Immigration Appeals

The Nationality, Immigration, and Asylum Act 2002 revised the systems of appeals against refusal for leave to enter or remain. There is a single right of appeal against any of a number of listed immigration decisions. Where there are multiple decisions, they are subject to a single appeal. All grounds may be raised in it. Most but not all appeals can be exercised in the UK.

An appeal may be made against the following immigration decisions: refusal of leave to enter, refusal of entry clearance, refusal of a certificate of entitlement to, of the right to abode, refusal to vary a person’s leave to enter or remain, variation of a right to leave or enter, revocation of indefinite leave to enter or remain, decision that a person is to be removed by direction. Decision on a legal entrant is to be removed, decision to make a deportation order, refusal to revoke a deportation order.

The grounds of appeal are as follows: that the decision is not in accordance with immigration rules, that the decision is unlawful discrimination under the Race Relations Act, that the discrimination is unlawful under the Human Rights Act, as incompatible with the European Convention on Human Rights, that the appellant is an EEA national or a member of its family exercising treaty rights that the decision is otherwise unlawful, that the discretion should be exercised differently under the immigration rules, that the removal would be in breach of the Refugee Convention.

An appeal is not exercisable while the appellant is in the UK unless it is against the third, fourth, fifth, sixth grounds above. The appeal is against refusal of leave to enter where at the time of the refusal the appellant is in the UK and has either entry clearance or a work permit.

The appeal is against an immigration decision, and the appellant has made an asylum claim or a human rights claim while in the UK or is an EEA national and makes a claim in respect of community rights. Other appeals may only be taken from outside the UK.

A human rights claim is a claim that to remove the person would be unlawful under the Human Rights Act.

The decision-maker, whether an immigration officer, Secretary of State, entry clearance officer, must give written notice of immigration decision which is available. It must be accompanied by a statement of the reasons for the decision, state the country if applicable to which it is proposed to remove the person.

The notice must give a statement of the right of appeal and the statutory provisions on which the appeal may be based, whether or not it may be brought while in the UK and the grounds on which it would be brought, facilities available for advice and assistance in connection with an appeal.

The notice must be accompanied by the time limits for bringing an appeal, the address to which the appeal should be sent or other communication particulars. Where there is a restriction or limitation on the right of appeal, this should be stated.

An immigration officer or other authority may require a person to state their reasons for wishing to enter or remain in the UK, the grounds on which they claim they are permitted to enter on any grounds on which they should not be removed or required to leave, failure to give the reasons, grounds may jeopardize reliance on them in a later appeal.

An appeal may not be brought on grounds which are otherwise appealable if the immigration officer or Secretary of State certifies that the person was notified of a right of appeal against another decision and in their opinion, a person made the claim or application in order to delay removal or the removal of a family member and in their opinion, the person had no other legitimate purposes for making the claim or application.

A certificate may be issued under the above power if it is certified that the new decision relates to a ground which was raised in an earlier appeal or could have been raised if chosen to exercise a right of appeal.

The appeal is to the Asylum and Immigration Tribunal. The members are deemed immigration judges. Classes of appeal may be allocated amongst the judges of the Tribunal.

The Tribunal operates a case management review hearing at which it may give directions in relation to evidence. This is only permissible if the AIT may have made an error of law and there is a real possibility, it would decide the appeal differently on reconsideration. If a reconsideration hearing takes place, a differently constituted AIT determines whether the AIT made a material error of law.

If a reconsideration is refused, an appeal lies to the administrative court. The court may dismiss the appeal or refer to the court of appeal or direct the AIT to reconsider the appeal.

There is an appeal on a point of law from a reconsideration hearing or the first hearing, three judges to the court of appeal, with court permission. There is an appeal center in Belfast. The court of appeal may remit matter for rehearing and determination.

The appeal in the UK must be made within 10 days of receipt of the decision. If it is outside the UK, it must be made within 28 days.

If reconsideration is sought, it must be done within five working days if it is within the UK or 28 days if he is outside the UK. An application for leave to appeal to the court of appeal must be made within 10 days. The appeal is fast-track if the person is in detention.

An appeal may be treated as abandonment if the appellant leaves the UK or is granted leave to enter or remain or a deportation order is made. A person may have the right to remain in the UK while their appeal is being heard. However, a direction for their removal may be made or a deportation order may be made.

A person may not appeal on the grounds that they are a person of whom they or a person to whom they are a dependent does not satisfy requirements as to age, nationality, or citizenship specified in the immigration rules does not have an immigration document of a particular kind, is seeking to be in the UK for a period greater than permitted by the rules. Seeking to enter the UK for a purpose other than one for which entry is permitted or remaining is permitted under the rules.

An immigration document is entry clearance, passport, work permit, or other immigration employment document or a document related to a national of a country other than the UK which serves the same purpose as a passport.

Certain other classes of persons may not appeal including visitors or students without entry clearance. An appeal may be brought on asylum, human rights, or race discrimination grounds.

A person who applies for entry clearance for the purpose of entering the UK as a visitor may appeal against refusal of entry only if the application is made for the purpose of visiting a member of the applicant’s family. Family are defined as relations within the first and second degree.

A person may not appeal against refusal of entry clearance for the purpose of following a course of study for which he has been accepted, which lasts for six months. In order to study but without having been accepted for a course or as a dependent of such person.

An appeal may not be made where the Secretary of State or continued where the Secretary of State certifies that it was taken to exclude or remove a person on grounds of national security interest, the relationship with other countries, or otherwise in the public interest. It may not be continued or made if the Secretary of State certifies that the person’s exclusion is conducive to the public good and this does not prevent appeals on human rights on an asylum basis in the latter case.

A person may not appeal if, while he is in the UK, if a certificate has been issued. If he has made a human rights claim and the Secretary of State has not certified that in his opinion the claim is clearly unfounded, an appeal can be pursued in the UK.

A person may not pursue an appeal in the UK if the Secretary of State certifies that the claim is clearly unfounded on asylum or human rights grounds. A number of States have certified as generally safe in the case of asylum and human rights claims. Although, in some cases only in respect of men.

An appeal may not be brought if the Secretary of State certifies that it is proposed to remove into a country of which he is not a national and there is no grounds for believing the person’s human rights will be breached in that country.

Certain immigration decisions may be subject to judicial review. Permission to proceed must be granted in the first instance. If this is allowed, a full judicial hearing may be allowed. The matter is governed by the civil procedure rules in England and Wales.

Judicial review is not available if an alternative remedy is more appropriate. The judicial review must be made promptly and in any event within three months. There was a special provision in the 2002 legislation, placing judicial review.

Habeas corpus may be used to challenge the validity of detention. Initial permission is not required. It must be based on illegality based on a legitimate exercise of discretion.

Please note that some sections of the text are quite complex and may require further clarification or specific legal knowledge to fully understand.