Appeals
Right of Appeal:
From 2nd October 2000 people who are refused a visa to visit
close relatives will have the right of appeal. A close relative
is defined as: spouse, father, mother, son, daughter, grandfather,
grandmother, grandson, granddaughter, brother, sister, uncle,
aunt, niece, nephew or first cousin; the father, mother, brother
or sister of your spouse; the spouse of their son or daughter;
your stepfather, stepmother, stepson, stepdaughter, stepbrother
or stepsister; or a person with whom you lived as a member
of an unmarried couple for at least two of the three years
before the day on which you applied for your visa.
Right of appeal if application is refused:
If applicant’s entry clearance application is refused
the Visa Officer will inform the applicant if he/she has a
right of appeal. Applicant will be handed a refusal notice
telling why application has been refused and an appeal form
to complete if applicant wants to exercise the right of appeal.
Where applicant want to appeal the complete appeal forms should
be returned to same British post within 28 days of refusal
notice being served.
Introduction:
A system of immigration appeals was introduced by the Immigration
Appeals Act 1969. The statutory basis for immigration appeals
is now contained in IA 1971, Part II and it has amended by
various other acts.
IA 1971 provides a two-tier system of appeals.
- Adjudicator: where a right of appeal is available, the
appeal will initially, in vast majority cases, be heard
by an adjudicator sitting alone. Adjudicators are not required
to be legally qualified, but in practice usually are.
- Immigration Appeal Tribunal: If the decision of the adjudicator
is adverse, a further appeal can be brought, with leave
to the Immigration Appeal Tribunal by either party. The
tribunal normally consists of three persons, of whom at
least one must be barrister or solicitor of at least seven
year’s standing. Adjudicators and Tribunal members
are appointed by the Lord Chancellor.
Procedure in immigration appeals:
An appeal must be lodged by sending a notice in writing to
the decision-maker. So in case of an appeal against refusal
of entry clearance, notice of appeal will be sent to the ECO
(visa officer), and an appeal against refusal of leave to
enter, to an immigration officer. A form is normally supplied
which can be used to give the notice of appeal. These forms
require certain specified details. These are the appellants
name, address, date of birth and nationality, details of the
decision appealed against and grounds of appeal.
The appeal hearing: Appeals can be decided
solely on the case papers, without a hearing, where, for example,
neither side requests a hearing. In most case there will be
a formal hearing of the appeal. Hearings are normally open
to the public. The parties (Home Office & Representatives)
must be given an opportunity to adduce evidence, to call witnesses,
to examine and cross-examine witnesses and to make representations
to the appellate authority. The result of an appeal is only
rarely announced at the conclusion of the hearing. The decision
will normally be sent through the post often some weeks later
(average time 4 weeks).
Expected Time: From our experience the
average time period of cases in appeal is between 6 to 8 months
for all sort appeal. But in family visitor the average time
is around 3 months as these appeals are dealt with much fast
procedure.
Procedure after hearing of an appeal: After
hearing of an appeal adjudicator normally reserve their decision
and they inform us about the decision by post. If the appeal
is allowed (successful) then ESI would inform the BHC about
the determination and would wait for their call for entry
clearance to be issued.
If appeal is disallowed (un successful) then ESI would critically
study the determination and if our advisors believe that there
is arguable point of law and the chances of success are more
than 50 % then ESI would apply for leave to appeal to the
Tribunal. If there are as such no arguable point of law to
be raised and if the success chance is less than 50 % ESI
would not apply for leave to appeal to Tribunal.
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