APPEALS PROCESS v4

23 - APPEALS PROCESS v4

1.Under section 103 of the Immigration and Asylum Act 1999 a right of appeal exists against the Secretary of State’s decision that the applicant does not qualify for support under section 95, and the Secretary of State’s decision to stop providing that support before that support would otherwise have come to an end.

2. There is a strict timetable for each stage of the process. Only working days are counted; Saturdays, Sundays, Bank Holidays, Christmas Day and Good Friday are excluded from the timetable.

3. Where an asylum seeker is notified of a decision against which they may appeal they will be sent a notice of appeal with the decision letter. The notice, appeal forms etc must be sent by first class recorded delivery (or by e-mail to Oakington). The asylum seeker will have been deemed to have received the decision on the second day after it was sent.

The appeal time frame

4. Day one of the Appeals process is the day on which the decision accompanied by the appeal form is deemed to have been received.

5. On or before day three the notice of appeal must be received by the Asylum Support Adjudicators. The appellant must have completed the appeal form in full and in English, or have their representative complete it for them and have sent the original by post or by fax or by hand to the Asylum Support Adjudicators. The Asylum Support Adjudicators have discretion to extend the time limit for receiving the notice of appeal if it is in the interests of justice and if they are satisfied that the appellant or his representative was prevented from complying with the time limit by circumstances beyond his control.

6. The timetable then runs from the day that the Asylum Support Adjudicators receive the appeal form. If it is received on day three the appeal must be determined by day nine. If it is received on day two subsequent timings must be adjusted forward by one day. If it is received on day one subsequent timings must be adjusted forward by two days.

Example

Decision sent first class recorded delivery MONDAY

Notice deemed to have been received WEDNESDAY = DAY ONE

Appeal form must be received on or before FRIDAY = DAY THREE

7. The Asylum Support Adjudicators’ staff will check that the appeal form has been completed in full and in English, and is signed and dated. They will forward the form to NASS registration section with any supporting documents by fax on the day it is received. If it is not reasonably practicable for them to fax it on the day it was received, they must fax these documents as soon as possible on the following day.

VALIDATION

8. Registration will action incoming appeals without delay. They are top priority. Registration will interrogate ASYS to identify which section made the decision and take the appeal form and any attachments to that section by hand without delay. When the appeal is faxed before 1pm it must be with the relevant section by 5pm. When the appeal is faxed after 1pm it must be with the relevant section by 1pm on the next working day. The appeal must be handed to the section leader when available. If the section leader is unavailable it must be handed to one of the team leaders.

9. The section which made the original decision is responsible for progressing the appeal and keeping to the timetable. In all cases where a right of appeal was advised the section will have retained the file. Retained files must be brought forward after two weeks. If no appeal has been submitted they may be sent to local storage. If for any reason the paper file is not in the section it must be immediately obtained by hand.

NASS will send the appeal bundle to the adjudicator by fax or by hand and to the appellant, or their representative if appropriate, by first class post or fax on day four.

10. The appeal bundle must contain copies of:

the form on which the appellant made a claim for support under section 95 of the Act, if the appeal is made under section 103(1) of the Act (initial refusal);

any supporting documentation attached to that form;

the decision letter sent to the applicant;

the decision letter sent to the reception assistant;

the reason letter;

asylum support adjudicator form 039;

the appeal notice;

the appeal form explanatory leaflet, and

any other material used to inform the Secretary of State in reaching his decision, such as: copies of correspondence following the application, or evidence that prompted the decision to terminate, provided that these documents are disclosable. Where the caseworker is in any doubt about whether to include documents in the bundle they must consult their line management. Advice may be sought from policy if required.

Any further issues not covered in the reason letter must be addressed in a reasoned statement for inclusion in the appeal bundle. For example if the application was refused because the applicant’s funds exceeded the threshold and they have stated in their grounds of the appeal that the funds are no longer available. Where the grounds of appeal do not raise any new matters and the appeal is in time there should be no need for a reasoned statement. The reason letter should suffice.

11. There is a cover sheet for the appeal bundle on ASYS. It may be found on the letters menu associated with refusals.

If no oral hearing has been requested, the appeal bundle will normally be the last chance to put matters before the Asylum Support Adjudicator and it is therefore vital that it is accurately compiled and contains all the relevant information.

12. The caseworker preparing the appeal in the section will check on ASYS that the refusal carried a right of appeal. If a right of appeal has been advised, or the appeal form sent out, in error, or if the applicant has submitted their own appeal form following a non-appealable decision this must be addressed in the reasoned statement.

13. Where a right of appeal has been advised but none exists in law there can be no appeal. Only decisions to refuse support outright under Section 95 of the Immigration and Asylum Act 1999 or decisions to terminate support other than when the supported person’s claim for asylum is determined carry a right of appeal. Decisions to terminate support because the asylum claim has been determined do not carry a right of appeal. Nor do decisions as to the nature or quality of support or where it is provided. Where an asylum seeker attempts to appeal against the latter the decision should be subject to internal review (see separate instructions).

14. Where an appeal form is received after day three with or without explanation NASS must confirm both the date on which it was sent out and the date of delivery. Caseworkers must interrogate the post room database by telephone on x4361 to confirm when the package was sent out. The post room can also confirm the date of delivery with the Post Office. They can access this information within 15 minutes. Provided that the refusal was delivered on or before day one the appeal would be presumed out of time unless exceptional reasons are given for late submission. Where an appeal is presumed out of time, an Out of Time allegation (NASS 57) should be completed and placed in the appeals bundle. The Asylum Support Adjudicators will ultimately decide if an appeal is in or out of time and whether to exercise their discretion to extend the time limits (see earlier).

REVIEW

In all cases the Section responsible for the decision will review it and consider the grounds of appeal by day six.

The asylum support adjudicator may already have decided if there is to be an oral hearing. If there is not the adjudicator may have decided the appeal on day 5 as if there is no oral hearing, they are to determine the appeal on consideration day if at all possible (see HEARINGS).

15. ASYS must be updated and the paper file flagged to show that there is an appeal. All file movements must be immediate by hand while the appeal is outstanding. The timetable and each stage of the process must be clearly recorded on the minute sheet.

16. Any additional information must be considered as if it had formed part of the original decision. The case must be examined initially by the officer responsible for the original decision. They will be aware of the circumstances and the grounds of appeal may provide useful feedback. The manager of the team must conduct the review and decide if the case must proceed to appeal. Officers may not review their own decisions.

17. Should the review process conclude that the original decision was wrong or that it should be changed in the light of further information NASS should proceed as follows:

if the original decision was to refuse support then Assessment must establish the type and level of support appropriate and forward the case to Allocation;

if the original decision was to terminate support then the termination process must be suspended.

In either case when the Secretary of State withdraws the decision which is appealed against he must give immediate notice to the adjudicator, by fax, and to the appellant, or his representative if appropriate, by first class post or by fax.

HEARINGS

18. The adjudicator on day five must:

decide whether there should be an oral hearing;

set the date for determining the appeal;

if there is to be an oral hearing give notice to the appellant and the Secretary of State of the date on which it is to be held.

19. If there is to be an oral hearing it must be held and the appeal determined on day nine. In all other cases the appeal must be determined on day five or as soon as possible thereafter, but not later than day nine.

20. Where an oral hearing is to be held the manager of the section which made the original decision will represent NASS, provided that they did not sign the notice of decision or any correspondence connected with it. The adjudicator should be confident that the decision has been properly reviewed.

21. The adjudicator will decide the case on all the evidence available at the time of the hearing. The burden of proof is on the appellant. That is the appellant must show that they are entitled to support or that support should not have been terminated. The adjudicator will find on the balance of probabilities.

An adjudication is binding on the day the appeal is determined and must be actioned immediately.

22. If the adjudicator finds that the original decision was wrong then the case must be actioned as follows:

if the original decision was to refuse support then Assessment must establish the type and level of support appropriate and forward the case to Allocation;

if the original decision was to terminate support then the termination process must be stopped.

TIMETABLE

Action

TIMETABLE

Example

Notice sent 1st class recorded delivery

DAY ONE MINUS TWO DAYS

Monday 3 April

Notice received

DAY ONE

Wednesday 5 April

Appeal received by ASAs

DAY THREE

Friday 7 April

Appeal sent to NASS

DAY THREE (or day 4 if not reasonably practicable to send on day 3)

Friday 7 April

Appeal bundle sent

DAY FOUR

Monday 10 April

Adjudicator considers appeal, sets hearing date etc

DAY FIVE

Tuesday 11 April

Decision reviewed and grounds of appeal considered

DAY SIX

Wednesday 12 April

If no oral hearing appeal determined by

DAY NINE (but likely to have been determined on day 5 - see rule 6(2) which sets out that if there is no oral hearing, the appeal must be determined on consideration day (day 5) or as soon as possible thereafter, and in any event not later than 4 days after the consideration day – ie day 9

Monday 17 April

Oral hearing

DAY NINE

Monday 17 April