First-Tier Tribunal Immigration Appeal Process


What does the First-Tier Tribunal Immigration Appeal Process entail?

This article discusses the first-tier tribunal appeal process and how this works for those who want to appeal immigration refusal decisions against them.

The following immigration appeals currently exist to the first tier tribunal immigration asylum chamber against refusal decisions of the Secretary of State for the Home Department (SSHD), following applications by foreign nationals for leave to enter or remain in the UK, namely appeals against adverse human rights decisions (which includes appeals against refusals of leave to enter or remain on family life basis, such as as a spouse or civil partner or unmarried partner, and against refusals involving children of the family), protection appeals ( following refusals of asylum and or humanitarian protection decisions), and appeals against refusal of EEA decisions including refusals to grant pre-settled or settled status under the EU Settlement Scheme.

There are no appeals against refusals to enter or remain based on the current points-based system, such as refusal to grant a Tier 4 student visa or refusal of a work permit visa under the Tier 2 rules. Instead, there is a system of administrative review whereby the SSHD will review the decision on the same facts as on the application to see whether or not a mistake had been made. If a negative decision is made ( more often than not this is, unfortunately, the case) the aggrieved applicant, legal fees permitting, can apply to the Upper Tribunal for permission to proceed with a judicial review of the decision which must be made within three months of the Home Office adverse decision on administrative review. Again this will be based on the same facts as the original application, but the difference is that the application for permission to proceed with a judicial review is heard by upper tribunal immigration judges and not by home office officials, which is the case for Administrative review.

It could be that at this stage when a permission application has been made for judicial review, that the solicitors acting for the SSHD, the Government Legal Department (GLD) formerly known as the Treasury Solicitors office ( TSOL) will agree to reconsider the permission application or the application if permission has been granted, and if they find an error in the Home Office decision they will then advise their client, the SSHD to grant the application sought with costs incurred by the applicant paid as agreed or if no agreement is reached, then assessed by the court.

If permission has not yet been granted by the upper tribunal and if the GLD agrees to reconsider, it will ask the applicant to withdraw the permission application on the basis that if they maintain their original decision, then they will allow the applicant to appeal to the first tier tribunal and also pay for the costs incurred in making the permission application to the upper tribunal, again such costs to be agreed or if no agreement takes place, then assessed by the court. All this will be set out in a consent order signed by all the parties and endorsed by the upper tribunal. So it can be seen that it is possible even on a points-based refusal to have access to the first tier immigration tribunal through the ‘ back door’ by a consent order of the GLD.

Refusals against Home Office decisions where there is a right of appeal must be appealed within 14 days of receipt of the adverse decision, and where entry clearance from abroad has been refused then within 28 days of receipt of the refusal. Instead of filing grounds of appeal, what is now required is a skeleton argument setting out the issues in the appeal, and why it is considered that the decision is wrong. The Home Office can then respond to the skeleton.

Permission to appeal from the first tier tribunal is to the first tier on error(s) of law and if that is refused then to the upper tribunal, and decisions of the upper tribunal can be appealed to the Court of Appeal again by way of permission application on an error of law principles. Thereafter the Court of Appeal decisions can be appealed to the Supreme Court and at this stage, usually on the point of public importance.

If the upper tribunal refuses to give permission to appeal to it from the first tier, then permission is for a judicial review of the refusal of the upper tier to grant permission to appeal, and such permission application is to the high court via a carte Judicial review, taken after the name of an applicant called carte. Any appeal on legal error issues is to the Court of Appeal and thereafter to the Supreme Court.

Whilst there are no appeals to the first tier tribunal against the refusal of the grant of naturalisation as a British citizen there is a way of reviewing the decision administratively for which see the earlier part of this article on administrative and judicial reviews. Furthermore, deportations and administrative removals are usually contested based on human rights or protection grounds issues before the first-tier tribunal, about which the applicant is asked to inform the Home Office of such concerns before administrative removal or deportation is put into motion.

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