6.2 Process and grounds for appeal to the First-tier Tribunal

An appeal can be made to the First-tier Tribunal (Immigration and Asylum Chamber) if the Home Office has decided to:

• refuse a protection claim (also known as an asylum claim or humanitarian protection)
• revoke a protection status
• refuse a human rights claim
• refuse a residence document or deport an individual under the Immigration (European Economic Area) Regulations 2016
• revoke British citizenship
• refuse or revoke status, vary the length or condition of and individual’s stay, or deport them under the EU Settlement Scheme
• refuse or revoke a travel permit or family permit under the EU Settlement Scheme, or restrict rights to enter or leave the UK under those permits
• refuse or revoke a permit, or deport a frontline worker
• refuse or revoke leave, or deport an S2 healthcare visitor.

If there is no right to appeal, it may be possible to seek an Administrative Review by the Home Office.

Appeals can be made by individuals based either inside and outside the UK. Immigration advisers check processes carefully, because these will differ depending on where in the world an individual is based or located. For any applications made before 6 April 2015, there is a different process.

A paper form process is used if an individual is inside the UK and they:

• have been refused settled or pre-settled status under the EU Settlement Scheme
• are in detention
• have an appeal that is linked to another appeal.

An online system is used for everything else.

Appeals to the Upper Tribunal and courts are possible, but tend to be complex and are not covered by this course.

Representing a client is explored further in Audio 1.

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Transcript: Audio 1 Representing a client.

Edwin Parks

Hello, my name is Edwin Parks. I’m a barrister and senior lecturer at The Open University. I’m here today with Antonia Randall-Brandwood, who is an expert immigration adviser and has deep knowledge of how the OISC system and department works. In Section 5, you looked at the OISC and immigration advisers in general.

So supposing I give immigration advice without any qualification: what is the risk?

Antonia Randall-Brandwood

There are two risks, really. The first risk is that you may end up giving advice which is incorrect to your client, which can put them in a dangerous situation. The second risk is that the OISC will audit your accounts and realise that you’ve been advising outside of your remit – and then they will prosecute, and that can involve a fine. And it can also be a criminal prosecution.

Edwin Parks

Antonia, based on your experience as an adviser, I want you to think of your first initial point of contact with a potential client. What would be the things that are the initial contact?

Antonia Randall-Brandwood

There are several different ways where we might get our first point of contact with a client. Perhaps they would send us an email if they’re already in the UK, and often, in that case, it may be that their leave is about to expire. Or if they’re particularly organised, they’re looking to make that new application within the next couple of months.

Outside the UK – if that client is outside the UK – it could usually be a family member or maybe an employer who’s trying to assist that client in coming to the UK, and they might be the first point of contact we have. They may have overstayed their visa and be in the United Kingdom without any leave. If it’s one of those ones, then they may have a letter from the Home Office saying that they are liable to be removed or that they need to start reporting. Finally, another example is perhaps they’ve entered the UK illegally – they may have entered illegally several years ago – and in that case, they often call you, or they might come into the office to see you.

Edwin Parks

And just so on follow-up on that, is this contact usually face-to-face? Or is it through email? Or – how does it happen?

Antonia Randall-Brandwood

It really depends. I mean, in the current conditions with COVID that we’ve been experiencing, the vast majority of clients are by telephone or perhaps by email, but it did use to be we’d have a lot of drop-ins. I used to run drop-in centres in libraries, or perhaps at the refugee centre, where people could come to check on their advice but normally will be experiencing a telephone conversation.

Edwin Parks

So let’s follow up, Antonia. You have the client either with you, or you’re speaking to the client. What are your initial tasks when you’re seeing the client for the first time?

Antonia Randall-Brandwood

A really important bit, Edwin, is to understand their immigration history. And that’s where they are in that process – when they came to the UK, when they made their first visa application and– understanding when they might need to submit their next visa application.

We can gather as much immigration history from then as possible, asking them when they came to the UK and what visa they were on. But we can also apply to the Home Office for something called a subject access request, which will give us all the information the Home Office hold on them. It’s really important that we can understand their reasons for coming to the UK and their reasons for needing to stay.

Edwin Parks

So I take it that normally, they’ve been refused to stay?

Antonia Randall-Brandwood

Yeah, unfortunately, people are quite often refused. And you can have that application refused when you’re outside the UK, or you can have it refused when you’re in the UK. Unfortunately, the Home Office are quite often looking for reasons to refuse applications. And refusals are quite often unfounded.

Deception is a very common reason for refusing applications – and that doesn’t necessarily mean deception in their application. That can mean deception in any sort of walk of life. So they could be refused an asylum application on the basis that they submitted an incorrect tax return, for example. They can also be refused for failing to put in the correct documentation, or they can be refused for criminality.

Not providing a clear list of documentation can often cause an application to be refused, and as advisers, it’s therefore really important that we advise our clients on what documents they need to put in to support their application.

Edwin Parks

So just follow up on that. Where would you find the information about the reasons or grounds for refusal?

Antonia Randall-Brandwood

It does depend what application you’re making. We find an awful lot of the law that we need in the Immigration Rules. There are two specific places where we found these grounds for refusal. The first one is in Part 9 of the Immigration Rules, and that’s a long list of actions or circumstances that can give rise to a refusal. If you’re looking at a family application or an application for private life, then you’ll be looking under the suitability requirements, which are in a particular appendix of the Immigration Rules, called Appendix FM.

Edwin Parks

Thank you, but I just want to draw back from that. Will the client know why they’ve been refused when they come to you? Or will they just be told they’ve been refused?

Antonia Randall-Brandwood

They have been refused. And they usually explain it in a small amount of detail. They will refer to the particular part of law that they’re being refused for – for example, they’ll say Part 9.42 – and they’ll say they’re being refused on those grounds. But quite often, your client won’t really understand what that is. So they’ll need your help in identifying that area of law and applying the facts to that part.

There will be certain instances where a refusal is well-founded, and there’s not much we can do about it. But we always want to look at that refusal, explain it to the client, speak to them about any documents they might have that could refute that refusal and think about any evidence perhaps we could gather – perhaps country evidence – that would explain away that refusal and allow them to be granted.

You will also find that the Home Office will refuse something that the tribunal, which is the court you can appeal to, will not refuse for. So even if we think we can’t persuade the Home Office, we need to consider whether or not we could persuade the tribunal.

Edwin Parks

Antonia, do you have any top tips for avoiding a refusal?

Antonia Randall-Brandwood

I think one of the key things is to really understand a case and make sure that you ask detailed and relevant questions so you can really understand what your client’s background is. It’s important that you ask them questions relating to both their immigration application but also to some circumstances in their private life. Don’t be embarrassed about asking specific questions.

Try and think like the Home Office. Read the caseworker guidance; each immigration area has a piece of caseworker guidance that’s written for the Home Office approach to that application. Make sure you read that so that you can understand how the Home Office will approach it. Then pre-empt any of the Home Office reasons for refusals. And provide evidence to refute their reason for refusal. Don’t try and ignore it – make sure that you actually put evidence in explaining why you don’t think your client falls for refusal.

And finally, make sure your client tells the truth. It’s pointless to lie on an application – the Home Office will find out, and if they do, it could result in a ten-year ban for deception, which will mean your client won’t be able to make another application.

Edwin Parks

How much does the Home Office charge for an application?

Antonia Randall-Brandwood

Some applications are free – asylum, for example, is free – but the vast majority of applications do have a Home Office fee attached to them. The Home Office fees will increase every year, and they vary depending on the application. For example, a visit visa is quite reasonable at £96, but a spouse visa from outside the United Kingdom is £1523. A skilled worker visa for somebody wanting to come to the UK to work for three years when they’re sponsored by an employer is £610. So they do vary greatly.

Edwin Parks

As an immigration advisor, are you allowed to charge for representing your client?

Antonia Randall-Brandwood

You can charge, Edwin, and some people do offer advice for free. But if you’re registered with the OISC, you need to have a set fee scale. You can charge a set fee for each application: for example, from £600 to maybe £1500 for completing the whole application for your client. You can also offer an hourly consultation charge, and this varies from about £40 to perhaps £100, depending on your expertise, experience and the type of application you’re advising on.

Edwin Parks

Thank you, Antonia. The next question I have is I want to look at the process of making an application, and could you just go through what the process is?

Antonia Randall-Brandwood

The online form contains questions such as their name, date of birth, nationality, when they’ve travelled outside the UK, etc. Once you’ve completed the online application, it’s good practice to get your client to check it for you. Then you need to submit it online and pay the Home Office fee and the immigration health surcharge, if necessary.

Edwin Parks

Could you just explain what an immigration health surcharge is?

Antonia Randall-Brandwood

I can indeed. The immigration health surcharge is a fee that applies to all applications for leave to remain in the United Kingdom where you’re going to be here for more than six months. That’s a set fee that you have to pay, which contributes towards the NHS and then allows people to access the NHS. It can be also useful to give them a pro forma to fill in all the application questions. These questions are such as their name, nationality, and the time they’ve been in and out of the United Kingdom.

Once you have that supporting documentation, and the pro forma, you can then start completing the online application. Once it’s been completed, I would advise that you give it to your client so they can check the details. Once we’ve completed that, you will then need to pay the Home Office fee and the immigration health surcharge online.

Once you’ve submitted those, the application is then deemed as sent to the Home Office. At that point, you will need to upload the supporting documentation electronically and book an appointment to enrol your client’s biometrics – that’s their fingerprints and their photographs.

Edwin Parks

What happens if the application is refused?

Antonia Randall-Brandwood

Once the application has been submitted, you have to wait for this decision from the Home Office, and they’ll either grant it or refuse it. If it is refused, the majority of applications are eligible for either something called Administrative Review, or they might have a right of appeal to the tribunal. There is no such thing available for visit visas. And so in those circumstances, the only option is to make a fresh application.

There are deadlines for submitting an Admin Review or a right of appeal. And they depend on whether they’re in country or out of country, and are either 14 or 28 days. Admin Review is when the Home Office check their own decision internally – so actually, they’re not very often successful. The appeal route to the tribunal is much longer, and it can be more expensive, but you more often do get the application granted at the end.

Edwin Parks

Do you have to request the Admin Review?

Antonia Randall-Brandwood

Yes – it doesn’t happen automatically.

Edwin Parks

Supposing I gave immigration advice without having any qualification at all: what are the risks?

Antonia Randall-Brandwood

Thanks, Edwin. It’s really important to understand when you’re allowed to advise, because as an OISC adviser, you can only advise in the capacity you’re registered to do so. If it is something outside your level – for example, a Level 1 is not allowed to deal with somebody who’s here in the UK as an overstayer and doesn’t have any leave – so what they need to do is then refer it onto a higher-level adviser. To do this, you need to have some people who you can pass it onto, and make sure that you are able to send that client quickly in case they need advice in a time-sensitive way.

Tell your client that you aren’t able to advise them. Don’t be embarrassed – it’s far better to inform them that you don’t have the ability or the registration to advise them and send them on. You can research the area to make sure that you don’t have the capacity to advise in it, but don’t give advice if you’re not sure. It’s far better to say you don’t know than to give your client the wrong advice, risking both your reputation and also their ability to stay in the UK.

Edwin Parks

Thank you, Antonia. I’m sure all those listening would have found that very helpful and interesting.

Antonia Randall-Brandwood

Thank you, Edwin.

End transcript: Audio 1 Representing a client.

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Audio 1 Representing a client.