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Wednesday, 17 June 2009

Appealing a Refusal of Indefinite Leave to Remain in UK

If an application for indefinite leave to remain in the UK is refused by the UK Border Agency a written notice will be sent to the unsuccessful applicant. This written notice will:

* Explain the UK Border Agency’s decision; and,
* Inform the applicant whether or not they have the right to appeal.

If the applicant does have a right of appeal, the written notice will give information about the appeal process that the unsuccessful applicant may follow. If there is a right of appeal the applicant will also be sent the form which they should use if they decide to appeal the decision.

Not all unsuccessful immigration applicants will have the automatic right to appeal the decision.

The Asylum and Immigration Tribunal
Appeals against decisions by the UK Border Agency on immigration applications are made to the Asylum and Immigration Tribunal. The Tribunal also hears appeals against decisions made by overseas consular staff on visa applications made abroad. The Asylum and Immigration Tribunal is appointed by the Lord Chancellor and is independent of any government bodies. Appeals may be heard by one or more judges, who may sometimes hear an appeal together with non-legally qualified members of the Tribunal.

The Asylum and Immigration Tribunal conducts hearings at a number of centres throughout the UK. Appellants may be legally represented and the UK Border Agency will be represented by a lawyer. In some cases, after an appeal, either side may be entitled to request a reconsideration of the Tribunal’s decision.

If an unsuccessful applicant decides to get legal advice about whether to appeal a decision by the UK Border Agency they should ensure that the lawyer they consult is regulated by the Office of the Immigration Services Commissioner (OISC). The OISC website has a list of all regulated lawyers, who will be able to provide appropriate advice about the appeals process. All lawyers regulated by the OISC will display their logo.

Appealing a Decision by the UK Border Agency
All appeals must be made within the time limits set out for appeals. If an appeal is sent to the Asylum and Immigration Tribunal after the time limit has expired the Tribunal may refuse to consider it.

Appellants may appeal on any of the grounds available to them. If applicable, applicants may always appeal on the basis of racial discrimination or a breach of their human rights. Other grounds for appeal may be that the UK Border Agency made a decision that contravenes the immigration rules or the law. If a decision involved the discretion of an immigration official an appeal may be brought on the grounds that they exercised that discretion incorrectly.

An unsuccessful applicant with a claim to refugee status may have the right to appeal if the UK Border Agency decides to deport them.

Applications Where There May be No Right of Appeal
Unsuccessful applicants will have no right of appeal if:

* Despite the UK Border Agency’s decision they still have the right to remain in the UK; or,
* The application for indefinite leave to remain was made after the applicant’s permission to be in the UK had already expired.

Applications with Limited Rights of Appeal
Some unsuccessful applications will only have limited rights of appeal. There are a number of reasons why an applicant might not have full rights of appeal. Applicants may have limited rights of appeal if, for example:

* They did not satisfy any of the criteria for an application for indefinite leave to remain; or,
* They do not possess all of the necessary immigration documents to support their application.

Extracted from
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