How to Prepare For Your Immigration Appeal

This section is for people giving evidence in Asylum & Immigration Tribunals (AIT). One reason many immigration appeals are lost is because not enough care and time is spent in preparing witnesses and gathering evidence for the hearing.

Who Are The Witnesses At An Appeal?

There are two different kinds of appeal:

1.  Some appeals are by people in the U.K. who are trying to stay here longer or permanently. In these appeals the main witness will be the appellant. There may also be other witnesses.

2.  Other appeals are by people overseas who want to come to the U.K. either temporarily or permanently. In these cases the main witness will usually be the appellant's sponsor - that is the person inviting the appellant here. The appellant will not normally be present in the U.K. to give evidence.

What Happens At An Appeal?

Your appeal will be heard before an 'Immigration Judge'. The Judge (in some cases there could be a panel of three) will decide the outcome of the appeal. Each witness will be heard separately. If you need an interpreter, let the court know in advance, and they will appoint one for free. You cannot bring your own interpreter.

If there is more than one witness in the case you will not be allowed to listen to them giving evidence before it is your turn. You will first be asked questions by your legal representative and/or adopt a witness statement that forms the basis of your case.

There is also a Home Office Presenting Officer (HOPO), who acts for the Home Office or the Entry Clearance Officer. They will also ask you questions as part of the cross-examination of you or other of your witnesses. Your representative can then ask you some more questions if necessary. The Judge may also ask questions. The Home Office do not usually have any witnesses of their own. At the end of the case both the HOPO and then your representative will sum up their case.

In most cases the Judge reserves judgement. You will get your decision in writing. This could take several weeks. If your appeal is dismissed you may be able to make an application for an order requiring the AIT to reconsider the appeal decision, on the grounds it made an error of law. If your appeal has been allowed the Home Office may apply for a review of the decision in the same way. If the Tribunal orders a reconsideration of the appeal there will be a new hearing date set. An application for review must be made within 5 days of receiving the Tribunal's determination if you are in the United Kingdom, or 28 days if you are outside the country. The application is decided by reference to written submissions of the applicant only.

Preparing Your Appeal

However well prepared you are and however good your legal representative is there is still no guarantee you will win your appeal. But unless you prepare your appeal properly then you are almost sure to lose the case. All the witnesses have to be well prepared, not just the appellant or the sponsor.

How Long Does It Take To Prepare An Appeal?

The greatest delays in the appeal system are caused by the Home Office and Entry Clearance Officers. If you are appealing from overseas it can take up to 6 months or more before the Home Office sends the explanatory statement. The only exceptions are Family

Visitor Appeals that are processed more quickly and you normally get a hearing date sooner. If you are already in the U.K. then the appeal papers come more quickly - but it still may be a few months. There could also be further delays if the AIT has a backlog of cases.

However it also takes time to properly prepare an appeal. Usually the sponsor or the appellant wants an appeal heard as quickly as possible. We are all opposed to delays in the appeals system. But there is no point in going to an appeal unless you yourself are prepared as fully as possible, and are able to obtain appropriate documentary evidence to win your case.

The Explanatory Statement

You will not know the exact case by the Home Office you until you receive the appeal papers. Known as the 'explanatory statement'. The explanatory statement contains all the Home Office documents in the case. In particular it contains;

(A) An explanation or what the Home Office considers to be the main facts of the case..

(B) The reasons why the appellant has been refused permission to come to or remain in the U.K.

(C) Attached to the explanatory statement will be full notes of any interview the appellant may have had either with an Immigration Officer in the U.K. or an Entry Clearance Officer overseas.

From the time you receive the explanatory statement it could take a few weeks or a few months to prepare the case. The length of time it takes will depend on;

1.  How complicated the case is

2.  How long it takes you to become a good witness & draft a statement

3.  How long it takes you to collect any necessary evidence.

In many cases much of the work with your legal representative will be spent gathering important documents, evidence and dealing with what the appellant has previously said when interviewed by an Immigration Officer or Entry Clearance Officer. Please note that in Immigration cases you normally have to show that the entry clearance officer's decision is wrong based on the facts he had at the time of decision or facts that were reasonably foreseeable. In asylum cases on the other hand you have to show that fear of harm or persecution still exists in your own country even now.

Some of what was said at the interview may have been confused or even incorrect and to try and win the appeal it will be necessary to clear up any confusion or errors.

Once you receive the explanatory statement, your case will be ready to reach the AIT and you will be given a hearing date and directions as to how to prepare for the appeal with time deadlines.

For certain types of appeal the AIT may set a date for a case management review hearing/directions hearing. These are preliminary hearings which is not the full hearing of an appeal, although an immigration judge may sometimes allow or dismiss an appeal at this hearing. This type of hearing is usually a 30 minute hearing where an immigration judge identifies the key issues of the appeal with the aim of giving directions about any additional information needed from an appellant, or from the Home Office, before the full appeal hearing.

If you find that you are unable to attend a hearing, you or your representative must write to the AIT to explain why you cannot attend. You should provide evidence that you cannot attend, such as a doctor's medical certificate. If the immigration judge agrees to a new hearing date, notice of the date, time and place of that hearing will be sent to you. If the hearing is not adjourned you will be informed by the AIT and you and your representative must attend the hearing.

It is important you tell your legal representative in advance whether you (or a witness) want an interpreter, the language and dialect required, the number of witness's, and inconvenient dates where you or a witness may be on holiday or have an important appointment etc.

The Work You Must Do For Your Appeal

Preparing an appeal is hard work! It is hard for your legal representative. It is also hard work for all the witnesses and especially for you who will have to obtain much of the documentary evidence. To prepare your appeal you and your representative will have to work together as a team. For asylum and immigration appeals the tribunal requires witness statements prepared in advance and sent to the tribunal usually a week before the full hearing. The witness statement will be the main evidence in chief of your case. An Appellant's bundle will also need to be produced and sent a week in advance, which will contain documentary evidence to support your case. There may also be a requirement for skeleton arguments and a chronology.

In order to be a good witness you will have to learn the following;

1.  What is the law that applies to your case? For instance the Immigration Rules define who can come to the U.K. and who can stay. You have to know which Immigration Rule, if any, fits your case and what it says.

2.   As well as knowing the law you also have to learn what all the practical problems are in your case. Unless you understand these properly then the HOPO will be able to trick you at your appeal.

This means that you have to understand everything in the explanatory statement, and your own bundle of documents, which has been prepared to give you the best chance to win the case. You should always have your own copy of the explanatory statement and read it carefully - or get someone else to read it to you. Read it several times.

Remember that much of your time with your representative will be spent going through the explanatory statement and working out ways of answering it. Be also familiar with your own tribunal bundle and bring that and the explanatory statement to the tribunal hearing.

3.   What questions your legal representative will ask you at the hearing - and what answers you should give. You and your representative have to make sure that you are prepared for every question you are asked. However, please note that your representative is not allowed to coach a witness, and with witness statements being your main evidence, there are fewer questions asked by your representatives nowadays.

4.  What goes on at the hearing? To learn this you must go and listen to other people's appeals.

Go and Listen To Other Appeals

The very best way to learn to be a good witness is to go and listen to other people's appeals. You will see: -

   (A) The sort of questions the Home Office asks

   (B) How the Home Office asks the questions

   (C) How witnesses need to know what answers to give

   (D) How witnesses need to speak slowly and clearly so the Judge can
         write down their answers.

The more appeals you go and listen to then the better witness you will be in your own case. Immigration appeals are open to member of the public. They normally start at 10:00 am. Sometimes they last the whole day. Do make sure you are there at the start and stay to the end. There are not facilities for young children at appeal hearings, so it is best not to take them. Several appeals are heard at the same time - in different rooms.

You may only want to hear one sort of appeal - for instance Family visit appeals or Marriage appeals or Asylum appeals. You can contact the AIT, to find out when there is the next appeal you want to listen to. Also you can ask if the appeal will be heard, through an interpreter, in any particular language.

Be aware that just because you are requested to attend the hearing at 10:00 am that the case will start at that time. Many cases are listed for the same day and the same courtroom; you case might get on early in the morning or late afternoon. The Judge on the day decides the order he wishes to hear all the cases. Therefore you need to block out your whole day and make necessary arrangements for home and work.

On some occasion's there might be adjournments because there is a procedural problem with your case, the case is part heard or that there was no time for the case to be heard at all. Adjournments are frustrating, but can and do happen.

In the northwest immigration cases are heard at 2 Piccadilly Plaza, Mosley Street, Manchester M1 4AH. The customer service centre of the AIT can be contacted by phone on 0845 600 0877.

Please note this fact sheet is for general guidance only. Immigration law and AIT rules frequently change at short notice. Check the Home Office website for the latest rules. Check for further details of other AIT hearing centres and more information of the AIT procedures.

Please call Shire Solicitors for a free consultation on 01274 72 73 73 or fill in the claim form for a free call back.

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