How To Appeal A UK Visa Or Immigration Refusal

• Published date: 06 October 2022
• Subject Matter: Government, Public Sector, Immigration, Human Rights, General Immigration, Work Visas
• Law Firm: Richmond Chambers Immigration Barristers
• Author: Mr Alex Papasotiriou

In Part 1 of this comprehensive two-part guide to appealing against a Home Office visa or immigration refusal decision, we looked 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 looked 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 looked 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 this post (Part 2), we look at the general approach of the Immigration Tribunals (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 when considering how to win an immigration appeal, 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.

To discuss your immigration tribunal appeal with one of our immigration appeal barristers, contact our UK immigration appeal lawyers on 0203 617 9173 or complete our enquiry form below.

Approach of the First-Tier Tribunal and Upper Tribunal to Immigration Appeals

Private and Family Life Human Rights Appeals

We are often asked - what are the chances of winning an immigration appeal? The starting point for any immigration appeal based on human rights is whether Article 8 ECHR is engaged.

In Secretary of State for the Home Department v Abbas [2017] EWCA Civ 1393, the Court of Appeal confirmed that Article 8 is not engaged when an individual is refused entry clearance to pursue a private life and no question of proportionality arises for consideration. Article 8 is engaged, however, where family life exists between the appellant and family members in the UK.

Provided that Article 8 is engaged and following Mostafa (Article 8 in entry clearance) [2015] UKUT 00112 (IAC), when assessing whether a refusal of leave constitutes a proportionate interference with the appellant's right to family life, the first consideration will be the requirements of the Immigration Rules. If it is shown that the Appellant meets the requirements of the Rules, this provides a weighty factor when considering proportionality.

Thereafter, in TZ (Pakistan) and PG (India) v The Secretary of State for the Home Department [2018] EWCA Civ 1109, the Court of Appeal held:

"where a person satisfies the Rules, whether or not by reference to an article 8 informed requirement, then this will be positively determinative of that person's article 8 appeal, provided their case engages article 8(1), for the very reason that it would then be disproportionate for that person to be removed." [34]

The above was confirmed in OA and others (human rights; "new matter"; s. 120) Nigeria [2019] UKUT 65 (IAC), where it was held that:

"In a human rights appeal under section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002, a finding that a person (P) satisfies the requirements of a particular immigration rule, so as to be entitled to leave to remain, means that (provided Article 8 of the ECHR is engaged), the Secretary of State will not be able to point to the importance of maintaining immigration controls as a factor weighing in favour of the Secretary of State in the proportionality balance, so far as that factor relates to the particular immigration rule that the judge has found to be satisfied."

In the case of Begum (employment income; Rules/Article 8) [2021] UKUT 115 (IAC), the Upper Tribunal confirmed that the above...