2013-05-28 immigration appeals leaflet final pdf

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Factsheet 1

IMMIGR TION PPE LS INCLUDINGDEPORT TIONThe Home Office has refused me permission

to stay in the UK. Can I appeal their decision?

May 2013

Winner of the JUSTICE Human Rights Award 2010


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Disclaimer

Although every effort is made to ensure the information in this factsheet is

accurate and up to date, it should not be treated as a complete and

authoritative statement of the law. BID cannot be held liable for any

inaccuracies and their consequences. The information in this factsheet is notlegal advice. If you have a legal problem you should talk to a lawyer or legal

adviser before making a decision about what to do.

Please check that this factsheet is up to date before using it. Please also check

whether BID has written other factsheets or leaflets that might be relevant to

you. All BID factsheets and leaflets can be found atwww.biduk.org

Copyright BID 2013

Bail for Immigration Detainees is a national charity that

works with asylum seekers and migrants to secure theirrelease from detention. BID works with detainees in all

removal centres in the UK, and with immigration detainees

held in prisons at the end of their sentence.

We provide free legal advice,information and support

to immigration detainees to help them exercise their

right to liberty and access to justice.

We prepare and present (free of charge) applications

for release on bail or temporary admission

We carry out research and use evidence from our legal

casework to influence decision-makers, including civil

servants, parliamentarians, and regulatory bodies

through policy advocacy.
http://www.biduk.org/http://www.biduk.org/


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The Home Office has refused me permission to stay in the UK. Can

I appeal their decision?

If a decision has been made to refuse you permission to remain in

the UK you may have a right of appeal against that decision, or you

may not.

The Home Office should tell you

if you have a right of appeal against the decision in your case, andif so;

how much time you have to submit an appeal to the First-tierTribunal (FTT) of the Immigration and Asylum Chamber (a kind ofcourt called a tribunal)

What does right of appeal mean?

It means that you have the legal right to ask for a decision in your

case to be changed and to have an independent court consider this.

Appealing from the UK or from your country of origin

If the decision in your case is the type of decision which allows you a

right of appeal, you may be able to make that appeal from the UK.

This means that you will not have to leave the UK while the appeal

process is going on.

But other types of decision in your case will only allow you to appeal

from outside the UK, in other words you will have to leave the UK

and then make your appeal from your country of origin.

When the Home Office give you any refusal decision they should

explain to you whether or not you have a right to appeal against that

decision from within the UK or whether you must leave the country

and make your appeal from outside the UK.


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What kinds of Home Office decisions can normally be appealed

from the UK?

Decisions to refuse an asylum or human rights claim, and decisions

to issue a deportation order or to refuse to revoke a deportation

order (with certain exceptions) will normally have a right of appeal

which can be made from inside the UK.

However in some cases the Home Office will do something called

certify the case, which means that the right of appeal can only be

made from outside the UK.

What can I do if the Home Office wont let me appeal the decision?The only way you can challenge a decision by the Home Office to

refuse you the right of appeal is for you to make an application to

the High Court for permission to apply for something called a

judicial review.

Judicial review is a type of court proceeding in which a judge reviews

the lawfulness of a decision or action made by a public body, for

example, the Home Office or UKBA. In other words, judicial reviews

are a challenge to the way in which a decision has been made, and

ensure that where decisions are made incorrectly that they are

remade (e.g. that a right of appeal is given where this was previously

denied),

It is best if you can obtain legal advice for such an application. It is

possible to obtain legal aid for applications before the High Court.


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There are time limits for lodging appeals to a judge of the

First-tier Tribunal

TIME LIMITS TO LODGE AN APPEALDEPENDING

ON THE TYPE OF CASE & YOUR SITUATION

5 working days where the refusal decision is issued to you

while you are detained for immigration reasons;

10 working days if the refusal decision is made while you are

still serving a criminal sentence in prison;

10 working days if you are not detainedwhen the refusal

decision is made and served on you;

Within 28 days of your departure from the UK (for example if

you are only allowed to appeal from outside the UK);

2 days if the decision relates to a refusal of an asylum claim

that has been considered under the Detained Fast-Track

(DFT).

TYPES OF DECISION THAT ATTRACT A RIGHT OF

APPEAL

Refusal of an asylum or a human rights claim, together with a

decision refusing permission to remain in the UK

A decision to issue a deportation order

A decision to refuse to revoke (cancel) a deportation order

A decision stating that you will be removed from the UK

Refusal of permission to enter the UK on arrival

Refusal of an application to extend a visa, or if a visa allowing

you to remain is cancelled


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Other things you need to know:

The time limit for you to appeal a decision received in detentionstarts from the day the decision is given to you.

Appeal forms and guidance to help you complete the forms can beobtained online from the Ministry of Justice at this page

http://www.justice.gov.uk/forms/hmcts/immigration-and-asylum

The IAFT1 appeal form must be faxed to the First-tier Tribunal. If you are being held in prison you can give your completed appeal

form to a prison officer and ask them to fax it to the First Tier

Tribunal on 0116 249 4232.

5 and 10 working days allowed for an in-country appeal does notinclude weekends, bank holidays, or 2731 December.

Where you have 28 days to appeal from abroad, the time limit foryou to make the appeal will begin from the day of your departure

from the UK. If the 28th

day falls on a non-business day, then the

deadline is moved to the next business day.

Where a decision is sent by post within the UK it is assumed tohave been received on the second day after it was sent; it is

therefore important to obtain proof of posting where possible.

You are responsible for making sure that your appeal is receivedby the Tribunal before the time limit expires.

What happens if I do not have time to appeal?

You can make an application to the First-tier Tribunal and ask to be

granted a right of appeal even if the time limit for your appeal has

expired. You will need to:
http://www.justice.gov.uk/forms/hmcts/immigration-and-asylumhttp://www.justice.gov.uk/forms/hmcts/immigration-and-asylum


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a.Make sure you appeal as quickly as possible, treat yourapplication as urgent.

b.Include a written statement giving the reasons why you werenot able to make your appeal to the Tribunal in time

c. Make sure you provide any written evidence that might supportyour written statement

d.If possible, include your fully completed appeal form (seebelow)

If you are being held in a prison and you are not given the refusaldecision from the Home Office quickly enough by prison officers, you

may find you do not have enough time to lodge an appeal against the

decision. You will need to write to the First Tier Tribunal explaining

that you only received the decision when it was too late to lodge an

appeal and ask for a short extension of the time allowed.

How do I complete the appeal form?

If you look at the IAFT1 appeal form you will see that it includes someguidance on how to complete your appeal form.

Here is the link to the guidance produced by the First Tier Tribunal to

help you complete your IAFT1 appeal form

http://hmctsformfinder.justice.gov.uk/courtfinder/forms/iaft1-guide-

pre-191211-eng.pdf

Some points to remember include:

Remember to state on your appeal form if you want yourappeal to be decided on the papers (which means the judge

will read all the documents without you being present in the

court) or if you want to have your case heard in court. It is

normally better to have your case heard in court as you will be
http://hmctsformfinder.justice.gov.uk/courtfinder/forms/iaft1-guide-pre-191211-eng.pdfhttp://hmctsformfinder.justice.gov.uk/courtfinder/forms/iaft1-guide-pre-191211-eng.pdfhttp://hmctsformfinder.justice.gov.uk/courtfinder/forms/iaft1-guide-pre-191211-eng.pdfhttp://hmctsformfinder.justice.gov.uk/courtfinder/forms/iaft1-guide-pre-191211-eng.pdf


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able to give evidence and speak to the judge who will be

deciding your case.

Make sure you respond to all the questions on the form. Make sure you reply to the Home Offices decision in your

appeal. You should challenge any points the Home Office

makes that you feel are unfair or wrong.

You must make sure that you give reasons for appealing whenyou send your appeal form. You can also add extra grounds ofappeal later on after you have lodged your application.

Will I have to pay to make an appeal against the decision in my

case?

Some people may have to pay a fee for their appeal to be heard: 80

for a case to be decided on the papers or 140 for a case to be

decided at a court hearing in front of a judge. There is also a fee

payable for each family member who may be included in your appeal.

You do not have to pay a fee in certain circumstances including

where:

your appeal is against deportation or removal directions your appeal is against the revocation (cancellation) of your

permanent residency status

you are an EEA national

you have been refused asylum and your case is being dealt withunder the Detained Fast Track (DFT) process

you are getting Section 95 or Section 98 support your case is being paid for by legal aid

How does the appeal work if my case is being decided on the

papers


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Once your appeal is received by the court, a judge will be given your

case and asked to consider your appeal form and the Home Offices

decision. The judge will then make a decision about your case and

will write to you to tell you what they have decided.

How does the appeal work if my case is being heard in court (this is

called an Oral Application)

Once the First-tier Tribunal receives your appeal form, your case will

be listed for hearing in court. It may take about four weeks before

your case is heard.

In asylum cases there may be a pre-hearing of the appeal case called

a Case Management Review (CMR) hearing. At this review a judge

decides whether you and the Home Office are ready to proceed with

the full hearing a few weeks later. This is often a time when a

request can be put to an Immigration Judge to have more time to

prepare the case (if you have a good reason).

At the hearing in court you will be asked by the judge to explain whyyou are asking for the Home Office decision to be changed. If you

have a legal representative they will be able to do this for you, in

which case you will need to prepare to be a witness and to be able to

reply to the reasons the Home Office has given to refuse your

application.

The decision or determination

After your appeal has been heard the judge will issue a decision on

your case, known as a determination. A determination or decision

is normally issued about 10 days after your hearing, but sometimes it

takes much longer.

Going even higher: making appeals to the Upper Tribunal


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If the First Tier Tribunal makes a decision in your appeal case, either

you or Home Office has the right to make an appeal against the

decision if you or they do not agree with it.

Your further appeal will be made to the Upper Tribunal (Immigration

& Asylum Chamber), but in order to do this you must first make an

application to the First-tier Tribunal.

An application to a First-tier Tribunal judge for permission to appeal

to the Upper Tribunal against the decision made in your case must be

received by the Upper Tier Tribunal not more than 5 days after thedecision of the First-tier judge has been received.

You will need to complete form IAFT1 First-tier tribunal application

for permission to appeal to Upper Tribunal. You can find the form

and some guidance on completing the form on the Ministry of Justice

website herehttp://hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?court_forms_id=2884

You do not have much time to appeal to the Upper Tribunal, so you

should try to be prepared in advance.

Your application to appeal must:

Clearly identify the decision which you are appealing Identify any mistake or errors of law that you think were

made by the First Tier Tribunal judge when they heard your

case and made their decision

Explain clearly what result you are expecting in your caseThe First-tier Tribunal will then decide if it should reconsider the

decision in your case, or whether it will give you permission to appeal

to the Upper Tribunal to see if they will change the decision.

If the First-tier Tribunal refuses your application to make a further
http://hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?court_forms_id=2884http://hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?court_forms_id=2884


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appeal, there is a right for you to apply for permission to appeal

which you can send directly to the Upper Tribunal. The First-tier

Tribunal will notify you of the time limit within which such an appeal

must be lodged (normally 5 days).

But you must apply to the First-tier Tribunal for permission to appeal

first, and be refused permission to appeal their decision, before you

apply directly to the Upper Tribunal, as described in the paragraph

above.

Appeals to the Court of AppealIf you get permission to appeal to the Upper Tribunal to overturn the

decision in your case but then the Upper Tribunal dismisses your

appeal, you can make an application to the Upper Tribunal for

permission to make an appeal to the Court of Appeal.

Such an application can only be made on grounds that there has been

an error of law. This is quite a complicated argument to make, and

you should try to get legal advice. But you may not be able to get thislegal advice free of charge. The Upper Tribunal will tell you how much

time you have to make such an application.

If you are refused permission to appeal to the Court of Appeal by the

Upper Tribunal, you can make an application for permission to appeal

directly to the Court of Appeal. The time limit for such an application

is 21 working days after receiving the decision from the Upper

Tribunal (Monday to Friday count as working days, excluding any

bank holidays or national holidays).

You can find the HM Courts & Tribunals Service Form 202 How toAppeal to the Court of Appeal on the Ministry of Justice website

herehttp://hmctsformfinder.justice.gov.uk/courtfinder/forms/form-202-eng.pdf

Form 205 Sources of help for unrepresented Appellants herehttp://hmctsformfinder.justice.gov.uk/courtfinder/forms/form-205-eng.pdf
http://hmctsformfinder.justice.gov.uk/courtfinder/forms/form-202-eng.pdfhttp://hmctsformfinder.justice.gov.uk/courtfinder/forms/form-202-eng.pdfhttp://hmctsformfinder.justice.gov.uk/courtfinder/forms/form-205-eng.pdfhttp://hmctsformfinder.justice.gov.uk/courtfinder/forms/form-205-eng.pdfhttp://hmctsformfinder.justice.gov.uk/courtfinder/forms/form-202-eng.pdf


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Bail for Immigration Detainees (BID) is registered in England as a limited company number 3803669.

Registered address: 28 Commercial St, London, E1 6LS. Registered charity number 1077187.

Exempted by the OISC reference number N200100147

CONTACT BID

[email protected]

www.biduk.org

BID London office

Tel: 020 7247 3590

Fax: 020 7426 0335

Monday - Thursday 10-12

For people detained in Harmondsworth, Colnbrook, Yarl's Wood,

Tinsley House, Morton Hall, Dungavel, and all

immigration detainees in prisons

BID Oxford officeTel: 01865 200 357

Fax: 01865 793 009

Tuesday - Friday 10-4

For people detained in Campsfield House, Brook House, Lindholme

BID South office

Tel: 023 9281 6633

Fax: 023 9282 1529

Monday - Thursday 10-4

For people detained in Dover and Haslar

BID Family legal team

Tel: 020-7650 0724/5

Fax: Fax: 020 7426 0335

For detained parents with children in the UK who, if released from

detention, would live with or have very regular contact with their

children. Any IRC or prison.
mailto:[email protected]://www.biduk.org/http://www.biduk.org/mailto:[email protected]

2013-05-28 immigration appeals leaflet final pdf

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