ECO Guidance Notes on Appeals

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Chapter 27 - Appeals

27.1 - How the appeals system works
The history, legal basis and structure of the appeals system are described in Annex 27.1 . By virtue of Rule 6(4)(b) of the Asylum and Immigration Tribunal (Procedure) Rules 2005, appeals against refusal of entry clearance can now be lodged directly on the Asylum and Immigration Tribunal or on the Post where entry clearance was refused using notice of appeal form AIT-2.

27.2 - Action on receipt of notice of appeal - form AIT-2
An appeal must be submitted on the notice of appeal form (AIT-2). This should have been issued to the applicant when he or she was handed a refusal notice by an Entry Clearance Officer (ECO), a commercial partner e.g. Gerry's FedEx, or included with the refusal notice posted to the applicant. The appellant, however, should use the copy of the AIT-2 appeal form provided(automatically generated when refusal attracts a full right of appeal, (FRA)); but an AIT-2 can be obtained from the AIT website. It does not matter who completes or sends the form but it must be signed and dated by the appellant or representative (Rule 8(3)). A copy of the notice of decision should accompany the notice of appeal (Rule 8(2)).

27.2.1 - Who deals with the appeal
The appellant can either send the appeal form directly to the Visa Section where the original refusal was made, or they can lodge the appeal directly with the AIT in the UK. If appeals are sent to Post, a hard copy of the acknowledgement of receipt of appeal should be forwarded to the Asylum and Immigration Tribunal (AIT) in the UK by bag. Appellants cannot do both. If Post becomes aware that an appeal has been lodged both at Post and the AIT, then the AIT must be informed of the existence of another appeal. The earliest dated appeal will be taken as the only appeal and the second (later) one should be deemed to be null and void. The grounds of appeal of the second appeal, should be linked to the first appeal and considered: it may contain additional or different reasons from the first appeal.

Appeals sent directly to Post
If the appeal form AIT-2 is sent directly to Post, you must stamp the Notice of Appeal form (AIT–2) clearly with the date of receipt. This must be the date it is received at Post, OR if appeals are received by an outsource agent, then that agent must date stamp the appeal on receipt. This is the date by which all subsequent timings will run from. This will also be the earliest date that will trigger any timelines issues Post wish to raise. (see Preliminary/validity issues in 27.2.4). The notice of appeal and notice of decision should be forwarded directly to the AIT in Loughborough at the address in 27.4 by the next available Bag, or within 10 working days at the latest. Post should also email the AIT with basic details of the appeals received. This should be on a daily basis for larger Posts and at least weekly for all others, using a dedicated spreadsheet prior to sending the AIT-2 and notice of decision as above. When the notice of appeal is received at the AIT, a form, AIT 11, will be issued as an acknowledgement of receipt only.

27.2.2 - Appeals lodged in the UK
If the appellant (or their sponsor or legal representative lodges the appeal directly with the AIT in the UK you need do nothing further until the AIT sends you a Notice of Receipt (AIT 11) together with a copy of the AIT–2 and any supporting documentation. This should also include the reasons for refusal (but may not) confirming that the appeal has been lodged. The hard copy of the Notice of Receipt is deemed to have been received at Post, a maximum of 28 calendar days from the date it is dispatched from the AIT. On receipt you should follow the process as outlined above.

27.2.3 - Processing the appeal
Once an appeal is received and contents of documentation recorded and confirmed, Post must immediately begin the consideration of the appeal by ECM review including review of the grounds of appeal, and, if necessary, preparing an explanatory statement (see Annex 27.7). The documents for the appeal bundle will need to be copied and forwarded to the AIT. The current guideline for completing this process is one month for family visit and non-settlement cases (ie students, work permits, working holiday makers) and 3 months for settlement cases. The procedural rules indicate that an additional 28 days will be added to allow Post to return the bundle to the UK. In practical terms this means that Posts will have 8 and 16 weeks to complete the process. The only exceptions are where Post wish to make allegations of timeliness or validity of an appeal.

Appeals process charts can be found in Annex 27.8

27.2.4 - Preliminary issues of timeliness and validity.
Following the introduction of the provisions for the single tier appeals system on 4 April 2005 all issues of timeliness and validity are judicial decisions. Occasionally, an applicant who has no full right of appeal will nevertheless submit an appeal form. This may happen if you mistakenly notify a full right of appeal where there is only a limited one, or if the applicant obtains an appeal form independently and submits it. Therefore, if an appeal is identified as being lodged out of time i.e. later than 28 days after which that notice has been received by the appellant or you believe that the appeal is invalid, (e.g. no grounds of appeal cited/HRA or RR not mentioned in LRA). You must notify the AIT within 10 days, by e-mailing the Out of Time Letter (Annex 27.2) and/or the Validity of Appeal Letter (Annex 27.3) to eco.contact@dca.gsi.gov.uk. The subject line should include the words 'preliminary issue'.

OR email all the above documents to the AIT dedicated mailbox putting in subject line: Preliminary Issue OOT/Validity. You should track the email exchange and keep a record on file of when it was received and read. You should also keep a record of the fax transmission report indicating it has been received. If no reply is received within 10 working days Post should request the outcome (again email/fax record kept). If any determination arrives on the substantive application, Posts will be in a better position to challenge the determination, as evidence will be available of non-compliance with agreed procedures.

A duty judge at the AIT will determine these allegations. Under the current rules, the Tribunal will notify all parties of the outcome. If the appeal is determined to be ‘in time’ or valid by the duty judge, Post will be informed of the decision by return fax or email Post at their Single Tier Enquiries inbox. This will include the post reference number and details of the applicant. It is at this point that you will be advised to prepare the bundle. The ‘clock’ will start from this point and you will have 8 and 16 weeks to return the bundle from the date of this fax or email.

If the Immigration Judge determines that the allegation is ‘out of time’ or invalid, the AIT will provide written notice (AIT 09) of the decision by fax or email to Post Single Tier Enquiries mail box and no bundle preparation will be required.

27.3 - Appeal procedures at Post when refusal was decided by the Home Office
When Post receive an appeal following a refusal decision by the Home Office, you should follow the initial process outlined in 27.2 and also inform the AIT that the decision to refuse was made by the Home Office and that you are forwarding all the documentation relating to the appeal to the relevant Home Office department i.e. Non Charging Croydon (NCC2/Business Case Unit (BCU) etc.) for them to review and prepare the relevant documents to be forwarded to Single Tier Processing Team (STPT) to prepare bundle and forward directly to the AIT in time for the hearing. At the same time you should also alert the HO via the HO referrals mailbox that an appeal has been made and documents have been sent to them using the HO referrals pro forma. You must include the Home Office reference number.

27.4 - ECM Review
The ECM must review the application in the light of the grounds of appeal in accordance with current guidelines. If the decision is upheld, a copy of the notice of appeal form, Notice of Decision, grounds of appeal, explanatory statement (Annex D) and all relevant supporting documents must be forwarded to the AIT. Original documents are not required unless there is a challenge to the document’s genuineness. In this case, the original must be sent with the appeals bundle and a copy kept at Post. (Section 108 of the 2002 Act refers). The bundle will need to be copied once with a copy of the AIT11 (if received) placed on top of the bundle. This has been bar-coded and will help the AIT to link the papers to their file. All bundles must be sent to the AIT within the timescales mentioned in Paragraph 27.2 Processing the appeal, and no later than the date recorded on the AIT11. Posts must send the photocopied bundle via Hanslope Park, using the keep safe envelopes provided by Hanslope Park and completing the Hanslope Park spreadsheet which has to be e-mailed to the bag room at Hanslope park and the AIT (using the dedicated email addresses) addressing the bags as follows:

For cases where the appeal was sent directly to Post and they received the notice (AIT-2) first, notification of the appeal must be sent to:

Tribunal Support Centre - Loughborough
Asylum and Immigration Tribunal
PO Box 7866
Loughborough
LE11 2XZ.

All appeals bundles (irrespective of where the appeal was lodged) must be sent to:

Tribunal Support Centre – Leicester
Asylum and Immigration Tribunal
PO BOX 6987
Leicester
LE1 6ZX

27.4.1
Following review, if it is agreed that a visa should be issued, the AIT must be notified of the decision to issue. You must send the completed withdrawal of decision letter (Annex 27.4) by email to the AIT dedicated mailbox, headed “withdrawal of notice of decisionâ€

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