How To Appeal A UK Visa Or Immigration Decision

• Published date: 04 October 2022
• Subject Matter: Government, Public Sector, Immigration, Human Rights, General Immigration, Work Visas
• Law Firm: Richmond Chambers Immigration Barristers
• Author: Ms Alexandra Pease

In Part 1 of this comprehensive two-part guide to appealing against a Home Office visa or immigration refusal decision, we look at which immigration decisions have a right of appeal, what constitutes an appealable human rights claim and the circumstances in which the Home Office may prevent an individual from appealing a Home Office refusal decision.

We also look at the online immigration appeal process, time limits for lodging an appeal to the First-tier Tribunal (Immigration and Asylum Chamber), the circumstances in which it may be possible to appeal out-of-time and also how to seek an expedited immigration appeal hearing.

Finally, we look at immigration appeal fees, immigration status during a pending immigration appeal, the impact of leaving the UK while an immigration appeal is pending and the possibility of entering the UK during a pending immigration appeal.

In Part 2, we will look at the general approach of the First-tier Tribunal and Upper Tribunal to immigration appeals based on human rights, highlighting some of the most important case-law that appellants should be aware of, as well as the scope for raising new matters on appeal.

We also examine various practical issues that need to be considered when presenting an immigration appeal, such as the Immigration Tribunal's active case management of appeals, the possibility of seeking anonymity in immigration appeal proceedings, special measures, video links in immigration appeal hearings, immigration appeal processing times and what happens after an immigration appeal has been determined.

What UK Visa and Immigration Decisions Can You Appeal Against?

You can appeal to the First-tier Tribunal (Immigration and Asylum Chamber) against a decision of the Home Office to:

• refuse a protection claim;
• revoke protection status;
• refuse a human rights claim (this would include decisions to refuse to extend a spouse visa or refuse an adult dependent relative visa);
• refuse to issue a residence document, or remove a person under the Immigration (European Economic Area) Regulations 2016 (where saving provisions apply);
• deprive a person of their British citizenship;
• refuse leave to enter or remain, or refuse indefinite leave to enter or remain where limited leave is granted following an application made under the EU Settlement Scheme;
• vary the length or conditions of leave to enter or remain cancel leave to enter or remain or revoke indefinite leave to enter or remain granted under the EU Settlement Scheme;
• refuse, cancel or revoke entry clearance under the EU Settlement Scheme Family Permit;
• refuse leave to enter where there is entry clearance under the EU Settlement Scheme Family Permit;
• cancel or vary leave to enter acquired by virtue of having entered the UK with entry clearance under the EU Settlement Scheme Family Permit;
• make a deportation order in respect of a person who has leave to enter or remain under the EU Settlement Scheme or entry clearance under Appendix EU: Family Permit;
• refuse or revoke a frontier worker permit, or remove or deport a frontier worker;
• refuse or revoke leave to enter or remain as an S2 healthcare visitor, or remove or deport an S2 healthcare visitor.

If you do not have a right to appeal because the decision you wish to challenge is not an appealable immigration decision, you may still be able to ask the Home Office for an Administrative Review. Only certain types of application carry a right of Administrative Review if refused. Our immigration appeal lawyers in London can advise you further.

It is sometimes possible to appeal, even where the Home Office asserts that you do not have a right of appeal, but you will need to argue jurisdiction before the Tribunal. Examples may include a returning resident visa where there are strong family ties. If you do not have a right of appeal then you may wish to consult our immigration appeal lawyers in order to discuss the options available.

What Is an Appealable Human Rights Claim?

The definition of "human rights claim" is in s.113 of the Nationality Immigration and Asylum Act 2002:

"human rights claim" means a claim made by a person to the Secretary of State at a place designated by the Secretary of State that to remove the person from or require him to leave the United Kingdom or to refuse him entry into the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to Convention).

Some applications made under the Immigration Rules are considered human rights applications and therefore attract a right of appeal if refused. Home Office guidance recognises the following applications as generally involving human rights claims:

• Long Residence applications;
• Appendix FM family member applications (this would include decisions to refuse entry or to extend on the basis of a spouse visa, civil partner visa or unmarried partner visa);
• Part 8 family member applications;
• Private Life applications;
• Partner or child of a member of HM Forces applications.

Some applications for leave to remain...