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Appeals

This section looks at appealing a Home Office refusal at the First-tier Tribunal.

This is the first court you have access to if you have the right to appeal a refusal by the Home Office. You do not need to apply for permission to appeal at the First-tier Tribunal - if you have the right of appeal, you can go ahead and appeal.

If you have a lawyer, they will prepare and submit the appeal form for you, and represent you at court. The information in this section is intended to give you more information about the process, especially if you do not have a lawyer and will be appealing the decision yourself.

Right of appeal

Not all immigration decisions have the right of appeal.

There is currently only the right of appeal if the Home Office refuse an application based on human rights, "international protection" (asylum or Humanitarian Protection applications), if the Home Office revoke refugee status or humanitarian protection, or on the basis of EU law.

If you made your application before 6 April 2015 you may still have the right of appeal if you are refused. See the Home Office website for more information.

If your application was not based on protection, human rights or EU grounds, you may be able to claim a right of appeal on these grounds. For example, a refusal of a visitor visa may raise human rights grounds. This is not straightforward, however. Read more here.

From 1 December 2016, you will only be able to exercise the right to appeal in the UK on human rights grounds if “serious irreversible harm” would occur or if it will be a breach of your human rights if you are unable to appeal from the UK.

You will need to show that the process of having to appeal from outside the UK will cause that harm or that breach, rather than just your removal from the UK itself.

The Home Office already had the power to deport foreign national ex-offenders while a human rights appeal was still pending, and from 1 December this power to remove while an appeal is pending is extended to all migrants making a human rights appeal.

Not all applications based on protection grounds have a right of appeal. For example, you do not have the right of appeal in the UK if your asylum claim is certified and put in the "non-suspensive appeals" category.

If your claim is certified, you may able to appeal the decision from outside of the UK.

See here for information on appealing a deportation after a criminal sentence.

Grounds for appeal

The grounds for an appeal based on protection or human rights would need to be one of the following:

No right of appeal

If you do not have the right of appeal, you may be able to apply for administrative review from the Home Office and/or apply for permission for a judicial review of the decision.

A judicial review is not the same as an appeal – an appeal looks substantively at the issues of your case. A judicial review looks only at how the law/policy has been applied to your case.

Submitting your appeal

Note - this section contains information for if you are representing yourself. If you have a lawyer, they will fill out the appeal form for you.

Time limit

If you are in the UK, your completed appeal form (and accompanying documents/evidence) must be received at the Tribunal no later than 14 calendar days after you are sent the notice of the decision by the Home Office

If you miss this deadline, you may be able to apply for an "out-of-time" appeal but you would have to have good reasons for doing so, and explain these to the Tribunal. The Tribunal may refuse to consider your appeal.

The appeal form

appeal form

If the Home Office refuses your application they will send an appeal form (called IAFT-5) and guidance notes when they send you written notification of refusing your application.

You can submit an appeal to the tribunal using the appeal form sent to you, or an online form. If you are not sent an appeal form, you can find it on the Home Office website where you will also find the link for submitting your appeal form online.

You can submit the completed appeal form by post, fax, or online. If you are filling in the hardcopy (on paper) appeal form, you can either fax it to 0870 739 4053 or post it to: First-tier Tribunal (Immigration and Asylum Chamber), PO Box 6987, Leicester, LE1 6ZX.

If you are posting your appeal, you should try and send it by recorded delivery or another service that shows proof of postage and acknowledgement of receipt.

Note: these details were correct at the time of writing. Before you submit your form, check where you should be submitting ("lodging") the completed form by looking at the Home Office website.

If you are handwriting on the pdf (hardcopy paper) of the appeal form, you should write your answers in BLOCK CAPITALS. You can also fill in the form on a computer, depending on which software you use (for example, if you download the form and use Adobe Reader software).

The online application form is a quick way to submit your appeal form, but it is not straightforward to use . For example, you cannot jump ahead to see what questions are coming up. Some questions are mandatory, which may be useful for making sure you don't leave out important information, but may also require an answer you cannot give. For example, one mandatory question is "If you have chosen to have an oral hearing, please say who will be attending your hearing" with options of "sponsor", "witness" and "representative". None of these options may apply to you. It is also not altogether obvious when you are at the point of finally submitting the form so be careful not to send it before you have finished!

If you are going to use the online form, make sure you prepare your answers before hand, using the pdf available on the website.

If you submit your appeal online, you will need to send all your supporting papers (including your Notice of Decision) to the Tribunal by post at the address given on the Home Office website. (If you are detained and have the right to appeal a refusal, you cannot use the online form to submit your appeal. You should be given an appeal form called IAFT-5a when you are given written details of your refusal. You should submit the form as per the instructions with this form.)

ACTION SECTION

If you find writing English difficult, a friend or supporter may be able to help you to fill out the appeal form. You need to tell them what to write, and they write it on the form. They should read back everything they have written for you, to check it is correct.

You must send a copy of your Reasons for Refusal Letter and the accompanying Notice of Decision document with your appeal form.

You may also want to submit further evidence, witness statements or a detailed explanation of what you are challenging in the Home Office decision. See After a Refusal section.

If you are submitting documents with your appeal, all documents in other languages have to be translated into English. The documents should be signed by the translator to certify that the translation is accurate and the translation attached to the original document.

You may also find it useful to look at the 'Best Practice Guide to Asylum and Human Rights Appeals'. This is a guide written by lawyers for laywers, but you may find parts of it helpful or be able to ask someone with legal knowledge to help you go through the relevant sections about process and good practice (some of the information is only relevant to lawyers).

Questions in the form

You do not need to fit everything you want to say into the boxes on the form. If you have a lot of information or need to give a long explanation, you can write "see attached statement" and write your information/explanation on a separate sheet. Make sure you put the heading of the form section/the question you are answering at the top of your extra information.

Make copies of the completed form and all documents that support your appeal, keep the original documents and send copies with the completed form.

Fees

You do not have to pay a fee for your appeal if:

If you do have to pay a fee, it is currently £80 without a hearing (decision made 'on the papers') or £140 with an oral hearing.

Note - these fees were hugely increased in October 2016, but the government reversed the fees on 25 November, and they will now be subject to review. Read more here.

As was noted above, if you have your case heard in court you will be able to give evidence and speak to the judge who will be deciding your case – this is usually a better option than having your appeal decided on the papers.

After submitting your appeal

McKenzie friend

If you want a friend or volunteer to assist you during this hearing (and the full hearing), you may be able to arrange this. This person is often called a "McKenzie friend".

A McKenzie friend is usually an English-speaking friend, relative or volunteer who is not qualified to give legal advice, but may have experience of the legal system. They are not usually able to represent you but can assist you in gathering evidence to support your case, preparing witness statements and/or written legal arguments.

If you have a McKenzie friend to support you at a court hearing, they cannot answer questions for you but can assist you in making notes of what happens at the hearing, and in some cases can also give you assistance in making submissions to the court.

If you are using a McKenzie friend, you should tell the clerk at the Tribunal that you have someone with you to assist you. You should also ask the judge at the start of the hearing for permission to have assistance from such your McKenzie friend. The judge may ask what relevant experience (if any) the person concerned has, whether he or she has any interest in the case and that he or she understands the role and the duty of confidentiality that arises if consent is given.

Case Management Review Hearing

In asylum cases there may be a pre-hearing of the appeal case called a Case Management Review (CMR) hearing. At this hearing a judge decides whether you and the Home Office are ready to proceed with the full hearing a few weeks later.

If you need more time to gather important evidence, you can request an adjournment (postponing the date of the full hearing) at the CMR hearing. The judge may refuse this request. The Home Office may request an adjournment, or they may do this at the full hearing. Be warned – it is more common for the Home Office to be granted an adjournment than the appellant!

If you do not have a lawyer it is very important that you attend your CMR (if you have been notified you are due to have one - not all cases do). If no one attends the judge may decide to determine your case without a full hearing. If you need an interpreter you need to let the Tribunal know in advance.

Full Hearing

Your case will be listed for hearing at 10am on the date you are given on your Notice of Hearing. The judge will decide on the day the order in which the cases will be heard so you may have to wait until later in the day for yours to be heard.

The Tribunal clerk will keep you informed during the day about how long you may have to wait.You might want to bring some money with you in case you want to buy drinks or refreshments, although you will usually be provided with water in the hearing room once your hearing has started.

You should arrive early at the Tribunal - you may need to arrive more than 30 minutes or an hour early, depending on how busy the Tribunal is and how long it takes to get through security. You can ask someone at the Tribunal for advice about what time to arrive.

It's a good idea to visit the Tribunal location in advance, so you know how to get there and where you should go.

If you are representing yourself (you do not have a lawyer), remember to bring all the necessary documents with you. This includes your Notice of Hearing and any documents you want the judge to consider.

When the judge is ready to hear your case, the clerk will take you into the hearing room. If you have witnesses who will be giving evidence, make sure the clerk knows they are present. They will stay outside the hearing room until it is time for them to give evidence.

The hearing is usually held in a room with desks and chairs. The judge will sit at the front of the room (they will come in after you) at a desk or table and the other people sit at tables and chairs in front of him/her. The Home Office representative (Home Office Presenting Officer, or HOPO) will usually sit on one side of the room, and you will sit on the other side (with your lawyer, if have one). The Home Office do not always send a HOPO to attend. The hearing will usually go ahead anyway, with the judge asking more questions.

Your appeal will probably be heard by one judge. Occasionally, more than one judge will sit as a panel but this is unusual.

You may turn up for your hearing, and find out the Home Office are asking for an adjournment for some reason. If this is granted by the judge, the hearing will take place at a later date. You can also ask for an adjournment, but it is less likely to be granted. It is best to request an adjournment at the CMR hearing (in asylum cases), if you can.

Mobile telephones must be switched off whilst in the hearing room. You cannot record the proceedings or take any photographs.

If you need an interpreter they will sit next to you. They will interpret the proceedings to you in a low voice or whisper, either while people are speaking or after a statement has been given.

You should call the judge "Sir" (if they are a man) or "Madam" (if they are a woman).

You will be asked to stand up when the judge enters the room. After that there is no need to stand until the end of the hearing when the judge leaves the room. You can stay sitting down when you address (speak to) the judge.

Making your argument

This information is for if you do not have a lawyer representing you. If you have a lawyer, they will address the judge and give the legal arguments, but you will also have to give evidence.

In advance, you might want to write down a summary of the key points of your argument, to remind yourself what you want to say. You can give a copy of this to the judge if you want, as long as you give a copy to the Home Office presenting officer as well.

If you have several points to make, make this clear. You can say "my first reason is", "my second reason is" etc. Try and stick to one reason at a time, without mixing up different areas of argument (though if the areas of argument are connected, you can say this).

You can't interrupt the judge, the Home Office presenting officer, or a witness if they are in the middle of talking. If you think the judge is moving on to the next part of the hearing and you haven't finished what you wanted to say, you can raise your hand.

ACTION SECTION

The Decision

The judge does not usually decide whether or not your appeal has been allowed (successful) or dismissed (unsuccessful) at the hearing.

You will be informed the outcome of your case in writing after about three or four weeks. The judge may say in the hearing when you can expect to receive the decision.

If you change lawyer, or cease to have a lawyer after the hearing but before you are notified of the decision, make sure you notify the Tribunal. This is because they are likely to send the decision to the lawyer they have on record for you, not you directly.

If you receive a positive decision in your case, the Home Office may appeal. If they do not appeal, or they appeal and lose, the Home Office should reverse their decision and take the necessary next steps.

For example: the court has given you a positive decision, overturning the Home Office's refusal of your asylum application. The Home Office do not appeal this decision. They should then proceed to grant you refugee status and issue you with the documents to show you have this status.

If the Home Office are not taking the necessary steps, or are being very slow about it, speak to your lawyer (if you have one) and also consider asking your MP to intervene.

If your case is refused ("dismissed"), you may be able to appeal that decision at the Upper Tribunal. See next section.


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