Most Home Office decisions can be challenged in some way. The type of legal challenge to be raised in each case will depend on the type of application that was made.
An appeal is a legal challenge to the merits of a Home Office decision. This involves asking a specialist court, known as the First Tier Tribunal (Immigration and Asylum Chamber), to consider the evidence and law in your case to determine whether the Home Office has made the correct decision in law and in fact. The case will be heard by an Immigration Judge with knowledge of UK immigration and asylum law.
Not all Home Office decisions come with a right of appeal. You can usually appeal a decision from the Home Office in the following circumstances:
In some cases, the Home Office may determine an application as clearly unfounded, indicating that it lacks legal or factual basis and is bound to fail. In such instances, the application may be certified as clearly unfounded, resulting in the removal of the usual right of appeal. However, it may still be possible to challenge the certification through a judicial review.
A successful appeal results in an Immigration Judge granting the appellant permission to enter or remain in the UK, either as originally requested or through an alternative type of leave proposed during the appeal.
If an appeal is refused, there is the option to raise a further appeal to the Upper Tribunal to argue that the First Tier Tribunal (Immigration and Asylum Chamber) made legal errors.
A judicial review is different from an appeal as it does not assess the merits of an application and is generally not focused on whether the decision was right. Instead, it challenges whether proper process and procedures were followed. It is commonly used to challenge Home Office decisions in immigration and asylum cases, and in some cases, decisions of a higher court or tribunal. Judicial review is a recourse when no other Home Office appeal options exist.
Examples of decisions amenable to judicial review include cases where:
If a judicial review application succeeds, the original decision is not replaced, but the Home Office (or Upper Tribunal) will be asked to remake the decision using proper procedures. This means they may reach the same outcome, but with the appropriate process and consideration of all relevant information.
For removal cases, a judicial review can result in an injunction (or interim order in Scotland) preventing removal for a specific period.
If a judicial review fails, it means the judge deemed the Home Office decision to be proper. In some cases, judicial review decisions can be appealed to a higher court.
Administrative review asks the Home Office to consider whether an eligible immigration decision was made incorrectly due to a case working error. Examples include applying the wrong immigration rule, applying the immigration rules incorrectly, or failing to consider all relevant evidence or failing to apply published guidance.
Various visa decisions are eligible for administrative review, such as visitor visas (without human rights issues), student visas, skilled worker visas, and Hong Kong British National (Overseas) applications.
If a case working error is identified, it will be corrected. This may result in overturning the original decision or solely rectifying the error without a change to the substance of the decision. Highly individual and tailored legal representations are essential for a successful administrative review.
If an administrative review fails, the original refusal stands. The decision may then be challenged through judicial review.
Appeals and challenges are highly individual depending on the circumstances so the length of time this can take will vary. There are strict time limits to lodge an appeal or challenge after receiving a refusal decision, so it is important to seek legal advice as soon as possible.
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