Factsheet 1 IMMIGRATION APPEALS INCLUDING DEPORTATION The Home Office has refused me permission to stay in the UK.

Can I appeal their decision? May 2013

Winner of the JUSTICE Human Rights Award 2010

Bail for Immigration Detainees is a national charity that works with asylum seekers and migrants to secure their release from detention. BID works with detainees in all removal centres in the UK, and with immigration detainees held in prisons at the end of their sentence. We provide free legal advice, information and support to immigration detainees to help them exercise their right to liberty and access to justice. We prepare and present (free of charge) applications for release on bail or temporary admission We carry out research and use evidence from our legal casework to influence decision-makers, including civil servants, parliamentarians, and regulatory bodies through policy advocacy.

Disclaimer Although every effort is made to ensure the information in this factsheet is accurate and up to date, it should not be treated as a complete and authoritative statement of the law. BID cannot be held liable for any inaccuracies and their consequences. The information in this factsheet is not legal advice. If you have a legal problem you should talk to a lawyer or legal adviser before making a decision about what to do. Please check that this factsheet is up to date before using it. Please also check whether BID has written other factsheets or leaflets that might be relevant to you. All BID factsheets and leaflets can be found at www.biduk.org Copyright BID 2013

The Home Office has refused me permission to stay in the UK. Can I appeal their decision? If a decision has been made to refuse you permission to remain in the UK you may have a right of appeal against that decision, or you may not. The Home Office should tell you if you have a right of appeal against the decision in your case, and if so; how much time you have to submit an appeal to the First-tier Tribunal (FTT) of the Immigration and Asylum Chamber (a kind of court called a tribunal) What does right of appeal mean? It means that you have the legal right to ask for a decision in your case to be changed and to have an independent court consider this. Appealing from the UK or from your country of origin If the decision in your case is the type of decision which allows you a right of appeal, you may be able to make that appeal from the UK. This means that you will not have to leave the UK while the appeal process is going on. But other types of decision in your case will only allow you to appeal from outside the UK, in other words you will have to leave the UK and then make your appeal from your country of origin. When the Home Office give you any refusal decision they should explain to you whether or not you have a right to appeal against that decision from within the UK or whether you must leave the country and make your appeal from outside the UK.

What kinds of Home Office decisions can normally be appealed from the UK? Decisions to refuse an asylum or human rights claim, and decisions to issue a deportation order or to refuse to revoke a deportation order (with certain exceptions) will normally have a right of appeal which can be made from inside the UK. However in some cases the Home Office will do something called certify the case, which means that the right of appeal can only be made from outside the UK. What can I do if the Home Office wont let me appeal the decision? The only way you can challenge a decision by the Home Office to refuse you the right of appeal is for you to make an application to the High Court for permission to apply for something called a judicial review. Judicial review is a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body, for example, the Home Office or UKBA. In other words, judicial reviews are a challenge to the way in which a decision has been made, and ensure that where decisions are made incorrectly that they are remade (e.g. that a right of appeal is given where this was previously denied), It is best if you can obtain legal advice for such an application. It is possible to obtain legal aid for applications before the High Court.

There are time limits for lodging appeals to a judge of the First-tier Tribunal

TIME LIMITS TO LODGE AN APPEAL DEPENDING ON THE TYPE OF CASE & YOUR SITUATION
5 working days where the refusal decision is issued to you while you are detained for immigration reasons; 10 working days if the refusal decision is made while you are still serving a criminal sentence in prison; 10 working days if you are not detained when the refusal decision is made and served on you; Within 28 days of your departure from the UK (for example if you are only allowed to appeal from outside the UK); 2 days if the decision relates to a refusal of an asylum claim that has been considered under the Detained Fast-Track (DFT).

TYPES OF DECISION THAT ATTRACT A RIGHT OF APPEAL

Refusal of an asylum or a human rights claim, together with a decision refusing permission to remain in the UK A decision to issue a deportation order A decision to refuse to revoke (cancel) a deportation order A decision stating that you will be removed from the UK Refusal of permission to enter the UK on arrival Refusal of an application to extend a visa, or if a visa allowing you to remain is cancelled

Other things you need to know: The time limit for you to appeal a decision received in detention starts from the day the decision is given to you. Appeal forms and guidance to help you complete the forms can be obtained online from the Ministry of Justice at this page http://www.justice.gov.uk/forms/hmcts/immigration-and-asylum The IAFT1 appeal form must be faxed to the First-tier Tribunal. If you are being held in prison you can give your completed appeal form to a prison officer and ask them to fax it to the First Tier Tribunal on 0116 249 4232. 5 and 10 working days allowed for an in-country appeal does not include weekends, bank holidays, or 27 31 December. Where you have 28 days to appeal from abroad, the time limit for you to make the appeal will begin from the day of your departure from the UK. If the 28th day falls on a non-business day, then the deadline is moved to the next business day. Where a decision is sent by post within the UK it is assumed to have been received on the second day after it was sent; it is therefore important to obtain proof of posting where possible. You are responsible for making sure that your appeal is received by the Tribunal before the time limit expires. What happens if I do not have time to appeal? You can make an application to the First-tier Tribunal and ask to be granted a right of appeal even if the time limit for your appeal has expired. You will need to:

a. Make sure you appeal as quickly as possible, treat your application as urgent. b. Include a written statement giving the reasons why you were not able to make your appeal to the Tribunal in time c. Make sure you provide any written evidence that might support your written statement d. If possible, include your fully completed appeal form (see below) If you are being held in a prison and you are not given the refusal decision from the Home Office quickly enough by prison officers, you may find you do not have enough time to lodge an appeal against the decision. You will need to write to the First Tier Tribunal explaining that you only received the decision when it was too late to lodge an appeal and ask for a short extension of the time allowed. How do I complete the appeal form? If you look at the IAFT1 appeal form you will see that it includes some guidance on how to complete your appeal form. Here is the link to the guidance produced by the First Tier Tribunal to help you complete your IAFT1 appeal form http://hmctsformfinder.justice.gov.uk/courtfinder/forms/iaft1-guidepre-191211-eng.pdf Some points to remember include: Remember to state on your appeal form if you want your appeal to be decided on the papers (which means the judge will read all the documents without you being present in the court) or if you want to have your case heard in court. It is normally better to have your case heard in court as you will be

able to give evidence and speak to the judge who will be deciding your case. Make sure you respond to all the questions on the form. Make sure you reply to the Home Offices decision in your appeal. You should challenge any points the Home Office makes that you feel are unfair or wrong. You must make sure that you give reasons for appealing when you send your appeal form. You can also add extra grounds of appeal later on after you have lodged your application. Will I have to pay to make an appeal against the decision in my case? Some people may have to pay a fee for their appeal to be heard: 80 for a case to be decided on the papers or 140 for a case to be decided at a court hearing in front of a judge. There is also a fee payable for each family member who may be included in your appeal. You do not have to pay a fee in certain circumstances including where: your appeal is against deportation or removal directions your appeal is against the revocation (cancellation) of your permanent residency status you are an EEA national you have been refused asylum and your case is being dealt with under the Detained Fast Track (DFT) process you are getting Section 95 or Section 98 support your case is being paid for by legal aid How does the appeal work if my case is being decided on the papers

Once your appeal is received by the court, a judge will be given your case and asked to consider your appeal form and the Home Offices decision. The judge will then make a decision about your case and will write to you to tell you what they have decided. How does the appeal work if my case is being heard in court (this is called an Oral Application) Once the First-tier Tribunal receives your appeal form, your case will be listed for hearing in court. It may take about four weeks before your case is heard. In asylum cases there may be a pre-hearing of the appeal case called a Case Management Review (CMR) hearing. At this review a judge decides whether you and the Home Office are ready to proceed with the full hearing a few weeks later. This is often a time when a request can be put to an Immigration Judge to have more time to prepare the case (if you have a good reason). At the hearing in court you will be asked by the judge to explain why you are asking for the Home Office decision to be changed. If you have a legal representative they will be able to do this for you, in which case you will need to prepare to be a witness and to be able to reply to the reasons the Home Office has given to refuse your application. The decision or determination After your appeal has been heard the judge will issue a decision on your case, known as a determination. A determination or decision is normally issued about 10 days after your hearing, but sometimes it takes much longer. Going even higher: making appeals to the Upper Tribunal

If the First Tier Tribunal makes a decision in your appeal case, either you or Home Office has the right to make an appeal against the decision if you or they do not agree with it. Your further appeal will be made to the Upper Tribunal (Immigration & Asylum Chamber), but in order to do this you must first make an application to the First-tier Tribunal. An application to a First-tier Tribunal judge for permission to appeal to the Upper Tribunal against the decision made in your case must be received by the Upper Tier Tribunal not more than 5 days after the decision of the First-tier judge has been received. You will need to complete form IAFT1 First-tier tribunal application for permission to appeal to Upper Tribunal. You can find the form and some guidance on completing the form on the Ministry of Justice website here
http://hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?court_forms_id=2884

You do not have much time to appeal to the Upper Tribunal, so you should try to be prepared in advance. Your application to appeal must: Clearly identify the decision which you are appealing Identify any mistake or errors of law that you think were made by the First Tier Tribunal judge when they heard your case and made their decision Explain clearly what result you are expecting in your case The First-tier Tribunal will then decide if it should reconsider the decision in your case, or whether it will give you permission to appeal to the Upper Tribunal to see if they will change the decision. If the First-tier Tribunal refuses your application to make a further

appeal, there is a right for you to apply for permission to appeal which you can send directly to the Upper Tribunal. The First-tier Tribunal will notify you of the time limit within which such an appeal must be lodged (normally 5 days). But you must apply to the First-tier Tribunal for permission to appeal first, and be refused permission to appeal their decision, before you apply directly to the Upper Tribunal, as described in the paragraph above. Appeals to the Court of Appeal If you get permission to appeal to the Upper Tribunal to overturn the decision in your case but then the Upper Tribunal dismisses your appeal, you can make an application to the Upper Tribunal for permission to make an appeal to the Court of Appeal. Such an application can only be made on grounds that there has been an error of law. This is quite a complicated argument to make, and you should try to get legal advice. But you may not be able to get this legal advice free of charge. The Upper Tribunal will tell you how much time you have to make such an application. If you are refused permission to appeal to the Court of Appeal by the Upper Tribunal, you can make an application for permission to appeal directly to the Court of Appeal. The time limit for such an application is 21 working days after receiving the decision from the Upper Tribunal (Monday to Friday count as working days, excluding any bank holidays or national holidays).

You can find the HM Courts & Tribunals Service Form 202 How to Appeal to the Court of Appeal on the Ministry of Justice website here http://hmctsformfinder.justice.gov.uk/courtfinder/forms/form-202-eng.pdf Form 205 Sources of help for unrepresented Appellants here
http://hmctsformfinder.justice.gov.uk/courtfinder/forms/form-205-eng.pdf

CONTACT BID
enquiries@biduk.org www.biduk.org BID London office Tel: 020 7247 3590 Fax: 020 7426 0335 Monday - Thursday 10-12 For people detained in Harmondsworth, Colnbrook, Yarl's Wood, Tinsley House, Morton Hall, Dungavel, and all immigration detainees in prisons BID Oxford office Tel: 01865 200 357 Fax: 01865 793 009 Tuesday - Friday 10-4 For people detained in Campsfield House, Brook House, Lindholme BID South office Tel: 023 9281 6633 Fax: 023 9282 1529 Monday - Thursday 10-4 For people detained in Dover and Haslar BID Family legal team Tel: 020-7650 0724/5 Fax: Fax: 020 7426 0335 For detained parents with children in the UK who, if released from detention, would live with or have very regular contact with their children. Any IRC or prison.

Bail for Immigration Detainees (BID) is registered in England as a limited company number 3803669. Registered address: 28 Commercial St, London, E1 6LS. Registered charity number 1077187. Exempted by the OISC reference number N200100147