Appeals to the First and Upper Tier Tribunals

An explanation of the tribunal and court process

The First-Tier Tribunal deals with the appeals against decisions made by the Home Office with regard to permission to stay in the UK, a deportation from the UK or entry clearance to the UK. It also hears bail applications for people in Immigration Detention. There are currently seven chambers of the First-Tier Tribunal.
First Tier Tribunal Immigration Decisions

A Tribunal may give a decision orally at the hearing, but usually it is done in writing after the appeal.  The Home Office has a low success rate in winning cases at the appeal stage. An immigration appeal is a hearing led by one or more Judges and immigration appeals take place in a number of locations in the UK. The Judges usually do not decide whether or not the appeal has been allowed or dismissed at the Hearing.  Usually you will be informed as to the outcome of the case in writing.

If the Immigration Judge dismisses the appeal, we can help you to make an application for permission to appeal to the Upper Tribunal.  We can only make an application for permission to appeal to the Upper Tribunal if the Judge makes a mistake in the way in which he/she has applied the law.

This means that you cannot appeal further just because you do not agree that certain facts are wrong. In order to be allowed to take the appeal further, you must demonstrate how the Judge has made an error the way he/she applied the law to your case and why this made a significant difference to your case.

If you are granted permission to appeal further, then your case will be transferred to the Upper Tribunal.

If your appeal is allowed at the First-Tier Tribunal the Home Office can still ask for permission to appeal to the Upper Tribunal if the Judge has made a mistake.  If the Home Office appeal is refused, or if the Home Office does not appeal, then you will be granted status by the Home Office.

Upper Tier Tribunal Decisions

The Upper Tribunal is responsible for handling appeals against decisions made by the First-Tier Tribunal relating to visa applications, asylum applications and the right to enter or remain in the UK.

They also handle applications for judicial review of decisions made by the Home Office. In applying for permission to appeal a dismissal by the First-Tier Tribunal, we will need to demonstrate that the Judge in the First-Tier Tribunal made an error of law. Examples of errors of law include if the Judge made a mistake about the meaning of the Immigration Rules or if the Judge did not follow a binding decision of a higher court.

The First-Tier Tribunal may have overlooked important evidence or made a decision when there was no evidence.  It is essential that when applying for permission to appeal to the Upper Tribunal, you receive expert advice in identifying the error of law.

You don’t have an automatic right to appeal to the Upper Tribunal and you need to seek permission first. You can apply for permission by using Form IAFT4. If you are in the UK you must submit your application for permission within 14 days of the date of the written dismissal of your appeal.

If you are out of the UK then your time limit is 28 days from the date of postage. There is currently no fee to appeal to the Upper Tribunal.

If permission is refused you may apply for judicial review of the refusal of permission to appeal to the Upper Tribunal, if you can demonstrate an error of law that raises an important point of principle.

If you are granted permission to appeal to the Upper Tribunal there will be either a hearing before one or more Upper Tribunal Judges or the case may be decided without an oral hearing and on the papers available.

The Upper Tribunal will send directions setting out the steps to be taken before the hearing. You may need assistance in submitting written submissions and with the setting out of your arguments which seek to expand on the Grounds of Appeal submitted when applying for permission to appeal.

If you want the Upper Tribunal to consider new evidence you must submit the new evidence to the Tribunal and the Home Office in advance.

What is an Upper Tribunal?

The Upper Tribunal is the name of the Tribunal that hears cases where the appeal was refused by the First-Tier Tribunal.  The Judge will either make a decision there and then or may make their decision at a later date.  The possible outcomes of a hearing at the Upper Tribunal are:

1. An Upper Tribunal Judge makes a decision there and then that the First-Tier Tribunal made an error of law. In this case it may proceed to hear the appeal so it can make a fresh decision immediately.
2. It may decide that it is necessary to hear new evidence and consider new documents and it will arrange for a hearing at a later date.
3. The Upper Tribunal Judge will decide whether any findings of facts made by the First-Tier Tribunal are to be preserved even though the decision has been set aside.
4. The Judge may send the case back to the First-Tier Tribunal to re-decide with no need for consideration of new evidence.
5. A Judge may give the First-Tier Tribunal directions to make sure the error of law is not repeated.
6. The Judge may order the First-Tier Tribunal to re-hear the case with a chance to hear new evidence.

The Judge may order the First-Tier Tribunal to re-hear the case with a chance to hear new evidence.

Can you appeal an Upper Tribunal Decision?

If you were granted permission to appeal at the Upper Tribunal and your case was heard but the Judge decided that the First-Tier Tribunal did not make an error of law, then there is an option of appealing that finding at the Court of Appeal. You will need to apply for permission to do so.

Can I appeal online?

Each appeal can be made either online or by post.

• A decision to refuse a human rights claim by an entry clearance officer should be appealed using form IAFT6
• An appeal against a human rights or protection refusal where you can only apply after you have left the country should be completed on form IAFT7
• A decision against a decision to deport you as a European Economic Area National should be completed on form IAFT5
• An application for an EA Family Permit as a family member that was refused should be appealed on form IAFT6

You can ask on the appeal form for a decision to be made either on paper or at an oral hearing.  We suggest that it is beneficial to attend the hearing with a representative. Hearings are carried out in public but on occasions you can ask for it to be held in private or by video link.  You can ask for a female or male Judge if you think there is an issue with an appeal which makes it appropriate. If you wish to find out about your hearing you should contact the Customer Inquiry Unit on +44(0) 300 123 1711.  The cost of an appeal is £80 for a paper hearing and £140 per appellant for an oral hearing.  You can pay your fee with a credit card when you make your appeal online or by including the details on the appeal form.

What happens after an Appeal is allowed?

If the Tribunal allowed the appeal, and the Home Office did not appeal the decision of the Tribunal, the Home Office will change its decision and may reconsider the entire application.  You will then be granted the visa of leave for which you applied. The Judge may order the Home Office to pay the fee award if you win your appeal. This is the amount you paid for the Tribunal fee, for example £140.

Are First-Tier Tribunal decisions binding?

The decision of the Immigration & Appeal Tribunal is authoritative.  The Immigration & Asylum Appeal system is complex and difficult to navigate and, therefore, it is beneficial to have an expert legal adviser assisting you with the many lengthy appeal stages.

The high rate of appeals allowed against the Home Office and the removal of some of the appeal rights places the Tribunal and the Court system under considerable pressure.

We have expertise in all stages of the Immigration & Asylum Appeal process, from the point of making the application to the Home Office, to making a permission of appeal application to the Court of Appeal.

Danielle invites you to take a look at her blog, where you will see the diverse range of clients that she has helped.

We appreciate that Immigration Law can seem complex and confusing – if you would like us to help you with an application or an appeal, or you would like some general advice, contact us or call us on 020 7267 4133. Danielle will only charge you for the first consultation if you decide to become her client and if she can assist you.