If you are unfortunate to have been refused a visa, you may be faced with a choice – go for an immigration appeal (if you have the right of appeal) or make a fresh application.
I will try and give you here some guidance on the advantages and disadvantages of appeals and fresh applications. The advice will be different depending on whether you are in the UK or outside the UK at the time of refusal. I will start with the UK-based scenario.
Advantages of an immigration appeal if you are based in the UK
• Your right to remain in the UK is extended automatically while the appeal is pending as long as you don't leave the UK
• You continue to have the right to work, same as at the time when you applied for your visa extension
• Appeals take a long time (sometimes over a year) and this may "buy time" for the appellant
• If your circumstances change while you are waiting for the appeal to be heard and you meet the requirements of the rules which you didn't meet at the time of applying, the immigration judge will consider your circumstances at the time of appeal
• Appeals are decided by independent judges who can be addressed in person during the appeal hearing. Their aim is to make a fair decision balancing your rights as an individual against the immigration rules which protect the interests of the state
Downside of an immigration appeal for appellants based in the UK
• You cannot travel outside the UK while your appeal is pending (there is an exception for EU nationals appealing a decision under the EU settlement scheme)
• Unless you need to "buy time", you may feel your time is wasted while you are waiting – a fresh application could have been decided much quicker
• There are no "straight forward" or "simple" appeals due to "litigation risks". Litigation risks include all sorts of unforeseeable or unexpected factors. And among them, (I would add this in whisper) the unfortunate reality that not all immigration judges are super competent in immigration.
• Immigration appeals are based on Human Rights challenges and when the appeal is won you may not necessarily receive the visa you applied for. For example, an appellant who challenges refusal of a spouse visa may be surprised to win the appeal and get a spouse visa granted under the 10-year route. Or an appellant successfully challenging refusal of indefinite leave to remain in an immigration tribunal may be granted further leave to remain on private life grounds instead of indefinite leave to remain.
Advantages of a fresh application inside the UK
• Quick resolution of the issue – you may get the decision the next day if you apply for super priority service
• If you rely on immigration lawyers for help (and you really should if you have been unlucky with the previous application and the outcome is important for you), the cost of legal help in a fresh application will be considerably lower than in an immigration appeal. This is simply because it takes less time to prepare a fresh application than to prepare the paperwork for the appeal and represent the appellant in court.
Risks of making a fresh application in the UK after an immigration refusal
• If your visa expired while you were waiting for a decision on your application, you become an overstayer they day after you received a refusal. You still have 14 days to make an alternative application, but your leave to remain is not extended in the same way as it is with an immigration appeal. You lose the right to work the moment you become an overstayer and it is super important that you don't work during this period.
• If you have decided to make a fresh application, you have to tell your employer that you will be unable to work until the application is decided. The positive side is that if you apply for super priority service, you may get your application decided the next business day after your biometric appointment.
• If the second application is refused, you won't have the right of appeal and you will have to leave the country
• The time you spend in the UK waiting for the outcome of a fresh application may count against you. If the application is unsuccessful and you overstayed your visa for more than 28 days, you may have to wait for a year before you are allowed to return to the UK in the future.
It is also important to know that even if your second application is successful, the time spent in the UK while you were waiting for the outcome of this application will will not count towards time spent lawfully in the UK if make an application for indefinite leave to remain on the basis of 10-year long residence.
Immigration refusal outside the UK
If you are outside the UK, a fresh application is always be a quicker solution but sometimes you have to challenge the decision as a fresh application will not solve the problem.
A fresh application will not work in the previous application was refused on one of the following grounds:
• you gave false information in your application
• the decision maker did not believe you were seeking permission to enter for the purpose stated on your application form
• you fall under the general grounds for refusal
Our immigration lawyers are always happy to help and find the best and quickest solution to any immigration issues. You are welcome to get in touch and email us the refusal letter and book a consultation to discuss the next steps.