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What to do if your immigration appeal is lost?

Whilst it may not be something you wish to consider, there is a possibility that your appeal could be lost at the First-Tier (Immigration and Asylum Chamber) Tribunal. This blog looks at the process of what happens if you lose your appeal at the First-Tier Tribunal. It also looks at what happens if you win your appeal at the First-Tier Tribunal, but the Home Office appeals the decision.

The first stage is to apply for permission to appeal to the First-Tier Tribunal. If that is refused, then you will need to attempt to obtain permission from the Upper Tier.

Applications to the First-Tier Tribunal for permission to appeal to the Upper Tier

Rule 33:

  • “If in the UK, the deadline is 14 days from the date the party was provided with* the judgment (33(2))
  • If outside the UK, the deadline is 28 days from the date the party was provided with* the judgment (33(3))”

* “provided with” has now been clarified as meaning “sent”, not “received” (as per paragraph 4 of the Tribunal Procedure (Amendment) Rules 2018, and paragraph 9 of the Joint Presidential Guidance 2019 No 1)

What happens if your application is late?

Rule 33(7):

“If an application for a written statement of reasons has been, or is, refused because the application was received out of time, the Tribunal must only admit the application for permission if the Tribunal considers that it is in the interests of justice to do so”.

In R (on the application of Onowu) v First-tier Tribunal (Immigration and Asylum Chamber) (extension of time for appealing: principles) IJR [2016] UKUPPER TRIBUNAL 185 (IAC), the UPPER TRIBUNAL confirmed that the approach for both the FIRST-TIER TRIBUNAL and the UPPER TRIBUNAL in deciding whether to extend time in a permission to appeal application is covered by Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537, [2014] 1 WLR 795, Denton v White [2014] EWCA Civ 906, and R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633

A three-stage approach

  • Identifying and assessing the seriousness or significance of the failure to comply with the time limit
  • Considering whether there was good reason for the delay
  • Evaluation of all circumstances of the case, in the pursuance of justice. Here, the grounds will only be relevant if very strong or very weak.

At the permission stage, the First-Tier Tribunal and Upper Tribunal are only concerned with whether an error of law is “arguable”. It is only after the permission stage that the error must be fully “made out”.

What constitutes an error of law?

See R (Iran) & Ors v Secretary of State for the Home Department [2005] EWCA Civ 982

  • Making perverse or irrational findings on a matter or matters that were material to the outcome (“material matters”);
  • Failing to give reasons or any adequate reasons for findings on material matters;
  • Failing to take into account and/or resolve conflicts of fact or opinion on material matters;
  • Giving weight to immaterial matters;
  • Failure to follow country guidance;
  • Making a material misdirection of law on any material matter;
  • Committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of the proceedings;
  • Making a mistake as to a material fact which could be established by objective and uncontentious evidence, where the appellant and/or his advisers were not responsible for the mistake, and where unfairness resulted from the fact that a mistake was made.

What is not an error of law?

Main examples are summarised in the Joint Presidential Guidance 2019 No 1, at paragraph 36

  • A complaint against an assessment of facts that a judge was entitled to make will not normally be an error of law
  • Submission of further evidence post-judgment to contradict a finding will not usually raise an error of law, unless the new evidence demonstrates unfairness or that the decision was entirely based on a false factual hypothesis (see E & R [2004] EWCA Civ 49)
  • An error of law on an area entirely irrelevant to the substance of the decision is unlikely to amount to an error of law for the purposes of permission, unless it is of wider significance to immigration and asylum appeals
  • An argument against a point of law will not usually raise an error of law where the law in question was clear, stable and binding. However, where the point is of wider public significance, the Upper Tribunal can either grant permission, or certify the point as being of wider public significance, so that the matter can proceed to the Supreme Court

Either side can apply for permission to appeal the decision of the First-Tier Tribunal. The process is the same regardless of whether it is the Appellant or Respondent that is making the application.

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