NCADC Campaigning Toolkit
This section of the Toolkit focuses on appealing asylum and human rights applications in the First-tier Tribunal (Immigration and Asylum Chamber). The tribunal is the court where the appeal hearing takes place. Not all immigration applications have a right of appeal – speak to a legal advisor if your non-asylum/human rights application is refused to find out what your options are.
With all applications, your options will depend on the individual case and it is very important to seek legal advice. This is a general guide to the structure of the legal system after a refusal, and advice on how to prepare if your case reaches this stage.
If your asylum applications is ‘certified’, this means you do not have the right to appeal within the UK. If this happens, you should seek legal advice on whether you can seek a judicial review of the certification. If your asylum application is not certified, you have the right to appeal. You should receive information on how to do this with the reasons for refusal letter (see below).
From the ROW handbook, page 57:
For people who are not detained, the appeal form must reach the Tribunal within 10 working days of service of the decision on you. In law this means that you count 2 days from the date the decision was posted to you, and 10 days from then, counting Monday–Fridays only.
Example:
If the UKBA posted the decision on Monday 12 March 2012, the law allows the Tribunal to assume you received it 2 days later, on Wednesday 14 March. Ten working days from that date is Wednesday 28 March. If you did not receive the decision 2 days after the date it was posted, you can make a legal argument that your 10 working days should be counted from the day you actually received it. You would have to send a copy of the envelope the decision arrived in, and your note of the date you received it. If your legal representative received it at the proper time, you cannot make this legal argument.
For detained cases, see page 59 of the ROW handbook. You should not be issued with removal directions/a deportation order until appeal rights are exhausted. Get legal advice, and legal support (see ‘Understanding Your Legal Case’). Think about who could come with you to the hearing, as a witness or as moral support (see ‘Community Campaigning’).
The ROW handbook has a useful chapter on asylum appeals (pages 56-69) and advises:
The envelope from the UKBA containing the Reasons for Refusal Letter (RFRL) should also include:
If you already have a legal representative the decision will be sent to them as well as to you. If you do not have a legal representative, you are strongly advised to get legal advice on what it means and how to appeal as soon as you receive the decision. The Tribunal will not, unless it is an exceptional case, accept an appeal submitted late, or adjourn (put back) the hearing, just because you have not found legal representation in time.
If you cannot get legal representation, for example if you are not entitled to legal aid, you can submit (send in) your own appeal and represent yourself.
If you are submitting an appeal application yourself, see pages 56–63 of the ROW handbook and the Tribunal website
For information on the Case Management Review Hearing (not all cases have these, they may be conducted over the telephone, and if you have a legal representative you do not have to attend), see pages 62–63 of the ROW handbook.
From the ROW handbook:
If you do not attend your appeal hearing it may go ahead without you. If you are seriously ill, you must contact your legal representative and the Tribunal as soon as possible. The telephone number is on the Notice of Hearing. If you are too ill to go, you must go to a doctor and get a medical note. The Tribunal will insist on written evidence that you were too ill to attend, before they agree to fix your appeal for another day.
Your appeal hearing will take place at a Tribunal or Court Centre with many hearing rooms. You should arrive at least 30 minutes early, and make sure your witnesses arrive 30 minutes early to give yourselves time to go through security and reception, find the room where your appeal will be heard, and meet each other and your legal representative. You may be there all day. Usually the Tribunal arranges several appeals at the same time in the same hearing room, and outside each room there will be a Tribunal officer called an usher who will have a list of appellants whose cases will be heard in that room. The usher will check your name on the list, and will check if you, your legal representative and any witnesses have all arrived. The Immigration Judge for your hearing room will first of all hear any cases of people who are in detention, and then start hearing other cases. If you have children, or if you or any of your witnesses are sick or disabled, your case may be heard earlier in the list.
For many people, attending an appeal hearing can be a difficult and anxious experience. Your legal representative, if you have one, will be able to tell you how to prepare for the hearing. You should ask advice about anything that you are not sure about, or do not understand, before or during the hearing, from your legal representative.
See pages 64–69 of the ROW handbook for information on the seating arrangements in court, the order of speaking, and important things to remember.
Tribunal hearings are public – anyone can come in and listen to your case. However, if you would find it upsetting and difficult to reveal details of your case in public, if you think a public hearing could put you at danger because of security concerns, or you think your case may raise controversial issues which you do not want to be discussed in public, you can ask the Immigration Judge to hear your evidence in private, under rule 54(3)(b) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.
You may be able to obtain some assistance from organisations such as law clinics, which help people without a lawyer to prepare their cases for court. What assistance they are able to provide varies, but can include helping you prepare a witness statement and put together evidence for your case.
Law clinics may also be able to send someone (usually a volunteer) to assist you at court. A person supporting you at court in this way is known as a ‘McKenzie friend’. They are not legally representing you. Instead, the volunteer performs the role of giving you quiet assistance in presenting your case. They cannot answer questions for you but can assist you in making notes of what happens at the hearing, and in some cases can make submissions to the court.
A McKenzie friend in Leeds suggests:
One thing people find really helpful is to ask for a break before they make submissions [their arguments and evidence in support of their case]. This is so the McKenzie friend and the appellant can read back through the notes of the Home Office submissions and anything that came up in cross examination. You can use that break to plan what the appellant will say in submissions too. Most judges are happy to grant a few minutes break before appellant submissions.
