How to Appeal a UK Visa or Immigration Refusal

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.  

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 principles apply equally to appeals against the refusal of entry clearance, where Article 8 ECHR is engaged and the requirements of the Immigration Rules are found to be satisfied.

Where the requirements of the Immigration Rules are not satisfied, the Immigration Tribunal will need to consider whether the decision on appeal is a disproportionate interference with the appellant’s (and any affected family members’) rights under Article 8 ECHR. In conducting this assessment, the Tribunal is required to have regard to the considerations of s.117A-117D of the Nationality, Immigration and Asylum Act 2002.

Deprivation of British Citizenship Appeals

We examined appeals against deprivation of British Citizenship in accordance with section 40A(1) British Nationality Act 1981 in an earlier post and now updated in this post in light of the judgment in Begum, R. (on the application of) v Special Immigration Appeals Commission & Anor [2021] UKSC 7.

Raising a New Matter in an Immigration Appeal 

You will need to consider if your immigration appeal contains a new matter. Section 85(5) of the Nationality, Immigration and Asylum Act 2002 states that the Immigration Tribunal must not consider a “new matter” unless the Secretary of State has given the Tribunal consent to do so. The definition of “new matter” is given in section 85(6) of the 2002 Act.

In Mahmud (S. 85 NIAA 2002 – ‘new matters’) [2017] UKUT 488 (IAC), the Tribunal held as follows:

1. Whether something is or is not a ‘new matter’ goes to the jurisdiction of the First-tier Tribunal in the appeal and the First-tier Tribunal must therefore determine for itself the issue.
2. A ‘new matter’ is a matter which constitutes a ground of appeal of a kind listed in section 84, as required by section 85(6)(a) of the 2002 Act.  Constituting a ground of appeal means that it must contain a matter which could raise or establish a listed ground of appeal.  A matter is the factual substance of a claim.  A ground of appeal is the legal basis on which the facts in any given matter could form the basis of a challenge to the decision under appeal. 
3. In practice, a new matter is a factual matrix which has not previously been considered by the Secretary of State in the context of the decision in section 82(1) or a statement made by the appellant under section 120. This requires the matter to be factually distinct from that previously raised by an appellant, as opposed to further or better evidence of an existing matter.  The assessment will always be fact sensitive.

There is a difference between a human rights or protection claim that the Secretary of State is unaware of and developing the evidence relating to matters already raised. It is of great importance to raise everything from the outset.

Home Office guidance gives the following examples, as to what might, in the Home Office’s view, constitute a new matter (as above, it is for the Tribunal to determine for itself the issue and therefore the Home Office’s guidance is not determinative):

Examples likely to constitute a new matter are where: 

• there is a human rights claim based on a relationship and the couple have now had a child and this has not previously been considered by the SSHD, because the existence of the child adds an additional distinct new family relationship (with a requirement to consider the best interests of the child) which could separately raise or establish a ground of appeal under Article 8 ECHR 
• the appellant made a human rights claim based on a relationship and at the appeal the appellant says that their human rights claim is based on a new relationship, as although the SSHD will previously have considered Article 8 ECHR the factual basis for that claim will have changed and therefore it will be a new matter 
• a protection claim has been made, and the appellant is now claiming removal would be (or would also be) a breach of Article 8 ECHR based on their family life in the UK 
• a human rights claim based on family life has been made, and the appellant is now claiming (or also claiming) that they are a refugee 
• a human rights claim has been made based on private life under Article 8, and the appellant is now claiming (or also claiming) that removal would be a breach of Article 8 ECHR on the basis of family life because the appellant has now married a British citizen

The guidance states that if a new matter is raised before an immigration appeal hearing, the Secretary of State should try to consider it before the hearing so that consent can be given and all matters can be considered together by the Immigration Tribunal. If the new matter cannot be considered before the hearing, an adjournment should be sought. Raising new matters at the last minute is unlikely to be looked upon favourably and could have cost implications. 

The guidance states:

Withholding consent can delay the conclusion of the person’s claim and consequently delay the grant of leave or efforts to remove the person from the UK. Consent should be given unless it would prejudice the SSHD not to be able to consider the new matter.

All the facts and circumstances of the case and the appellant should be considered when reaching a decision on consent.

Unless there are exceptional circumstances, consent should be refused if:

• it is necessary to verify facts or documents that are submitted in support of the new matter and these checks are material to the new matter
• the new matter is a protection claim and it has not already been confirmed that the UK is the responsible state for determining the claim
• it is necessary to conduct additional checks such as a person’s criminal conviction history or the status of a criminal prosecution  

Where consent would normally be refused, exceptional factors may mean that consent should be granted. Exceptional circumstances may include where the:

• appellant or a dependent has a serious illness and the appeal needs to be determined on an urgent basis
• matter had been raised with the SSHD and, through no fault of the appellant, there has been more than six months’ delay in the SSHD considering the matter

If there is a new matter, the Immigration Tribunal does not have jurisdiction to consider it without the Secretary of State’s consent. If the Secretary of State has refused consent unlawfully, this can only be challenged by way of judicial review. 

If you are considering raising a new matter in an immigration appeal, you may wish to seek expert advice from a specialist immigration appeal lawyer.

Active Case Management in Immigration Appeals

There is likely to be active case management of your appeal case, particularly with the new MyHMCTS system we reviewed in our earlier post. Active case management can lead to the making of direction to the parties, the conduct of pre-hearing reviews, or the listing of case management review hearings, which can take place in person, by video conferencing or telephone.

The purpose of active case management is to give effect to the overriding objective to deal with immigration appeals fairly and justly, which the parties must help the Immigration Tribunal to further.

It is wise to make use of the Immigration Tribunal’s active case management of appeals, to ensure that there are no unnecessary adjournment applications.  If, for example, you are likely to rely on and have instructed an expert, you will want to ensure the Immigration Tribunal is aware, as this will impact on any listing of an appeal. 

Failure to comply could have implications in terms of costs. 

It is of vital importance that the Immigration Tribunal is fully updated as to any change in contact details as notices or directions can be served in a variety of ways and will rely on the latest details on the file. 

Anonymity in Immigration Appeals

At the time of lodging an immigration appeal consideration may need to be given to an application for an anonymity order. An application can be made at the time of lodging the immigration appeal and anytime thereafter. Asylum appeals are usually automatically anonymised. The Presidential Guidance Note No 2 of 2011: Anonymity Directions in the FtT(IAC) offers guidance on this matter.

It is important to consider particularly where there is particularly sensitive information relating to a person that could become apparent  during the appeal process. 

Our immigration appeal lawyers in London can advise on the merits of applying for an anonymity order in an immigration appeal and apply for an anonymity order on your behalf.

Special Measures in Immigration Appeals

In advance of any immigration appeal hearing, you will need to consider if an interpreter is required, and if so what language and dialect.  

You will need to consider if anyone giving evidence needs special arrangements to do so.  You may wish to consider any additional needs for a vulnerable or child witness. You may need to consider whether there should be a preliminary argument as to whether a witness should be treated as a vulnerable one.  We examined in our earlier post what may make an appellant or witness vulnerable.  

Our immigration appeal lawyers in London can advise on the merits of applying for special measures in an immigration appeal and apply for special measures on your behalf.

Expert Evidence in Immigration Appeals

You may wish to consider whether expert evidence is required in support of your arguments in the immigration appeal, for example a country expert report if your protection claim has been refused or an independent social worker’s report if your appeal involves arguments as to the best interests of a child, or whether it is reasonable to expect a child to leave the UK.

Experts have specific duties when it comes to preparing reports and giving their expert option. You will need to ensure they have all relevant material and that they are aware of the scope of their report. 

Our UK immigration appeal lawyers are able to advise clients on the merits of seeking an expert opinion in support of an immigration appeal and have access to a network of highly trusted experts to provide expert evidence in support of immigration appeals.

Video Links in Immigration Appeals

It is possible to apply for witnesses or an Appellant to give evidence via video link and certainly more hearings took place during the height of the pandemic using cloud based technology. 

If evidence is to be given by video link, there are practical considerations such as an Appellant’s access to technology and where the evidence will be given from. 

It is important to consider where a witness is in the world, which jurisdiction, as this may have practical and legal implications.  There is guidance given in the case of Nare (evidence by electronic means) Zimbabwe [2011] UKUT 00443.

Immigration Appeal Processing Times

The length of time that it takes to receive a hearing date for a First-tier Immigration Tribunal hearing varies from case to case.  It can take several months for an immigration appeal to be listed for hearing.

When Will the Immigration Appeal Determination be Received?

Once your immigration appeal has been heard, the Immigration Judge hearing the case will issue a determination telling you whether your appeal has been allowed or not.  

You are unlikely to receive an immigration appeal decision on the day of the hearing as judgement is usually reserved. A notice of the decision including written reasons and a notification as to an onward right of appeal is promulgated thereafter and provided to each party by the Immigration Tribunal. If you are legally represented, it will usually be provided to your legal representative on record with the Immigration Tribunal. Most decisions of the First-tier Immigration Tribunal are promulgated within about 3 to 4 weeks.

What Will Happen if My Immigration Appeal is Allowed?

If your immigration appeal is allowed, the Home Office may try to appeal the decision of the Immigration Judge of the First-tier Tribunal (Immigration and Asylum Chamber) to the Upper Tribunal.  A specialist UK immigration appeal lawyer will be able to advise you on the merits of the Home Office appeal and, if permission to appeal is granted, represent you in the appeal proceedings before the Upper Tribunal.

If the Home Office does not appeal, or if they appeal and are either not granted permission to appeal or their appeal is dismissed, the Home Office should reverse their decision and issue you with the appropriate immigration status document. 

What Will Happen if My Immigration Appeal is Refused?

If your immigration appeal is refused by the First-tier Tribunal Immigration Judge, you may be able to appeal the Judge’s decision to the Upper Tribunal.  Your immigration appeal barrister will be able to review the decision of the Immigration Judge and advise you as to whether there are any grounds to appeal to the Upper Tribunal, as well as the merits of any further appeal.  We strongly recommend seeking expert advice from an immigration appeal lawyer at this stage, if you have not done so already.

Contact our Immigration Appeal Barristers

For expert advice and assistance in relation to an immigration tribunal appeal against a UKVI visa or immigration refusal decision, contact our immigration appeal lawyers in London on 0203 617 9173 or via the enquiry form below.

This article was co-written by Alexandra Pease and Alex Papasotiriou.

04 Oct 2022