UK Immigration: First Tier Tribunal and Upper tier tribunal

Table Of Contents:

1. What is the First Tier Tribunal UK
2. Send Notice to the First-tier Tribunal
3. The Notice of Appeal
4. The Tribunal’s Decision to Accept the Notice of Appeal
5. The Tribunal’s Consideration of Decision with or without a Hearing
6. The Tribunal’s Decision
7. What is the Upper Tier Tribunal UK
8. Apply for Permission to Appeal
9. Follow the Application Process
10. Mention Error of Law Grounds
11. Apply to the Upper-Tribunal in Time
12. Upper-tier Tribunal Grants the Permission
13. If You Win or Lose Your Appeal
14. Final Thoughts

The first-tier tribunal and the upper-tier tribunal are two independent courts in the UK. The first-tier tribunal (Immigration and Asylum Chamber) is the first court where you can appeal against the Home Office’s decision to refuse your application for entry clearance, permission to stay, or deportation from the UK. You can appeal yourself or through a representative.

The upper tribunal (Immigration and Asylum Chamber) is a court one level above the first-tier tribunal, where you can seek to appeal the decision of the first-tier tribunal regarding entry clearance, permission to stay, and deportation from the UK.

What is the First Tier Tribunal UK?

First-tier tribunal is an independent body where people can seek to appeal the decisions made by the Home Office related to applications for entry clearance, permission to stay, and deportation from the UK. The tribunal has the power to uphold or overturn the Home Office refusal decision.

You can appeal to the first-tier tribunal only if you have the legal right to it. You will be informed whether you have the right to appeal in the refusal decision letter or email sent to you by the Home Office.

An appellant (the person who has provided a notice of appeal to the Tribunal against the Home Office’s appealable decision) must go through the following steps before receiving a decision from the first-tier tribunal.

1. Send Notice to the First-tier Tribunal

If the person is in the UK, they must send notice of appeal not later than 14 days after they are sent the decision letter from the Home Office against which the appeal is brought.

If the person is outside the UK, their notice of appeal must be received by the tribunal:

• Not more than 28 days after they left the UK if they were in the UK when the UK Visa refusal decision was made, and they may not appeal while in the UK because of a provision of the 2002 Act; or
• In any other case, not more than 28 days after receiving the decision letter or email.

Where a person sends the notice of appeal outside the time limit, they must include the reasons for late submission in the notice of appeal.

2. The Notice of Appeal

The notice of appeal must:

• Identify the statutory grounds on which the appeal is relied upon;
• Appellant or their representative must sign and date their appeal;
• If the appellant’s representative has signed the notice of appeal, the representative must certify in the notice that they have completed it per the appellant’s instructions;

The appellant must send, with the notice of appeal, any further information or documents in support of their appeal.

The First-tier tribunal must send a copy of the notice of appeal and the accompanying information or documents submitted by the appellant to the Home Office.

3. The Tribunal’s Decision to Accept the Notice of Appeal

The tribunal may or may not accept the notice of appeal. If the tribunal does not accept it will notify the person who sent the notice of appeal and the Home Office and take no further action on that notice of appeal.

4. The Tribunal’s Consideration of Decision with or without a Hearing

If a notice of appeal is accepted, the tribunal may attend the case with or without a hearing. A judge of the first-tier tribunal may decide to proceed without a hearing, even if the appellant has requested it.

It is also possible to request the tribunal to make a decision solely on the basis of the information included by the appellant on their appeal form and the documents that they submit to the tribunal.

If the judge allows for an oral hearing, the appellant may attend it in person or remotely through video calling at the time and place of the hearing. During the hearing, the judge will listen to the appellant’s and respondent’s arguments, see the evidence provided by them, and then make their decision. A decision may usually not come in the first hearing itself and may take about 3 to 4 weeks.

5. The Tribunal’s Decision

If appellant’s immigration appeal is successful, either:

• The Home Office may look to appeal the decision of the First-tier Tribunal’s judge to the Upper Tribunal; or
• The Home Office does not appeal, or if either their appeal is not allowed or it is dismissed. In such cases, the Home Office should reverse its decision and issue the appellant with the appropriate immigration status document.

If an immigration appeal is refused by the first-tier tribunal judge, the appellant may be able to appeal the judge’s decision to the Upper Tribunal. You should seek an expert’s advice because a barrister will be able to review the decision and advise you as to whether there are any grounds to appeal to the Upper Tribunal, as well as the merits of any further appeal.

What is the Upper Tier Tribunal UK?

The UK Upper Tier Tribunal (Immigration and Asylum Chamber) is an independent court, one level above the first-tier tribunal. One can appeal the decision of the first-tier tribunal regarding entry clearance to the UK, permission to stay in the UK, and deportation from the UK to the upper-tier tribunal.

Upper-tier tribunal is also a place where you can file for judicial review to challenge the decision of the Home Office in relation to immigration, asylum, and human rights claims.

Appellant (you, the person who has provided a notice of appeal to the Tribunal against the Home Office’s appealable decision) should follow the steps below:

1. Apply for Permission to Appeal

You don’t get an automatic right to appeal to the upper-tier tribunal. You must send a notice of appeal (application for permission to appeal) to the tribunal, and if your notice of appeal is granted, then only your appeal will be heard by the upper tribunal.

2. Follow the Application Process

A notice of appeal to the upper tribunal must be made to the First- tier Tribunal in the first instance. If the notice of appeal is refused by the first-tier tribunal’s judge, then you can make a further application for permission to appeal directly to the upper tribunal.

You must send an application for permission to appeal to the upper tribunal in writing and must explain why you think the first-tier tribunal’s immigration judge made an error of law while dismissing your appeal against the decision of the Home Office.

The upper tribunal’s immigration judge usually decides notice of appeals, without an oral hearing, based on their determination and the appellant’s grounds of appeal in writing.

The appeal permission will only be granted if a judge from the upper tribunal reviewing the first-tier tribunal judge’s decision is satisfied that the immigration judge arguably erred in law while deciding your case.

3. Mention Error of Law Grounds

You may seek permission to appeal to the upper tribunal on the following grounds if the first-tier tribunal’s judge who dismissed your appeal:

• Did not apply the UK Immigration Rules correctly or wrongly interpreted the Immigration Rules;
• Did not consider important evidence;
• Made the decision with insufficient evidence or no evidence;
• Made a decision that is not consistent with a binding decision of a higher court;
• Made a decision that resulted in unfairness due to following an incorrect procedure.

You should seek an expert’s advice to identify the errors made by the first-tier tribunal, as they have the specialist legal knowledge.

4. Apply to the Upper-Tribunal in Time

You first need to send a notice of appeal to the first-tier tribunal. If it refuses you permission to appeal, you may directly apply for permission to appeal to the Upper Tribunal.

If you are in the UK, you will need to apply for permission to appeal to the Upper Tribunal within 14 days of the date of the First-tier Tribunal’s notice of refusal of permission to appeal being sent to you.

If you are outside the UK, you will have 1 month to apply to the Upper Tribunal from the date the First-tier Tribunal sent you the notice of refusal of permission.

If you apply after the permissible permitted, you must explain the reasons for the delay. The upper tribunal will decide whether to allow your application for permission to appeal when submitted after the permissible days.

5. Upper-tier Tribunal Grants the Permission

If the upper-tier tribunal permits you to appeal, your case will normally be listed for an error of law hearing.

Following the hearing, the Upper Tribunal will decide whether there was a material error of law in the First-tier Tribunal’s decision. The upper tribunal may pronounce the decision orally or may reserve it. In either case, it will give a written decision with reasons. Within 28 days of the date on which the upper tribunal heard your appeal, you should receive a decision in writing.

If the upper tribunal rejects your application for permission to appeal, you may be able to apply for a judicial review at the upper tribunal.

You must file the claim form and supporting documents no later than 16 days after the date on which the upper tribunal sent you the notice of its decision.

6. If You Win or Lose Your Appeal

If you win your appeal, the Upper Tribunal will either:

• Overturn the First-tier Tribunal’s decision and make its own decision on your appeal; or
• Remit your case back to the First-tier Tribunal to be heard again.

If the Home Office thinks that the upper-tier tribunal has made a legal mistake in its decision, it may ask for permission to appeal to the Court of Appeal.

If you lose your appeal and your appeal is dismissed by the upper-tier tribunal, you may be able to apply to the upper tribunal for permission to appeal to the Court of Appeal.

Final Thoughts

The First Tier Tribunal and Upper Tier Tribunal are independent bodies where you can appeal an immigration decision. A first-tier tribunal is the place where you apply, provided you have the legal right to it, for permission to appeal the decision of the Home Office refusing your application for entry clearance, permission to stay, and deportation from the UK. If the tribunal allows your appeal, it will attend to your case with or without appeal. If your UK Visa appeal is successful, the judge from the first-tier tribunal either overturns the Home Office’s decision or asks the Home Office to reconsider their decision.

However, if the first-tier tribunal dismisses your appeal and you think that the tribunal has made a legal error while deciding on your appeal, you may be able to apply for permission to appeal to the upper-tier tribunal. If your application for permission to appeal is allowed, a judge from the tribunal will review the decision of the judge of the first-tier tribunal. If it finds a legal error in the first-tier tribunal’s decision, it may either overturn their decision or remit your case back to the first-tier tribunal to be heard again.

You can also seek to apply for a judicial review directly at the Upper Tribunal if you believe that the Home Office decision to refuse, delay, curtail, or revoke your visa is unfair, irrational, unlawful, or breaches human rights.

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