Getting a refusal of your application is not a very pleasant experience. This usually happens when the correct documents, explanation or reason have not been provided to the UKVI and the application is refused.
Most of the time, UKVI does not process the application fairly and this results in the refusal.
Many times, our clients, approach us to challenge the decision, however, one rule does not fit all. This means that we advise them to resubmit the application rather than to challenge it by way of Administrative Reviews.
In other circumstances, we have successfully challenged the wrongful decision by means of Administrative Review and Judicial Review.
Our main aim is always to choose the correct approach by understanding the history of the application as well as the applicants current circumstances (Financial, Personal, Work) and follow the strategy which suits them the most.
If the refusal receives the right of appeal, then we challenge it by loading an appeal.
Immigration appeals are held in the first instance before the First-Tier Immigration Tribunal, which sits at various places throughout the UK. The Tribunal is presided over by an Immigration Judge, who is a qualified lawyer. Some types of application (eg asylum/human rights applications, family visa applications, long residence visa applications, European applications) have the right of appeal before the Tribunal if they are refused, and this can apply to refusal decisions made either in the UK or outside the UK.
The Tribunal can conduct an appeal purely on a paper basis, i.e. the Judge decides the case by reading the papers that have been submitted, or it can conduct an appeal by holding a live hearing with witnesses and legal representatives from both sides.
Other types of application (eg working visas) do not have the right of appeal; instead, they have the right of “administrative review”, which is a different kind of process. A paper application is made either to the Home Office (in-country) or to the British diplomatic post (out of the country), challenging the decision and saying why it is wrong. The application is considered by an officer from the Home Office or the British diplomatic post, not by a qualified lawyer, and the quality of decision-making is not always as high as that of the Tribunal.
If the Tribunal “allows” the appeal then the appeal is successful and the Appellant (ie the migrant who appealed) will get the visa they applied for. If the Tribunal “dismisses” the appeal then the appeal is unsuccessful.
If an Appellant is unsuccessful before the First-Tier Tribunal then potentially they can challenge the First-Tier Tribunal Judge’s decision before the Upper Immigration Tribunal, which is a senior tribunal. The Upper Tribunal can overturn the First-Tier Judge’s decision if it thinks it contains a material error
Is there any Government fee for appeals and administrative review?
Yes, there is. There is a Government fee of £80 for an administrative review and a fee of £80 for an appeal on the papers and a fee of £140 for an oral appeal.
Which is better, an appeal on the papers or a live oral appeal hearing?
Generally, a live oral appeal is likely to be better. If the hearing is heard before a Judge you, or your legal representative if you have one, can see what’s going on and you can try to prevent any mistakes or misconceptions emerging in the case. You will have the chance to present your case in a live environment, and you will be able to answer questions, which could in many types of situations assist your case. However, the Tribunal fee for an oral appeal is higher and, if you are instructing lawyers, their fees for preparing an oral appeal hearing are likely to be higher as well.
How long does the appeal/administrative review process take?
Unfortunately, the appeal process has recently become very slow. Appeals for in-country decisions are currently taking several months from start to finish and appeals for out-of-country decisions are taking even longer, even as long as a year in some cases. Administrative reviews are generally much quicker than this; usually, they only take a few weeks.
However, there is one important thing to bear in mind. If an in-country application is refused and the migrant appeals against the decision or applies for administrative review the migrant cannot be removed from the UK during the appeal or administrative review process, however long it takes.
Is it always better to appeal against a decision than to make a fresh application?
No, not always. In some cases, when an application has been refused but there is no allegation of deception or dishonesty, the best course is to make a fresh application, avoiding the issues that caused the refusal in the previous application. This can be a complex issue and it depends on the circumstances.