Immigration Appeals up to Supreme Court
All initial applications for authorisation to enter or stay in the UK by foreign people are submitted to the Home Office, a UK government department. The Home Office decides whether an application for permission to visit or remain in the United Kingdom should be entertained or denied by someone who needs such authorisation.
When the Home Office issues a negative judgement on an application, there may be grounds for appeal. If you do not have an appeal right, you may be able to request an administrative review of the judgement. This is an internal review procedure in which the Home Office will request that a new caseworker examine the first refusal decision.
You may also be able to request authorisation to conduct Judicial Review processes. This is not the same as an appeal.
Appeal to the First-Tier Tribunal
If your first application is denied and you have a right of appeal, you will be able to argue that the Home Office made the incorrect decision, and a judge will review your case.
The First-Tier Tribunal (Immigration and Asylum Chamber) is the court of the first instance in nearly all immigration and asylum cases (FTT). The person who will appeal is known as an “appellant”, and the Home Office plays the role of “respondent”.
When filing an appeal with the tribunal, certain formalities must be followed, which means you must determine and “lodge” your request within a specified timeframe and procedure.
The appellant and respondent will typically present their reasons before the FTT judge (there is a mechanism for requesting a decision on the papers, but most appellants prefer an oral hearing before a judge), who will then determine whether to grant or dismiss the appeal.
If the appeal is “granted,” it indicates the judge believes the Home Office made the incorrect judgement and, barring the Home Office’s further appeal to a higher court, which means you have won your case. If the judge dismisses the appeal, it implies the Home Office made the right decision. Unless you file an appeal with the Upper Tribunal, this is the end of the appeals procedure.
In any case, the court’s judgement will be documented in a written document known as a “determination,” which should explain why the judge made the decision that they did.
Appealing to the Upper Tribunal
If either party believes that the judge in the FTT made an incorrect judgement, they may file a challenge.
The Upper Tribunal (Immigration and Asylum Chamber) (UT) handle hearing appeals against FTT judgments.
First applications to the FTT for permission to appeal to the UT
However, before either side – the appellants or the respondent Home Office – may proceed to the UT, an application must first be filed to the FTT for “permission to appeal” against the FTT’s decision.
Again, there are stringent time limitations and processes involved. According to the procedure regulations, the application for appeal must be filed within a specific time frame and on a specified form.
To be granted permission, the party applying must demonstrate that the FTT judge’s judgement arguably contained an error of law and that the mistake of law was essential to the outcome of the appeal.
Examples of judicial legal errors include (but are not limited to):
- ignoring important evidence
- considering unimportant situations
- failing to explain a conclusion adequately
- applying the incorrect law or misinterpreting the applicable legislation
A judge of the FTT (but not the judge who heard the initial appeal) will consider the application for permission to appeal and either allow it or deny it because it reveals no substantial error of law.
Second (renewed) application to the UT for permission to appeal to the UT
If the FTT denies your application for permission to appeal, you may request the UT for permission to appeal. This is referred to as a “renewed” application. The exact requirements apply in terms of what must be demonstrated that the initial judgement of the judge arguably includes a legal error that was significant to the outcome – as well as the existence of certain formalities about time restrictions and the completion of certain forms. The Upper Tribunal process rules will apply to a renewed direct application to the UT. If the request for authorisation is granted, the matter will be heard by the Upper Tribunal.
If the request for authorisation is granted, the matter will be heard by the Upper Tribunal. If the application is denied, the only option to appeal the decision is through Judicial Review.
A third (and final) possible challenge to a refusal of permission to appeal: Cart JRs
Following the Supreme Court’s decision in Cart v the Upper Tribunal [2011] UKSC 28, it became permissible to submit one last challenge to an Upper Tribunal decision to reject permission to appeal. These apps are referred to as “Cart JRs.”
In this process, if a person is denied permission to appeal by the FTT and their new application to the UT is denied, an application can be made to the Administrative Division of the High Court for approval to initiate Judicial Review proceedings against the Upper Tribunal.
These applications are subject to the High Court’s procedural regulations (known as the Civil Procedure Rules), notably Rule 54.7A, and the rate of success is high. The High Court will only grant permission to proceed if it considers it necessary.
- That there is an arguable case, with a reasonable prospect of success, that both the Upper Tribunal’s decision refusing permission to appeal and the First Tier Tribunal’s decision against which permission to appeal was sought are wrong in law; and
- (b) That either:
- The claim raises an essential point of principle or practise; or
- There is some other compelling reason to hear it.
If the appeal is successful in the High Court at the JR authorisation stage, the Upper Tribunal will typically permit to appeal, and the appeal will continue to the UT.
Getting permission to appeal in the UT: what happens next?
If either the FTT or the UT grants permission to appeal to the UT, the Upper Tribunal will conduct an error of law hearing.
The error of law hearing in the UT
This hearing will aim to determine if the FTT’s decision did include an erroneous law.
When deciding this matter, the UT will generally hold an oral hearing in which the parties are given a chance to explain why they believe the FTT’s judgement was incorrect in law. The opposing party will explain why they feel the FTT judge’s judgement should be upheld.
The standard stance is that no new evidence can be presented at this stage. Instead, the UT judge (or judges, since more than one judge often handles cases) will review only the documents and material presented to the judge during the original hearing. The UT will then generally give a written judgment on the actual question of whether an error of law has occurred.
If there is an error of law, the UT can either rehear the appeal or “remit” (or send back) the matter to the FTT. In any case, the request will be considered anew from the beginning, in its entirety.
If the UT determines that there was no mistake of law, the appeal will be dismissed.
Substantive rehearing in the UT
The UT may substantively rehear an appeal rather than being sent back to the FTT.
This implies that it will be heard again fully, as it was by the FTT judge, with witnesses testifying and so on, with the only change being that the parties are in the UT rather than the FTT.
And, as with the FTT, the UT will provide a detailed ruling explaining why it has permitted or denied the appeal.
When the Upper Tribunal rehearses a matter, the losing party has the right to appeal to the Court of Appeal.
Court of Appeal
As with the process following a decision in the FTT, an application for permission to appeal must first be submitted to the court that made the decision (which would be the UT) in these circumstances.
Application to UT for permission to appeal to the Court of Appeal
To succeed at this level, the appeal must have already been heard fully and rejected by both the FTT and the UT. Thus, it must meet a high standard known as the “second appeals test.” Permission will only be granted in the following cases:
- (a) The appeal would entail
- 1) having a realistic chance of success; and
- 2) bring forth a crucial concept or practise; or
- (b) the Court of Appeal has another compelling cause to hear it.
If the UT denies permission to appeal to the Court of Appeal, the application to the Court of Appeal might be “renewed.”
Application to the Court of Appeal for permission to appeal (to the Court of Appeal)
At this step, an application for approval must fulfil the exact requirements as an application to the UT, as affirmed by the Civil Procedures Rule 52.7.
When the Court of Appeal considers an application for approval to appeal, it may hold an oral hearing if it deems essential. Otherwise, permission might be granted “on the papers.”
If permission is granted at either the UT or the Court of Appeal stage, the Court of Appeal will hold an absolute error of law hearing.
In terms of disposing of an appeal, the Court of Appeal has broad powers. For example, if it discovers a legal mistake, it can remand the request to the FTT for a full rehearing.
Alternatively, it can effectively dismiss an appeal by affirming or reinstating a judgement in the lower courts of either the FTT or the UT.
Supreme Court
If your case is denied at the Court of Appeal, you can appeal to the Supreme Court, the highest court in the United Kingdom. Before bringing it directly to the Supreme Court, an application for permission to appeal must be submitted to the Court of Appeal first, as per the steps outlined above.
Permission to appeal is given only for petitions that present an arguable issue of law of broad public interest that the Supreme Court should examine at that time in the judgment of the Justices. However, the case will already have been the subject of judicial decision and may have been reviewed on appeal. The Supreme Court hears less than 100 appeals each year from the whole UK judicial system.
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