing the Appellant to during the appeal hearing. A decision can be expected
from the Immigration Judge usually within 4 weeks of hearing the appeal.
 
It should be noted that if the Immigration Judge refuses the appeal at this stage and does not
overturn the refusal notice, then the Appellant can still appeal further to the Upper Tribunal
and there are still legal remedies available. Any such further appeal will need to be based
upon showing that the Immigration Judge made an error in determining the correct
immigration laws/rules and effectively arguing that due to the Immigration Judge making an
error in law, their decision cannot be allowed to stand  and therefore a more senior
Immigration Judge is required to look at the decision and to overturn it.
 
Nonetheless, even if your appeal  is unsuccessful at First Tier Tribunal you have the right to
appeal to the Upper Tribunal and to the Court of Appeal. One additional route to appeal open
to both Immigration Appeals and Administrative Review, is to issue Judicial Review
Proceedings in the High Court. This route is available where it is believed that there has been
procedural impropriety or where the law has not been applied correctly by the Home Office.
These are specialised applications and the need to ensure your application is prepared
properly is paramount, as this is your last defence against a decision to restrain you from
entering or remaining in the UK. Legal expertise is therefore essentional.
 
Appeals are complicated matters governed by extensive immigration rules laws and case laws
and the need to obtain accurate and knowledgeable advice from a reputable immigration firm
is essential from the point of receiving a refusal decision.
 
ADMINISTRATIVE REVIEW
 
A Points Based System (“PBS”) refusal decision does not allow a right of appeal, instead it
grants a person the right to request for an Administrative Review. It is best explained “as the
review of an eligible decision to decide whether the decision is wrong due to a case working
error”. For example, it may be possible to successfully argue that, the decision maker
incorrectly applied the Immigration Rules, did not give sufficient weight to the evidence that
was submitted as noted in the notice of decision  or has incorrectly refused an application on
the basis that it was made more than 28 days after the original leave had expired. The errors
of law which are denoted will be carefully reviewed, however an administrative review can
only be requested once.
 
Greenfields Solicitors are experts in all types of Immigration and Human Rights matters. This
area of law is complex and constantly changing which means that you have to be sure you
have up to date and accurate legal advice. Get advice and representation at an early stage to
help give your appeal the best chance of success.
 
By Raheela Hussain
Principal Solicitor
 
Greenfields Solicitors
6 Market Parade
Winchester Road
London N9 9HF
Tel: 020 8884 1166
 
*Please note that the above article is an informative article only and does not in any way constitute legal advice.
For advice regarding your case, please call Greenfields Solicitors on 020 8884 1166 to book a consultation. Ms
Hussain offers both telephone and in-office consultations for a fee of just £49.00 for 40 minutes advice.

If you need help with your application, visit Foreigners in the UK's partner immigration website Migreat and ask a question on the Migreat visa forum.

 

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