What is the Upper Tribunal?

The Upper Tribunal (Immigration and Asylum Chamber) hears appeals against First-tier Tribunal immigration decisions when the appeal is about a legal mistake, known as an error of law. A party needs permission to appeal. The Upper Tribunal also hears judicial review applications against certain Home Office decisions.

How the Upper Tribunal works

The Upper Tribunal (Immigration and Asylum Chamber) is one of 4 chambers of the Upper Tribunal. It is responsible for handling appeals against decisions made by the First-tier Tribunal (Immigration and Asylum) on visa applications and the right to enter or stay in the UK. It also handles applications for judicial review of certain Home Office decisions.^{[1]HM Courts & Tribunals Service, Upper Tribunal (Immigration and Asylum Chamber)}

GOV.UK says you must be able to make a case for why the First-tier Tribunal decision was legally wrong.^{[2]HM Courts & Tribunals Service, Appeal a decision by the immigration and asylum tribunal: how to appeal} That is what lawyers call an error of law.

Error of law

Section 11 of the Tribunals, Courts and Enforcement Act 2007 gives a party to a case a right to appeal to the Upper Tribunal on any point of law arising from a First-tier Tribunal decision. The right can be exercised only with permission, which can be given by the First-tier Tribunal or by the Upper Tribunal.^{[3]legislation.gov.uk, Tribunals, Courts and Enforcement Act 2007, section 11: Right to appeal to Upper Tribunal}

GOV.UK gives examples of a legal mistake. The tribunal:^{[2]HM Courts & Tribunals Service, Appeal a decision by the immigration and asylum tribunal: how to appeal}

• did not apply the correct law, or wrongly interpreted the law
• did not follow the correct procedures
• had no evidence, or not enough evidence, to support its decision

Section 12 says what the Upper Tribunal does if it finds that the decision involved an error on a point of law. It may, but need not, set the decision aside. If it does set it aside, it must either send the case back to the First-tier Tribunal with directions for reconsideration, or re-make the decision itself.^{[4]legislation.gov.uk, Tribunals, Courts and Enforcement Act 2007, section 12: Proceedings on appeal to Upper Tribunal} GOV.UK describes the same two outcomes: the Upper Tribunal can overrule the decision and make its own judgement, or order the First-tier Tribunal to hear the case again.^{[5]HM Courts & Tribunals Service, Appeal a decision by the immigration and asylum tribunal: the tribunal's decision}

Permission, time limits and what follows

The steps run in order.^{[2]HM Courts & Tribunals Service, Appeal a decision by the immigration and asylum tribunal: how to appeal}

You send copies of the First-tier Tribunal decision, the notice of refusal of permission, a statement of why you think the First-tier Tribunal made a mistake, and other relevant documents. If the application is late, you must explain in writing why, and the tribunal decides whether it can review the application. You can ask for a decision on the papers or at a hearing. There is no fee to appeal to the tribunal.^{[2]HM Courts & Tribunals Service, Appeal a decision by the immigration and asylum tribunal: how to appeal}

The Upper Tribunal will normally give its decision in writing in 28 days. If you lose, you may be able to appeal to a higher court. You must write to the Upper Tribunal to ask for permission first. For a person inside the UK the time is 12 working days if the refusal letter came by post and 10 working days if it came by email or was delivered personally. After permission is given, an appeal to the Court of Appeal in England and Wales must be made within 28 days.^{[5]HM Courts & Tribunals Service, Appeal a decision by the immigration and asylum tribunal: the tribunal's decision}

Judicial review in the Upper Tribunal

The Upper Tribunal also hears judicial review applications in immigration cases. GOV.UK says judicial review is for challenging a decision as unlawful, illegal, irrational or unreasonable. It says not to use it because you believe the decision was wrong. If you believe a decision was wrong rather than unlawful, you should appeal against the visa or immigration decision instead.^{[6]HM Courts & Tribunals Service, Apply for a judicial review in an immigration or asylum case} See judicial review.

Example

Sam is in the UK and loses his appeal at the First-tier Tribunal. The written reasons are dated 5 March. He thinks the tribunal wrongly interpreted the law.

• He has 14 days after the date on the written reasons to ask the First-tier Tribunal for permission to appeal, so the last day is 19 March.
• If permission is refused, he has 14 days after the date on that decision to apply to the Upper Tribunal.
• There is no fee to appeal.

If the Upper Tribunal finds an error of law, it may set the decision aside and either send the case back or re-make the decision. The figures come from the GOV.UK appeal pages and section 12.^{[2]HM Courts & Tribunals Service, Appeal a decision by the immigration and asylum tribunal: how to appeal[4]legislation.gov.uk, Tribunals, Courts and Enforcement Act 2007, section 12: Proceedings on appeal to Upper Tribunal}

What people get wrong

An appeal to the Upper Tribunal is not a request to hear the evidence again. The appeal must be about a point of law, and you must be able to make a case that the First-tier Tribunal decision was legally wrong.

Both points are set out by GOV.UK and in section 11.^{[2]HM Courts & Tribunals Service, Appeal a decision by the immigration and asylum tribunal: how to appeal[3]legislation.gov.uk, Tribunals, Courts and Enforcement Act 2007, section 11: Right to appeal to Upper Tribunal} A finding of an error of law does not decide the outcome. Section 12 says the Upper Tribunal may, but need not, set the decision aside, and if it does it can send the case back or re-make the decision.^{[4]legislation.gov.uk, Tribunals, Courts and Enforcement Act 2007, section 12: Proceedings on appeal to Upper Tribunal} The deadlines are also short, and there are two separate permission stages.

The bottom line

The Upper Tribunal hears appeals from the First-tier Tribunal when there is an error of law. You need permission, you ask the First-tier Tribunal first, and the time limits are 14 days inside the UK and 28 days outside it at that stage. Finding an error does not settle the outcome. A solicitor can say whether a First-tier Tribunal decision contains an error of law that is worth challenging.