If a person has made an application to the UK Border Agency (either in the UK or outside the UK) and it is refused there may be a right of appeal before the Immigration Tribunal. Whether or not there is the right of appeal depends on various factors, for example the type of application, whether the appeal was submitted when the person had leave, whether the person had leave at the time of the decision.
The Immigration Tribunal is in the UK, and it has a number of hearing centres in various parts of the country. The Tribunal is divided into a lower and an upper part: the First-Tier Tribunal and the Upper Tribunal. Appeals against refusal decisions are heard in the First-Tier Tribunal before an Immigration Judge. Immigration Judges are independent of the UK Border Agency and they have a duty to make decisions that are impartial and unbiased.
When the First-Tier Tribunal has made its decision in either allowing or dismissing the appeal (ie the person who is appealing was either successful or unsuccessful), an unsuccessful party has the opportunity to apply to challenge the decision in the Upper Tribunal if they argue that the Immigration Judge made an error in their decision. If permission is granted then the case is heard before a Senior Immigration Judge(s) in the Upper Tribunal.
So if the Appellant (ie the person who is appealing) is successful at the appeal the UK Border Agency can apply to challenge the decision. If the UK Border Agency do not apply to challenge the decision, or if they apply unsuccessfully, then the appeal decision will stand and the Appellant will be granted the leave that they originally applied for.
On the other hand, if the Appellant is unsuccessful at the appeal they may be able to apply to challenge the decision, so the process works both ways.
The Upper Tribunal, if it does find an error in the First-Tier Tribunal’s decision, has the power to overturn the First-Tier Tribunal’s decision or to send the case back to the First-Tier Tribunal and direct them to re-hear the case.
Decisions of the Upper Tribunal which have been published are binding on the First-Tier Tribunal in future cases.
In some cases there will be no full right of appeal against a refusal decision but there will be the right to “Administrative Review”. This is the case with points-based system applications made outside the UK. Administrative Review is quite different from appeal. It is a scheme whereby the applicant makes an application to the visa section of the British diplomatic post which made the decision to review the decision because of a claimed error in the decision. The Administrative Review process is carried out by an Entry Clearance Manager (which is a senior grade).
If the Entry Clearance Manager agrees that there was a material error in the decision then the decision will be overturned and the visa will be granted.
The Administrative Review process is not as rigorous as the appeal process before an Immigration Judge at the Immigration Tribunal.
In a very small number of instances a case goes to the Upper Tribunal and then further up the hierarchy to the Court of Appeal. If a party is unsuccessful before the Upper Tribunal they can apply for permission to appeal to the Court of Appeal, but the test for permission to appeal to the Court of Appeal is a very stringent one. Cases which come before the Court of Appeal are generally cases that deal with important points of legal principle. Decisions of the Court of Appeal are binding on both tiers of the Immigration Tribunal.
The European Court of Human Rights, which is in Strasbourg in France, is the highest court in the human rights field. In is senior to both the Court of Appeal and the Supreme Court in the UK. Some Appellants who have human rights cases take their case all the way through the British court system to the European Court of Human Rights, whose decisions are binding on the governments which are members of the Council of Europe, such as the UK Government.
The jurisprudence (ie the previous decisions) of the European Court of Human Rights is highly influential on the British courts in its decision-making on human rights issues.
The Court of Justice of the European Union is in Luxembourg and it is an entirely separate court from the European Court of Human Rights. The Court of Justice of the European Union is the highest court in the field of European law.
When an important point of legal principle arises in an appeal case which concerns European law a British court or tribunal (including the Immigration Tribunal) can make a request to the Court of Justice of the European Union to clarify the legal issue. The Court of Justice’s decision on the issue is binding on the British court or tribunal in question and it is also binding in future cases concerning European law that come before the British courts and tribunals.
To find out more about the above, you are welcome to call us on 020 8566 5522 for a preliminary informal discussion of your matter. We may ask you to send us further information about your matter either by fax on 020 8566 5511 or by email at firstname.lastname@example.org so that we may get a fuller picture of your circumstances.
After this initial discussion, you may wish to book an appointment for a full consultation via SKYPE or ideally at our offices located at 7 Central Chambers, The Broadway, Ealing, W5 2NR. We are directly opposite Ealing Broadway tube and railway station.
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