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Appeals (APL) - Appeal procedures for posts

Appeal procedures for posts
Last updated 12 December 2008

This is internal guidance for use by entry clearance staff on the handling of appeals. It is a live document under constant review and is for information only.

Guidance

Further information

 

APL2.1 Process for notifying POU

The Tribunal should send the determination to POU within 10 days of the hearing.

All allowed determinations are sent to POU, Angel Square and to the appellant/reps.

Specialist Appeals Team (SAT) at Angel Square have 5 days to decide, whether or not an error in law has been made and if they are going to challenge.

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APL2.2 Allowed appeal: SAT do not challenge

SAT minute the file and forward with the determination to the relevant POU.

Presenting Officer's Unit (POU) will either email the allowed determination to Post's single tier enquiries mailbox or send to Post by bag.  

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APL2.3 Allowed appeal: SAT challenge the decision

SAT sends the determination to relevant POU with covering letter.

A copy of the SAT minute and grounds should be attached to the determination and sent to the Entry Clearance Post.

The ECO does not need to take action until he has been informed that the appeal is finally determined.

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APL2.4 Appeal dismissed

If the appeal is dismissed, a copy of the determination will be sent to post by bag. Dismissed determinations should be linked to the applicant's file and details entered onto proviso .The appellant can apply for reconsideration of their appeal up to 28 days after promulgation (the date the determination was signed by the IJ).  If reconsideration is refused by a Court of Appeal hearing, the file is closed. Post should expect to receive the determination 6 weeks after promulgation.  Proviso should be updated as soon as possible. 

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APL2.5 Appeal allowed - no Directions given

Post receives an allowed determination and Tribunal has not given directions.  SAT has not applied to court for the case to be reviewed. 

Entry clearance appeals are considered on the basis of the facts at the time of the original application not at the date of the appeal hearing.  An allowed appeal means that the IJ has ruled that the ECO was wrong to refuse entry clearance not that the applicant is entitled to entry clearance. 

If the applicant still wants to travel, the ECO should normally issue the entry clearance as quickly as possible unless:

  • there has been a significant and material change in circumstances since the refusal decision of which the Tribunal would be unaware;or
  • there has been a material deception which has come to light of which the Immigration Judge would not have been aware;
  • the judge has failed to adequately consider the evidence or facts of the case in his determination;or
  • the results of checks that instigated prior to refusing applicant came back after the appeal was heard.

If the above circumstances apply, Post should first consider challenging the determination (see APL2.6 below).  If unsuccessful the ECO should then consider re-refusing the applicant (see APL2.7 below).

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APL2.6 Challenging a determination

If the circumstances in APL2.5 apply, the ECO should refer the case to the ECM.  If the ECM considers that an error has been made in law and the challenge has a realistic chance of success, they should e-mail the Specialist Appeals Team at SATGenericAwaited@ind.homeoffice.gsi.gov.uk, copying to UKBAIG - Single Tier Enquiries.  The following should be included with the email:

  • The Determination;
  • Any SAT minute(s);
  • The original refusal notice;
  • A covering e-mail - which must be sent by an ECM only - stating concisely why you believe the IJ's decision to be outside the law and asking SAT to request a reconsideration.

The request to challenge should be sent within 28 days of the decision being promulgated, otherwise the challenge will be deemed to be out of time.  Posts can send such requests after more than 28 days, but should be aware that the AIT very seldom grant Out of Time requests for reconsideration.

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APL2.7 Re-refusing an application where appeal allowed but no directions given

An ECO should normally act in accordance with a determination unless the circumstances in APL2.5 apply.

Before re-refusing an applicant, Post must first ask the UKBA Specialist Appeals Team (SAT) to challenge the decision (see APL2.6 above).  If the SAT challenge the decision, the ECO must take no action until UKBA inform them of the final appeal determination. 

An ECM must endorse any re-refusal.  Post must:

  • copy the re-refusal notice to the AIT to link with their file;
  • send a covering note to advise the Tribunal that the appellant has been re-refused and may seek a direction under Section 87(1) of the 2002 Act to direct the ECO to issue entry clearance;
  • ask the Tribunal in the covering note to consider the ECO's reasons for refusing to issue entry clearance when considering any application for a direction.  The reasons why the ECO was not prepared to issue the entry clearance should be clear and factual, and any relevant documentary evidence should be provided.

 

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APL2.8 Appeal allowed - Directions given to issue

Post receives an allowed determination and the Immigration Judge has directed that entry clearance is issued.  SAT has not challenged the decision (see APL2.6 above).

There is a statutory duty under Section 87(2) of the 2002 Act for the ECO to comply with directions, unless the determination is subject to further appeal.

An ECO has no power to re-refuse an application if an immigration judge has “directed issue” of entry clearance.  The ECO must issue the entry clearance if the applicant still wants to travel. 

If SAT has decided against challenging the decision or the challenge has failed, an ECO should issue and immediately revoke entry clearance (Paragraph 30A of the Immigration Rules) if they are satisfied that:

  • there has been a significant and material change of circumstances since the refusal decision of which the Tribunal would be unaware; or
  • a material deception has come to light of which the Tribunal would be unaware.

The applicant has a limited right of appeal against the revocation of his entry clearance.

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APL2.9 Appellant or representative receives allowed determination before Post

It can take up to six weeks from the date of promulgation for the determination to be sent to Post.  Post should check their single tier mail box for the determination.  If not received, Post should:

  • confirm where the appeal was heard; and
  • contact the relevant Presenting Officers Unit to check on the status of the appeal and to request a copy of the determination.

If the POU confirms that an application has been made for reconsideration, the applicant should be told that a visa will not be issued until the re-consideration is resolved.  Post should ask the POU to advise them of the outcome of the reconsideration application.

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APL2.10 Multiple Determinations

In a very small number of cases, an appeal against a single decision to refuse entry clearance can be heard more than once by the Tribunal at first hearing stage. This can happen when an appeal has been recorded as having more that one reference number on the AIT system (Aria), but is only recorded once on Proviso. This results in Post receiving two sets of notices to provide appeals papers for the same case.  When this happens, Post should alert the AIT immediately so that the AIT can link both appeals and ensure that there is only one hearing.  Occasionally, an appeal is heard by two different Immigration Judges who reach different conclusions.  When this happens, Post should act on the determination that relates to the appeal promulgated first i.e. the date the determination was signed by the IJ.  However, there are potential hazards which Posts must take care to avoid:

  • hearing and promulgation dates are different.  It is the first determination promulgated i.e. the date the determination was signed by the IJ, that is key, regardless of whether that appeal was the first or second to be heard.  This is because once an appeal had been determined there is then nothing for a second judge to determine.
  • When reviewing what may be a determination from a second hearing of the same appeal, posts must read it carefully to ensure that it is not the determination from a reconsideration hearing or a correction of the first determination.  A reconsideration determination will invariably refer specifically to the first hearing/determination.  A correcting determination will usually be clearly marked as such.  A further test is whether the two determinations have separate AIT reference numbers or if they share the same AIT reference number.  When a case has been reconsidered by a higher tribunal or court, it is the determination of the highest court that posts must act on.

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APL2.11 Tribunal’s recommendation to the Secretary of State

The President of the Tribunal has indicated that, since the introduction of the Human Rights Act, recommendations when allowing an appeal are no longer appropriate.  However, the Tribunal may recommend that the Secretary of State’s overriding discretion should be exercised in favour of the appellant and the application granted. The Tribunal may recommend issue when there are, for example, compelling, compassionate or exceptional circumstances which justify a decision being taken outside the Immigration Rules. But the Tribunal’s recommendation can cover anything although it is unlikely that such a recommendation will be made when an appeal is allowed. Although recommendations of this kind are not statutory and are not binding, it is UKBA policy to consider these recommendations. Post must refer these cases to NCC2 using the HOreferrals procedure because a decision will have to be made outside of the immigration rules.  Post need to enclose a copy of papers to UKBA headquarters.

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APL2.12 UKBA headquarters accepts Tribunal’s recommendation

NCC2 will email decision to Post, giving reasons for decision and the category of visa endorsement.

The decision needs to be approved at SEO level, and the minute of the decision will be countersigned by an SEO and sent to Post with the determination.

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APL2.13 UKBA do not accept Tribunal’s recommendation

They will:

  • inform Post by standard letter;
  • minute the file stating their reasons and write to the appellant and to his/her representatives, rejecting it; and
  • send a copy of this letter with the determination to post who should then retain on their file.

Applicants can re-apply for a visa.

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APL2.14 Re-applications on an identical basis

Legislation does not sets a limit on the number of applications a person may make. An applicant will have a full or limited right of appeal against each refusal. 
In the case of a repeat application, which was subject to an earlier appeal, if the current application is to be refused, relevant papers may be annexed to the new explanatory statement.  There is no need to repeat information given in an earlier appeal.

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APL2.15 Appeal allowed - contacting the appellant

APL2.15.1 What is the timeframe?
Once Post  is notified of an allowed appeal, the appellant should,  within a maximum of three weeks, either be invited to resubmit their passport so that a visa can be issued or, (in a limited number of cases), so that a visa can be re-refused.   Unreasonable delays in contacting appellants with allowed appeals often result in complaints and requests for judicial review.

APL2.15.2 Keeping a record of events
Record on PROVISO the allowed determination and the date received in Post.  It is important that the allowed appeal is recorded on Proviso, in case the appellant enquires after the file is weeded.

All attempt(s) to make contact with the appellant should also be recorded on PROVISO, clearly stating the date, time (where applicable) and contact address used eg home address x as on appeal notice dated y.  This is in order to be able to demonstrate that reasonable attempt(s) were made to contact the appellant using contact information provided by the appellant.

APL2.15.3 How to make contact

  • a single e-mail to the appellant’s last known e-mail address. (If such an e-mail "bounces back" or undeliverable report received, post should record this on PROVISO and then send a paper letter); or
  • a single letter to the appellant’s last known postal address (in countries where the postal system is reliable); or
  • a letter to the appellant’s last known postal address - with a bring up for 6 weeks for a reminder letter if nothing heard from the appellant (in countries where the postal system is considered less reliable).

APL2.15.4 What if the appellant fails to respond to contact attempts?
If an appeal is allowed and the appellant fails to respond to the ECO’s email or letter(s), there is no further action by the ECO.  The appeal remains allowed – it does not cease to be allowed - but no visa is issued.  File the file after three months.

APL2.15.5 What if an appellant eventually turns up?
If an appellant turns up a long time after the contact email / letter(s) were sent, the ECO  will need to take each case on its merits.  Legally, the appellant has an allowed appeal and the ECO is supposed to give effect to that determination.  The appeal does not cease to be allowed because the appellant took a while to respond.

Reasons (not a definitive list) for the appellant delaying:

  • An appellant student wanting to follow the same or a very similar course of study may only be able to start that course each September/October so they have good reason not to get a visa issued too soon, given that the ECO can only issue a visa up to 3 months in advance.  
  • An appellant who can only take leave or be away from their business at certain times of year.
  • An appellant who has missed a significant family event (e.g. a wedding) because of the length of the appeals process but who now wants to attend another family event (e.g. a christening).

Unless there is an obvious significant change in the appellant’s circumstances (see APL2.5), an ECO should be looking to issue to an appellant.  This is even if the appellant turns up, up to a year after they were advised of the allowed determination, still wishing to enter the UK in the category they originally applied for.

If it takes them more than a year for the appellant to get in touch, then it is reasonable for the ECO to request up to date evidence relevant to the original category applied for eg evidence of circumstances and/or funding (see APL2.5). If the appellant wishes to enter the UK in a different category then they should be advised to make a new application.

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