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UPPER TRIBUNAL IMMIGRATION APPEAL

f your appeal to the First-tier Tribunal (Immigration and Asylum Chamber) has been dismissed, our immigration appeal lawyers can advise you on the merits of appealing to the Upper Tribunal, draft grounds of appeal and, if permission is granted, represent you at your Upper Tribunal appeal hearing.

On this page we look at the right of appeal to the Upper Tribunal, how to apply for permission to appeal to the Upper Tribunal, what is an ‘error of law’ in a decision of the First-tier Tribunal, time limits for appealing to the Upper Tribunal, what will happen if permission to appeal to the Upper Tribunal is granted or refused and the next steps if you either win or lose your appeal to the Upper Tribunal. 

We have separate pages for immigration appeals to the First-tier Tribunal, Administrative Review and Judicial Review.

What is the Upper Tribunal (Immigration and Asylum Chamber)?

The Upper Tribunal (Immigration and Asylum Chamber), also known as the Upper Tribunal, is a court one level above the First-tier Tribunal (Immigration and Asylum Chamber).  It is responsible for determining appeals against decisions made by the First-tier Tribunal regarding entry clearance to the UK, permission to stay in the UK and deportation from the UK.  

The Upper Tribunal also determines applications for Judicial Review of some decisions made by the Home Office in relation to immigration, asylum and  human rights claims.

 

Right of Appeal to the Upper Tribunal Against a Decision of the First-tier Tribunal 

There is no automatic right of appeal to the Upper Tribunal.  In order to appeal to the Upper Tribunal against a decision of an Immigration Judge of the First-tier Tribunal it is first necessary to apply for permission to appeal.

A decision of the First-tier Tribunal (Immigration and Asylum Chamber) dismissing an immigration appeal can only be appealed to the Upper Tribunal if permission to appeal is granted.

How to Apply for Permission to Appeal to the Upper Tribunal (Immigration and Asylum Chamber)

An application for permission to appeal to the Upper Tribunal must be made to the First-tier Tribunal in the first instance.  If the First-tier Tribunal decides to refuse permission to appeal then a further application for permission to appeal can be made directly to the Upper Tribunal.

An application for permission to appeal to the Upper Tribunal must be made in writing and must set out why the Immigration Judge of the First-tier Tribunal made an error of law when they dismissed your appeal against the decision of the Home Office.  It is not sufficient to merely disagree with the findings of the Judge.

Applications for permission to appeal to the Upper Tribunal are usually decided on the basis of the Immigration Judge’s determination and the appellant’s written grounds of appeal, without an oral hearing.

Permission to appeal to the Upper Tribunal will only be granted if the Judge reviewing the decision of the Judge of the First-tier Tribunal is satisfied that the Immigration Judge arguably erred in law when they decided your case (i.e. there is an arguable case that the decision dismissing your appeal was legally wrong).

What is an Error of Law for Grounds of Appeal to the Upper Tribunal?

Errors of various types by the First-tier Tribunal may give rise to grounds of appeal to the Upper Tribunal.  

For example, the decision of the First-tier Tribunal may be said to be wrong in law if the Immigration Judge who dismissed your appeal:

  • Applied the Immigration Rules incorrectly or wrongly interpreted the Immigration Rules;
  • Failed to consider important evidence;
  • Had no evidence or insufficient evidence to support the decision made;
  • Reached a decision which is inconsistent with a binding decision of a higher court; 
  • Followed an incorrect procedure which resulted in unfairness.

Identifying errors of law in a First-tier Tribunal determination requires specialist legal knowledge. You may wish to seek expert advice from an immigration appeal lawyer.  Our immigration barristers have years of experience of reviewing First-tier Tribunal determinations for errors of law and drafting grounds of appeal in support of successful applications for permission to appeal to the Upper Tribunal.

  • First-tier Tribunal Onward Immigration Appeals – A Practical Guide

Time Limits for Appealing to the Upper Tribunal 

Application to the First-tier Tribunal for Permission to Appeal

As set out above, an application for permission to appeal to the Upper Tribunal must be made to the First-tier Tribunal in the first instance. 

If you are in the UK, the First-tier Tribunal will need to receive your application for permission to appeal to the Upper Tribunal within 14 days of the date on which the written reasons for the decision being appealed were sent.  

If you are outside the UK, you will have 28 days from the date on which the written reasons for the decision on appeal were sent to submit your application to the First-tier Tribunal for permission to appeal to the Upper Tribunal.   

If these time limits have been exceeded, it may be possible to request an extension of time for appealing.  You will need to include an application for an extension of time with your grounds of appeal and explain why the application for permission to appeal was not submitted in time.  The First-tier Tribunal will then consider whether to extend the time limit for appealing.

The above time limits are calendar days, but if the relevant time limit ends on a day that is not a working day, the application is made in time if it is made (and received) on the next working day. In the First-tier Tribunal, that is by midnight of the last day,

Application to the Upper Tribunal for Permission to Appeal

If the First-tier Tribunal decides to refuse permission to appeal then a further application for permission to appeal can be made directly to the Upper Tribunal.

If you are in the UK, you will need to apply to the Upper Tribunal for permission to appeal to the Upper Tribunal within 14 days of the date on which the First-tier Tribunal’s notice of refusal of permission was sent to you. 

If you are outside the UK, you will have 1 month from the date on which the First-tier Tribunal’s notice of refusal of permission was sent to you to submit your application for permission to appeal to the Upper Tribunal with the Upper Tribunal.

If these time limits have been exceeded, it may be possible to request an extension of time for appealing.  You will need to include an application for an extension of time with your grounds of appeal and explain why the application for permission to appeal was not submitted in time.  The Upper Tribunal will then consider whether to extend the time limit for appealing.

The above time limits are calendar days, but if the relevant time limit ends on a day that is not a working day, the application is made in time if it is made (and received) on the next working day. In the the Upper Tribunal, this is by 5pm on that day.

Upper Tribunal Appeal Fee

There is no fee for appealing to the Upper Tribunal.

If Permission to Appeal to the Upper Tribunal is Granted

If permission to appeal to the Upper Tribunal is granted, your case will normally be listed for an error of law hearing. The Upper Tribunal will send Directions which will need to be complied with.

Following the hearing, the Upper Tribunal will make a decision as whether the First-tier Tribunal’s decision contained a material error of law.  The decision may be pronounced orally or reserved.  A written decision with reasons will follow in either case.  You should receive a decision in writing within 28 days of the date on which your appeal is heard by the Upper Tribunal. 

What will happen if I win my appeal to the Upper Tribunal?

If the Upper Tribunal finds that the Immigration Judge of the First-tier Tribunal made a mistake of law then it will either:

  • Overturn the decision of the First-tier Tribunal and make its own decision on your appeal; or
  • Remit your case back to the First-tier Tribunal to be heard again.

The Home Office may ask for permission to appeal to the Court of Appeal if it thinks that the Upper Tribunal made a legal mistake.

What will happen if I lose my appeal to the Upper Tribunal?

If the Upper Tribunal finds that the Immigration Judge of the First-tier Tribunal did not err in law then your appeal will be dismissed and the decision of the First-tier Tribunal dismissing your appeal against the refusal decision of the Home Office will stand.

However, if the decision of the Upper Tribunal discloses an error of law then you may be able to apply to the Upper Tribunal for permission to appeal to the Court of Appeal. Identifying an error of law in an Upper Tribunal determination requires specialist legal knowledge. You may wish to seek expert advice from an immigration appeal lawyer. 

If Permission to Appeal to the Upper Tribunal is Refused

If you are refused permission to appeal by the Upper Tribunal then you may be able to apply for judicial review of the refusal of permission to appeal at the Upper Tribunal.  This is known as a ‘Cart Judicial Review’.

You will need to be able to show that an error of law was made in deciding your appeal and that your case involves an important point of principle or practice, or there is some other compelling reason for your case to be heard.

The claim form and supporting documents must be filed no later than 16 days after the date on which notice of the Upper Tribunal’s decision was sent.

Identifying an error of law requires specialist legal knowledge. If permission to appeal to the Upper Tribunal is refused, you may wish to seek expert advice from an immigration appeal lawyer. 

How Our Immigration Barristers Can Help

Our immigration barristers work directly with individuals and businesses, within the UK and overseas, to prepare appeals against decisions of the First-tier Tribunal and provide expert legal representation at Upper Tribunal immigration appeal hearings.

If you are looking to challenge a decision of the First-tier Immigration Tribunal to dismiss your immigration appeal, our immigration barristers combine specialist legal advice and advocacy, with a professional and supportive approach.

Whether you require advice on the merits of appealing a decision of the First-tier Tribunal to the Upper Tribunal, help with drafting grounds of appeal, or representation by an immigration barrister at an immigration appeal hearing before the Upper Tribunal, our immigration appeal lawyers work directly with our clients, drawing on years of experience of preparing and presenting successful immigration appeals before the immigration courts.

We recognise that every client’s circumstances are unique and our immigration appeal barristers provide tailored immigration law solutions designed to meet individual needs.

 

Contact Our Managing Director

As specialist immigration solicitors, we pride in having one of the best team of specialist immigration solicitors  with wealth of knowledge and experience to deal with all types of UK visa and immigration matters. Our top rated immigration solicitors have successfully helped thousands of clients with all types of UK visa and immigration applications, immigration appeals, Administrative Review, Pre-Action Protocol (PAP) and Judicial Review.

Managing Director

Theo Mathias-Nwaulune

Managing Director

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