Chapter 27 - Appeals

27.1	How the appeals system works
27.2	Action on receipt of Notice of Appeal - form AIT-2
27.3	Appeal procedures at Post when refusal decided by the Home Office
27.4	ECM Review
27.5	Timescales for Bundle Preparation
27.6	Processing Appeal Documents  [Updated 8 July 2008]
27.7	When the Tribunal asks for more information
27.8	Fresh application while an appeal is outstanding
27.9	If new evidence is produced after despatch of an appeal but before an appeal hearing
27.10	Appeal Determinations
27.11	Action on receipt of an allowed determination
27.12	Multiple determinations [Updated 17 June 2008]
27.13	Refusing those who have had appeals allowed
27.14	Procedure for when the appellant or his/her representative informs the ECO that the appeal has been allowed and provides a copy of the determination
27.15	Recommendations to the Tribunal to the Secretary of State
27.16	Re-application on identical basis
27.17	Residual rights of appeal (Under review)
27.18	What to do if a person states that your decision breached their human rights Appeals on Human Rights grounds
27.19	Appeals on race discrimination grounds
27.20	Appeals on asylum grounds
27.21	Judicial Review

Annexes

27.1	History, legal basis and structure of the Immigration Appeal System
27.2	Out of Time Appeal letter
27.3	Validity of Appeal letter
27.4	Withdrawal of decision letter
27.5	HO referral proforma
27.6	Cases which are mandatory referrals
27.7	Do's and Don'ts of Explanatory statements. An example of an explanatory statement can be found in Annex D of best practice.
27.8	Appeals process charts for: Family visit appeals lodged at Post; Family visit appeals lodged in the UK; Non-settlement appeals lodged at Post; Non-settlement appeals lodged in the UK; Settlement appeals lodged at Post; Settlement appeals lodged in the UK.
27.9	Re-refusal letter (withdrawn - under review)
27.10	Document Examination Report
27.11	Document Verification Report

Chapter 27 - Appeals

27.1 - How the appeals system works
The history, legal basis and structure of the appeals system are described in Annex 27.1 . By virtue of Rule 6(4)(b) of the Asylum and Immigration Tribunal (Procedure) Rules 2005, appeals against refusal of entry clearance can now be lodged directly on the Asylum and Immigration Tribunal or on the Post where entry clearance was refused using notice of appeal form AIT-2.

27.2 - Action on receipt of notice of appeal - form AIT-2
An appeal must be submitted on the notice of appeal form (AIT-2). This should have been issued to the applicant when he or she was handed a refusal notice by an Entry Clearance Officer (ECO), a commercial partner e.g. Gerry's FedEx, or included with the refusal notice posted to the applicant. The appellant, however, should use the copy of the AIT-2 appeal form provided(automatically generated when refusal attracts a full right of appeal, (FRA)); but an AIT-2 can be obtained from the AIT website. It does not matter who completes or sends the form but it must be signed and dated by the appellant or representative (Rule 8(3)). A copy of the notice of decision should accompany the notice of appeal (Rule 8(2)).

27.2.1 - Who deals with the appeal
The appellant can either send the appeal form directly to the Visa Section where the original refusal was made, or they can lodge the appeal directly with the AIT in the UK. If appeals are sent to Post, a hard copy of the acknowledgement of receipt of appeal should be forwarded to the Asylum and Immigration Tribunal (AIT) in the UK by bag. Appellants cannot do both. If Post becomes aware that an appeal has been lodged both at Post and the AIT, then the AIT must be informed of the existence of another appeal. The earliest dated appeal will be taken as the only appeal and the second (later) one should be deemed to be null and void. The grounds of appeal of the second appeal, should be linked to the first appeal and considered: it may contain additional or different reasons from the first appeal.

Appeals sent directly to Post
If the appeal form AIT-2 is sent directly to Post, you must stamp the Notice of Appeal form (AIT–2) clearly with the date of receipt. This must be the date it is received at Post, OR if appeals are received by an outsource agent, then that agent must date stamp the appeal on receipt. This is the date by which all subsequent timings will run from. This will also be the earliest date that will trigger any timelines issues Post wish to raise. (see Preliminary/validity issues in 27.2.4). The notice of appeal and notice of decision should be forwarded directly to the AIT in Loughborough at the address in 27.4 by the next available Bag, or within 10 working days at the latest. Post should also email the AIT with basic details of the appeals received. This should be on a daily basis for larger Posts and at least weekly for all others, using a dedicated spreadsheet prior to sending the AIT-2 and notice of decision as above. When the notice of appeal is received at the AIT, a form, AIT 11, will be issued as an acknowledgement of receipt only.

27.2.2 - Appeals lodged in the UK
If the appellant (or their sponsor or legal representative lodges the appeal directly with the AIT in the UK you need do nothing further until the AIT sends you a Notice of Receipt (AIT 11) together with a copy of the AIT–2 and any supporting documentation. This should also include the reasons for refusal (but may not) confirming that the appeal has been lodged. The hard copy of the Notice of Receipt is deemed to have been received at Post, a maximum of 28 calendar days from the date it is dispatched from the AIT. On receipt you should follow the process as outlined above.

27.2.3 - Processing the appeal
Once an appeal is received and contents of documentation recorded and confirmed, Post must immediately begin the consideration of the appeal by ECM review including review of the grounds of appeal, and, if necessary, preparing an explanatory statement (see Annex 27.7). The documents for the appeal bundle will need to be copied and forwarded to the AIT. The current guideline for completing this process is one month for family visit and non-settlement cases (ie students, work permits, working holiday makers) and 3 months for settlement cases. The procedural rules indicate that an additional 28 days will be added to allow Post to return the bundle to the UK. In practical terms this means that Posts will have 8 and 16 weeks to complete the process. The only exceptions are where Post wish to make allegations of timeliness or validity of an appeal.

Appeals process charts can be found in Annex 27.8

27.2.4 - Preliminary issues of timeliness and validity.
Following the introduction of the provisions for the single tier appeals system on 4 April 2005 all issues of timeliness and validity are judicial decisions. Occasionally, an applicant who has no full right of appeal will nevertheless submit an appeal form. This may happen if you mistakenly notify a full right of appeal where there is only a limited one, or if the applicant obtains an appeal form independently and submits it. Therefore, if an appeal is identified as being lodged out of time i.e. later than 28 days after which that notice has been received by the appellant or you believe that the appeal is invalid, (e.g. no grounds of appeal cited/HRA or RR not mentioned in LRA). You must notify the AIT within 10 days, by e-mailing the Out of Time Letter (Annex 27.2) and/or the Validity of Appeal Letter (Annex 27.3) to eco.contact@dca.gsi.gov.uk. The subject line should include the words 'preliminary issue'.

OR email all the above documents to the AIT dedicated mailbox putting in subject line: Preliminary Issue OOT/Validity. You should track the email exchange and keep a record on file of when it was received and read. You should also keep a record of the fax transmission report indicating it has been received. If no reply is received within 10 working days Post should request the outcome (again email/fax record kept). If any determination arrives on the substantive application, Posts will be in a better position to challenge the determination, as evidence will be available of non-compliance with agreed procedures.

A duty judge at the AIT will determine these allegations. Under the current rules, the Tribunal will notify all parties of the outcome. If the appeal is determined to be ‘in time’ or valid by the duty judge, Post will be informed of the decision by return fax or email Post at their Single Tier Enquiries inbox. This will include the post reference number and details of the applicant. It is at this point that you will be advised to prepare the bundle. The ‘clock’ will start from this point and you will have 8 and 16 weeks to return the bundle from the date of this fax or email.

If the Immigration Judge determines that the allegation is ‘out of time’ or invalid, the AIT will provide written notice (AIT 09) of the decision by fax or email to Post Single Tier Enquiries mail box and no bundle preparation will be required.

27.3 - Appeal procedures at Post when refusal was decided by the Home Office
When Post receive an appeal following a refusal decision by the Home Office, you should follow the initial process outlined in 27.2 and also inform the AIT that the decision to refuse was made by the Home Office and that you are forwarding all the documentation relating to the appeal to the relevant Home Office department i.e. Non Charging Croydon (NCC2/Business Case Unit (BCU) etc.) for them to review and prepare the relevant documents to be forwarded to Single Tier Processing Team (STPT) to prepare bundle and forward directly to the AIT in time for the hearing. At the same time you should also alert the HO via the HO referrals mailbox that an appeal has been made and documents have been sent to them using the HO referrals pro forma. You must include the Home Office reference number.

27.4 - ECM Review
The ECM must review the application in the light of the grounds of appeal in accordance with current guidelines. If the decision is upheld, a copy of the notice of appeal form, Notice of Decision, grounds of appeal, explanatory statement (Annex D) and all relevant supporting documents must be forwarded to the AIT. Original documents are not required unless there is a challenge to the document’s genuineness. In this case, the original must be sent with the appeals bundle and a copy kept at Post. (Section 108 of the 2002 Act refers). The bundle will need to be copied once with a copy of the AIT11 (if received) placed on top of the bundle. This has been bar-coded and will help the AIT to link the papers to their file. All bundles must be sent to the AIT within the timescales mentioned in Paragraph 27.2 Processing the appeal, and no later than the date recorded on the AIT11. Posts must send the photocopied bundle via Hanslope Park, using the keep safe envelopes provided by Hanslope Park and completing the Hanslope Park spreadsheet which has to be e-mailed to the bag room at Hanslope park and the AIT (using the dedicated email addresses) addressing the bags as follows:

For cases where the appeal was sent directly to Post and they received the notice (AIT-2) first, notification of the appeal must be sent to:

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

All appeals bundles (irrespective of where the appeal was lodged) must be sent to:

Tribunal Support Centre – Leicester
Asylum and Immigration Tribunal
PO BOX 6987
Leicester
LE1 6ZX

27.4.1
Following review, if it is agreed that a visa should be issued, the AIT must be notified of the decision to issue. You must send the completed withdrawal of decision letter (Annex 27.4) by email to the AIT dedicated mailbox, headed “withdrawal of notice of decision”. This procedure must also be followed if an ECM overturns a refusal following receipt at Post, of the Notice of Appeal from lodgement at the AIT or after any further representations received following an appeal e.g. MP.

27.5 - Timescales for bundle preparation
A calendar will be e-mailed to all Posts using the individual Posts’ single tier email addresses to assist in calculating the date by which the bundle should be received with the AIT. This calendar shows the dates by which Post should have prepared the bundle and the last date on which it should be received by the AIT in the UK to comply with directions.

27.5.1 - Non receipt of bundle at the AIT
The AIT will continue to list cases in accordance with the timescales agreed and referred to in the above mentioned calendar i.e. after the lapsing of 8 and 16 weeks. A ‘Notice of Hearing’ (AIT 35) will be sent to the Appellant, their Rep/Sponsor and Home Office Presenting Officers Unit (HOPOU); and a filing of documents by respondent (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)

27.6 - Processing appeal documents
Original documents submitted by the appellant must be preserved in the condition in which they were received. If they are received in mutilated condition put them in envelopes. Do not punch holes in them or staple them. Original documents that you are satisfied with, should be returned to the appellant after being photocopied with the Post stamp clearly shown on the photocopy.

27.6.1 - 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”. It is for the appellant, not the visa section, to provide certified translations in support of the appeal [Note: ECO must of course provide translations if using documents not provided by appellant in support of explanatory statement.]

27.6.2 - Section 108 [Updated 8 July 2008]
Section 108 of the 2002 Act allows us (the respondent) to give evidence to the court about false document (counterfeit, forged, fraudulently obtained, genuine documents containing false stamps or visas) 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 section 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 section 108 you should write in bold at the top of the ES “We have sent information using section 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.

27.6.3 - Notify change of address
If, after having dispatched the explanatory statement, an ECO is informed of a change of address of an appellant, appellant’s representative, sponsor or a change of representative, he/she should immediately notify the AIT by email to dedicated AIT mailbox. However, if the appeal bundle has not already been sent, a letter clearly highlighting the change should be included with the statement.

27.6.4 - Document Examination and Verification Forms [Updated 8 July 2008]
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 27.6.2).

27.7 - When the Tribunal asks for more information
The Tribunal will occasionally adjourn an appeal to ask for more information. This will normally be done by issuing a direction which will be handled by the Presenting Officer. If the directions relate to Post the Presenting Officer should contact Post by emailing the dedicated Post mail box for appeal enquiries, or if appropriate by phone. The ECO should provide the Presenting Officer with the information in the form of a supplementary statement. The Tribunal will give a deadline so the request must be given priority, including allowing time for the Presenting Officer to pass on your response.

27.8 - Fresh application while an appeal is outstanding
There is nothing in law to prevent a person who has an appeal pending from making a fresh application for entry clearance in the same or any other category. There is no requirement for a person to withdraw an appeal before allowing a further application to be made. If an appellant is issued a visa to enter the United Kingdom, e.g. following ECM review, then post should follow the procedures as per 27.4.1.

27.8.1 - Issue of entry clearance with appeal outstanding.
If entry clearance is issued following a fresh application in a different category from that previously refused and appealed against under section 9 of the 2006 Act, any outstanding appeal will be not abandoned in entry clearance cases. The appeal will continue until the appellant gives notice to the AIT that he/she does not wish to proceed with the appeal. (The position for EC appeals is now that which existed under the 1971 Act).

27.9 - If new evidence is produced after despatch of an appeal but before an appeal hearing
Evidence received after an appeal bundle has been sent to the AIT but before an appeal is heard, which pre-dates the original refusal and which were not known to the ECO at the time, will be regarded by the Tribunal as relevant to a case. For this reason further evidence of this type should, like Tribunal directions, always be considered as quickly as possible.

The following courses of action are available to the ECO on the production of this type of new evidence:

1. if the evidence warrants the issue of entry clearance, entry clearance should be issued;
2. if the evidence does not warrant a re-interview, the refusal can be maintained.

In all the above cases, you should ensure that the AIT is informed of the new evidence and the outcome of your review by emailing the AIT at their dedicated mailbox.

27.10 - Appeal Determinations
The Tribunal should promulgate its determination within 10 days of the hearing or as soon as practicable. All allowed determinations are sent to Angel Square where the Specialist Appeals Team (SAT) formally Onward Rights of Appeal Team (ORAT), have 5 days in which to decide, after reading the determination, whether or not an error in law has been made.

27.10.1 - Allowed appeal: SAT do not challenge
If SAT do not challenge the allowed determination, they will minute the file and forward this minute and the determination to the POU nearest to the hearing centre where the case was heard. That Presenting Officer's Unit (POU) will scan the allowed determination where possible to Post's single tier enquiries mailbox. (Currently the top 20 Posts.) All other Posts will receive the determination by fax/diplomatic bag.

27.10.2 - Allowed appeal: SAT challenge to decision
If an application is made for a reconsideration of the appeal, the allowed determination should be sent by SAT to the POU nearest to the hearing centre where the case was heard, with a covering letter indicating if the allowed appeal has been challenged by SAT. A copy of the SAT minute (and the grounds of appeal if SAT have challenged the appeal) should be attached to the determination and sent to the Entry Clearance Post. No action is necessary on the ECO's part until Home Office informs the ECO that the appeal is finally determined.

27.10.3 - Dismissed appeal
If the appeal is dismissed, a copy of the determination will be sent by bag. Dismissed determination received and the appellant has not applied for permission to review or that permission has been refused, or that the appeal has been finally determined after a reconsideration hearing or a Court of Appeal judgement, you should link the determination to the applicant's file and put away.

27.11 - Action on receipt of an allowed appeal determination
Where an appeal against a refusal of entry clearance is allowed this does not automatically entitle the appellant to a grant of entry clearance. As entry clearance appeals are considered on the basis of the facts as they were at the time of the original application and not at the date of the appeal hearing, success at appeal means that the ECO was wrong to refuse EC; not that the appellant is now entitled to a grant. Where an appeal against a refusal of entry clearance is allowed the ECO must still consider whether the appellant is entitled to be granted EC before it should be issued. In considering whether to grant EC the ECO should proceed on the basis of any facts found to have been established by the AIT. The following list are the most common cases an ECO may come across:

27.11.1 - Directions given to issue
Allowed determination received, no application for reconsideration and Immigration Judge has directed that entry clearance is issued.

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. The ECO should confirm whether the appellant still wishes to travel and whether there has been any change of circumstances. The entry clearance should be issued unless 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.

27.11.2 - No Directions given
Allowed determination received, no application for review has been lodged with the AIT and Tribunal has not given directions.

The ECO should confirm whether the appellant still wishes to travel and whether there has been any change of circumstances. The entry clearance should be issued unless 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.

Where the ECO has received a copy of the determination from the Home Office, appellants should be dealt with speedily and visas issued as soon as practicably possible.

27.12 - Multiple determinations [Updated 17 June 2008]
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 (see 27.2.1).
However, 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.  However, there are potential hazards which posts must take care to avoid:

1. Hearing and promulgation dates are different.  It is the first determination promulgated 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.

2. 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.

27.13 - Refusing those who have had appeals allowed.
Posts should not seek, as a matter of course, to re-refuse those whose appeals have been allowed. The criteria for re-refusing an entry clearance are restricted to either a significant and material change in circumstances since the refusal decision or a material deception of which the Immigration Judge would not have been aware. An ECM must endorse any re-refusal.

27.13.1 - Directions issued
If an ECO has reason to think 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 and it is no longer appropriate to comply, for example, a sponsor in a settlement case withdrew sponsorship, entry clearance should be issued but immediately revoked (Paragraph 30A of the Immigration Rules). There is no right of appeal against this decision.

27.13.2 - No Directions are issued
The re-refusal notice (Annex 27.9) must be copied to the AIT to link with their file, together with 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. The letter should ask the Tribunal 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.

27.14 - Procedure for when the appellant or his/her representative informs the ECO that the appeal has been allowed and provides a copy of the determination.
Post should first check their scanned determinations inbox. It can take up to 6 weeks from date of promulgation for the determination to be sent to post. ECOs should confirm where the appeal was heard and contact the relevant Presenting Officers Unit by the dedicated mailbox 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. The POU should be asked to confirm details of the outcome of the reconsideration application.

27.15 - Recommendations by the Tribunal to the Secretary of State
The President of the Tribunal has indicated that, since the introduction of the Human Rights Act recommendations (as opposed to a direction - see Paragraph 27.11) when allowing an appeal are no longer appropriate. But there will be occasions when the Tribunal, in dismissing an appeal will recommend that the Secretary of State’s overriding discretion should be exercised in favour of the applicant and the application granted. Recommendations of this kind are extra-statutory and are not binding. (Nevertheless, it is Home Office policy to consider the recommendations where the Tribunal’s written determination reveals clear exceptional circumstances which have not previously been taken into account and which might merit the exercise of discretion outside the Rules).

Because recommendations can only be accepted by exercising discretion outside the Rules, all cases will be decided by the Home Office. Where cases have not previously been considered by the Home Office either as referrals or deferrals, the Home Office will obtain copies of earlier papers from Post's files.

27.15.1 - Accept recommendation
If the Home Office decide to accept the Tribunal's recommendation, they will authorise issue and send to Post (by scanning) a full minute to the ECO explaining why the recommendation should be accepted, advise the ECO what to endorse on the vignette, which should be countersigned by an SEO and sent to Post with the determination by the POU.

27.15.2 - Do not accept recommendation
If the Home Office decide not to accept the recommendation, they will inform Posts by means of a standard letter. (If the Home Office decides that a recommendation should not be acted upon they should minute the file stating their reasons and write to the appellant (or to his/her representatives, if he/she has any) rejecting it. A copy of this letter should be attached to the determination and sent to post who should then retain on their file. Applicants are, of course, free to re-apply.

Such recommendations may sometimes be made in cases where the Tribunal feels that there are sufficiently compelling, compassionate, circumstances which justify a decision being taken outside the Immigration Rules, but there will be other instances where such recommendations will be made on other unusual grounds. It is unlikely that a non-statutory recommendation will be made when an appeal is allowed: the power to make directions should cover anything the Tribunal is likely to wish you to do.

In all such non-statutory recommendations, BIA will inform the Post if and when action needs to be taken, and give instructions on an entry clearance endorsement if issue is agreed.

• If the PO agrees that a recommendation should be followed they should consult and get approval from a SEO. The PO should

27.16 - Re-applications on an identical basis
Legislation sets no limits on the number of applications a person may make and, where defined, each refusal carries a right of appeal. 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 the whole history of the case.

27.17 - Residual rights of appeal
All decisions to refuse an application for entry clearance are appealable. Certain decisions are only appealable on limited or “residual” grounds. These grounds are residual in that, in simple terms, they derive from external legislation. If they did not exist under the 2002 Act, ECOs’ decisions would be appealable to the courts under the Humans Rights Act 1998 and Race Relations Act 1976, respectively. It therefore makes sense to join all appeal rights together for consideration by one expert body.Following service of a decision attracting only a limited ROA, a claim that you have breached human rights is not an appeal – it’s not an appeal until you get an appeal form. Appeal forms are readily available so it is probable that an AIT-2 form will be returned citing that you have breached their human rights. If not, then you must send one, with a copy of the notice of immigration decision and that triggers the period for returning the form. (In practical terms, this means that you must re-serve the notice of decision on a GV51(LRA) and explain the reasons why. The appellant will then have 28 days from the date of service of the GV51(LRA) to return the AIT-2.)

There is no requirement to tell a person with a limited right of appeal how to exercise that appeal. The correct form of refusal simply explains that the appeal right is limited and refers to the section of the 2002 Act which limits it. If the person then says that the decision breached their human rights or racially discriminated against them, you will need to re-serve the decision with the appropriate appeal paperwork and this will trigger the period for appealing.

27.18 - What to do if a person states that your decision breached their human rights
If it is claimed that the decision breached an applicant's or sponsor’s human rights, the first step is for you and your ECM to review the decision. If the statement is made as a formal ground of appeal, you should address it in the explanatory statement. If the decision was appealable and the appeal bundle has already been forwarded to the AIT, the statement should be treated as a further ground of appeal. You should forward the relevant papers to the AIT with a supplementary explanatory statement.

If the right of appeal was only residual, you should respond with a brief letter of reply advising your reaction to the allegation and follow the re-notification procedure at 27.16 above.

If you have any doubts or need further advice about appeals on human rights grounds, contact Policy Section on the ECO Support line.

27.19 - Appeals on race discrimination grounds
Any appeals on grounds of race discrimination, whether limited or full appeals, should be dealt with in the same manner as those on human rights grounds. However, please take note of the information below:

The Race Relations Amendment Act extends the scope of the 1976 Act in relation to public authorities to include amongst others the police and BIA. It does this by inserting new sections 19B to 19F into part III of the 1976 Act. This makes it unlawful for a public authority to discriminate against a person or to victimise a person on the grounds of race, colour, nationality or ethnic or national origin in carrying out any of its functions.

The Nationality, Immigration and Asylum Act 2002 provides that race relations complaints relating to any entry clearance refusals may be brought before the AIT in the same way as appeals lodged on human rights grounds. That is, anyone notified of a right of appeal may raise discrimination as a ground of appeal; anyone not notified of their right of appeal may trigger an appeal by complaining that the decision is racially tainted. The complaint must be related to the immigration decision in order to trigger a right of appeal to the AIT. Where a person complains solely about discriminatory treatment and not about the immigration decision itself, there is no right of appeal to the AIT, but it is open to him/her to take the complaint through the normal departmental complaints channels and to the County Court.

Discrimination on the grounds of race or colour is not permitted except where the activity is justified for the purpose of safeguarding national security.

27.20 - Appeals on asylum grounds
Section 84(1)(g) of the 2002 Act lists removal in breach of the 1951 Refugee Convention as aground of appeal which may be raised in any appeal. This is also one of the standard "residual appeal" grounds. However, by virtue of section 95 of the Act nobody refused entry clearance can appeal on asylum grounds. This restriction was made simply because there is no point in such an appeal: someone refused entry clearance stands no chance of being removed from the UK. An appeal on human rights grounds should be adequate.

In full appeal cases, it is likely that some appellants will cite asylum grounds or that claims will be made, similar to human rights and race discrimination claims above, that the decision breached the 1951 Convention. In this case any explanatory statement should simply refer to section 95. In residual appeal cases you should explain that the limiting provisions of the 2002 Act in conjunction with section 95 mean that appeals can only be made on human rights and race discrimination grounds.

27.21 - Judicial review

What is judicial review?

Judicial review allows people with ‘sufficient interest’ to ask a judge to review:

• an action;
• a failure to act; or
• a decision;

by person carrying out a ‘public function’.

Sufficient Interest
If the person challenging the decision or action can say:

• they are affected by it;
• there is no better person who could challenge; and
• there is substance in the challenge.

Public function
This includes Government Ministers, Government Departments, local authorities and other public bodies and their employees.

When can a claimant use judicial review?
Judicial review can be used where there is a limited right of appeal (i.e. only Human Rights or Race Relations grounds) or where all opportunities to appeal have already been used.

Where claimants have not used other available options a judge may refuse to hear their judicial review case. However, the judge’s decision will depend on the circumstances of the case and the nature of the other options. Where other options exist judicial review may not be the most suitable way of dealing with a problem.

Judicial review does not allow claimants to ask a judge to decide whether a decision was correct. It only allows claimants to put right an illegal, improper or irrational situation. This means that successful cases will not normally result in an award of damages or compensation, the usual outcome of a successful claim would be for the case to be returned to the AIT or the decision maker for reconsideration.

The most common reasons for judicial review are:

• a delay in a determination reaching Post following a successful appeal;
• a re-refusal following a successful appeal.

How can a judicial review claim be successful?
To be successful, claimants must show the court that there has been one or more of the following:

• Illegality – which is where an individual or body acts outside the powers given to it by law.
• Procedural Impropriety – which is when an individual or body does not follow correct procedures or fails to observe the ‘rules of natural justice’. The rules of natural justice have two main elements (i) the 'rule against bias' and (ii) the 'right to a fair hearing'.
• Irrationality – which is when a decision or action is so unreasonable that no sensible person could have reached it.
• Proportionality – where the effect of the decision was disproportionate.

The judicial review claim form must be filed promptly, and at the most within three months after the decision was made or the action taken although it is open to the Court to accept a late claim.

What happens if a claimant is successful?
If the judge allows the claim, they are able to order one or more of the following:

• Mandatory Order – where the Defendant must do something;
• Prohibiting Order – where the Defendant must not do something;
• Quashing Order – where the decision is overturned and must be taken again;
• Injunction – where the judge stops a person from taking a certain step;
• Declaration – where the judge sets out their view of the legality of the situation;
• Damages - these can only be awarded if the applicant had begun an application by writ.

Action for Posts
It is important that Judicial Review cases are dealt with quickly and effectively. It is likely that Posts will be involved directly in the preparatory stages of a judicial review claim. This will usually take the form of a letter sent to Post informing them that an applicant is considering judicial review. This letter is known as a Pre Action Protocol (PAP) or a Letter Before Claim (LBC).

Claims can be dealt with effectively at this stage and Post should consider whether this is appropriate. For more information on dealing with PAPs please see Entry Clearance – Best Practice, 12.5 Judicial Review.