Grounds for appeal to the Immigration and Asylum Chamber

Under s 82 of the Nationality, Immigration and Asylum Act 2002 (NIAA 2002), you have a right to appeal to the First-tier Tribunal (Immigration and Asylum Chamber) if the Home Office has:

  • refused you leave to enter the UK;
  • refused you entry clearance;
  • refused to issue you with a certificate of entitlement under s 10 of NIAA 2002;
  • refused to vary your leave to enter or remain in the UK if the result of the refusal is that you have no leave to enter or remain;
  • varied your leave to enter or remain in the UK if when the variation takes effect you have no leave to enter or remain;
  • revoked under s 76 of NIAA 2002 your indefinite leave to enter or remain in the UK;
  • unlawfully removed you from the UK;
  • deprived you of your right of abode;
  • made a deportation order under s 5(1) of the Immigration Act 1971 or refused to revoke a deportation order under s 5(2).

The grounds for appeal to the First-tier Tribunal (Immigration and Asylum Chamber) against a Home Office immigration decision are outlined in s 84 of the Nationality, Immigration and Asylum Act 2002. These are:

  • that the decision is not in accordance with the immigration rules;
  • that the decision is unlawful by virtue of Race Relations Act, s 19B;
  • that the decision is unlawful under s 6 of the Human Rights Act 1998 (HRA 1998), ie, the decision is incompatible with your Convention rights;
  • that your rights under the Community Treaties would be breached because you or a family member are an EEA national;
  • that the decision is not in accordance with the law (other than the immigration rules);
  • that discretion should have been exercised in a different way to how it was legally exercised by the initial decision maker;
  • that your rights under the Refugee Convention and the HRA 1998 would be breached were the UK authorities to proceed with removal.

According to s 86, the Immigration & Asylum Chamber is legally bound to allow an appeal brought before it ‘in so far as it thinks that’:

  • a decision against which the appeal is brought or is treated as being brought was not in accordance with the law (including immigration rules); or
  • a discretion exercised in making a decision against which the appeal is brought or is treated as being brought should have been exercised differently.

What does it mean for a decision to be not in accordance with the immigration rules?

Section 86 has had the effect of giving binding force to the immigration rules. The grounds of appeal include the provision that any immigration decision can be appealed if it is not in accordance with the rules. This means that all immigration officers, Home Office staff and entry clearance officers making such decisions are bound to act within the rules.
The applicant cannot, at the beginning of the process to be granted leave or an extension of leave, insist on being granted entry simply because they meet the rules, however. It is only at the stage of the hearing before the tribunal that the immigration rules have the force of law. It follows that if the immigration judge finds that all requirements for entry (as set out in the rules) are met, the appeal must be allowed.