If you have applied for a visa and the application has been rejected, it can be very frustrating and upsetting. However, depending on the visa you have applied for, you may have an opportunity to appeal the visa refusal so that the visa may be successfully granted.
There are many different types of visa refusals that can be appealed, these include family visit visas, fiancé visas, spouse visas, dependant’s visas, EEA family permits.
The Secretary of State who is based at the Home Office in the UK may also refuse a visa for which you have a right of appeal such as Tier 1 or Tier 4 visa, visa extension applications, EEA applications and Article 8 claims.
Generally, if a visa is refused by the Secretary of State, then assuming you appeal to the Immigration Court in the UK who is called the “First- tier Tribunal, Immigration and Asylum Chamber” then it is not unusual to receive a court hearing date within a couple of months of your appealing the Home Office refusal decision. To appeal a Home Office refusal decision the procedure is usually as follows.
Steps to Follow
1. Upon receiving the refusal decision, you should decide whether you would like legal representation (this is advisable in order to ensure the highest chances of success in the appeal). If you select legal representation, you should seek help from an experienced immigration solicitor.
2. The next step is to complete the relevant appeal forms and draft grounds of appeal explaining why you disagree with the refusal notice and what you would like done, i.e.: for the Immigration Judge to agree that the Home Office has made an error in determining your visa application under the relevant immigration rules/laws and that your circumstances were not properly considered and therefore you should be granted the requested visa. You will have the option of requesting an oral hearing (where you can appear and give evidence before the Immigration Judge) or you can select a paper hearing (where the Immigration Judge decides the case on the papers before him only). You should also decide whether you would like to attend the hearing to give evidence, and whether you wish for any witnesses to attend the appeal hearing.
3. Once you have lodged the appeal forms at the AIT, you will receive a court hearing date. In-country appeals (Secretary of State refusals) are currently taking approximately about 2-3 months to obtain a court hearing date where visa refusals received from British Embassies are currently taking between 6-8 months for a court hearing date in the UK.
4. You should then prepare a statement which should include as much detail as possible explaining your case and why the Home Office or Entry Clearance Officer was wrong to not grant you the visa. It is important to raise legal argument such as citing the relevant immigration laws and rules, how these rules apply to you and how the Secretary of State or Entry Clearance Officer has misapplied the laws in your case and wrongly refused you the visa. Statements should also be obtained for any witnesses whom you will ask to provide evidence at the appeal hearing.
5. It is crucial to include as much helpful documentation which will assist the Immigration Judge to decide that the refusal notice is unfair or incorrect. This may include information to help clarify why the Secretary of State got his facts wrong. For example the Secretary of State may have refused a visa as he was not satisfied that you had provided documents as requested by him, when in fact you did send documents to him and have proof of postage such as a postal delivery receipt, which the Secretary of State failed to take into consideration. Other examples include where the Entry Clearance Officer has overlooked important information and evidence you submitted with the application and made an incorrect decision, maybe due to failing to carefully consider your case.
6. The bundle of papers you wish to rely upon at the appeal hearing should be neatly numbered with an index and should be photocopied in triplicate – 1 bundle for the Immigration Judge, 1 bundle for the Home Office Presenting Officer and 1 bundle for yourself if you are representing yourself without a lawyer.
At the appeal hearing, the Home Office may send a Legal Representative from their department to argue the case on behalf of the Secretary of State. Also present will be an Immigration Judge who should have read all the papers you have submitted in advance of the hearing along with Home Office’s bundle of papers which they will seek to argue at the appeal hearing.
The Immigration Judge will generally begin the hearing by identifying the relevant issues to be discussed and argued at the appeal hearing- these will be the issues contained in the Visa Refusal Notice.
You and your witnesses will then be asked to give evidence to the Immigration Judge and answer any questions the Home Office Presenting Officer may have. Your witnesses will also be provided with the same opportunity. It is important that you provide as much information and evidence as possible at this appeal hearing as this will ultimately be the best opportunity to argue the case.
Usually Immigration Judges reserve their decisions in cases – this means the Immigration Judge will not usually indicate their decision but instead choose to write to you within a short period of time with their decision and the reasons why.
Appeals lodged against Entry Clearance Officers at British Embassy will generally follow the same procedure as above. However the waiting time to obtain an appeal hearing at an AIT is currently 6-8 months from the date of the refusal decision. This is because the British Embassy is provided more time to collate and lodge the evidence, and to provide a bundle of papers which they will send to the AIT and the Home Office Presenting Officers Unit, who will represent the British Embassy on their behalf at the appeal hearing.
If you are successful at the appeal hearing, the Home Office can still appeal the successful decision and request that another Immigration Judge overturn the successful decision, but only if there is an error of law in the judgment. If however no further appeal is lodged following a successful appeal hearing, then the Home Office will endorse the passport with the visa (this can take a few weeks) or the British Embassy will request the individual’s passport for it to be endorsed with the visa to allow them to enter the UK.
Entry Clearance Manager Review
There is a possibility of applying for an Entry Clearance Manager Review, which is where an individual believes an Entry Clearance Officer has made a mistake in deciding their visa application and refused the visa. For example, in a case where a wife applies for a spouse visa to join her British husband in the UK but the Entry Clearance Officer refuses her spouse visa because there is insufficient documentary evidence to prove that the wife and husband have a subsisting marriage (this is a very common refusal ground in spouse visa applications). The wife may then provide further documentary evidence within 28 days to the Entry Clearance Manager along with completed appeal forms. The Entry Clearance Manager may then review the entire application and allow the visa without the need of proceeding to appeal, which obviously will be an excellent result as the visa may be granted almost immediately without the need of waiting several frustrating months for an appeal hearing.
By Raheela Hussain,
* Please note that the above article does not relate to nationals of the European Union.
Disclaimer: The above article is meant to be relied upon as an informative article and in no way constitutes legal advice. Information is offered for general information purposes only, based on the current law when the information was first published.
You should always seek advice from an appropriately qualified solicitor on any specific legal enquiry. For legal advice regarding your case, please contact Greenfields Solicitors for a Consultation with a Solicitor:
Tel. +44 (0)20 8884 1166
For questions regarding the subject covered in this guide, please visit migreat.com.