You have just received the dreaded Refusal Notice from the UK Border Agency Bulgarian and Romanian case working team. Your dreams have been shattered and you can barely read the words through the welling tears in your eyes.
Your mind is spinning and the legal words and jargon in the Reasons for Refusal make no sense to you: EEA Regulations 2006, Nationality, Immigration and Asylum Act 2002, Right to Appeal, European Convention on Human Rights and so on.
Once you have read the letter a few times and the content starts to sink in, you realise that other than giving up and jumping on the next budget flight home, you are basically faced with two choices:
- Appeal against the decision
- Make a new application
So what is the best thing to do – appeal or reapply?
The answer depends on a number of factors most importantly why you were refused.
For instance, if your Yellow Card application was refused because you failed to submit the required documents to the UK Border Agency, then the decision is probably correct and there would be no point in going to appeal. In such cases you would be better of submitting a new application with the correct documentation.
Appealing against a refusal at the First Tier Tribunal
If you choose to challenge the decision you must have ‘grounds’ or reasons on which to appeal, for example that the decision is ‘incompatible with your rights under the European Convention on Human Rights’ or is ‘unlawful’ or ‘breaches your rights as an EEA (European Economic Area) national’.
If you feel you have sufficient grounds on which to appeal you can lodge your appeal with the First Tier Tribunal using the form IAFT-1, which will be included in your refusal.
There are now fees payable for appeals, even for Bulgarians and Romanians: £80 for a ‘paper hearing’ and £140 for a full ‘oral hearing’ where you can explain your case to a judge at one of the many centres all over the country.
If you are appealing against a decision in the UK you usually have 10 working days to submit your appeal form.
Appeals are submitted to the First-tier Tribunal (Immigration and Asylum Chamber) in Leicester and can be sent online, by fax or by post.
If you have requested an oral hearing and paid your fee, you will be notified in writing of the date, time and place of your appeal hearing.
A guide to the hearing centre and directions where your appeal is to be heard, and documents to be submitted, will also be sent to you in good time.
For in country appeals it should take around four weeks to be listed for a hearing where your case will be heard by an immigration judge.
The UK Border Agency may also send a representative to fight their case.
You can conduct the hearing yourself or hire an appeal specialist to act for you as well as prepare your case and evidence ‘bundle’.
The hearing normally lasts no more than an hour and a decision or determination will be posted to you within a week to ten days.
If the judge decides in your favour or ‘allows’ the appeal, the UK Border Agency will also receive a copy of the written determination. They could challenge the decision on appeal to a higher court, but in the majority of cases will comply with the court and issue the registration certificate in due course.
If you choose to have your appeal decided ‘on the papers’ rather than at an oral hearing, a judge will make a decision based on the evidence on the tribunal’s file, without hearing oral evidence or submissions.
An appeal should not be confused with a request to reconsider the refusal, which means a member of the team will review the refusal. In most cases the refusal is upheld, by which time it will almost certainly be too late to lodge a full appeal.
Submitting a new BR1 application
Even if you have solid grounds for an appeal you may decide that it would be easier and quicker to submit a fresh application in person at Croydon, which usually much quicker than posting your application to Sheffield.
If you manage to get an early appointment online you could receive your Yellow or Blue Card before an appeal even reaches a tribunal.
Resisting the temptation to ‘have your day in court’ could work to your advantage. On the other hand you could be refused a second time, especially if you have failed to address the original reasons for refusal.
An important consideration for most applicants is cost. You obviously do not pay fees to reapply, whereas an appeal cost you at least £80.
You can find out more about the appeals process on the Justice website.
If you need any immigration advice or help with Sponsorship or Work Permits, Visa, ILR/Settlement, Citizenship, dependant visa or an appeal against a refusal please email:
Majestic College offer special packages for EU students. They also have a number of employers looking for staff right now and are willing to employ Bulgarians and Romanians.
For more information call Joanna on 0208 207 1020 or email firstname.lastname@example.org
You could qualify for a tax refund if you are an overseas student, work permit holder, Tier 1, Yellow or Blue Card holder – in fact any visa type – even if you are no longer legal or even in the UK!