This blog post looks at appealing First-tier Tribunal refusals in asylum and immigration cases at the Upper Tribunal. It does not address judicial reviews (most of which are heard at the Upper Tribunal in asylum/immigration cases). See the Toolkit for more information on judicial reviews.
This post is written assuming you do not have a lawyer. If you have a lawyer, they will be applying for permission/appealing for you, and will give you advice about the proceedings on the day. If you want a friend or volunteer to assist you during the 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 can assist you in a court hearing if you do not have a lawyer. If it is a volunteer, it is usually someone 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 they 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 also giving you assistance in making submissions to the court.
You should tell the clerk at the Tribunal/hearing centre 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.
The Upper Tribunal
This is part of the Immigration and Asylum Chamber. If your appeal is refused at the First-tier Tribunal, you can apply for permission to appeal at the Upper Tribunal if you think the First-tier Tribunal Judge made an error in the way they applied the law in deciding your case.
Examples of errors of law include:
- situations where a judge has made a mistake about the meaning of the Immigration Rules;
- when a judge has not followed a binding decision of a higher court;
- when a judge has overlooked important evidence;
- when a judge made a decision that was not reasonably open to him or her on the evidence;
- or where there has been unfairness in the way matters have proceeded.
It is crucial that in applying for permission to appeal, that you set out how you believe the First-tier Tribunal made an error in law. You cannot simply say you disagree with their decision.
1. Apply for permission at the First-tier Tribunal
First, you apply to the First-tier Tribunal for permission to appeal at the Upper Tribunal.
To apply for permission from the First-tier Tribunal to appeal at the Upper Tribunal, you need to fill out a form called IAFT- 4. You should be sent a form with a copy of the First-tier Tribunal’s refusal of your case. You can also find it, along with guidance notes, at the Tribunal website.
You send the completed form by fax or post to the First-tier Tribunal (unless your case is in the detained fast-track system). The postal address is: First-tier Tribunal (Immigration and Asylum Chamber), PO Box 7866, Loughborough, LE11 2XZ. The fax number is 01509 221550. If you are in the detained fast-track system, you lodge the form with the detention centre in which are held.
Check for up-to-date details at the Tribunal website.
This form should be completed and sent to the Tribunal no later than five working days after the date the First-tier Tribunal’s refusal was served on you. (The time limit is 28 days if you are outside the UK and 2 working days if the case is a fast-track case). It is important to include with your permission application the First-tier Tribunal refusal you wish to challenge along with the full reasons why you think the Tribunal made an error of law.
Most of these applications will be decided on the papers, without an oral hearing.
2. Apply for permission at the Upper Tribunal
If the First-tier Tribunal do not grant you permission to appeal at the Upper Tribunal, you can apply directly to the Upper Tribunal for permission to appeal there.
To apply for permission directly from the Upper Tribunal, you need to complete a form called IAUT-1. You can find the form, and guidance notes, at the Tribunal website.
You send the completed form by fax or post to the Upper Tribunal (unless your case is in the detained fast-track system). The postal address is: Upper Tribunal (Immigration and Asylum Chamber), IA Field House, 15-25 Breams Buildings, London EC4A 1DZ. The fax number is 0870 3240111. If you are in the detained fast-track system, you lodge the form with the detention centre in which are held.
See the tribunal website for up-to-date information.
The form should be completed and sent to the Upper Tribunal no later than seven working days after the date on which the First-tier Tribunal’s refusal of permission was sent to you. (The time limit is 56 days if you are outside the UK and 4 working days if the case is a fast-track case). The time limits are even shorter if the First-tier Tribunal’s decision was emailed to you or handed to you in person, rather than posted. Contact the Tribunal to ask them about time limits if this is the case for you.
If you send the application to the Upper Tribunal so that it will arrive later than the deadline, your application must include a request for an extension of time and explanation of why you were unable to send it in time. The Upper Tribunal might not accept this, however, and may not consider your application for permission.
The Upper Tribunal’s guidance states:
It is important to keep the reasons or grounds why you consider permission should be granted (“the renewed grounds “) as clear as you can. The Upper Tribunal Judge will not be assisted by a large number of pages with a great deal of irrelevant material.
If permission is refused
You may be able to apply for judicial review of the refusal of permission to appeal at the Upper Tribunal, if you can demonstrate an error of law that raises an important point of principle or practice or show some other compelling reason for the case to be heard.
Note – there has been an increase of incidents recently in which the Home Office has received the refusal of permission to appeal to the Upper Tribunal and has not notified the appellant. They have then detained the individual (either at a reporting event or through a raid on their home), at which point they inform them of the Tribunal’s refusal of permission. In this situation, the Home Office might inform you that you are ‘appeal rights exhausted’. You may still have legal options, however, such as judicially reviewing the refusal of permission.
If you are granted permission to appeal
If you are granted permission to appeal to the Upper Tribunal, there will be either a hearing before one or more Upper Tribunal Judges or the case may be decided without an oral hearing on the papers available.
The Upper Tribunal will send you Directions setting out the steps that are required to be taken before the hearing. Make sure you read these carefully, and follow the instructions within the time-limits given in the Directions.
You may wish to submit written submissions (a summary of your case) and/or a skeleton argument (sets out the main arguments you wish to rely upon at the hearing) to expand on the grounds you used to apply for permission to appeal. You should explain in these documents why you think the First-tier Tribunal made an error of law. If you wish to submit these documents, you need to send them to the Upper Tribunal and the Home Office in advance, as per the instructions in the Directions.
If you want the Upper Tribunal to consider new evidence, you must submit it to the Tribunal and the Home Office in advance, explaining why it has not been submitted before (in your original application or first appeal).
You will receive notice of the hearing that will tell you the date, time and location of the hearing. The Tribunal’s guidance suggests arriving at least an hour before the start of your hearing (either 10am or 2pm), to allow for time getting through security into the Tribunal.
The Tribunal Guidance says:
- You need to bring with you all the documents that you consider are important to your case. These should include copies or the originals of the documents that you have already filed with the Tribunal and served on the Home Office in response to the Directions.
- On arrival at the Tribunal make your way to the reception area where you will find on a notice board a list of the day’s hearings. Report to the receptionist who will tell you where your appeal will be heard and the name of the judge or panel who will hear it. Unless you are asked to wait in the reception area, you should go to the allocated court room and wait outside the door.
- You will find that shortly before the start of the hearing, you will be approached by a court official who is called a clerk, who will arrange for you to take your place in the hearing room. If no one has approached you, then go back to reception for assistance.
- Nearly all hearings are open to the public. If your appeal is not the first in the list, you can normally still go into the courtroom and listen to other cases. You may find this helpful, as you will see how the judge runs the court. Alternatively you can remain outside until your case is called.
- It may be that the order of the list will change so that the cases are not heard in the same order as they appear in the list. It is important to keep in touch with the clerk if you are waiting outside the hearing room.
- Mobile telephones must be switched off whilst in the court room. You are not permitted to record the proceedings or take any photographs.
- Everyone in the court room is expected to stand when the judge or panel enter. You will then be invited to sit. Thereafter there is no need to stand until the end of the hearing when the judge leaves the room. You can address the judge whilst seated. The judge should be addressed as Sir or Madam as appropriate.
Making your argument
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 also give a copy to the Home Office presenting officer as well.
If you have several points to make – for example, if you think the First-tier Tribunal made an error of law in three different ways – 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.
If it is you who has been granted permission to appeal, you will make your argument first. The Home Office presenting officer with then respond, and then you will have a final chance to sum-up or respond to what the Home Office has said.
The judge will either make a decision then-and-there, or they may ‘reserve’ their decision and let you know in writing at a later date.
If the judge makes the decision then-and-there that the First-tier Tribunal made an error of law:
- they may proceed to hear the appeal in order to make a fresh decision immediately
- they made decide that it is necessary to hear new evidence or consider new documents and so they will arrange a hearing at a later date
- the judge will decide whether any findings of fact made by the First-tier Tribunal are to be preserved, even though the First-tier Tribunal’s decision been set aside.
- the judge may sends the case back to the First-tier Tribunal (‘remits the case’) to re-decide the case, with no need for consideration of new evidence. The judge may give the First-tier Tribunal directions to make sure the error of law is not repeated. This is a possible outcome if the Upper Tribunal judge agrees with the First-tier Tribunal on findings of fact.
- the judge may order the First-tier Tribunal to rehear the case, with a chance to hear new evidence. This is a possible outcome if the Upper Tribunal judge decides the findings of fact by the First-tier Tribunal can’t be relied upon.
If you lose your case at the Upper Tribunal
If you were granted permission to appeal at the Upper Tribunal, your case was heard, but the judge decided that the First-tier Tribunal did not make an error of law, there is the option of appealing that finding at the Court of Appeal. You will need to apply for permission to do this.
Accessing this level of the court process without a legal representative is very tricky.
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