Immigration Appeal - Is It a Legal Right?

08 May 2017

The answer to this question is generally No. By and large, Government and Parliament can decide which kinds of immigration application have the right of appeal in the event of refusal and which did not.

Some readers may remember that in 2013 the right of appeal was substantially removed for visitor visa applicants. And a change such as this does not require primary legislation (ie an Act of Parliament); it can be carried out fairly easily with secondary legislation, which tends to be a much less rigorous parliamentary process.

It is nonetheless important to understand that, when the right of appeal is removed, it does not entirely remove the possibility of redress for an unsuccessful visa applicant. There is always the right to Judicial Review, but Judicial Review (or "JR" as it is affectionately known in the trade) is a rather different kind of animal from an appeal.

For one thing, it is a much "narrower" process than an appeal. At an appeal hearing, before an Immigration Judge at the First-Tier Immigration Tribunal, witnesses can give evidence and the Judge can examine the application and the decision from scratch, take whatever into account they deem to relevant to the case and, if appropriate, overturn the decision and substitute their own decision.

But in JR the process is different. First of all a Judge must decide whether the case has arguable merits and whether it should be allowed to proceed. And, if it does proceed, the question before the Judge is a narrow one: was the decision unlawful or otherwise wrong or unfair? And if it is deemed to be so, the likely remedy is that the Judge will "quash" the decision (ie cancel it) and require to decision-maker to re-take the decision on a lawful or fair basis - in which situation it is possible that the decision-maker will reach the same decision but in a different way.

So it is fair to say that an appeal process is more thorough and much better than a JR process from the point of view of an unsuccessful applicant.

It is not only unsuccessful visitors who have lost the right of appeal. Over the last few years a large number of other immigration categories have also lost it, and we reached a situation where - roughly speaking - only applicants in family categories, human rights/asylum categories and European categories had the right of appeal. Working visa categories had no rights of appeal.

And then, because of a decision in a case called "Sala" at the Upper Immigration Tribunal (the senor tier of the tribunal system), unmarried partners and other extended family members of EEA nationals found that they would not have any right of appeal either if their application under European law was refused.

So far so bad. But then, in a recent decision in the High Court called "Akturk", it was decided that it was unlawful for the Home Office to have removed the right of appeal for unsuccessful applicants in the Ankara Agreement businessperson category. There were, admittedly, special circumstances operating in this case: the Ankara Agreement has a "standstill clause", which operates to stop national governments from introducing new restrictions to applicants in this category.

But it was nonetheless a famous victory, because whereas unsuccessful applicants in this category had hitherto only had recourse to Administrative Review (an appeal-lite exercise carried out by UK Visas & Immigration officials), now they have access to the full appeal process.

And in another, separate, development at the Upper Immigration Tribunal the migrant, who was relying on European law, argued that an arising point of law concerning unmarried partners needed to be dealt with by the Court of Justice of the European (the "supreme court" for European law). This question was one that might impinge on the decision in the "Sala" case - which many lawyers believe was incorrectly decided.

The Upper Tribunal accepted the argument, and such an application is being made to the Court of Justice, which will eventually make a binding decision on the issue, which might (or might not) differ from the Upper Tribunal’s view.

It would be wrong to say that there is now a trend towards restoring lost appeal rights: these few cases depend on very specific or unique facts. But at least it does show that - for as long as the UK is in the EU at any rate - there is in some cases some scope for argument on the subject.

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