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Appeals (APL) - Appeal procedures

Appeal procedures
Last updated 26 November 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

 

APL1.1 Appeal process flowcharts

 Family visit appeals lodged at Post;
 Family visit appeals lodged in the United Kingdom;
 Non-settlement appeals lodged at Post;
 Non-settlement appeals lodged in the United Kingdom;
 Settlement appeals lodged at Post;
 Settlement appeals lodged in the United Kingdom

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APL1.2 Lodging an appeal and dual lodgement

Under 6(4(b)) of the AIT Procedure Rules 2005, applicants can lodge their appeals:

  • directly on the Asylum and Immigration Tribunal (AIT); or
  • at the Post where entry clearance was refused.

Applicants cannot do both. If applicants lodge in both places (dual lodgement) only the earliest appeal is valid.  The second appeal must be linked to the file and the ECO must review the evidence from both appeals.  Any new evidence may result in a decision being overturned and entry clearance issued.  If more than one determination is issued in error, Post must follow the guidance on multiple determinations (see APL 2.10).


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APL1.3 Making an appeal

Appeals must be submitted on the notice of appeal form (AIT-2).  Applicants can get an appeal form in two ways:

  • from Post, issued with the refusal notice for Full Right of Appeal (FRA) applications only.  Post must also issue AIT Guidance notes with the Notice of Appeal; or
  • direct from the AIT website at www.ait.gov.uk. 

Either the applicant or a representative can complete the form AIT-2.  But for the appeal to be valid it must:

  • be signed and dated by the applicant or representative (procedural rule 8(3)); and
  • be accompanied with a copy of the refusal notice.

If the appeal is not valid, Post must still accept the appeal papers and then follow the process for invalid and out of time appeals (see APL1.14 below).

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APL1.4 Appeals lodged in the UK

AIT will inform Post that the appeal has been received by sending the AIT-11 (receipt) and AIT-2 form (showing date of receipt at AIT) and any accompanying documents to Post by bag within 28 days of receipt.

On receipt, Post must date stamp the AIT-2 and update Proviso. The start date for the appeal deadlines starts from this date.

If the appeal is received after 28 days from the date of receipt on the AIT-2 form, Post may e-mail the AIT at eco.contact@dca.gsi.gov.uk to request an extension to the deadline.

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APL1.5 Appeals lodged at Post

The Post/commercial partner must clearly stamp the date of receipt on Form AIT–2. This is the start date for all appeal deadlines including invalid and out of time appeals (see APL1.14 below).

Post must send a copy of the AIT-2 notice of appeal form and refusal notice by bag to the AIT, Loughborough at the address below within 10 days of receipt:

Tribunal Support Centre – Loughborough
Asylum and Immigration Tribunal
PO Box 7866
Loughborough
LE11 2XZ

The AIT will send an acknowledgement of receipt (form AIT-11).  Post should not wait for the AIT-11 before processing the appeal and sending the bundle.

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APL1.6 Appeal procedures at Post when applicant was refused in-country

The Post/commercial partner must clearly stamp the date of receipt on Form AIT-2. Post need to inform the relevant UKBA department via the HO Referrals mailbox that an appeal has been made and that all appeal documentation will be sent to them using the HO Referrals pro-forma .  You must include the Home Office reference number  on the pro forma and alert UKBA to the fact that you will be sending a  copy of the AIT-2 notice of appeal, refusal notice and any other relevant documentation by bag giving full details of posting).  Post need to  inform the AIT at the AIT contact email address that the applicant was refused in-country and that all the appeal documents have been forwarded to the relevant UKBA department who will be responsible for  reconsidering the application in the light of the grounds of appeal and, if maintaining the decision to refuse, the preparation of the appeals bundle.  UKBA will then forward the bundle to the AIT. Post should retain on file copies of emails etc and record all actions on Proviso.

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APL1.7 ECM review

On receipt of the grounds of appeal, the ECM must immediately review the refusal, taking into account the grounds of appeal and any additional supporting documentation.

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APL1.8 Refusal upheld - processing the appeal

Post need to prepare the appeal bundle.  The appeal bundle must contain the following documents in this order:

  • AIT 11 (blue receipt form), if received at Post before bundle collation, to be place on top as it is bar coded and easier for AIT to process;
  • explanatory statement (including ECM review);
    Example of an explanatory statement
  • refusal notice;
  • appeal notice;
  • documents in support of appeal (listed);
  • VAF;
  • interview notes (if applicable); and
  • relevant documents submitted with application (listed).

All bundles must be sent to the AIT within the agreed deadlines (see APL1.9 below).

Post should not wait for an AIT02 reminder.

Post must also e-mail the “Hanslope Park spreadsheet” to Kim Pearson or Peter Tofani, bag room, Hanslope Park.

Post must return the original documents to the applicant unless they are satisfied that the documents are false. If documents are found to be false, the ECO must complete a detailed document examination or verification report.  A copy of the report must be included in the appeal bundle and the original held on file.

The document verification report must be de-personalised.  Bank account details and personal information about the person who gave the information about the document must be deleted from the document verification report e.g. the name of the bank staff member should be replaced by “an official known to me” and his phone number deleted.  References to how many digits a bank account number should have can be replaced with “used the wrong number of digits in the account number”.

Where the document verification report cannot be de-personalised in a meaningful but convincing way or if the document examination report contains sensitive information eg. covert security features, the report must be sent under closed cover using section 108 of the 2002 Act. (See APL1.12 - below).

If sending documents under s108, you must alert all parties to this by typing in bold at the top of the ES “we have sent information using s.108”.  If  you are not sending an ES, you must enclose a separate note to this effect on the top of the bundle.

The procedural rules allow 28 days for the appeal bundle to arrive in the UK and be processed by the AIT.  Post must not use these 28 days to finish processing the appeal.

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APL1.9 Refusal overturned – processing the appeal

If the ECO or ECM overturns the refusal at any stage of the process e.g. after review of appeal or following representations, Post must notify the AIT.   Post must complete and email the withdrawal of decision letter (link to Forms – withdrawal of decision letter) to the AIT dedicated mailbox eco.contact@dca.gsi.gov.uk  and type “withdrawal of notice of decision” in the subject heading.

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APL1.10 Deadlines for bundle preparation

Posts must send the appeal bundles to the AIT within 4 weeks for family visit cases and non settlement appeals, and within 12 weeks for settlement cases from the date of receipt of the appeal at Post or AIT (if lodged in UK).  Bundles must be sent no later than the date recorded on the AIT 11.  Post should not rely on an AIT02 reminder.

If Post has not received acknowledgement from the AIT ( AIT11), for appeals lodged at post, they should still send the bundle and note proviso that no acknowledgement has been received.

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APL1.11 Processing appeal documents

Original documents submitted by the appellant must be preserved in the condition in which they were received. Do not staple or punch holes in them. You must return original documents, that you are satisfied are genuine, to the appellant after you have photocopied them and date stamped the copy. If you are satisfied that a document is not genuine, you should copy the document and retain the original on file. ECOs will need to complete a document examination or verification report as evidence that a document is false. If an appeal has been lodged in the UK, AIT will send Post the original documents, which will need to be copied and returned to the applicant (not returned to the UK).

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APL1.12 Translations

Procedure Rule 52(1)(a) states that “any notice of appeal or application notice filed with the Tribunal must be completed in English” and (b) “any other document filed with the Tribunal must be in English, or accompanied by a translation into English signed by the translator to certify that the translation is accurate”.

The appellant, not the visa section, must provide certified translations of any documents included in their appeal.  However, the ECO must provide certified translations of any document in support of the explanatory statement if the appellant has not included them in their appeal. The text of the translations must be clearly laid out so that the originator, addressee, date and signature are readily evident.
 

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APL1.13 Section 108 – documents sent under closed cover

Section 108 of the 2002 Act allows us (the respondent) to give evidence to the court about false documents in private, where disclosing information relating to the detection of the forgery method, in a public court would be contrary to the public interest.

It is important that the s 108 procedure should only be used where it is essential.  So if a document examination report contains sensitive information e.g. covert security features or if you are unable to anonymise a document verification report in a meaningful and convincing way, the report can be sent to court using section 108.

To alert all parties that you have sent information under s108 you should write in bold at the top of the ES “We have sent information using s.108.”  If there is not an ES, you need to include a separate note at the top of the bundle.

The report and copies of the document should be put in a sealed envelope, which is addressed “FOR THE ATTENTION OF THE IMMIGRATION JUDGE” and marked “SECTION 108 – DO NOT COPY”.  Ensure that the Post reference number is marked clearly on the top of the right hand corner.  The envelope should be placed on top of the bundle and attached with a separate tag.  Where you are alleging that a travel document is not genuine, you should submit colour copies of the document, if possible.

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APL1.14 AIT does not receive appeal bundle

The AIT will list cases in accordance with the agreed timescales.

A ‘Notice of Hearing’ (AIT 35) will be sent to the Appellant, their Rep/Sponsor and Presenting Officers Unit (POU).

AIT 02/02a will be sent to the ECO as an urgent reminder that the bundle has not been received and should be forwarded immediately. (AIT 02- oral hearing, AIT 02a – paper hearing).

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APL1.15 Invalid and Out of Time Appeals – preliminary issue

Only an Immigration Judge can decide whether an appeal:

  • is valid (for example if the appellant submits a full right of appeal but only has a limited right of appeal); or
  • can be accepted when lodged out of time (more than 28 days after the refusal decision notice has been served on the appellant).

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APL1.16 Processing invalid and out of time appeals

Post must:

  • inform the AIT within 10 days that either an appeal is out of time (Out of Time Letter) or not valid (Validity of Appeal Letter);
  • email the Out of Time Letter/Validity of Appeal Letter, refusal notice and AIT-2 form to the AIT at: eco.contact.dca.gsi.gov.uk. The subject line must include “Preliminary Issue OOT/Validity”. You need to track the email exchange and keep a record on file. If you are not able to email, you may fax a copy of the Out of Time Appeal Letter/Validity of Appeal Letter, notice of decision and AIT–2 form plus a fax cover sheet to +44 (0) 1509 221699.  You need to keep a record of the fax transmission report indicating it has been received;
  • send a chaser and keep a record of the fax/email if no reply has been received within 10 working days;
  • keep a record of all correspondence on preliminary issues so that, if we are not advised of the outcome of the preliminary issue and a determination on the substantive application is made, we can challenge the decision despite having missed the deadline. 

A duty judge at the AIT will decide whether to accept the appeal and the Tribunal will notify all parties of the outcome.  If the appeal is determined to be ‘in time’ or ‘valid’ by the duty judge, AIT will email ‘Post Single Tier Enquiries’ by return or fax Post. 

Post need to process the appeal and  prepare the bundle within set timelines ( 4 weeks for non-settlement cases and 12 weeks for settlement cases) from the date AIT-2 for was received at Post.

If the Immigration Judge determines that the appeal is ‘out of time’ or ‘invalid’, the AIT will email ‘Post Single Tier Enquiries’ or fax Post this decision on form AIT- 09.  Post do not need to take any further action.


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APL1.17 New evidence produced after despatch of an appeal but before an appeal hearing

An appellant can submit evidence, which pre-dates the original refusal and was not disclosed to the ECO at the time of refusal, at any time before the hearing date even after Post has sent the appeal bundle to the AIT.  The ECO must:

  • review the evidence as quickly as possible; and
  • if appropriate, issue entry clearance or maintain the refusal; and inform AIT of the new evidence and the outcome of your review by emailing the AIT at: Eco.contact@dca.gsi.gov.uk

 

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APL1.18 Notify AIT of change of address

If Post is informed of a change of address or change of representative after the appeal bundle has been sent to the AIT, they need to advise the AIT of the change by email at: eco.contact@dca.gsi.gov.uk  

However, if the appeal bundle has not already been sent, a letter clearly highlighting the change needs to be included with the statement.

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APL1.19 Tribunal wants more information

If the Tribunal wants more information:

  • a 'direction' will be issued by the court;
  • the Presenting Officer should contact Post by the dedicated Post mail box or by phone;
  • the ECO needs to provide the Presenting Officer with a supplementary statement;
  • the request must be given priority due to time constraints ordered by the Tribunal. 

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APL1.20 Applicant makes fresh application while an appeal is outstanding

A person who has an appeal pending can make a fresh application for entry clearance in the same or any other category. There is no requirement for a person to withdraw an application. If an appellant is subsequently issued an entry clearance, Post must inform the AIT at: eco.contact@dca.gsi.gov.uk because only the AIT can stop the appeal.  The applicant needs to sign a withdrawal of appeal form.

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APL1.21 Issue of entry clearance with appeal outstanding

Under section 9 of the 2006 Act, if an applicant has an outstanding appeal but makes a new application and is issued an entry clearance in a different category, any outstanding appeal against an entry clearance refusal will continue unless the appellant notifies the AIT that they do not wish to proceed with the appeal.  If an applicant does not want to continue with their appeal they must sign a withdrawal of appeal form.  Post need to notify the AIT.

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APL1.22 Applicant deported/refused in-country/UK port of entry

Post/commercial partner must clearly date stamp the date of receipt on form AIT-2 and update Proviso.

The ECM must email AIT at: eco.contact.dca.gsi.gov.uk to inform them that an appeal has been made against a port/in-country refusal.

Inform the relevant UKBA department, via the HO referrals mailbox, that an appeal has been made.  Send documents to the department by the HO referrals process or by bag.  You must include the Home Office reference number.

The relevant UKBA department will forward the documents to the Single Tier Processing Team (STPT) to prepare bundle and forward directly to the AIT in time for the hearing.

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The official British Government website for visa services

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