The article below has been written to give clients instructing a direct access barrister a brief overview of immigration appeals. Further insights can be found in our articles section (see e.g. How to approach and immigration appeal Part 1). Throughout this article the term “Appellant” is used to refer to an immigration applicant who submits an appeal.
Can the decision be appealed?
Prior to the changes made by the Immigration Act 2014, immigration applicants could appeal any “immigration decision”. The definition of an “immigration decision” was a broad one, which encompassed most types of decisions made by the Home Office that significantly affected a person’s immigration status. Subsequently, the Immigration Act 2014 phased out appeal rights for immigration decisions and replaced them with appeal rights for decisions in the following categories only:
- asylum and protection
- human rights
- breaches of rights under the EU treaties
An asylum or protection decision relates to an applicant’s claim that they would be subjected to persecution or ill-treatment if returned to a particular country. A human rights decision generally relates to an applicant’s private life (e.g. if they have resided in the UK for a very long time and have lost ties to their country of origin), or their family life (e.g. where they have a spouse or child in the UK). EU decisions are those which affect EEA nationals, their family members, or their extended family members.
Decisions not falling in the above categories can be challenged only by way of Administrative Review or immigration Judicial Review (for an overview of judicial review procedure see our article at https://demstonechambers.co.uk/an-overview-of-immigration-judicial-review-procedure/ ).
Submitting the Notice of Appeal
Following receipt of the decision, a Notice of Appeal must be submitted to the First-tier Tribunal (Immigration and Asylum Chamber), which is also known as the Immigration Tribunal. The Notice of Appeal is an important document because it sets out the legal basis for the immigration appeal. If an Appellant does not advance a reason for appealing (also known as a “ground” of appeal) at this stage, they may be prohibited from raising it later in the immigration appeal.
Preparing the appeal bundle and managing the case
After the Notice of Appeal has been submitted, the Appellant must prepare and submit a bundle of documents (also known as the appeal bundle or the Appellant’s bundle) to the Tribunal and Home Office. This bundle of documents should contain a witness statement (also known as witness evidence) and supporting documentary evidence.
Preparation of the appeal bundle can be a lengthy process because it will typically involve:
- meeting with the immigration barrister
- giving the barrister instructions on the content of the witness statement
- providing the barrister with relevant documents to support the witness statement
- the barrister preparing an indexed and paginated appeal bundle
- the barrister submitting the bundle to the Tribunal and Home Office prior to the hearing
Immigration appeals do sometimes settle. In practical terms this usually happens where the Home Office changes its decision in light of further evidence submitted following submission of the Notice of Appeal.
Attendance at the final hearing
At the final hearing of the appeal, the immigration barrister will present the case on behalf of the Appellant. The Home Office will be represented by a Presenting Officer, who is usually a Home Office employee.
The hearing will normally start with the judge discussing the case generally with the representatives. Following the initial discussion, the Appellant, or if the Appellant is overseas, the sponsor or other family member, will be invited to adopt their witness statement. For the next part of the hearing, the person adopting the statement will be a witness.
Once adopted, the witness statement is deemed to be evidence and does not need to be repeated orally. Supplementary questions may however be asked by the immigration barrister. This process is known as “examination-in-chief”.
At the conclusion of examination-in-chief, the Home Office Presenting Officer will question the witness. The purpose of this questioning is to undermine the witness’ evidence by pointing out weaknesses and inconsistencies, as well as advancing the Home Office’s own case. This process is known as “cross-examination”.
After cross-examination, the immigration barrister may ask the witness questions arising from the Home Office’s questioning; this is known as “re-examination”. Finally, the judge may ask the witness questions.
The above process of questioning is repeated for any additional witnesses.
Finally, the representatives will make speeches (also known as submissions) to the judge, detailing why the appeal should be decided in favour of their client.
Immigration judges do not usually give their decision on the day of the hearing and instead send a written decision to the nominated barrister within approximately 1–2 months of the hearing.
If you need help with a new or existing immigration appeal, then contact our immigration barristers. We are immigration lawyers in Milton Keynes with significant experience of helping clients in such cases. We can submit a Notice of Appeal on your behalf, prepare the appeal bundle, or argue your immigration appeal before a judge at the Immigration Tribunal.