How does one apply for Visa Appeals or Visa Reviews?
Before discussing the visa appeals or visa reviews, we want to emphasise the importance that every visa application is planned and checked thoroughly by a person with the necessary expertise and experience in the field of immigration. Seemingly irrelevant or incorrect detail or omissions on a visa application can lead to a visa being turned down.
Visa applicants should, therefore, take the utmost care to ensure they are making use of reputable immigration firms or consultants, in order to prevent the frustration of a visa being turned down, not to mention the time and expense involved in re-applying or filing a visa appeal.
In the case that your initial application is refused, although there are risks and costs involved, in most cases visa appeals or reviews of the decision is possible, and in many cases, a successful result can be obtained.
If you have recently had your visa application denied or turned down it is possible to lodge a visa appeal if you have been;
- Refused a visa to come to the UK;
- Refused entry to the United Kingdom;
- Refused an extension of stay;
- Received a notice of deportation; Or
- Received a notice of removal.
Please note that the appeal legislation has been significantly amended recently and it is currently possible to lodge visa appeals ONLY against the following decisions:
- A decision to refuse a human rights claim for entry clearance;
- A human rights or protection refusal;
- A decision by the Home Office to deport you as a European Economic Area (EEA) National;
- An application for an EEA family permit as a family member of an EEA national; or
- Certain decisions about applications submitted before 6 April 2015.
What to do first if you want to lodge a visa appeal
You will need to contact one of our OISC consultants as soon as possible as there are time constraints on the visa appeals processes. You will then be further advised on the appeals procedure as well as the grounds of the visa appeals processes and which best suit your particular situation.
Once you have been refused leave to enter or remain in the UK the decision-maker (whether an entry clearance officer, immigration officer or the Secretary of State) will give you a written Notice. This will include a statement of the reasons for the decision.
If you are to be removed from the UK the Notice will also contain the following information:
- Whether or not you have been granted a right of appeal and the Statutory Provision upon which this right is based on;
- Whether you can exercise your appeal from within the UK or not;
- The time limit for bringing your appeal;
- The address to which the appeal needs to be sent;
- A fax number for service by fax;
- Whether there is an exception or limitation to your right of appeal or;
- Whether further information is required under s. 120.
We will be able to advise you on whether any of the above affects you. You will also need to decide whether you wish your appeal to be decided at an oral or written hearing. We will advise as to the best option for your case at this time. Once we have assisted you in completing your appeal forms, they will be sent either to the First-Tier Tribunal (Immigration and Asylum Chamber. The FTT (IAC) is an independent tribunal, and therefore it is not affiliated with the Home Office in any way.
If you are in the UK, your appeal should be filed with the FTT within 14 working days from the date of the Home Office refusal decision. If you are outside of the UK, your appeal must be received by the FTT within 28 days (including holidays and non-business days) from when you received the Notice of Decision. If you are detained, you should lodge your appeal within 5 working days (or sooner if your case has been fast-tracked).
Due to these time constraints, it is strongly advised that you contact one of our experts as soon as possible due to their experience in dealing with these deadlines.
What happens after your notice of the visa appeal is lodged?
Once we have filed your appeal forms, the FTT (IAC) will send you a notice of pending appeal which formally acknowledges receipt of your appeal and requesting the Home Office (e.g. the Entry Clearance Officer who decided your case or the Immigration caseworker who has refused your visa application in the UK) to forward them their records relating to your case. They are known as the Respondent’s Bundle and should contain copies of all the documents lodged in support of your initial application including the application form, the refusal decision and the Notice of Appeal. The FTT (IAC) will then allocate a date for your hearing and will invite you to submit any documents in support of your appeal within a given deadline (and in any events no later than 5 days before the hearing date).
Please note that currently it currently takes between 8 and 18 months for an appeal to be decided.
Will I need to go to court for my visa appeal?
Should you opt for an oral hearing, you will receive a copy of the Appeal Bundle of the Entry Clearance Office in advance of the hearing date. Breytenbachs Immigration Consultants will prepare all the necessary documentation for your hearing even if you are not in the UK during this period. We will attend the hearing on your behalf ensuring the best representation for you and continuing the appeal process despite your absence.
If you are in the UK, you will need to attend the hearing as the main witness. Should you have a sponsor, they may also attend the hearing as a witness. If you are attending the hearing, do allow for the whole day as appeals are not heard in a specific order. If you, your sponsor or any other witness who may wish to give evidence at your hearing are not fluent in English, the Tribunal will arrange for an interpreter to assist you. This service is free of charge, but must be requested when the appeal is first lodges.
What happens after the appeal that has come and gone?
On occasion, the Immigration Judge may give his decision at the end of the hearing, but usually, decisions are reserved and can take between two weeks and three months (or more) to be received in writing. All appeal decisions are given in writing and are effective from the date of the written determination. Where there has been no oral hearing, the Judge’s determination will also be received in writing.
In the event that your appeal is not successful, we are also able to assist you with a further review of the decision. Do bear in mind that in the event that your appeal was allowed the Home Office also has the right of appeal. Should they choose to exercise, this right Breytenbachs Immigration Consultants will be able to further advise you on the best course of action in your particular situation.
Appealing to the Upper Tribunal
Please note that the decision of the First-Tier Tribunal can be appealed to the Upper Tribunal only on points of law. There is no fee to appeal to the Upper Tribunal, but an appeal against the decision of the First-Tier Tribunal (IAC) can be challenged only if you (or your representative) can argue that the Immigration Judge who made the decision did not apply or interpret the law correctly, did not follow the correct procedure or that the decision was not supported by the evidence presented at the hearing.
Permission to appeal the decision of the First-Tier Tribunal (IAC) must be asked to the First-Tier Tribunal or to the Upper Tribunal within a certain period of time of getting your decision.
If you need more advice on how one qualifies for visa appeals or visa reviews, or would like to proceed, please contact us without delay.