The appeal for review in immigration matters is an administrative procedure that allows interested parties to request the review of an unfavorable resolution or administrative act issued by a lower authority before a higher hierarchical authority. This appeal aims to determine whether the contested act complies with the law or if, on the contrary, it should be revoked or modified.
Main Characteristics of the Appeal for Review in Immigration Matters
The appeal for review in immigration matters is an administrative appeal for illegality, which can be filed against any act unless explicitly excluded and based on any violation of the legal framework. It is mandatory to prevent the act from becoming final and hierarchical, allowing for correction by the superior authority. Additionally, it is a devolutive and non-suspensive appeal, unless otherwise stated, according to Article 117 of Law 39/2015.
- Administrative Appeal for Illegality: Focuses on the legality of the administrative act and can be filed for any violation of the legal framework, unless explicitly stated otherwise.
- Mandatory Appeal: It is a necessary preliminary step to exhaust the administrative route before resorting to the judicial contentious-administrative route.
- Devolutive and Non-Suspensive Appeal: The filing of the appeal returns the authority to resolve the matter to the superior hierarchical body but does not automatically suspend the execution of the contested act unless suspension is expressly requested and granted.
Administrative Acts Subject to Challenge
According to Article 121 of Law 39/2015, the appeal for review in immigration matters can be filed against resolutions and acts that do not bring an end to the administrative route. The appeal for review in immigration matters can be filed against a wide range of administrative acts that do not finalize the administrative route, such as:
- Acts that affect the rights of foreigners in Spain.
- Denials of visa applications, residence permits, or nationality.
- Expulsion or return resolutions.
- Administrative sanctions in immigration matters.
Where is the Immigration Appeal for Review Filed?
The immigration appeal for review can be filed before the body that issued the contested act or before the competent body for its resolution (superior hierarchical authority). If filed before the body that issued the act, it must forward it to the competent authority within 10 days.
Express Act and Presumed Act
Both express administrative acts and presumed acts (due to administrative silence) can be challenged through the immigration appeal for review. The deadline for filing the appeal is one month for express acts and at any time for presumed acts, starting from when the administrative silence occurs.
Resolution of the Immigration Appeal for Review
The resolution of the immigration appeal for review must be issued and notified within a maximum of three months. If no resolution is issued within this time frame, it will be considered denied, unless there are specific exceptions.
Differences Between the Immigration Appeal for Review and the Appeal for Reconsideration
The differences between the immigration appeal for review and the appeal for reconsideration are as follows:
- Nature: The immigration appeal for review is mandatory, while the appeal for reconsideration is optional.
- Object of Challenge: The immigration appeal for review is filed against acts that do not bring an end to the administrative route, while the appeal for reconsideration is filed against acts that do finalize the route.
- Competent Body: The appeal for reconsideration is filed before the body that issued the contested act, while the immigration appeal for review is directed to the superior hierarchical authority.
- Resolution Deadline: The immigration appeal for review must be resolved within three months, while the appeal for reconsideration has a deadline of one month.
These are the main differences between the appeal for review and the appeal for reconsideration. However, to determine which one best suits your needs, we recommend consulting with a law firm specialized in immigration matters.
Considerations for Filing an Immigration Appeal for Review
As a guide for filing an immigration appeal for review, the process should include the following steps:
A) Calculation of the Deadline to File an Appeal for Review
The deadline to file an appeal for review starts the day after the notification of the resolution you wish to challenge. This deadline ends on the same day of the following month from the notification, unless that day is a non-business day, in which case it is extended to the next business day.
For example, if the notification is received on June 2, the deadline to file the appeal is July 2. If the notification is received on January 31, the deadline is extended to February 28 (or 29, if it’s a leap year).
B) Express Request for Suspension of the Challenged Act
The immigration appeal for review is not automatically suspensive. To suspend the execution of the contested act, it is necessary to expressly request such suspension. According to Article 117.3 of the LPACAP, the execution of the act will be considered suspended if, after one month from the request for suspension, the competent body has not issued and notified an express resolution on the matter.
However, the filing of the immigration appeal for review can suspend the enforceability of the act if it is burdensome or unfavorable to the interested party, such as in sanctioning matters, according to Article 98.6 of the LPACAP.
C) Structure and Formalities of the Immigration Appeal for Review
Every administrative appeal, including the immigration appeal for review, must follow a clear structure to facilitate its understanding and resolution. The goal is for the competent authority to easily understand the appellant’s claims. Below is a model structure for the appeal for review that you can follow:
- Signature and Date: Signature of the appellant and date of filing the appeal.
- Identification of the Appellant: Name, surname, and identification number (NIE).
- Contested Act: Clear description of the administrative act being challenged.
- Factual Grounds: Description of the facts that justify the challenge.
- Legal Grounds: Applicable laws and jurisprudence supporting the challenge.
- Specific Request: The specific request made to the competent authority.
Frequently Asked Questions about Filing an Immigration Appeal for Review
- What is the difference between an appeal for review and an appeal for reconsideration? The differences between an appeal for review and an appeal for reconsideration are as follows: Both are administrative appeals that allow challenging decisions by the administration, but they differ in their procedure and scope. The appeal for review is filed before a higher authority than the one that issued the resolution and is used when seeking a broader review of the decision; it must be filed within one month of the notification. In contrast, the appeal for reconsideration is filed before the same body that issued the resolution and seeks for that body to modify or revoke it, being a more immediate and direct procedure, also with a one-month deadline.
- Give me an example of an immigration appeal for review: When drafting the example of an immigration appeal for review, it is important to include details such as the applicant’s name, case number, the contested resolution, and the reasons for requesting the review. The deadline to file this appeal is one month from the notification of the resolution, and the administration has a deadline of three months to resolve the matter.
- How to draft an appeal for review / How is an appeal for review written? To file an immigration appeal for review, direct a written submission to the authority that issued the resolution, including your details, case number, and the legal grounds and evidence that justify your request. It must be submitted within one month of the notification, along with copies of the resolution and supporting documents. Having legal advice can be key to ensuring its success.
- What is an appeal for review / What is an appeal for review? An appeal for review is an administrative means to challenge non-definitive decisions. It is filed with the superior body within a month, providing arguments and documentation. It is a mandatory step before going to court in many cases.