How to request a refusal decision to be overturned: Secretary of State, British Embassy
OCTOBER 2010. If you have been refused a visa to enter or stay in the UK, it can be very frustrating and upsetting. However, depending on the visa you have applied for, you may have an opportunity to appeal the visa refusal so that the visa may be successfully granted.
Appeals are determined in the UK by an Immigration Judge appointed by the First-tier Tribunal (Immigration and Asylum Chamber)
It is advisable to consider obtaining professional legal representation at this early stage so you have the optimum chance of succeeding in your appeal hearing from the beginning of the appeal process.
Should you choose to undertake an appeal hearing without legal representation, then the procedure will be as follows.
APPEALS TO THE SECRETARY OF STATE
The Secretary of State (Home Office) is responsible for deciding upon immigration applications made inside the United Kingdom for people already in the United Kingdom.
If you made an immigration application whilst in the UK, which has been turned down by the Secretary of State, you may challenge the refusal decision by appealing to the Immigration and Asylum Chamber (IAC), i.e. the Immigration Court.
The Secretary of State may also refuse a visa for which you have a right of appeal under the points based system, such as Tier 1 or Tier 4 visa, visa extension applications, EEA applications and Article 8 claims.
Once you lodge your appeal, the Court is very likely to set an appeal hearing date for you within a couple of months.
1) LODGING THE APPEAL : Within the specified appeal deadline, complete the relevant appeal forms and draft grounds of appeal explaining why you disagree with the refusal notice and what you would like done. I.e: for the Immigration Judge to agree that the Secretary of State has made an error of law and/or fact in refusing your visa application under the relevant immigration law and therefore you should be granted the requested visa.
At this stage, you can request whether you would like to give evidence at the appeal hearing by way of selecting an “oral hearing” or whether you would like the Immigration Judge to decide the case on papers only, this is called a “paper hearing”.
2) PREPARING FOR THE APPEAL HEARING: Once you have lodged the appeal forms to the Immigration and Asylum Chamber, you will shortly thereafter receive a court hearing date. You will then need to start preparing your case for the appeal hearing.
You should then prepare a statement which should include as much detail as possible explaining your case and why the Secretary of State was wrong to not grant you the visa. It is important to raise legal arguments if possible such as citing the relevant immigration rules or case laws that support your case and how these rules apply to you and how the secretary of state has misapplied the laws in your case and incorrectly refused you the visa.
Statements should also be obtained by any witnesses on whom you will ask to provide evidence at the appeal hearing.
It is also important to include as much helpful documentation to assist the Immigration Judge in deciding whether the refusal notice is unfair or incorrect. This information may include information to help clarify why the Secretary of State got her facts wrong. For example, the Secretary of State may have refused a visa as she was not satisfied that you had provided documents as requested by her, when in fact you did send documents to her and have proof of postage such as a postal delivery receipt, which the Secretary of State failed to take in to consideration.
The bundle of papers you wish to rely upon should be neatly numbered with an index and should be photocopied in triplicate – 1 bundle for the Immigration Judge, 1 bundle for the Home Office Presenting Officer (who will represent the Secretary of State), 1 bundle for yourself. The Home Office will also be required to send you a copy of the bundle of papers they intend to rely upon when arguing their case- both bundles will need to be lodged at least 5 days before the appeal hearing date.
3) AT THE APPEAL HEARING : At the appeal hearing, it is likely that the Home Office will send a representative ('Home Office Presenting Officer') to argue the case on behalf of the Secretary of State. Also present will be an Immigration Judge who should have read all the papers you have submitted in advance of the hearing along with the with the Home Office’s bundle of papers which they will seek to argue at the appeal hearing.
The Immigration Judge will generally be seeking to identify the relevant issues to be discussed and argued at the appeal hearing. You and your witnesses will be asked to give answers to the Immigration Judge and answer any questions the Home Office Presenting Officer may have. Your witnesses will also be provided with the same opportunity. It is important that you provide as much information and evidence as possible at this appeal hearing as this will ultimately be the best opportunity to argue this case.
Usually Immigration Judges reserve their decisions in cases – this means the Immigration Judge will not usually indicate their decision but instead choose to write to you within a short period of time with their decision and the reasons why.
APPEALS TO THE BRITISH EMBASSY
Visa or other entry clearance applications made outside the United Kingdom are decided upon by the British Embassy where the application was initially submitted.
If you believe that an Entry Clearance Officer (ECO) has made a mistake in evaluating your visa application to come to the UK (e.g. for a family visit, for a fiancé visa, to settle on the basis of marriage to a British citizen or to somebody permanently settled in the UK) and thus decided incorrectly, you can appeal their decision at the British Embassy.
Appeals lodged against an Entry Clearance Officer decision at a British Embassy will generally follow the same procedure as above, but the waiting time to obtain an appeal hearing is much longer: currently 6-8 months from the date of the refusal decision.
This is because the British Embassy is provided more time to collate and lodge their bundle of papers which they will send to the Immigration and Asylum Chamber and the Home Office Presenting Officer’s Unit, who will represent the British Embassy on their behalf at the court hearing.
When the IAC has recorded your appeal, they will send a Notice of Receipt to the visa section that refused your application. When the visa section receives the Notice of Receipt, an Entry Clearance Manager (ECM) will review the decision to refuse your application in light of your Notice of Appeal and any supporting documents (‘ Entry Clearance Manager Review’). If the ECM is then satisfied that your application meets the Immigration Rules, the original decision may be overturned, and entry clearance issued.
If the ECM does not overturn the decision, you will receive a statement explaining why they decided to uphold the decision to refuse your application. The case will then be sent to the IAC in the UK for an appeal hearing.
* PRACTICAL ADVICE: The whole procedure can be made more expedite by requesting an Entry Clearance Manager Review at the same time you lodge the appeal forms.
In this way, you would not need to wait for the Court to record your appeal and then contact the ECM – the procedure would be direct.
In practice, if the review is successful, refusal notice can be overturned within 1-2 months of being lodged.
For example, if a wife applies for a spouse visa to join her British husband in the UK but the ECO refuses, because there is insufficient documentary evidence to prove that the wife and husband have a subsisting marriage (this is a very common refusal ground in spouse visa applications), the wife may then provide further documentary evidence within 28 days to the Entry Clearance Manager requesting to review the refusal decision and overturn it (completed appeal forms should also be included).
This can be successful but in the event it is not, the case will be sent to the IAC in the UK for an appeal hearing.
Obtaining professional legal advice from the onset of receiving a refusal decision in highly recommended; appeals can be difficult, lengthy and require a knowledge of immigration law and practice and therefore you should seek the help of an experienced immigration solicitor if you are considering appealing a visa refusal decision.
For questions regarding the subject covered in this guide, please visit migreat.com.
You should always seek advice from an appropriately qualified solicitor on any specific legal enquiry. For legal advice regarding your case, please contact Greenfields Solicitors for a Consultation with a Solicitor on 020 8884 1166.