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many of the countries from the list of those producing asylum seekers), would
all lead to a substantial drop in the numbers who seek asylum in the UK. Of
course, the numbers of undocumented arrivals is doggedly refusing to go down,
being a particular problem at Terminal 2, where the majority of entrants from
under-developed countries land, but proposals for carriers to copy the
documentation held by a passenger at the time of boarding, thus allowing for his
identity to be established by comparing his photograph in the document copy
with the undocumented passenger himself, when he arrives, could have an
impact on such arrivals. In the meantime, given that two out of every three
asylum seekers are still in-country applicants, the government’s deterrent
strategy will not bring the numbers down any lower than they otherwise would
be.
Sir Duncan Ouseley, the President of the IAT, in giving his evidence to the
Select Committee on Constitutional Affairs, said that the system that the
government had supported enthusiastically two years ago, namely, that of
statutory review as enshrined in s 101 of the Nationality, Immigration and
Asylum Act 2002, and which had been operating for less than a year, was now
being consigned to the dustbin, along with the existing tribunal system,
although with applications for statutory review of leave to appeal to the tribunal
being made at a rate of 35 a week, the system appears to have been working
tolerably well.
The Act does nothing to improve the quality of initial decision-making,
which is the root cause of the malfunctioning of the immigration system. As the
Select Committee on Home Affairs commented in its report: ‘The real flaws in
the system appear to be at the state of initial decision-making, not that of
appeal.’ Its recommendation was that any reform in the direction of a new
asylum appeals system should be contingent on a demonstrably significant
improvement in initial decision-making. If the initial decisions were more
reliable, then many more people would accept the adjudicator’s decision (after a
first appeal), not least because fewer applicants would get leave to appeal to the
tribunal, and the overhaul of the existing immigration system (which had only
just begun to take shape after the 2002 reforms) would be unnecessary.
The Asylum and Immigration (Treatment of Claimants, etc) Act 2004 was
passed by royal assent last summer on 22 July 2004. The preamble describes this
as ‘An Act to make provision about asylum and immigration’. The Act brings in
major new changes of a both procedural and substantive nature. For example, it
completely revamps the existing nature and structure of immigration appeals. It
also introduces new approaches to fact-finding by a tribunal of inquiry (such as
how findings on an applicant’s credibility are to be made). As such, the Act is
likely to present considerable problems to practitioners, both in terms of its
understanding and usage, as well as in terms of avoiding and challenging its
potential pitfalls. Thus, during the final stages of its passage through Parliament,
Lord Lester said: ‘Although I practise at the bar, I regard it as a misfortune
whenever legislation is passed in a form so defective that judges and lawyers
have to come to the rescue. That does no one any good – not even in the legal
profession ... This is not an ordinary Bill. It is one that affects the rights of one of
the most vulnerable groups of people in this country … I hope this is the last
occasion in the lifetime of this government, or any future government, that
Preface ix
something of this kind happens. When it does, we let down the parliamentary
process and ultimately we must resort to litigation, which is a great misfortune’
(Hansard, HL vol 639, col 722, per Lord Lester).
Whereas these are broader long term policy aims, the purpose of this book is
to provide an extensive and detailed discussion of the individual provisions of
the Act so that practitioners faced with an application of its various provisions
can better understand the background to them, together with a sense of their
intended application.
Grateful acknowledgment is made to The Stationery Office for granting
permission to reproduce the statutory materials included in this book.
CONTENTS
Preface vii
Table of Cases xv
Table of Legislation xvii
LEGISLATION
APPEALS
26 Unification of appeal system 64
27 Unfounded human rights or asylum claim 69
28 Appeal from within United Kingdom 70
29 Entry clearance 71
30 Earlier right of appeal 72
31 Seamen and aircrews: right of appeal 72
32 Suspected international terrorist: bail 72
REMOVAL AND DETENTION
33 Removing asylum seeker to safe country 73
34 Detention pending deportation 73
35 Deportation or removal: cooperation 73
36 Electronic monitoring 75
IMMIGRATION SERVICES
37 Provision of immigration services 77
38 Immigration Services Commissioner: power of entry 78
39 Offence of advertising services 80
40 Appeal to Immigration Services Tribunal 81
41 Professional bodies 81
FEES
42 Amount of fees 82
43 Transfer of leave stamps 83
GENERAL
44 Interpretation: “the Immigration Acts” 83
45 Interpretation: immigration officer 84
46 Money 84
47 Repeals 84
48 Commencement 84
49 Extent 84
50 Short title 84
SCHEDULES
Schedule 1 86
Schedule 2 88
Schedule 3 97
Schedule 4 103
THE ASYLUM AND IMMIGRATION TRIBUNAL (PROCEDURE)
RULES 2005 105
STATEMENT OF CHANGES IN IMMIGRATION RULES
(HC 302) – FEBRUARY 2005 131
xiv A Guide to the Asylum and Immigration Act 2004
Index 173
TABLE OF CASES
Adimi Judgment
See R v Uxbridge Magistrates’ Court ex p Adimi—
Al Ameri v The Royal Borough of Kensington and Chelsea
[2004] UKHL 4; [2004] 2 AC 159; [2004] 2 WLR 354 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
Arshad v SSHD [2001] EWCA Civ 587 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22
Asif 2002 SLT 307 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
The present one-tier tribunal system may also be short-lived for another
reason. The consequences of getting a decision on appeal wrong because the
tribunal takes a very legalistic view of the issues can lead to a person being sent
to torture or death in his or her own country. The new tribunal system did not
originally have a lay member of the public sitting on it in order to decide factual
issues of a non-legal nature. However, the government eventually conceded in
the Commons a House of Lords amendment to ensure the Bill’s speedy passage
(see para 2(e) of Schedule 4 to the 2002 Act, amended by Schedule 1 to the 2002
Act, which leaves a lay element), thus providing a good example of the
importance of a second chamber in a democracy. The overwhelming importance
of the lay element on the bench was brought home in the House of Lords, where
it was said that: ‘We must remember that this is the only jurisdiction in this
country that has the power of invoking the death penalty – that is a very
dramatic way of putting it. You can also impose on people an awful prison
sentence. Some of the conditions in the country that asylum seekers come from
are appalling. One needs only someone who is very tired and not quite
concentrating to make a little mistake. A lay member may just be able to prevent
such a mistake from being made’ (see Hansard, HL, vol 662, col 45, per the
Countess of Mar). Indeed, in its 1999 report, the Council of Tribunals said (at
p 11) that: ‘[W]e were troubled by the removal of the lay element from the
Immigration Appeal Tribunal. Although we recognise that lay members may be
unnecessary in cases concerned solely with issues of law, we believe that they
have a valuable contribution to make when issues of credibility arise,
particularly in asylum appeals’ (ibid at col 46). Yet, there are no proposals at
present for lay members to sit on asylum appeals. Certainly, the two-tier system
has been strongly recommended in a report published four years ago by Sir
Andrew Leggatt entitled Tribunals For Users, where he had observed that ‘the
appeal body needs to give genuine coherence to the development of the law, and
promote consistency effectively at its own level and in the first-tier tribunals’. It
is remarkable that this report underpins the government’s forthcoming
proposals for reform in this area. Sir Andrew was categorical that matters of fact
should be determined separately and that: ‘Many cases would not be suitable for
hearing by a chairman, even legally qualified, sitting alone …’ He declared that:
‘[T]here should be a first-tier immigration and asylum tribunal, within a
separate division, which should be the sole judge of issues of fact’ (at para 23). In
short, it would be interesting to see how long the new single-tier system lasts
and whether it will even see out the present decade.
The government has also defended its attack on undocumented passengers.
It has said that the deployment of high-tech freight screening equipment at
French and Belgian ports and moving UK border controls to France are already
preventing undocumented and inadequately documented people from
travelling to the UK. That, however, still leaves the problem of undocumented
asylum seekers who deliberately destroy or dispose of their documents. The
government proposes that those who fail to provide documents without a good
explanation or who have travelled through a safe third country or who make a
late claim would have this taken into account in considering the credibility of
their claims. It has stated that: ‘These measures would require the decision-
maker and the appellate bodies to take account of the above situations when
4 A Guide to the Asylum and Immigration Act 2004
Children Act 1989. This may lead to arguments in relation to the alleged
violation of Article 3 rights under the Human Rights Act (HRA) 1998, so as to
amount to inhuman and degrading treatment.
Finally, there is a new criminal offence of advertising or offering to provide
immigration advice for services by someone who is unqualified. The office of the
Immigration Services Commissioner would be able to enter the private or
business residence of anyone suspected of providing immigration advice or
services from those premises when unqualified to do so, subject to obtaining a
court warrant. This is because the Immigration Services Commissioner was
concerned about a number of unqualified advisers evading regulation by setting
up false supervision arrangements with solicitors. On the face of it, this is a
welcome provision.
have to prove to the government when coming to the shores of the UK that they
have used those documents throughout their journey? Do they have to prove
that they used the documents for all stages of their journey, from their country of
origin, or do they only have to prove that they used those documents only for
that leg of the journey from where they came into this country? How will those
people be able to prove when and where they started to use the particular
documents? What kind of proofs will the government accept as valid? For
example, it is well known that there are two million Zimbabwean refugees in
South Africa. Some of them attempt to come to the UK on false South African
passports. The documents that they use to travel on from Zimbabwe to South
Africa, however, would be lost in the mists of time. One question is whether the
document that is in issue is the one on which the person travels for the last leg of
the journey. Even if that is the case, how does one actually prove that that was
the document used to board the aeroplane in Johannesburg? It seems that
whenever a person does not provide a valid document, that person will be asked
to explain how he or she managed to arrive in the UK with no passport or with a
false one.
Any deciding authority will need to be satisfied that the quality of the forged
passport is such that a person could realistically have got through immigration
control. The burden of proof is on the asylum seeker. A person would need to be
sure that he or she had used a false passport for the whole duration of his or her
journey to rely on the new defence. If a person travels from a country where the
government knows that immigration controls are limited and from where it is
possible to leave without a valid passport (for example, from Sudan, where a
person could not have anything that could be recognised as a travel document),
the government would take that into account when listening to the explanation
offered by the applicants on arriving in the UK without a valid passport.
However, there could be difficulties with this. If a person is travelling under
some duress (as is often the case with asylum seekers from China, whose
journey is facilitated by ‘snakeheads’), he may be required to destroy a travel
document. For the defence to operate, however, the government expects
travellers to continue to hold on to their documents. Section 2, therefore, is
clearly of inordinately and unrealistically wide application. It is a catch-all
provision. Under this provision, asylum seekers risk being prosecuted rather
than protected when they arrive seeking sanctuary and safety in the UK. The
provision does not, moreover, take children out of the scope of prosecution
altogether. The result is that a person fleeing the persecution in his or her own
country could acquire a criminal record at the outset of his or her life abroad.
Such a consequence is likely to be in infringement of Article 31 of the Refugee
Convention. To have any proper chance of success, the government will have to
issue detailed guidance on how this section is to be used for the prosecution of
asylum seekers.
The guidance could deal with two classes of offence that a person may
commit in relation to his or her entry and residence in the UK. The first is in
relation to an offence specified in s 31 of the 1999 Act or s 2 of this Act. The
second relates to any other offences, such as obtaining an advantage where the
presumptive refugee should not be prosecuted while his or her application is
still in play because of the Adimi judgment (where Simon Brown LJ famously
said that ‘that some element of choice is indeed open to refugees as to where
Commentary on the Act 7
they may properly claim asylum’: see R v Uxbridge Magistrates’ Court ex p Adimi
[2000] 3 WLR 434). The government has given both an undertaking that the
guidance will indeed be issued and an undertaking that it will indeed instruct
immigration officers to consider whether a person has a reasonable excuse for
having no document. In most cases, a person who does not have a document, for
a reason other than destroying or disposing of it, will have a reasonable excuse
for it. The government also accepts that there will be rare circumstances in
which even if the person has destroyed or disposed of a document, he or she
will have a reasonable excuse. Immigration officers will thus need to consider
the broader question of whether, in the circumstances, a person has a reasonable
excuse for destroying or disposing of his or her documents, not solely whether
they suspect that to be the case. Section 2(9) makes such a person liable to a fine.
However, it is absurd to levy fines on somebody who came here as an asylum
seeker and had spent the last few months of his or her time in custody as he or
she will obviously will not have any resources out of which he or she could pay
such a levy.
trafficked for their organs; thus, they may not satisfy the definition in s 4(4)(b).
As for s 4(4)(c), the threat of violence may not be made to the child; the parent
may be told that the child will be harmed. With regard to sub-s 4(b), not all
children are exploited or deceived; they may not understand what is being done
to them. This section is not, therefore, about defining trafficking for the purposes
of protecting its victims – it is about coming up with a definition to ensure that
those who exploit others can be prosecuted. Consequently, the concept of
exploitation is the key to s 4 offences as, without it, there is only the facilitation
of travel which, in itself and in the absence of a breach of immigration laws, is
not morally repugnant or worthy of criminal sanction. To secure a conviction
under s 4, the prosecution will therefore have to prove that the accused arranged
or facilitated the travel of his or her victim and that he or she intended to exploit
the victim or believed that another person was likely to do so. The section does
not cover a situation where a person has the intention of exploiting a child if that
person’s conduct towards a child does not actually fall within the definition of
exploitation.
Section 6: supplemental
Under this section, there are new criminal offences of trafficking people into,
within or out of the UK for the purpose of exploitation. The use of illegal
migrant labour has captured the public imagination following the tragedy in
2004 at Morecambe Bay. This provision takes action against unscrupulous
employers who profit from the exploitation of illegal workers and are sometimes
found to have links with organised crime. First, the section imposes increased
fines on those who employ illegal workers in the most serious of cases. The
government amendment here related to s 8 of the Asylum and Immigration Act
1996, which is the main statutory control on illegal working. Secondly, it makes
it an offence to employ a person subject to immigration control if that person has
not been granted leave to enter or remain, or if that person’s leave is not valid
and subsisting or is subject to a condition precluding him from taking up the
employment. The offence is currently triable summarily only and the current
maximum penalty is a fine of £5,000 in respect of each person employed illegally.
The government’s amendment does make s 8 offence triable either way, which is
to say on indictment as well as summarily. The maximum fine on summary
conviction would remain £5,000 but, in the most serious cases, the Immigration
Service would be able to pursue a prosecution in the Crown Court, where there
is no limit on the level of fine that can be imposed following conviction on
indictment. Thus, an offender could be subject to imprisonment of up to 14 years
or to a fine or to both. The government’s amendment also made a consequential
change to the time limit for prosecutions that can be brought under s 8. The
amendment reflected the general legal principle that offences that are triable
either way may be prosecuted at any time. This aspect of the amendment would
not, however, result in any change to enforcement practice and the government
did not expect employers to retain employee records for longer than three years.
To show its seriousness, the government increased the number of illegal
working enforcement operations and related prosecutions. Thus, the purpose of
the amendment is to provide the government with the flexibility to pursue the
most serious cases in the Crown Court, where there is no limit to the level of
fines that can be imposed.
Commentary on the Act 9
thinks …’ (see s 8(2)). What the ‘deciding authority thinks’ can be mere
subjective judgment. The ‘deciding authority’ is defined in s 8(7) and (13) to
include the Secretary of State, immigration officers, adjudicators and the AIT.
Such an authority has to ‘take account, as damaging credibility, of any behaviour
to which this section applies’. The ‘behaviour to which this section applies’ is set
out in sub-ss (2), (3), (4), (5), (6) and (9) and includes wide-ranging matters. For
example, s 8(3)(e) states that the ‘failure without reasonable explanation to
answer a question asked by a deciding authority’ will be treated in such as way
that it ‘shall be treated as designed or likely to conceal information or to
mislead’. The risk here is that an assessment of credibility can be based as much
on the cultural background of the deciding authority as on the cultural
background of the person being interviewed. Consequently, the late Earl Russell
declared that ‘many applicants come from countries in which what is taken for a
reasonable explanation is very different from what is taken as one here’
(Hansard, HL, vol 659, No 53, 15 March 2004 at col 81). This is not like the
examination of an objective fact, such as in s 8(3)(a), which concerns itself with ‘a
failure to produce a passport on request to an immigration officer’. This is
because, unlike a situation where a person does not, without reasonable
explanation, produce a passport or a document, or explain why he or she has
destroyed it, which is a concrete matter, the ‘failure without reasonable
explanation to answer a question’ is not a concrete situation at all. It is bound to
be ridden with problems. Moreover, a person may not be answering directly or
may be concealing information for reasons of trauma, cultural
misunderstanding or sheer prudence that an answer might cause problems
elsewhere. The government has, however, accepted that the provision will have
to be applied with sensitivity and care. Lord Bassam stated:
[W]e accept that some claimants may have some cultural distance from the
experience of responding to questions and that some claimants may find it
painful to recount the details of their experience. Obviously, it depends very
much on the circumstances. It is possible that the circumstances could provide a
reasonable explanation for a claimant’s earlier reluctance, or reticence, to provide
a full story or to be entirely truthful. We fully understand the need for sensitive
evaluation to take place – we see that as a requirement [ibid at col 687].
However, it is interesting to note that any other reasons which an appellate
authority may have for disbelieving a claimant are still preserved intact by sub-s
(12). Thus, credibility could be taken into account by a deciding authority on
that basis.
Interestingly, since this provision came into effect in January 2005, the Home
Office has not relied on it as much as one would have expected. This is telling. It
is good indication of the way in which s 8 is likely to apply, despite its strict
wording. The following observations can be tentatively made about is
application and effect as it currently stands. First, it is clear that whereas this
section applies to all assessments of credibility, including those arising in respect
of an appeal from a pre-1 January 2005 decision caught by this section, it is
confined at present to asylum and human rights appeals and not to other
immigration decisions. Secondly, it is also clear that whilst its application is
mandatory, it does not require disbelief of a claim. It merely requires the
specified conduct to be taken into account. This suggests a distinction between
Commentary on the Act 11
judge is there to decide that issue. However, ‘[t]he man on the bench is not a
detective … A court of law is not a fact finding commission. It is there to try an
issue … In a criminal case, it must decide whether the Crown has shown,
beyond any reasonable doubt, that the accused is guilty. If it has not, he must be
acquitted. In civil cases comparable rules apply’ (see Sheriff Dobie, Plain Tales
from the Courts, 1957, Green, at 137–38). When the court finds facts, it does so on
the material available to it. Too often, courts and tribunals are criticised for not
making the ‘right’ decision. However, the failing is often of the legal
representatives who have not put the right material before them. A decision-
maker can only work with what is before him or her. As Lord McClusky has
stated: ‘[t]he facts are a creation of the court using the material provided in the
evidence. Facts can be established in a number of ways, for example by
admission or agreement, by inference drawn from other facts, by judicial
knowledge, as well as by the normal method of the court’s accepting as a fact
that which a reliable witness swears to. But, when making findings of fact, the
decision to hold a particular fact established must be based on a consideration of
the whole evidence’ (see Lord McClusky, Criminal Appeals, at 73–74).
Where the ‘cultural competence’ of the decision-maker comes into issue,
however, is in the consideration of the ‘whole evidence’. In immigration and
asylum cases in particular, if cultural handicaps are not taken sufficiently into
account, there is scope for error in the fact-finding process. For example, at its
simplest, it is well known that accounts evolve (see Eleilmaran 00/TH/01369)
and they are likely to evolve considerably with illiterate and traumatised
individuals whose recollection of events is patchy. At a more complex level, the
appellant may actually be embellishing an account, even where he has a genuine
claim. In an earlier case, Judge David Pearl cautioned against this when he said:
‘[I]t is always important to remember in cases of this kind that witnesses often
lie … Quite often they are nervous or confused. In many cases they have been
advised to answer questions in a certain way by friends who simply do not
understand the importance of telling the truth … But just because the witness
told lies in one aspect of a case should not inevitably lead to the conclusion that
the burden of truth has not been discharged’ (see Mahmood (10629) unreported,
3 February 1994, IAT).
It is in this context that ‘cultural jurisprudence’ in decision-making may well
be needed so that the cultural dimension inherent in the claim can be integrated
into the fact-finding process (see Juss, SS, ‘Discretion and deviation in the
administration of immigration control’ (with a foreword by Sir Louis Blom-
Cooper QC), in Modern Legal Studies (1997, Sweet & Maxwell) at 6–7, 26–35). In
Asif (2002 SLT at 307), the Inner House of Court of Session said that: ‘… we
accept, without reservation, that credibility is an issue which must be
approached with care and with sensitivity to cultural differences and the very
difficult position in which the applicants escaping from persecution often find
themselves for a variety of reasons.’ Such sensitivity, especially in immigration
appeals, may well lead to the realisation in the fact-finding process that
incongruity in factual accounts is not fatal to a claim. In fact, incongruous
accounts may well be perfectly natural. Thus, it has been well recognised that
‘[d]iscrepancies are of course an inevitability where, often after long events, and
often in a language that is foreign to the applicant, an explanation comes to be
given’ (see R v IAT ex p Gba (CO/4185/1999)).
Commentary on the Act 15
1 May 2004, those from the Accession State countries have ceased to be eligible
for support unless a failure to provide support would breach ECHR
considerations. It is worth repeating the concession drawn from the government
by Lord Lester when he said: ‘I wish to make it clear beyond doubt that the
Government are saying that there is an absolute duty under the European
Convention, even for a failed asylum seeker who has not been co-operating and
who has no reasonable excuse for being here … not to withdraw support if to do
so would expose that person or his family to inhuman or degrading treatment.’
The government stated that this is ‘government policy’ (see ibid, Hansard,
col 702, per Lord Bassam).
raised with the breadth and scope of this power. One is the circumstances in
which the documents are likely to ‘come into the possession’ of the official in
question. Another question is whether the provision authorises the Home Office
or the Immigration Service to hold almost any document of a person with
limited leave. However, another is when precisely the documents would be
returned back to the person, if at all, and whether this would be on that person’s
removal or on his or her being granted leave to remain. The statutory provision
contains nothing about the return of the documents, how long they will be
retained, and when and in what manner they will be returned, nor is it
explained why this power is necessary, given the power in the Immigration Act
1971. It is likely that one purpose behind the provision is to legalise the well
known Home Office practice of retaining passports of people who say they have
entered illegally or who are over-stayers, but who have sent their passports in
attached with applications for leave to remain. The Home Office has been
known to retain passports even when the person in question expresses an
intention to depart voluntarily.
It appears that the provision has been deemed necessary because the 1971
Act only covers immigration officers and does not cover case workers. Further,
the provision widens the scope of documents that can be retained to include
those that may help the redocumentation process. The question of which
documents can be held and for how long is obviously crucial. In the House of
Lords, Baroness Scotland has confirmed that ‘[w]e expect to hold any document
that facilitates removal, but primarily passports and identity cards. We must be
working towards removal, so the power would be limited. Such documents will
be returned unless they are forged or counterfeit’ (Hansard, vol 660, No 73,
26 April 2004, at col 674). However, the use of this power is bound to be both
problematic and controversial, no doubt leading to legal challenges as to both
the propriety and extent of retention. It is arguable that the reference to
‘passports’ and ‘identity cards’ envisages the kind of documentation that the
legislature intended, rather than any documentation that is found on the person
of the asylum seeker. As to the question about when the documents may ‘come
into possession’, the government has explained that ‘[t]hey come into possession
if they can be supplied with applications and they can be obtained during
enforcement visits’. This suggests that documents can be seized in very wide-
ranging circumstances.
control holds either entry clearance for the purpose of the marriage, or written
permission from the Secretary of State, or is in an exempt category.
The scope for review of the tribunal’s decision under the new Act is now
limited. This is bound to cause some concern in the circumstances outlined
above. A new s 103A allows a party to an appeal to the tribunal to apply to the
High Court for an order requiring the tribunal to reconsider its decision on
appeal, on the ground that the tribunal made an error of law. The High Court
will only remit the case back to the tribunal for reconsideration if it is of the
opinion that the tribunal has made such an error. The mere finding of an error of
law, however, will not win a remittal. As Lord Falconer, the government minister
in the House of Lords, additionally explained: ‘[w]e would expect cases to be
sent back to the tribunal only if the judge thinks the error of law may have made
a difference to the outcome of the case and we will ask the Civil Procedure Rules
Committee to make this clear in the civil procedure rules’ (Hansard, HL, vol 660,
No 77, 4 May 2004 at col 995). The decision of the High Court will be final. It will
not be possible for a party to use this review procedure to call into question
procedural, ancillary or preliminary decisions, nor will it be possible for a party
to make more than one application to the High Court for a review. This is bound
to cause unfairness. If, for example, a decision refers the case back to the
tribunal, that tribunal could adopt a different line of reasoning to uphold its
earlier decision. This adoption of a different line of reasoning may well itself be
the result of the High Court judge’s own intervention. However, if the grounds
of the decision of the tribunal were very substantially different from the grounds
of the first decision, a second application may well be considered to be wholly
warranted. It is wrong to exclude such an application in these circumstances. If
the government was worried about this paving the way for multiple
applications, the filter mechanism provided by the requirement to seek
‘permission’ is a secure safeguard against that. What is wrong is in the
government legislating against the making of a second application in
circumstances where only the court is best placed to determine the merits or
otherwise of such an application. Thus, there is only one chance to go to the
High Court. On a remittal back for reconsideration, any further oversight of the
tribunal’s decision will then only be by way of appeal to the Court of Appeal.
The government expects the new system of review to work much more
efficiently and expeditiously than the previous one. Under the old system, cases
could take up to a year to go through every stage of the process. The
government expects the new system to take no more than 15 weeks. It is
anticipated that it will take eight weeks from when the appeal is lodged until the
appeal is promulgated by the tribunal. Hearings will focus on key issues. Most
appeals will come to an end after eight weeks. Where, however, an appellant
wishes to challenge the tribunal decision, it may take a further seven weeks to
have the review carried out and, if appropriate, any reconsideration of the case
by the tribunal.
Various provisions of s 103 are drafted to implement these objectives. Thus,
the further appeal on a point of law to the Court of Appeal (by way of appeal
and not by way of review), to be brought only subject to permission to appeal
either from the tribunal or the Court of Appeal, is contained in s 103B. There are
then two separate provisions that deal with ‘leap-frog’ appeals. First, the power
of the High Court itself to refer a case straight to the Court of Appeal, where the
judge thinks it raises a question of law of such importance that it should be
decided by the Court of Appeal, is contained in s 103C. This procedure has the
24 A Guide to the Asylum and Immigration Act 2004
notice of the tribunal’s decision in accordance with the rules. There may be
problems here. First, the date of the actual receipt of the notice may be later than
the deemed date under the rules. This is particularly the case where the postal
service is used and this may lead to delay. A ‘deemed date’ should be acceptable
only if the time as a whole that is provided is reasonable and it can be accepted
that the deemed date may be a day or two in advance of the actual date of
receipt. Secondly, the period allowed is not even five full days; it is more like
four. The day on which the notice is deemed to have been received is the first
day of the five day period. Thus, an application received on Monday will have
to be submitted before the court closes for business on Friday afternoon. An
appellant’s lawyer, if there is one acting, will not be able to set out grounds of
appeal before seeing what the tribunal has said. The lawyer will have to read the
tribunal’s decision first. He or she will have to consider further the legal issues
involved in the decision. He or she may have to consult with the client. The
lawyer will then have to draft grounds of appeal. He or she will have to get the
application in proper order and will have to submit it to the appropriate court
before it closes for business on the last available day. Busy lawyers will have
several cases running at the same time.
Under sub-s (4)(b), there is a safety valve provision which allows an
appropriate court to permit an application to be made outside the period
specified. This, however, is not an adequate reason for allowing such a short
time period for appeal. If applications made out of time become frequent, it will
lead to unnecessary time wasting and cost wasting satellite arguments about
whether there is adequate justification for the delay. The government is storing
up problems for itself in legislating in this way. The present time for appealing is
10 working days. That is quite a short period, but it would have been sufficient
for most cases. If this specified time limit of five days is applied strictly, then it
will likely have the unfortunate consequence of persuading more applicants to
apply to the court for an extension of the statutory time limit. This is because
cases have to be properly prepared and presented and many will argue that that
cannot be done in five days. Indeed, this could lead to a violation of the
fundamental principles of refugee law. The JCHR, in its sixth report of session
2003–04, stated that ‘the UNHCR has expressed the same concern about the five
day limit and the likelihood that it may result in … contravention of the
fundamental principle of non-refoulement in Article 33 of the 1951 Convention
relating to the status of refugees’. In an appropriate case, therefore, this time
limit may be challengeable if it falls short of international standards of fairness,
while seriously compromising the ability of asylum applicants to access their
rights of appeal. Lord Ackner, a Law Lord with considerable experience in this
field, voiced his concern that ‘it is obviously desirable that any time limit should
be fair, but it is even more important that it is practical’ (see Hansard, HL,
vol 662, col 18, per Lord Ackner).
The government’s justification for the five day time limit is that it is not the
appeal against the initial decision by the Secretary of State or the entry clearance
officer that is in issue. The review process is designed to allow a tribunal
decision to be reconsidered. The review process applies if there has been an error
of law by the tribunal that affected the tribunal appeal determination. It does not
apply if there is no error of law. It does not apply if the appellant is simply
26 A Guide to the Asylum and Immigration Act 2004
disgruntled by the decision. In these circumstances, it has been reasoned that the
shorter time limit of five working days best achieves the balance between speed
and fairness. The government has said that the five day period is practicable. It
has given two reasons for this: first, the legal representative should already be
familiar with the case through the earlier work on the appeal and the initial
claim to the IND; secondly, the kind of points that are in issue here are with
regard to an ‘error of law’ and these should be familiar to the lawyers from their
experience of judicial review and statutory review. However, the government
minister has conceded that: ‘If there is a genuine exceptional reason why the
application should not be made in five days, it is down to the judge to decide
whether to allow a late application’ (see ibid, Hansard, col 19, per Lord Filkin).
This exception, however, may well become the rule, if the reports about
difficulties in getting adequate legal representation in time are true. The five day
time limit is short enough as it is. It is not going to be known when a decision is
going to come through. When it arrives, the decision must be read by advisers
and instructions taken from the appellant, who may be many miles away.
Interpreters will have to be found. The application to the High Court will have
to be prepared. The haste inflicted will be conducive to neither good quality nor
efficiency. Children’s charities (and advisers) have reported difficulties in
finding good legal aid representatives. There is far more demand from those
working with refugee children for these services than there is a supply of those
services. Many hours are already spent trying to find a good lawyer who is
willing and able to take on a case. The stringent time limit here will only make
the position worse.
Under the new s 103A, the review procedure will be ex parte. That means that
there is an opportunity afforded to a party to direct to a higher court a challenge
that there has been an error of law by the AIT. If the judge in that case is then
persuaded by that argument, he or she may direct a ‘reconsideration’. The High
Court is not unused to having had the benefit in the past of receiving written
submission from all parties before determining a review. Such a proposal has
now controversially been rejected on the grounds that it would add to the delay
in the disposition of the case. Instead, the government has reasoned that s 103A
allows the proper exercise of High Court supervision on points of law, but does
not take away from the specialist tribunal the reconsideration of those matters.
Most cases would be heard by a single judge, but there is provision for a panel of
judges to hear an appeal if the President takes the view that it is a pivotal case
that will set a precedent relevant to other cases. There would then be three
judges in the AIT hearing such a case. However, what is arguably wrong about
this approach is that it creates an internal appeal system within the tribunal itself
in which, if the case arises in England, the judge of the High Court effectively
gives leave to appeal from one part of the tribunal to another panel or individual
within the tribunal.
Another controversial provision in s 103 is jurisdiction over costs. In
determining whether costs should be ordered or not, the government has
effectively replaced the Legal Services Commission with the judiciary exercising
that power. Lord Falconer has justified the new system on the ground that ‘[w]e
are asking lawyers to share the risk with the taxpayer when deciding whether
there is an arguable case against the tribunal decision ... One could say we are
Commentary on the Act 27
asking the legal representative to share the risk of bringing a case’ (Hansard,
vol 660, No 77, 4 May 2004, col 997). It is not immediately clear, however, why
lawyers should be placed in such an invidious position. Lord Falconer has
further added: ‘I would call the scheme “no win, no fee”, but subject to
exceptions’ (ibid, Hansard, at col 998). However, it is highly debatable whether
the lives of the vulnerable and the persecuted from abroad should be subjected
to the vagaries of the system. Lord Falconer has further said that legal aid may
be ordered by a judge in applications that were ‘near misses’. As he explained: ‘I
think we all know what we are talking about when we speak of near misses, but
we have to think carefully how this is captured in the regulations’ (ibid at
col 998). However, this is precisely the problem. The incorporation of such a
standard in the rules (assuming that it could be done) is likely to be arbitrary
and far from successful.
The notion that, under the new system, the judge would order costs only if
he or she decided that the case was either successful or a near miss is bound to
have the effect of forcing solicitors to be unduly cautious in approaching cases.
First, solicitors are likely to give up legal aid work in this area of practice
because they feel that they are simply unable to work if they do not know
whether they will be paid at all. Secondly, there is a clear possibility of a conflict
of interest between the lawyer, whose attitude is likely to be that he or she will
act only if the application is almost certain to succeed, and the lay client, who
will want the application to proceed if he or she has an arguable case. This will
have a direct bearing on the right of access to court for that section of the
population that is impoverished and vulnerable. The problem could be avoided
if the courts interpreted this provision to read as applying to every arguable case
so that representation can be granted to all arguable cases. This would both
avoid the conflict of interest and allow more cases to be taken up. Such a
position is completely tenable. This is because effective filters already exist
against the abuse of the legal aid system by lawyers. First, where firms
undertake publicly funded immigration work, the Legal Services Commission
already imposes strict controls in the form of cost assessments audits, Quality
Mark audits and peer review. Secondly, even under the existing system, it is not
the solicitor who determines whether the case has sufficient merit and whether
an appeal to the AIT should be publicly funded, but the Legal Services
Commission, as has been the case for some years now. Thirdly, all lawyers who
practise publicly funded work in such areas as immigration and asylum law
will, from 2005, be subjected to the accreditation system, thus further minimising
their ability to take anything but the most meritorious cases. On any view,
therefore, this new provision is unnecessary.
Firms wishing to specialise in this field, but who find the new system
unworkable, will be forced into providing representation on a no win, no fee
basis. This will be most regrettable as it will also be unlikely to work. One
cannot exclude the possibility that some practitioners somewhere (whether
unscrupulous or faint-hearted) may put children and families at risk because
they may tell them that their case is not strong enough to be taken on and, if
they want to appeal, they must pay privately. Commenting on this section, the
Medical Foundation for the Care of Victims of Torture has said: ‘where torture
had been alleged it can not possibly be in the interest of justice to allow the
28 A Guide to the Asylum and Immigration Act 2004
properly dealt with by a system. In such cases, they will permit judicial review.
They will do so on grounds of perversity or disproportionality. That makes the
case for the government’s reform untenable.
According to the government, one of the objectives of the Act is to reduce
delay. However, the reasons for the delay cannot always be put at the door of the
asylum seeker. It is well known that one of the biggest causes of delay in the
asylum system is the gap between the application for asylum made by an
asylum seeker to the Home Office and the decision reached by the Home Office.
Then, when a decision is reached by the Home Office, it is often known to be
wrong. In 2003, more than 64,000 initial decisions were made by the Home
Office in respect of asylum seekers. However, well over 16,000 of those were
subsequently overturned because they were wrong. This is a massive waste of
resources for which the government, and not the asylum seeker, is responsible.
Other countries avoid this waste. In Canada, only 1% of initial decisions are
overturned. There has been criticism of the government on this front. The Home
Affairs Select Committee stated that: ‘the real flaws in the system appear to be at
the stage of initial decision-making, not that of appeal’ (see Hansard, vol 662, col
61, per Lord McNally). Similarly, the Constitutional Affairs Select Committee
said that: ‘we recommend that the removal of a formal tier of appeal should not
be undertaken until it can be shown that there has been a significant
improvement in initial decision-making and the rise in the number of successful
first-tier appeals has been substantially reversed’ (ibid at col 61).
It is the system at the lower end which must be reformed. Many decisions
are perverse simply because of a failure to give proper attention to them. An
applicant makes his application for asylum status by completing a 19 page form.
He can respond in English only. His replies on the form will be checked against
the Home Office information on countries of origin. That information is often
incomplete, out-of-date, or just plain wrong. It can conflict with Foreign Office
assessments at home and with US State Department assessments abroad. The
applicant is then invited for an asylum interview. This is a crucial stage in the
asylum process: it is the only occasion when the applicant will be in direct
contact with, and directly able to give answers to, anyone from the Home Office.
However, he or she will often have received no legal advice and will have no
legal representative available to assist him or her during this interview. Case
workers are paid on average £15,000 a year, an indication of the level of their
experience and the esteem value in the asylum system. The applicant is likely to
face a ‘culture of disbelief’. Country information (even if incomplete) may be
overlooked. Wrongful assumptions may be made to undermine the applicant’s
claim. The prevalence of bribery in poor countries may routinely go
unrecognised. Knowledge about how police and prison officers work in foreign
countries may be falsely claimed; worse, instances of casual brutality, rape and
torture may go unrecognised. However, these are the very reasons why the
applicant fears persecution. If the government was to have an independent
asylum decisions board (such as the refugee protection division in Canada) and
an independent centre for documentation and information on countries of
origin, this would dramatically improve the quality of initial decisions.
However, under existing arrangements, the paperwork forming the basis of that
first asylum interview will then be used by a senior immigration officer to make
30 A Guide to the Asylum and Immigration Act 2004
them. This suggests that the IAT should not have refused leave in more than 100
cases (see Hansard, HL, vol 659, No 53, 15 March 2004, at col 72). Sir Duncan
Ouseley, the President of the IAT, in giving his evidence to the Select Committee
on Constitutional Affairs, said that one-third of those who applied for leave to
appeal to the IAT and to whom it was granted cannot be said to have abused the
system. For the two-thirds who have been refused, he said that the time taken to
process their cases was a measure of the delay created by the existence of the
second tier, but which is necessary in every other context.
is afforded to a person who has a work permit on arrival at the time of refusal,
even if he falls within the listed categories.
abroad. Section 11 will cover those countries that have agreed to be bound by the
Dublin Convention (Council Regulation (EC) No 343/2003). Under s 12,
moreover, countries can be certified as safe on a case by case basis. Those
countries that are bound by the Dublin arrangements will be subject to a
deeming provision for Refugee Convention purposes under the new provisions.
There is also a limited human rights deeming provision which would prevent a
challenge on the basis of removal from the third country. The deeming provision
for Refugee Convention purposes will also be such as to allow an extension to
countries that would not be covered by s 11. It is in this way that s 33 is wider
than s 11. Other countries can be certified as safe for a given individual, but
what is now possible is that in relation to certain countries, the legislation will
provide for human rights claims to be certified as clearly unfounded, unless the
Secretary of State is satisfied that they are not clearly unfounded. What this
means is that for the purposes of the Refugee Convention and the ECHR, there
is a graduated approach to the ‘safety’ of third countries under these provisions.
Section 33 will repeal ss 11 and 12 of the Immigration and Asylum Act 1999
and introduce a Schedule 3. This contains replacement provisions. Under this,
ss 80 and 93 of the NIAA 2002 are also repealed. These had set out an amended
version of s 11 and limited the right to an ‘in-country’ appeal in relation to
removal to safe third countries. Schedule 3 now deals with the appeal
provisions. Under Part 2 of Schedule 3, there are deeming provisions for the
safety of countries for the purposes of the Refugee Convention and for claims
that onward removal from the State would breach the ECHR. All other human
rights claims would be certified by the Secretary of State as being clearly
unfounded unless he is satisfied that they are not. Paragraph 2 of Schedule 3
applies to those countries that are bound by the Dublin arrangements and these
are currently the members of the enlarged EU (from May 2004), together with
Norway and Iceland. Further countries may be added additionally to the Dublin
arrangements by order. In determining whether a person can be removed to a
country under paragraph 3, the same considerations apply as applied under s 9
of the 1999 Act, which deemed countries to be safe for the purposes of the
Refugee Convention (see above). Under paragraph 4, s 77 of the NIAA 2002
(which prevented removal while an asylum claim is pending) is disapplied. This
is where the Secretary of State certifies that a person is to be removed to a listed
State and he is not a national or citizen of that State. However, paragraph 5
prevents a person being removed from bringing an appeal within the UK on the
basis that the country is not safe for Refugee Convention purposes or for ECHR
purposes. Where a human rights claim made on another basis is certified as
clearly unfounded, then paragraph 5 provides that a person being removed is
prevented from bringing an appeal within the UK. Any human rights claim
against removal would be certified by the Secretary of State unless he is clearly
satisfied that it is not. Under paragraph 6, a person is prevented from bringing
an appeal from outside the UK on any ground inconsistent with the provisions
in paragraph 3 which have been set out above. There may be countries that are
not listed under Part 2, which are deemed to be safe for the purposes of the
Refugee Convention and this is dealt with under Part 3 of Schedule 3. All human
rights claims against removal will be certified by the Secretary of State as being
clearly unfounded unless he is satisfied that they are not. An order will specify
such a list of countries. In considering whether a person may be removed to a
36 A Guide to the Asylum and Immigration Act 2004
Schedules
There is a new provision for dismissal for immigration judiciary that is
unprecedented. Schedule 1(3)(1)(c) states, in relation to a member of the new
Asylum and Immigration Tribunal (AIT), that such a member ‘shall hold and
Commentary on the Act 41
vacate office in accordance with the terms of his appointment (which may
include provision for dismissal)’. A judicial officer’s terms of appointment had
not previously included a provision for dismissal in the terms of appointment. It
is just as well that this has now been shelved after considerable opposition to
these proposals. However, in a single unified system, the role of immigration
adjudicators (or ‘judges’) will be even more important than it was previously.
Accordingly, the Council of Immigration Judges has expressed the concern that
this provision could be used to dismiss any members of the new tribunal if there
was dissatisfaction with their decisions. Given that it is a term of their
engagement that tribunal members comply with practice directions (which is
novel in itself), such a concern would not have appeared to be misplaced. A term
on compliance with practice directions as part of their engagement is
unnecessary because judicial officers will observe practice directions by mere
virtue of the fact that they are issued by someone with authority to issue them.
The change to the immigration judiciary’s term of appointment is not now to
take effect. However, it has underlined and underscored the highly controversial
nature of this new piece of immigration legislation.
THE ASYLUM AND IMMIGRATION (TREATMENT
OF CLAIMANTS, ETC) ACT 2004
OFFENCES
1 Assisting unlawful immigration
(1) At the end of section 25 of the Immigration Act 1971 (c 77) (offence of
assisting unlawful immigration to member State) add–
“(7)In this section–
(a) a reference to a member State includes a reference to a State on a
list prescribed for the purposes of this section by order of the
Secretary of State (to be known as the ‘Section 25 List of Schengen
Acquis States’), and
(b) a reference to a citizen of the European Union includes a
reference to a person who is a national of a State on that list.
(8) An order under subsection (7)(a)–
(a) may be made only if the Secretary of State thinks it necessary for
the purpose of complying with the United Kingdom’s obligations
under the Community Treaties,
(b) may include transitional, consequential or incidental provision,
(c) shall be made by statutory instrument, and
(d) shall be subject to annulment in pursuance of a resolution of
either House of Parliament.”
(2) In section 25C(9)(a) of that Act (forfeiture of vehicle, ship or aircraft) for
“(within the meaning of section 25)” substitute “(for which purpose
‘member State’ and ‘immigration law’ have the meanings given by
section 25(2) and (7))”.
2 Entering United Kingdom without passport, &c
(1) A person commits an offence if at a leave or asylum interview he does not
have with him an immigration document which–
(a) is in force, and
(b) satisfactorily establishes his identity and nationality or citizenship.
(2) A person commits an offence if at a leave or asylum interview he does not
have with him, in respect of any dependent child with whom he claims to
be travelling or living, an immigration document which–
(a) is in force, and
(b) satisfactorily establishes the child’s identity and nationality or
citizenship.
(3) But a person does not commit an offence under subsection (1) or (2) if–
(a) the interview referred to in that subsection takes place after the
person has entered the United Kingdom, and
(b) within the period of three days beginning with the date of the
interview the person provides to an immigration officer or to the
44 A Guide to the Asylum and Immigration Act 2004
(b) he believes that another person is likely to exploit the passenger in the
United Kingdom or elsewhere.
(3) A person commits an offence if he arranges or facilitates the departure
from the United Kingdom of an individual (the “passenger”) and–
(a) he intends to exploit the passenger outside the United Kingdom, or
(b) he believes that another person is likely to exploit the passenger
outside the United Kingdom.
(4) For the purposes of this section a person is exploited if (and only if)–
(a) he is the victim of behaviour that contravenes Article 4 of the Human
Rights Convention (slavery and forced labour),
(b) he is encouraged, required or expected to do anything as a result of
which he or another person would commit an offence under the
Human Organ Transplants Act 1989 (c 31) or the Human Organ
Transplants (Northern Ireland) Order 1989 (SI 1989/2408 (NI 21)),
(c) he is subjected to force, threats or deception designed to induce him–
(i) to provide services of any kind,
(ii) to provide another person with benefits of any kind, or
(iii) to enable another person to acquire benefits of any kind, or
(d) he is requested or induced to undertake any activity, having been
chosen as the subject of the request or inducement on the grounds
that–
(i) he is mentally or physically ill or disabled, he is young or he has
a family relationship with a person, and
(ii) a person without the illness, disability, youth or family
relationship would be likely to refuse the request or resist the
inducement.
(5) A person guilty of an offence under this section shall be liable–
(a) on conviction on indictment, to imprisonment for a term not
exceeding 14 years, to a fine or to both, or
(b) on summary conviction, to imprisonment for a term not exceeding
twelve months, to a fine not exceeding the statutory maximum or to
both.
5 Section 4: supplemental
(1) Subsections (1) to (3) of section 4 apply to anything done–
(a) in the United Kingdom,
(b) outside the United Kingdom by an individual to whom subsection (2)
below applies, or
(c) outside the United Kingdom by a body incorporated under the law of
a part of the United Kingdom.
(2) This subsection applies to–
(a) a British citizen,
(b) a British overseas territories citizen,
(c) a British National (Overseas),
(d) a British Overseas citizen,
(e) a person who is a British subject under the British Nationality Act
1981 (c 61), and
(f) a British protected person within the meaning of that Act.
48 A Guide to the Asylum and Immigration Act 2004
(3) In section 4(4)(a) “the Human Rights Convention” means the Convention
for the Protection of Human Rights and Fundamental Freedoms agreed
by the Council of Europe at Rome on 4th November 1950.
(4) Sections 25C and 25D of the Immigration Act 1971 (c 77) (forfeiture or
detention of vehicle, &c) shall apply in relation to an offence under
section 4 of this Act as they apply in relation to an offence under section
25 of that Act.
(5) At the end of section 25C(9)(b), (10)(b) and (11) of that Act add “or section
4 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004
(trafficking people for exploitation).”.
(6) After paragraph 2(n) of Schedule 4 to the Criminal Justice and Court
Services Act 2000 (c 43) (offence against child) insert–
“(o) an offence under section 4 of the Asylum and Immigration
(Treatment of Claimants, etc) Act 2004 (trafficking people for
exploitation).”
(7) At the end of paragraph 4 of Schedule 2 to the Proceeds of Crime Act 2002
(c 29) (lifestyle offences: England and Wales: people trafficking) add–
“(3) An offence under section 4 of the Asylum and Immigration
(Treatment of Claimants, etc) Act 2004 (exploitation).”
(8) At the end of paragraph 4 of Schedule 4 to the Proceeds of Crime Act 2002
(lifestyle offences: Scotland: people trafficking) add “or under section 4 of
the Asylum and Immigration (Treatment of Claimants, etc) Act 2004
(exploitation)”.
(9) At the end of paragraph 4 of Schedule 5 to the Proceeds of Crime Act 2002
(lifestyle offences: Northern Ireland: people trafficking) add–
“(3) An offence under section 4 of the Asylum and Immigration
(Treatment of Claimants, etc) Act 2004 (exploitation).”
(10)After paragraph 2(l) of the Schedule to the Protection of Children and
Vulnerable Adults (Northern Ireland) Order 2003 (SI 2003/417 (NI 4))
(offence against child) insert–
“(m) an offence under section 4 of the Asylum and Immigration
(Treatment of Claimants, etc) Act 2004 (trafficking people for
exploitation).”
(11) In so far as section 4 extends to England and Wales, subsection (5)(b)
shall, until the commencement of section 154 of the Criminal Justice Act
2003 (c 44) (increased limit on magistrates’ power of imprisonment), have
effect as if the reference to twelve months were a reference to six months.
(12)In so far as section 4 extends to Scotland, subsection (5)(b) shall have
effect as if the reference to twelve months were a reference to six months.
(13)In so far as section 4 extends to Northern Ireland, subsection (5)(b) shall
have effect as if the reference to twelve months were a reference to six
months.
6 Employment
(1) For section 8(4) of the Asylum and Immigration Act 1996 (c 49)
(employment: penalty) substitute–
“(4)A person guilty of an offence under this section shall be liable–
(a) on conviction on indictment, to a fine, or
The Asylum and Immigration (Treatment of Claimants, etc) Act 2004 49
(a) section 4,
(b) section 95, and
(c) section 17 of the Nationality, Immigration and Asylum Act
2002.”,
(b) in subsection (4)(a) for “the other provision” substitute “another of
those provisions”, and
(c) in subsection (7) for “subsection (1)(a) or (b)” substitute “subsection
(1)”.
(5) In section 103A of the Immigration and Asylum Act 1999 (appeal about
location of support) in subsection (1) (and in the heading) for “section 95”
substitute “section 4 or 95”.
(6) In an amendment made by this section a reference to providing
accommodation includes a reference to arranging for the provision of
accommodation.
(7) Regulations under section 4(5)(b) of the Immigration and Asylum Act
1999 (c 33) (as inserted by subsection (1) above) may apply to persons
receiving support under section 4 when the regulations come into force.
11 Accommodation for asylum seekers: local connection
(1) At the end of section 199 of the Housing Act 1996 (c 52) (local connection)
add–
”(6)A person has a local connection with the district of a local housing
authority if he was (at any time) provided with accommodation in
that district under section 95 of the Immigration and Asylum Act 1999
(support for asylum seekers).
(7) But subsection (6) does not apply–
(a) to the provision of accommodation for a person in a district of a
local housing authority if he was subsequently provided with
accommodation in the district of another local housing authority
under section 95 of that Act, or
(b) to the provision of accommodation in an accommodation centre
by virtue of section 22 of the Nationality, Immigration and
Asylum Act 2002 (c 41) (use of accommodation centres for section
95 support).”
(2) Subsection (3) applies where–
(a) a local housing authority would (but for subsection (3)) be obliged to
secure that accommodation is available for occupation by a person
under section 193 of the Housing Act 1996 (homeless persons),
(b) the person was (at any time) provided with accommodation in a place
in Scotland under section 95 of the Immigration and Asylum Act 1999
(support for asylum seekers),
(c) the accommodation was not provided in an accommodation centre by
virtue of section 22 of the Nationality, Immigration and Asylum Act
2002 (use of accommodation centres for section 95 support), and
(d) the person has neither–
(i) a local connection with the district of a local housing authority
(in England or Wales) within the meaning of section 199 of the
Housing Act 1996 as amended by subsection (1) above, nor
The Asylum and Immigration (Treatment of Claimants, etc) Act 2004 55
(g) an offence under any of the following provisions of the Theft Act 1968
(c 60)–
(i) section 1 (theft),
(ii) section 15 (obtaining property by deception),
(iii) section 16 (obtaining pecuniary advantage by deception),
(iv) section 17 (false accounting), and
(v) section 22 (handling stolen goods),
(h) an offence under section 1, 15, 16, 17 or 21 of the Theft Act (Northern
Ireland) 1969 (c 16) (NI),
(i) an offence under section 1 or 2 of the Theft Act 1978 (c 31) (obtaining
services, or evading liability, by deception),
(j) an offence under Article 3 or 4 of the Theft (Northern Ireland) Order
1978 (SI 1978/1407 (NI 23)),
(k) an offence under Article 8 or 9 of the Perjury (Northern Ireland) Order
1979 (SI 1979/1714 (NI 19)),
(l) an offence under Article 12 of that Order if it relates to an offence
under Article 8 or 9 of that Order,
(m) an offence under any of the following provisions of the Forgery and
Counterfeiting Act 1981 (c 45)–
(i) section 1 (forgery),
(ii) section 2 (copying false instrument),
(iii) section 3 (using false instrument),
(iv) section 4 (using copy of false instrument), and
(v) section 5(1) and (3) (false documents),
(n) an offence under any of sections 57 to 59 of the Sexual Offences Act
2003 (c 42) (trafficking for sexual exploitation),
(o) an offence under section 22 of the Criminal Justice (Scotland) Act 2003
(asp 7) (trafficking in prostitution), and
(p) an offence under section 4 of this Act.
(3) The following provisions of the Immigration Act 1971 (c 77) shall have
effect for the purpose of making, or in connection with, an arrest under
this section as they have effect for the purpose of making, or in
connection with, arrests for offences under that Act–
(a) section 28C (entry and search before arrest),
(b) sections 28E and 28F (entry and search after arrest),
(c) sections 28G and 28H (search of arrested person), and
(d) section 28I (seized material).
(4) In section 19D(5)(a) of the Race Relations Act 1976 (c 74) (permitted
discrimination)–
(a) for “(within the meaning of section 158 of the Nationality,
Immigration and Asylum Act 2002)” substitute “(within the meaning
of section 44 of the Asylum and Immigration (Treatment of Claimants,
etc) Act 2004)”, and
(b) at the end add “and excluding section 14 of the Asylum and
Immigration (Treatment of Claimants, etc) Act 2004”.
The Asylum and Immigration (Treatment of Claimants, etc) Act 2004 59
15 Fingerprinting
(1) Section 141 of the Immigration and Asylum Act 1999 (c 33)
(fingerprinting) shall be amended as follows.
(2) In subsection (7) for paragraph (c) substitute–
“(c) any person (“C”) in respect of whom a relevant immigration decision
has been made;”.
(3) In subsection (8) for paragraph (c) substitute–
“(c) for C, on the service on him of notice of the relevant immigration
decision by virtue of section 105 of the Nationality, Immigration and
Asylum Act 2002 (c 41);”.
(4) In subsection (9) for paragraph (c) substitute–
“(c) for C–
(i) the time when the relevant immigration decision ceases to have
effect, whether as a result of an appeal or otherwise, or
(ii) if a deportation order has been made against him, its revocation
or its otherwise ceasing to have effect;”.
(5) After subsection (15) add–
“(16) ‘Relevant immigration decision’ means a decision of the kind
mentioned in section 82(2)(g), (h), (i), (j) or (k) of the Nationality,
Immigration and Asylum Act 2002 (c 41).”
16 Information about passengers
In paragraph 27B of Schedule 2 to the Immigration Act 1971 (c 77) (control on
entry: provision of information about passengers) after sub-paragraph (4)
insert–
“(4A) The officer may ask the carrier to provide a copy of all or part of a
document that relates to a passenger and contains passenger
information.”
17 Retention of documents
Where a document comes into the possession of the Secretary of State or an
immigration officer in the course of the exercise of an immigration function,
the Secretary of State or an immigration officer may retain the document
while he suspects that–
(a) a person to whom the document relates may be liable to removal from the
United Kingdom in accordance with a provision of the Immigration Acts,
and
(b) retention of the document may facilitate the removal.
18 Control of entry
After paragraph 2A(2) of Schedule 2 to the Immigration Act 1971 (control of
entry: persons arriving with leave to enter) insert–
“(2A) Where the person’s leave to enter derives, by virtue of section 3A(3),
from an entry clearance, he may also be examined by an immigration
officer for the purpose of establishing whether the leave should be
cancelled on the grounds that the person’s purpose in arriving in the
United Kingdom is different from the purpose specified in the entry
clearance.”
60 A Guide to the Asylum and Immigration Act 2004
(b) has the written permission of the Secretary of State to marry in the
United Kingdom, or
(c) falls within a class specified for the purpose of this paragraph by
regulations made by the Secretary of State.
(4) Where the district registrar to whom notice is submitted by virtue of
subsection (2) (here the “notified registrar”) is not the district registrar for
the registration district in which the marriage is to be solemnised (here
the “second registrar”)–
(a) the notified registrar shall, if satisfied as is mentioned in subsection
(3), send the notices and any fee, certificate or declaration which
accompanied them, to the second registrar, and
(b) the second registrar shall be treated as having received the notices
from the parties to the marriage on the dates on which the notified
registrar received them.
(5) Subsection (4) of section 19 applies for the purposes of this section as it
applies for the purposes of that section except that for the purposes of this
section the reference in paragraph (d) of that subsection to guidance
issued by the Registrar General shall be construed as a reference to
guidance issued by the Secretary of State after consultation with the
Registrar General for Scotland.
22 Scotland: supplemental
(1) The Marriage (Scotland) Act 1977 shall have effect in relation to a
marriage to which section 21 applies–
(a) subject to that section, and
(b) with any necessary consequential modification.
(2) In subsection (2)(a) of that section “prescribed” means prescribed by
regulations made by the Secretary of State after consultation with the
Registrar General for Scotland; and other expressions used in subsections
(1) to (4) of that section and in the Marriage (Scotland) Act 1977 have the
same meaning in those subsections as in that Act.
(3) Regulations made by of the Secretary of State under subsection (2)(a) or
(3)(c) of that section–
(a) may make transitional provision,
(b) shall be made by statutory instrument, and
(c) shall be subject to annulment in pursuance of a resolution of either
House of Parliament.
23 Northern Ireland
(1) This section applies to a marriage–
(a) which is intended to be solemnised in Northern Ireland, and
(b) a party to which is subject to immigration control.
(2) In relation to a marriage to which this section applies, the marriage
notices–
(a) shall be given only to a prescribed registrar, and
(b) shall, in prescribed cases, be given by both parties together in person
at a prescribed register office.
(3) The prescribed registrar shall not act under Article 4 or 7 of the Marriage
(Northern Ireland) Order 2003 (SI 2003/413 (NI 3)) (marriage notice book,
The Asylum and Immigration (Treatment of Claimants, etc) Act 2004 63
(5B) Where a State or part of a State is added to the list in subsection (4)
in respect of a description of person, subsection (3) shall have effect
in relation to a claimant only if the Secretary of State is satisfied that
he is within that description (as well as being satisfied that he is
entitled to reside in the State or part).
(5C) A description for the purposes of subsection (5A) may refer to–
(a) gender,
(b) language,
(c) race,
(d) religion,
(e) nationality,
(f) membership of a social or other group,
(g) political opinion, or
(h) any other attribute or circumstance that the Secretary of State
thinks appropriate.”
(6) For subsection (6) substitute–
“(6)The Secretary of State may by order amend the list in subsection (4) so
as to omit a State or part added under subsection (5); and the
omission may be–
(a) general, or
(b) effected so that the State or part remains listed in respect of a
description of person.”
(7) After subsection (6) insert–
“(6A) Subsection (3) shall not apply in relation to an asylum claimant or
human rights claimant who–
(a) is the subject of a certificate under section 2 or 70 of the
Extradition Act 2003 (c 41),
(b) is in custody pursuant to arrest under section 5 of that Act,
(c) is the subject of a provisional warrant under section 73 of that
Act,
(d) is the subject of an authority to proceed under section 7 of the
Extradition Act 1989 (c 33) or an order under paragraph 4(2) of
Schedule 1 to that Act, or
(e) is the subject of a provisional warrant under section 8 of that
Act or of a warrant under paragraph 5(1)(b) of Schedule 1 to
that Act.”
(8) After section 112(5) of that Act (orders, &c) insert–
“(5A) If an instrument makes provision under section 94(5) and 94(6)–
(a) subsection (4)(b) above shall apply, and
(b) subsection (5)(b) above shall not apply.”
28 Appeal from within United Kingdom
For section 92(3) of the Nationality, Immigration and Asylum Act 2002 (c 41)
(appeal from within United Kingdom: person with entry clearance or work
permit) substitute–
“(3)This section also applies to an appeal against refusal of leave to enter the
United Kingdom if–
The Asylum and Immigration (Treatment of Claimants, etc) Act 2004 71
(a) at the time of the refusal the appellant is in the United Kingdom, and
(b) on his arrival in the United Kingdom the appellant had entry
clearance.
(3A)But this section does not apply by virtue of subsection (3) if subsection
(3B) or (3C) applies to the refusal of leave to enter.
(3B) This subsection applies to a refusal of leave to enter which is a deemed
refusal under paragraph 2A(9) of Schedule 2 to the Immigration Act 1971
(c 77) resulting from cancellation of leave to enter by an immigration
officer–
(a) under paragraph 2A(8) of that Schedule, and
(b) on the grounds specified in paragraph 2A(2A)[b] of that Schedule.
(3C)This subsection applies to a refusal of leave to enter which specifies that
the grounds for refusal are that the leave is sought for a purpose other
than that specified in the entry clearance.
(3D)This section also applies to an appeal against refusal of leave to enter the
United Kingdom if at the time of the refusal the appellant–
(a) is in the United Kingdom,
(b) has a work permit, and
(c) is any of the following (within the meaning of the British Nationality
Act 1981 (c 61))–
(i) a British overseas territories citizen,
(ii) a British Overseas citizen,
(iii) a British National (Overseas),
(iv) a British protected person, or
(v) a British subject.”
29 Entry clearance
(1) After section 88 of the Nationality, Immigration and Asylum Act 2002
(c 41) (appeal: ineligibility) insert–
“88A Ineligibility: entry clearance
(1) A person may not appeal under section 82(1) against refusal of
entry clearance if the decision to refuse is taken on grounds
which–
(a) relate to a provision of immigration rules, and
(b) are specified for the purpose of this section by order of the
Secretary of State.
(2) Subsection (1)–
(a) does not prevent the bringing of an appeal on either or both
of the grounds referred to in section 84(1)(b) and (c), and
(b) is without prejudice to the effect of section 88 in relation to
an appeal under section 82(1) against refusal of entry
clearance.”
(2) In section 112 of that Act (regulations, &c) after subsection (3) insert–
“(3A) An order under section 88A–
(a) must be made by statutory instrument,
(b) may not be made unless a draft has been laid before and
approved by resolution of each House of Parliament, and
(c) may include transitional provision.”
72 A Guide to the Asylum and Immigration Act 2004
(10)In so far as subsection (3) extends to Scotland, subsection (4)(b) shall have
effect as if the reference to twelve months were a reference to six months.
(11) In so far as subsection (3) extends to Northern Ireland, subsection (4)(b)
shall have effect as if the reference to twelve months were a reference to
six months.
36 Electronic monitoring
(1) In this section–
(a) “residence restriction” means a restriction as to residence imposed
under–
(i) paragraph 21 of Schedule 2 to the Immigration Act 1971 (c 77)
(control on entry) (including that paragraph as applied by
another provision of the Immigration Acts), or
(ii) Schedule 3 to that Act (deportation),
(b) “reporting restriction” means a requirement to report to a specified
person imposed under any of those provisions,
(c) “employment restriction” means a restriction as to employment or
occupation imposed under any of those provisions, and
(d) “immigration bail” means–
(i) release under a provision of the Immigration Acts on entry into a
recognizance or bail bond,
(ii) bail granted in accordance with a provision of the Immigration
Acts by a court, a justice of the peace, the sheriff, the Asylum and
Immigration Tribunal, the Secretary of State or an immigration
officer (but not by a police officer), and
(iii) bail granted by the Special Immigration Appeals Commission.
(2) Where a residence restriction is imposed on an adult–
(a) he may be required to cooperate with electronic monitoring, and
(b) failure to comply with a requirement under paragraph (a) shall be
treated for all purposes of the Immigration Acts as failure to observe
the residence restriction.
(3) Where a reporting restriction could be imposed on an adult–
(a) he may instead be required to cooperate with electronic monitoring,
and
(b) the requirement shall be treated for all purposes of the Immigration
Acts as a reporting restriction.
(4) Immigration bail may be granted to an adult subject to a requirement that
he cooperate with electronic monitoring; and the requirement may (but
need not) be imposed as a condition of a recognizance or bail bond.
(5) In this section a reference to requiring an adult to cooperate with
electronic monitoring is a reference to requiring him to cooperate with
such arrangements as the person imposing the requirement may specify
for detecting and recording by electronic means the location of the adult,
or his presence in or absence from a location–
(a) at specified times,
(b) during specified periods of time, or
(c) throughout the currency of the arrangements.
(6) In particular, arrangements for the electronic monitoring of an adult–
76 A Guide to the Asylum and Immigration Act 2004
IMMIGRATION SERVICES
37 Provision of immigration services
(1) For section 84(2) and (3) of the Immigration and Asylum Act 1999 (c 33)
(person qualified to provide immigration services) substitute–
”(2)A person is a qualified person if he is–
(a) a registered person,
(b) authorised by a designated professional body to practise as a
member of the profession whose members the body regulates,
(c) the equivalent in an EEA State of–
(i) a registered person, or
(ii) a person within paragraph (b),
(d) a person permitted, by virtue of exemption from a prohibition, to
provide in an EEA State advice or services equivalent to
immigration advice or services, or
(e) acting on behalf of, and under the supervision of, a person within
any of paragraphs (a) to (d) (whether or not under a contract of
employment).
(3) Subsection (2)(a) and (e) are subject to any limitation on the effect of a
person’s registration imposed under paragraph 2(2) of Schedule 6.”
(2) In section 85(1) of that Act (registration by the Commissioner) omit “and
(b)”.
(3) In section 89 of that Act (disciplinary charge upheld by Immigration
Services Tribunal)–
(a) for subsections (2) and (3) substitute–
”(2) If the person charged is a registered person or acts on behalf of a
registered person, the Tribunal may–
(a) direct the Commissioner to record the charge and the
Tribunal’s decision for consideration in connection with the
registered person’s next application for continued
registration;
(b) direct the registered person to apply for continued
registration as soon as is reasonably practicable.”, and
(b) in subsection (8) for “employed by him or working” substitute
“acting on his behalf or”.
(4) In section 90(4) of that Act (orders by disciplinary bodies) for “works
under the supervision of” substitute “is acting on behalf of”.
(5) In Schedule 5 to that Act (Immigration Services Commissioner)–
(a) for paragraph 1(1)(b) substitute–
“(b) those acting on behalf of registered persons,”,
(b) for paragraph 1(3)(b) substitute–
“(b) any person acting on behalf of that person.”,
(c) for paragraph 3(3)(b) substitute–
“(b) a person who is acting on behalf of a person who is within
paragraph (a);”,
(d) for paragraph 4(1)(b) substitute–
78 A Guide to the Asylum and Immigration Act 2004
(a) at any time within the period of six months beginning with the
date (or first date) on which the offence is alleged to have been
committed, or
(b) at any time within both–
(i) the period of two years beginning with that date, and
(ii) the period of six months beginning with a date specified, in a
certificate signed by or on behalf of the procurator fiscal, as
the date on which evidence sufficient in his opinion to
warrant such proceedings came to his knowledge,
and any such certificate purporting to be so signed shall be
deemed so signed unless the contrary is proved and be
conclusive as to the facts stated in it.
(7) Subsection (3) of section 136 of the Criminal Procedure (Scotland) Act
1995 (c 46) (date on which proceedings are deemed commenced) has
effect to the purposes of subsection (6) as it has effect for the purposes
of that section.
(8) A complaint charging the commission of an offence under this section
may in Northern Ireland be heard and determined by a magistrates’
court if–
(a) it is made within the period of six months beginning with the
date (or first date) on which the offence is alleged to have been
committed, or
(b) it is made–
(i) within the period of two years beginning with that date, and
(ii) within the period of six months beginning with a date
certified by the Immigration Services Commissioner as the
date on which the commission of the offence came to his
notice.”
40 Appeal to Immigration Services Tribunal
Section 87(3)(f) of the Immigration and Asylum Act 1999 (c 33) (appeal to
Tribunal against deferral of decision) shall cease to have effect.
41 Professional bodies
(1) Section 86 of the Immigration and Asylum Act 1999 (designated
professional bodies) shall be amended as follows.
(2) For subsection (2) substitute–
”(2)The Secretary of State may by order remove a body from the list in
subsection (1) if he considers that the body–
(a) has failed to provide effective regulation of its members in their
provision of immigration advice or immigration services, or
(b) has failed to comply with a request of the Commissioner for the
provision of information (whether general or in relation to a
particular case or matter).”
(3) For subsection (9)(b) substitute–
“(b)report to the Secretary of State if the Commissioner considers that a
designated professional body–
(i) is failing to provide effective regulation of its members in their
provision of immigration advice or immigration services, or
82 A Guide to the Asylum and Immigration Act 2004
(ii) has failed to comply with a request of the Commissioner for the
provision of information (whether general or in relation to a
particular case or matter).”
(4) After subsection (9) insert–
“(9A) A designated professional body shall comply with a request of the
Commissioner for the provision of information (whether general or in
relation to a specified case or matter).”
(5) In section 166(2) of the Immigration and Asylum Act 1999 (c 33)
(regulations and orders) after “in relation to” insert “orders made under
section 90(1),”.
(6) For paragraph 21(2) of Schedule 5 to the Immigration and Asylum Act
1999 (Commissioner: annual report) substitute–
“(2)The report must, in particular, set out the Commissioner’s opinion as
to the extent to which each designated professional body has–
(a) provided effective regulation of its members in their provision of
immigration advice or immigration services, and
(b) complied with requests of the Commissioner for the provision of
information.”
FEES
42 Amount of fees
(1) In prescribing a fee for an application or process under a provision
specified in subsection (2) the Secretary of State may, with the consent of
the Treasury, prescribe an amount which is intended to–
(a) exceed the administrative costs of determining the application or
undertaking the process, and
(b) reflect benefits that the Secretary of State thinks are likely to accrue to
the person who makes the application, to whom the application
relates or by or for whom the process is undertaken, if the application
is successful or the process is completed.
(2) Those provisions are–
(a) section 41(2) of the British Nationality Act 1981 (c 61) (fees for
applications, &c under that Act),
(b) section 5(1)(a) and (b) of the Immigration and Asylum Act 1999 (fees
for application for leave to remain, &c), and
(c) sections 10 and 122 of the Nationality, Immigration and Asylum Act
2002 (c 41) (certificate of entitlement to right of abode; and fees for
work permit, &c).
(3) An Order in Council under section 1 of the Consular Fees Act 1980 (c 23)
(fees) which prescribes a fee in relation to an application for the issue of a
certificate under section 10 of the Nationality, Immigration and Asylum
Act 2002 (right of abode: certificate of entitlement) may prescribe an
amount which is intended to–
(a) exceed the administrative costs of determining the application, and
(b) reflect benefits that in the opinion of Her Majesty in Council are likely
to accrue to the applicant if the application is successful.
(4) Where an instrument prescribes a fee in reliance on this section it may
include provision for the refund, where an application is unsuccessful or
The Asylum and Immigration (Treatment of Claimants, etc) Act 2004 83
(2) This section has effect in relation to a reference in this Act or any other
enactment (including an enactment passed or made before this Act).
(3) For section 158(1) and (2) of the Nationality, Immigration and Asylum Act
2002 (c 41) substitute–
“(1)A reference to ‘the Immigration Acts’ shall be construed in accordance
with section 44 of the Asylum and Immigration (Treatment of
Claimants, etc) Act 2004.”
(4) In the following provisions for “section 158 of the Nationality,
Immigration and Asylum Act 2002” substitute “section 44 of the Asylum
and Immigration (Treatment of Claimants, etc) Act 2004”–
(a) section 32(5) of the Immigration Act 1971 (c 77), and
(b) section 167(1) of the Immigration and Asylum Act 1999 (c 33).
45 Interpretation: immigration officer
In this Act “immigration officer” means a person appointed by the Secretary
of State as an immigration officer under paragraph 1 of Schedule 2 to the
Immigration Act 1971.
46 Money
There shall be paid out of money provided by Parliament–
(a) any expenditure incurred by a Minister of the Crown in connection with
this Act, and
(b) any increase attributable to this Act in the sums payable under any other
enactment out of money provided by Parliament.
47 Repeals
The enactments listed in Schedule 4 are hereby repealed to the extent
specified.
48 Commencement
(1) Sections 2, 32(2) and 35 shall come into force at the end of the period of
two months beginning with the date on which this Act is passed.
(2) Section 32(1) shall have effect in relation to determinations of the Special
Immigration Appeals Commission made after the end of the period of
two months beginning with the date on which this Act is passed.
(3) The other preceding provisions of this Act shall come into force in
accordance with provision made–
(a) in the case of section 26 or Schedule 1 or 2, by order of the Lord
Chancellor,
(b) in the case of sections 4 and 5 in so far as they extend to Scotland, by
order of the Scottish Ministers, and
(c) in any other case, by order of the Secretary of State.
(4) An order under subsection (3)–
(a) may make transitional or incidental provision,
(b) may make different provision for different purposes, and
(c) shall be made by statutory instrument.
(5) Transitional provision under subsection (4)(a) in relation to the
commencement of section 26 may, in particular, make provision in
relation to proceedings which, immediately before commencement–
The Asylum and Immigration (Treatment of Claimants, etc) Act 2004 85
SCHEDULES
SCHEDULE 1
Section 26
NEW SCHEDULE 4 TO THE NATIONALITY, IMMIGRATION AND
ASYLUM ACT 2002
“Schedule 4
THE ASYLUM AND IMMIGRATION TRIBUNAL
Membership
1 The Lord Chancellor shall appoint the members of the Asylum and
Immigration Tribunal.
2 (1) A person is eligible for appointment as a member of the Tribunal only if
he–
(a) has a seven year general qualification within the meaning of section
71 of the Courts and Legal Services Act 1990 (c 41),
(b) is an advocate or solicitor in Scotland of at least seven years’ standing,
(c) is a member of the Bar of Northern Ireland, or a solicitor of the
Supreme Court of Northern Ireland, of at least seven years’ standing,
(d) in the Lord Chancellor’s opinion, has legal experience which makes
him as suitable for appointment as if he satisfied paragraph (a), (b)
or (c), or
(e) in the Lord Chancellor’s opinion, has non-legal experience which
makes him suitable for appointment.
(2) A person appointed under sub-paragraph (1)(a) to (d) shall be known as a
legally qualified member of the Tribunal.
3 (1) A member–
(a) may resign by notice in writing to the Lord Chancellor,
(b) shall cease to be a member on reaching the age of 70, and
(c) otherwise, shall hold and vacate office in accordance with the terms of
his appointment (which may include provision–
(i) about the training, appraisal and mentoring of members of the
Tribunal by other members, and
(ii) for removal).
(2) Sub-paragraph (1)(b) is subject to section 26(4) to (6) of the Judicial
Pensions and Retirement Act 1993 (c 8) (extension to age 75).
4 The Lord Chancellor may by order make provision for the title of members of
the Tribunal.
Presidency
5 (1) The Lord Chancellor shall appoint–
(a) a member of the Tribunal, who holds or has held high judicial office
within the meaning of the Appellate Jurisdiction Act 1876 (c 59), as
President of the Tribunal, and
(b) one or more members of the Tribunal as Deputy President.
The Asylum and Immigration (Treatment of Claimants, etc) Act 2004 87
SCHEDULE 2
Section 26
ASYLUM AND IMMIGRATION TRIBUNAL: CONSEQUENTIAL
AMENDMENTS AND TRANSITIONAL PROVISION
PART 1
CONSEQUENTIAL AMENDMENTS
Immigration Act 1971 (c 77)
1 (1) Schedule 2 to the Immigration Act 1971 (control on entry) shall be
amended as follows.
(2) In the following provisions for “adjudicator” (or “an adjudicator” or “the
adjudicator”) substitute “the Asylum and Immigration Tribunal”–
(a) paragraph 22(1A), (2) and (3),
(b) paragraph 23(1) and (2),
(c) paragraph 24(2), and
(d) paragraph 25.
(3) In paragraph 24(3) for “An adjudicator, justice of the peace or sheriff
before whom a person is brought by virtue of sub-paragraph (2)(a)
above” substitute “Where a person is brought before the Asylum and
Immigration Tribunal, a justice of the peace or the sheriff by virtue of sub-
paragraph (2)(a), the Tribunal, justice of the peace or sheriff”.
(4) In paragraph 29–
(a) in sub-paragraph (2) for “an adjudicator or the Immigration Appeal
Tribunal” substitute “the Asylum and Immigration Tribunal”,
(b) in sub-paragraph (3)–
(i) for “An adjudicator” substitute “The Asylum and Immigration
Tribunal”,
(ii) for “that or any other adjudicator” substitute “the Tribunal”,
(iii) omit the words from “and where an adjudicator dismisses” to the
end,
(c) omit sub-paragraph (4), and
(d) in sub-paragraph (6)–
(i) for “an adjudicator or the Tribunal” substitute “the Asylum and
Immigration Tribunal”,
(ii) for “the adjudicator or Tribunal” substitute “the Tribunal”, and
(iii) for “the adjudicator or the Tribunal” substitute “the Tribunal”.
(5) In paragraphs 30, 31, 32 and 33–
(a) for “an adjudicator and the Tribunal” substitute “the Tribunal”,
(b) for “an adjudicator or the Tribunal” substitute “the Tribunal”,
(c) for “the adjudicator or the Tribunal, as the case may be” substitute
“the Tribunal”,
(d) for “the adjudicator or Tribunal” substitute “the Tribunal”,
(e) for “the adjudicator or the Tribunal” substitute “the Tribunal”,
(f) for “an adjudicator or Tribunal” substitute “the Tribunal”, and
The Asylum and Immigration (Treatment of Claimants, etc) Act 2004 89
Legal Aid, Advice and Assistance (Northern Ireland) Order 1981 (SI 1981/228 (NI 8))
5 (1) For paragraph 6A of Part 1 of Schedule 1 to the Legal Aid, Advice and
Assistance (Northern Ireland) Order 1981 (proceedings for which legal
aid may be given under Part II of that Order) substitute–
”6A Proceedings before the Asylum and Immigration Tribunal or the
Special Immigration Appeals Commission.”
(2) The amendment made by sub-paragraph (1) is without prejudice to any
power to amend or revoke the provision inserted by that sub-paragraph.
Courts and Legal Services Act 1990 (c 41)
6 In Schedule 11 to the Courts and Legal Services Act 1990 (judges barred from
legal practice) for the entries relating to the Immigration Appeal Tribunal and
immigration adjudicators substitute–
“President or other member of the Asylum and Immigration Tribunal”.
Tribunals and Inquiries Act 1992 (c 53)
7 (1) The Tribunals and Inquiries Act 1992 shall be amended as follows.
(2) In section 7 (dismissal) omit subsection (3).
(3) In Schedule 1 (tribunals under supervision of Council) for the entry for
immigration appeals substitute–
“Immigration and asylum
22 The Asylum and Immigration Tribunal constituted under section 81
of the Nationality, Immigration and Asylum Act 2002.”
Judicial Pensions and Retirement Act 1993 (c 8)
8 (1) The Judicial Pensions and Retirement Act 1993 shall be amended as
follows.
(2) In Schedule 1 (qualifying judicial offices) for the entries relating to the
Immigration Appeal Tribunal and immigration adjudicators substitute (in
the place occupied by the first of those entries)–
“President or other member of the Asylum and Immigration Tribunal”.
(3) In Schedule 5 (retirement: relevant offices) for the entries relating to the
Immigration Appeal Tribunal and immigration adjudicators substitute–
“President or other member of the Asylum and Immigration Tribunal”.
Asylum and Immigration Appeals Act 1993 (c 23)
9 Section 9A of the Asylum and Immigration Appeals Act 1993 (bail) shall cease
to have effect.
Special Immigration Appeals Commission Act 1997 (c 68)
10 The Special Immigration Appeals Commission Act 1997 shall be amended as
follows.
11 At the end of section 2B (deprivation of citizenship) insert “(and section
40A(3)(a) shall have effect in relation to appeals under this section).”
12 (1) In Schedule 1 (constitution, &c) for paragraph 5(b) substitute–
“(b)at least one is or has been a legally qualified member of the Asylum
and Immigration Tribunal.”
The Asylum and Immigration (Treatment of Claimants, etc) Act 2004 91
(2) A person is qualified for the purposes of paragraph 5(b) of that Schedule
as it has effect after the commencement of sub-paragraph (1) above if he is
qualified for the purposes of paragraph 5(b) as it had effect at any time
since its commencement.
13 (1) Schedule 3 (bail) shall be amended as follows.
(2) In paragraph 1(2) for “adjudicator” substitute “Tribunal”.
(3) In paragraph 1(3)(a) for “adjudicator” substitute “the Asylum and
Immigration Tribunal”.
(4) In paragraph 1(3)(b) for “adjudicator” substitute “the Asylum and
Immigration Tribunal”.
(5) In paragraph 1(4)(a) and (b) for “adjudicator” substitute “the Asylum and
Immigration Tribunal”.
(6) In paragraph 2(2)(a) for “an adjudicator” substitute “the Asylum and
Immigration Tribunal”.
(7) In paragraph 2(2)(b) for “the adjudicator” substitute “the Asylum and
Immigration Tribunal”.
(8) In paragraph 2(3)(a) for “an adjudicator” substitute “the Asylum and
Immigration Tribunal”.
(9) In paragraph 2(3)(b) for “the adjudicator” substitute “the Asylum and
Immigration Tribunal”.
(10)In paragraph 6(2)(a) for “an adjudicator or the Tribunal” substitute “the
Tribunal”.
(11) In paragraph 6(2)(b) for “the adjudicator or the Tribunal, as the case may
be,” substitute “the Tribunal”.
(12)In paragraph 6(2)(c) for “the adjudicator or Tribunal” substitute “the
Tribunal”.
(13)In paragraph 6(3)(a) for “an adjudicator or the Tribunal” substitute “the
Tribunal”.
(14)In paragraph 6(3)(b) for “the adjudicator or Tribunal” substitute “the
Tribunal”.
(15)In paragraph 7(a) for “an adjudicator or the Tribunal” substitute “the
Tribunal”.
(16)In paragraph 7(b) for “the adjudicator or Tribunal” substitute “the
Tribunal”.
(17)In paragraph 7(c) for “the adjudicator or the Tribunal” substitute “the
Tribunal”.
Access to Justice Act 1999 (c 22)
14 For paragraph 2(1)(h) of Schedule 2 to the Access to Justice Act 1999
(Community Legal Service: excluded services) substitute–
“(h) the Asylum and Immigration Tribunal,”.
Immigration and Asylum Act 1999 (c 33)
15 In section 156(3) of the Immigration and Asylum Act 1999 (escorts and
custody) for paragraphs (a) and (b) substitute–
“(a) the Asylum and Immigration Tribunal;”.
92 A Guide to the Asylum and Immigration Act 2004
SCHEDULE 3
Section 33
REMOVAL OF ASYLUM SEEKER TO SAFE COUNTRY
PART 1
INTRODUCTORY
1 (1) In this Schedule–
“asylum claim” means a claim by a person that to remove him from or
require him to leave the United Kingdom would breach the United
Kingdom’s obligations under the Refugee Convention,
“Convention rights” means the rights identified as Convention rights by
section 1 of the Human Rights Act 1998 (c 42) (whether or not in relation
to a State that is a party to the Convention),
“human rights claim” means a claim by a person that to remove him from
or require him to leave the United Kingdom would be unlawful under
section 6 of the Human Rights Act 1998 (public authority not to act
contrary to Convention) as being incompatible with his Convention
rights,
“immigration appeal” means an appeal under section 82(1) of the
Nationality, Immigration and Asylum Act 2002 (c 41) (appeal against
immigration decision), and
“the Refugee Convention” means the Convention relating to the Status of
Refugees done at Geneva on 28th July 1951 and its Protocol.
(2) In this Schedule a reference to anything being done in accordance with
the Refugee Convention is a reference to the thing being done in
accordance with the principles of the Convention, whether or not by a
signatory to it.
PART 2
FIRST LIST OF SAFE COUNTRIES (REFUGEE CONVENTION AND HUMAN
RIGHTS (1))
2 This Part applies to–
(a) Austria,
(b Belgium,
(c) Republic of Cyprus,
(d) Czech Republic,
(e) Denmark,
(f) Estonia,
(g) Finland,
(h) France,
(i) Germany,
(j) Greece,
(k) Hungary,
(l) Iceland,
(m) Ireland,
(n) Italy,
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(o) Latvia,
(p) Lithuania,
(q) Luxembourg,
(r) Malta,
(s) Netherlands,
(t) Norway,
(u) Poland,
(v) Portugal,
(w) Slovak Republic,
(x) Slovenia,
(y) Spain, and
(z) Sweden.
3 (1) This paragraph applies for the purposes of the determination by any
person, tribunal or court whether a person who has made an asylum
claim or a human rights claim may be removed–
(a) from the United Kingdom, and
(b) to a State of which he is not a national or citizen.
(2) A State to which this Part applies shall be treated, in so far as relevant to
the question mentioned in sub-paragraph (1), as a place–
(a) where a person’s life and liberty are not threatened by reason of his
race, religion, nationality, membership of a particular social group or
political opinion,
(b) from which a person will not be sent to another State in contravention
of his Convention rights, and
(c) from which a person will not be sent to another State otherwise than
in accordance with the Refugee Convention.
4 Section 77 of the Nationality, Immigration and Asylum Act 2002 (c 41) (no
removal while claim for asylum pending) shall not prevent a person who has
made a claim for asylum from being removed–
(a) from the United Kingdom, and
(b) to a State to which this Part applies;
provided that the Secretary of State certifies that in his opinion the person is
not a national or citizen of the State.
5 (1) This paragraph applies where the Secretary of State certifies that–
(a) it is proposed to remove a person to a State to which this Part applies,
and
(b) in the Secretary of State’s opinion the person is not a national or
citizen of the State.
(2) The person may not bring an immigration appeal by virtue of section
92(2) or (3) of that Act (appeal from within United Kingdom: general).
(3) The person may not bring an immigration appeal by virtue of section
92(4)(a) of that Act (appeal from within United Kingdom: asylum or
human rights) in reliance on–
The Asylum and Immigration (Treatment of Claimants, etc) Act 2004 99
9 Section 77 of the Nationality, Immigration and Asylum Act 2002 (c 41) (no
removal while claim for asylum pending) shall not prevent a person who has
made a claim for asylum from being removed–
(a) from the United Kingdom, and
(b) to a State to which this Part applies;
provided that the Secretary of State certifies that in his opinion the person is
not a national or citizen of the State.
10 (1) This paragraph applies where the Secretary of State certifies that–
(a) it is proposed to remove a person to a State to which this Part applies,
and
(b) in the Secretary of State’s opinion the person is not a national or
citizen of the State.
(2) The person may not bring an immigration appeal by virtue of section
92(2) or (3) of that Act (appeal from within United Kingdom: general).
(3) The person may not bring an immigration appeal by virtue of section
92(4)(a) of that Act (appeal from within United Kingdom: asylum or
human rights) in reliance on an asylum claim which asserts that to
remove the person to a specified State to which this Part applies would
breach the United Kingdom’s obligations under the Refugee Convention.
(4) The person may not bring an immigration appeal by virtue of section
92(4)(a) of that Act in reliance on a human rights claim if the Secretary of
State certifies that the claim is clearly unfounded; and the Secretary of
State shall certify a human rights claim where this paragraph applies
unless satisfied that the claim is not clearly unfounded.
11 A person who is outside the United Kingdom may not bring an immigration
appeal on any ground that is inconsistent with treating a State to which this
Part applies as a place–
(a) where a person’s life and liberty are not threatened by reason of his race,
religion, nationality, membership of a particular social group or political
opinion, and
(b) from which a person will not be sent to another State otherwise than in
accordance with the Refugee Convention.
PART 4
THIRD LIST OF SAFE COUNTRIES (REFUGEE CONVENTION ONLY)
12 (1) This Part applies to such States as the Secretary of State may by order
specify.
(2) An order under this paragraph–
(a) shall be made by statutory instrument, and
(b) shall not be made unless a draft has been laid before and approved by
resolution of each House of Parliament.
13 (1) This paragraph applies for the purposes of the determination by any
person, tribunal or court whether a person who has made an asylum
claim may be removed–
(a) from the United Kingdom, and
(b) to a State of which he is not a national or citizen.
The Asylum and Immigration (Treatment of Claimants, etc) Act 2004 101
(2) A State to which this Part applies shall be treated, in so far as relevant to
the question mentioned in sub-paragraph (1), as a place–
(a) where a person’s life and liberty are not threatened by reason of his
race, religion, nationality, membership of a particular social group or
political opinion, and
(b) from which a person will not be sent to another State otherwise than
in accordance with the Refugee Convention.
14 Section 77 of the Nationality, Immigration and Asylum Act 2002 (c 41) (no
removal while claim for asylum pending) shall not prevent a person who has
made a claim for asylum from being removed–
(a) from the United Kingdom, and
(b) to a State to which this Part applies;
provided that the Secretary of State certifies that in his opinion the person is
not a national or citizen of the State.
15 (1) This paragraph applies where the Secretary of State certifies that–
(a) it is proposed to remove a person to a State to which this Part applies,
and
(b) in the Secretary of State’s opinion the person is not a national or
citizen of the State.
(2) The person may not bring an immigration appeal by virtue of section
92(2) or (3) of that Act (appeal from within United Kingdom: general).
(3) The person may not bring an immigration appeal by virtue of section
92(4)(a) of that Act (appeal from within United Kingdom: asylum or
human rights) in reliance on an asylum claim which asserts that to
remove the person to a specified State to which this Part applies would
breach the United Kingdom’s obligations under the Refugee Convention.
(4) The person may not bring an immigration appeal by virtue of section
92(4)(a) of that Act in reliance on a human rights claim if the Secretary of
State certifies that the claim is clearly unfounded.
16 A person who is outside the United Kingdom may not bring an immigration
appeal on any ground that is inconsistent with treating a State to which this
Part applies as a place–
(a) where a person’s life and liberty are not threatened by reason of his race,
religion, nationality, membership of a particular social group or political
opinion, and
(b) from which a person will not be sent to another State otherwise than in
accordance with the Refugee Convention.
PART 5
COUNTRIES CERTIFIED AS SAFE FOR INDIVIDUALS
17 This Part applies to a person who has made an asylum claim if the Secretary
of State certifies that–
(a) it is proposed to remove the person to a specified State,
(b) in the Secretary of State’s opinion the person is not a national or citizen of
the specified State, and
(c) in the Secretary of State’s opinion the specified State is a place–
102 A Guide to the Asylum and Immigration Act 2004
(i) where the person’s life and liberty will not be threatened by reason of
his race, religion, nationality, membership of a particular social group
or political opinion, and
(ii) from which the person will not be sent to another State otherwise
than in accordance with the Refugee Convention.
18 Where this Part applies to a person section 77 of the Nationality, Immigration
and Asylum Act 2002 (c 41) (no removal while claim for asylum pending)
shall not prevent his removal to the State specified under paragraph 17.
19 Where this Part applies to a person–
(a) he may not bring an immigration appeal by virtue of section 92(2) or (3)
of that Act (appeal from within United Kingdom: general),
(b) he may not bring an immigration appeal by virtue of section 92(4)(a) of
that Act (appeal from within United Kingdom: asylum or human rights)
in reliance on an asylum claim which asserts that to remove the person to
the State specified under paragraph 17 would breach the United
Kingdom’s obligations under the Refugee Convention,
(c) he may not bring an immigration appeal by virtue of section 92(4)(a) of
that Act in reliance on a human rights claim if the Secretary of State
certifies that the claim is clearly unfounded, and
(d) he may not while outside the United Kingdom bring an immigration
appeal on any ground that is inconsistent with the opinion certified under
paragraph 17(c).
PART 6
AMENDMENT OF LISTS
20 (1) The Secretary of State may by order add a State to the list specified in
paragraph 2.
(2) The Secretary of State may by order–
(a) add a State to a list specified under paragraph 7 or 12, or
(b) remove a State from a list specified under paragraph 7 or 12.
21 (1) An order under paragraph 20(1) or (2)(a)–
(a) shall be made by statutory instrument,
(b) shall not be made unless a draft has been laid before and approved by
resolution of each House of Parliament, and
(c) may include transitional provision.
(2) An order under paragraph 20(2)(b)–
(a) shall be made by statutory instrument,
(b) shall be subject to annulment in pursuance of a resolution of either
House of Parliament, and
(c) may include transitional provision.
The Asylum and Immigration (Treatment of Claimants, etc) Act 2004 103
SCHEDULE 4
Section 47
REPEALS
PART 1
Introduction
Citation and commencement
1 These Rules may be cited as the Asylum and Immigration Tribunal
(Procedure) Rules 2005 and shall come into force on 4th April 2005.
Interpretation
2 In these Rules –
“the 2002 Act” means the Nationality, Immigration and Asylum Act 2002;
“the 2004 Act” means the Asylum and Immigration (Treatment of Claimants,
etc.) Act 2004;
“appellant” means a person who has given a notice of appeal to the Tribunal
against a relevant decision in accordance with these Rules;
“appropriate appellate court” has the meaning given in sections 103B(5) and
103E(5) of the 2002 Act;
“appropriate court” has the meaning given in section 103A(9) of the 2002 Act;
“appropriate prescribed form” means the appropriate form in the Schedule to
these Rules, or that form with any variations that the circumstances may
require;
“asylum claim” has the meaning given in section 113(1) of the 2002 Act;
“business day” means any day other than a Saturday or Sunday, a bank
holiday, 25th to 31st December or Good Friday;
“determination”, in relation to an appeal, means a decision by the Tribunal in
writing to allow or dismiss the appeal, and does not include a procedural,
ancillary or preliminary decision;
“the Immigration Acts” means the Acts referred to in section 44(1) of the 2004
Act;
“immigration decision” means a decision of a kind listed in section 82(2) of
the 2002 Act;
“immigration rules” means the rules referred to in section 1(4) of the
Immigration Act 1971;
“order for reconsideration” means an order under section 103A(1) or any
other statutory provision requiring the Tribunal to reconsider its decision on
an appeal;
106 A Guide to the Asylum and Immigration Act 2004
PART 2
Appeals to the Tribunal
Scope of this Part
5 This Part applies to appeals to the Tribunal.
Giving notice of appeal
6 (1) An appeal to the Tribunal may only be instituted by giving notice of
appeal against a relevant decision in accordance with these Rules.
(2) Subject to paragraphs (3) and (4), notice of appeal must be given by filing
it with the Tribunal in accordance with rule 55(1).
(3) A person who is in detention under the Immigration Acts may give notice
of appeal either –
The Asylum and Immigration Tribunal (Procedure) Rules 2005 107
(3) Rule 10 shall apply subject to the modifications that the Tribunal may –
(a) give notification under rule 10(2) orally, which may include giving it
by telephone;
(b) shorten the time for giving evidence under rule 10(3); and
(c) direct that any evidence under rule 10(3) is to be given orally, which
may include requiring the evidence to be given by telephone, and
hold a hearing or telephone hearing for the purpose of receiving such
evidence.
Service of notice of appeal on respondent
12 (1) Subject to paragraph (2), when the Tribunal receives a notice of appeal it
shall serve a copy upon the respondent as soon as reasonably practicable.
(2) Paragraph (1) does not apply where the notice of appeal was served on an
entry clearance officer under rule 6(4)(b).
Filing of documents by respondent
13 (1) When the respondent is served with a copy of a notice of appeal, it must
(unless it has already done so) file with the Tribunal a copy of –
(a) the notice of the decision to which the notice of appeal relates, and
any other document served on the appellant giving reasons for that
decision;
(b) any –
(i) statement of evidence form completed by the appellant; and
(ii) record of an interview with the appellant,
in relation to the decision being appealed;
(c) any other unpublished document which is referred to in a document
mentioned in sub-paragraph (a) or relied upon by the respondent;
and
(d) the notice of any other immigration decision made in relation to the
appellant in respect of which he has a right of appeal under section 82
of the 2002 Act.
(2) Subject to paragraph (3), the respondent must file the documents listed in
paragraph (1) –
(a) in accordance with any directions given by the Tribunal; and
(b) if no such directions are given, as soon as reasonably practicable and
in any event not later than 2.00 pm on the business day before the
earliest date appointed for any hearing of or in relation to the appeal.
(3) If the Tribunal considers the timeliness of a notice of appeal as a
preliminary issue under rule 10, the respondent must file the documents
listed in paragraph (1) as soon as reasonably practicable after being
served with a decision of the Tribunal allowing the appeal to proceed, and
in any event not later than 2.00 pm on the business day before the earliest
date appointed for any hearing of or in relation to the appeal following
that decision.
(4) The respondent must, at the same time as filing them, serve on the
appellant a copy of all the documents listed in paragraph (1), except for
documents which the respondent has already sent to the appellant.
The Asylum and Immigration Tribunal (Procedure) Rules 2005 111
Adjournment of appeals
21 (1) Where a party applies for an adjournment of a hearing of an appeal, he
must –
(a) if practicable, notify all other parties of the application;
(b) show good reason why an adjournment is necessary; and
(c) produce evidence of any fact or matter relied upon in support of the
application.
(2) The Tribunal must not adjourn a hearing of an appeal on the application
of a party, unless satisfied that the appeal cannot otherwise be justly
determined.
(3) The Tribunal must not, in particular, adjourn a hearing on the application
of a party in order to allow the party more time to produce evidence,
unless satisfied that –
(a) the evidence relates to a matter in dispute in the appeal;
(b) it would be unjust to determine the appeal without permitting the
party a further opportunity to produce the evidence; and
(c) where the party has failed to comply with directions for the
production of the evidence, he has provided a satisfactory
explanation for that failure.
(4) Where the hearing of an appeal is adjourned, the Tribunal will fix a new
hearing date which –
(a) shall be not more than 28 days after the original hearing date, unless
the Tribunal is satisfied that because of exceptional circumstances the
appeal cannot justly be heard within that time; and
(b) shall in any event be not later than is strictly required by the
circumstances necessitating the adjournment.
Giving of determination
22 (1) Except in cases to which rule 23 applies, where the Tribunal determines
an appeal it must serve on every party a written determination containing
its decision and the reasons for it.
(2) The Tribunal must send its determination –
(a) if the appeal is considered at a hearing, not later than 10 days after the
hearing finishes; or
(b) if the appeal is determined without a hearing, not later than 10 days
after it is determined.
Special procedures and time limits in asylum appeals
23 (1) This rule applies to appeals under section 82 of the 2002 Act where –
(a) the appellant is in the United Kingdom; and
(b) the appeal relates, in whole or in part, to an asylum claim.
(2) Subject to paragraph (3) –
(a) where an appeal is to be considered by the Tribunal at a hearing, the
hearing must be fixed for a date not more than 28 days after the later
of –
(i) the date on which the Tribunal receives the notice of appeal; or
114 A Guide to the Asylum and Immigration Act 2004
PART 3
Reconsideration of Appeals etc
Scope of this Part
24 (1) Section 1 of this Part applies to section 103A applications made during
any period in which paragraph 30 of Schedule 2 to the 2004 Act has effect,
which are considered by an immigration judge in accordance with that
paragraph.
(2) Section 2 of this Part applies to reconsideration of appeals by the Tribunal
pursuant to –
(a) an order under section 103A(1) made by –
(i) the appropriate court; or
(ii) an immigration judge in accordance with paragraph 30 of
Schedule 2 to the 2004 Act; and
The Asylum and Immigration Tribunal (Procedure) Rules 2005 115
SECTION 1
Section 103A applications considered by members of the Tribunal
Procedure for applying for review
25 Where paragraph 30 of Schedule 2 to the 2004 Act has effect in relation to a
section 103A application, the application must be made in accordance with
relevant rules of court (including any practice directions supplementing those
rules).
Deciding applications for review
26 (1) A section 103A application shall be decided by an immigration judge
authorised by the President to deal with such applications.
(2) The immigration judge shall decide the application without a hearing,
and by reference only to the applicant’s written submissions and the
documents filed with the application notice.
(3) The immigration judge is not required to consider any grounds for
ordering the Tribunal to reconsider its decision other than those set out in
the application notice.
(4) The application must be decided not later than 10 days after the Tribunal
receives the application notice.
(5) In deciding a section 103A application, the immigration judge may –
(a) in relation to an application for permission under section 103A(4)(b),
either –
(i) permit the application to be made outside the period specified in
section 103A(3); or
(ii) record that he does not propose to grant permission; and
(b) in relation to an application for an order under section 103A(1),
either –
(i) make an order for reconsideration; or
(ii) record that he does not propose to make such an order.
(6) The immigration judge may make an order for reconsideration only if he
thinks that –
(a) the Tribunal may have made an error of law; and
(b) there is a real possibility that the Tribunal would decide the appeal
differently on reconsideration.
Form and service of decision
27 (1) Where an immigration judge decides a section 103A application, he must
give written notice of his decision, including his reasons which may be in
summary form.
116 A Guide to the Asylum and Immigration Act 2004
SECTION 2
Reconsideration of appeals
Rules applicable on reconsideration of appeal
29 Rules 15 to 23, except for rule 23(2) and (3), and Part 5 of these Rules apply to
the reconsideration of an appeal as they do to the initial determination of an
appeal, and references in those rules to an appeal shall be interpreted as
including proceedings for the reconsideration of an appeal.
Reply
30 (1) When the other party to the appeal is served with an order for
reconsideration, he must, if he contends that the Tribunal should uphold
the initial determination for reasons different from or additional to those
given in the determination, file with the Tribunal and serve on the
applicant a reply setting out his case.
(2) The other party to the appeal must file and serve any reply not later than
5 days before the earliest date appointed for any hearing of or in relation
to the reconsideration of the appeal.
(3) In this rule, “other party to the appeal” means the party other than the
party on whose application the order for reconsideration was made.
Procedure for reconsideration of appeal
31 (1) Where an order for reconsideration has been made, the Tribunal must
reconsider an appeal as soon as reasonably practicable after that order has
been served on both parties to the appeal.
(2) Where the reconsideration is pursuant to an order under section 103A –
(a) the Tribunal carrying out the reconsideration must first decide
whether the original Tribunal made a material error of law; and
(b) if it decides that the original Tribunal did not make a material error of
law, the Tribunal must order that the original determination of the
appeal shall stand.
(3) Subject to paragraph (2), the Tribunal must substitute a fresh decision to
allow or dismiss the appeal.
(4) In carrying out the reconsideration, the Tribunal –
(a) may limit submissions or evidence to one or more specified issues;
and
(b) must have regard to any directions given by the immigration judge or
court which ordered the reconsideration.
(5) In this rule, a “material error of law” means an error of law which
affected the Tribunal’s decision upon the appeal.
Evidence on reconsideration of appeal
32 (1) The Tribunal may consider as evidence any note or record made by the
Tribunal of any previous hearing at which the appeal was considered.
(2) If a party wishes to ask the Tribunal to consider evidence which was not
submitted on any previous occasion when the appeal was considered, he
must file with the Tribunal and serve on the other party written notice to
that effect, which must –
(a) indicate the nature of the evidence; and
(b) explain why it was not submitted on any previous occasion.
118 A Guide to the Asylum and Immigration Act 2004
(3) A notice under paragraph (2) must be filed and served as soon as
practicable after the parties have been served with the order for
reconsideration.
(4) If the Tribunal decides to admit additional evidence, it may give
directions as to –
(a) the manner in which; and
(b) the time by which,
the evidence is to be given or filed.
Orders for funding on reconsideration
33 (1) This rule applies where –
(a) the Tribunal has reconsidered an appeal following a section 103A
application made by the appellant in relation to an appeal decided in
England, Wales or Northern Ireland; and
(b) the appellant’s representative has specified that he seeks an order
under section 103D of the 2002 Act for his costs to be paid out of the
relevant fund.
(2) The Tribunal must make a separate determination (“the funding
determination”) stating whether it orders that the appellant’s costs –
(a) in respect of the application for reconsideration; and
(b) in respect of the reconsideration,
are to be paid out of the relevant fund.
(3) The Tribunal must send the funding determination to –
(a) the appellant’s representative; and
(b) if the Tribunal has made an order under section 103D, the relevant
funding body.
(4) Where the determination of the reconsidered appeal (“the principal
determination”) is served in accordance with rule 23, the Tribunal must
not send the funding determination to the appellant’s representative
until –
(a) the respondent has notified the Tribunal under rule 23(5)(b) that it has
served the principal determination on the appellant; or
(b) the Tribunal has served the principal determination on the appellant
under rule 23(6).
(5) In this Rule –
(a) “relevant fund” means –
(i) in relation to an appeal decided in England or Wales, the
Community Legal Service Fund established under section 5 of
the Access to Justice Act 1999;
(ii) in relation to an appeal decided in Northern Ireland, the fund
established under paragraph 4(2)(a) of Schedule 3 to the Access
to Justice (Northern Ireland) Order 2003; and
(b) “relevant funding body” means –
(i) in relation to an appeal decided in England or Wales, the Legal
Services Commission;
(ii) in relation to an appeal decided in Northern Ireland, the
Northern Ireland Legal Services Commission.
The Asylum and Immigration Tribunal (Procedure) Rules 2005 119
SECTION 3
Applications for permission to appeal to the appropriate appellate court
Applying for permission to appeal
34 (1) An application to the Tribunal under this Section must be made by filing
with the Tribunal an application notice for permission to appeal.
(2) The application notice for permission to appeal must –
(a) be in the appropriate prescribed form;
(b) state the grounds of appeal; and
(c) be signed by the applicant or his representative, and dated.
(3) If the application notice is signed by the applicant’s representative, the
representative must certify in the application notice that he has completed
the application notice in accordance with the applicant’s instructions.
(4) As soon as practicable after an application notice for permission to appeal
is filed, the Tribunal must notify the other party to the appeal to the
Tribunal that it has been filed.
Time limit for application
35 (1) In application notice for permission to appeal must be filed in accordance
with rule 34 –
(a) if the applicant is in detention under the Immigration Acts when he is
served with the Tribunal’s determination, not later than 5 days after
he is served with that determination;
(b) in any other case, not later than 10 days after he is served with the
Tribunal’s determination.
(2) The Tribunal may not extend the time limits in paragraph (1).
Determining the application
36 (1) An application for permission to appeal must be determined by a senior
immigration judge without a hearing.
(2) The Tribunal may either grant or refuse permission to appeal.
(3) Where the Tribunal intends to grant permission to appeal it may, if it
thinks that the Tribunal has made an administrative error in relation to
the proceedings, instead set aside the Tribunal’s determination and direct
that the proceedings be reheard by the Tribunal.
(4) The Tribunal must serve on every party written notice of its decision,
including its reasons, which may be in summary form.
PART 4
Bail
Scope of this Part and interpretation
37 (1) This Part applies to applications under the Immigration Acts to the
Tribunal, by persons detained under those Acts, to be released on bail.
(2) In this Part, “applicant” means a person applying to the Tribunal to be
released on bail.
120 A Guide to the Asylum and Immigration Act 2004
(3) The parties to a bail application are the applicant and the Secretary of
State.
Applications for bail
38 (1) An application to be released on bail must be made by filing with the
Tribunal an application notice in the appropriate prescribed form.
(2) The application notice must contain the following details –
(a) the applicant’s –
(i) full name;
(ii) date of birth; and
(iii) date of arrival in the United Kingdom;
(b) the address of the place where the applicant is detained;
(c) whether an appeal by the applicant to the Tribunal is pending;
(d) the address where the applicant will reside if his application for bail is
granted, or, if he is unable to give such an address, the reason why an
address is not given;
(e) where the applicant is aged 18 or over, whether he will, if required,
agree as a condition of bail to co-operate with electronic monitoring
under section 36 of the 2004 Act;
(f) the amount of the recognizance in which he will agree to be bound;
(g) the full names, addresses, occupations and dates of birth of any
persons who have agreed to act as sureties for the applicant if bail is
granted, and the amounts of the recognizances in which they will
agree to be bound;
(h) the grounds on which the application is made and, where a previous
application has been refused, full details of any change in
circumstances which has occurred since the refusal; and
(i) whether an interpreter will be required at the hearing, and in respect
of what language or dialect.
(3) The application must be signed by the applicant or his representative or,
in the case of an applicant who is a child or is for any other reason
incapable of acting, by a person acting on his behalf.
Bail hearing
39 (1) Where an application for bail is filed, the Tribunal must –
(a) as soon as reasonably practicable, serve a copy of the application on
the Secretary of State; and
(b) fix a hearing.
(2) If the Secretary of State wishes to contest the application, he must file
with the Tribunal and serve on the applicant a written statement of his
reasons for doing so –
(a) not later than 2.00 pm on the business day before the hearing; or
(b) if he was served with notice of the hearing less than 24 hours before
that time, as soon as reasonably practicable.
(3) The Tribunal must serve written notice of its decision on –
(a) the parties; and
(b) the person having custody of the applicant.
The Asylum and Immigration Tribunal (Procedure) Rules 2005 121
PART 5
General Provisions
Conduct of appeals and applications
43 (1) The Tribunal may, subject to these Rules, decide the procedure to be
followed in relation to any appeal or application.
(2) Anything of a formal or administrative nature which is required or
permitted to be done by the Tribunal under these Rules may be done by a
member of the Tribunal’s staff.
122 A Guide to the Asylum and Immigration Act 2004
(7) Where a representative ceases to act for a party, the representative and the
party must immediately notify the Tribunal and the other party of that
fact, and of the name and address of any new representative (if known).
(8) Notification under paragraph (4) or (7) –
(a) may be given orally at a hearing to the Tribunal and to any other
party present at that hearing; but
(b) must otherwise be given in writing.
(9) Until the Tribunal is notified that a representative has ceased to act for a
party, any document served on that representative shall be deemed to be
properly served on the party he was representing.
United Kingdom Representative
49 (1) The United Kingdom Representative may give notice to the Tribunal that
he wishes to participate in any proceedings where the appellant has made
an asylum claim.
(2) Where the United Kingdom Representative has given notice under
paragraph (1) –
(a) rules 54(6) and 55(7) shall apply; and
(b) the Tribunal must permit him to make representations in the
proceedings if he wishes to do so, and may give directions for that
purpose.
Summoning of witnesses
50 (1) The Tribunal may, by issuing a summons (“a witness summons”), require
any person in the United Kingdom –
(a) to attend as a witness at the hearing of an appeal; and
(b) subject to rule 51(2), at the hearing to answer any questions or
produce any documents in his custody or under his control which
relate to any matter in issue in the appeal.
(2) A person is not required to attend a hearing in obedience to a witness
summons unless –
(a) the summons is served on him; and
(b) the necessary expenses of his attendance are paid or tendered to him.
(3) If a witness summons is issued at the request of a party, that party must
pay or tender the expenses referred to in paragraph (2)(b).
Evidence
51 (1) The Tribunal may allow oral, documentary or other evidence to be given
of any fact which appears to be relevant to an appeal or an application for
bail, even if that evidence would be inadmissible in a court of law.
(2) The Tribunal may not compel a party or witness to give any evidence or
produce any document which he could not be compelled to give or
produce at the trial of a civil claim in the part of the United Kingdom in
which the hearing is taking place.
(3) The Tribunal may require the oral evidence of a witness to be given on
oath or affirmation.
(4) Where the Tribunal has given directions setting time limits for the filing
and serving of written evidence, it must not consider any written
The Asylum and Immigration Tribunal (Procedure) Rules 2005 125
(4) The Tribunal may also, in exceptional circumstances, exclude any or all
members of the public from any hearing or part of a hearing to ensure
that publicity does not prejudice the interests of justice, but only if and to
the extent that it is strictly necessary to do so.
(5) A member of the Council on Tribunals or of its Scottish Committee acting
in that capacity is entitled to attend any hearing and may not be excluded
pursuant to paragraph (2), (3) or (4) of this rule.
(6) The United Kingdom Representative, where he has given notice to the
Tribunal under rule 49, is entitled to attend any hearing except where
paragraph (2) applies, and may not be excluded pursuant to paragraph
(3) or (4) of this rule.
Filing and service of documents
55 (1) Any document which is required or permitted by these Rules or by a
direction of the Tribunal to be filed with the Tribunal, or served on any
person may be –
(a) delivered, or sent by post, to an address;
(b) sent via a document exchange to a document exchange number or
address;
(c) sent by fax to a fax number; or
(d) sent by e-mail to an e-mail address,
specified for that purpose by the Tribunal or person to whom the
document is directed.
(2) A document to be served on an individual may be served personally by
leaving it with that individual.
(3) Where a person has notified the Tribunal that he is acting as the
representative of an appellant and has given an address for service, if a
document is served on the appellant, a copy must also at the same time be
sent to the appellant’s representative.
(4) If any document is served on a person who has notified the Tribunal that
he is acting as the representative of a party, it shall be deemed to have
been served on that party.
(5) Subject to paragraph (6), any document that is served on a person in
accordance with this rule shall, unless the contrary is proved, be deemed
to be served –
(a) where the document is sent by post or document exchange from and
to a place within the United Kingdom, on the second day after it was
sent;
(b) where the document is sent by post or document exchange from or to
a place outside the United Kingdom, on the twenty-eighth day after it
was sent; and
(c) in any other case, on the day on which the document was sent or
delivered to, or left with, that person.
(6) Any notice of appeal which is served on a person under rule 6(3)(b) or
6(4)(b) shall be treated as being served on the day on which it is received
by that person.
(7) Where the United Kingdom Representative has given notice to the
Tribunal under rule 49 in relation to any proceedings, any document
which is required by these Rules or by a direction of the Tribunal to be
The Asylum and Immigration Tribunal (Procedure) Rules 2005 127
(b) if rule 10(8) and (9), rule 23(5) and (6) or rule 27(5)(b)–(d) applied in
relation to the service of the original, it shall also apply in relation to
the service of the amended version.
(3) The time within which a party may apply for permission to appeal
against, or for a review of, an amended determination runs from the date
on which the party is served with the amended determination.
PART 6
Revocation and Transitional Provisions
Revocation
61 The Immigration and Asylum Appeals (Procedure) Rules 2003 are revoked.
Transitional provisions
62 (1) Subject to the following paragraphs of this rule, these Rules apply to any
appeal or application to an adjudicator or the Immigration Appeal
Tribunal which was pending immediately before 4th April 2005, and
which continues on or after that date as if it had been made to the
Tribunal by virtue of a transitional provisions order.
(2) Where a notice of a relevant decision has been served before 4th April
2005 and the recipient gives notice of appeal against the decision on or
after 4th April 2005 –
(a) rules 6–8, 12 and 13 of these Rules shall not apply; and
(b) rules 6–9 of the 2003 Rules shall continue to apply as if those Rules
had not been revoked, but subject to the modifications in paragraph
(4).
(3) Where a notice of appeal to an adjudicator has been given before 4th
April 2005, but the respondent has not filed the notice of appeal with the
appellate authority in accordance with rule 9 of the 2003 Rules –
(a) rules 12 and 13 of these Rules shall not apply; and
(b) rule 9 of the 2003 Rules shall continue to apply as if it had not been
revoked, but subject to the modifications in paragraph (4).
(4) The modifications referred to in paragraphs (2)(b) and (3)(b) are that –
(a) references to an adjudicator or the appellate authority shall be treated
as referring to the Tribunal;
(b) in rule 9(1) of the 2003 Rules –
(i) the words “Subject to rule 10” shall be omitted; and
(ii) for “together with” there shall be substituted “and must also
when directed by the Asylum and Immigration Tribunal file”;
and
(c) for rule 9(2) of the 2003 Rules there shall be substituted –
”(2) The respondent must, as soon as practicable after filing the notice
of appeal, serve on the appellant –
(a) a copy of all the documents listed in paragraph (1), except for
documents which the respondent has already sent to the
appellant; and
(b) notice of the date on which the notice of appeal was filed.”.
The Asylum and Immigration Tribunal (Procedure) Rules 2005 129
EXPLANATORY NOTE
(This note is not part of the Rules)
These Rules prescribe the procedure to be followed for appeals and applications
to the Asylum and Immigration Tribunal created under section 81 of and
Schedule 4 to the Nationality, Immigration and Asylum Act 2002, as substituted
by section 26(1) of and Schedule 1 to the Asylum and Immigration (Treatment of
Claimants, etc) Act 2004. The Rules come into force on 4th April 2005.
Part 1 of these Rules contains introductory provisions.
Part 2 contains rules about appeals to the Tribunal. Subject to various exceptions
and limitations in Part 5 of the 2002 Act, a right of appeal lies to the Tribunal –
(a) under section 82 of the 2002 Act, against an immigration decision;
(b) under section 83 of the 2002 Act, in certain circumstances, against a decision
to reject an asylum claim; and
(c) under section 40A of the British Nationality Act 1981, against a decision to
make an order depriving a person of a British citizenship status.
Part 3 contains rules about –
(a) applications under section 103A of the 2002 Act (as inserted by section 26(6)
of the 2004 Act) for the review of a decision of the Tribunal, which are
considered by a member of the Tribunal under the transitional filter provision
in paragraph 30 of Schedule 2 to the 2004 Act;
(b) reconsideration by the Tribunal of appeals pursuant to an order under section
103A of the 2002 Act or an order of an appellate court;
(c) applications to the Tribunal for permission to appeal to the Court of Appeal,
Court of Session or Court of Appeal in Northern Ireland.
Part 4 contains rules about applications to the Tribunal for bail. Such applications
may be made under Schedule 2 to the Immigration Act 1971.
Part 5 contains general provisions which apply to proceedings under these Rules.
Part 6 revokes the Immigration and Asylum Appeals (Procedure) Rules 2003 and
contains transitional provisions for appeals and applications to an adjudicator or
the Immigration Appeal Tribunal which are pending immediately before 4th
April 2005.
STATEMENT OF CHANGES IN IMMIGRATION
RULES (HC 302) – FEBRUARY 2005
Laid before Parliament on 7 February 2005 under section 3(2) of the Immigration
Act 1971
Ordered by the House of Commons to be printed 7 February 2005
The Home Secretary has made the changes hereinafter stated in the Rules laid
down by him as to the practice to be followed in the administration of the
Immigration Act 1971 for regulating entry into and the stay of persons in the
United Kingdom and contained in the Statement laid before Parliament on 23
May 1994 (HC 395), as amended. The amending statements were laid before, or
presented to, Parliament on 20 September 1994 (Cmnd 2663), 26 October 1995
(HC 797), 4 January 1996 (Cmnd 3073), 7 March 1996 (HC 274), 2 April 1996
(HC 329), 30 August 1996 (Cmnd 3365), 31 October 1996 (HC 31), 27 February
1997 (HC 338), 29 May 1997 (Cmnd 3669), 5 June 1997 (HC 26), 30 July 1997 (HC
161), 11 May 1998 (Cmnd 3953), 8 October 1998 (Cmnd 4065), 18 November 1999
(HC 22), 28 July 2000 (HC 704), 20 September 2000 (Cmnd 4851), 27 August 2001
(Cmnd 5253), 16 April 2002 (HC 735), 27 August 2002 (Cmnd 5597), 7 November
2002 (HC 1301), 26 November 2002 (HC 104), 8 January 2003 (HC 180), 10
February 2003 (HC 389), 31 March 2003 (HC 538), 30 May 2003 (Cmnd 5829), 24
August 2003 (Cmnd 5949), 12 November 2003 (HC 1224), 17 December 2003
(HC 95), 12 January 2004 (HC 176), 26 February 2004 (HC 370), 31 March 2004
(HC 464), 29 April 2004 (HC 523), 3 August 2004 (Cmnd 6297), 24 September 2004
(Cmnd 6339), 18 October 2004 (HC 1112) and 20 December 2004 (HC 164).
These changes take effect on 8 February 2005.
Requirements for leave to enter as a working holidaymaker
95 The requirements to be met by a person seeking leave to enter the United
Kingdom as a working holidaymaker are that he:
(i) is a national or citizen of a country listed in Appendix 3 of these Rules,
or a British Overseas Citizen; a British Overseas Territories Citizen; or a
British National (Overseas); and
(ii) is aged between 17 and 30 inclusive or was so aged at the date of his
application for leave to enter; and
(iii) is unmarried or is married to a person who meets the requirements of
this paragraph and the parties to the marriage intend to take a working
holiday together; and
(iv) has the means to pay for his return or onward journey; and
(v) is able and intends to maintain and accommodate himself without
recourse to public funds; and
(vi) is intending only to take employment incidental to a holiday, and not to
engage in business, or to provide services as a professional sportsperson,
and in any event not to work for more than 12 months during his stay;
and
(vii) does not have dependent children any of whom are 5 years of age or
over or who will reach 5 years of age before the applicant completes his
working holiday; and
132 A Guide to the Asylum and Immigration Act 2004
(viii) intends to leave the UK at the end of his working holiday: and
(ix) has not spent time in the United Kingdom on a previous working
holidaymaker entry clearance; and
(x) holds a valid United Kingdom entry clearance for entry in this capacity.
Leave to enter as a working holidaymaker
96 A person seeking to enter the United Kingdom as a working holidaymaker
may be admitted provided he is able to produce on arrival a valid United
Kingdom entry clearance for entry in this capacity.
4 Delete paragraphs 98 to 100.
5 For paragraph 101 substitute:
“Requirements for leave to enter or remain as the child of a working
holidaymaker
101 The requirements to be met by a person seeking leave to enter or remain in
the United Kingdom as the child of a working holidaymaker are that:
(i) he is the child of a parent admitted to, and currently present in, the
United Kingdom as a working holidaymaker; and
(ii) he is under the age of 5 and will leave the United Kingdom before
reaching that age; and
(iii) he can and will be maintained and accommodated adequately without
recourse to public funds or without his parent(s) engaging in employment
except as provided by paragraph 95 above; and
(iv) both parents are being or have been admitted to the United Kingdom,
save where:
(a) the parent he is accompanying or joining is his sole surviving parent;
or
(b) the parent he is accompanying or joining has had sole responsibility
for his upbringing; or
(c) there are serious and compelling family or other considerations which
make exclusion from the United Kingdom undesirable and suitable
arrangements have been made for his care; and
(v) he holds a valid United Kingdom entry clearance for entry in this capacity
or, if seeking leave to remain, was admitted with a valid United Kingdom
entry clearance for entry in this capacity, and is seeking leave to a date not
beyond the date to which his parent(s) have leave to enter in the working
holidaymaker category.”
Statement of Changes in Immigration Rules (HC 302) 133
Mauritius,
Mozambique,
Namibia,
Nauru,
New Zealand,
Nigeria,
Pakistan,
Papua New Guinea,
Saint Christopher and Nevis,
Saint Lucia,
Saint Vincent and the Grenadines,
Seychelles,
Sierra Leone,
Singapore,
Solomon Islands,
South Africa,
Sri Lanka,
Swaziland,
Tanzania, United Republic of,
Tonga, Trinidad and Tobago,
Tuvalu,
Uganda,
Vanuatu,
Western Samoa,
Zambia,
Zimbabwe
THE IMMIGRATION (EUROPEAN ECONOMIC AREA)
(AMENDMENT) REGULATIONS 2005
The Secretary of State, being a Minister designated for the purposes of section 2(2)
of the European Communities Act 1972 in relation to measures relating to rights
of entry into, and residence in, the United Kingdom, in exercise of the powers
conferred upon him by the said section 2(2), and of the powers conferred on him
by section 109 of the Nationality, Immigration and Asylum Act 2002, hereby
makes the following Regulations:
Citation and commencement
1 These Regulations may be cited as the Immigration (European Economic
Area) (Amendment) Regulations 2005 and shall come into force on 7th
February 2005.
Amendment of Immigration (European Economic Area) Regulations 2000
2 (1) The Immigration (European Economic Area) Regulations 2000 (“the 2000
Regulations”) are amended as follows.
(2) For regulation 11(2)(b) there is substituted –
“(b)the family member of the United Kingdom national is lawfully
resident in an EEA State;”.
(3) In regulation 13(1)(b)(i), for “a year” there is substituted “six months”.
(4) After regulation 13(2), there is inserted –
”(3)Paragraph (1) also does not apply if the applicant applies for a family
permit in an EEA State and is not lawfully resident in any EEA State.”.
(5) Regulation 30(3)(a) is omitted.
Transitional provision
3 (1) Where an application is made by the family member of a United
Kingdom national for a family permit under regulation 13 of the 2000
Regulations or for a residence document under regulation 15 of the 2000
Regulations, regulation 2(2) has effect only in relation to applications
made after these Regulations come into force.
(2) Regulation 2(3) and (4) have effect only in relation to an application for a
family permit made under regulation 13 of the 2000 Regulations after
these Regulations come into force.
(3) Regulation 2(5) has effect only in relation to a person who appeals under
regulation 29 of the 2000 Regulations after these Regulations come into
force.
136 A Guide to the Asylum and Immigration Act 2004
EXPLANATORY NOTE
(This note is not part of the Regulations)
These Regulations make three changes to the Immigration (European Economic
Area) Regulations 2000 (SI 2000/2326 as amended) (the “2000 Regulations”).
Regulation 2(2) removes the existing provision in the 2000 Regulations which
states that the family member of a United Kingdom national who moves to
another Member State and subsequently returns to the United Kingdom may not
gain rights of residence and entry to the United Kingdom under the 2000
Regulations if the United Kingdom national left the United Kingdom in order for
his family member to acquire rights under the 2000 Regulations. A new provision
is substituted which provides that the family member of a United Kingdom
national who moves to another Member State and returns to the United Kingdom
must be lawfully resident in an EEA State if he is to gain rights of entry to and
residence in the United Kingdom. These changes reflect the judgment of the
European Court of Justice in the case of Akrich (Case C-109/01).
Regulation 2(3) changes the period within which the family member of an EEA
national must intend to travel to the United Kingdom with the EEA national, in
order to qualify for a family permit, from one year of the date of the application
to six months.
Regulation 2(4) provides that a person who applies for a family permit in an EEA
State must be lawfully resident in an EEA State in order to qualify. This change
also reflects the judgment of the European Court of Justice in Akrich.
Regulation 2(5) removes regulation 30(3)(a) of the 2000 Regulations so that a
person appealing to the Special Immigration Appeals Commission under the 2000
Regulations does not automatically have the right to appeal whilst he is in the
United Kingdom. Whether or not an appellant can appeal in the United Kingdom
will now depend on the nature of the appeal. This brings the 2000 Regulations
into line with the rule set out for other appeals in section 2(5) of the Special
Immigration Appeals Commission Act 1997.
Regulation 3 makes transitional provision, ensuring that the changes only take
effect in relation to applications and appeals made after these Regulations come
into force.
THE ASYLUM AND IMMIGRATION TRIBUNAL
(FAST TRACK PROCEDURE) RULES 2005
(4) Part 5 applies to proceedings before the Tribunal to which any of Part 2 or
3 applies or has applied.
(5) For the purpose of rules 5 and 15, a party does not cease to satisfy a
condition that he must have been continuously in detention under the
Immigration Acts at a place or places specified in Schedule 2 to these
Rules by reason only of—
(a) being transported from one place of detention specified in that
Schedule to another place which is so specified; or
(b) leaving and returning to such a place of detention for any purpose
between the hours of 6 am and 10 pm.
Application of the Principal Rules
4 (1) Rule 4 of the Principal Rules applies to these Rules.
(2) Where any of Part 2 or 3 of these Rules applies to proceedings before the
Tribunal—
(a) the Principal Rules also apply to the extent specified in rules 6, 16, 20,
24 and 27 of these Rules; and
(b) Part 4 of the Principal Rules applies to any application for bail made
by a party to those proceedings.
PART 2
PART 3
(a) the applicant’s written submissions and the documents filed with the
application notice; and
(b) any submissions filed in response to the application under rule 17(b).
Service of decision
19 (1) The Tribunal must serve a copy of the notice of decision and any
directions given under rule 27(2)(b) of the Principal Rules on the
respondent to the appeal—
(a) if submissions were filed in response to the application under rule
17(b), not later than 1 day after they were filed; or
(b) if no submissions were filed within the period specified in rule 17(b),
not later than 1 day after the end of that period.
(2) The respondent must—
(a) serve the notice of decision and any directions on the appellant on the
same day that it receives them from the Tribunal; and
(b) not later than 1 day after serving the notice of decision and any
directions, notify the Tribunal on what date and by what means they
were served.
(3) If the respondent does not give the Tribunal notification under paragraph
(2)(b) within 1 day after the Tribunal serves the notice of decision and any
directions on it, the Tribunal must serve them on the appellant as soon as
reasonably practicable thereafter.
SECTION 2
Reconsideration of appeals
Application of the Principal Rules
20 (1) Where this Part applies to the reconsideration of an appeal, the following
provisions of Section 2 of Part 3 of the Principal Rules apply—
(a) rule 31(2) to (5); and
(b) rule 32(1).
(2) Rules 17 to 19 and Part 5 of the Principal Rules apply, with any necessary
modifications, to the reconsideration of an appeal under this Part to the
extent that they would apply to the initial determination of an appeal
under Part 2 of these Rules.
Procedure for reconsideration of appeal
21 (1) Where an order for reconsideration has been made, the Tribunal must fix
a hearing date for the reconsideration of its decision on the appeal which
is—
(a) not later than 2 days after the day on which that order has been
served on both parties to the appeal; or
(b) if the Tribunal is unable to arrange a hearing within that time, as soon
as practicable thereafter.
(2) The Tribunal must serve notice of the date, time and place of the
reconsideration hearing on every party not later than noon on the
business day before the hearing.
The Asylum and Immigration Tribunal (Fast Track Procedure) Rules 2005 143
PART 4
GENERAL PROVISIONS
Adjournment
28 The Tribunal may only adjourn a hearing where—
(a) it is necessary to do so because there is insufficient time to hear the appeal
or application which is before the Tribunal;
(b) a party has not been served with notice of the hearing in accordance with
these Rules;
(c) the Tribunal is satisfied by evidence filed or given by or on behalf of a
party that—
(i) the appeal or application cannot be justly determined on the date on
which it is listed for hearing; and
(ii) there is an identifiable future date, not more than 10 days after the
date on which the appeal or application is listed for hearing, by which
it can be justly determined; or
(d) the Tribunal makes an order under rule 31.
Fax number for service on representative
29 (1) Where a person representing a party has a fax number at which
documents may be served on him, he must notify the Tribunal and the
other party of his fax number, and of any change to his fax number, in
writing.
(2) Until a representative notifies the Tribunal and the other party of a change
of fax number, any document served on him at the most recent fax
number which he has notified to the Tribunal and the other party shall be
deemed to have been properly served on him.
(3) Rule 55(3) of the Principal Rules does not apply unless the appellant’s
representative has given a fax number for service.
Correction of orders and determinations
30 Where an order, notice of decision or determination is amended under rule
60(1) of the Principal Rules—
(a) the Tribunal must, not later than 1 day after making the amendment,
serve an amended version on the party or parties on whom it served the
original; and
(b) if rule 14(3) and (4) or 19(2) and (3) of these Rules applied in relation to
the service of the original, it shall also apply in relation to the service of
the amended version.
PART 5
(b) the Tribunal may order that that Part shall cease to apply if it is
satisfied by evidence filed or given by or on behalf of a party that
there are exceptional circumstances which mean that the appeal or
application cannot otherwise be justly determined; and
(c) the Tribunal may order that that Part shall cease to apply if—
(i) the respondent to the appeal has failed to comply with a
provision of these Rules, or the Principal Rules as applied by
these Rules, or a direction of the Tribunal; and
(ii) the Tribunal is satisfied that the appellant would be prejudiced
by that failure if the appeal or application were determined in
accordance with these Rules.
(2) When making an order under paragraph (1), the Tribunal may—
(a) adjourn any hearing of the appeal or application; and
(b) give directions relating to the further conduct of the appeal or
application.
(3) Where the Tribunal adjourns a hearing in accordance with paragraph
(2)—
(a) it must fix a new date, time and place for the hearing; and
(b) in the case of an adjournment of an appeal, rule 21(4) of the Principal
Rules shall apply.
Application of the Principal Rules on transfer out of fast track
32 (1) This rule applies where Part 2 or 3 of these Rules ceases to apply to an
appeal or application because—
(a) the conditions in rule 5 or 15 cease to apply; or
(b) the Tribunal makes an order under rule 31.
(2) Subject to paragraph (3), the Principal Rules shall apply to the appeal or
application from the date on which these Rules cease to apply.
(3) Where—
(a) a period of time for doing something has started to run under a
provision of these Rules; and
(b) that provision ceases to apply,
if the Principal Rules contain a time limit for doing the same thing, the
time limit in the Principal Rules shall apply, and the relevant period of
time shall be treated as running from the date on which the period of time
under these Rules started to run.
PART 6
Revocation
33 The Immigration and Asylum Appeals (Fast Track Procedure) Rules 2003(a)
are revoked.
146 A Guide to the Asylum and Immigration Act 2004
Transitional provisions
34 (1) Subject to the following paragraphs of this rule, these Rules apply to any
pending appeal or application to an adjudicator or the Immigration
Appeal Tribunal which was subject to the 2003 Fast Track Rules
immediately before 4th April 2005, and which continues on or after that
date as if it had been made to the Tribunal by virtue of a transitional
provisions order.
(2) Where a notice of a relevant decision has been served before 4th April
2005 and the recipient of the notice of decision gives notice of appeal
against the decision on or after 4th April 2005—
(a) rules 7 to 10 of these Rules and rules 6, 8 and 13 of the Principal Rules
shall not apply; and
(b) rule 6(1) and (3) of the 2003 Fast Track Rules and rules 6 and 8 of the
2003 Principal Rules shall continue to apply as if those rules had not
been revoked, with the modification
that references to an adjudicator or the appellate authority shall be treated
as referring to the Tribunal.
(3) Where a notice of appeal to an adjudicator has been given before 4th
April 2005, but the respondent has not filed the notice of appeal with the
appellate authority in accordance with rule 6(3)(a) of the 2003 Fast Track
Rules—
(a) rules 9 and 10 of these Rules and rule 13 of the Principal Rules shall
not apply; and
(b) rule 6(3) of the 2003 Fast Track Rules shall continue to apply as if it
had not been revoked, with the modification that the reference to the
appellate authority shall be treated as referring to the Tribunal.
(4) Where, pursuant to a transitional provisions order, the Tribunal considers
a section 103A application for a review of an adjudicator’s determination
of an appeal, Section 1 of Part 3 of these Rules shall apply subject to the
modifications that—
(a) in rules 26(3) and 27(2) of the Principal Rules, the references to “its
decision” shall be interpreted as referring to the adjudicator ’s
decision; and
(b) in rule 26(6)(a) of the Principal Rules, the reference to “the Tribunal”
shall be interpreted as referring to the adjudicator.
(5) Where, pursuant to a transitional provisions order, the Tribunal
reconsiders an appeal which was originally determined by an adjudicator,
Section 2 of Part 3 shall apply to the reconsideration, subject to paragraph
(6).
(6) Where—
(a) a party has been granted permission to appeal to the Immigration
Appeal Tribunal against an adjudicator’s determination before 4th
April 2005, but the appeal has not been determined by that date; and
(b) by virtue of a transitional provisions order the grant of permission to
appeal is treated as an order for the Tribunal to reconsider the
adjudicator’s determination,
the reconsideration shall be limited to the grounds upon which the
Immigration Appeal Tribunal granted permission to appeal.
The Asylum and Immigration Tribunal (Fast Track Procedure) Rules 2005 147
(6) Where—
(a) a party has been granted permission to appeal to the Immigration
Appeal Tribunal against an adjudicator’s determination before 4th
April 2005, but the appeal has not been determined by that date; and
(b) by virtue of a transitional provisions order the grant of permission to
appeal is treated as an order for the Tribunal to reconsider the
adjudicator’s determination,
the reconsideration shall be limited to the grounds upon which the
Immigration Appeal Tribunal granted permission to appeal.
(7) In relation to proceedings which were pending immediately before 4th
April 2005—
(a) unless the Tribunal directs otherwise—
(i) anything done or any directions given before 4th April 2005
under the 2003 Fast Track Rules shall continue to have effect on
and after that date;
(ii) anything done or any directions given by the appellate authority
shall be treated as if done or given by the Tribunal; and
(iii) any document served on the appellate authority shall be treated
as if served on the Tribunal;
(b) unless the context requires otherwise, any reference in a document to
an adjudicator, the Immigration Appeal Tribunal or the appellate
authority shall, insofar as it relates to an event on or after 4th April
2005, be treated as a reference to the Tribunal.
(8) In this rule—
(a) “the 2003 Fast Track Rules” means the Immigration and Asylum
Appeals (Fast Track Procedure) Rules 2003;
(b) “the 2003 Principal Rules” means the Immigration and Asylum
Appeals (Procedure) Rules 2003(a);
(c) “adjudicator” and “appellate authority” have the same meaning as in
the 2003 Fast Track Rules and 2003 Principal Rules; and
(d) “a transitional provisions order” means an order under section
48(3)(a) of the 2004 Act containing transitional provisions.
SCHEDULE 1
Rule 2(4)(a)
FORMS
AIT 1 FT Notice of appeal to the Asylum and Immigration Tribunal (United
Kingdom) – In country – Fast Track
AIT 4 FT Application to the Asylum and Immigration Tribunal for permission to
appeal to the Court of Appeal or Court of Session – Fast Track
The Asylum and Immigration Tribunal (Fast Track Procedure) Rules 2005 149
SCHEDULE 2
Rules 5 and 15
EXPLANATORY NOTE
Part 5 specifies the circumstances in which the Tribunal may direct that an appeal
or application is to be taken out of the fast track procedure, and the rules which
apply when the fast track procedure ceases to apply. Part 6 revokes the
Immigration and Asylum Appeals (Fast Track Procedure) Rules 2003 and contains
transitional
ASYLUM AND IMMIGRATION TRIBUNAL
1.1 Subject to paragraph 1.2, the jurisdiction of the Asylum and Immigration
Tribunal in dealing with the matters specified in the first column below shall
be exercised by the number and type of members specified in the second
column.
(1) Decisions as to whether A legally qualified member
notice of appeal given in
time/whether to extend
time for appealing (including
imminent removal)/
rejection of invalid notice of
appeal
(2) All appeals in which no A legally qualified member
specific direction is given or two or more members,
or which are not specified at least one of whom is
below legally qualified
(3) Reconsiderations of appeals A legally qualified member
where no specific direction or two or more members,
is given (including decisions at least one of whom is
on orders for funding) legally qualified
(4) Appeals which have to be reheard Three or more members (but so
if two members disagree that there is an odd number of
members sitting) at least one of
whom is legally qualified
(5) Case management review A legally qualified member
hearings and other interlocutory
hearings, the giving of any directions
concerning appeals or applications
(whether or not at such hearings)
and adjournments (except where a
specific direction for the appeal to
be heard by a group of
members provides otherwise)
(6) Appeals which are to be A legally qualified member
determined without a hearing
(7) Applications for bail A legally qualified member
(8) The issue of a witness summons A legally qualified member
(9) Applications for review An immigration judge
authorised by the President to
deal with such applications
(10)Any determination that an A legally qualified member
appeal be dismissed as abandoned
or finally determined
152 A Guide to the Asylum and Immigration Act 2004
PRACTICE DIRECTIONS
The Asylum and Immigration Tribunal (“the Tribunal”) is created by the Asylum
and Immigration (Treatment of Claimants, etc) Act 2004 (“the 2004 Act”). It
replaces the Immigration Appellate Authority (“the IAA”), which consisted of
two tiers: adjudicators and the Immigration Appeal Tribunal (“the IAT”).
As a result of the replacement of the IAA by the Tribunal, all practice directions
made by the Chief Adjudicator and by the President of the IAT cease to have
effect as at 4 April 2005, when the Tribunal is established, except to such extent as
may be necessary for the purpose of giving effect to any transitional provisions
under the 2004 Act.
The directions which follow are intended to regulate the proceedings, practice
and procedure of the Tribunal from its inception on 4 April 2005. The directions
must be read in conjunction with the Nationality, Immigration and Asylum Act
2002 (as amended by the 2004 Act) and the subordinate legislation made
thereunder, in particular the Asylum and Immigration Tribunal (Procedure) Rules
2005 (“the Rules”).
Certain of the directions operate not only in relation to notices of appeal given on
or after 4 April 2005 but also in relation to notices given before that date,
including cases where, for example, an appeal to an adjudicator or to the IAT was
pending immediately before that date. Reference should be made to the
transitional provisions contained in the primary and secondary legislation.
A number of Guidance Notes were issued by the Chief Adjudicator (and Deputy
Chief Adjudicator) between 2001 and 2004, covering issues such as sitting by
part-time adjudicators, unrepresented appellants and bail proceedings.
Unless and until the Tribunal issues its own guidance, members of the Tribunal
will have regard to these Guidance Notes, subject to any qualifications or
modifications necessary as a result of the creation of the Tribunal and of any
changes in the relevant legislation.
A list of the Guidance Notes is contained in Annex C.
Notes: The directions which follow are made under section 107 of the 2002 Act
and paragraph 7 of Schedule 4 to that Act.
Any failure to comply with these directions does not of itself invalidate any
decision made by the Tribunal.
154 A Guide to the Asylum and Immigration Act 2004
CONTENTS
Preliminary
1 Interpretation
The appeal process
2 Proceedings of Tribunal
3 Rejection of invalid notice of appeal
4 Late notice of appeal
5 Imminent removal
6 Case management review hearings and directions
7 Standard directions in fast track appeals
8 Trial bundles
9 Adjournments
10 Determination where jurisdiction of Tribunal exercised by more than one
member
11 Record of proceedings
12 Transfer of proceedings
Review and reconsideration
13 Review
14 Procedure on reconsideration
15 Legal aid on reconsideration
Determinations
16 Format of determinations
17 Citation of determinations
18 Starred and Country Guidance determinations
Miscellaneous
19 Bail applications
20 Discrimination
21 Council on Tribunals
Annexes
Annex A – Front sheet of determination
Annex B – Concluding words of determination
Annex C – Guidance Notes
Practice Directions 155
1 Interpretation
1.1 In these directions:
“the 2002 Act” means the Nationality, Immigration and Asylum Act 2002
(as amended); and any reference in these directions to a numbered section
or Schedule, without more, is a reference the relevant section or Schedule
in the 2002 Act;
“the 2004 Act” means the Asylum and Immigration (Treatment of
Claimants, etc) Act 2004;
“adjudicator” means an adjudicator appointed, or treated as appointed,
under section 81;
“the Commencement Order” means the Asylum and Immigration
(Treatment of Claimants, etc) Act 2004 (Commencement No 5 and
Transitional Provisions) Order 2005;
“CMR hearing” means a case management review hearing;
“fast track appeal” means an appeal to which Part 2 of the Fast Track
Rules applies;
“the Fast Track Rules” means the Asylum and Immigration Tribunal (Fast
Track Procedure) Rules 2005;
“the Fast Track Time Limits Order” means the Asylum and Immigration
(Fast Track Time Limits) Order 2005;
“the IAT” means the Immigration Appeal Tribunal;
“legally qualified member of the Tribunal” has the meaning given by
paragraph 2 of Schedule 4;
“the President” means the President of the Tribunal;
“the Rules” means the Asylum and Immigration Tribunal (Procedure)
Rules 2005 (as amended); and any reference in these directions to a
numbered rule, without more, is a reference to the relevant provision of
the Rules;
“the Tribunal” means the Asylum and Immigration Tribunal.
1.2 Other expressions used in these directions have the same meaning as in
the Rules or the 2002 Act.
2 Proceedings of Tribunal
2.1 The President has under paragraph 7 of Schedule 4 made directions
relating to the proceedings of the Tribunal to the following effect.
2.2 Subject to paragraph 2.3, the jurisdiction of the Tribunal in dealing with
the matters specified in the first column below shall be exercised by the
number and type of members specified in the second column.
(1) Decisions as to whether A legally qualified member
notice of appeal given in
time/whether to extend
time for appealing (including
imminent removal)/
rejection of invalid notice of
appeal
156 A Guide to the Asylum and Immigration Act 2004
3.4 The fact that a hearing date may have been given to the parties does not
mean that the appeal must be treated as valid. The Tribunal will therefore
act accordingly if at a hearing (including a CMR hearing) it transpires that
the notice of appeal does not relate to a decision against which there is an
exercisable right of appeal.
3.5 Rule 9 does not apply in the case of a fast track appeal and any issue as to
the validity of any such appeal will be dealt with at the hearing.
4 Late notice of appeal
4.1 An important consequence of appeals being made directly to the Tribunal,
rather than being given to the Home Office or Entry Clearance Officer (as
was the position with the former Immigration Appellate Authority), is
that the Tribunal will have to consider in every case whether a notice of
appeal was given in time.
4.2 Attention is drawn to rule 10 (late notice of appeal), which requires a
notice of appeal given outside the applicable time limit to include an
application for an extension of time for appealing. That application must
give reasons for lateness and be accompanied by any written evidence
relied upon in support of those reasons.
4.3 Where no such application is made but it appears to the Tribunal, upon
receipt of the notice of appeal, that that notice is out of time, the Tribunal
must notify the person giving the notice that it is proposed to treat the
notice as out of time. That person then has three days (or ten days if
outside the United Kingdom) in which to file evidence to show the notice
was given in time or that there are special circumstances for failing to do
so, which could not reasonably have been stated in the notice of appeal.
4.4 The obligation on the Tribunal to give such notification does not arise if
the Tribunal extends time for appealing of its own initiative (rule 10(2)).
Parties must not assume that the existence of this power means that the
limits specified in rule 7 (time limit for appeal) can in practice be ignored.
The power is intended to be used where, for instance, a disruption of the
postal service delays notices that would otherwise have been received in
time.
4.5 Except as described in paragraph 4.4, the Tribunal may extend time for
appealing if satisfied that by reason of special circumstances it would be
unjust not to do so (rule 10(5)). That issue must be decided without a
hearing. The Tribunal’s decision cannot be the subject of an application
for reconsideration under section 103A; nor can it be appealed.
4.6 The preceding provisions of this paragraph do not apply in the case of a
fast track appeal. Instead, any issue of timeliness will be decided as a
preliminary issue at the hearing (rule 12 of the Fast Track Rules).
5 Imminent removal
5.1 Rule 11 (special provisions for imminent removal cases) requires the
Tribunal, if reasonably practicable and except in the case of a fast rack
appeal, to make a preliminary decision under rule 10 (late notice of
appeal) before the date and time of a person’s proposed removal from the
United Kingdom where:
(a) that person has given notice of appeal; and
(b) removal directions have been issued to take effect within five
calendar days of the date on which such notice of appeal was given.
158 A Guide to the Asylum and Immigration Act 2004
5.2 In such a case, the Tribunal may decide that notification under rule 10(2)
may be given orally (including by telephone), that the three day period
for giving evidence under rule 10(4) should be shortened and that any
such evidence should be given orally, including by telephone. The
Tribunal’s decision under rule 10 must still, however, be served in
writing.
5.3 Imminent removal cases under rule 11 will normally be dealt with by
senior immigration judges on a “rota” basis. It will be for the senior
immigration judge concerned to decide whether to exercise all or any of
the powers conferred by rule 11(3), having regard to the circumstances of
the particular case. These may include whether the person concerned is
able to give evidence by telephone, in particular where that person’s
language is not English, and, where that person is represented, the
practicability of receiving submissions from the representative. The judge
may decide to hold a hearing or a telephone hearing for the purpose of
receiving evidence.
6 Case management review hearings and directions
6.1 Except where the Tribunal directs otherwise, a CMR hearing shall be held
in respect of every asylum appeal (other than a fast track appeal and an
appeal in respect of which the determination of the Tribunal is ordered to
be reconsidered), where the appellant:
(a) is present in the United Kingdom; and
(b) has a right of appeal whilst in the United Kingdom.
6.2 It is important that the parties and their representatives understand that a
CMR hearing or similar first hearing is a hearing in the appeal and that the
appeal may be determined by the Tribunal under rule 15(2)
(determination of an appeal without a hearing) or rule 19 (hearing of
appeal in the absence of a party) if a party does not appear and is not
represented at that hearing.
6.3 In addition to any information required by rule 8 (form and contents of
notice of appeal), the appellant must provide the Tribunal and the
respondent at the CMR hearing with:
(a) particulars of any application for permission to vary the grounds of
appeal (see rule 14 (variation of grounds of appeal));
(b) particulars of any amendments to the reasons in support of the
grounds of appeal;
(c) particulars of any witnesses to be called or whose written statement
or report is proposed to be relied upon at the full hearing; and
(d) a draft of any directions that the appellant is requesting the Tribunal
to make at the CMR hearing.
6.4 In addition to any documents required by rule 13 (filing of documents by
the respondent), the respondent must provide the Tribunal and the
appellant at the CMR hearing with:
(a) any amendment that has been made or that is proposed to be made to
the notice of decision to which the appeal relates or to any other
document served on the appellant giving reasons for that decision;
and
(b) a draft of any directions that the respondent is requesting the Tribunal
to make at the CMR hearing.
Practice Directions 159
6.5 In most cases, including those appeals where a CMR hearing is to be held,
the Tribunal will normally have given to the parties the following
directions with the notice of hearing:
(a) not later than 5 working days before the full hearing the appellant
shall serve on the Tribunal and the respondent:
(i) witness statements of the evidence to be called at the hearing,
such statements to stand as evidence in chief at the hearing;
(ii) a paginated and indexed bundle of all the documents to be relied
upon at the hearing with a schedule identifying the essential
passages;
(iii) a skeleton argument, identifying all relevant issues including
human rights claims and citing all the authorities relied upon;
and
(iv) a chronology of events;
(b) not later than 5 working days before the full hearing the respondent
shall serve on the Tribunal and the appellant a paginated and indexed
bundle of all the documents to be relied on at the hearing, with a
schedule identifying the relevant passages, and a list of any
authorities relied upon.
6.6 At the end of the CMR hearing, the Tribunal will give to the parties any
further written directions relating to the conduct of the appeal.
6.7 Although in normal circumstances a witness statement should stand as
evidence in chief, there may be cases where it will be appropriate for
appellants or witnesses to have the opportunity of adding to or
supplementing their witness statements. Parties are referred to the
judgment of the Court of Appeal in R v Secretary of State for the Home
Department ex parte Singh [1998] INLR 608.
6.8 If at the CMR hearing the Tribunal considers that the circumstances are
such that the jurisdiction of the Tribunal at the full hearing should be
exercised by a group of members the Tribunal may give a direction to that
effect at the CMR hearing.
6.9 In addition to the directions referred to above, at the end of the CMR
hearing the Tribunal shall also give to the parties written confirmation of:
(a) any issues that have been agreed at the CMR hearing as being
relevant to the determination of the appeal; and
(b) any concessions made at the CMR hearing by a party.
6.10In paragraph 6.1, “asylum appeal” means an appeal that relates, in whole
or part, to an asylum claim.
7 Standard directions in fast track appeals
7.1 In the case of a fast track appeal, the appellant and the respondent shall
respectively serve the materials specified in direction 6.5(a) and (b) either
at the hearing or, if practicable, on the business day immediately
preceding the date of the hearing.
7.2 Subject to the point made in paragraph 6.7, witness statements served in
pursuance of paragraph 7.1 shall stand as evidence in chief at the hearing.
8 Trial bundles
8.1 The parties shall have regard to paragraph 8.2 to 8.6 in the preparation of
trial bundles for hearings before the Tribunal.
160 A Guide to the Asylum and Immigration Act 2004
9 Adjournments
9.1 Applications for the adjournment of appeals (other than fast track
appeals) listed for hearing before the Tribunal must be made not later
than 4.00 pm one clear working day before the date of the hearing.
9.2 For the avoidance of doubt, where a case is listed for hearing on, for
example, a Friday, the application must be received by 4.00 pm on the
Wednesday.
9.3 The application for an adjournment must be supported by full reasons
and must be made in accordance with rule 21 (adjournment of appeals).
9.4 Any application made later than the end of the period mentioned in
paragraph 9.1 must be made to the Tribunal at the hearing and will
require the attendance of the party or the representative of the party
seeking the adjournment.
9.5 It will be only in the most exceptional circumstances that late applications
for adjournments will be considered without the attendance of a party or
representative.
9.6 Parties must not assume that an application, even if made in accordance
with paragraph 9.1, will be successful and they must always check with
the Tribunal as to the outcome of the application. This is particularly
important, given the restrictions imposed by rule 21 on the Tribunal’s
power to adjourn appeal hearings.
9.7 Any application for the adjournment of a fast track appeal must be made
to the Tribunal at the hearing and will be considered by the Tribunal
under rule 28 (adjournment) of the Fast Track Rules (see also rule 30(2)(a)
of those Rules).
9.8 If an adjournment is not granted and a party fails to attend the hearing,
the Tribunal is required by rule 19 (hearing appeal in absence of a party)
to proceed with the hearing, if satisfied that valid notice of the hearing
has been given and that there has been no satisfactory explanation for
absence.
10 Determinations where jurisdiction of Tribunal exercised by more than one member
10.1Where, in respect of any appeal, the jurisdiction of the Tribunal is
exercised by more than one member, the determination is that reached by
the majority of those members.
10.2It is accordingly inappropriate that a dissenting view should be expressed
or that the determination should indicate that it is that of a majority.
10.3Such a determination will therefore not disclose whether it is unanimous
or by a majority nor will any minority or dissenting views be included in
it or otherwise communicated.
11 Record of proceedings
11.1The Tribunal shall keep a proper record of proceedings of any hearing.
11.2That record should be signed and dated by the member of the Tribunal
responsible for taking the record and be attached to the Tribunal’s case
file.
12 Transfer of proceedings
12.1Where:
(a) the Tribunal (“the original Tribunal”) has started to hear an appeal
but has not completed the hearing or given its determination; and
162 A Guide to the Asylum and Immigration Act 2004
that the application could not reasonably practicably have been made
within that period (section 103A(4)(b)).
13.7The immigration judge may make an order for reconsideration only if
that judge thinks that the original Tribunal may have made an error of
law and that there is a real possibility that the Tribunal would decide the
appeal differently on reconsideration (rule 26(6)).
13.8The effect of rule 26(6) is that, as with applications for permission to
appeal to the IAT under section 101 (now repealed), a party seeking to
adduce evidence that was not before the original Tribunal must explain in
the application the significance of that evidence with regard to both of the
requirements specified in paragraph 13.7 (see E&R [2004] EWCA Civ 49;
CA [2004] EWCA Civ 1165).
13.9The immigration judge who has decided to make an order for
reconsideration:
(a) must state the grounds on which the Tribunal is ordered to reconsider
its decision (rule 27(2)(a)); and
(b) will (amongst other things) decide under rule 27(2)(b) whether to
direct that a CMR hearing be held before the reconsideration hearing
takes place and whether to make a direction as to the evidence to be
adduced at the hearing initially fixed for the reconsideration (as to
which, see paragraph 14).
13.10The references in paragraph 13.8 and 13.9 to the original Tribunal include
references to an adjudicator in any case where, by virtue of article 6 of the
Commencement Order, the order under section 103A is made in respect of
the decision of an adjudicator.
14 Procedure on reconsideration
14.1Subject to paragraph 14.12, where an appeal has been ordered under
section 103A to be reconsidered, then, unless and to the extent that they
are directed otherwise, the parties to the appeal should assume that the
issues to be considered at the hearing fixed for the reconsideration will be
whether the original Tribunal made a material error of law (see rule 31(2))
and, if so, whether, on the basis of the original Tribunal’s findings of fact,
the appeal should be allowed or dismissed.
14.2Where the Tribunal decides that the original Tribunal made a material
error of law but that the Tribunal cannot proceed under rule 31(3) to
substitute a fresh decision to allow or dismiss the appeal because findings
of fact are needed which the Tribunal is not in a position to make, the
Tribunal will make arrangements for the adjournment of the hearing or
for the transfer of the proceedings under paragraph 12.3 so as to enable
evidence to be adduced for that purpose.
14.3Where the Tribunal acting under paragraph 14.2 adjourns the hearing, its
determination, produced after the adjourned hearing has taken place, will
contain the Tribunal’s reasons for finding that the original Tribunal made
a material error of law.
14.4Where the Tribunal acting under paragraph 14.2 transfers the
proceedings, it shall prepare written reasons for its finding that the
original Tribunal made a material error of law and those written reasons
shall be attached to, and form part of, the determination of the Tribunal
which substitutes a fresh decision to allow or dismiss the appeal.
164 A Guide to the Asylum and Immigration Act 2004
15.8It should be noted that the power to make a funding order in the
circumstances described in paragraph 15.2(b) covers only the costs in
respect of the review application; not any costs incurred in connection
with preparing for a reconsideration that does not, in the event, take
place. In certain circumstances, it may be inappropriate for a supplier or
counsel to be denied a funding order which would cover the costs of
preparing for the reconsideration. In an appropriate case, therefore, the
Tribunal will consider representations as to whether it should make a
decision by consent on the appeal following reconsideration (whether or
not involving a hearing), so as to enable the Tribunal to make a funding
order under section 103D(3) in respect of the review application and the
reconsideration, notwithstanding that it may not otherwise have been
necessary to undertake the reconsideration.
15.9A funding order can only be made where there has been an application
for an order under section 103A(1) (see section 103D(2)(b)). Accordingly, a
funding order may not be made in a case described in paragraph 14.6 or
paragraph 14.11. Nor can such an order be made in a case described in
paragraph 14.1 where a pending application to the IAT is treated as an
application under section 103A(1) (see paragraph 14.5 and article 6(5) of
the Commencement Order).
16 Format of determinations
16.1In order to ensure consistency in the formatting of determinations, the
member of the Tribunal who is preparing the determination shall:
(a) use the front sheet format set out in Annex A as appropriate for the
case;
(b) number sequentially each paragraph of the determination;
(c) conclude each determination under a heading “Decision” in the
manner set out in Annex B, adapting the wording as necessary; and
(d) sign and date the determination at the end of the document or
employ such electronic methods as the President may approve for
signifying that the determination is finalised.
17 Citation of determinations
17.1A determination of the Tribunal to which this sub-paragraph applies will
be either “reported” or “unreported”. The decision whether to report a
case is that of the Tribunal and is not perceived to be an issue in which the
parties to the appeal have an interest.
17.2Paragraph 17.1 applies to any determination that is promulgated
following a hearing at which the jurisdiction of the Tribunal was exercised
by a senior immigration judge (whether sitting alone or with another
member or members).
17.3No determination will be reportable which follows a hearing before a
single member of the Tribunal other than the President or a Deputy
President of the Tribunal.
17.4Reported determinations will receive a neutral citation number of the
form [2005] UKAIT 0000 and will be widely available (including being
available on the Tribunal’s website). They will be anonymised and will be
cited by the neutral citation number. Determinations without such a
number are unreported. Anonymised versions of unreported
determinations will be deposited in the Supreme Court Library and
Practice Directions 167
MR JUSTICE HODGE
PRESIDENT
4 April 2005
ANNEX A
Front sheet of determination
Asylum and Immigration Tribunal Appeal number:
ANNEX B
Concluding words of determination
1 In asylum/human rights appeals
DECISION
The appeal is allowed/dismissed on asylum grounds
The appeal is allowed/dismissed on human rights grounds
ANNEX C
Guidance Notes
Guidance Note No 1 (November 2001) – Guidance on sitting for part-time
adjudicators
Guidance Note No 2 (May 2002) – Guidance on transfer of proceedings
Guidance Note No 3 (May 2002) – Pre-hearing introduction
Guidance Note No 4 (February 2003) – Delayed promulgations
Guidance Note No 5 (April 2003) – Unrepresented appellants
Bail guidance notes for Adjudicators (May 2003) (Third edition)
Guidance Note No 6 (June 2003) – Guidance for adjudicators on deposit of
recognizances
Guidance Note No 7 (July 2003) – Guidance for adjudicators on withdrawals
Guidance Note No 8 (April 2004) – Unaccompanied children
Guidance note (August 2004) – Unrepresented appellants who do not understand
English
INDEX
Accommodation for Asylum and Immigration
asylum seekers Tribunal (AIT)
accommodation centres .........................16 abandonment of appeal .......................112
dispersal areas ...................................16, 17 adjournments.........................113, 123, 161
emergency or interim appeal from........................................66–67
accommodation .............................16–17 application for
failed asylum seekers .......................52–54 permission to appeal.........................119
local connection.....................16–17, 54–55 bail.....................................119–21, 123, 168
Adjudication hearing................................30 burden of proof .....................................125
calculation of time ................................127
Administrative appeals ..............................2
certification of pending appeal ...........111
Advertising services..................5, 39, 80–81 conditional fee agreements....................28
Aircraft, information constitution ............................................122
about passengers..............................18, 59 correction of orders
Aircrew, right of appeal................33–34, 72 and determinations .....................127–29
Appeal system costs.....................................................26–28
See also Asylum and Council on Tribunals ......................168–69
Immigration Tribunal; country guidance ............................167–68
Immigration Appeal determinations
Tribunal citation ..........................................166–67
aircrew’s right of appeal ............33–34, 72 concluding words..............................170
appeals from within UK ......31–32, 70–71 country guidance ........................167–68
conditional fee agreements....................28 format..................................................166
costs, jurisdiction over .....................26–28 front sheet...........................................169
’culture of disbelief’................................29 giving of........................113, 140–41, 161
delay ...................................................29, 30 jurisdiction exercised
earlier right of appeal.......................33, 72 by more than one
errors of law.............................................26 member, where ..............................161
funding arrangements............................24 starred ...........................................167–68
groundless appeals ...................................1 directions..........................................122–23
Immigration dismissal of members.......................40–41
Services Tribunal ...........................39, 81 errors of law.......................................26, 65
lay members ..............................................3 errors of procedure ...............................127
’leap-frog’ appeals ............................23–24 evidence..............................117–18, 124–25
legal aid ........................................24, 27, 28 ex parte review procedure ......................26
race discrimination .................1–2, 32, 168 fast-track procedure................137–50, 159
references to the filing of documents.........................126–27
Court of Appeal.............................23–24 funding arrangements............................24
restriction on appeal rights .....................1 generally...............................1, 2, 64, 86–96
seamen’s right of appeal............33–34, 72 hearings ..................................................112
single immigration judge, admission of public ........................125–26
decision of ..............................................1 imminent removal cases ..109–10, 157–58
single-tier system ..................................1, 2 language of documents........................125
time limit.............................24–26, 31, 107, legal aid ..............................................67–68
113–14, 119 membership .......................................86–87
two-tier system................................1, 2, 31 method of
unification ..............................22–31, 64–69 determining appeal ...........................111
money .......................................................87
Arrest powers, ‘no win, no fee’
immigration officers..................18, 57–58 arrangements .......................................27
Assisting unlawful notice of appeal ...............................106–07
immigration ........................................5, 43 case management
review hearings
and directions...........................158–59
174 A Guide to the Asylum and Immigration Act 2004