Receiving a visa refusal can be an upsetting experience and it is often unclear what the next step should be and whether the Home Office's decision can be challenged.
When an application is refused and there is an impact on the applicant's human rights, there is a right of appeal which is heard in the Immigration and Asylum Tribunal. However, for someone who has never experienced an immigration appeal, the process can be daunting and full of unknowns so here are the key factors you need to know:
How long do I have to appeal?
Whether you can appeal depends on the nature of the application, but where there is a right of appeal it should be lodged within 14 days of the decision being sent to you if you are inside the UK or within 28 days of the decision if you are outside the UK and applying to move here. Getting the timeline right for an appeal is vital as if the deadline is missed, it can be difficult to persuade the Tribunal to allow your case to be lodged late.
How do I lodge an appeal?
Appeals can be lodged online using the Tribunal's appeal system, made by post or lodged by email.
When submitting the appeal, you will be asked to choose whether you would like an in-person hearing or for the Judge to decide the appeal on the papers. This is an important decision as some cases are best presented at an in-person hearing but the waiting time for these can be longer. This is where having specialist advice can be helpful in understanding your options.
What happens once I lodge an appeal?
Following submission of the appeal, the Tribunal will issue directions to you and the Home Office to submit your supporting evidence. The process will be:
- The Home Office will lodge its evidence first; this is often the decision and the evidence submitted with the application.
- You will then lodge your evidence, including any new evidence you wish to rely on, although there are rules around when you can provide new evidence.
- The Home Office will then review your evidence and decide whether it wishes to keep the original decision or change it.
As the Home Office will consider your evidence at this stage, it is vital to prepare strong supporting evidence and make the basis for your appeal clear at this stage. We have had a lot of success persuading the Home Office to withdraw its decisions at this stage which means a quicker decision and less stress for you.
If the Home Office decides not to change its decision, it will let the Tribunal and you know, and the Tribunal will then give a date for the final hearing. Further evidence can be submitted after this point but may not be considered unless there is a good reason as to why it was not provided at an earlier stage.
What happens at the hearing?
In Scotland, hearings are heard either in person at the Tribunal centre in Glasgow or can also be heard by video link provided that you and any witnesses have access to a device and private space in which to conduct the hearing.
The hearing is heard by an Immigration Judge and usually the Home Office will have a representative present called a Presenting Officer. You will provide a written statement of your evidence and at the hearing you will be asked to confirm this is correct and that you wish to use it as your evidence. The Presenting Officer can then ask you questions about your statement and evidence; this is called cross examination. The Judge can then ask questions. A similar process will be followed with any witnesses.
Once the evidence has been heard, the Presenting Officer will make legal submissions for the Home Office and then you will be able to respond. The Judge will usually reserve the decision, which means they will think about the case and give a written decision at a later date.
Do I need a lawyer to appeal against a decision?
Technically, you do not need a lawyer to handle your appeal but as the process is technical and stressful, having an experienced representative can make the process easier. Our specialist team are experts at:
- Reviewing the initial refusal and advising if an appeal is likely to succeed or not.
- Preparing the best possible evidence for the review stage to try and get the decision withdrawn without the need for a full hearing.
- Preparing the witness statement and evidence bundle to present your case in the best possible light; and
- Representing you before the Tribunal and making submissions to the Judge at the end of your case.
If you have received a refusal and have questions about the process of appealing a refusal, please get in touch.
