Part 5Immigration and Asylum Appeals
F22Appeal to Tribunal
81F29Meaning of “the Tribunal
In this Part “the Tribunal” means the First-tier Tribunal.
C182 Right of appeal: general
C21
Where an immigration decision is made in respect of a person he may appeal F1to the Tribunal .
C32
In this Part “immigration decision” means—
a
refusal of leave to enter the United Kingdom,
b
refusal of entry clearance,
c
refusal of a certificate of entitlement under section 10 of this Act,
d
refusal to vary a person’s leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain,
e
variation of a person’s leave to enter or remain in the United Kingdom if when the variation takes effect the person has no leave to enter or remain,
f
revocation under section 76 of this Act of indefinite leave to enter or remain in the United Kingdom,
g
a decision that a person is to be removed from the United Kingdom by way of directions under F2section 10(1)(a), (b), (ba) or (c) of the Immigration and Asylum Act 1999 (c. 33) (removal of person unlawfully in United Kingdom),
h
a decision that an illegal entrant is to be removed from the United Kingdom by way of directions under paragraphs 8 to 10 of Schedule 2 to the Immigration Act 1971 (c. 77) (control of entry: removal),
F25ha
a decision that a person is to be removed from the United Kingdom by way of directions under section 47 of the Immigration, Asylum and Nationality Act 2006 (removal: persons with statutorily extended leave),
i
a decision that a person is to be removed from the United Kingdom by way of directions given by virtue of paragraph 10A of that Schedule (family),
F3ia
a decision that a person is to be removed from the United Kingdom by way of directions under paragraph 12(2) of Schedule 2 to the Immigration Act 1971 (c. 77) (seamen and aircrews),
F4ib
a decision to make an order under section 2A of that Act (deprivation of right of abode),
j
a decision to make a deportation order under section 5(1) of that Act, and
k
refusal to revoke a deportation order under section 5(2) of that Act.
3
F5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F263A
Subsection (2)(j) does not apply to a decision to make a deportation order which states that it is made in accordance with section 32(5) of the UK Borders Act 2007; but—
a
a decision that section 32(5) applies is an immigration decision for the purposes of this Part, and
b
a reference in this Part to an appeal against an automatic deportation order is a reference to an appeal against a decision of the Secretary of State that section 32(5) applies.
4
The right of appeal under subsection (1) is subject to the exceptions and limitations specified in this Part.
C483 Appeal: asylum claim
1
This section applies where a person has made an asylum claim and—
a
his claim has been rejected by the Secretary of State, but
b
he has been granted leave to enter or remain in the United Kingdom for a period exceeding one year (or for periods exceeding one year in aggregate).
C52
The person may appeal F6to the Tribunal against the rejection of his asylum claim.
83AF23Appeal: variation of limited leave
1
This section applies where—
a
a person has made an asylum claim,
b
he was granted limited leave to enter or remain in the United Kingdom as a refugee within the meaning of the Refugee Convention,
c
a decision is made that he is not a refugee, and
d
following the decision specified in paragraph (c) he has limited leave to enter or remain in the United Kingdom otherwise than as a refugee.
2
The person may appeal to the Tribunal against the decision to curtail or to refuse to extend his limited leave.
C684 Grounds of appeal
C71
An appeal under section 82(1) against an immigration decision must be brought on one or more of the following grounds—
a
that the decision is not in accordance with immigration rules;
b
that the decision is unlawful by virtue of section 19B of the Race Relations Act 1976 (c. 74) (discrimination by public authorities) F7or Article 20A of the Race Relations (Northern Ireland) Order 1997 ;
c
that the decision is unlawful under section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant’s Convention rights;
C8d
that the appellant is an EEA national or a member of the family of an EEA national and the decision breaches the appellant’s rights under the Community Treaties in respect of entry to or residence in the United Kingdom;
e
that the decision is otherwise not in accordance with the law;
f
that the person taking the decision should have exercised differently a discretion conferred by immigration rules;
g
that removal of the appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdom’s obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant’s Convention rights.
C72
In subsection (1)(d) “EEA national” means a national of a State which is a contracting party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 (as it has effect from time to time).
3
An appeal under section 83 must be brought on the grounds that removal of the appellant from the United Kingdom would breach the United Kingdom’s obligations under the Refugee Convention.
F84
An appeal under section 83A must be brought on the grounds that removal of the appellant from the United Kingdom would breach the United Kingdom's obligations under the Refugee Convention.
C985 Matters to be considered
1
An appeal under section 82(1) against a decision shall be treated by F9the Tribunal as including an appeal against any decision in respect of which the appellant has a right of appeal under section 82(1).
2
If an appellant under section 82(1) makes a statement under section 120, F9the Tribunal shall consider any matter raised in the statement which constitutes a ground of appeal of a kind listed in section 84(1) against the decision appealed against.
3
Subsection (2) applies to a statement made under section 120 whether the statement was made before or after the appeal was commenced.
C104
5
But in relation to an appeal under section 82(1) against refusal of entry clearance or refusal of a certificate of entitlement under section 10—
a
subsection (4) shall not apply, and
b
F9the Tribunal may consider only the circumstances appertaining at the time of the decision to refuse.
85AF24Matters to be considered: new evidence: exceptions
1
This section sets out the exceptions mentioned in section 85(5).
2
Exception 1 is that in relation to an appeal under section 82(1) against an immigration decision of a kind specified in section 82(2)(b) or (c) the Tribunal may consider only the circumstances appertaining at the time of the decision.
3
Exception 2 applies to an appeal under section 82(1) if—
a
the appeal is against an immigration decision of a kind specified in section 82(2)(a) or (d),
b
the immigration decision concerned an application of a kind identified in immigration rules as requiring to be considered under a “Points Based System”, and
c
the appeal relies wholly or partly on grounds specified in section 84(1)(a), (e) or (f).
4
Where Exception 2 applies the Tribunal may consider evidence adduced by the appellant only if it—
a
was submitted in support of, and at the time of making, the application to which the immigration decision related,
b
relates to the appeal in so far as it relies on grounds other than those specified in subsection (3)(c),
c
is adduced to prove that a document is genuine or valid, or
d
is adduced in connection with the Secretary of State's reliance on a discretion under immigration rules, or compliance with a requirement of immigration rules, to refuse an application on grounds not related to the acquisition of “points” under the “Points Based System”.
F305
Tribunal Procedure Rules may make provision, for the purposes of subsection (4)(a), about the circumstances in which evidence is to be treated, or not treated, as submitted in support of, and at the time of making, an application.
C1186 Determination of appeal
1
This section applies on an appeal under section 82(1) F13, 83 or 83A.
2
F14The Tribunal must determine—
a
any matter raised as a ground of appeal (whether or not by virtue of section 85(1)), and
b
any matter which section 85 requires F15it to consider.
3
a
a decision against which the appeal is brought or is treated as being brought was not in accordance with the law (including immigration rules), or
b
a discretion exercised in making a decision against which the appeal is brought or is treated as being brought should have been exercised differently.
4
For the purposes of subsection (3) a decision that a person should be removed from the United Kingdom under a provision shall not be regarded as unlawful if it could have been lawfully made by reference to removal under another provision.
5
In so far as subsection (3) does not apply, F14the Tribunal shall dismiss the appeal.
6
Refusal to depart from or to authorise departure from immigration rules is not the exercise of a discretion for the purposes of subsection (3)(b).
C1287 Successful appeal: direction
1
2
A person responsible for making an immigration decision shall act in accordance with any relevant direction under subsection (1).
F273
But a direction under this section shall not have effect while—
a
an application for permission to appeal under section 11 or 13 of the Tribunals, Courts and Enforcement Act 2007 could be made or is awaiting determination,
b
permission to appeal to the Upper Tribunal or a court under either of those sections has been granted and the appeal is awaiting determination, or
c
an appeal has been remitted under section 12 or 14 of that Act and is awaiting determination.
S. 81 and preceding cross-heading substituted (4.4.2005) by virtue of Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (c. 19), ss. 26(1), 48(1)-(3) (with transitional provisions in Sch. 2); S.I. 2005/565, art. 2 (with savings in arts. 3-9)