APL02 - Appeal procedures for post

This is internal guidance for use by entry clearance staff on the handling of appeals lodged outside the United Kingdom (UK). It is a live document under constant review and is for information only.

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APL2.1 Process for notifying POU

The Tribunal should send the determination to POU within 10 days of the hearing.

All allowed determinations are sent to POU, Angel Square and to the appellant / reps.

Specialist Appeals Team (SAT) at Angel Square have 5 days to decide, whether or not an error in law has been made and if they are going to challenge.

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APL2.2 Allowed appeal: SAT do not challenge

SAT minute the file and forward with the determination to the relevant POU.

Presenting Officer's Unit (POU) will either email the allowed determination to Post's single tier enquiries mailbox or send to Post by bag. 

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APL2.3 Allowed appeal: SAT challenge the decision

SAT sends the determination to relevant POU with covering letter.

A copy of the SAT minute and grounds should be attached to the determination and sent to the Entry Clearance Post.

The ECO does not need to take action until he has been informed that the appeal is finally determined.

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APL2.4 Appeal dismissed

If the appeal is dismissed, a copy of the determination will be sent to post by bag. Dismissed determinations should be linked to the applicant's file and details entered onto proviso. The appellant can apply for reconsideration of their appeal up to 28 days after promulgation (the date the determination was signed by the IJ). If reconsideration is refused by a Court of Appeal hearing, the file is closed. Post should expect to receive the determination 4 to 6 weeks after promulgation. Proviso should be updated as soon as the determination is received.

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APL2.5 Appeal allowed - no Directions given

Post receives an allowed determination and Tribunal has not given directions.  SAT has not applied to court for the case to be reviewed.

Entry clearance appeals are considered on the basis of the facts at the time of the original application not at the date of the appeal hearing. An allowed appeal means that the IJ has ruled that the ECO was wrong to refuse entry clearance not that the applicant is entitled to entry clearance.

If the applicant still wants to travel, the ECO should normally issue entry clearance within 8 weeks of receiving the determination unless:

  • there has been a significant and material change in circumstances since the refusal decision of which the IAC would be unaware; or
  • there has been a material deception which has come to light of which the Immigration Judge would not have been aware; or
  • the results of checks that instigated prior to refusing applicant came back after the appeal was heard.

If the above circumstances apply, Post should first consider challenging the determination (see APL2.6 below).

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APL2.6 Challenging a determination

If the circumstances in APL2.5 apply, the ECO should refer the case to the ECM. If the ECM considers that an error has been made in law and the challenge has a realistic chance of success, they should email the Specialist Appeals Team copying the email to UKBAIG Entry Clearance Appeals Team. The following should be included with the email:

  • the Determination;
  • any SAT minute(s);
  • the original refusal notice;
  • a covering e-mail - which must be sent by an ECM only - stating concisely why you believe the IJ's decision to be outside the law and asking SAT to request a reconsideration.

The request to challenge should be sent within 5 days of the decision being promulgated, otherwise the challenge will be deemed to be out of time. Posts can send such requests after more than 5 days, but should be aware that the IAC very seldom grant Out of Time requests for reconsideration.

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APL2.7 Re-refusing an application where appeal allowed but no directions given

An ECO should normally act in accordance with a determination unless the circumstances in APL2.5 apply.

Before re-refusing an applicant, Post must first ask the UKBA Specialist Appeals Team (SAT) to challenge the decision (see APL2.6 above). If the SAT challenge the decision, the ECO must take no action until UKBA inform them of the final appeal determination.

An ECM must endorse any re-refusal. The refusal notice must make it clear why the ECO was not prepared to issue the entry clearance in light of the determination. All new reasons for refusal must be factual and be supported by relevant documentation / evidence.

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APL2.8 Appeal allowed - Directions given to issue

Post receives an allowed determination and the Immigration Judge has directed that entry clearance is issued. SAT has not challenged the decision (see APL2.6 above).

There is a statutory duty under Section 87(2) of the 2002 Act for the ECO to comply with directions, unless the determination is subject to further appeal.

An ECO has no power to re-refuse an application if an immigration judge has 'directed issue' of entry clearance. The ECO must issue the entry clearance if the applicant still wants to travel unless the circumstances have changed such that the visa no longer applies.

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APL2.9 Appellant or representative receives allowed determination before Post

It can take up to six weeks from the date of promulgation for the determination to be received at Post. 

Determinations should only be requested from the POU responsible for the appeal if an applicant makes contact with Post and 6 weeks have passed since the appeal was allowed. Applicants / representatives / sponsors will usually provide a copy of the allowed determination which will detail a) the appeal number b) date of promulgation and c) hearing centre. Post should use this information to request a determination from the relevant POU. The POU will forward the determination and SAT minute to Post or make arrangements to obtain a copy if unavailable. Direct determination requests to the IAC should not be made.

If the POU confirms that an application has been made for reconsideration, the applicant should be told that a visa will not be issued until the re-consideration is resolved. Post should ask the POU to advise them of the outcome of the reconsideration application.

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APL2.10 Multiple Determinations

In a very small number of cases, an appeal against a single decision to refuse entry clearance can be heard more than once by the Tribunal at first hearing stage. This can happen when an appeal has been recorded as having more that one reference number on the IAC system (ARIA), but is only recorded once on Proviso. This results in Post receiving two sets of notices to provide appeals papers for the same case. When this happens, Post should alert the IAC immediately so that the IAC can link both appeals and ensure that there is only one hearing. Occasionally, an appeal is heard by two different Immigration Judges who reach different conclusions. When this happens, Post should act on the determination that relates to the appeal promulgated first, that is, the date the determination was signed by the Immigration Judge. However, there are potential hazards which Posts must take care to avoid:

  • hearing and promulgation dates are different. It is the first determination promulgated, that is, the date the determination was signed by the Immigration Judge, that is key, regardless of whether that appeal was the first or second to be heard. This is because once an appeal had been determined there is then nothing for a second judge to determine.
  • When reviewing what may be a determination from a second hearing of the same appeal, posts must read it carefully to ensure that it is not the determination from a reconsideration hearing or a correction of the first determination. A reconsideration determination will invariably refer specifically to the first hearing / determination. A correcting determination will usually be clearly marked as such. A further test is whether the two determinations have separate IAC reference numbers or if they share the same IAC reference number. When a case has been reconsidered by a higher tribunal or court, it is the determination of the highest court that posts must act on.

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APL2.11 Tribunal's recommendation to the Secretary of State

The President of the Tribunal has indicated that, since the introduction of the Human Rights Act, recommendations when allowing an appeal are no longer appropriate. However, the Tribunal may recommend that the Secretary of State's overriding discretion should be exercised in favour of the appellant and the application granted. The Tribunal may recommend issue when there are, for example, compelling, compassionate or exceptional circumstances which justify a decision being taken outside the Immigration Rules. But the Tribunal's recommendation can cover anything although it is unlikely that such a recommendation will be made when an appeal is allowed. Although recommendations of this kind are not statutory and are not binding, it is UKBA policy to consider these recommendations. Post must refer these cases to RCU using the HOreferrals procedure because a decision will have to be made outside of the immigration rules. Post need to enclose a copy of papers to UKBA headquarters.

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APL2.12 UKBA headquarters accepts Tribunal's recommendation

RCU will email decision to Post, giving reasons for decision and the category of visa endorsement.

The decision needs to be approved at SEO level, and the minute of the decision will be countersigned by an SEO and sent to Post with the determination.

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APL2.13 UKBA do not accept Tribunal's recommendation

They will:

  • inform Post by standard letter;
  • minute the file stating their reasons and write to the appellant and to his / her representatives, rejecting it; and
  • send a copy of this letter with the determination to post who should then retain on their file.

Applicants can re-apply for a visa.

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APL2.14 Re-applications on an identical basis

Legislation does not sets a limit on the number of applications a person may make. An applicant will have a full or limited right of appeal against each refusal. 

In the case of a repeat application, which was subject to an earlier appeal, if the current application is to be refused, relevant papers may be annexed to the new explanatory statement. There is no need to repeat information given in an earlier appeal.

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APL2.15 Appeal allowed - contacting the appellant

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APL2.15.1 What is the timeframe?

Once Post is notified of an allowed appeal, a visa should be issued within 8 weeks from the date of receipt at Post. To issue a visa the appellant will be contacted to resubmit their passport. On the very rare occasions, as specified in ECG (APL 2.5 - 2.8), when an ECO decides not to issue a visa after an allowed determination, any re-refusal and / or revocation should be completed within the same timeframe of 8 weeks.

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APL2.15.2 Keeping a record of events

Once a determination is received at Post, Proviso must be updated immediately. All attempt(s) to make contact with the appellant must also be recorded on Proviso, clearly stating the date and contact address used. This is important in order to be able to demonstrate that reasonable attempt(s) were made to contact the appellant using contact information provided by the appellant.

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APL2.15.3 How to make contact

  • a single e-mail to the appellant's last known e-mail address. (If such an e-mail 'bounces back' or undeliverable report received, post should record this on Proviso and then send a paper letter); or
  • a single letter to the appellant's last known postal address (in countries where the postal system is reliable); or
  • a letter to the appellant's last known postal address - with a bring up for 6 weeks for a reminder letter if nothing heard from the appellant (in countries where the postal system is considered less reliable).

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APL2.15.4 What if the appellant fails to respond to contact attempts?

If an appeal is allowed and the appellant fails to respond to the ECO's email or letter(s), there is no further action by the ECO. The appeal remains allowed - it does not cease to be allowed - but no visa is issued. The file must be stamped with 'Do not destroy' and Proviso updated.

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APL2.15.5 What if an appellant eventually makes contact?

If an appellant subsequently makes contact with the visa section the ECO should process the appeal as normal however, particular attention to be given to the applicant's current circumstances. An appeal does not cease to be allowed because the appellant did not respond to the ECOs request to submit his passport and / or other documents.

Unless there is an obvious change in the appellant's circumstances (see APL2.5), an ECO should act within the spirit of the determination and issue appellant entry clearance. If there has been a significant delay since the appeal was allowed it is reasonable for the ECO to request up to date evidence relevant to the original category applied for, for example, evidence of circumstances and / or funding (see APL2.5). The ECO should also be satisfied that the applicant still wishes to enter the UK in the category they originally applied for. If the applicant wishes to enter the UK in a different category they should be advised to make a new application.

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APL2.16 Appeal allowed only on HRA grounds

When notification is received that an appeal has been allowed only on Human Rights grounds Posts must refer the application to the Referred Casework Unit (RCU). This is a mandatory requirement.

If an appeal has been allowed under both the Immigration Rules and on HRA grounds Posts are not required to refer to RCU to consider authorising issue. If appropriate to do so, Posts may issue locally. Referral to RCU is only required when the appeal has been allowed solely on HRA grounds.

Posts must send RCU the following documentation:

  • the Immigration Judge's determination;
  • the SAT minute detailing that the decision has been challenged / not challenged;
  • evidence of sponsor's leave in the UK including their HO Reference number.

RCU may request further documents if required in order to reach a decision.  RCU will consider the application in light of the determination and authorise issue outside the Rules if appropriate. Once a referral has been made Posts cannot make any decision on the application and must wait until they get a response. Posts must follow the new referral procedures detailed in the Referral/Deferrals instructions available on the ECO toolkit.

On 9 July 2012 Article 8 of the ECHR was brought into the Immigration Rules, therefore any appeals allowed on Article 8 post 9 July can be considered and acted upon by ECOs without referral to RCU.

Please see Immigration Directorate Instructions (IDIs) Chapter 8 - Appendix FM (Family Members)/Annex FM 1.0 - Family Guidance (Section 9 - Article 8 claims raised at appeal). Appeal cases allowed under Article 8 prior to 9 July should still be referred to RCU.

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APL2.17 Appeal Allowed - Administrative Error made by the IAC or Immigration Judge

Rule 60(1A) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 enables IAC to review and, if appropriate, set aside a decision, on the ground that it was wrongly made as a result of an administrative error on the part of the Tribunal or its staff. 

In order to make an application an ECM must write to the Specialist Appeals Team detailing why he feels this appeal should be set aside. Rule 60 (1A) should only be used for procedural errors (not errors in law) made by the Immigration Judge or the IAC. The most common incidents of 'procedural errors' are:

  • The applicant lodged an appeal with the IAC but they failed to a) forward the necessary documents to Post and b) notify Post that an appeal has been lodged.
  • An Immigration Judge makes an administrative error within his determination, that is, a typographical error - for example, allowed an appeal when the body of the determination indicates that the appeal should have been dismissed.

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APL2.18 Appeal Allowed - Appellant previously held EC and refused entry to the UK at port.

Where appellants have previously held entry clearance visas but their leave was cancelled  at a UK port by an Immigration Officer, ECOs need to follow the following process in implementing the outcome of the appeal.

If the appellant held a long term visa (i.e. more than 6 months) and the category still exists then the appellant should if they still meet the criteria  and there is no material change in circumstances be issued a visa for the remainder of their leave. If the previously held visa has expired , the ECO should establish whether there is a continuing need for them to come back to the UK. If there is, leave should be granted for an appropriate time period.

If the appellant held a valid entry clearance visa as a visitor but refused LTE by an Immigration Officer at port, post should issue the remainder of the time left if it is a 2, 5 or 10 year visit visa. If it is a 6 months visa that has not been used then a new 6 month visa should be issued.

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APL2.19 Appeal Allowed - Appellant administratively removed from the UK

Where the appellant was removed but successfully exercised their out of country ROA. The applicant should be issued with leave in the appropriate category, If however the appellant does not come under any existing visa category then they should be issued  with a single entry visa for a limited period to enable the appellant to enter the UK and liaise with the relevant in-country team to have the leave granted or re-instated.

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APL2.20 Appeal Allowed - Appellant refused LTR and has left the UK.

Appellants who are refused Leave to Remain will have an in-country right of appeal where this is a refusal to vary leave. However, if they exercise their appeal rights in the UK but leave the UK before the appeal is concluded then the appeal is considered abandoned. If the appellant chooses to leave the UK and then submit an appeal  then it is valid. In these circumstances the appellant should be issued with a single entry visa to enable them to get back to the UK and liaise with the relevant casework section for their grant of LTR.

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APL2.21 Appeal Allowed - Previous EC route no longer exists.

If the appellant held a visa in a category that no longer exists, post should establish whether any transitional arrangements were made when the route was closed. If there are no transitional arrangements then appellants will need to apply and pay for a new visa. They must meet the relevant requirements of the Immigration Rules.

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APL2.22 Appeal Allowed - Tier 4 (General) Students

If a Tier 4 Student who held a valid entry clearance visa but their leave was cancelled by an Immigration Officer upon initial entry or as a returning student has subsequently won their appeal, the following process should be followed:

  • If the appeal was allowed after the start of the intended course of study, checks should be made to see if the CAS is still valid. If the CAS has expired they must obtain a new CAS.
  • If the CAS is still valid and the course has already started, confirmation from the educational institution should be sought that appellant will still be accommodated on the same course.
  • Where the appellant is part way through a course i.e. completed 1 year of a 3 year course and had left the UK for whatever  reason but refused entry upon return, their visa should be re-instated.
  • Where due to delays the appellant's course of study has ended or the previous held visa has expired and cannot be re-instated, the appellant should submit a new application supported by a CAS and evidence of funds to cover maintenance and accommodation.

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APL2.23 Appeal Allowed - Appeal remitted to the respondent (Immigration Officer/Caseworker)

Where the appeal has been allowed to the extent that it has been remitted back to the Respondent and the port/casework section that refused the original LTE/LTR should review their decision to refuse taking into account the determination. Post should not take these cases forward but direct appellants back to the port/casework section. If the port/casework section still considers the decision to refuse LTE/LTR is the right decision they should re-issue the decision direct to the appellant and/or their representatives. If the port decides that upon review they want to withdraw their decision they should do so in writing to the appellant and their representatives, notifying post of the same.

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APL2.24 Fees

In all cases where the appeal has been allowed new applications, reconsiderations or re-instatement of visas should be processed as gratis.

Further information and advice can be obtained from UKBAIG entry clearance appeals team.

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