Challenging the Home Office decision
There are several ways of challenging the Home Office’s decision depending on whether the decision attracts a right of appeal and on your own individual circumstances. If the decision does not grant you a right of appeal, then you may consider alternatives such as administrative review and judicial review.
You might be able to appeal to the First-Tier or Upper Tribunal (Immigration and Asylum Chamber) against the Home Office decision. Your application can be made either in-country or out-of-country with a right for your appeal to be determined either on the papers, at an oral hearing or at a substantive hearing before an Immigration Judge.
You must first be able to make a case for why the decision was legally wrong, for example, the Home Office failed to apply the correct law or wrongly interpreted the law, they failed to follow the correct procedures or they had no evidence or insufficient evidence to support its decision.
There are strict timeframes within which an appeal must be made to the relevant Tribunal, within 14 days if you are in-country or within 28 days if you are out-of-country. All the evidence you are relying on in your immigration matter will need to be lodged at the court including statements from any witnesses wishing to give evidence in support of your matter.
Once your hearing has taken place, you will normally receive a decision in the post within 4 weeks.
If you win the appeal, the Home Office will follow the decision of the Tribunal and revise its decision or if they believe that there is an error of law, they may appeal against the decision of the Tribunal.
If your appeal is unsuccessful, you may be able to appeal to the Upper Tribunal and thereafter to the higher courts, if there is an onward right of appeal.
2. Administrative Review
Administrative review is the process under which you can ask for the decision on your visa application to be reviewed in the event it was refused or if you are unhappy with the amount of leave you have been granted or with the conditions imposed on your leave.
The application for administrative review must be made online within 14 days (in-country) or 28 days (out-of-country). This will allow the decision to be reviewed by a different immigration officer to ascertain if any error has been made. You cannot submit any documents or evidence with your application unless the Home Office requests you to do so.
If your application for administrative review is refused for the same reasons as in the original refusal letter, then you are not allowed to submit another administrative review. Otherwise, if your application for administrative review is refused but for different or additional reasons, you will have the right to submit another administrative review without a fee.
If the administrative review reveals an error in the original decision, that decision will need to be withdrawn and a new decision will be made. Otherwise, the Home Office may find some errors in the reasons for decision but decide that it was correct in law and hence maintain the decision. Alternatively, the Home Office may find that the original decision has no errors and therefore maintain the original decision in its entirety.
3. Judicial Review
Judicial review is a process by which the Administrative Court or the Upper Tribunal reviews the lawfulness of a decision made by a public body (in the immigration context this is the Secretary of State for the Home Department, i.e. the Home Office). A judge will consider whether the Home Office has acted in accordance with its legal obligations and if not, declare that the decision is unlawful. Judicial review can only be relied on when there is no existing right of appeal or your administrative review application was refused.
Initially, a letter needs to be sent to the Home Office asking for the decision to be reviewed. This is called a pre-action protocol (PAP) letter and the Home Office will normally need to respond within 14 days. If the Home Office maintains its decision, then you are able to submit an application to the appropriate court (normally the Upper Tribunal) for permission to judicial review with your grounds and supporting documents. This should be done within 3 months from the date of the refusal letter.
A judge will consider the application for permission including the Home Office’s position and will notify both parties of the decision by means of a court order.
If your application for permission is refused, you may renew your application by requesting an oral hearing, which both parties will have to attend, and where a judge will decide whether to grant permission. If permission is refused, you may renew the application to the Court of Appeal.
On the other hand, if the judge grants permission, then the case will proceed to a full substantive hearing which both parties will have to attend and where a Judge will decide whether the Home Office decision is lawful.
If your application is successful, the Home Office will revise its original decision or they may appeal against the decision, if they believe it contains an error of law. If the application is refused, you may be able to appeal to the Court of Appeal.
Making an application
Appeals, administrative reviews and judicial reviews are lengthy, highly complex and expensive in nature. At Axiom Stone, we can advise you carefully on the grounds to challenge the decision of the Home Office, prepare your case and guide you step by step through the process.
We work closely with our clients’ needs and objectives and achieve results in an efficient and timely manner, aiming to continue the relationship once we have met your requirements and beyond.
To challenge the Home Office decision or to make an enquiry, please contact us on 0207 016 9341 or by e-mail to firstname.lastname@example.org to speak to our dedicated team of immigration professionals.