There are confusions on what decision generates a right to appeal against the decision. Rights of appeal exist against the following decisions:
- Refusal of a human rights or protection claim and revocation of protection status. These appeal rights are in Part 5 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act).
- Refusal of entry clearance and refusal to vary leave to remain, in some situations, where the application was made before the Immigration Act 2014 was in force.
- Refusal to issue an EEA family permit as well as certain other EEA decisions. These appeal rights are in Regulation 26 of the Immigration (European Economic Area) Regulations 2006.
- Deprivation of citizenship. Section 40A of the British Nationality Act 1981 applies.
Where there is no right of appeal, it may be possible for a person to apply for an administrative review of a refusal of an application if it is an eligible decision and it is alleged that a case working error has occurred. These concepts are defined in Appendix AR of the Immigration Rules and the guidance on Administrative Review.
The appeals system contains a number of controls to prevent abuse of the system. In particular there are mechanisms to prevent repeat representations giving rise to repeat appeals, late claims giving rise to late appeals that delay removal and deportation, and unfounded claims giving rise to an appeal that delays removal.
Unless certified as a national security case under section 97 and 97A (when the right to appeal is to the Special Immigration Appeals Commission), appeals are made in the first instance to the First-tier Tribunal (FtT) which can allow the appeal or dismiss it. The grounds on which an appeal can be brought are set out in section 84 and in summary provide that the appeal can only consider the refusal of the claim made.
Section 85 sets out the matters the Tribunal can consider on. The Tribunal can only consider a ’new matter’, which has not been considered by the Secretary of State (SSHD), if the SSHD has given the Tribunal consent to do so. A new matter should not be raised before the Tribunal unless the SSHD has had a chance to consider the new matter.
Section 92 sets out where an appeal will take place. It should be read together with sections 94 and 94B which relate to certification when an appeal that would otherwise take place in the UK must be lodged after the appellant has left the UK.
Section 96 provides that where the refusal of a claim would ordinarily result in a right of appeal, there will be no right of appeal if the claim should have been made earlier. Section 96 works together with section 120 which imposes an ongoing duty on individuals to raise new matters with the SSHD as soon as reasonably practicable after they arise.
