Receiving a refusal decision on a visa application can be very frustrating and upsetting, not only for you, but also your loved ones. Some decisions carry a right of appeal, which is essentially an opportunity to have your case heard by an independent tribunal. In immigration proceedings, the First-tier Tribunal (Immigration and Asylum Chamber) is the court which would look at your case first. Other decisions can only be challenged through an internal Home Office process called administrative review.
What follows is a brief summary of the most common scenarios that arise following a visa refusal, and the potential options open to you to challenge a decision.
If you’ve been refused while in the UK
Most family and human rights-based applications submitted from inside the UK will offer the remedy of appealing the decision ‘in-country’. This essentially means that you would not be required to leave the UK until your appeal proceedings have concluded. EEA (European Economic Area) decisions are the main exception to this rule and may result in you having to apply to the court to either remain, or be allowed back to the UK to give evidence at your own appeal.
An appeal from inside the UK must be submitted within 14 days of the date of your decision. The current court fee to lodge an appeal is £140 per applicant if you want an oral hearing, £90 for a paper hearing, although you may be able to argue that this fee should be waived if you are receiving asylum support or if you are considered destitute. Considering these two appeal options:
- Oral hearing – this means that you and your representative (if you have one) can attend and explain why you think the decision is wrong. A hearing would usually take place before a single judge. The judge will make a decision based on all the information available, either to allow your appeal (which should result in a grant of leave to remain) or dismiss your appeal (which means the Home Office’s original decision is upheld). The Tribunal usually issues a decision in writing within about 2-3 weeks of the hearing. One thing to bear in mind is that hearings will generally be carried out in public, although you can ask for this to be held in private in certain circumstances e.g. if a public hearing would put you in danger or your case raises particularly sensitive issues.
- Consideration on the papers – a Tribunal judge will make a decision based on the information contained in the appeal form and documents supplied, both by you and the Home Office. Again, you would receive a decision in writing, usually more quickly than if you opt to attend an oral hearing.
If you’re appealing from outside the UK
If you have made an application for a visa from outside the UK (known as entry clearance), and have been given a right of appeal, you have 28 days from the date the decision was given to you to submit an appeal to the Tribunal. Again, you will have the option of having your case heard at an oral hearing or on the papers only. The process the Tribunal follows is the same as for ‘in-country appeals’, except you would not be permitted to attend the hearing in person in order to give evidence. In certain circumstances, the Tribunal may permit you to give evidence via video link, although this is not the norm.
Decisions which don’t carry a right of appeal
It is important to remember that when the appeals regime was overhauled in April 2015, appeal rights were severely limited across the board and in some cases were removed altogether. The most notable example of this are applications made under Points-Based System (PBS) categories, such a sponsored work visas and students. Visa refusal of such applications carry the internal remedy of administrative review, meaning that the decision is reviewed by another Home Office official. If the decision is maintained, then you may consider reapplying or taking your case further through judicial review. Judicial review is a remedy of last resort and should only be considered where there is no other method of challenging a decision. This is a process whereby a court (in most instances the Upper Tribunal (Immigration and Asylum Chamber)) considers administrative decisions to decide whether they are lawful or not. By nature, the process can be a lengthy and costly and we would usually seek an opinion from a barrister before pursuing such litigation. You would normally have 3 months from the date of your decision to lodge judicial review proceedings.
If you would like comprehensive advice on your visa refusal, arrange an appointment with one our solicitors now. You can reach our offices by calling on 0044 161 234 6800 (Manchester) or 0044 207 046 7185 (London).