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| Fri, 22/8/2008 | ||
Prevention is better than cure, and most definitely so in the case of visa applications. It is essential that every visa application is planned and checked thoroughly by a person with the necessary expertise and experience in the field of immigration, as a seemingly irrelevant or incorrect detail or omission on a visa application can lead to a visa being turned down. Visa applicants should therefore take the utmost care to ensure they are making use of reputable immigration firms or consultants, in order to prevent the frustration of a visa being turned down, not to mention the time and expense involved in re-applying or filing an appeal.
However, although getting it right first time round is the first prize, all is not lost if your initial application is refused. Although there are risks and costs involved, in most cases an appeal or review of the decision is possible, and in many cases a successful result can be obtained.
If you recently had your Visa application denied or turned down, it is possible to lodge an appeal if you have been;
refused entry clearance;
refused entry to the United Kingdom;
refused an extension of stay;
been deprived of UK citizenship;
received a notice of deportation or;
received a notice of removal.
According to the Nationality, Immigration and Asylum Act 2002, there are a number of rights and grounds upon which appeals can be brought. Some of these grounds, which are set out in s. 84 of the Act, are as follows;
the decision was not in accordance with immigration rules;
the decision is unlawful according to the Race Relations Act 1976;
the decision is unlawful under the Human Rights Act 1998 (HRA) and therefore not in accordance with your rights under the European Convention of Human Rights (ECHR);
the decision breaches your rights as an EEA national or the family member of an EEA national under the Community Treaties;
the decision-maker incorrectly exercised discretion under the Immigration Rules;
or your removal from the UK would breach the UK’s obligation under the Geneva Convention on refugees or be unlawful under s. 6 of the HRA as being incompatible with your Convention Rights.
You will need to contact one of our Visa Advisors here at Breytenbachs as soon as possible, due to time constraints on the Visa appeals process. You will then be further advised on the appeals procedure as well as the various grounds of appeal and which ones best suit your situation.
Once you have been refused leave to enter or remain in the UK, the decision-maker (whether an entry clearance officer, immigration officer or the Secretary of State) will give you a written Notice. This will include a statement of the reasons for the decision. If you are to be removed from the UK, the Notice will also state the country to which you are to be removed and it must also be accompanied or include the following:
a statement advising you of your rights to appeal and the Statutory Provision upon which this right is based;
the time limit for bringing your appeal;
the address to which the appeal needs to be sent;
a fax number for service by fax;
whether there is an exception or limitation to your right of appeal;
and whether further information is required under s. 120.
We will be able to advise you on whether any of the above affects you. You will also need to decide whether you wish your appeal to be decided at an oral or written hearing. Once we have assisted you in completing your appeal forms, they will be sent either to the Asylum and Immigration Tribunal (AIT) or sometimes if you are outside the UK, to the British High Commission or Embassy in your country of application. The AIT is an independent tribunal and therefore it is not affiliated with the Home Office in any way.
If you are within the UK, your appeal should be filed with the AIT within 5 working days of receiving the Notice of Decision if you are in detention and within 10 working days if you are not. If, however, you are outside of the UK, your appeal must be received by the AIT or British High Commission or Embassy within 28 days (including holidays and non-business days) from when you received the Notice of Decision. Due to these time constraints it is strongly suggested that you contact one of our Visa Advisors as soon as you possibly can, as they are experienced in dealing with these deadlines.
Once we have filed your appeal forms and supporting documents, the Entry Clearance Office which decided your case will review its original decision. If the review maintains the original decision, for non-settlement cases, the Entry Clearance Office (if you are outside of the UK) should take up to 8 weeks (11 weeks if lodged with AIT directly) to prepare the necessary documentation for your appeal. If, however, your case is a settlement case it should take up to 16 weeks (19 weeks if lodged with AIT directly) and if it is for a visit visa, then it should take 12 weeks (15 weeks if lodged directly with AIT) to prepare the necessary documentation.
If, following discussions with us, you have opted for an oral hearing, you will receive a copy of the Appeal bundle of the Entry Clearance Office or AIT documentation in advance of the hearing date. Breytenbachs will prepare all the necessary documentation for your hearing during this time, even if you are not within the UK at the time. We will attend the hearing on your behalf. Therefore if you are outside of the UK your appeal will still go ahead.
If you are within the UK, you will need to attend the hearing as main witness. If you have a sponsor, your sponsor can also attend the hearing as a witness in addition to you or in your absence. If you are attending the hearing, you should allow for the whole day, as appeals are not heard in a specific order on the day.
If you have attended an oral hearing, sometimes the Immigration Judge will give his decision at the end of the hearing but usually decisions are reserved and take 2 – 3 weeks to be received in writing. All appeal decisions are given in writing and are effective from date of written determination or promulgation. Where there has been no oral hearing the Judges’ determination will also be received in writing.
In the event that your appeal is not successful, we are also able to
assist you with a further Review of the decision. In the event that
your appeal was allowed, however, the Home Office has the same right
of appeal and Breytenbachs will be able to further advise you on the
best course of action in the situation.
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