A Guide to the Asylum and Immigration

A GUIDE TO THE ASYLUM AND IMMIGRATION ACT (TREATMENT OF CLAIMANTS, ETC) 2004 A GUIDE TO THE ASYLUM AND IMMIGRATION AC...

Author: Satvinder Juss

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A GUIDE TO THE ASYLUM AND IMMIGRATION ACT (TREATMENT OF CLAIMANTS, ETC) 2004

A GUIDE TO THE ASYLUM AND IMMIGRATION ACT (TREATMENT OF CLAIMANTS, ETC) 2004 Dr Satvinder S Juss, FRSA Reader in Law, King’s College London Barrister-at-Law, Gray’s Inn

First published in Great Britain 2005 by Cavendish Publishing Limited, The Glass House, Wharton Street, London WC1X 9PX, United Kingdom Telephone: + 44 (0)20 7278 8000 Facsimile: + 44 (0)20 7278 8080 Email: [email protected] Website: www.cavendishpublishing.com Published in the United States by Cavendish Publishing c/o International Specialized Book Services, 5824 NE Hassalo Street, Portland, Oregon 97213-3644, USA Published in Australia by Cavendish Publishing (Australia) Pty Ltd 45 Beach Street, Coogee, NSW 2034, Australia Telephone: + 61 (2)9664 0909 Facsimile: + 61 (2)9664 5420 Email: [email protected] Website: www.cavendishpublishing.com.au © Juss, S 2005 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, scanning or otherwise, without the prior permission in writing of Cavendish Publishing Limited, or as expressly permitted by law, or under the terms agreed with the appropriate reprographics rights organisation. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Cavendish Publishing Limited, at the address above. You must not circulate this book in any other binding or cover and you must impose the same condition on any acquirer. British Library Cataloguing in Publication Data Juss, Satvinder S (Satvinder Singh) A guide to the Asylum and Immigration Act (Treatment of Claimants, etc) Act 2004 1 Great Britain. Asylum and Immigration Act (Treatment of Claimants, etc) Act 2004 2 Emigration and immigration – Great Britain 3 Asylum, right of – Great Britain I Tile 342.4'1082 Library of Congress Cataloguing in Publication Data Data available ISBN 1-85941-982-8 ISBN 978-1-859-41982-3 1 3 5 7 9 10 8 6 4 2 Printed and bound in Great Britain

An Act to make provision about asylum and immigration (22 July 2004) Some asylum seekers do beat the system, but then who does not? Many of us have done so over the centuries, and those who colonise other countries have not refrained from doing so either. I want to suggest that while desperate people struggling to outsmart the system deserve to be restrained, they must also be approached with a certain measure of compassion. Our asylum policy must be firm but compassionate. [Per Lord Parekh (Hansard, HL, vol 659, No 53, 15 March 2004, at cols 80–81)] Aristotle remarked that it is essential, in passing good law, for legislators to go home and be subject to the laws they have made. Not many people in this House have been asylum seekers. When we listen to those who have, we hear immediately a wave of comprehension that we do not get from many of the speeches here. [Per Earl Russell, (Hansard, HL, vol 659, No 53, 15 March 2004, at col 81)]

PREFACE When, on 27 October 2003, the government announced its intention to pass legislation for a balanced approach in asylum and immigration policy, it was embarking on its third asylum Bill in four years. The ink was barely dry on the Nationality, Immigration and Asylum Act 2002. Indeed, much of that Act remained unimplemented. It was a staccato approach, rather than a carefully crafted response to asylum policy. The Bill had no preceding White Paper, no consultation and no prelegislative scrutiny. It was criticised by highly respectable organisations such as the Immigration Advisory Service, which bluntly stated that: ‘There is no need for further legislation. These asylum driven reforms will have a massive and unwelcome impact on immigration cases, family visit visas, students and work permits.’ This was paradoxical given that, ostensibly, the Act has the avowed aim of forming and being part of a wider immigration strategy, namely, that of encouraging managed, legal migration, including from the EU accession countries, working internationally to address the global problems of refugees at source, while strongly preventing abuse of the asylum system and illegal migration. In the long term, border controls are to be moved to the Continent, so that what has been already done in France has now been extended to Belgium. Thus, the use of biometrics on visas and at ports can be extended and, in agreements with other countries, can be used to return failed asylum seekers. The government had already met with a measure of success in halving the number of asylum claimants from 8,700 in October 2003 to 4,000 in September 2004. In 2003 as a whole, applications fell by 41%, being four times as much as the rest of the EU. Applications for state support also fell by 60% in the last three months of 2003, compared with the same period in 2002, as a direct result of the fall in new claims. The number of cases awaiting an initial decision also stood at its lowest for a decade and 80% of decisions on applications are made and served now within two months. However, the government’s intention was now to make still better provision for speed and finality in the immigration system. To that end, the central part of its legislative framework was to create a unified appellate structure for asylum and immigration appeals whereby a single-tier system would target delay and reduce abuse in the system, thus reducing what is currently a 62-week process to an 18-week-process (see per Lord Falconer in Hansard, vol 659, No 53, 15 March 2004, at cols 49–50). However, there is little evidence of ‘managed migration’ in the Act. Although it has taken 50 years for the legislature to be able meaningfully to distinguish between skilled primary migration, economic migration and asylum seekers, this Act does not reflect this. Doctors and IT specialists come to the UK fully trained. To train a doctor fully in the UK would cost £285,000. There are 8,000 doctors who come fully trained from the Indian sub-continent to the UK. If Britain had to train the same number of doctors in the UK, it would be at an astronomical cost of £900 million. In truth, the government’s plans for managed migration form no part of the Act at all. If the government’s concern was with long delays and long drawn-out appeals, then arguably this Bill was not necessary, given the overriding interest in the maintenance of the rule of law. This is because the imposition of nonsuspensive appeals, juxtaposed controls, new visa regimes, introduction of finger-printing in Sri Lanka and its proposed extension to the countries of East Africa, together with an impending enlargement of the EU (which removes

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A Guide to the Asylum and Immigration Act 2004

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 Table of Cases Table of Legislation

COMMENTARY ON THE ACT Section 1: assisting unlawful immigration Section 2: entering the UK without a passport Section 3: immigration documents – forgery Section 4: trafficking people for exploitation Section 6: supplemental Section 8: claimant’s credibility Section 9: failed asylum seekers – withdrawal of support Section 11: accommodation for asylum seekers – local connection Section 12: refugees – back-dating of benefits Section 13: integration loans for refugees Section 14: immigration officers – powers of arrest Section 15: fingerprinting Section 16: information about passengers Section 17: retention of documents Section 18: control of entry Section 19: England and Wales Section 20: England and Wales – supplemental Sections 21 and 22: persons subject to immigration control – procedures for marriage – Scotland and supplemental Sections 23 and 24: persons subject to immigration control – procedures for marriage –Northern Ireland and supplemental Section 25: application for permission under s 19(3)(b), 21(3)(b) or 23(3)(b) Section 26: unification of appeal system Section 27: unfounded human rights for asylum claim Section 28: appeal from within the UK Section 29: entry clearance Section 30: earlier right of appeal Section 31: seamen’s and aircrews’ right of appeal Section 32: suspected international terrorist bail Section 33 and Schedule 3: removing asylum seekers to a safe country Section 34: detention pending deportation Section 35: deportation or removal co-operation Section 36: electronic monitoring Section 37: provision of immigration services Section 38: Immigration Services Commissioner – power of entry Section 39: offence of advertising services

vii xv xvii

1 5 5 7 7 8 9 15 16 17 17 18 18 18 18 19 20 21 21 21 22 22 31 31 32 33 33 34 34 36 37 37 38 38 39

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Section 40: appeal to Immigration Services Tribunal Section 41: professional bodies Section 42: amount of fees Section 43: transfer of leave stamps Section 48: commencement Schedules

39 39 40 40 40 40

LEGISLATION

THE ASYLUM AND IMMIGRATION (TREATMENT OF CLAIMANTS, ETC) ACT 2004

43

OFFENCES 1 Assisting unlawful immigration 2 Entering United Kingdom without passport, &c 3 Immigration documents: forgery 4 Trafficking people for exploitation 5 Section 4: supplemental 6 Employment 7 Advice of Director of Public Prosecutions

43 43 46 46 47 48 49

TREATMENT OF CLAIMANTS 8 Claimant’s credibility 9 Failed asylum seekers: withdrawal of support 10 Failed asylum seekers: accommodation 11 Accommodation for asylum seekers: local connection 12 Refugee: back-dating of benefits 13 Integration loan for refugees

49 51 52 54 55 56

ENFORCEMENT POWERS 14 Immigration officer: power of arrest 15 Fingerprinting 16 Information about passengers 17 Retention of documents 18 Control of entry

57 59 59 59 59

PROCEDURE FOR MARRIAGE 19 England and Wales 20 England and Wales: supplemental 21 Scotland 22 Scotland: supplemental 23 Northern Ireland 24 Northern Ireland: supplemental 25 Application for permission under section 19(3)(b), 21(3)(b) or 23(3)(b)

60 60 61 62 62 63 64

Contents

xiii

APPEALS 26 Unification of appeal system 27 Unfounded human rights or asylum claim 28 Appeal from within United Kingdom 29 Entry clearance 30 Earlier right of appeal 31 Seamen and aircrews: right of appeal 32 Suspected international terrorist: bail

64 69 70 71 72 72 72

REMOVAL AND DETENTION 33 Removing asylum seeker to safe country 34 Detention pending deportation 35 Deportation or removal: cooperation 36 Electronic monitoring

73 73 73 75

IMMIGRATION SERVICES 37 Provision of immigration services 38 Immigration Services Commissioner: power of entry 39 Offence of advertising services 40 Appeal to Immigration Services Tribunal 41 Professional bodies

77 78 80 81 81

FEES 42 Amount of fees 43 Transfer of leave stamps

82 83

GENERAL 44 Interpretation: “the Immigration Acts” 45 Interpretation: immigration officer 46 Money 47 Repeals 48 Commencement 49 Extent 50 Short title

83 84 84 84 84 84 84

SCHEDULES Schedule 1 Schedule 2 Schedule 3 Schedule 4

86 88 97 103

THE ASYLUM AND IMMIGRATION TRIBUNAL (PROCEDURE) RULES 2005

105

STATEMENT OF CHANGES IN IMMIGRATION RULES (HC 302) – FEBRUARY 2005

131

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THE IMMIGRATION (EUROPEAN ECONOMIC AREA) (AMENDMENT) REGULATIONS 2005

135

THE ASYLUM AND IMMIGRATION TRIBUNAL (FAST TRACK PROCEDURE) RULES 2005

137

DIRECTIONS UNDER PARAGRAPH 7 OF SCHEDULE 4 TO THE NATIONALITY, IMMIGRATION AND ASYLUM ACT 2002

151

PRACTICE DIRECTIONS

153

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 Befekadu [1999] Imm AR 467 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12 Borissov v SSHD [1996] Imm AR 524 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22 Chiver [1997] INLR 212, EAT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4, 11 Eleilmaran (00/TH/01369) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14 Horvath [1999] INLR 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12 Jakitay (12658) unreported, 15 November 1995, IAT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12 Mahmood (10629) unreported, 3 February 1994, IAT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14 Oleed v SSHD [2003] INLR 179 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22 Osmani v The London Borough of Harrow [2004] UKHL 4; [2004] 2 AC 159; [2004] 2 WLR 354 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16 R v IAT ex p Gba (CO/4185/1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14 R v IAT ex p Khan [1983] 2 WLR 759 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11 R v IAT ex p Hussain (CO/1990/95) unreported, 25 April 1996, QBD . . . . . . . . . . . . . . . .12 R v Uxbridge Magistrates’ Court ex p Adimi [2000] 3 WLR 434 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6, 7 Vincent Guine (13868) unreported, 9 September 1996, IAT . . . . . . . . . . . . . . . . . . . . . . . . . .12 Warsame (Somalia – Adjudicator’s Questions) (AS/50871/2003) SW [2004] UKIAT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12, 13 Ye v Canada (Minister of Employment and Immigration) [1992] FCJ 584 . . . . . . . . . . . . .15

TABLE OF LEGISLATION Anti-terrorism, Crime and Security Act 2001— s 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34 Asylum and Immigration Act 1996— s 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8 British Nationality Act 1981 . . . . . . . . . . . .31 Children Act 1989— s 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15 s 20 . . . . . . . . . . . . . . . . . . . . . . . . .4, 5, 15 Civil Procedure Rules . . . . . . . . . . . . . . . . .23 Criminal Justice Act 2003— s 145 . . . . . . . . . . . . . . . . . . . . . . . . . . . .37 European Convention on the Protection of Human Rights and Fundamental Freedoms . .12, 16, 31, 35 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . .5, 15 Arts 6, 8 . . . . . . . . . . . . . . . . . . . . . . . . . .2 Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . .20 Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

Immigration Act 1988 . . . . . . . . . . . . . . . . . .1 Immigration and Asylum Act 1999 . . . . . .17 s 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .40 s 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35 s 11 . . . . . . . . . . . . . . . . . . . . . . . . . .34–36 s 12 . . . . . . . . . . . . . . . . . . . . . . . . . .34, 35 s 31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6 s 84 . . . . . . . . . . . . . . . . . . . . . . . . . .38, 39 s 86 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .39 s 86(9)(a), (b)(ii) . . . . . . . . . . . . . . . . . .39 s 87(3)(d), (f) . . . . . . . . . . . . . . . . . . . . .39 s 91 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38 s 91(3)–(7) . . . . . . . . . . . . . . . . . . . . . . .39 s 92A . . . . . . . . . . . . . . . . . . . . . . . . . . .38 s 92B . . . . . . . . . . . . . . . . . . . . . . . . . . . .39 s 95 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16 ss 115, 123 . . . . . . . . . . . . . . . . . . . . . . .17 s 141 . . . . . . . . . . . . . . . . . . . . . . . . . . . .18 Sched 5 . . . . . . . . . . . . . . . . . . . . . . . . .38 Local Government Act 2000— s 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4 Marriage Act 1959 . . . . . . . . . . . . . . . . . . . .21

EU Council Directive 2002/90/EC . . . . . . .5 EU Council Framework Decision 2002/946/JHA . . . . . . . . . . . . . . . . . . . .5 EU Council Regulation 343/2003/EC (The Dublin Convention) . . . . . . . . . .35 Forgery and Counterfeiting Act 1981— s 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7 Housing Act 1996 . . . . . . . . . . . . . . . . . . . . .17 s 193 . . . . . . . . . . . . . . . . . . . . . . . . . . . .16 Human Rights Act 1998 . . . . . . .5, 15, 22, 38 s 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34 Immigration Act 1971 . . . . . . . . . . .18, 19, 33 s 3(5), (6) . . . . . . . . . . . . . . . . . . . . . . . .36 s 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5 s 25C(9)(a) . . . . . . . . . . . . . . . . . . . . . . . .5 Sched 2 . . . . . . . . . . . . . . . . . . . . . . . . .18 Sched 3 . . . . . . . . . . . . . . . . . . . . . .36, 37

Nationality, Immigration and Asylum Act 2002 . . . . . . . . . . . . . . . .1, 4 s 54 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4 s 55 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17 s 77 . . . . . . . . . . . . . . . . . . . . . . . . . .35, 36 s 80 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35 s 92 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34 s 92(3) . . . . . . . . . . . . . . . . . . . . . . . . . .31 s 93 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35 s 96 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33 s 103 . . . . . . . . . . . . . . . . . . . . . . . . .23, 26 s 103A . . . . . . . . . . . . . . . . . . . .23, 24, 26 s 103A(4)(b) . . . . . . . . . . . . . . . . . . . . .25 ss 103B, 103C . . . . . . . . . . . . . . . . . . . .23 ss 103D, 103E . . . . . . . . . . . . . . . . . . . .24 s 120 . . . . . . . . . . . . . . . . . . . . . . . . . . . .33 Sched 1 . . . . . . . . . . . . . . . . . . . . . . . . . .3 Sched 4 . . . . . . . . . . . . . . . . . . . . . . . . . .3 Race Relations Act 1976— s 71 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

xviii


United Nations Palermo Protocol . . . . . . . .9 Art 6.3 . . . . . . . . . . . . . . . . . . . . . . . . . . .9 United Nations Convention on the Rights of the Child . . . . . . . . . . . . . . .15

United Nations Convention Relating to the Status of Refugees 1951 . . . . . . . . . . . . . . . . . . . . . .12, 34–36 Art 31 . . . . . . . . . . . . . . . . . . . . . . . . . . . .6 Art 33 . . . . . . . . . . . . . . . . . . . . . . . . . . .25

COMMENTARY ON THE ACT

On 27 October 2003, the government announced its intention to pass legislation for a balanced approach in asylum and immigration policy. This was only one year after the Nationality, Immigration and Asylum Act 2002, breaking the trend of fresh legislation every three years in this area since 1993, although the restriction on rights of appeal began as long ago as the Immigration Act 1988. The government’s approach on asylum was to be seen now in the wider context of managed migration, through which the government would open up routes for people to enter the UK legally, whilst clamping down on those who enter illegally and make unfounded claims. In passing this Act, the government declared its intention to set out to tackle two particular problems. The first was to deal with those applicants who lodged groundless appeals to delay removal. The second was to deal with those asylum seekers who deliberately destroy or dispose of their documents in order to be able to make unfounded claims. To attain these ends, the government said it would increase the speed and finality of the appeal system. An efficient and speedy system would provide effective remedy, but discourage dishonesty. As a result, no longer would there be a twotier system of administrative appeals; instead, this Act would create a single tier of appeals. A single tier would simplify the appeal system and reduce the risk of people seeking to play the system by making unfounded appeals to the State for final resolution of their cases. It would replace the current structure with a single appeal to a new single-tier tribunal, the Asylum and Immigration Tribunal (AIT), headed by a President. The new judiciary would be titled immigration judges or senior immigration judges and the vast majority of appeals would be heard and decided by a single immigration judge. He would work closely with more senior District Immigration Judges. The judicial oversight provided by the designated senior immigration judge would ensure high quality justice without allowing cases to drag on for many months for the legal process. The government argued that fairness, finality and speed would be the hallmarks of the new appeal system. It would abolish the two-tier system, but it would still safeguard the right of appeal and provide an effective remedy for those whose applications had been refused by the Immigration and Nationality Directorate (IND) or an entry clearance officer. This single system is, however, open to criticism. In introducing the new Bill, the government stated that it was in the process of assessing the race equality impact of its proposals, in line with its statutory obligations under s 71 of the Race Relations Act 1976 (as amended). The assessments would consider to what extent the proposals have due regard to the need to eliminate unlawful discrimination and promote good relations between persons of different racial groups. The government was concerned to ensure that community relations are ‘not adversely affected by what may be seen in many quarters as continuing evasion and exploitation of immigration and asylum controls at significant cost to the taxpayer’. However, it is clear that a number of

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these proposals will have adverse impacts on racial questions if implemented. The AIT does not safeguard, as claimed, the right of appeal or provide an effective remedy for decisions ‘refused by the IND or an entry clearance officer’. Neither does it live up to the government’s professed aim of helping to promote communal harmony, as it is likely adversely to affect race relations. This is because, whereas the single-tier system may be rightly introduced for those asylum seekers who seek to delay their removal and thus abuse the system, it cannot be rightly introduced in respect of application to entry clearance applications by family members and visitors from the 10 posts overseas, for whom delay is anathema. To replace the previous two-tier system with a singletier system in such cases is not only morally but legally questionable. This is because, in the White Paper, Transforming Public Services: Complaints, Redress and Tribunals (July 2004, Cm 6243), the government has set out to make a case for a more coherent system of appeals and reviews in the tribunal system generally. The intention is that an administrative appeals tribunal would be available to take on appeals from tribunals in England and Wales where the appeal would otherwise lie to the High Court, either by way of statutory appeal or judicial review. Under these proposals, the new AIT would be an exception to the twotier structure of administrative appeals on the basis that ‘it has been created as a single-tier organisation in part to reduce the impact of the abuse of the present two-tier appeal system in asylum cases’ (see para 7.18). There are two obvious comments to make here. First, family and visitor applicants are not asylum seekers. Secondly, unlike those seeking asylum, they are overseas applicants who cannot be abusing the system by exercising appeal rights. Thus, an overseas applicant in a marriage case, arguing Article 8 rights on appeal, would certainly not be abusing the system as he would not be motivated by delay, this being contrary to the realisation of his family rights. An overseas applicant would be seeking to say that he is asserting a ‘civil right’ which should go to a High Court judge, which the new system does not allow, resulting in a violation both of Article 8 as well as of Article 14 rights (because in the latter case the applicant is being equated with an asylum seeker). There is no reason why the old system could not have been run side by side with the new single-tier system for asylum seekers. Such a system would have avoided detriment to a family or visitor applicant from overseas, which would be caused not least because the appeal decision for an overseas applicant would not be transparent as it would go to a single review judge (acting on behalf of the High Court), unlike as at present where the applicant can actually go to the second tier. This change cannot be defended by the government on the ground that it is motivated to remove ‘abuse’, as there is no abuse here. Nor is it arguable that in removing a second-tier right of appeal for asylum seekers, the same should apply for all other kinds of applicants, on the ground that every potential immigrant should be treated alike, because one is not comparing like with like here. In the circumstances, the removal of a second-tier right of an appeal – which has been in existence for over 30 years now – would both deprive such an applicant of an effective remedy and impact adversely on good community relations in this country. In the light of these considerations, an Article 6 challenge to the new system may well be launched where non-asylum applicants applying from overseas are concerned.

Commentary on the Act

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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 decisionmaker and the appellate bodies to take account of the above situations when

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assessing the credibility of statements made by such persons in support of their asylum claims.’ However, one does not have to legislate for this. As the Countess of Mar, who has been sitting in the Immigration Appeal Tribunal (IAT) for many years, reminded the government: ‘In all the 19 years that I have done the job, I have never needed to be told how to assess a claimant’s credibility. One does it from experience and knowledge of the situation’ (see Hansard, HL, vol 661, col 686). In fact, the jurisprudence of the tribunal and of the courts had developed a much more sophisticated and nuanced approach to assessments of credibility over the years, which this simplistic legislative stricture endangers (see Chiver [1997] INLR 212, IAT). The government went further, however. It proposed to create two new criminal offences. The first offence, that of being undocumented without reasonable explanation, would apply to anyone (subject to certain exceptions: EEA nationals, for instance) arriving at a UK port without adequate documentation to satisfy immigration control. The second offence would be of failing to co-operate with the redocumentation process where someone arrives without documentation and the government is trying to piece together his or her antecedents. This would impose a duty on those with no right to remain in the UK to co-operate with their redocumentation process. Prosecution would follow where it could be established that a person did something which had the effect of frustrating, obstructing or otherwise interfering with the re-documentation process. Another proposal is that a person will not be able to challenge his or her removal to certain safe third countries on the basis of the way he or she will be treated. A person would not be able to challenge such a removal. The government will set down designated countries which will be those where it is satisfied that an individual would be neither persecuted nor subjected to torture or inhuman or degrading treatment or punishment. Its argument is that this ‘would facilitate fast removal from the UK, consistent with our international obligations’. Accordingly, the Act contains in Schedule 3, three sets of lists of safe countries to which a person is removable. The combined effects of these provisions is bound to lead to legal challenges being launched. The government has also set out to restrict family support contained in s 54 of the Nationality, Immigration and Asylum Act 2002. Under that Act, it was possible to withdraw National Asylum Support Scheme (NASS) support from families with dependent children who have had their asylum claim determined if they have failed to comply with the removal direction. The government proposes now that the Act should be amended so that support for families whose claim for asylum has been rejected and who have no remaining avenue of appeal will end as soon as it is confirmed that the family is in a position to leave the UK. It states that: ‘This would provide an additional incentive to leave the UK promptly, either via the Immigration Service or via a voluntary assisted return and would reduce the waste of public funds when such a family stays to comply with the removal direction.’ This is also highly suspect, as the litigation under the 2002 Act makes only too clear. The government has suffered one defeat after another. Nevertheless, under the new law, if asylum support is withdrawn from a family in this way, other forms of support, including those provided under s 2 of the Local Government Act 2000, would no longer be available. The only support that will be available would be under s 20 of the


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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.

Section 1: assisting unlawful immigration This section enables the Secretary of State to make an order in respect of an offence on assisting unlawful immigration to a Member State, provided only that it is necessary for the purpose of complying with the UK’s obligations under the Community treaties. The amendment is necessary to comply with the EU Council Directive (2002/90/EC) and EU Council Framework Decision (2002/946/JHA), both of which require Member States to create the offence of assisting a person who is not a national of a Member State to enter and live in a Member State in contravention of the laws of that Member State. This section accordingly amends s 25 of the Immigration Act 1971, which creates an offence of facilitating the commission of a breach of immigration law. The Member States are those States that are known as the ‘section 25 list of Schengen Acquis States’, including Norway and Iceland. The references to ‘Member State’ and ‘immigration law’ in sub-s (9)(a) of s 25C of the 1971 Act have the same meaning as in s 25.

Section 2: entering the UK without a passport Those who travel to the UK will not always have a valid passport available to them. There is now an obligation on those travelling on false passports to be honest about this fact and to disclose it. Section 2(4) allows a defence to an individual travelling on a false passport. This is provided that such a person retains a passport to protect him or herself from committing an offence. A person who travels on a false passport that he then destroys or disposes of will not be able to rely on that specific defence. He or she may still seek to rely on the defence of reasonable excuse for not being in possession of a valid document or that of never having had a valid document. In such a case, the government expects the person to establish that it was indeed the false and not his or her valid passport that he or she destroyed or disposed of and to explain why he or she disposed of it. The offence, according to the government, is designed to capture the mischief of destroying or disposing of immigration documents en route to the UK. It would not target those who have never had any immigration document during their journey. However, problems will arise in the operation of this provision, which is likely to encourage recourse to litigation. Do people

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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


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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.

Section 3: immigration documents – forgery There have already been criminal prosecutions of asylum seekers using forged documents. Section 3(2) deals with forged immigration documents by extending s 5 of the Forgery and Counterfeiting Act 1981. The reference to ‘immigration documents’ is a reference to cards or stickers or other instruments which are either (i) designed to be given to persons who have been granted leave to enter and which carry information about leave, or (ii) given to persons to confirm their right to enter or reside in the UK. Instead of ink stamps, it will be cards and stickers that will be increasingly used in the future so that the possession of a false card or sticker will be an offence. This will circumvent the problem where, for example, in Central Africa, young boys conscripted for fighting from the age of 11 or 12 will hardly have anything that resembles a proper passport on which an ink stamp can be imposed. Some of them will get stuck on the way and never arrive in this country. However, if they come to the UK, it is not just a question of whether their documents have been stamped on the way. Often, they would not be stamped because there is hardly anything to stamp. In most cases, they will have only a very small scrap of paper, which would be a pasteboard. Trying to record a passage could be extraordinarily difficult in these circumstances and the use of cards and stickers could go some way (but maybe not the whole way) in addressing the problem of forged documents.

Section 4: trafficking people for exploitation To be guilty of trafficking under this section, a person must arrange or facilitate the arrival of another person in the UK. He or she must either intend to exploit that person or he or she must believe that another person intends to do so. Will the section cover the situation where a request or inducement, force, threat or deception is made to person A, but person B is exploited? Children may not be subject to treatment amounting to slavery or forced labour. They could therefore not satisfy the definition of exploitation in s 4(4)(a). Children may not be

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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.


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The experience of workplace enforcement officers makes it clear that illegal working is most prevalent in sectors characterised by low skill and short term employment involving chains of subcontractors. The most effective sectors probably include contract cleaning, agriculture, food processing, hospitality and construction. These areas are targeted enforcement activity areas. In April 2002, there were approximately 1,677 staff involved in in-country enforcement activity nationally. By November 2003, the figure had risen to 2,463. That figure included operational and case work staff. In 2003, the Immigration Service reported carrying out 446 illegal working enforcement operations, compared with just 301 in 2002. The number of prosecutions brought over the past three years has also increased. During that time where data is available, namely 2000–02, there were 17 prosecutions and six convictions. However, it is difficult to establish any kind of deterrence when the chance of someone being proceeded against is about 1 in 100,000. Trafficking, accordingly, will not decrease or be ended unless there are many more successful prosecutions. Trafficking in Britain only became noticed in 1995. Today, some 300,000 people every year may be trafficked westwards from or to Eastern Europe. West Africa and Asia are other sources. African child cases have recently increased. They are often masked by informal, nonregistered fostering, which may cover as many as 10,000 children. Social Services do not always realise that they are dealing with victims of organised crime. They do not always distinguish between smuggling and trafficking. Women who have suffered abuse in their own families are also very likely to be trafficked. A recent sample showed that some 50% have been raped before being trafficked and 77% have been beaten before escaping or being released. Some 92% of the sample taken suffered some form of mental illness or acute distress. Some 27% have developed a sexually transmitted disease and 65% have continuing physical problems. This information is confirmed by the two serious studies into trafficking into the UK, namely by ECPAT UK and the Poppy Project, both of which reported in 2004. The government has signed the Palermo Protocol of the United Nations and will ratify it soon. Article 6.3 of the Palermo Protocol states as follows: ‘Each state party shall consider implementing measures to provide for the physical, psychological and social recovery of victims of trafficking.’ Although the government has now made all forms of trafficking for exploitation serious offences, there was an opportunity here to implement the Palermo Protocol in our own legislation so as to provide for the protection of victims of trafficking. For example, those who could successfully prove that they had been trafficked should not then be penalised for their illegal presence in the country, and nor should they be required to leave. Furthermore, those who wish to make a complaint should not be returned pending the conclusion of proceedings. Unfortunately, the government did not take the opportunity to ratify the Palermo Protocol in the Bill. This will seriously detract from its avowed intention to clamp down hard on those employing illegal labour.

Section 8: claimant’s credibility This is the most subjective clause of the Act because it provides that: ‘[T]his section applies to any behaviour by the Claimant that the deciding authority

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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


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reliability and credibility. A deciding authority can find a story presented by a claimant as lacking in credibility, but still find the claim to asylum status as presented to be reliable. For example, asylum seekers from Somalia can be said to be lacking in credibility because of what they said about how they got their travel documents or how they effected their escape from Somalia, but once it is accepted that such claimants are Kibajuni speakers from Koyoma, one of the small remote islands off mainland Somalia, then it is open for the decisionmaker to hold that the evidence for the claim is reliable. Thirdly, what is required of the decision-maker, however, is that conduct in question is specifically referred to in the determination in all cases which are allowed on the basis of credibility, failing which the losing party will be entitled to an appeal. In particular, there will need to be a specific reference in all decisions where a positive assessment of credibility is made. This means that the general position as it applies to tribunals of fact is now stricter in respect of asylum and human rights decisions taken by a deciding authority. Such an authority cannot just hope that in cases where it has allowed a claimant’s appeal, that its reasons for doing so are apparent from a general reading of its decision. Authorities must specifically deal with any conduct that can be taken as damaging credibility. Fourthly, in this respect the position is different from that set out by the Court of Appeal generally in respect of tribunal decision-making where, in R v IAT ex p Khan [1983] 2 WLR 759, Lord Lane CJ explained that: The important matter which must be borne in mind by tribunals in the present type of circumstances is that it must be apparent from what they state by way of reasons first of all that they have considered the point which is at issue between the parties, and they should indicate the evidence upon which they have come to their conclusions ... a party appearing before a tribunal is entitled to know, either expressly stated by the tribunal or inferentially stated, what it is to which the tribunal is addressing its mind. In some cases it may be perfectly obvious without any express reference to it by the tribunal; in other cases it may not … The appellant is entitled to know the basis of fact upon which the conclusion has been reached. Once again in many cases it might be quite obvious without the necessity of expressly stating it, in other cases it may not [emphasis added].

What this suggests is that under s 8 it will, therefore, be open to the decisionmaking authority to allow a claimant’s appeal, after making a positive assessment in a case where that section applies, provided only that it is clear from the determination that the decision-maker has taken the conduct into account ‘as damaging credibility’. This suggests that decision-makers must neither be over-zealous nor under-zealous in assessments of credibility. Fifthly, this means that what they must do is look at the picture in the round. For those not already applying it, this means a refocusing on the well-known decision in Chiver [1997] INLR 212, IAT, where the IAT explained that with regard to assessment of the appellant’s credibility: It is perfectly possible for an adjudicator to believe that a witness is not telling the truth about some matters, has exaggerated the story to make his case better, or is simply uncertain about some matters but still to be persuaded that the centre piece of the story stands [emphasis added].

Sixthly, what the section does, therefore, is to penalise a decision-maker for allowing a claim simply because he or she has liked the applicant. For those

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decision-makers who were already following a structured approach to the analysis of evidence, it will make little difference. Seventhly, credibility findings are now of heightened importance for a decision-maker hearing an asylum or human rights claim. This does not mean that earlier dicta by the courts and tribunals cautioning against a disproportionate use of the credibility issue are not relevant. In fact, practitioners should make a point about raising these dicta before a deciding authority where appropriate. Thus, in Befekadu [1999] Imm AR 467, Scott Baker J said that ‘great care must be taken before making findings of credibility in asylum cases’. In Jakitay (12658) unreported, 15 November 1995, IAT, the IAT said that to ask or expect coherent and consistent stories and judge credibility against relatively minor discrepant versions can be questionable and calls for careful evaluation. In Vincent Guine (13868) unreported, 9 September 1996, IAT, adjudicators were warned of the over-zealous use of credibility, with the IAT warning that a ‘decision which concentrates primarily on findings of credibility for its outcome is in general more likely to be found to be flawed …’. However, credibility findings are increasingly now to be regarded as crucial to the findings of a deciding authority and are therefore unlikely to be ignored. This has been made quite clear by the IAT in a recent decision which is likely to have considerable bearing on s 8 determinations under the new regime created by the 2004 Act. Much of the decade-old jurisprudence of the British courts, which emphasised that credibility assessments are not an end in themselves, while still true, will have to be reappraised in the context of the 2005 Act. Thus, in R v IAT ex p Hussain (1996; CO/1990/95), Turner J in the High Court had said that: ‘Credibility depends on a number of factors: honesty, accuracy, and the ability fully to recollect. Credibility is not a valid end to the function of an adjudicator ...’ This has sometimes been read as implying that credibility findings can be of secondary importance in an asylum claim. In Warsame (Somalia – Adjudicator’s Questions) (AS/50871/2003) SW [2004] UKIAT, the President of the IAT in February 2005, referring to the comments of Turner J explained that: Findings of credibility are one of the primary functions of the adjudicator, since they lead to the establishment of much of the factual matrix for the determination of the appellant’s case. In some cases, but by no means all, the issue of credibility may be the fulcrum of the decision as to whether the appellant’s claim succeeds or fails. Therefore, it would be a misdirection to say that findings of credibility are not an important element upon which the adjudicator should concentrate and for which the adjudicator should provide appropriate reasons. Turner J was right to point out that an assessment of credibility is not the ultimate focus of an adjudicator’s determination. In an asylum or human rights case, that focus is the potential breach of either Convention which will usually involve an assessment of the nature and risk to an appellant of his removal. An appellant who is partly or even wholly disbelieved may still be at a real risk eg for his ethnicity. He may have lied to bolster a true case. Yet that does not remove or even undermine the need to establish, the appropriate standard of proof, the factual basis for the consideration of risk. The citation of what Turner J said in Hussain has been too often used as an invitation to ignore credibility and its importance [emphasis added].

Three observations may be made about this dictum: first, the recognition that even an appellant who is ‘wholly disbelieved’ may still be deemed a meritorious claimant, because asylum status is perfectly in line with the IAT’s previous ruling in Horvath [1999] INLR 7 at 71E, where the IAT affirmed that:


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Credibility findings can only be made on the basis of a complete understanding of the entire picture. It is our view that one cannot assess a claim without placing that claim into the context of the background information of the country of origin. In other words, the probative value of the evidence must be evaluated in light of what is known about the conditions in the claimant’s country of origin.

Secondly (and notwithstanding the above), the decision of Ouseley J in Warsame is instructive in reminding practitioners and tribunals that assessments of credibility of individual applicants remain important in an asylum or human rights claim. How that assessment is to be undertaken, however, is still likely to be a matter of some consternation and confusion for them. An article by Professor Audrey Macklin for the Immigration and Refugee Board of Canada (and in the possession of the UNHCR) is worth quoting at length in this regard: Credibility determination is hard. It is frequently difficult to articulate in rational terms why one does, or does not, believe another ... The stereotype goes something like this: truth-tellers look us in the eye, answer the questions put to them in a straightforward manner, do not hesitate, show an ‘appropriate’ amount of emotion, are neither too laconic, nor too verbose. Liars do not look us in the eye … do not say too much ... are neither too demonstrative ... or lacking in affect … However, as we all know (or should know), culture, gender, class, education, trauma, nervousness and simple variation among humans can all affect how people express themselves. It is dangerous at best, and misleading at worst, to rely on a uniform set of cues as demonstrative of credibility, or lack thereof [reproduced at Hansard, HL, vol 661, No 85, 18 May 2004, col 686].

This confirms the importance of Lord Bassam’s recognition in the House of Lords that ‘some claimants may have some cultural distance from the experience of responding to questions’. Whilst recognising that this ‘depends very much on the circumstances’, he did accept on behalf of the government that individual ‘circumstances … could provide a reasonable explanation for a claimant’s earlier reluctance, or reticence, to provide a full story or to be entirely truthful’. This statement should not be ignored in appropriate cases, if a correct assessment of credibility is to be made, and nothing in Warsame militates against it. This is consistent with the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (hereafter the UNHCR Handbook) which provides, at paragraph 203: After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements. As explained above [para 196], it is hardly possible for a refugee to prove every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognized. It is therefore frequently necessary to give the applicant the benefit of the doubt.

Thirdly, the recognition that decision-making should be ‘culturally competent’ is one that deserves to be widely appreciated. Judges have to make findings of credibility in much the same way as they have to find facts. The process is a rigorously disciplined process which, if found wanting, can be still further appealed to a higher judicial body. However, it is not an infallible process. Lawyers have been criticised for pursuing this task. As Jean Giraudaux once said: ‘No poet ever interpreted nature as freely as a lawyer interprets the truth.’ However, it is salutary to remember that the legal process is not to do with the pursuit of truth. Lawyers are there to help the court decide an issue and the

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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 decisionmaker 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 BlomCooper 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)).


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Similarly, in the Canadian case of Ye v Canada (Minister of Employment and Immigration) [1992] FCJ 584, the Federal Court of Appeal warned against the assessment of credibility by the Refugee Division in an appeal concerning a Chinese appellant. The court referred to the risk of imposing Western concepts on a subtle oriental totalitarianism and of interpreting Chinese law enforcement in the light of the more linear Western model, when the social control exercised by the Chinese State is omnipresent. In a subsequent case, the Federal Court criticised the use of ‘North American logic and experience’ and the assessment of demeanour by the application of Canadian paradigms. Lord Bingham MR was most explicit in this respect when he declared that: ‘No judge worth his salt could possibly assume that men of different nationalities, educations, trades, experiences, creeds and temperaments would act as he might think he would have done or even – which may be quite different – in accordance with his concept of what a reasonable man would have done’ (see Sir Thomas Bingham, ‘The judge as juror’ (1985) Current Legal Problems 38).

Section 9: failed asylum seekers – withdrawal of support The government’s argument here appears to be that if the parents, as failed asylum seekers, refuse to depart voluntarily when they reach the end of the appeal process, then they (the parents) are putting the children at risk. This appears to be an attempt by Parliament and the State to abdicate responsibility to the children of failed asylum seekers. If so, then there would be a breach of both the UN Convention on the Rights of the Child and of the Human Rights Act 1998. If parents are asking for support to keep their families together, and social workers believe that it is in the child’s best interest, this is support that ought to be provided, but s 8 prevents this from happening. The Asylum Support Adjudicator has no power over decisions that are made by the local authority. The matter cannot be appealed. To describe the infliction of destitution on families with children as a system for voluntary departure is unfortunate. The families who will be deprived of support are not only those who have reached the end of the line, but all people who are likely to benefit from the backlog clearance procedure. If support is withdrawn from failed asylum seekers who have failed to leave the UK voluntarily, this would lead to a breach of Article 3 of the European Convention on Human Rights (ECHR) which is absolute (see Hansard, HL, vol 661, col 692, per Lord Lester). The government has defended itself by stating, however, that this section does not exclude the possibility of support being provided to the child under ss 17 and 20 of the Children Act 1989. However, in both cases, this requires the consent of the parents. Therefore, this is likely to present further problems. The government has, in turn, further explained that before a decision is made to withdraw support, the family would be offered an interview. This is where the family members can explain why they have not yet left the country and what steps they are taking to do so. If there are particular reasons why they have not taken steps to leave, then they have the opportunity to inform and advise the government of those reasons. In this way, each case would be assessed on its individual merits. The government has said that: ‘It is worth clarifying this: where people are cooperating, support will not be withdrawn. We are after co-operation – that is what we are trying to achieve’ (ibid, Hansard, col 701, per Lord Bassam). After

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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).

Section 11: accommodation for asylum seekers – local connection Homelessness legislation prescribes that there is a duty on a local authority to secure accommodation for an asylum seeker in whose area that person has a local connection. In two cases, however, the Law Lords, sitting as the Appellate Committee, held in Al Ameri v The Royal Borough of Kensington and Chelsea and in Osmani v The London Borough of Harrow [2004] UKHL 4; [2004] 2 AC 159; [2004] 2 WLR 354 that, under the homelessness legislation as currently drafted, residence in an area, which is pursuant to the provision of accommodation by the Home Office under s 95 of the Immigration and Asylum Act 1999, is not capable of establishing a local connection with that area because it is not the residence of choice. Under government policy, however, residence in an area where an asylum seeker has been dispersed by the Home Office will automatically lead to a local connection being established. There is one exception to this. Asylum seekers will not establish a local connection with an area if they are accommodated in an accommodation centre. This is because accommodation centres will provide a move-on advice service to assist successful applicants with relocation. It should also be noted that, as far as Scotland is concerned, the main homelessness duty in England and Wales, namely s 193 of the Housing Act 1996, would not apply in the case where a former asylum seeker had been dispersed in Scotland and, subsequently, made an application in England or Wales, unless he or she had established a local connection somewhere in England, Wales or Scotland. The government’s policy under s 11 is that local authorities in other areas can refer former asylum seekers to the local authority in the area where they are dispersed, if they are owed a main homelessness duty and have not established the local connection for any reason in the area where they are making their homelessness application. It is intended that asylum seekers should establish a local connection with the area to which they are dispersed but, generally, not with an area where they are provided with emergency or interim accommodation. Dispersal areas are selected for their capability to support long term integration of former asylum seekers. However, emergency or interim accommodation is not necessarily in an area which has the infrastructure to support a dispersal. Further, much emergency and interim accommodation is located in London and the south-east, where the pressure on social housing and other local government services is most severe. It should also be noted that if an asylum seeker were to establish a local connection with an area prior to dispersal


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– for example, where he or she was provided with emergency accommodation in a district in London – and then, following a positive decision on his or her asylum claim, he or she became a refugee and sought homelessness assistance in that London district, the housing authority in London would be unable to refer the case back to the housing authority in the dispersal area. That is because one of the conditions for referral of a homelessness case is that the applicant has no local connection with that district or the authority to which the application has been made.

Section 12: refugees – back-dating of benefits This provision ensures that back payments will cease for all those who are recorded as refugees after this section comes into effect, irrespective of when they made their claims for asylum. Thus, it will be irrelevant whether the application is covered by the 1999 Act or the 1996 Act. Accordingly, this provision will reverse s 123 of the Immigration and Asylum Act 1999, which allowed a person who was recorded a refugee, and who has not been entitled to any of the benefits specified in s 115 during the period when his claim for asylum was under consideration, to claim back payment of the amount of benefits of various kinds to which he would have been entitled but for the provisions of s 115.

Section 13: integration loans for refugees This provision allows the Secretary of State to draft regulations enabling him to make loans to refugees. In doing so, he will ‘in addition to other matters appearing to him to be relevant, take into account’ a number of matters, such as a person’s income or assets, a person’s likely ability to repay a loan, or the length of time he or she was recorded as a refugee. Unfortunately, the provision does not take into account the refugee’s family responsibilities, such as whether he or she is responsible for a child or a dependent adult. It does not take into consideration whether a refugee has a partner or a spouse with assets or income that can properly be taken into account. In the case of a larger loan, the government has accepted that when a person’s financial circumstances change for the better shortly after the award of the loan, it may make instalment payments or staged payments to the applicant. However, one negative effect of the provision is that where a person has been kept on the lowest possible income because of s 55, he or she is likely to be denied a loan because the Secretary of State will be doubtful of his or her ability to repay. Such a person would have lost out twice. He or she would first have been deprived of support during the whole period of his or her application and then, on an application for a loan, he or she will be refused because his or her ability to repay will be in doubt. The loans fund is limited because the loan scheme will be funded solely from savings made from the abolition of back payments. The government has indicated that at the point when the loan is made, the following questions will be asked: ‘What are the person’s assets and income? What does he want the loan for? Is it consistent with the regulations? Is it for the purpose of refugee integration?’ (see Hansard, HL, vol 663, col 47, per Lord Rooker).

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Section 14: immigration officers – powers of arrest This section provides immigration officers with the power or arrest in respect of a number of specified offences. However, this power is only available where an immigration officer forms a reasonable suspicion that one of the specified offences has been committed in the course of exercising a function under the Immigration Act 1971. What this does mean is that immigration officers must uncover the evidence of the offences in the course of their usual duties investigating immigration matters; only then can they be said to have been acting on some suspicion of specified offences. Under s 14(3), certain powers of entry, search and seizure which immigration officers already have in relation to offences under the Immigration Act 1971 shall also apply to the specified offences.

Section 15: fingerprinting Under this section, s 141 of the Immigration and Asylum Act 1999 is amended to allow fingerprints to be taken from specified persons during certain specified periods. Fingerprinting is permitted in respect of any person for whom the old directions have been given, provided it is between the time the directions are given and the time when the person is removed or deported. Directions are now set at the end of the enforcement process because there is no longer a right of appeal in respect of the setting of removal directions. As a result, there is now only a short period of time within which fingerprints can be taken. Under this provision, fingerprints can be taken at the beginning of the enforcement process, despite the fact that removal directions will not be set until the end of that process. This provision accordingly amends s 141 of the 1999 Act.

Section 16: information about passengers This section amends paragraph 27B of Schedule 2 to the Immigration Act 1971. An immigration officer may ask a carrier to provide a copy of a document that relates to a passenger containing ‘passenger information’. Any owner of a ship or aircraft which is expected to arrive in the UK could be requested to provide a copy of the bio-data page of the passport which contains the photograph of the holder of each passenger to be carried to the UK on that ship or aircraft. Under this provision, an officer may ask for copies of documents relating to a particular ship or aircraft of the carrier, or all of the carrier’s ships or aircraft. The request must be made in writing and must state the date on which it will cease to have effect. This period cannot be more than six months from the date of which it is made.

Section 17: retention of documents This section empowers the Secretary of State or an immigration officer to retain documents (including a passport or a birth certificate) where he suspects that the person to whom the documents relate is liable to removal, and where such retention would facilitate removal from the UK. A number of questions are


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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 wideranging circumstances.

Section 18: control of entry Under this section, an immigration officer may further examine a person who has been granted leave by an entry clearance officer for the purpose of establishing whether the leave should be cancelled on the grounds that the person’s purpose is different from the purpose specified in the entry clearance certificate. This means that the grant of a clearance by an entry clearance officer at the post overseas is not a guarantee for entry into the UK. Entrants can expect further checks by an immigration officer on arrival.

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Section 19: England and Wales This section applies where a marriage is solemnised on the authority of a superintendent registrar issuing a certificate. It is a highly controversial provision because it has the effect of using marriage registrars as tools of immigration control, even if clearly there is abuse. However, the answer lies in proper enforcement of the existing law. For example, in 2003, over 2,300 sham marriages were identified, but only 60 people were arrested. However, existing law can deal with this. Immigration legislation already provided adequately for entry clearance to be obtained for the purpose of marriage. Appropriate enquires are made in this country regarding the basis of the issue of a certificate. If that certificate is not issued, a person cannot be married in this country. If the certificate is issued, there is no problem. The approach should be that only people who have the right to marry in this country are granted leave to remain. Secondly, no one is allowed to change status after entering the UK. A student has to return to his country if he wishes to be married and a visitor has to do the same to obtain the appropriate certificate to enter the UK. The rules are already adequate to deal with the problem of sham marriages. What was needed was effective enforcement of these rules. Existing powers under criminal and immigration law were sufficient to curb the use of marriage as a means of evading immigration control. The Joint Committee of Human Rights (JCHR) report devoted almost half of its report to the issue of marriage, thus reflecting its importance and sensitivity to human rights laws (see paragraphs 36–81). The JCHR was concerned as to whether the requirement in s 19(3)(b) that notices can only be given if each party to the marriage has been resident in a registration district for a period of seven days immediately before the giving of his or her notice would infringe the right to marry under Article 12 of the ECHR. However, it is well established that any restrictions on the right to marry have to be legitimate and proportionate. The JCHR report referred to the ‘striking discrepancy’ between the 2,251 reports made by registrars and 37% of alleged sham marriages charged with criminal offences. It is, moreover, not known how many people have been refused leave to remain as spouses on the grounds that their marriages were a sham. For this reason, the JCHR report concluded that there was a significant risk that the proposed restriction on the right to marry may be disproportionate. It seems, therefore, that as drafted, there is a significant risk that these provisions will discriminate on the grounds of nationality without objective and reasonable justification. Section 19(3)(b) states that the superintendent registrar shall not enter in the marriage notice book notice of a marriage unless satisfied that the party subject to immigration control has the written permission of the Secretary of State to marry in the UK. This is a harsh condition to satisfy as it is unduly burdensome. The government has defended these provisions on the basis that there is here an ‘issue of marriage tourism’. The provisions, however, will have a disproportionate effect on minority ethnic communities because, as the ministers accepted in the House of Lords, the report from registrars and other intelligence sources suggest that the organisers of sham marriages are increasingly favouring EEA nationals because those marrying an EEA national do not need to obtain leave to remain on the basis of that marriage to have a right of residence


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throughout that marriage. This is because the rights of residence obtained through the marriage to an EEA national are subject to European law, rather than UK domestic legislation. This means that a person who does not marry an EEA national, but marries someone of his own community from a country such as India or Pakistan, is likely to be disproportionately prejudiced. The government has also defended its provision that both parties to a marriage should give notice together. This is because this will then ensure that registrars have an opportunity to observe interaction between couples, enabling them to form a view on whether an intended marriage should be reported as suspicious under the current legislation. Registrars will become familiar with the signs indicating a sham marriage and will therefore be in a better position to be able to identify potential offenders and, in some cases, repeat offenders. The government rejected a suggestion in the House of Lords that there should be an independent monitor to be appointed in order to report annually on refusals for permission to marry under s 19(3)(b) on that grounds that this ‘would be adding unnecessary bureaucracy’ (see Hansard, HL, vol 663, col 7727, per Lord Rooker). This is quite unconvincing. The government gave an indication that some people may be exempt under s 19(3)(c). These will be persons with settled status in the UK.

Section 20: England and Wales – supplemental This section provides that the Marriage Act 1959 will have effect in relation to a marriage to which s 19 applies, with any necessary consequential modifications.

Sections 21 and 22: persons subject to immigration control – procedures for marriage – Scotland and supplemental Both ss 21 and 22 relate to a marriage where a party to the marriage is subject to immigration control and the marriage is to be solemnised in Scotland. Section 21(2) states that the notice of such a marriage is only to be given to the district registrar of a registration district prescribed in regulations made by the Secretary of State. Section 21(3) states that registrars may only accept notice of such a marriage if satisfied that the party subject to immigration control holds either entry clearance for the purpose of marriage, written permission from the Secretary of State, or is in an exempt category.

Sections 23 and 24: persons subject to immigration control – procedures for marriage – Northern Ireland and supplemental These sections apply where a marriage is to be solemnised in Northern Ireland where a party to the marriage is subject to immigration control. Section 23(2)(a) applies where a notice of such a marriage can only be given to a registrar prescribed in the regulations made by the Secretary of State. Section 23(2)(b) applies to Northern Ireland and stipulates that marriage notices shall only be given to ‘a prescribed registrar’ and only ‘by both parties together in person’ and only at a ‘prescribed register office’. Section 23(3) enables registrars to accept notice of such a marriage only if satisfied that the party subject to immigration

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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.

Section 25: application for permission under s 19(3)(b), 21(3)(b) or 23(3)(b) This section provides for application for permission to marry. Persons seeking permission may be required under regulations made by the Secretary of State to make an application in writing and pay a fee. The regulations will state the specified information to be contained in this application, the amount of the fee and the manner of the payment. Those who are exempt from payment, or are specified persons permitted to pay a reduced fee, or are eligible for a refund of all or part of the fee, are also to be specified by the regulations. It should be noted that if the regulations are unduly repressive, they may well lead to legal challenges under the Human Rights Act 1998.

Section 26: unification of appeal system The principle of an independent appeal system followed by full and proper independent judicial review procedure is intrinsic to the quality of decisionmaking in a system of immigration controls that has given concern to many people, and not least to the higher courts themselves. In Arshad v SSHD [2001] EWCA Civ 587 at para 20, Laws LJ (together with Waller LJ) expressed concern in no uncertain terms over the lack of even-handedness by the IAT when an individual claimant had won his case before a fact-finding tribunal of first instance. The IAT proceeded to reverse that finding, observing: I am somewhat anxious that this case portrays a (no doubt unconscious) lack of even-handedness on the part of the IAT as between an immigrant’s appeal and a Home Office appeal. In the former class of case experience shows that the IAT will not generally go behind findings of fact made by an Adjudicator who has heard the witness (notably the appellant).

In Borissov v SSHD [1996] Imm AR 524 at 535, the Court of Appeal (Hirst, Peter Gibson and Ward LJJ) had already some years previously cautioned the IAT that: The jurisdiction of the Immigration Appeal Tribunal is not limited to questions of law, and it is within the scope of their jurisdiction for them to review, if they see fit to do so, the special adjudicator’s conclusions of fact, though no doubt this power will be sparingly excised, and in any event, in accordance with general principles, the Immigration Appeal Tribunal will naturally be most reluctant to interfere with a primary finding of fact by the special adjudicator which is dependent upon his assessment of the reliability or credibility of a witness who has appeared before him [emphasis added].

However, the higher courts have repeatedly had to put the IAT right on this matter on a number of subsequent occasions, with Schiemann LJ holding in Oleed v SSHD [2003] INLR 179 that: ‘The tribunal is only entitled to interfere with the adjudicator ’s findings of fact if they were plainly wrong or unsustainable’ (see paras 13, 16, 17, 29, 52, 53 and 61).


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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

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attraction of being a ‘leap-frog’ procedure in that such cases can leap-frog straight from the High Court to the Court of Appeal without a reconsideration in the tribunal. Secondly, where an appeal decision has been made by the tribunal sitting as a panel of three or more members, a party to the appeal could bring a further appeal on a point of law with the permission of the Court of Appeal under s 103E. Such a case would bypass the High Court and go straight on to the Court of Appeal. One other question that the leap-frogging procedure to the Court of Appeal raises is which decision of law is to be treated as authoritative. Generally speaking, decisions of inferior courts and tribunals are not binding on other inferior courts and tribunals. The government has tried to make a tribunal’s decision on a question of law binding on other tribunals. However, the above provisions make plain that there is in existence (and has always been in existence) a procedure by which questions of law can be authoritatively decided by the Court of Appeal. This should have suggested that only the decisions of the High Court and the Court of Appeal should be of binding precedential value on other tribunals. Tribunal decisions should not fall into this category. As Lord Donaldson (a former Master of the Rolls) stated: ‘… you cannot have a tribunal deciding at its own level that the decisions shall be authoritative …’ (Hansard, vol 660, No 77, 4 May 2004, at col 1007). Lord Mackay (a former Lord Chancellor) queried: ‘… I am not clear what is intended by that. Is it authority for the tribunal itself? If so, it must be only so long as it stands because it is open to be set aside by the Court of Appeal. I cannot remember a previous example of that’ (ibid, Hansard, at col 1009). The order-making power to make enabling regulations for a new legal aid scheme for both the High Court review process and reconsideration of cases by the tribunal is contained in s 103D and, most importantly, is not by negative resolution (as has often been the case in the past), but by the affirmative resolution procedure, thereby allowing for a measure of deliberation of the proposed measures. The government’s avowed aim in these legislative changes is that only arguable cases with real prospects of success should go forward on a review. In its view, too many weak applications have been made in the past. Thus, in 2003, there were 32,000 decisions taken on applications for permission to appeal to the IAT. However, only 12,000 were allowed to pursue the case to a further level, without necessarily having the decision overturned. The government has concluded from this that 20,000 applications had no arguable case and no real prospect of success. Its proposal, therefore, has been to introduce a new way of funding cases. The intention will be to target the most meritorious cases. The funding decision will not be taken by the Legal Services Commission but by the judiciary, with the power to order legal aid in these proceedings. The government has not, however, altered the initial funding arrangements for appeal before the new Asylum and Immigration Tribunal (AIT), but only the review application and any reconsideration that follow the review. The operation of the new apparatus, however, imposes severe costs and burdens on individual applicants. The new s 103A added by this Act into the Nationality, Immigration and Asylum Act 2002 imposes a draconian timetable on applications for review of tribunal decisions. There is to be a period of five days beginning with the date on which the appellant is treated as receiving the


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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

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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


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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

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decision to challenge a flawed Asylum and Immigration Appeal Tribunal (AIT) decision to rest on the lawyer’s financial interests in the success of the case.’ A system of conditional fees is objectionable for three further reasons. First, the outcome in asylum cases is particularly difficult to predict because of the central role that the issue of credibility plays, and yet a high degree of accuracy of prediction is vital for the operation of successful conditional fee system. Secondly, in a conditional fee system, the client insures himself against losing a case so as to reimburse the solicitor for his expenses in the event of losing, but an asylum seeker will be in no position to do that. Thirdly, conditional fees are not appropriate to human rights cases, which require, as the judges have repeatedly said, the most ‘anxious scrutiny’. The government’s view is that the merits of the case often come to light only when the case is fully tested and explored by the tribunal. The panel at the reconsideration will be best placed to order legal aid if a successful or near miss application has been made. The High Court judge can order payment in exceptional circumstances. However, there are still objections of principle to this system. It is unacceptable that legal aid should be withheld in cases where there is a reasonable ground for application. Indeed, what is doubly objectionable here is not just that legal aid is being withheld, but that it is being withheld retrospectively. Lawyers may well have to turn down cases which have a reasonable chance of success, but for which success is not guaranteed. For asylum cases, this sort of financial cost-benefit analysis is wholly inappropriate. Asylum cases, moreover, cannot be evaluated in this way. Asylum applications often depend upon credibility of the applicant, and credibility is an issue of fact. Credibility in an asylum case is based on evidence given by applicants born and brought up in a world that is very often different in religion, language and culture from this society. In addition, since reliable documentary or oral corroboration of alleged facts will be difficult, everything will hang on credibility. The government’s proposals may be challengeable on the grounds that it has made the objective assessment of credibility even less likely. This is for three reasons, which are as follows. First, the new tribunal is arguably not a tribunal at all. The government has not kept the existing three person tribunal and eliminated the single person adjudicator; the three person tribunal is gone and replaced by a single member. If a single legally-qualified person is taking a tribunal decision, such a decision is the only occasion in the immigration system when the credibility of an applicant for asylum status is examined objectively. The Home Office is arguably not exercising an objective function because it is both a party to the dispute and has its own view of the situation in a particular country. The only time when the facts can be said to be examined truly objectively is at the tribunal stage. There is no appeal on the facts. Secondly, the arrangements for what is now being put in place are simply wrong, because applicants are entitled to have the factual aspects of their case heard, fairly and impartially, and assessed properly. If the tribunal were dealing with a criminal matter, the person appearing before it would have his or her case determined by a tribunal of either three lay members in the magistrates’ court, or 12 lay members in the Crown Court. In an asylum case, with far graver consequences, these safeguards do not apply. Thirdly, the design of the statutory regime will not be sufficiently fair as to discourage the courts from providing a parallel remedy in judicial review, as other statutory regimes have done successfully, and the courts are likely to do this if they are not confident that issues of fact are


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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

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a decision as to whether to allow or refuse an asylum application. All subsequent appeals throughout the immigration system will be entirely dependent on that first asylum interview. To blame the appeal system in these circumstances, for waste of resources and delay, is clearly wrong. What the new Act clearly does not do, therefore, is to deal in any way with the unsatisfactory quality of the first-stage decisions taken by immigration personnel. Tackling this is the surest way of enhancing not only the quality of decision-making in immigration law, but also its speed and efficiency. Nothing in the Act imposes a time limit on the phase between the time an asylum seeker makes an application and the time when it is determined by the Home Office; nothing in the Act imposes a time limit between the moment when a tribunal makes its decision (or the time when the appeal from the tribunal is finally terminated) and the deportation phase. At present, all the arguments are in favour of retaining a proper appeals system until such time as the quality of initial decision-making is vastly improved. However, problems can also arise at the adjudication hearing. Written answers given by the government in the House of Commons confirm that Home Office presenting officers have been attending only about 60% of adjudicators’ hearings. This can lead to a wrong result being reached by the adjudicator. Some 40% of appeals from the adjudicator to the tribunal are by the Home Office. Very often they are made because points adverse to the applicant have not been made and therefore the applicant has been successful (Hansard, HL, vol 659, No 53, 15 March 2004, at col 112, per Lord Thomas). Generally speaking, between October 2002 and September 2003, the government’s figures (as given by Mr David Lammy before the Chairman of Standing Committee B) disclose that, of the 78,000 adjudicated determinations, 33,000 were appealed to the IAT. Not all of these were frivolous because one-third were granted permission to appeal and heard by the IAT. Of these, 58% were either allowed outright by the tribunal or remitted back to an adjudicator for a fresh hearing. During this period, 639 appeals were allowed by the IAT and 1,722 were dismissed. This amounts to a success rate of as much as 23% at the IAT level. That means that one in five decisions is overturned at the initial stage (and this figure rises to one in three where Somalis and Sudanese are involved). On the government’s own figures, 2,000 were allowed, but even that is a significant number of people for whom an incorrect decision may have been a matter of life or death (see Hansard, vol 659, No 53, 15 March 2004, at cols 64, 66 and 79). The questions that such a high success rate prompt are not only why there are so many immigration appeals in such a relatively short period of time, but why nearly a quarter of all appeals meet with some measure of success before the IAT. A Vice-President of the IAT told the Select Committee on Constitutional Affairs that this was because ‘there were cases in which the decision written by the Home Office was very poor and, therefore, without the aid of the Home Office presenting officer at the hearing, the adjudicator was more or less left in the dark’ (Hansard, HL, vol 659, No 53, 15 March 2004, at col 77). However, even that figure of 23% is not a reflection of the true level of erroneous decision-making in the immigration system. For example, between 9 June 2003 and 27 February 2004, the High Court dealt with 552 applications for review through a single judge of the Administrative Court, and allowed 20% of


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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.

Section 27: unfounded human rights for asylum claim By affirmative order-making power, this provision enables the Home Secretary to add a State or part of the State to a list of countries from where a claim would be certified as being clearly unfounded. This is provided that certain conditions are met, namely that there is in general in that State or part no serious physical persecution of persons entitled to reside in that State or part, and that removal to that State or part of persons entitled to reside there will not in general contravene the international obligations of the UK under the ECHR. This means that where an asylum or human rights claimant is both entitled to reside in the State or part and falls within the defined ‘description of person’ for that State or part, the Home Secretary can certify the claim as clearly unfounded unless satisfied that it is not. This power is controversial and the decisions under it of dubious legality, as there are many countries which the Foreign & Commonwealth Office regards as being unsafe, but which the Home Office then deems to be safe. An even bigger potential for injustice lies in the short time limits for reconsideration: starting with the new notice of appeal, there are two weeks for a case management review followed by two weeks for a substantive hearing. The new notice of appeals will impose considerable burdens on solicitors, requiring them to fill in 15 pages to be able to lodge an appeal.

Section 28: appeal from within the UK This section sets out the circumstances in which a person who arrives with entry clearance in the UK may appeal against the refusal of leave to enter from within the UK. It does so by replacing s 92(3) of the NIAA 2002 with the new s 28. Where a person is in the UK at the time of refusal and has entry clearance on arrival, he or she will have the right of appeal exercisable from within the UK. He or she will not have such a right under the section where his or her purpose in arriving in the UK is different from the purpose specified in the entry clearance. Such rights of appeal are excluded from people who are British Overseas Territories Citizens, Territories Citizens, British Overseas Citizens, British Nationals (Overseas), British Protected Persons or British Subjects within the meaning of the British Nationality Act (BNA) 1981. These categories of entrant are likely to ‘misuse’ the grant of their entry clearance (for what every immigration practitioner knows to be the best of reasons) and the effect of this provision is to prevent this. However, unlike these categories, the right of appeal

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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.

Section 29: entry clearance The Secretary of State may specify requirements in the immigration rules through an affirmative resolution procedure with the result that where entry clearance is refused, there would be no right of appeal against that refusal if the specified requirements have not been complied with. There will only be a right of appeal on human rights grounds or on race discrimination grounds. This provision is highly problematic. Refusals in entry clearance cases have been rising over the last few years and they are highly questionable. The quality of initial decisions on entry clearance is worse even than that for asylum. In 2002, 46.2% of appeals against refusal of visa applications were successful even where, in all cases, those appeals were dealt with on paper alone. The rate of refusals increased in non-settlement applications from 2002–03. The Independent Monitor for entry clearance, in her report in June 2004, stated that: ‘Systems need to ensure that any drastic increase in refusing applicants is reflective of the quality of applications rather than a more restrictive regime.’ She found that from a sample of 10,000 applicants who were wrongly denied the right of appeal in 2002, one-third of them were students and two-thirds family visitors. She was so worried about this that she had grave doubts about the policy of removing appeal rights in cases where the initial decision was so often wrong. As she said: ‘Parliament may wish to consider this when and if consideration is given to removing other rights of appeal.’ What is interesting about this finding is that even where the criteria are objective, mistakes can be made on a huge scale. This suggests that it would be wrong to grant the Secretary of State powers to deny rights of appeal where matters of opinion or judgment are involved. It seems that entry clearance officers (ECOs) cannot even get right a decision on whether a course of study lasts more than six months because last year no less than 3,000 students were denied an appeal because one module of their proposed course lasted for less than six months. Family visitors were also wrongly denied entry clearance because they were wrongly categorised as not having a qualifying relationship, because the ECO did not believe that they were related as claims. Both these issues require to be determined by a right of appeal. Judicial review cannot provide an adequate alternative remedy and it is fanciful to suggest so. No alternative remedy was provided for the 10,000 people who were unlawfully denied their appeal rights against refusal of an entry certificate in 2002. Legally, it was not available for these proceedings. No successful judicial review applications were raised in these cases. For this reason, the JCHR report had said that: Not providing a right of appeal in cases where the basis of the refusal is the failure to meet a requirement which turns on an objectively ascertainable fact is likely to be unobjectionable in human rights terms. However, the breadth of the power conferred on the Secretary of State by the new clause 29, without specifying on the face of the legislation the types of case in which the power can be used, is a matter of concern. Parliament is being asked to authorise in advance a very wide power which is capable of being exercised in a way which may


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impede access to an effective remedy or unjustifiably discriminate between different classes of applicant for entry clearance [see Hansard, HL, vol 663, col 769–70, per Lord Avebury].

The suggestion that entry clearance applications for students can be got right by the establishment of a register of educational establishments is also unconvincing. Such a view seems to find favour with the government minister, who argued that an agreed register of colleges would be the key (see Hansard, HL, vol 663, col 773, per Lord Rooker). However, it is not a question of having a register of colleges which is approved by all sides, it is a question of how these colleges will be put on the register and whether there will be a right of appeal against a refusal to list a particular establishment. This dispute will not be easy to resolve because there is an important distinction between matters of fact and matters of opinion, assessment or judgment (the latter being matters such as where an entry clearance officer states that funds are not under the applicant’s control or belong to someone other than the applicant but has no objective reason other than a suspicion for saying so) which ought to be properly subject to a right of appeal. In short, therefore, it is completely wrong to exclude right for appeal in these cases.

Section 30: earlier right of appeal It is well known that certification prevents an appeal from being launched against a decision on the new claim or application. This section does two things. First, it removes provisions for certifying appeals after they have been launched. It does so by amending s 96 of the NIAA 2002, which sets out when a claim or application may be certified under the ‘one-stop system’. The second thing this section does is to clarify the circumstances in which a certificate may indeed be issued. There are two such circumstances. First, if the new claim or application could have been raised at an earlier appeal, in respect of which an appellant had been given proper notice earlier, in relation to an earlier immigration decision, and the appellant has provided no satisfactory reason for not having raised it at that appeal, he will not be allowed to raise it now. It is irrelevant whether or not the right of appeal was exercised or whether or not it was pursued to a determination. What is relevant is that the appellant had the opportunity to do so. Secondly, certification will apply where the matter being raised in the new claim or application could have been raised in response to a one-stop notice under s 120 of the 2002 Act in relation to a previous immigration decision, and there has been no satisfactory reason why it was not raised in relation to that notice. What is interesting here is that there is no definition of what is an ‘opportunity’ to exercise a right of appeal. Clearly, the failure of legal advice being forthcoming could be construed as no opportunity for an unrepresented appellant to appeal.

Section 31: seamen’s and aircrews’ right of appeal This section restores the right of appeal for crew members of ships and aircraft who are to be removed from the UK under the 1971 Act, which relates specifically to crew members of ships and aircrafts. As with other such appeals,

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the appeal against a removal decision cannot be exercised in the UK unless it is an asylum or human rights claim (see s 92 of the NIAA 2002) or unless it breaches the appellant’s Community treaty rights.

Section 32: suspected international terrorist bail There is a right of appeal on a point of law under this section to the Court of Appeal. In Scotland, the right of appeal is to the Court of Session. In Northern Ireland, the right of appeal is to the Court of Appeal in Northern Ireland. The right of appeal arises where the Special Immigration Appeals Commission has made a determination in respect of an application for bail by someone who has been certified as a suspected international terrorist under s 24 of the Antiterrorism, Crime and Security Act 2001. This is likely to change in light of the 2005 Prevention of Terrorism Act.

Section 33 and Schedule 3: removing asylum seekers to a safe country Under this section, a person can be removed to a safe third country without a substantive consideration of the asylum claim. This section replaces, together with Schedule 3, ss 11 and 12 of the Immigration and Asylum Act 1999, and even extends those sections. Section 11 of the 1999 Act deemed certain countries to be safe for the purposes of the Refugee Convention. These are those countries where a person’s life and liberty is not threatened by reasons of his race, religion, nationality, membership of a particular social group or political opinion. Secondly, it includes those places from which a person will not be sent to another country otherwise than in accordance with the Refugee Convention. The difficulty with this amendment is that the Country Reports from the IND (known as the ‘CIPU Reports’) have consistently said that a country is not safe, but the government has in the Schedule deemed certain third countries to be safe contrary to all the objective evidence (see Hansard, HL, vol 661, col 712, per Baroness Park of Monmouth). Whether or not a country is safe will be very difficult to determine. In the words of Lord Avebury: ‘We all know of the Zimbabweans who have gone through the system unsuccessfully, even though an unbiased person looking at their claims would be at loss to understand how they were refused.’ He went on to say that: ‘whether or not someone is a refugee is a matter of fact, but the question of whether he attains the status of the refugee is determined not solely by the merits of his claim, but on a number of other factors, including the quality of representation, the assessment of his credibility and the possibility of getting evidence to support the claim from his country of origin’ (see Hansard, HL, vol 663, col 14, per Lord Avebury). However, s 33 now prevents any claimant who is to be removed to one of the specified countries from challenging his or her removal on Refugee Convention grounds. Such a person can only challenge his or her removal on the grounds that it will be unlawful under s 6 of the HRA to remove him or her because it would be incompatible with his or her Convention rights. However, the Secretary of State is still entitled to certify a human rights claim as clearly unfounded. If he does that, any appeal on this ground can only be pursued from


35

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

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country deemed to be safe, paragraph 8 specifies the same considerations that have been set out above in relation to s 11 of the 1999 Act. The provisions in s 77 of the 2002 Act are disapplied by paragraph 9 in just the same way as paragraph 4 did above. A person cannot bring an appeal within the UK on the basis that the country is not safe for Refugee Convention purposes or on human rights grounds, and paragraph 9 so specifies. Paragraph 10 states that a human rights claim against removal to a country certified as safe by the Secretary of State will be clearly unfounded unless he is satisfied that the claim has foundation. Under paragraph 11, no person may bring an appeal from outside the UK on any ground which is inconsistent with the provisions of paragraph 8 described above. Under Part 4 of Schedule 3, countries are deemed safe for the purposes of the Refugee Convention only. The Secretary of State may certify human rights claims as being clearly unfounded. Under paragraph 13, countries are to be treated as safe for Refugee Convention purposes in the same way as under paragraph 8 above. The provisions of s 77 of the 2002 Act are disapplied by paragraph 14 in the same way as paragraph 4 described above. Paragraph 15 stops a person from bringing an in-country appeal on the basis that the country is not safe for Refugee Convention or human rights purposes, provided that the claim is certified as clearly unfounded. The same effect in relation to this part as paragraph 11 is given by paragraph 16. Under Part 5 of Schedule 3, the Secretary of State can certify a country (which is not listed under Part 2, 3 or 4 of the Schedule) as safe for Refugee Convention purposes for a particular individual. Both human rights and refugee claims may be certified. Section 77 of the 2002 Act is disapplied by paragraph 18. In-country and out-of-country appeal rights are limited by paragraph 19. There are order-making powers to amend the lists under Parts 2, 3 and 4 specified by Part 6 of Schedule 3.

Section 34: detention pending deportation Deportation is dealt with by Schedule 3 to the Immigration Act 1971. Section 3(6) of the Act and paragraph 2(1) of Schedule 3 specifies that where a person has been recommended for deportation by a court, that person shall be detained pending the signing of the deportation order unless: (a) he or she is also detained by virtue of the sentence or order of any court; (b) he or she is released on bail by any court having power so to release him or her; or (c) the court which made the recommendation (or an appeal court) or the Secretary of State directs that he or she is to be released, or he or she is granted bail under paragraph 2(4)(a) of that Schedule. Further, paragraph 2(2) specifies that where a person has been notified that the Secretary of State intends to make a deportation order under s 3(5), that person will be detained unless he or she is already detained by virtue of the sentence or order of court or release on bail by a court having released him or her. It would seem that a bail can be granted by any court, including a court that is not involved in the deportation process, being a court that is not aware of deportation proceedings. Bail granted in this way could prevent detention pending the making of a deportation order if this was considered appropriate. Under s 34, paragraphs 2(1) and 2(2) are amended so that the reference to the grant of bail by a court is removed. A person who is detained under Schedule 3 will continue to be able to apply for bail from the Immigration Service. He may also apply for bail from the appropriate


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immigration appellate body under paragraph 2(4)(a) of the Schedule, which came into force in February 2003.

Section 35: deportation or removal co-operation This section allows the Secretary of State to require a person to take specified action if he believes that this will enable a travel document to be obtained on the person’s behalf and the travel document will facilitate the person’s deportation or removal from the UK. A person who fails, without reasonable excuse, to comply with the Secretary of State’s requirement will commit an offence. The definition of a travel document is given in sub-s (7) and this includes the passport as well as other official documents which would enable or facilitate travel from the UK to another State. The types of steps that the Secretary of State can require a person to take are not exhaustively set out in this section. They will include such steps as obtaining documents, providing documents and providing fingerprints. It is well known that a number of persons arriving in the UK do not carry a travel document. This has prevented their removal of deportation unless a travel document, such as a passport, can be obtained on their behalf. The Embassy or High Commission of the person concerned may obtain a travel document provided it is satisfied of the person’s identity and nationality. The person concerned will have to provide certain information and may also have to attend at interviews to enable proper identification to be undertaken. The offences specified under this section may be tried summarily or on indictment. There is a maximum penalty of six months’ imprisonment, a fine up to the statutory maximum or both in the case of a summary conviction. There is a maximum penalty of two years’ imprisonment, a fine, or both in the case of a conviction on indictment. The sentence on summary conviction will be increased to 12 months in England and Wales once s 154 of the Criminal Justice Act 2003 is enacted.

Section 36: electronic monitoring Under this section, there is provision for the electronic monitoring of persons subject to immigration control, provided that they are at least 18 years of age and the following conditions apply. First, there is a residence restriction imposed (sub-s (2)) and, secondly, there are reporting restrictions imposed (sub-s (3)). Thirdly, immigration bail is granted subject to a recognisance or a bail bond (sub-s (4)). The person who is subject to electronic monitoring will be required to co-operate with arrangements for detecting and recording his or her location at specified times and the co-operation may include voice recognition technology, the use of a ‘tag’ to confirm the presence or absence of the person from a specified location, and in the future ‘tracking’ technology to monitor the person’s whereabouts. The Secretary of State also has power under sub-s (8) to make rules about arrangements for electronic monitoring under this section. There is a requirement under sub-s (10) that the authority imposing the requirement to submit to electronic monitoring must be notified by the Secretary of State under sub-s (8)(b) that satisfactory monitoring arrangements are available in the relevant areas.

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Section 37: provision of immigration services This section amends the categories of advisers qualified to provide immigration advice or services under s 84 of the 1999 Act. Currently, the position is that unqualified advisers can either be employed by or supervised by a qualified adviser. Under s 37(1), unqualified advisers must be acting on behalf of, and the supervision of, a qualified adviser. Sub-section (4) defines those advisers subject to the jurisdiction of a disciplinary body as authorised by the relevant designated professional body.

Section 38: Immigration Services Commissioner – power of entry Under s 38(1), a commissioner has the power, subject to obtaining a warrant, to enter and search premises where there are reasonable grounds for suspecting that there is material likely to be of substantial value to the investigation of the offence under s 91 of 1999 Act of providing immigration services or advice when unqualified to do so. In this respect, s 38(1) inserts a new s 92A. Under sub-s (1), a justice of the peace can issue a warrant authorising the commissioner to enter and search premises. Whether powers of this kind have recently been conferred on justices of the peace in Scotland is unclear. If a justice of the peace is to be used in this way, it is important that only those who are skilled in such matters are approached. Under sub-s (2), warrants can only be issued if there are reasonable grounds for believing that an offence under s 91 is being committed and that there is material on the premises which is of a substantial value to the investigation of the offence. The grant of a search warrant can be open to challenge, particularly now under the HRA 1998. Further guidance, therefore, should be given on how the section is to be used. Under sub-s (3), there are other conditions and, before a warrant can be issued, any one of those conditions must be satisfied. The conditions are as follows: (a) where it is impracticable to communicate with a person entitled to grant entry or access to the premises; (b) where entry to the premises would be prevented unless a warrant is produced; (c) where the purpose of the search may be seriously prejudiced unless immediate entry on arrival at the premises is secured. Under sub-s (4), the commissioner is entitled to retain material he has seized. Under sub-s (5), anyone who obstructs the commissioner in exercising the warrant commits an offence. Under sub-s (6), there is a penalty for obstructing the commissioner which, on summary conviction, is subject to imprisonment for up to six months, or a fine not exceeding level 5 of the standard scale, or both. Under sub-s (7), reference to the commissioner includes a reference to a member of his staff authorised in writing by him. A reference to premises includes a reference to premises used wholly or partly as a dwelling. A reference to material includes material subject to legal privilege, and material which would not be admissible as evidence at a trial. Under sub-ss (8) and (9), the provisions of a new s 92A are to be applied in Scotland and Northern Ireland. Under s 38(2), paragraph 7 of Schedule 5 to the Immigration and Asylum Act 1999 is amended,


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so that there is an extension to the commissioner’s powers to enter premises in order to require the provision of documents and information. At present, the existing power applies to advisers registered under the regulatory scheme. Under s 38(2), the application of the power is extended to include advisers certified as exempt by the commissioner.

Section 39: offence of advertising services A new s 92B is inserted by s 39 in the Immigration and Asylum Act 1999. Those who can provide immigration advice are now listed in s 84 of the 1999 Act and s 39(1) creates a new criminal offence of advertising or offering to provide immigration advice or services when unqualified. Under sub-s (2), the behaviour that would constitute advertising or offering to provide immigration advice or services is set out. Under sub-s (3), the maximum penalty for the offence will be a level 4 fine (£2,500). Under sub-s (4), if a new offence is committed by a body corporate, an officer of that body will be culpable by virtue of sub-ss (3)–(7) of s 91 of the 1999 Act. Under sub-s (5), the commissioner will lay an information before a magistrate within six months of the date of the alleged advertising offence having been committed or within two years of that date and within six months of the offence coming to the attention of the commissioner. Sub-sections (6), (7) and (8) provide for the same limits to apply in Scotland and Northern Ireland.

Section 40: appeal to Immigration Services Tribunal Section 40 states that s 87(3)(f) of the Immigration and Asylum Act 1999 shall cease to have effect. The result is that there is no longer a right of appeal to the tribunal where the commissioner has recorded a complaint on the file for consideration when an application for continued registration is received from the immigration adviser concerned. However, a right of appeal would remain by virtue of s 87(3)(d) of the 1999 Act if the commissioner were to refuse that application for continued registration from certain advisers.

Section 41: professional bodies Under s 41, the Secretary of State has the power to make an order removing the name of a designated professional body from those listed in s 86 of the 1999 Act. The Secretary of State can make such an order if he considers a designated professional body has failed to comply with a request from the commissioner for information. A new sub-s 9(b)(ii) extends the commissioner ’s existing responsibility when reporting to the Secretary of State about a designated professional body so that there is now a duty to report where the body has failed to comply with an information request from him. All designated professional bodies must comply with a request from the commissioner for information by virtue of a new sub-s (9)(a) in s 86.

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Section 42: amount of fees Under s 42, the Secretary of State may levy a fee for certain specified non-asylum immigration applications at a level which exceeds the administrative cost of processing those applications and which affects the benefits that the Secretary of State thinks are likely to accrue to a successful applicant. The government has given an undertaking that, prior to the laying of the order to levy fees, it will undertake all possible consultations with appropriate bodies. For example, where the fees are payable by employers, as in the case of work permits, the government would expect to consult with a large sample of those organisations on the UK work permit database, members of the UK work permit user panel, and sector panels. Although there is no evidence that the increase in fees is acting as a disincentive to foreign students, it is important that there is full recognition of the fact that the international student market is worth an estimated £5 billion a year to the UK economy; international students contribute to income tax and national insurance contributions for part time and vacation work. Over-charging for students would be short-sighted and would risk alienating the international student market. For this reason, it is important to recognise s 42(4), which provides that where a fee is set in exercise of the power in this section, the instrument that prescribes that fee may provide that the part of the fee that exceeds the cost of determining an application or undertaking a process may be refunded if the application is unsuccessful or a process is not completed. Under s 42(6), the Secretary of State must consult those persons whom he deems appropriate prior to the introduction of a fee in the exercise of his power.

Section 43: transfer of leave stamps Under s 43, s 5 of the Immigration and Asylum Act 1999 is amended so that fees can be prescribed for applications for an indefinite leave to remain stamp to be transferred into the applicant’s passport or travel document as a result of the renewal or replacement of the applicant’s previous passport or travel document. This will apply where the leave stamp was previously fixed in another passport or document issued to the applicant.

Section 48: commencement Under s 48, there are provisions relating to the coming into force of the Act. Section 35, relating to deportation or removal, would come into force two months after royal assent. Section 32, which applies to suspected international terrorists in relation to bail, will apply to any such determinations made two months after royal assent or later.

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


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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))”.

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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

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(4)

(5)

(6)

(7)

Secretary of State a document of the kind referred to in that subsection. It is a defence for a person charged with an offence under subsection (1)– (a) to prove that he is an EEA national, (b) to prove that he is a member of the family of an EEA national and that he is exercising a right under the Community Treaties in respect of entry to or residence in the United Kingdom, (c) to prove that he has a reasonable excuse for not being in possession of a document of the kind specified in subsection (1), (d) to produce a false immigration document and to prove that he used that document as an immigration document for all purposes in connection with his journey to the United Kingdom, or (e) to prove that he travelled to the United Kingdom without, at any stage since he set out on the journey, having possession of an immigration document. It is a defence for a person charged with an offence under subsection (2) in respect of a child– (a) to prove that the child is an EEA national, (b) to prove that the child is a member of the family of an EEA national and that the child is exercising a right under the Community Treaties in respect of entry to or residence in the United Kingdom, (c) to prove that the person has a reasonable excuse for not being in possession of a document of the kind specified in subsection (2), (d) to produce a false immigration document and to prove that it was used as an immigration document for all purposes in connection with the child’s journey to the United Kingdom, or (e) to prove that he travelled to the United Kingdom with the child without, at any stage since he set out on the journey, having possession of an immigration document in respect of the child. Where the charge for an offence under subsection (1) or (2) relates to an interview which takes place after the defendant has entered the United Kingdom– (a) subsections (4)(c) and (5)(c) shall not apply, but (b) it is a defence for the defendant to prove that he has a reasonable excuse for not providing a document in accordance with subsection (3). For the purposes of subsections (4) to (6)– (a) the fact that a document was deliberately destroyed or disposed of is not a reasonable excuse for not being in possession of it or for not providing it in accordance with subsection (3), unless it is shown that the destruction or disposal was– (i) for a reasonable cause, or (ii) beyond the control of the person charged with the offence, and (b) in paragraph (a)(i) “reasonable cause” does not include the purpose of– (i) delaying the handling or resolution of a claim or application or the taking of a decision, (ii) increasing the chances of success of a claim or application, or

The Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (iii) complying with instructions or advice given by a person who offers advice about, or facilitates, immigration into the United Kingdom, unless in the circumstances of the case it is unreasonable to expect non-compliance with the instructions or advice. (8) A person shall be presumed for the purposes of this section not to have a document with him if he fails to produce it to an immigration officer or official of the Secretary of State on request. (9) A person guilty of an offence under this section shall be liable– (a) on conviction on indictment, to imprisonment for a term not exceeding two 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. (10)If a constable or immigration officer reasonably suspects that a person has committed an offence under this section he may arrest the person without warrant. (11) An offence under this section shall be treated as– (a) a relevant offence for the purposes of sections 28B and 28D of the Immigration Act 1971 (c 77) (search, entry and arrest), and (b) an offence under Part III of that Act (criminal proceedings) for the purposes of sections 28(4), 28E, 28G and 28H (search after arrest, &c) of that Act. (12)In this section– “EEA national” means a national of a State which is a contracting party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 (as it has effect from time to time), “immigration document” means– (a) a passport, and (b) a document which relates to a national of a State other than the United Kingdom and which is designed to serve the same purpose as a passport, and “leave or asylum interview” means an interview with an immigration officer or an official of the Secretary of State at which a person– (a) seeks leave to enter or remain in the United Kingdom, or (b) claims that to remove him from or require him to leave the United Kingdom would breach the United Kingdom’s obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 (c 42) as being incompatible with his Convention rights. (13)For the purposes of this section– (a) a document which purports to be, or is designed to look like, an immigration document is a false immigration document, and (b) an immigration document is a false immigration document if and in so far as it is used– (i) outside the period for which it is expressed to be valid, (ii) contrary to provision for its use made by the person issuing it, or

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A Guide to the Asylum and Immigration Act 2004 (iii) by or in respect of a person other than the person to or for whom it was issued. (14)Section 11 of the Immigration Act 1971 (c 77) shall have effect for the purpose of the construction of a reference in this section to entering the United Kingdom. (15)In so far as this section extends to England and Wales, subsection (9)(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. (16)In so far as this section extends to Scotland, subsection (9)(b) shall have effect as if the reference to twelve months were a reference to six months. (17)In so far as this section extends to Northern Ireland, subsection (9)(b) shall have effect as if the reference to twelve months were a reference to six months. 3

Immigration documents: forgery (1) Section 5 of the Forgery and Counterfeiting Act 1981 (c 45) (offences relating to various documents) shall be amended as follows. (2) After subsection (5)(f) (passports) insert– “(fa) immigration documents;”. (3) After subsection (8) add– “(9)In subsection (5)(fa) ‘immigration document’ means a card, adhesive label or other instrument which satisfies subsection (10) or (11). (10)A card, adhesive label or other instrument satisfies this subsection if it– (a) is designed to be given, in the exercise of a function under the Immigration Acts (within the meaning of section 44 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004), to a person who has been granted leave to enter or remain in the United Kingdom, and (b) carries information (whether or not wholly or partly electronically) about the leave granted. (11) A card, adhesive label or other instrument satisfies this subsection if it is given to a person to confirm a right of his under the Community Treaties in respect of entry to or residence in the United Kingdom.”

4

Trafficking people for exploitation (1) A person commits an offence if he arranges or facilitates the arrival in the United Kingdom of an individual (the “passenger”) and– (a) he intends to exploit the passenger in the United Kingdom or elsewhere, or (b) he believes that another person is likely to exploit the passenger in the United Kingdom or elsewhere. (2) A person commits an offence if he arranges or facilitates travel within the United Kingdom by an individual (the “passenger”) in respect of whom he believes that an offence under subsection (1) may have been committed and– (a) he intends to exploit the passenger in the United Kingdom or elsewhere, or

The Asylum and Immigration (Treatment of Claimants, etc) 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.

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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 (b) on summary conviction, to a fine not exceeding the statutory maximum.” (2) Section 8(9) of that Act (extension of time limit for prosecution) shall cease to have effect. 7

Advice of Director of Public Prosecutions In section 3(2) of the Prosecution of Offences Act 1985 (c 23) (functions of Director of Public Prosecutions) after paragraph (eb) insert– “(ec) to give, to such extent as he considers appropriate, advice to immigration officers on matters relating to criminal offences;”.

TREATMENT OF CLAIMANTS 8

Claimant’s credibility (1) In determining whether to believe a statement made by or on behalf of a person who makes an asylum claim or a human rights claim, a deciding authority shall take account, as damaging the claimant’s credibility, of any behaviour to which this section applies. (2) This section applies to any behaviour by the claimant that the deciding authority thinks– (a) is designed or likely to conceal information, (b) is designed or likely to mislead, or (c) is designed or likely to obstruct or delay the handling or resolution of the claim or the taking of a decision in relation to the claimant. (3) Without prejudice to the generality of subsection (2) the following kinds of behaviour shall be treated as designed or likely to conceal information or to mislead– (a) failure without reasonable explanation to produce a passport on request to an immigration officer or to the Secretary of State, (b) the production of a document which is not a valid passport as if it were, (c) the destruction, alteration or disposal, in each case without reasonable explanation, of a passport, (d) the destruction, alteration or disposal, in each case without reasonable explanation, of a ticket or other document connected with travel, and (e) failure without reasonable explanation to answer a question asked by a deciding authority. (4) This section also applies to failure by the claimant to take advantage of a reasonable opportunity to make an asylum claim or human rights claim while in a safe country. (5) This section also applies to failure by the claimant to make an asylum claim or human rights claim before being notified of an immigration decision, unless the claim relies wholly on matters arising after the notification. (6) This section also applies to failure by the claimant to make an asylum claim or human rights claim before being arrested under an immigration provision, unless– (a) he had no reasonable opportunity to make the claim before the arrest, or (b) the claim relies wholly on matters arising after the arrest.

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A Guide to the Asylum and Immigration Act 2004 (7) In this section– “asylum claim” has the meaning given by section 113(1) of the Nationality, Immigration and Asylum Act 2002 (c 41) (subject to subsection (9) below), “deciding authority” means– (a) an immigration officer, (b) the Secretary of State, (c) the Asylum and Immigration Tribunal, or (d) the Special Immigration Appeals Commission, “human rights claim” has the meaning given by section 113(1) of the Nationality, Immigration and Asylum Act 2002 (subject to subsection (9) below), “immigration decision” means– (a) refusal of leave to enter the United Kingdom, (b) refusal to vary a person’s leave to enter or remain in the United Kingdom, (c) grant of leave to enter or remain in the United Kingdom, (d) a decision that a person is to be removed from the United Kingdom by way of directions under section 10(1)(a), (b), (ba) or (c) of the Immigration and Asylum Act 1999 (c 33) (removal of persons unlawfully in United Kingdom), (e) a decision that a person is to be removed from the United Kingdom by way of directions under paragraphs 8 to 12 of Schedule 2 to the Immigration Act 1971 (c 77) (control of entry: removal), (f) a decision to make a deportation order under section 5(1) of that Act, and (g) a decision to take action in relation to a person in connection with extradition from the United Kingdom, “immigration provision” means– (a) sections 28A, 28AA, 28B, 28C and 28CA of the Immigration Act 1971 (immigration offences: enforcement), (b) paragraph 17 of Schedule 2 to that Act (control of entry), (c) section 14 of this Act, and (d) a provision of the Extradition Act 1989 (c 33) or 2003 (c 41), “notified” means notified in such manner as may be specified by regulations made by the Secretary of State, “passport” includes a document which relates to a national of a country other than the United Kingdom and which is designed to serve the same purpose as a passport, and “safe country” means a country to which Part 2 of Schedule 3 applies. (8) A passport produced by or on behalf of a person is valid for the purposes of subsection (3)(b) if it– (a) relates to the person by whom or on whose behalf it is produced, (b) has not been altered otherwise than by or with the permission of the authority who issued it, and (c) was not obtained by deception.

The Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (9) In subsection (4) a reference to an asylum claim or human rights claim shall be treated as including a reference to a claim of entitlement to remain in a country other than the United Kingdom made by reference to the rights that a person invokes in making an asylum claim or a human rights claim in the United Kingdom. (10)Regulations under subsection (7) specifying a manner of notification may, in particular– (a) apply or refer to regulations under section 105 of the Nationality, Immigration and Asylum Act 2002 (c 41) (notice of immigration decisions); (b) make provision similar to provision that is or could be made by regulations under that section; (c) modify a provision of regulations under that section in its effect for the purpose of regulations under this section; (d) provide for notice to be treated as received at a specified time if sent to a specified class of place in a specified manner. (11) Regulations under subsection (7) specifying a manner of notification– (a) may make incidental, consequential or 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. (12)This section shall not prevent a deciding authority from determining not to believe a statement on the grounds of behaviour to which this section does not apply. (13)Before the coming into force of section 26 a reference in this section to the Asylum and Immigration Tribunal shall be treated as a reference to– (a) an adjudicator appointed, or treated as if appointed, under section 81 of the Nationality, Immigration and Asylum Act 2002 (c 41) (appeals), and (b) the Immigration Appeal Tribunal. 9

Failed asylum seekers: withdrawal of support (1) In Schedule 3 to the Nationality, Immigration and Asylum Act 2002 (withholding and withdrawal of support) after paragraph 7 insert– “7AFifth class of ineligible person: failed asylum-seeker with family (1) Paragraph 1 applies to a person if– (a) he– (i) is treated as an asylum-seeker for the purposes of Part VI of the Immigration and Asylum Act 1999 (c 33) (support) by virtue only of section 94(3A) (failed asylum-seeker with dependent child), or (ii) is treated as an asylum-seeker for the purposes of Part 2 of this Act by virtue only of section 18(2), (b) the Secretary of State has certified that in his opinion the person has failed without reasonable excuse to take reasonable steps– (i) to leave the United Kingdom voluntarily, or

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(2)

(3)

(4)

(5)

(ii) to place himself in a position in which he is able to leave the United Kingdom voluntarily, (c) the person has received a copy of the Secretary of State’s certificate, and (d) the period of 14 days, beginning with the date on which the person receives the copy of the certificate, has elapsed. (2) Paragraph 1 also applies to a dependant of a person to whom that paragraph applies by virtue of sub-paragraph (1). (3) For the purpose of sub-paragraph (1)(d) if the Secretary of State sends a copy of a certificate by first class post to a person’s last known address, the person shall be treated as receiving the copy on the second day after the day on which it was posted. (4) The Secretary of State may by regulations vary the period specified in sub–paragraph (1)(d).” In paragraph 14(1) and (2) of Schedule 3 to the Nationality, Immigration and Asylum Act 2002 (local authority to notify Secretary of State) for “paragraph 6 or 7” substitute “paragraph 6, 7 or 7A”. No appeal may be brought under section 103 of the Immigration and Asylum Act 1999 (asylum support appeal) against a decision– (a) that by virtue of a provision of Schedule 3 to the Nationality, Immigration and Asylum Act 2002 (c 41) other than paragraph 7A a person is not qualified to receive support, or (b) on the grounds of the application of a provision of that Schedule other than paragraph 7A, to stop providing support to a person. On an appeal under section 103 of the Immigration and Asylum Act 1999 (c 33) against a decision made by virtue of paragraph 7A of Schedule 3 to the Nationality, Immigration and Asylum Act 2002 the adjudicator may, in particular– (a) annul a certificate of the Secretary of State issued for the purposes of that paragraph; (b) require the Secretary of State to reconsider the matters certified. An order under section 48 providing for this section to come into force may, in particular, provide for this section to have effect with specified modifications before the coming into force of a provision of the Nationality, Immigration and Asylum Act 2002.

10 Failed asylum seekers: accommodation (1) At the end of section 4 of the Immigration and Asylum Act 1999 (provision of accommodation for failed asylum seekers, &c) add– ”(5)The Secretary of State may make regulations specifying criteria to be used in determining– (a) whether or not to provide accommodation, or arrange for the provision of accommodation, for a person under this section; (b) whether or not to continue to provide accommodation, or arrange for the provision of accommodation, for a person under this section. (6) The regulations may, in particular– (a) provide for the continuation of the provision of accommodation for a person to be conditional upon his performance of or

The Asylum and Immigration (Treatment of Claimants, etc) Act 2004 participation in community activities in accordance with arrangements made by the Secretary of State; (b) provide for the continuation of the provision of accommodation to be subject to other conditions; (c) provide for the provision of accommodation (or the continuation of the provision of accommodation) to be a matter for the Secretary of State’s discretion to a specified extent or in a specified class of case. (7) For the purposes of subsection (6)(a)– (a) ‘community activities’ means activities that appear to the Secretary of State to be beneficial to the public or a section of the public, and (b) the Secretary of State may, in particular– (i) appoint one person to supervise or manage the performance of or participation in activities by another person; (ii) enter into a contract (with a local authority or any other person) for the provision of services by way of making arrangements for community activities in accordance with this section; (iii) pay, or arrange for the payment of, allowances to a person performing or participating in community activities in accordance with arrangements under this section. (8) Regulations by virtue of subsection (6)(a) may, in particular, provide for a condition requiring the performance of or participation in community activities to apply to a person only if the Secretary of State has made arrangements for community activities in an area that includes the place where accommodation is provided for the person. (9) A local authority or other person may undertake to manage or participate in arrangements for community activities in accordance with this section.” (2) In section 166(5) of that Act (regulations: affirmative instrument) before paragraph (a) insert– “(za) section 4(5),”. (3) In section 103 of the Immigration and Asylum Act 1999 (c 33) (support for asylum-seekers: appeal) as it has effect before the commencement of section 53 of the Nationality, Immigration and Asylum Act 2002 (c 41)– (a) after subsection (2) insert– “(2A)If the Secretary of State decides not to provide accommodation for a person under section 4, or not to continue to provide accommodation for a person under section 4, the person may appeal to an adjudicator.”, and (b) in subsections (6) and (7) for “section 95” substitute “section 4 or 95”. (4) In section 103 of the Immigration and Asylum Act 1999 (support for asylum-seekers: appeal) as it has effect after the commencement of section 53 of the Nationality, Immigration and Asylum Act 2002– (a) for subsection (1) substitute– “(1) This section applies where a person has applied for support under all or any of the following provisions–

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A Guide to the Asylum and Immigration Act 2004 (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 (ii) a local connection with a district (in Scotland) within the meaning of section 27 of the Housing (Scotland) Act 1987 (c 26). (3) Where this subsection applies– (a) the duty of the local housing authority under section 193 of the Housing Act 1996 in relation to the person shall not apply, but (b) the local housing authority– (i) may secure that accommodation is available for occupation by the person for a period giving him a reasonable opportunity of securing accommodation for his occupation, and (ii) may provide the person (or secure that he is provided with) advice and assistance in any attempts he may make to secure that accommodation becomes available for his occupation. 12 Refugee: back-dating of benefits (1) Section 123 of the Immigration and Asylum Act 1999 (c 33) (back-dating of benefits for refugees) shall cease to have effect. (2) Accordingly (and without prejudice to any other implied repeal, revocation or amendment) the following (each of which concerns the treatment of refugees) lapse– (a) in the Income Support (General) Regulations 1987 (SI 1987/1967)– (i) regulation 21ZB, (ii) paragraph 18A of Schedule 1B, and (iii) paragraph 57 of Schedule 9, (b) in the Income Support (General) Regulations (Northern Ireland) 1987 (SR 1987 No 459)– (i) regulation 21A, (ii) paragraph 18A of Schedule 1B, and (iii) paragraph 57 of Schedule 9, (c) in the Social Security (Claims and Payments) Regulations 1987 (SI 1987/1968)– (i) regulation 4(3C), (ii) regulation 6(4D), and (iii) regulation 19(8), (d) in the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987 (SR 1987 No 465)– (i) regulation 4(3C), (ii) regulation 6(4D), and (iii) regulation 19(8), (e) in the Housing Benefit (General) Regulations 1987 (SI 1987/1971)– (i) regulation 7B, (ii) Schedule A1, (iii) paragraphs 61 and 62 of Schedule 4, and (iv) paragraphs 50 and 51 of Schedule 5, (f) in the Housing Benefit (General) Regulations (Northern Ireland) 1987 (SR 1987 No 461)– (i) regulation 7B,

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A Guide to the Asylum and Immigration Act 2004 (ii) Schedule A1, (iii) paragraphs 62 and 63 of Schedule 4, and (iv) paragraphs 48 and 49 of Schedule 5, and (g) in the Council Tax Benefit (General) Regulations 1992 (SI 1992/1814)– (i) regulation 4D, (ii) Schedule A1, (iii) paragraphs 60 and 61 of Schedule 4, and (iv) paragraphs 50 and 51 of Schedule 5. (3) Regulation 12(1) and (2) of the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000 (SI 2000/636) (which save for transitional purposes the effect of provision made for back-payment of benefits for refugees under section 11(2) of the Asylum and Immigration Act 1996 (c 49)) shall cease to have effect. (4) Regulation 11(1) and (2) of the Social Security (Immigration and Asylum) Consequential Amendments Regulations (Northern Ireland) 2000 (SR 2000 No 71) (which make similar transitional savings) shall cease to have effect. (5) An order under section 48 bringing this section into force may, in particular, provide for this section to have effect in relation to persons recorded as refugees after a specified date (irrespective of when the process resulting in the record was begun). 13 Integration loan for refugees (1) The Secretary of State may make regulations enabling him to make loans to refugees. (2) A person is a refugee for the purpose of subsection (1) if the Secretary of State has– (a) recorded him as a refugee within the meaning of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, and (b) granted him indefinite leave to enter or remain in the United Kingdom (within the meaning of section 33(1) of the Immigration Act 1971 (c 77)). (3) Regulations under subsection (1)– (a) shall specify matters which the Secretary of State shall, in addition to other matters appearing to him to be relevant, take into account in determining whether or not to make a loan (and those matters may, in particular, relate to– (i) a person’s income or assets, (ii) a person’s likely ability to repay a loan, or (iii) the length of time since a person was recorded as a refugee), (b) shall enable the Secretary of State to specify (and vary from time to time) a minimum and a maximum amount of a loan, (c) shall prevent a person from receiving a loan if– (i) he is under the age of 18, (ii) he is insolvent, within a meaning given by the regulations, or (iii) he has received a loan under the regulations,

The Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (d) shall make provision about repayment of a loan (and may, in particular, make provision– (i) about interest; (ii) for repayment by deduction from a social security benefit or similar payment due to the person to whom the loan is made), (e) shall enable the Secretary of State to attach conditions to a loan (which may include conditions about the use of the loan), (f) shall make provision about– (i) the making of an application for a loan, and (ii) the information, which may include information about the intended use of a loan, to be provided in or with an application, (g) may make provision about steps to be taken by the Secretary of State in establishing an applicant’s likely ability to repay a loan, (h) may make provision for a loan to be made jointly to more than one refugee, and (i) may confer a discretion on the Secretary of State. (4) Regulations under this section– (a) shall be made by statutory instrument, and (b) may not be made unless a draft has been laid before and approved by resolution of each House of Parliament. ENFORCEMENT POWERS 14 Immigration officer: power of arrest (1) Where an immigration officer in the course of exercising a function under the Immigration Acts forms a reasonable suspicion that a person has committed or attempted to commit an offence listed in subsection (2), he may arrest the person without warrant. (2) Those offences are– (a) the offence of conspiracy at common law (in relation to conspiracy to defraud), (b) at common law in Scotland, any of the following offences–

(c) (d) (e) (f)

(i) fraud, (ii) conspiracy to defraud, (iii) uttering and fraud, (iv) bigamy, (v) theft, and (vi) reset, an offence under section 57 of the Offences against the Person Act 1861 (c 100) (bigamy), an offence under section 3 or 4 of the Perjury Act 1911 (c 6) (false statements), an offence under section 7 of that Act (aiding, abetting &c) if it relates to an offence under section 3 or 4 of that Act, an offence under section 53 of the Registration of Births, Deaths and Marriages (Scotland) Act 1965 (c 49) (knowingly giving false information to district registrar, &c),

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A Guide to the Asylum and Immigration Act 2004 (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 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.”

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A Guide to the Asylum and Immigration Act 2004 PROCEDURE FOR MARRIAGE 19 England and Wales (1) This section applies to a marriage– (a) which is to be solemnised on the authority of certificates issued by a superintendent registrar under Part III of the Marriage Act 1949 (c 76), and (b) a party to which is subject to immigration control. (2) In relation to a marriage to which this section applies, the notices under section 27 of the Marriage Act 1949– (a) shall be given to the superintendent registrar of a registration district specified for the purpose of this paragraph by regulations made by the Secretary of State, (b) shall be delivered to the superintendent registrar in person by the two parties to the marriage, (c) may be given only if each party to the marriage has been resident in a registration district for the period of seven days immediately before the giving of his or her notice (but the district need not be that in which the notice is given and the parties need not have resided in the same district), and (d) shall state, in relation to each party, the registration district by reference to which paragraph (c) is satisfied. (3) The superintendent registrar shall not enter in the marriage notice book notice of a marriage to which this section applies unless satisfied, by the provision of specified evidence, that the party subject to immigration control– (a) has an entry clearance granted expressly for the purpose of enabling him to marry in the United Kingdom, (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) For the purposes of this section– (a) a person is subject to immigration control if– (i) he is not an EEA national, and (ii) under the Immigration Act 1971 (c 77) he requires leave to enter or remain in the United Kingdom (whether or not leave has been given), (b) “EEA national” means a national of a State which is a contracting party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 (as it has effect from time to time), (c) “entry clearance” has the meaning given by section 33(1) of the Immigration Act 1971, and (d) “specified evidence” means such evidence as may be specified in guidance issued by the Registrar General. 20 England and Wales: supplemental (1) The Marriage Act 1949 (c 76) shall have effect in relation to a marriage to which section 19 applies–

The Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (a) subject to that section, and (b) with any necessary consequential modification. (2) In particular– (a) section 28(1)(b) of that Act (declaration: residence) shall have effect as if it required a declaration that–

(3)

(4) (5)

(6)

(i) the notice of marriage is given in compliance with section 19(2) above, and (ii) the party subject to immigration control satisfies section 19(3)(a), (b) or (c), and (b) section 48 of that Act (proof of certain matters not essential to validity of marriage) shall have effect as if the list of matters in section 48(1)(a) to (e) included compliance with section 19 above. Regulations of the Secretary of State under section 19(2)(a) or (3)(c)– (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. Before making regulations under section 19(2)(a) the Secretary of State shall consult the Registrar General. An expression used in section 19 or this section and in Part III of the Marriage Act 1949 (c 76) has the same meaning in section 19 or this section as in that Part. An order under the Regulatory Reform Act 2001 (c 6) may include provision– (a) amending section 19, this section or section 25 in consequence of other provision of the order, or (b) repealing section 19, this section and section 25 and re-enacting them with modifications consequential upon other provision of the order.

21 Scotland (1) This section applies to a marriage– (a) which is intended to be solemnised in Scotland, and (b) a party to which is subject to immigration control. (2) In relation to a marriage to which this section applies, notice under section 3 of the Marriage (Scotland) Act 1977 (c 15)– (a) may be submitted to the district registrar of a registration district prescribed for the purposes of this section, and (b) may not be submitted to the district registrar of any other registration district. (3) Where the district registrar to whom notice is submitted by virtue of subsection (2) is the district registrar for the registration district in which the marriage is to be solemnised, he shall not make an entry under section 4, or complete a Marriage Schedule under section 6, of the Marriage (Scotland) Act 1977 in respect of the marriage unless satisfied, by the provision of specified evidence, that the party subject to immigration control– (a) has an entry clearance granted expressly for the purpose of enabling him to marry in the United Kingdom,

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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 list of intended marriages and marriage schedule) unless he is satisfied, by the provision of specified evidence, that the party subject to immigration control– (a) has an entry clearance granted expressly for the purpose of enabling him to marry in the United Kingdom, (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) Subject to subsection (5), if the prescribed registrar is not the registrar for the purposes of Article 4 of that Order, the prescribed registrar shall send him the marriage notices and he shall be treated as having received them from the parties to the marriage on the dates on which the prescribed registrar received them. (5) The prescribed registrar shall not act under subsection (4) unless he is satisfied as mentioned in subsection (3). (6) For the purposes of this section– (a) a person is subject to immigration control if– (i) he is not an EEA national, and (ii) under the Immigration Act 1971 (c 77) he requires leave to enter or remain in the United Kingdom (whether or not leave has been given), (b) “EEA national” means a national of a State which is a contracting party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 (as it has effect from time to time), (c) “entry clearance” has the meaning given by section 33(1) of the Immigration Act 1971, and (d) “specified evidence” means such evidence as may be specified in guidance issued by the Secretary of State after consulting the Registrar General for Northern Ireland. 24 Northern Ireland: supplemental (1) The Marriage (Northern Ireland) Order 2003 (SI 2003/413 (NI 3)) shall have effect in relation to a marriage to which section 23 applies– (a) subject to section 23, and (b) with any necessary consequential modification. (2) In section 23 “prescribed” means prescribed for the purposes of that section by regulations made by the Secretary of State after consulting the Registrar General for Northern Ireland and other expressions used in that section or this section and the Marriage (Northern Ireland) Order 2003 have the same meaning in section 23 or this section as in that Order. (3) Section 18(3) of the Interpretation Act (Northern Ireland) 1954 (c 33 (NI)) (provisions as to holders of offices) shall apply to section 23 as if that section were an enactment within the meaning of that Act. (4) Regulations of the Secretary of State under section 23– (a) may make transitional provision, (b) shall be made by statutory instrument, and

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A Guide to the Asylum and Immigration Act 2004 (c) shall be subject to annulment in pursuance of a resolution of either House of Parliament. 25 Application for permission under section 19(3)(b), 21(3)(b) or 23(3)(b) (1) The Secretary of State may make regulations requiring a person seeking permission under section 19(3)(b), 21(3)(b) or 23(3)(b)– (a) to make an application in writing, and (b) to pay a fee. (2) The regulations shall, in particular, specify– (a) the information to be contained in or provided with the application, (b) the amount of the fee, and (c) how and to whom the fee is to be paid. (3) The regulations may, in particular, make provision– (a) excepting a specified class of persons from the requirement to pay a fee; (b) permitting a specified class of persons to pay a reduced fee; (c) for the refund of all or part of a fee in specified circumstances. (4) Regulations under this section– (a) shall be made by statutory instrument, and (b) shall be subject to annulment in pursuance of a resolution of either House of Parliament. APPEALS 26 Unification of appeal system (1) For section 81 of the Nationality, Immigration and Asylum Act 2002 (c 41) (appeals: adjudicators) substitute– “Appeal to Tribunal 81 The Asylum and Immigration Tribunal

(2) (3) (4) (5)

(6)

(1) There shall be a tribunal to be known as the Asylum and Immigration Tribunal. (2) Schedule 4 (which makes provision about the Tribunal) shall have effect. (3) A reference in this Part to the Tribunal is a reference to the Asylum and Immigration Tribunal.” In section 82(1) of that Act (right of appeal: general) for “to an adjudicator” substitute “to the Tribunal”. In section 83(2) of that Act (appeal: asylum claim) for “to an adjudicator” substitute “to the Tribunal”. For Schedule 4 to that Act (adjudicators) substitute the Schedule set out in Schedule 1 to this Act (Asylum and Immigration Tribunal). The following provisions of that Act shall cease to have effect– (a) sections 100 to 103 (Immigration Appeal Tribunal), and (b) Schedule 5 (Immigration Appeal Tribunal). Before section 104 of that Act (pending appeal) insert–

The Asylum and Immigration (Treatment of Claimants, etc) Act 2004 “103A Review of Tribunal’s decision (1) A party to an appeal under section 82 or 83 may apply to the appropriate court, on the grounds that the Tribunal made an error of law, for an order requiring the Tribunal to reconsider its decision on the appeal. (2) The appropriate court may make an order under subsection (1)– (a) only if it thinks that the Tribunal may have made an error of law, and (b) only once in relation to an appeal. (3) An application under subsection (1) must be made– (a) in the case of an application by the appellant made while he is in the United Kingdom, within the period of 5 days beginning with the date on which he is treated, in accordance with rules under section 106, as receiving notice of the Tribunal’s decision, (b) in the case of an application by the appellant made while he is outside the United Kingdom, within the period of 28 days beginning with the date on which he is treated, in accordance with rules under section 106, as receiving notice of the Tribunal’s decision, and (c) in the case of an application brought by a party to the appeal other than the appellant, within the period of 5 days beginning with the date on which he is treated, in accordance with rules under section 106, as receiving notice of the Tribunal’s decision. (4) But– (a) rules of court may specify days to be disregarded in applying subsection (3)(a), (b) or (c), and (b) the appropriate court may permit an application under subsection (1) to be made outside the period specified in subsection (3) where it thinks that the application could not reasonably practicably have been made within that period. (5) An application under subsection (1) shall be determined by reference only to– (a) written submissions of the applicant, and (b) where rules of court permit, other written submissions. (6) A decision of the appropriate court on an application under subsection (1) shall be final. (7) In this section a reference to the Tribunal’s decision on an appeal does not include a reference to– (a) a procedural, ancillary or preliminary decision, or (b) a decision following remittal under section 103B, 103C or 103E. (8) This section does not apply to a decision of the Tribunal where its jurisdiction is exercised by three or more legally qualified members. (9) In this section ‘the appropriate court’ means–

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A Guide to the Asylum and Immigration Act 2004 (a) in relation to an appeal decided in England or Wales, the High Court, (b) in relation to an appeal decided in Scotland, the Court of Session, and (c) in relation to an appeal decided in Northern Ireland, the High Court in Northern Ireland. (10) An application under subsection (1) to the Court of Session shall be to the Outer House. 103B Appeal from Tribunal following reconsideration (1) Where an appeal to the Tribunal has been reconsidered, a party to the appeal may bring a further appeal on a point of law to the appropriate appellate court. (2) In subsection (1) the reference to reconsideration is to reconsideration pursuant to– (a) an order under section 103A(1), or (b) remittal to the Tribunal under this section or under section 103C or 103E. (3) An appeal under subsection (1) may be brought only with the permission of– (a) the Tribunal, or (b) if the Tribunal refuses permission, the appropriate appellate court. (4) On an appeal under subsection (1) the appropriate appellate court may– (a) affirm the Tribunal’s decision; (b) make any decision which the Tribunal could have made; (c) remit the case to the Tribunal; (d) affirm a direction under section 87; (e) vary a direction under section 87; (f) give a direction which the Tribunal could have given under section 87. (5) In this section “the appropriate appellate court” means– (a) in relation to an appeal decided in England or Wales, the Court of Appeal, (b) in relation to an appeal decided in Scotland, the Court of Session, and (c) in relation to an appeal decided in Northern Ireland, the Court of Appeal in Northern Ireland. (6) An appeal under subsection (1) to the Court of Session shall be to the Inner House. 103C Appeal from Tribunal instead of reconsideration (1) On an application under section 103A in respect of an appeal the appropriate court, if it thinks the appeal raises a question of law of such importance that it should be decided by the appropriate appellate court, may refer the appeal to that court. (2) On a reference under subsection (1) the appropriate appellate court may–

The Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (a) (b) (c) (d) (e) (f)

affirm the Tribunal’s decision; make any decision which the Tribunal could have made; remit the case to the Tribunal; affirm a direction under section 87; vary a direction under section 87; give a direction which the Tribunal could have given under section 87; (g) restore the application under section 103A to the appropriate court. (3) In this section– “the appropriate court” has the same meaning as in section 103A, and “the appropriate appellate court” has the same meaning as in section 103B. (4) A reference under subsection (1) to the Court of Session shall be to the Inner House. 103D Reconsideration: legal aid (1) On the application of an appellant under section 103A, the appropriate court may order that the appellant’s costs in respect of the application under section 103A shall be paid out of the Community Legal Service Fund established under section 5 of the Access to Justice Act 1999 (c 22). (2) Subsection (3) applies where the Tribunal has decided an appeal following reconsideration pursuant to an order made– (a) under section 103A(1), and (b) on the application of the appellant. (3) The Tribunal may order that the appellant’s costs– (a) in respect of the application for reconsideration, and (b) in respect of the reconsideration, shall be paid out of that Fund. (4) The Secretary of State may make regulations about the exercise of the powers in subsections (1) and (3). (5) Regulations under subsection (4) may, in particular, make provision– (a) specifying or providing for the determination of the amount of payments; (b) about the persons to whom the payments are to be made; (c) restricting the exercise of the power (whether by reference to the prospects of success in respect of the appeal at the time when the application for reconsideration was made, the fact that a reference has been made under section 103C(1), the circumstances of the appellant, the nature of the appellant’s legal representatives, or otherwise). (6) Regulations under subsection (4) may make provision– (a) conferring a function on the Legal Services Commission;

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A Guide to the Asylum and Immigration Act 2004 (b) modifying a duty or power of the Legal Services Commission in respect of compliance with orders under subsection (3); (c) applying (with or without modifications), modifying or disapplying a provision of, or of anything done under, an enactment relating to the funding of legal services. (7) Before making regulations under subsection (4) the Secretary of State shall consult such persons as he thinks appropriate. (8) This section has effect only in relation to an appeal decided in– (a) England, (b) Wales, or (c) Northern Ireland. (9) In relation to an appeal decided in Northern Ireland this section shall have effect– (a) as if a reference to the Community Legal Service Fund were to the fund established under paragraph 4(2)(a) of Schedule 3 to the Access to Justice (Northern Ireland) Order 2003 (SI 2003/435 (NI 10)), and (b) with any other necessary modifications. 103E Appeal from Tribunal sitting as panel (1) This section applies to a decision of the Tribunal on an appeal under section 82 or 83 where its jurisdiction is exercised by three or more legally qualified members. (2) A party to the appeal may bring a further appeal on a point of law to the appropriate appellate court. (3) An appeal under subsection (2) may be brought only with the permission of– (a) the Tribunal, or (b) if the Tribunal refuses permission, the appropriate appellate court. (4) On an appeal under subsection (2) the appropriate appellate court may– (a) affirm the Tribunal’s decision; (b) make any decision which the Tribunal could have made; (c) remit the case to the Tribunal; (d) affirm a direction under section 87; (e) vary a direction under section 87; (f) give a direction which the Tribunal could have given under section 87. (5) In this section ‘the appropriate appellate court’ means– (a) in relation to an appeal decided in England or Wales, the Court of Appeal, (b) in relation to an appeal decided in Scotland, the Court of Session, and (c) in relation to an appeal decided in Northern Ireland, the Court of Appeal in Northern Ireland.

The Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (6) A further appeal under subsection (2) to the Court of Session shall be to the Inner House. (7) In this section a reference to the Tribunal’s decision on an appeal does not include a reference to– (a) a procedural, ancillary or preliminary decision, or (b) a decision following remittal under section 103B or 103C.” (7) Schedule 2 (which makes amendments consequential on this section, and transitional provision) shall have effect. (8) The Lord Chancellor may by order vary a period specified in– (a) section 103A(3)(a), (b) or (c) of the Nationality, Immigration and Asylum Act 2002 (c 41) (review of Tribunal’s decision) (as inserted by subsection (6) above), or (b) paragraph 30(5)(b)[a] of Schedule 2 to this Act. (9) An order under subsection (8)– (a) may make provision generally or only for specified cases or circumstances, (b) may make different provision for different cases or circumstances, (c) shall be made by statutory instrument, and (d) shall be subject to annulment in pursuance of a resolution of either House of Parliament. (10)Before making an order under subsection (8) the Lord Chancellor shall consult– (a) the Lord Chief Justice, if the order affects proceedings in England and Wales, (b) the Lord President of the Court of Session, if the order affects proceedings in Scotland, and (c) the Lord Chief Justice of Northern Ireland, if the order affects proceedings in Northern Ireland. 27 Unfounded human rights or asylum claim (1) Section 94 of the Nationality, Immigration and Asylum Act 2002 (c 41) (no appeal from within United Kingdom for unfounded human rights or asylum claim) shall be amended as follows. (2) After subsection (1) insert– “(1A) A person may not bring an appeal against an immigration decision of a kind specified in section 82(2)(c), (d) or (e) in reliance on section 92(2) if the Secretary of State certifies that the claim or claims mentioned in subsection (1) above is or are clearly unfounded.” (3) In subsection (2) for “in reliance on section 92(4)” substitute “in reliance on section 92(4)(a)”. (4) In subsection (4) omit paragraphs (a) to (j). (5) After subsection (5) insert– “(5A) If the Secretary of State is satisfied that the statements in subsection (5)(a) and (b) are true of a State or part of a State in relation to a description of person, an order under subsection (5) may add the State or part to the list in subsection (4) in respect of that description of person.

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A Guide to the Asylum and Immigration Act 2004 (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) (b) (c) (d) (e) (f) (g) (h)

gender, language, race, religion, nationality, membership of a social or other group, political opinion, or 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 (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) (ii) (iii) (iv) (v)

a British overseas territories citizen, a British Overseas citizen, a British National (Overseas), a British protected person, or 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.”

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A Guide to the Asylum and Immigration Act 2004 30 Earlier right of appeal (1) Section 96 of the Nationality, Immigration and Asylum Act 2002 (earlier right of appeal) shall be amended as follows. (2) For subsections (1) to (3) substitute– ”(1)An appeal under section 82(1) against an immigration decision (‘the new decision’) in respect of a person may not be brought if the Secretary of State or an immigration officer certifies– (a) that the person was notified of a right of appeal under that section against another immigration decision (‘the old decision’) (whether or not an appeal was brought and whether or not any appeal brought has been determined), (b) that the claim or application to which the new decision relates relies on a matter that could have been raised in an appeal against the old decision, and (c) that, in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that matter not having been raised in an appeal against the old decision. (2) An appeal under section 82(1) against an immigration decision (‘the new decision’) in respect of a person may not be brought if the Secretary of State or an immigration officer certifies– (a) that the person received a notice under section 120 by virtue of an application other than that to which the new decision relates or by virtue of a decision other than the new decision, (b) that the new decision relates to an application or claim which relies on a matter that should have been, but has not been, raised in a statement made in response to that notice, and (c) that, in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that matter not having been raised in a statement made in response to that notice.” (3) In subsection (5) for “Subsections (1) to (3) apply to prevent or restrict” substitute “Subsections (1) and (2) apply to prevent”. (4) At the end add– ”(7)A certificate under subsection (1) or (2) shall have no effect in relation to an appeal instituted before the certificate is issued.” 31 Seamen and aircrews: right of appeal In section 82(2) of the Nationality, Immigration and Asylum Act 2002 (c 41) after paragraph (i) insert– “(ia) a decision that a person is to be removed from the United Kingdom by way of directions under paragraph 12(2) of Schedule 2 to the Immigration Act 1971 (c 77) (seamen and aircrews),”. 32 Suspected international terrorist: bail (1) At the end of section 24 of the Anti-terrorism, Crime and Security Act 2001 (c 24) (suspected international terrorist: bail by Special Immigration Appeals Commission) add– “(4)Where the Special Immigration Appeals Commission determines an application for bail, the applicant or a person who made

The Asylum and Immigration (Treatment of Claimants, etc) Act 2004 representations to the Commission about the application may appeal on a question of law to the appropriate appeal court. (5) Section 7(2) and (3) of the Special Immigration Appeals Commission Act 1997 (c 68) (appeals from Commission) shall have effect for the purposes of an appeal under subsection (4) above.” (2) In section 27(5) and (6) of the Anti-terrorism, Crime and Security Act 2001 (suspected international terrorist: Special Immigration Appeals Commission: procedure) for “section 25 or 26 of this Act” substitute “section 24, 25 or 26 of this Act”. REMOVAL AND DETENTION 33 Removing asylum seeker to safe country (1) Schedule 3 (which concerns the removal of persons claiming asylum to countries known to protect refugees and to respect human rights) shall have effect. (2) Sections 11 and 12 of the Immigration and Asylum Act 1999 (c 33) (removal of asylum claimant to country under standing or other arrangements) shall cease to have effect. (3) The following provisions of the Nationality, Immigration and Asylum Act 2002 (c 41) shall cease to have effect– (a) section 80 (new section 11 of 1999 Act), and (b) section 93 (appeal from within United Kingdom: “third country” removal). 34 Detention pending deportation (1) In paragraph 2(1) of Schedule 3 to the Immigration Act 1971 (c 77) (detention pending deportation on recommendation by court) for the words “and that person is neither detained in pursuance of the sentence or order of any court nor for the time being released on bail by any court having power so to release him” substitute “and that person is not detained in pursuance of the sentence or order of any court”. (2) In paragraph 2(2) of that Schedule (detention following notice of deportation) for the words “and he is neither detained in pursuance of the sentence or order of a court nor for the time being released on bail by a court having power so to release him” substitute “and he is not detained in pursuance of the sentence or order of a court”. 35 Deportation or removal: cooperation (1) The Secretary of State may require a person to take specified action if the Secretary of State thinks that– (a) the action will or may enable a travel document to be obtained by or for the person, and (b) possession of the travel document will facilitate the person’s deportation or removal from the United Kingdom. (2) In particular, the Secretary of State may require a person to– (a) provide information or documents to the Secretary of State or to any other person; (b) obtain information or documents; (c) provide fingerprints, submit to the taking of a photograph or provide information, or submit to a process for the recording of information,

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(3) (4)

(5)

(6)

(7)

(8)

(9)

about external physical characteristics (including, in particular, features of the iris or any other part of the eye); (d) make, or consent to or cooperate with the making of, an application to a person acting for the government of a State other than the United Kingdom; (e) cooperate with a process designed to enable determination of an application; (f) complete a form accurately and completely; (g) attend an interview and answer questions accurately and completely; (h) make an appointment. A person commits an offence if he fails without reasonable excuse to comply with a requirement of the Secretary of State under subsection (1). A person guilty of an offence under subsection (3) shall be liable– (a) on conviction on indictment, to imprisonment for a term not exceeding two 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. If a constable or immigration officer reasonably suspects that a person has committed an offence under subsection (3) he may arrest the person without warrant. An offence under subsection (3) shall be treated as– (a) a relevant offence for the purposes of sections 28B and 28D of the Immigration Act 1971 (c 77) (search, entry and arrest), and (b) an offence under Part III of that Act (criminal proceedings) for the purposes of sections 28(4), 28E, 28G and 28H (search after arrest, &c) of that Act. In subsection (1)– “travel document” means a passport or other document which is issued by or for Her Majesty’s Government or the government of another State and which enables or facilitates travel from the United Kingdom to another State, and “removal from the United Kingdom” means removal under– (a) Schedule 2 to the Immigration Act 1971 (control on entry) (including a provision of that Schedule as applied by another provision of the Immigration Acts), (b) section 10 of the Immigration and Asylum Act 1999 (c 33) (removal of person unlawfully in United Kingdom), or (c) Schedule 3 to this Act. While sections 11 and 12 of the Immigration and Asylum Act 1999 continue to have effect, the reference in subsection (7)(c) above to Schedule 3 to this Act shall be treated as including a reference to those sections. In so far as subsection (3) extends to England and Wales, subsection (4)(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.

The Asylum and Immigration (Treatment of Claimants, etc) 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–

(2)

(3)

(4)

(5)

(6)

(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. 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. 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. 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. 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. In particular, arrangements for the electronic monitoring of an adult–

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A Guide to the Asylum and Immigration Act 2004 (a) may require him to wear a device; (b) may require him to make specified use of a device; (c) may prohibit him from causing or permitting damage of or interference with a device; (d) may prohibit him from taking or permitting action that would or might prevent the effective operation of a device; (e) may require him to communicate in a specified manner and at specified times or during specified periods of time; (f) may involve the performance of functions by persons other than the person imposing the requirement to cooperate with electronic monitoring (and those functions may relate to any aspect or condition of a residence restriction, of a reporting restriction, of an employment restriction, of a requirement under this section or of immigration bail). (7) In this section “adult” means an individual who is at least 18 years old. (8) The Secretary of State– (a) may make rules about arrangements for electronic monitoring for the purposes of this section, and (b) when he thinks that satisfactory arrangements for electronic monitoring are available in respect of an area, shall notify persons likely to be in a position to exercise power under this section in respect of the area. (9) Rules under subsection (8)(a) may, in particular, require that arrangements for electronic monitoring impose on a person of a specified description responsibility for specified aspects of the operation of the arrangements. (10)A requirement to cooperate with electronic monitoring– (a) shall comply with rules under subsection (8)(a), and (b) may not be imposed in respect of an adult who is or is expected to be in an area unless the person imposing the requirement has received a notification from the Secretary of State under subsection (8)(b) in respect of that area. (11) Rules under subsection (8)(a)– (a) may include incidental, consequential or transitional provision, (b) may make provision generally or only in relation to specified cases, circumstances or areas, (c) shall be made by statutory instrument, and (d) shall be subject to annulment in pursuance of a resolution of either House of Parliament. (12)Before the commencement of section 26 a reference in this section to the Asylum and Immigration Tribunal shall be treated as a reference to– (a) a person appointed, or treated as if appointed, as an adjudicator under section 81 of the Nationality, Immigration and Asylum Act 2002 (c 41) (appeals), and (b) the Immigration Appeal Tribunal.

The Asylum and Immigration (Treatment of Claimants, etc) 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–

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A Guide to the Asylum and Immigration Act 2004 “(b) persons acting on behalf of persons who are within paragraph (a).”, (e) in paragraph 5(3)(b) for “employed by, or working under the supervision of,” substitute “acting on behalf of”, (f) for paragraph 5(3)(e) substitute– “(e) an alleged breach of a rule of a relevant regulatory body,”, (g) for paragraph 6(3)(c) substitute– “(c) in any other case, refer the matter to any relevant regulatory body.”, (h) in paragraphs 9(1)(a) and (b) for “or a person employed by, or working under the supervision of,” substitute “or is acting on behalf of”, (i) for paragraph 9(1)(c) substitute– “(c) refer the complaint and his decision on it to a relevant regulatory body;”, (j) for paragraphs 9(3)(a) and (b) substitute– “(a) imposing restrictions on the provision of immigration advice or immigration services by the relevant person or by a person acting on his behalf or under his supervision; (b) prohibiting the provision of immigration advice or immigration services by the relevant person or a person acting on his behalf or under his supervision.”, and (k) for paragraphs 9(4)(b) to (d) substitute– “(b) a person acting on behalf of a registered person;”. (6) In Schedule 6 to that Act (registration)– (a) in paragraph 1(1) omit “or (b)”, and (b) in paragraph 3(7)(a) for “section 89(3)(b)” substitute “section 89(2)(b)”. 38 Immigration Services Commissioner: power of entry (1) After section 92 of the Immigration and Asylum Act 1999 (c 33) (offences: enforcement) insert– “92A Investigation of offence: power of entry (1) On an application made by the Commissioner a justice of the peace may issue a warrant authorising the Commissioner to enter and search premises. (2) A justice of the peace may issue a warrant in respect of premises only if satisfied that there are reasonable grounds for believing that– (a) an offence under section 91 has been committed, (b) there is material on the premises which is likely to be of substantial value (whether by itself or together with other material) to the investigation of the offence, and (c) any of the conditions specified in subsection (3) is satisfied. (3) Those conditions are– (a) that it is not practicable to communicate with a person entitled to grant entry to the premises,

The Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (b) that it is not practicable to communicate with a person entitled to grant access to the evidence, (c) that entry to the premises will be prevented unless a warrant is produced, and (d) that the purpose of a search may be frustrated or seriously prejudiced unless the Commissioner can secure immediate entry on arrival at the premises. (4) The Commissioner may seize and retain anything for which a search is authorised under this section. (5) A person commits an offence if without reasonable excuse he obstructs the Commissioner in the exercise of a power by virtue of this section. (6) A person guilty of an offence under subsection (5) shall be liable on summary conviction to– (a) imprisonment for a term not exceeding six months, (b) a fine not exceeding level 5 on the standard scale, or (c) both. (7) In this section– (a) a reference to the Commissioner includes a reference to a member of his staff authorised in writing by him, (b) a reference to premises includes a reference to premises used wholly or partly as a dwelling, and (c) a reference to material– (i) includes material subject to legal privilege within the meaning of the Police and Criminal Evidence Act 1984 (c 60), (ii) does not include excluded material or special procedure material within the meaning of that Act, and (iii) includes material whether or not it would be admissible in evidence at a trial. (8) In the application of this section to Scotland– (a) a reference to a justice of the peace shall be taken as a reference to the sheriff, (b) for sub-paragraph (i) of subsection (7)(c) there is substituted– ‘(i) includes material comprising items subject to legal privilege (as defined by section 412 of the Proceeds of Crime Act 2002 (c 29)),’ and (c) sub-paragraph (ii) of subsection (7)(c) shall be ignored. (9) In the application of this section to Northern Ireland the reference to the Police and Criminal Evidence Act 1984 shall be taken as a reference to the Police and Criminal Evidence (Northern Ireland) Order 1989 (SI 1989/1341 (NI 12)).” (2) In paragraph 7 of Schedule 5 to the Immigration and Asylum Act 1999 (c 33) (investigation of complaints, &c: power of entry)– (a) in sub-paragraph (1)(b) after “(b)” insert “, (c)”, (b) in sub-paragraph (1)(c) for “registered person.” substitute “registered or exempt person.”,

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A Guide to the Asylum and Immigration Act 2004 (c) in sub-paragraph (1A)(a) after “(b)” insert “, (c)”, (d) in sub-paragraph (1A)(b) for “registered person.” substitute “registered or exempt person.”, and (e) after sub-paragraph (8) insert– “(9) Sub-paragraphs (7) and (8) shall apply to an exempt person as they apply to a registered person, but with a reference to cancellation of registration being treated as a reference to withdrawal of exemption. (10) In this paragraph ‘exempt person’ means a person certified by the Commissioner as exempt under section 84(4)(a).” 39 Offence of advertising services After section 92A of the Immigration and Asylum Act 1999 (c 33) (inserted by section 38 above) insert– “92B Advertising (1) A person commits an offence if– (a) he offers to provide immigration advice or immigration services, and (b) provision by him of the advice or services would constitute an offence under section 91. (2) For the purpose of subsection (1) a person offers to provide advice or services if he– (a) makes an offer to a particular person or class of person, (b) makes arrangements for an advertisement in which he offers to provide advice or services, or (c) makes arrangements for an advertisement in which he is described or presented as competent to provide advice or services. (3) A person guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding level 4 on the standard scale. (4) Subsections (3) to (7) of section 91 shall have effect for the purposes of this section as they have effect for the purposes of that section. (5) An information relating to an offence under this section may in England and Wales be tried by a magistrates’ court if– (a) it is laid 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 laid– (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. (6) In Scotland, proceedings for an offence under this section may be commenced–

The Asylum and Immigration (Treatment of Claimants, etc) 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

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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

(5)

(6)

(7)

(8)

a process is not completed, of that part of the fee which is intended to reflect the matters specified in subsection (1)(b) or (3)(b). Provision included by virtue of subsection (4)– (a) may determine, or provide for the determination of, the amount to be refunded; (b) may confer a discretion on the Secretary of State or another person (whether in relation to determining the amount of a refund or in relation to determining whether a refund should be made). An instrument may not be made in reliance on this section unless the Secretary of State has consulted with such persons as appear to him to be appropriate. An instrument may not be made in reliance on this section unless a draft has been laid before and approved by resolution of each House of Parliament (and any provision making the instrument subject to annulment in pursuance of a resolution of either House of Parliament shall not apply). This section is without prejudice to the power to make an order under section 102 of the Finance (No 2) Act 1987 (c 51) (government fees and charges) in relation to a power under a provision specified in this section.

43 Transfer of leave stamps (1) Section 5 of the Immigration and Asylum Act 1999 (c 33) (charges) shall be amended as follows. (2) For subsection (1)(c) (transfer of indefinite leave stamp to new document) substitute– “(c) the fixing of a limited leave stamp or indefinite leave stamp on a passport or other document issued to the applicant where the stamp was previously fixed on another passport or document issued to the applicant.” (3) For subsection (5) substitute– “(5)In this section– (a) ‘limited leave stamp’ means a stamp, sticker or other attachment which indicates that a person has been granted limited leave to enter or remain in the United Kingdom, and (b) ‘indefinite leave stamp’ means a stamp, sticker or other attachment which indicates that a person has been granted indefinite leave to enter or remain in the United Kingdom.” GENERAL 44 Interpretation: “the Immigration Acts” (1) A reference to “the Immigration Acts” is to– (a) the Immigration Act 1971 (c 77), (b) the Immigration Act 1988 (c 14), (c) the Asylum and Immigration Appeals Act 1993 (c 23), (d) the Asylum and Immigration Act 1996 (c 49), (e) the Immigration and Asylum Act 1999, (f) the Nationality, Immigration and Asylum Act 2002 (c 41), and (g) this Act.

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A Guide to the Asylum and Immigration Act 2004 (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 (a) are awaiting determination by an adjudicator appointed, or treated as if appointed, under section 81 of the Nationality, Immigration and Asylum Act 2002 (c 41), (b) are awaiting determination by the Immigration Appeal Tribunal, (c) having been determined by an adjudicator could be brought before the Immigration Appeal Tribunal, (d) are awaiting the determination of a further appeal brought in accordance with section 103 of that Act, (e) having been determined by the Immigration Appeal Tribunal could be brought before another court by way of further appeal under that section, (f) are or could be made the subject of an application under section 101 of that Act (review of decision on permission to appeal to Tribunal), or (g) are or could be made the subject of another kind of application to the High Court or the Court of Session. (6) Provision made under subsection (5) may, in particular– (a) provide for the institution or continuance of an appeal of a kind not generally available after the commencement of section 26, (b) provide for the termination of proceedings, or (c) make any other provision that the Lord Chancellor thinks appropriate. 49 Extent (1) This Act extends (subject to subsection (2)) to– (a) England and Wales, (b) Scotland, and (c) Northern Ireland. (2) An amendment effected by this Act has the same extent as the enactment, or as the relevant part of the enactment, amended (ignoring extent by virtue of an Order in Council). (3) Her Majesty may by Order in Council direct that a provision of this Act is to extend, with or without modification or adaptation, to– (a) any of the Channel Islands; (b) the Isle of Man. 50 Short title This Act may be cited as the Asylum and Immigration (Treatment of Claimants, etc) Act 2004.

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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 (2) A Deputy President– (a) may act for the President if the President is unable to act or unavailable, and (b) shall perform such functions as the President may delegate or assign to him. Proceedings 6

The Tribunal shall sit at times and places determined by the Lord Chancellor.

7

(1) The jurisdiction of the Tribunal shall be exercised by such number of its members as the President, having regard to the complexity and other circumstances of particular cases or classes of case, may direct. (2) A direction under this paragraph– (a) may relate to the whole or part of specified proceedings or to the whole or part of proceedings of a specified kind, (b) may enable jurisdiction to be exercised by a single member, (c) may require or permit the transfer of the whole or part of proceedings– (i) from one member to another, (ii) from one group of members to another, (iii) from one member to a group of members, or (iv) from a group of members to one member, (d) may be varied or revoked by a further direction, and (e) is subject to rules under section 106.

8

(1) The President may make arrangements for the allocation of proceedings to members of the Tribunal. (2) Arrangements under this paragraph– (a) may permit allocation by the President or another member of the Tribunal, (b) may permit the allocation of a case to a specified member or to a specified class of member, (c) may include provision for transfer, and (d) are subject to rules under section 106. Staff

9

The Lord Chancellor may appoint staff for the Tribunal. Money

10 The Lord Chancellor– (a) may pay remuneration and allowances to members of the Tribunal, (b) may pay remuneration and allowances to staff of the Tribunal, and (c) may defray expenses of the Tribunal. 11 The Lord Chancellor may pay compensation to a person who ceases to be a member of the Tribunal if the Lord Chancellor thinks it appropriate because of special circumstances.”

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A Guide to the Asylum and Immigration Act 2004 SCHEDULE 2 Section 26 ASYLUM AND IMMIGRATION TRIBUNAL: AMENDMENTS AND TRANSITIONAL PROVISION

CONSEQUENTIAL

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 subparagraph (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 (g) for “before an adjudicator or before the Tribunal” substitute “before the Tribunal”. (6) In paragraph 33– (a) in sub-paragraph (2)(a) for “before an adjudicator” substitute “before the Tribunal”, (b) in sub-paragraph (2)(b) for “before that adjudicator or before the Tribunal, as the case may be” substitute “before it”, and (c) in sub-paragraph (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”. House of Commons Disqualification Act 1975 (c 24) 2

(1) Schedule 1 to the House of Commons Disqualification Act 1975 (disqualifying offices) shall be amended as follows. (2) In Part II for the entry relating to the Immigration Appeal Tribunal substitute– “The Asylum and Immigration Tribunal.” (3) In Part III omit the entry relating to immigration adjudicators.

Northern Ireland Assembly Disqualification Act 1975 (c 25) 3

(1) Schedule 1 to the Northern Ireland Assembly Disqualification Act 1975 (disqualifying offices) shall be amended as follows. (2) In Part II for the entry relating to the Immigration Appeal Tribunal substitute– “The Asylum and Immigration Tribunal.” (3) In Part III omit the entry relating to immigration adjudicators.

British Nationality Act 1981 (c 61) 4

In section 40A of the British Nationality Act 1981 (deprivation of citizenship: appeal)– (a) in subsection (1) for “an adjudicator appointed under section 81 of the Nationality, Immigration and Asylum Act 2002 (immigration appeal)” substitute “the Asylum and Immigration Tribunal”, (b) for subsections (3) to (5) substitute– ”(3)The following provisions of the Nationality, Immigration and Asylum Act 2002 (c 41) shall apply in relation to an appeal under this section as they apply in relation to an appeal under section 82 or 83 of that Act– (a) section 87 (successful appeal: direction) (for which purpose a direction may, in particular, provide for an order under section 40 above to be treated as having had no effect), (b) sections 103A to 103E (review and appeal), (c) section 106 (rules), and (d) section 107 (practice directions).”, and (c) omit subsections (6) to (8).

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A Guide to the Asylum and Immigration Act 2004 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 (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;”.

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A Guide to the Asylum and Immigration Act 2004 Nationality, Immigration and Asylum Act 2002 (c 41) 16 The Nationality, Immigration and Asylum Act 2002 shall be amended as follows. 17 In section 72(10) (serious criminal) omit “adjudicator,”. 18 (1) In the provisions listed in sub-paragraph (2)– (a) for “an adjudicator” substitute “the Tribunal”, (b) for “the adjudicator” substitute “the Tribunal”, (c) for “he” in relation to an adjudicator substitute “it”, (d) for “him” in relation to an adjudicator substitute “it”, and (e) for “his” in relation to an adjudicator substitute “its”. (2) The provisions are– (a) section 85 (matters to be considered), (b) section 86 (determination of appeal), and (c) section 87 (successful appeal: direction). 19 In section 87– (a) for subsection (3) substitute– “(3)But a direction under this section shall not have effect while– (a) an application under section 103A(1) (other than an application out of time with permission) could be made or is awaiting determination, (b) reconsideration of an appeal has been ordered under section 103A(1) and has not been completed, (c) an appeal has been remitted to the Tribunal and is awaiting determination, (d) an application under section 103B or 103E for permission to appeal (other than an application out of time with permission) could be made or is awaiting determination, (e) an appeal under section 103B or 103E is awaiting determination, or (f) a reference under section 103C is awaiting determination.”, and (b) in subsection (4) for “as part of the determination of the appeal for the purposes of section 101” substitute “as part of the Tribunal’s decision on the appeal for the purposes of section 103A”. 20 In section 104 (pending appeal)– (a) for subsection (2) substitute– ”(2)An appeal under section 82(1) is not finally determined for the purposes of subsection (1)(b) while – (a) an application under section 103A(1) (other than an application out of time with permission) could be made or is awaiting determination, (b) reconsideration of an appeal has been ordered under section 103A(1) and has not been completed, (c) an appeal has been remitted to the Tribunal and is awaiting determination,

The Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (d) an application under section 103B or 103E for permission to appeal (other than an application out of time with permission) could be made or is awaiting determination, (e) an appeal under section 103B or 103E is awaiting determination, or (f) a reference under section 103C is awaiting determination.”, and (b) omit subsection (3) (remittal to adjudicator). 21 In section 106 (rules)– (a) in subsection (1)(a) for “, 83 or 101” substitute “or 83 or by virtue of section 109”, (b) in subsection (1)(b) for “, 83, 101(1) or 103” substitute “or 83 or by virtue of section 109”, (c) after subsection (1) insert– ”(1A) In making rules under subsection (1) the Lord Chancellor shall aim to ensure– (a) that the rules are designed to ensure that proceedings before the Tribunal are handled as fairly, quickly and efficiently as possible, and (b) that the rules where appropriate confer on members of the Tribunal responsibility for ensuring that proceedings before the Tribunal are handled as fairly, quickly and efficiently as possible.”, (d) in subsection (2)(d) for “an adjudicator or the Immigration Appeal Tribunal” substitute “the Tribunal”, (e) in subsection (2)(e) and (f) omit “an adjudicator or”, (f) in subsection (2)(g) for “an adjudicator” substitute, in each place, “the Tribunal”, (g) in subsection (2)(h) for “an adjudicator” substitute, in each place, “the Tribunal”, (h) omit subsection (2)(j) and (k), (i) in subsection (2)(m) omit the words from “(which may” to the end, (j) in subsection (2)(o) omit “an adjudicator or”, (k) in subsection (2)(p) omit “an adjudicator or”, (l) in subsection (2)(q) omit “an adjudicator or”, (m) in subsection (2)(r) omit “an adjudicator or”, (n) in subsection (2)(s) omit “an adjudicator or”, (o) after subsection (2)(s) insert– “(t) may make provision about the number of members exercising the Tribunal’s jurisdiction; (u) may make provision about the allocation of proceedings among members of the Tribunal (which may include provision for transfer); (v) may make provision about reconsideration of a decision pursuant to an order under section 103A(1) (which may, in particular, include provision about the action that may be taken on reconsideration and about the matters and evidence to which the Tribunal may have regard);

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(p) (q) (r) (s)

(t)

(w) shall provide that a party to an appeal is to be treated as having received notice of the Tribunal’s decision, unless the contrary is shown, at such time as may be specified in, or determined in accordance with, the rules; (x) may make provision about proceedings under paragraph 30 of Schedule 2 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (transitional filter of applications for reconsideration from High Court to Tribunal) (and may, in particular, make provision of a kind that may be made by rules of court under section 103A(5)(b)); (y) may make provision about the form and content of decisions of the Tribunal.”, in subsection (3)(a) omit “an adjudicator or”, in subsection (3)(d) omit “an adjudicator or”, in subsection (3)(e) omit “an adjudicator or”, for subsection (3)(f) substitute– “(f) may enable the Tribunal to certify that an appeal had no merit (and shall make provision for the consequences of the issue of a certificate).”, and in subsection (4) omit “an adjudicator or”.

22 (1) In section 107 (practice directions)– (a) for “the Immigration Appeal Tribunal” substitute “the Tribunal”, (b) omit subsection (2), and (c) at the end add– ”(3) A practice direction may, in particular, require the Tribunal to treat a specified decision of the Tribunal as authoritative in respect of a particular matter.” (2) The reference to a decision of the Tribunal in section 107(3) (as added by sub-paragraph (1) above) shall be treated as including a reference to a decision of the Immigration Appeal Tribunal. 23 In section 108 (forged document: proceedings in private)– (a) in subsection (1)(a) for “, 83 or 101” substitute “or 83”, and (b) in subsection (2) for “The adjudicator or the Immigration Appeal Tribunal” substitute “The Tribunal”. 24 (1) Section 112 (regulations, &c) shall be amended as follows. (2) In subsection (2) after “Regulations and rules under this Part” insert “, other than regulations under section 103D(4),”. (3) For subsection (6) substitute– ”(6)Regulations under section 103D(4)– (a) must 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. (7) An order under paragraph 4 of Schedule 4– (a) may include consequential or incidental provision (which may include provision amending, or providing for the construction of,

The Asylum and Immigration (Treatment of Claimants, etc) Act 2004 a reference in an enactment, instrument or other document to a member of the Asylum and Immigration Tribunal), (b) must be made by statutory instrument, and (c) shall be subject to annulment in pursuance of a resolution of either House of Parliament.” Access to Justice (Northern Ireland) Order 2003 (SI 2003/435 (NI 10)) 25 (1) For paragraph 2(i) of Schedule 2 to the Access to Justice (Northern Ireland) Order 2003 (civil legal services: excluded services) substitute– “(i) 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. PART 2 TRANSITIONAL PROVISION 26 In this Part “commencement” means the coming into force of section 26. 27 A person who immediately before commencement is, or is to be treated as, an adjudicator appointed under section 81 of the Nationality, Immigration and Asylum Act 2002 (c 41) (appeals) (as it has effect before commencement) shall be treated as having been appointed as a member of the Asylum and Immigration Tribunal under paragraph 1 of Schedule 4 to that Act (as it has effect after commencement) immediately after commencement. 28 Where immediately before commencement a person is a member of the Immigration Appeal Tribunal– (a) he shall be treated as having been appointed as a member of the Asylum and Immigration Tribunal under paragraph 1 of Schedule 4 to that Act immediately after commencement, and (b) if he was a legally qualified member of the Immigration Appeal Tribunal (within the meaning of Schedule 5 to that Act) he shall be treated as having been appointed as a legally qualified member of the Asylum and Immigration Tribunal. 29 A person who immediately before commencement is a member of staff of adjudicators appointed or treated as appointed under section 81 of the Nationality, Immigration and Asylum Act 2002 (c 41) or of the Immigration Appeal Tribunal shall be treated as having been appointed as a member of the staff of the Asylum and Immigration Tribunal under paragraph 9 of Schedule 4 to the Nationality, Immigration and Asylum Act 2002 immediately after commencement. 30 (1) This paragraph shall have effect in relation to applications under section 103A(1) or for permission under section 103A(4)(b) made– (a) during the period beginning with commencement and ending with such date as may be appointed by order of the Lord Chancellor, and (b) during any such later period as may be appointed by order of the Lord Chancellor. (2) An application in relation to which this paragraph has effect shall be considered by a member of the Asylum and Immigration Tribunal (in accordance with arrangements under paragraph 8(1) of Schedule 4 to the

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A Guide to the Asylum and Immigration Act 2004 Nationality, Immigration and Asylum Act 2002 (inserted by Schedule 1 above)). (3) For the purposes of sub-paragraph (2)– (a) references in section 103A to the appropriate court shall be taken as references to the member of the Tribunal who is considering the application or who is to consider the application, (b) rules of court made for the purpose of section 103A(4)(a) in relation to the court to which an application is made shall have effect in relation to the application despite the fact that it is considered outside the appropriate court, and (c) section 103A(6) shall be subject to sub-paragraph (5) below. (4) Where a member of the Tribunal considers an application under section 103A(1) or 103A(4)(b) by virtue of this paragraph– (a) he may make an order under section 103A(1) or grant permission under section 103A(4)(b), and (b) if he does not propose to make an order or grant permission, he shall notify the appropriate court and the applicant. (5) Where notice is given under sub-paragraph (4)(b)– (a) the applicant may notify the appropriate court that he wishes the court to consider his application under section 103A(1) or 103A(4)(b), (b) the notification must be given within the period of 5 days beginning with the date on which the applicant is treated, in accordance with rules under section 106 of the Nationality, Immigration and Asylum Act 2002, as receiving the notice under sub-paragraph (4)(b) above, and (c) the appropriate court shall consider the application under section 103A(1) or 103A(4)(b) if– (i) the applicant has given notice in accordance with paragraphs (a) and (b) above, or (ii) the applicant has given notice under paragraph (a) above outside the period specified in paragraph (b) above, but the appropriate court concludes that the application should be considered on the grounds that the notice could not reasonably practicably have been given within that period. (6) Rules of court may specify days to be disregarded in applying subparagraph (5)(b). (7) A member of the Tribunal considering an application under section 103A(1) by virtue of this paragraph may not make a reference under section 103C. (8) An order under sub-paragraph (1)(a) or (b)– (a) shall be made by statutory instrument, (b) shall not be made unless the Lord Chancellor has consulted such persons as he thinks appropriate, and (c) shall not be made unless a draft has been laid before and approved by resolution of each House of Parliament.

The Asylum and Immigration (Treatment of Claimants, etc) 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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A Guide to the Asylum and Immigration Act 2004 (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–


6

(a) 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, or (b) a human rights claim in so far as it asserts that to remove the person to a specified State to which this Part applies would be unlawful under section 6 of the Human Rights Act 1998 because of the possibility of removal from that State to another State. (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 to which this sub-paragraph applies if the Secretary of State certifies that the claim is clearly unfounded; and the Secretary of State shall certify a human rights claim to which this sub-paragraph applies unless satisfied that the claim is not clearly unfounded. (5) Sub-paragraph (4) applies to a human rights claim if, or in so far as, it asserts a matter other than that specified in sub-paragraph (3)(b). 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, (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.

PART 3 SECOND LIST OF SAFE COUNTRIES (REFUGEE CONVENTION AND HUMAN RIGHTS (2)) 7

(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.

8

(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. (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.

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A Guide to the Asylum and Immigration Act 2004 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.


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(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–

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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 SCHEDULE 4 Section 47 REPEALS Short title and chapter

Extent of repeal

Immigration Act 1971 (c 77)

In Schedule 2– (a) in paragraph 29(3), the words from “and where an adjudicator dismisses” to the end, and (b) paragraph 29(4).

House of Commons Disqualification Act 1975 (c 24)

In Part III of Schedule 1, the entry relating to immigration adjudicators.

Northern Ireland Assembly Disqualification Act 1975 (c 25)

In Part III of Schedule 1, the entry relating to immigration adjudicators.

British Nationality Act 1981 (c 61)

Section 40A(6) to (8).

Tribunals and Inquiries Act 1992 (c 53)

Section 7(3).

Asylum and Immigration Appeals Act 1993 (c 23)

Section 9A.

Asylum and Immigration Act 1996 (c 49)

Section 8(9).

Immigration and Asylum Act 1999 (c 33)

Sections 11 and 12. In section 72(10), “adjudicator”. In section 85(1), “and (b)”. Section 87(3)(f). Section 123. In Schedule 6, in paragraph 1(1), “or (b)”.

State Pension Credit Act 2002 (c 16)

In Schedule 2, paragraph 42.

Tax Credits Act 2002 (c 21)


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A Guide to the Asylum and Immigration Act 2004 Nationality, Immigration and Asylum Act 2002 (c 41)

Section 52. Section 80. Section 87(4). Section 93. Section 94(4)(a) to (j). Sections 100 to 103. Section 104(3). In section 106– (a) in subsection (2)(e) and (f), “an adjudicator or”, (b) subsection (2)(j) and (k), (c) in subsection (2)(m), the words from “(which may” to the end, and (d) in subsections (2)(o), (p), (q), (r) and (s), (3)(a), (d), (e) and (4), “an adjudicator or”. Section 107(2). Schedule 5.

State Pension Credit Act (Northern Ireland) 2002 (c 14 (NI))


THE ASYLUM AND IMMIGRATION TRIBUNAL (PROCEDURE) RULES 2005 STATUTORY INSTRUMENT 2005 NO 230 (L1) 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;

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A Guide to the Asylum and Immigration Act 2004 “President” means the President of the Tribunal; “relevant decision” means a decision against which there is an exercisable right of appeal to the Tribunal; “respondent” means the decision maker specified in the notice of decision against which a notice of appeal has been given; “section 103A” means section 103A of the 2002 Act (Review of Tribunal’s decision) and “section 103A application” means an application under section 103A; “Tribunal” means the Asylum and Immigration Tribunal; “United Kingdom Representative” means the United Kingdom Representative of the United Nations High Commissioner for Refugees. Scope of these Rules 3

(1) These Rules apply to the following proceedings – (a) appeals to the Tribunal; (b) section 103A applications which are considered by a member of the Tribunal in accordance with paragraph 30 of Schedule 2 to the 2004 Act; (c) reconsideration of appeals by the Tribunal; (d) applications to the Tribunal for permission to appeal to the Court of Appeal, the Court of Session, or the Court of Appeal in Northern Ireland; and (e) applications to the Tribunal for bail. (2) These Rules apply subject to any other Rules made under section 106 of the 2002 Act which apply to specific classes of proceedings.

Overriding objective 4

The overriding objective of these Rules is to secure that proceedings before the Tribunal are handled as fairly, quickly and efficiently as possible; and, where appropriate, that members of the Tribunal have responsibility for ensuring this, in the interests of the parties to the proceedings and in the wider public interest.

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 –

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(a) in accordance with paragraph (2); or (b) by serving it on the person having custody of him. (4) A person who is outside the United Kingdom and wishes to appeal against a decision of an entry clearance officer may give notice of appeal either – (a) in accordance with paragraph (2); or (b) by serving it on the entry clearance officer. (5) Where a notice of appeal is served on a custodian under paragraph (3)(b), that person must – (a) endorse on the notice the date that it is served on him; and (b) forward it to the Tribunal within 2 days. (6) Where a notice of appeal is served on an entry clearance officer under paragraph (4)(b), the officer must – (a) endorse on the notice the date that it is served on him; (b) forward it to the Tribunal as soon as reasonably practicable, and in any event within 10 days; and (c) if it is practicable to do so within the time limit in sub-paragraph (b), send to the Tribunal with the notice of appeal a copy of the documents listed in rule 13(1). Time limit for appeal 7

(1) A notice of appeal by a person who is in the United Kingdom must be given – (a) if the person is in detention under the Immigration Acts when he is served with notice of the decision against which he is appealing, not later than 5 days after he is served with that notice; and (b) in any other case, not later than 10 days after he is served with notice of the decision. (2) A notice of appeal by a person who is outside the United Kingdom must be given – (a) if the person – (i) was in the United Kingdom when the decision against which he is appealing was made; and (ii) may not appeal while he is the United Kingdom by reason of a provision of the 2002 Act, not later than 28 days after his departure from the United Kingdom; or (b) in any other case, not later than 28 days after he is served with notice of the decision. (3) Where a person – (a) is served with notice of a decision to reject an asylum claim; and (b) on the date of being served with that notice does not satisfy the condition in section 83(1)(b) of the 2002 Act, but later satisfies that condition, paragraphs (1) and (2)(b) apply with the modification that the time for giving notice of appeal under section 83(2) runs from the date on which the person is served with notice of the decision to grant him leave to enter or remain in the United Kingdom by which he satisfies the condition in section 83(1)(b).

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A Guide to the Asylum and Immigration Act 2004 Form and contents of notice of appeal 8

(1) The notice of appeal must be in the appropriate prescribed form and must – (a) state the name and address of the appellant; and (b) state whether the appellant has authorised a representative to act for him in the appeal and, if so, give the representative’s name and address; (c) set out the grounds for the appeal; (d) give reasons in support of those grounds; and (e) so far as reasonably practicable, list any documents which the appellant intends to rely upon as evidence in support of the appeal. (2) The notice of appeal must if reasonably practicable be accompanied by the notice of decision against which the appellant is appealing, or a copy of it. (3) The notice of appeal must be signed by the appellant or his representative, and dated. (4) If a notice of appeal is signed by the appellant’s representative, the representative must certify in the notice of appeal that he has completed it in accordance with the appellant’s instructions.

Rejection of invalid notice of appeal 9

(1) Where – (a) a person has given a notice of appeal to the Tribunal; and (b) there is no relevant decision, the Tribunal shall not accept the notice of appeal. (2) Where the Tribunal does not accept a notice of appeal, it must – (a) notify the person giving the notice of appeal and the respondent; and (b) take no further action.

Late notice of appeal 10 (1) If a notice of appeal is given outside the applicable time limit, it must include an application for an extension of time for appealing, which must – (a) include a statement of the reasons for failing to give the notice within that period; and (b) be accompanied by any written evidence relied upon in support of those reasons. (2) If a notice of appeal appears to the Tribunal to have been given outside the applicable time limit but does not include an application for an extension of time, unless the Tribunal extends the time for appealing of its own initiative, it must notify the person giving notice of appeal in writing that it proposes to treat the notice of appeal as being out of time. (3) Where the Tribunal gives notification under paragraph (2), if the person giving notice of appeal contends that – (a) the notice of appeal was given in time, or (b) there were special circumstances for failing to give the notice of appeal in time which could not reasonably have been stated in the notice of appeal,


(4)

(5)

(6)

(7) (8)

(9)

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he may file with the Tribunal written evidence in support of that contention. Written evidence under paragraph (3) must be filed – (a) if the person giving notice of appeal is in the United Kingdom, not later than 3 days; or (b) if the person giving notice of appeal is outside the United Kingdom, not later than 10 days, after notification is given under paragraph (2). Where the notice of appeal was given out of time, the Tribunal may extend the time for appealing if satisfied that by reason of special circumstances it would be unjust not to do so. The Tribunal must decide any issue as to whether a notice of appeal was given in time, or whether to extend the time for appealing, as a preliminary decision without a hearing, and in doing so may only take account of – (a) the matters stated in the notice of appeal; (b) any evidence filed by the person giving notice of appeal in accordance with paragraph (1) or (3); and (c) any other relevant matters of fact within the knowledge of the Tribunal. Subject to paragraphs (8) and (9), the Tribunal must serve written notice of any decision under this rule on the parties. Where – (a) a notice of appeal under section 82 of the 2002 Act which relates in whole or in part to an asylum claim was given out of time; (b) the person giving notice of appeal is in the United Kingdom; and (c) the Tribunal refuses to extend the time for appealing, the Tribunal must serve written notice of its decision on the respondent, which must – (i) serve the notice of decision on the person giving notice of appeal not later than 28 days after receiving it from the Tribunal; and (ii) as soon as practicable after serving the notice of decision, notify the Tribunal on what date and by what means it was served. Where paragraph (8) applies, if the respondent does not give the Tribunal notification under sub-paragraph (ii) within 29 days after the Tribunal serves the notice of decision on it, the Tribunal must serve the notice of decision on the person giving notice of appeal as soon as reasonably practicable thereafter.

Special provisions for imminent removal cases 11 (1) This rule applies in any case in which the respondent notifies the Tribunal that removal directions have been issued against a person who has given notice of appeal, pursuant to which it is proposed to remove him from the United Kingdom within 5 calendar days of the date on which the notice of appeal was given. (2) The Tribunal must, if reasonably practicable, make any preliminary decision under rule 10 before the date and time proposed for his removal.

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A Guide to the Asylum and Immigration Act 2004 (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.


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Variation of grounds of appeal 14 Subject to section 85(2) of the 2002 Act, the appellant may vary his grounds of appeal only with the permission of the Tribunal. Method of determining appeal 15 (1) Every appeal must be considered by the Tribunal at a hearing, except where – (a) the appeal – (i) lapses pursuant to section 99 of the 2002 Act; (ii) is treated as abandoned pursuant to section 104(4) of the 2002 Act; (iii) is treated as finally determined pursuant to section 104(5) of the 2002 Act; or (iv) is withdrawn by the appellant or treated as withdrawn in accordance with rule 17; (b) paragraph (2) of this rule applies; or (c) any other provision of these Rules or of any other enactment permits or requires the Tribunal to dispose of an appeal without a hearing. (2) The Tribunal may determine an appeal without a hearing if – (a) all the parties to the appeal consent; (b) the appellant is outside the United Kingdom or it is impracticable to give him notice of a hearing and, in either case, he is unrepresented; (c) a party has failed to comply with a provision of these Rules or a direction of the Tribunal, and the Tribunal is satisfied that in all the circumstances, including the extent of the failure and any reasons for it, it is appropriate to determine the appeal without a hearing; or (d) subject to paragraph (3), the Tribunal is satisfied, having regard to the material before it and the nature of the issues raised, that the appeal can be justly determined without a hearing. (3) Where paragraph (2)(d) applies, the Tribunal must not determine the appeal without a hearing without first giving the parties notice of its intention to do so, and an opportunity to make written representations as to whether there should be a hearing. Certification of pending appeal 16 (1) If the Secretary of State or an immigration officer issues a certificate under section 97 or 98 of the 2002 Act which relates to a pending appeal, he must file notice of the certification with the Tribunal. (2) Where a notice of certification is filed under paragraph (1), the Tribunal must – (a) notify the parties; and (b) take no further action in relation to the appeal. Withdrawal of appeal 17 (1) An appellant may withdraw an appeal – (a) orally, at a hearing; or (b) at any time, by filing written notice with the Tribunal.

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A Guide to the Asylum and Immigration Act 2004 (2) An appeal shall be treated as withdrawn if the respondent notifies the Tribunal that the decision (or, where the appeal relates to more than one decision, all of the decisions) to which the appeal relates has been withdrawn. (3) If an appeal is withdrawn or treated as withdrawn, the Tribunal must serve on the parties a notice that the appeal has been recorded as having been withdrawn. Abandonment of appeal 18 (1) Any party to a pending appeal must notify the Tribunal if they are aware that an event specified in – (a) section 104(4) or (5) of the 2002 Act; or (b) regulation 33(1A) of the Immigration (European Economic Area) Regulations 2000 (“the 2000 Regulations”), has taken place. (2) Where an appeal is treated as abandoned pursuant to section 104(4) of the 2002 Act or regulation 33(1A) of the 2000 Regulations, or finally determined pursuant to section 104(5) of the 2002 Act, the Tribunal must – (a) serve on the parties a notice informing them that the appeal is being treated as abandoned or finally determined; and (b) take no further action in relation to the appeal. Hearing appeal in absence of a party 19 (1) The Tribunal must hear an appeal in the absence of a party or his representative, if satisfied that the party or his representative – (a) has been given notice of the date, time and place of the hearing, and (b) has given no satisfactory explanation for his absence. (2) Where paragraph (1) does not apply, the Tribunal may hear an appeal in the absence of a party if satisfied that – (a) a representative of the party is present at the hearing; (b) the party is outside the United Kingdom; (c) the party is suffering from a communicable disease or there is a risk of him behaving in a violent or disorderly manner; (d) the party is unable to attend the hearing because of illness, accident or some other good reason; (e) the party is unrepresented and it is impracticable to give him notice of the hearing; or (f) the party has notified the Tribunal that he does not wish to attend the hearing. Hearing two or more appeals together 20 Where two or more appeals are pending at the same time, the Tribunal may direct them to be heard together if it appears that – (a) some common question of law or fact arises in each of them; (b) they relate to decisions or action taken in respect of persons who are members of the same family; or (c) for some other reason it is desirable for the appeals to be heard together.


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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

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A Guide to the Asylum and Immigration Act 2004 (ii) if the Tribunal makes a preliminary decision under rule 10 (late notice of appeal), the date on which notice of that decision is served on the appellant; and (b) where an appeal is to be determined without a hearing, the Tribunal must determine it not more than 28 days after the later of those dates. (3) If the respondent does not file the documents specified in rule 13(1) within the time specified in rule 13 or directions given under that rule – (a) paragraph (2) does not apply; and (b) the Tribunal may vary any hearing date that it has already fixed in accordance with paragraph (2)(a), if it is satisfied that it would be unfair to the appellant to proceed with the hearing on the date fixed. (4) The Tribunal must serve its determination on the respondent – (a) if the appeal is considered at a hearing, by sending it not later than 10 days after the hearing finishes; or (b) if the appeal is determined without a hearing, by sending it not later than 10 days after it is determined. (5) The respondent must – (a) serve the determination on the appellant – (i) if the respondent makes a section 103A application or applies for permission to appeal under section 103B or 103E of the 2002 Act, by sending, delivering or personally serving the determination not later than the date on which it makes that application; and (ii) otherwise, not later than 28 days after receiving the determination from the Tribunal; and (b) as soon as practicable after serving the determination, notify the Tribunal on what date and by what means it was served. (6) If the respondent does not give the Tribunal notification under paragraph (5)(b) within 29 days after the Tribunal serves the determination on it, the Tribunal must serve the determination on the appellant as soon as reasonably practicable thereafter. (7) In paragraph (2) of this rule, references to a hearing do not include a case management review hearing or other preliminary hearing.

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


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(b) remittal by the appropriate appellate court under section 103B(4)(c), 103C(2)(c) or 103E(4)(c) of the 2002 Act. (3) Section 3 of this Part applies to applications for permission to appeal to the appropriate appellate court.

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.

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A Guide to the Asylum and Immigration Act 2004 (2) Where an immigration judge makes an order for reconsideration – (a) his notice of decision must state the grounds on which the Tribunal is ordered to reconsider its decision on the appeal; and (b) he may give directions for the reconsideration of the decision on the appeal which may – (i) provide for any of the matters set out in rule 45(4) which he considers appropriate to such reconsideration; and (ii) specify the number or class of members of the Tribunal to whom the reconsideration shall be allocated. (3) The Tribunal must, except in cases to which paragraph (5) applies – (a) serve a copy of the notice of decision and any directions on every party to the appeal to the Tribunal; and (b) where the immigration judge makes an order for reconsideration, serve on the party to the appeal other than the party who made the section 103A application a copy of the application notice and any documents which were attached to it. (4) Paragraph (5) applies to reviews of 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. (5) In cases to which this paragraph applies – (a) the Tribunal must send to the respondent to the appeal – (i) the notice of decision, (ii) any directions, and (iii) the application notice and any documents which were attached to it (unless the respondent to the appeal made the application for reconsideration); (b) the respondent must serve on the appellant – (i) the notice of decision and any directions; and (ii) the application notice and any documents which were attached to it (unless the appellant made the application for reconsideration), not later than 28 days after receiving them from the Tribunal; (c) the respondent must, as soon as practicable after serving the documents mentioned in sub-paragraph (b), notify the Tribunal on what date and by what means they were served; and (d) if the respondent does not give the Tribunal notification under subparagraph (c) within 29 days after the Tribunal serves the notice of decision on it, the Tribunal must serve the documents mentioned in sub-paragraph (b) on the appellant as soon as reasonably practicable thereafter. Sending notice of decision to the appropriate court 28 The Tribunal must send to the appropriate court copies of – (a) the notice of decision; and (b) the application notice and any documents which were attached to it, upon being requested to do so by the appropriate court.


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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.

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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.


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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.

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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.


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(4) Where bail is granted, the notice must include – (a) the conditions of bail; and (b) the amount in which the applicant and any sureties are to be bound. (5) Where bail is refused, the notice must include reasons for the refusal. Recognizances 40 (1) The recognizance of an applicant or a surety must be in writing and must state – (a) the amount in which he agrees to be bound; and (b) that he has read and understood the bail decision and that he agrees to pay that amount of money if the applicant fails to comply with the conditions set out in the bail decision. (2) The recognizance must be – (a) signed by the applicant or surety; and (b) filed with the Tribunal. Release of applicant 41 The person having custody of the applicant must release him upon – (a) being served with a copy of the decision to grant bail; and (b) being satisfied that any recognizances required as a condition of that decision have been entered into. Application of this Part to Scotland 42 This Part applies to Scotland with the following modifications – (a) in rule 38, for paragraph (2)(f) and (g) substitute – “(f) the amount, if any, to be deposited if bail is granted; (g) the full names, addresses and occupations of any persons offering to act as cautioners if the application for bail is granted;”; (b) in rule 39, for paragraph (4)(b) substitute – “(b)the amount (if any) to be deposited by the applicant and any cautioners.”; (c) rule 40 does not apply; and (d) in rule 41, for sub-paragraph (b) substitute – “(b)being satisfied that the amount to be deposited, if any, has been deposited.”.

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.

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A Guide to the Asylum and Immigration Act 2004 Constitution of the Tribunal 44 (1) The Tribunal shall be under no duty to consider any representations by a party about the number or class of members of the Tribunal which should exercise the jurisdiction of the Tribunal. (2) Where the President directs that the Tribunal’s jurisdiction shall be exercised by more than one member, unless the President’s direction specifies otherwise a single immigration judge may – (a) conduct a case management review hearing; (b) give directions to the parties; and (c) deal with any other matter preliminary or incidental to the hearing of an appeal or application. Directions 45 (1) The Tribunal may give directions to the parties relating to the conduct of any appeal or application. (2) The power to give directions is to be exercised subject to any specific provision of these Rules. (3) Directions must be given orally or in writing to every party. (4) Directions of the Tribunal may, in particular – (a) relate to any matter concerning the preparation for a hearing; (b) specify the length of time allowed for anything to be done; (c) vary any time limit in these Rules or in directions previously given by the Tribunal for anything to be done by a party; (d) provide for – (i) a particular matter to be dealt with as a preliminary issue; (ii) a case management review hearing to be held; (iii) a party to provide further details of his case, or any other information which appears to be necessary for the determination of the appeal; (iv) the witnesses, if any, to be heard; (v) the manner in which any evidence is to be given (for example, by directing that witness statements are to stand as evidence in chief); (e) require any party to file and serve – (i) statements of the evidence which will be called at the hearing; (ii) a paginated and indexed bundle of all the documents which will be relied on at the hearing; (iii) a skeleton argument which summarises succinctly the submissions which will be made at the hearing and cites all the authorities which will be relied on, identifying any particular passages to be relied on; (iv) a time estimate for the hearing; (v) a list of witnesses whom any party wishes to call to give evidence; (vi) a chronology of events; and


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(vii)details of whether an interpreter will be required at the hearing, and in respect of what language and dialect; (f) limit – (i) the number or length of documents upon which a party may rely at a hearing; (ii) the length of oral submissions; (iii) the time allowed for the examination and cross-examination of witnesses; and (iv) the issues which are to be addressed at a hearing; and (g) require the parties to take any steps to enable two or more appeals to be heard together under rule 20; (h) provide for a hearing to be conducted or evidence given or representations made by video link or by other electronic means; and (i) make provision to secure the anonymity of a party or a witness. (5) The Tribunal must not direct an unrepresented party to do something unless it is satisfied that he is able to comply with the direction. (6) The President may direct that, in individual cases or in such classes of case as he shall specify, any time period in these Rules for the Tribunal to do anything shall be extended by such period as he shall specify. Notification of hearings 46 (1) When the Tribunal fixes a hearing it must serve notice of the date, time and place of the hearing on every party. (2) The Tribunal may vary the date of a hearing, but must serve notice of the new date, time and place of the hearing on every party. Adjournment 47 Subject to any provision of these Rules, the Tribunal may adjourn any hearing. Representation 48 (1) An appellant or applicant for bail may act in person or be represented by any person not prohibited from representing him by section 84 of the Immigration and Asylum Act 1999. (2) A respondent to an appeal, the Secretary of State or the United Kingdom Representative may be represented by any person authorised to act on his behalf. (3) If a party to whom paragraph (1) applies is represented by a person not permitted by that paragraph to represent him, any determination given or other step taken by the Tribunal in the proceedings shall nevertheless be valid. (4) Where a representative begins to act for a party, he must immediately notify the Tribunal and the other party of that fact. (5) Where a representative is acting for a party, he may on behalf of that party do anything that these Rules require or permit that party to do. (6) Where a representative is acting for an appellant, the appellant is under a duty – (a) to maintain contact with his representative until the appeal is finally determined; and (b) to notify the representative of any change of address.

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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


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evidence which is not filed or served in accordance with those directions unless satisfied that there are good reasons to do so. (5) Where a party seeks to rely upon a copy of a document as evidence, the Tribunal may require the original document to be produced. (6) In an appeal to which section 85(5) of the 2002 Act applies, the Tribunal must only consider evidence relating to matters which it is not prevented by that section from considering. (7) Subject to section 108 of the 2002 Act, the Tribunal must not take account of any evidence that has not been made available to all the parties. Language of documents 52 (1) Subject to paragraph (2) – (a) any notice of appeal or application notice filed with the Tribunal must be completed in English; and (b) any other document filed with the Tribunal must be in English, or accompanied by a translation into English signed by the translator to certify that the translation is accurate. (2) In proceedings in or having a connection with Wales, a document may be filed with the Tribunal in Welsh. (3) The Tribunal shall be under no duty to consider a document which is not in English (or, where paragraph (2) applies, in Welsh), or accompanied by a certified translation. Burden of proof 53 (1) If an appellant asserts that a relevant decision ought not to have been taken against him on the ground that the statutory provision under which that decision was taken does not apply to him, it is for that party to prove that the provision does not apply to him. (2) If – (a) an appellant asserts any fact; and (b) by virtue of an Act, statutory instrument or immigration rules, if he had made such an assertion to the Secretary of State, an immigration officer or an entry clearance officer, it would have been for him to satisfy the Secretary of State or officer that the assertion was true, it is for the appellant to prove that the fact asserted is true. Admission of public to hearings 54 (1) Subject to the following provisions of this rule, every hearing before the Tribunal must be held in public. (2) Where the Tribunal is considering an allegation referred to in section 108 of the 2002 Act – (a) all members of the public must be excluded from the hearing, and (b) any party or representative of a party may be excluded from the hearing. (3) The Tribunal may exclude any or all members of the public from any hearing or part of a hearing if it is necessary – (a) in the interests of public order or national security; or (b) to protect the private life of a party or the interests of a minor.

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A Guide to the Asylum and Immigration Act 2004 (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


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served on a party in those proceedings must also be served on the United Kingdom Representative. Address for service 56 (1) Every party, and any person representing a party, must notify the Tribunal in writing of a postal address at which documents may be served on him and of any changes to that address. (2) Until a party or representative notifies the Tribunal of a change of address, any document served on him at the most recent address which he has notified to the Tribunal shall be deemed to have been properly served on him. Calculation of time 57 (1) Where a period of time for doing any act is specified by these Rules or by a direction of the Tribunal, that period is to be calculated – (a) excluding the day on which the period begins; and (b) where the period is 10 days or less, excluding any day which is not a business day (unless the period is expressed as a period of calendar days). Signature of documents 58 Any requirement in these Rules for a document to be signed by a party or his representative shall be satisfied, in the case of a document which is filed or served electronically in accordance with these rules, by the person who is required to sign the document typing his name or producing it by computer or other mechanical means. Errors of procedure 59 (1) Where, before the Tribunal has determined an appeal or application, there has been an error of procedure such as a failure to comply with a rule – (a) subject to these Rules, the error does not invalidate any step taken in the proceedings, unless the Tribunal so orders; and (b) the Tribunal may make any order, or take any other step, that it considers appropriate to remedy the error. (2) In particular, any determination made in an appeal or application under these Rules shall be valid notwithstanding that – (a) a hearing did not take place; or (b) the determination was not made or served, within a time period specified in these Rules. Correction of orders and determinations 60 (1) The Tribunal may at any time amend an order, notice of decision or determination to correct a clerical error or other accidental slip or omission. (2) Where an order, notice of decision or determination is amended under this rule – (a) the Tribunal must serve an amended version on the party or parties on whom it served the original; and

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A Guide to the Asylum and Immigration Act 2004 (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.”.


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(5) 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), the references to “its decision” shall be interpreted as referring to the adjudicator’s decision; and (b) in rules 26(6)(a) and 27(3)(a), the references to “the Tribunal” shall be interpreted as referring to the adjudicator. (6) 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 (7). (7) 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. (8) Any time limit in these Rules for the Tribunal to do anything shall not apply in relation to proceedings to which these Rules apply by virtue of paragraph (1) of this rule. (9) 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 Rules (including anything which, pursuant to rule 61(3) of those Rules, was treated as if done or given under those 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. (10)In this rule – (a) “the 2003 Rules” means the Immigration and Asylum Appeals (Procedure) Rules 2003; (b) “adjudicator” and “appellate authority” have the same meaning as in the 2003 Rules; and (c) “a transitional provisions order” means an order under section 48(3)(a) of the 2004 Act containing transitional provisions.

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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

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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)

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Leave to enter [or remain] as the child of a working holidaymaker 102

A person seeking to enter the United Kingdom as the child of working holidaymaker/s must be able to produce on arrival a valid United Kingdom entry clearance for entry in this capacity.

131D The requirements for an extension of stay to take employment (unless the applicant is otherwise eligible for an extension of stay for employment under these Rules) for a working holidaymaker are that the applicant: (i) entered the United Kingdom as a working holidaymaker in accordance with paragraphs 95 to 96 of these Rules; and (ii) he has spent more than 12 months in total in the UK in this capacity; and (iii) holds a valid Home Office immigration employment document for employment in an occupation listed on the Work Permits (UK) shortage occupations list; and (iv) meets each of the requirements of paragraph 128(ii) to (vi). List of countries participating in the Working Holidaymaker scheme Antigua and Barbuda, Australia, The Bahamas, Bangladesh, Barbados, Belize, Botswana, Brunei Darussalam, Canada, Cameroon, Dominica, Fiji Islands, The Gambia, Ghana, Grenada, Guyana, India, Jamaica, Kenya, Kiribati, Malawi, Malaysia, Maldives,

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A Guide to the Asylum and Immigration Act 2004 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 STATUTORY INSTRUMENT 2005 NO 47 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.

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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 STATUTORY INSTRUMENT 2005 NO 560 (L) PART 1 INTRODUCTION Citation and commencement 1

These Rules may be cited as the Asylum and Immigration Tribunal (Fast Track Procedure) Rules 2005 and shall come into force on 4th April 2005.

Interpretation 2

(1) In these Rules, “the Principal Rules” means the Asylum and Immigration Tribunal (Procedure) Rules 2005(a). (2) Subject to paragraph (3), words and expressions used in these Rules which are defined in rule 2 of the Principal Rules have the same meaning in these Rules as in the Principal Rules. (3) In these Rules, and in any provision of the Principal Rules which applies by virtue of these Rules, “business day” means any day other than a Saturday or Sunday, a bank holiday, 24th to 31st December, Maundy Thursday, Good Friday or the Tuesday after the last Monday in May. (4) In a provision of the Principal Rules which applies by virtue of these Rules, a reference to an “appropriate prescribed form” means— (a) in relation to a notice of appeal or an application notice for permission to appeal to the appropriate appellate court, the appropriate form in Schedule 1 to these Rules; and (b) in relation to an application for bail, the appropriate form in the Schedule to the Principal Rules, or that form with any variations that the circumstances may require. (5) Where a provision of the Principal Rules applies by virtue of these Rules— (a) any reference in that provision to the Principal Rules is to be interpreted as including a reference to these Rules; and (b) any reference in that provision to a specific Part or rule in the Principal Rules is to be interpreted as including a reference to any equivalent Part or rule in these Rules.

Scope of these Rules 3

(1) Part 2 of these Rules applies to appeals to the Tribunal in the circumstances specified in rule 5. (2) Part 3 applies to proceedings before the Tribunal of the types described in rule 24 of the Principal Rules in the circumstances specified in rule 15. (3) Part 4 applies to— (a) proceedings before the Tribunal to which any of Part 2 or 3 applies; and (b) any application for bail made by a party to such proceedings.

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A Guide to the Asylum and Immigration Act 2004 (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 APPEALS TO THE TRIBUNAL Scope of this Part 5

(1) This Part applies to an appeal to the Tribunal where the person giving notice of appeal— (a) was in detention under the Immigration Acts at a place specified in Schedule 2 when he was served with notice of the immigration decision against which he is appealing; and (b) has been continuously in detention under the Immigration Acts at a place or places specified in Schedule 2 since that notice was served on him. (2) This Part shall cease to apply if the Tribunal makes an order under rule 31(1).

Application of Part 2 of the Principal Rules 6

Where this Part applies to an appeal, the following provisions of Part 2 of the Principal Rules apply— (a) rule 6(1) to (3), omitting the reference to rule 6(4) in rule 6(2); (b) rule 8; (c) rule 10(1); (d) rule 13(1) and (4); (e) rule 14; and (f) rules 17 to 19.

The Asylum and Immigration Tribunal (Fast Track Procedure) Rules 2005 139 Giving notice of appeal 7

Where a notice of appeal is served on a custodian under rule 6(3)(b) of the Principal Rules, the custodian must— (a) endorse on the notice the date that it is served on him; and (b) forward it to the Tribunal immediately.

Time limit 8

(1) A person who wishes to appeal must give a notice of appeal not later than 2 days after the day on which he is served with notice of the immigration decision against which he is appealing. (2) Where a notice of appeal is given outside the time limit in paragraph (1), the Tribunal must not extend the time for appealing unless it is satisfied that, because of circumstances outside the control of the person giving notice of appeal or his representative, it was not practicable for the notice of appeal to be given within that time limit.

Service of notice of appeal on respondent 9

When the Tribunal receives a notice of appeal it shall immediately serve a copy upon the respondent.

Filing of documents by respondent 10 The respondent must file the documents listed in rule 13(1) of the Principal Rules not later than 2 days after the day on which the Tribunal serves the respondent with the notice of appeal. Listing 11 (1) The Tribunal shall fix a hearing date which is— (a) not later than 2 days after the day on which the respondent files the documents under rule 10; 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 hearing on every party as soon as practicable, and in any event not later than noon on the business day before the hearing. Deciding timeliness issues 12 (1) The Tribunal shall consider any issue as to— (a) whether a notice of appeal was given outside the applicable time limit; and (b) whether to extend the time for appealing where the notice of appeal was given outside that time limit, as a preliminary issue at the hearing fixed under rule 11, subject to paragraph (2) of this rule. (2) Rule 13 applies, omitting paragraph (1)(a) of that rule, to the consideration and decision of such an issue as it applies to the consideration and determination of an appeal.

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A Guide to the Asylum and Immigration Act 2004 Method of determining appeal 13 (1) The Tribunal must consider the appeal at the hearing fixed under rule 11 except where— (a) the notice of appeal was given outside the applicable time limit and the Tribunal does not grant an extension of time; (b) the appeal— (i) lapses pursuant to section 99 of the 2002 Act; (ii) is treated as abandoned pursuant to section 104(4) of the 2002 Act; (iii) is treated as finally determined pursuant to section 104(5) of the 2002 Act; or (iv) is withdrawn by the appellant or treated as withdrawn in accordance with rule 17 of the Principal Rules; (c) the Tribunal adjourns the hearing under rule 28 or 31(2)(a) of these Rules; (d) paragraph (2) of this rule applies; or (e) any other provision of these Rules, or of the Principal Rules as applied by these Rules, permits or requires the Tribunal to dispose of an appeal without a hearing. (2) The Tribunal may determine an appeal without a hearing if— (a) all the parties to the appeal consent; (b) a party has failed to comply with a provision of these Rules or a direction of the Tribunal, and the Tribunal is satisfied that in all the circumstances, including the extent of the failure and any reasons for it, it is appropriate to determine the appeal without a hearing; or (c) the Tribunal is satisfied, having regard to the material before it and the nature of the issues raised, that the appeal can be justly determined without a hearing. Giving of determination 14 (1) Where the Tribunal determines an appeal, it must give a written determination containing its decision and the reasons for it. (2) The Tribunal must serve its determination on the respondent— (a) if the appeal is considered at a hearing, not later than 2 days after the day on which the hearing of the appeal finishes; or (b) if the appeal is determined without a hearing, not later than 2 days after the day on which it is determined. (3) The respondent must— (a) serve the determination on the appellant on the same day that it receives the determination from the Tribunal; and (b) not later than 1 day after serving the determination, notify the Tribunal on what date and by what means it was served. (4) If the respondent does not give the Tribunal notification under paragraph (3)(b) within 1 day after the Tribunal serves the determination on it, the Tribunal must serve the determination on the appellant as soon as reasonably practicable thereafter.

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PART 3 RECONSIDERATION OF APPEALS, ETC Scope of this Part 15 (1) This Part applies to proceedings before the Tribunal of a type specified in rule 24 of the Principal Rules, where— (a) Part 2 of these Rules applied at all times to the appeal to the Tribunal; (b) Part 3 of these Rules applied at all times to any other proceedings before the Tribunal of a type specified in rule 24 of the Principal Rules which related to that appeal; and (c) the appellant has been continuously in detention under the Immigration Acts at a place or places specified in Schedule 2 to these Rules since being served with notice of the immigration decision against which he is appealing. (2) This Part shall cease to apply if the Tribunal makes an order under rule 31(1). SECTION 1 Section 103A applications considered by members of the Tribunal Application of Section 1 of Part 3 of the Principal Rules 16 Where this Part applies to a section 103A application, the following provisions of Section 1 of Part 3 of the Principal Rules apply — (a) rule 25; (b) rule 26, omitting paragraphs (2) and (4) of that rule; (c) rule 27(1) and (2); and (d) rule 28. Service of application and response 17 Where a section 103A application to which this Part applies is filed with the Tribunal— (a) the Tribunal must serve copies of the application notice and any documents which were attached to it on the party to the appeal other than the party who made the section 103A application as soon as practicable; and (b) the party to the appeal other than the party who made the section 103A application may file submissions in response to the application not later than 1 day after the day on which it is served with the application. Method of deciding applications for review 18 The immigration judge shall decide the application without a hearing, and by reference only to—

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A Guide to the Asylum and Immigration Act 2004 (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 Fresh evidence on reconsideration of appeal 22 (1) If a party wishes to ask the Tribunal to consider evidence which was not submitted on any previous occasion when it considered the appeal, he must notify the Tribunal and the other party of— (a) the nature of the evidence; and (b) the reasons why it was not submitted on any previous occasion. (2) Wherever practicable, notification under paragraph (2) must be given before the date fixed for the reconsideration hearing under rule 21(1). Determination on reconsideration 23 Rules 13 and 14 apply to the reconsideration of an appeal as they apply to the initial determination of an appeal. SECTION 3 Applications for permission to appeal to the appropriate appellate court Application of Section 3 of Part 3 of the Principal Rules 24 Where this Part applies to an application for permission to appeal to the appropriate appellate court, the following provisions of Section 3 of Part 3 of the Principal Rules apply— (a) rule 34(1) to (3); and (b) rule 36. Time limits for filing and serving application 25 (1) An application notice for permission to appeal must be filed not later than 2 days after the day on which the appellant is served with the Tribunal’s determination. (2) The Tribunal may not extend the time limit in paragraph (1). (3) Immediately upon an application notice for permission to appeal being filed, the Tribunal must notify the other party to the appeal to the Tribunal that it has been filed. Time limit for determining the application 26 The Tribunal must determine the application for permission to appeal, and serve its determination on every party, not later than 1 day after the day on which the Tribunal receives the application notice.

PART 4 GENERAL PROVISIONS Application of Part 5 of the Principal Rules 27 Where this Part applies, Part 5 of the Principal Rules applies, except that— (a) rule 47 applies subject to rule 28 of these Rules; (b) rule 55(3) applies subject to rule 29(3) of these Rules; and (c) rule 60(2) does not apply.

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A Guide to the Asylum and Immigration Act 2004 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 REMOVAL OF PENDING PROCEEDINGS FROM FAST TRACK Transfer out of fast track procedure 31 (1) Where Part 2 or 3 of these Rules applies to an appeal or application— (a) the Tribunal must order that that Part shall cease to apply if all the parties consent;

The Asylum and Immigration Tribunal (Fast Track Procedure) Rules 2005 145 (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 AND TRANSITIONAL PROVISIONS Revocation 33 The Immigration and Asylum Appeals (Fast Track Procedure) Rules 2003(a) are revoked.

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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 (7) In relation to proceedings which were pending immediately before 4th April 2005— (a) unless the Tribunal directs otherwise—

(8)

(3)

(4)

(5)

(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. 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. that references to an adjudicator or the appellate authority shall be treated as referring to the Tribunal. 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. 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. 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).

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A Guide to the Asylum and Immigration Act 2004 (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

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SCHEDULE 2 Rules 5 and 15 SPECIFIED PLACES OF DETENTION Campsfield House Immigration Removal Centre, Kidlington, Oxfordshire Colnbrook House Immigration Removal Centre, Harmondsworth, Middlesex Harmondsworth Immigration Removal Centre, Harmondsworth, Middlesex Yarls Wood Immigration Removal Centre, Clapham, Bedfordshire.

EXPLANATORY NOTE (This note is not part of the Rules) These Rules prescribe a “fast track” procedure for appeals and applications to the Asylum and Immigration Tribunal, where the appellant is in detention under the Immigration Acts at the locations listed in Schedule 2. The Rules come into force on 4th April 2005. The Tribunal is established 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 general procedures for appeals and applications to the Tribunal are set out in the Asylum and Immigration Tribunal (Procedure) Rules 2005 (“the Principal Rules”). Parts 1 to 4 of these Rules specify the extent to which the Principal Rules apply to fast track appeals and applications, modify certain provisions of the Principal Rules and make different provision for certain matters. The circumstances in which those Parts apply are set out in rules 3, 5 and 15. The procedure under these Rules differs from that under the Principal Rules principally in the following ways— •

there are shorter time limits for the parties and the Tribunal to take certain steps in relation to appeals and applications (rules 7 to 11, 14, 19, 21, 25 and 26);

•

the procedures for deciding certain issues are simplified or modified to reflect the shorter timetable in fast track proceedings (rules 12, 13, 22 and 28);

•

in all fast track cases the Tribunal must serve its determination of an appeal, and notice of its decision on an application for reconsideration, on the respondent to the appeal, who is then required to serve it on the appellant (rules 14, 19 and 23); and

•

in the fast track, an application under section 103A of the 2002 Act must be served on the party to the appeal other than the applicant, who may file submissions in response to the application, which the immigration judge must consider (rules 17 and 18).

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A Guide to the Asylum and Immigration Act 2004 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 DIRECTIONS UNDER PARAGRAPH 7 OF SCHEDULE 4 TO THE NATIONALITY, IMMIGRATION AND ASYLUM ACT 2002 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

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A Guide to the Asylum and Immigration Act 2004 (11) Reviews of decisions not to make funding order

A senior immigration judge who was not involved in the decision being reviewed

1.2 Any of the matters specified in paragraph 1.1(5), (6), (7), (8) or (10) above may be dealt with by a Tribunal hearing an appeal as specified in paragraph 1.1(2) to (4) above. Mr Justice Hodge President 4 April 2005

ASYLUM AND IMMIGRATION TRIBUNAL

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.

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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

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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

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A Guide to the Asylum and Immigration Act 2004 (2) All appeals in which no specific direction is given or which are not specified below (3) Reconsiderations of appeals where no specific direction is given (including decisions on orders for funding)

A legally qualified member or two or more members, at least one of whom is legally qualified A legally qualified member or two or more members, at least one of whom is legally qualified

(4) Appeals which have to be reheard if two members disagree

Three or more members (but so that there is an odd number of members sitting) at least one of whom is legally qualified A legally qualified member

(5) Case management review 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 determined without a hearing (7) Applications for bail (8) The issue of a witness summons (9) Applications for review

(10)Any determination that an appeal be dismissed as abandoned or finally determined (11) Reviews of decisions not to make funding order

A legally qualified member A legally qualified member A legally qualified member An immigration judge authorised by the President to deal with such applications A legally qualified member

A senior immigration judge who was not involved in the decision being reviewed 2.3 Any of the matters specified in paragraph 2.2(5), (6), (7), (8) or (10) above may be dealt with by a Tribunal hearing an appeal as specified in paragraph 2.2(2) to (4) above. 3

Rejection of invalid notice of appeal 3.1 Rule 9 (rejection of invalid notice of appeal) imposes a duty on the Tribunal not to accept an invalid notice of appeal and to serve notice to this effect on both the person who gave the notice of appeal and the respondent. 3.2 The Tribunal will scrutinise a notice of appeal as soon as practicable after it has been given. Rule 9 makes no provision for the issue of validity to be determined by means of a hearing or by reference to any representations of the parties. 3.3 Once the Tribunal has served the notice described in paragraph 3.1, rule 9 provides that the Tribunal shall take no further action in relation to the notice of appeal.

Practice Directions

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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.

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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.

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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.

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A Guide to the Asylum and Immigration Act 2004 8.2 The best practice for the preparation of bundles is as follows: (a) all documents must be relevant, be presented in logical order and be legible; (b) where the document is not in the English language, a typed translation of the document signed by the translator in accordance with rule 52 (language of documents) to certify that the translation is accurate, must be inserted in the bundle next to the copy of the original document, together with details of the identity and qualifications of the translator; (c) if it is necessary to include a lengthy document, that part of the document on which reliance is placed should, unless the passages are outlined in any skeleton argument, be highlighted or clearly identified by reference to page and/or paragraph number; (d) bundles submitted must have an index showing the page numbers of each document in the bundle; (e) the skeleton argument or written submission should define and confine the areas at issue in a numbered list of brief points and each point should refer to any documentation in the bundle on which the appellant proposes to rely (together with its page number); (f) where reliance is placed on a particular case or text, photocopies of the case or text must be provided in full for the Tribunal and the other party; and (g) large bundles should be contained in a ring binder or lever arch file, capable of lying flat when opened. 8.3 The Tribunal recognises the constraints on those representing the parties in appeals in relation to the preparation of trial bundles and this direction does not therefore make it mandatory in every case that bundles in exactly the form prescribed must be prepared. Where the issues are particularly complex it is of the highest importance that comprehensive bundles are prepared. If parties to appeals fail in individual cases to present documentation in a way which complies with the direction, it will be for the Tribunal to deal with any such issue. 8.4 Much evidence in asylum and immigration appeals is in documentary form. Representatives preparing bundles need to be aware of the position of the Tribunal, which may be coming to the case for the first time. The better a bundle has been prepared, the greater it will assist the Tribunal. Bundles should contain all the documents that the Tribunal will require to enable it to reach a decision without the need to refer to any other file or document. The Tribunal will not be assisted by repetitious, outdated or irrelevant material. 8.5 It may not be practical in many appeals to require there to be an agreed trial bundle but it nevertheless remains vital that the parties inform each other at an early stage of all and any documentation upon which they intend to rely. 8.6 The parties cannot rely on the Tribunal having judicial notice of any country information or background reports in relation to the case in question. If either party wishes to rely on such country or background information, copies of the relevant documentation must be produced.

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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

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A Guide to the Asylum and Immigration Act 2004 (b) a senior immigration judge or designated immigration judge decides that it is not practicable for the original Tribunal to complete the hearing or to give its determination justly or without undue delay, the senior immigration judge or designated immigration judge may direct the appeal to be heard by a differently constituted Tribunal (“the new Tribunal”). 12.2Where an appeal is transferred under paragraph 12.1: (a) any documents sent to or given by the original Tribunal shall be deemed to have been sent to or given by the new Tribunal; and (b) the new Tribunal shall have power to deal with the appeal as if it had been commenced before it. 12.3The Tribunal may transfer proceedings regarding the reconsideration of an appeal in the circumstances described in paragraph 14.2 and 14.9. 12.4Where proceedings are transferred under paragraph 12.3, any documents sent to or given by the Tribunal which transferred the proceedings shall be deemed to have been sent to or given by the Tribunal to which those proceedings are transferred. 13 Review 13.1It is an important feature of the single-tier Tribunal that a party dissatisfied by a determination may, in certain circumstances, apply for that determination to be reconsidered by the Tribunal. 13.2The relevant statutory provisions concerning reconsideration of appeals are to be found in: (a) section 103A (as inserted by section 81(6) of the 2004 Act); (b) paragraph 30 of Schedule 2 to the 2004 Act (“the filter provision”); (c) rules 24 to 33; (d) rules 16 to 23 of the Fast Track Rules (in the case of fast track appeals); and (e) rules 54.28 to 54.35 of the Civil Procedure Rules 1998 (“CPR”) (as inserted by rule 7 of the Civil Procedure (Amendment) Rules 2005). 13.3For an unspecified period beginning with 4 April 2005, an application for an order requiring the Tribunal to review its decision on an appeal will be considered initially by the Tribunal itself under the filter provision, with a right to apply to the High Court where the immigration judge decides not to order reconsideration. 13.4A reconsideration order may not be made in respect of a determination of the Tribunal: (a) where such an order has previously been made in relation to the appeal (section 103A(2)(b)); or (b) where the jurisdiction of the Tribunal was exercised by three or more legally qualified members (section 103A(8)). 13.5In those cases, sections 103B and 103E provide for an appeal to the Court of Appeal/Court of Session/ Court of Appeal in Northern Ireland. 13.6The time limits for applying for an order for reconsideration are contained in section 103A(3) or, in the case of fast track appeals, in rule 3 of the Fast Track Time Limits Order. The requirements for filing the application are contained in CPR 54.29. An application outside the relevant time limit may be entertained if the immigration judge thinks

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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.

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A Guide to the Asylum and Immigration Act 2004 14.5The references in paragraph 14.1 to 14.4 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. 14.6Under article 5 of the Commencement Order, any appeal that was pending before the IAT immediately before 4 April 2005 shall on and after that date be dealt with in the same manner as if the Tribunal had originally decided the appeal and was reconsidering its decision. 14.7Rule 62(7) provides that, in the case of an appeal described in paragraph 14.6, the reconsideration shall be limited to the grounds upon which the IAT granted permission to appeal. In most cases, those grounds will require the Tribunal to decide whether the adjudicator made a material error of law. 14.8Subject to paragraph 14.12, on and after 4 April 2005, and in the absence of any direction to the contrary, the parties to any appeal that falls to be dealt with as described in paragraph 14.6 should assume that the issues to be considered at the hearing will be whether the adjudicator made a material error of law and, if so, whether, on the basis of that adjudicator’s findings of fact, the appeal should be allowed or dismissed. 14.9Where the Tribunal decides that the adjudicator 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. 14.10 The provisions of paragraph 14.3 and 14.4 shall apply in relation to paragraph 14.9 as they apply in relation to paragraph 14.2 but with the modification that the references to the original Tribunal shall be interpreted as referring to the adjudicator. 14.11 Where, immediately before 4 April 2005, an appeal was pending before an adjudicator, having been remitted to an adjudicator by a court or the IAT, it will already have been decided that the original adjudicator ’s determination cannot stand. The Tribunal will accordingly proceed to rehear the appeal. 14.12 In the case of a reconsideration of a fast track appeal, the Tribunal reconsidering the appeal is required by rule 23 of the Fast Track Rules to reconsider its decision on the appeal at the reconsideration hearing, subject to the qualifications described in rule 23(1) of those Rules. The Tribunal’s power to adjourn a fast track appeal that remains as such is governed by rule 28 of those Rules. 14.13 The parties to any fast track appeal which is being reconsidered by the Tribunal on or after 4 April 2005 will be expected to attend with all necessary witnesses and evidence that may be required if the Tribunal should decide that it is necessary to re-hear the appeal. It will be unusual for the Tribunal to adjourn the reconsideration hearing but, if it does so, paragraph 14.4 will, so far as appropriate, apply. 14.14 The preceding provisions of this paragraph and paragraph 13 are subject to article 9 of the Commencement Order in the case of certain “old” appeals, where the issue is not restricted to whether the adjudicator made an error of law.

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15 Legal aid on reconsideration 15.1The relevant statutory provisions concerning the provision of legal aid in respect of the reconsideration of appeals (other than fast track appeals) decided in England and Wales are to be found in: (a) section 103D (as inserted by section 81(6) of the 2004 Act); (b) rule 28A (orders for funding of section 103A applications) (as inserted by the Asylum and Immigration Tribunal (Procedure) (Amendment) Rules 2005) and rule 33 (orders for funding on reconsideration); (c) the Community Leal Service (Asylum and Immigration Appeals) Regulations 2005 (“the CLS Regulations”). 15.2On an application under section 103A which is dealt with by an immigration judge under the filter provision referred to in paragraph 13.3, the immigration judge has power to make an order under section 103D for the appellant’s costs to be paid out of the CLR fund (“a funding order”). That power is, however, exercisable only in the following circumstances: (a) where the immigration judge dismisses or makes no order on the section 103A application, that judge may make a funding order only where there has been a change in relevant circumstances or a change in the law since the application was made and at the time the application was made, there was a significant prospect that the appeal would be allowed upon reconsideration (regulation 5(4)); (b) where the immigration judge makes an order for reconsideration but, in the event, no reconsideration takes place (eg because the immigration decision appealed against is withdrawn) (regulation 5(5)). 15.3A funding order of the kind described in paragraph 15.2(b) can be made only on application by a supplier (as defined in the CLS Regulations) or counsel instructed by the supplier (regulation 5(5)). 15.4Rule 33 (orders for funding on reconsideration) requires the Tribunal that has reconsidered an appeal to make a funding determination, where the appellant’s representative has specified in the application for reconsideration that he is seeking a funding order. The funding determination is separate from the determination of the appeal itself. 15.5Unless it directs otherwise, the Tribunal shall hear any submissions as to such an order at the conclusion of the proceedings on the reconsideration. 15.6If the Tribunal allows the appeal on reconsideration, it is required by regulation 6(2) to make a funding order. If it does not allow the appeal, the Tribunal must not make a funding order unless it is satisfied that, at the time when the appellant made the section 103A application, there was a significant prospect that the appeal would be allowed upon reconsideration (regulation 6(3)). 15.7The Tribunal must give reasons where it decides not to make a funding order, following a reconsideration of an appeal (regulation 6(4)). A supplier, or counsel instructed by a supplier, may apply under regulation 7 for a review of such a decision. The review will be carried out by a senior immigration judge, who will decide whether to hold a hearing, if one is requested.

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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

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treated as unreported determinations for the purposes of the Tribunal’s website. 17.5Other determinations will receive no neutral citation number. They will be sent to the parties (in accordance with the Rules) but will not be published. 17.6A determination of the Tribunal which has not been reported may not be cited in proceedings before the Tribunal unless either: (a) the appellant in the present proceedings, or a member of his family, was a party to the proceedings in which the previous determination was issued; or (b) the Tribunal gives permission. 17.7Permission under paragraph 17.6 will be given only in exceptional cases, and even more rarely in the case of determinations promulgated following a hearing before a single member of the Tribunal. 17.8An application for permission to cite a determination which has not been reported must: (a) include a full transcript of the determination; (b) identify the proposition for which the determination is to be cited; (c) certify that the proposition is not found in any reported determination of the Tribunal or of the IAT and has not been superseded by a decision of a higher authority; and (d) be accompanied by a summary analysis of all other decisions of the Tribunal and all available decisions of higher authority, relating to the same issue, promulgated in the period beginning six months before the date of the decision proposed to be cited and ending two weeks before the date of the hearing. (This analysis is intended to show the trend of Tribunal decisions on the issue.) 17.9The provisions of paragraph 17.6 to 17.8 apply to unreported determinations of the IAT and to determinations of Adjudicators as those provisions apply to unreported determinations of the Tribunal and to determinations promulgated following a hearing by a single member of the Tribunal. 17.10 Until 4 October 2005, the references in paragraph 17.8(d) to decisions of the Tribunal shall be construed as including references to decisions of the IAT. 17.11 A party citing a determination of the IAT bearing a neutral citation number prior to [2003] (including all series of ‘bracket numbers’) must be in a position to certify that the matter or proposition for which the determination is cited has not been the subject of more recent, reported, determinations of the IAT or of the Tribunal. 18 Starred and Country Guidance determinations 18.1Reported determinations of the Tribunal and of the IAT which are “starred” shall be treated by the Tribunal as authoritative in respect of the matter to which the “starring” relates, unless inconsistent with other authority that is binding on the Tribunal. 18.2A reported determination of the Tribunal or of the IAT bearing the letters “CG” shall be treated as an authoritative finding on the country guidance issue identified in the determination, based upon the evidence before the members of the Tribunal or the IAT that determined the appeal. As a

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A Guide to the Asylum and Immigration Act 2004 result, unless it has been expressly superseded or replaced by any later “CG” determination, or is inconsistent with other authority that is binding on the Tribunal, such a country guidance case is authoritative in any subsequent appeal, so far as that appeal: (a) relates to the country guidance issue in question; and (b) depends upon the same or similar evidence. 18.3A list of current CG cases will be maintained on the Tribunal website. Both the respondent and any representative of the appellant in an appeal concerning a particular country will be expected to be conversant with the current “CG” determinations relating to that country. 18.4Because of the principle that like cases should be treated in like manner, any failure to follow a clear, apparently applicable country guidance case or to show why it does not apply to the case in question is likely to be regarded as grounds for review or appeal on a point of law. 19 Bail applications 19.1An application for bail shall if practicable be listed for hearing within three working days of receipt by the Tribunal of the notice of application. 19.2Any such notice which is received by the Tribunal after 3.30pm on a particular day shall be treated for the purposes of this paragraph as if it were received on the next business day. 20 Discrimination 20.1Section 84(1)(b) makes it a ground of appeal against an immigration decision that that decision is unlawful by virtue of section 19B of the Race Relations Act 1976 (discrimination by public authorities). 20.2In cases where there is a finding of discrimination, the person affected can bring a claim in the County Court. On that claim, both the claimant and the court are bound by the decision in the immigration appeal (section 57A of the Race Relations Act 1976). 20.3Accordingly, in a case where discrimination is raised as a ground of appeal, it is particularly important that the Tribunal is aware of its duty under section 86(2)(a) to determine any matter raised as a ground of appeal and that it makes a finding on that ground, even if the alleged discrimination is not relevant to the ultimate outcome of the appeal (see Bibi [2005] EWHC 386 (Admin)). 21 Council on Tribunals 21.1Under rule 54(5), members of the Council on Tribunals (and its Scottish equivalent) are entitled to attend hearings of cases before the Tribunal. 21.2Although that rule does not specifically envisage that such a member should have access to discussions between members of the Tribunal before and after the hearing (where the jurisdiction of the Tribunal is being exercised by more than one of its members), a member of the Council visiting in an official capacity should be invited to observe the whole of the Tribunal’s work if that member wishes to do so.

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21.3In order to avoid any misunderstanding, the parties (including their representatives) present at a hearing should be informed that the member of the Council will retire with the Tribunal and will observe (but not take part in or communicate) the Tribunal’s deliberations.

MR JUSTICE HODGE PRESIDENT 4 April 2005

ANNEX A Front sheet of determination Asylum and Immigration Tribunal

Appeal number:

THE IMMIGRATION ACTS Heard at On

Determination Promulgated Before [XXXX NAME[S] XXXX] [TITLE[S]] Between [Appellant’s names – as in AIT file] Appellant and

[THE SECRETARY OF STATE FOR THE HOME DEPARTMENT] [or] [ENTRY CLEARANCE OFFICER, (City)] [or] [IMMIGRATION OFFICER] Respondent Representation:

For the Appellant: For the Respondent: DETERMINATION AND REASONS

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A Guide to the Asylum and Immigration Act 2004 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

Signed/ Official crest Dated Immigration Judge/Designated Immigration Judge/Senior Immigration Judge 2

In immigration/human rights appeals

DECISION The appeal in respect of the Immigration Rules is allowed/dismissed The appeal is allowed/dismissed on human rights grounds

Signed/Official Crest Dated Immigration Judge/Designated Immigration Judge/Senior Immigration Judge 3

On reconsideration of an appeal

DECISION The original Tribunal did not make a material error of law and the original determination of the appeal shall stand The original Tribunal made a material error of law. The following decision is accordingly substituted: [see 1 and 2 above]

Signed/Official Crest Dated Immigration Judge/Designated Immigration Judge/Senior Immigration Judge [insert wording from section 1, 2 or 3 above as appropriate and subject to any necessary amendment]

Practice Directions

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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 seekers accommodation centres .........................16 dispersal areas ...................................16, 17 emergency or interim accommodation .............................16–17 failed asylum seekers .......................52–54 local connection.....................16–17, 54–55 Adjudication hearing................................30 Administrative appeals ..............................2 Advertising services..................5, 39, 80–81 Aircraft, information about passengers..............................18, 59 Aircrew, right of appeal................33–34, 72 Appeal system See also Asylum and Immigration Tribunal; Immigration Appeal Tribunal aircrew’s right of appeal ............33–34, 72 appeals from within UK ......31–32, 70–71 conditional fee agreements....................28 costs, jurisdiction over .....................26–28 ’culture of disbelief’................................29 delay ...................................................29, 30 earlier right of appeal.......................33, 72 errors of law.............................................26 funding arrangements............................24 groundless appeals ...................................1 Immigration Services Tribunal ...........................39, 81 lay members ..............................................3 ’leap-frog’ appeals ............................23–24 legal aid ........................................24, 27, 28 race discrimination .................1–2, 32, 168 references to the Court of Appeal.............................23–24 restriction on appeal rights .....................1 seamen’s right of appeal............33–34, 72 single immigration judge, decision of ..............................................1 single-tier system ..................................1, 2 time limit.............................24–26, 31, 107, 113–14, 119 two-tier system................................1, 2, 31 unification ..............................22–31, 64–69 Arrest powers, immigration officers..................18, 57–58 Assisting unlawful immigration ........................................5, 43

Asylum and Immigration Tribunal (AIT) abandonment of appeal .......................112 adjournments.........................113, 123, 161 appeal from........................................66–67 application for permission to appeal.........................119 bail.....................................119–21, 123, 168 burden of proof .....................................125 calculation of time ................................127 certification of pending appeal ...........111 conditional fee agreements....................28 constitution ............................................122 correction of orders and determinations .....................127–29 costs.....................................................26–28 Council on Tribunals ......................168–69 country guidance ............................167–68 determinations citation ..........................................166–67 concluding words..............................170 country guidance ........................167–68 format..................................................166 front sheet...........................................169 giving of........................113, 140–41, 161 jurisdiction exercised by more than one member, where ..............................161 starred ...........................................167–68 directions..........................................122–23 dismissal of members.......................40–41 errors of law.......................................26, 65 errors of procedure ...............................127 evidence..............................117–18, 124–25 ex parte review procedure ......................26 fast-track procedure................137–50, 159 filing of documents.........................126–27 funding arrangements............................24 generally...............................1, 2, 64, 86–96 hearings ..................................................112 admission of public ........................125–26 imminent removal cases ..109–10, 157–58 language of documents........................125 legal aid ..............................................67–68 membership .......................................86–87 method of determining appeal ...........................111 money .......................................................87 ‘no win, no fee’ arrangements .......................................27 notice of appeal ...............................106–07 case management review hearings and directions...........................158–59

174


filing of documents ...........................110 form and contents .............................108 imminent removal cases .............109–10, 157–58 late notice .............................108–09, 157 rejection of invalid notice....................108, 156–57 service .................................................110 notification of hearings ........................123 procedure, rules ..............................105–30 proceedings..............................................87 race discrimination ...............................168 reconsideration of appeals........................117–18, 163–66 fast-track procedure ....................141–43 legal aid on .......................67–68, 165–66 record of proceedings...........................161 representation..................................123–24 review applications.....65, 115–16, 162–63 service of documents..............110, 126–27 signature of documents .......................127 special procedures...........................113–14 staff............................................................87 starred determinations ...................167–68 time limits ...........................24–26, 31, 107, 113–14, 119 transfer of proceedings ..................161–62 trial bundles.....................................159–60 UK Representative ................................124 variation of grounds of appeal............111 withdrawal of appeal .....................111–12 witnesses, summoning.........................124 Asylum interview ................................29–30 Asylum support, withdrawal of ...................4, 15–16, 51–52 Asylum Support Adjudicator .............................................15 Back-dating of benefits, refugees........................................17, 55–56 Bail........................................119–21, 123, 168 detention pending deportation.....................................36–37 electronic monitoring, and ....................37 recognisance or bail bond......................37 suspected international terrorists....................................34, 72–73 Benefits, back-dating of ...........................17 Children child soldiers..............................................7 failed asylum seekers, of .............5, 15–16

trafficking for exploitation ..............7–8, 9 working holidaymaker, of .............133–34 China ............................................................15 ’snakeheads’...............................................6 CIPU Reports..............................................34 Community relations ..............................1, 2 Control of entry ...................................19, 59 Costs, jurisdiction over.......................26–28 Council of Immigration Judges ..............41 Council on Tribunals ........................168–69 Credibility of claimant ..............4, 9–15, 22, 28–29, 49–51 cultural issues..............................10, 13–15 deciding authority ..................................10 failure to answer questions ...................10 importance of ..............................12, 13, 28 reliability distinguished ...................10–11 Death penalty ...............................................3 Deportation co-operation.................................37, 73–75 detention pending ......................36–37, 73 Detention pending deportation...................36–37, 73 places of..................................................149 Dispersal areas .....................................16, 17 District Immigration Judges......................1 Documents See also Passports; Redocumentation being undocumented without reasonable explanation.............................................4 cards............................................................7 deportation co-operations .....................37 destruction or disposal.........................1, 3–4, 5, 6, 7, 10 failure to produce ...................3, 4, 5, 6, 10 false ...................................................5–6, 19 forgery ..............................................6, 7, 46 reasonable excuse defence...................5, 7 removal co-operation .............................37 retention of...................................18–19, 59 return of....................................................19 stickers ........................................................7 use throughout journey ...........................6 Dublin Convention ...................................35

Index Earlier right of appeal.........................33, 72 ECPAT UK.....................................................9 Educational establishments, register of.................................................33 Electronic monitoring ...................37, 75–76 Employment of illegal workers......................................8–9 Entry clearance ...................31, 32–33, 71–72 Entry clearance certificate ........................19 Entry clearance officers (ECOs) .......................................32 grant of clearance....................................19 refusal of application............................1, 2 Entry control .........................................19, 59 Entry powers immigration officers ...................18, 57–58 Immigration Services Commissioner....................38–39, 78–80 European Convention on Human Rights (ECHR) .......15–16, 35 European Economic Area, residence in .........................20–21, 135–36 Failed asylum seekers accommodation .................................52–54 withdrawal of support.........15–16, 51–52 False passport See also Documents; Passports destruction of.............................................5 retention of...............................................19 travelling on...........................................5–6 disclosure of fact .......................................5 Family rights...........................................2, 15 Family support, restricting ........................4 Family visitors, entry clearance ..................................................32 Fast track procedure ..................137–50, 159 Fees non-asylum immigration applications ..............................40, 82–83 transfer of leave stamps...................40, 83 Fingerprinting ................................18, 37, 59 Forged documents .............................6, 7, 46 Freight-screening equipment ....................3 Giraudaux, Jean .........................................13

175

Homelessness legislation.........................16 Human rights children of failed asylum seekers...........................5, 15–16 conditional fee agreements....................28 family rights ........................................2, 15 inhuman or degrading treatment ....................................5, 15–16 marriage ...................................................20 non-refoulement principle.....................25 single-tier appeal system, and ................2 unfounded human rights for asylum claim ..........31, 69–70 Immigration advice, advertising or offering..........5, 39, 80–81 Immigration Appeal Tribunal (IAT).......................................3, 4 jurisdiction ...............................................22 review of decisions of.............................23 Immigration judges.....................................1 Immigration and Nationality Department (IND), refusal of application ..........................1, 2 Immigration officers control of entry........................................19 entry, search and seizure powers.....................................18 powers of arrest ..........................18, 57–58 Immigration services, provision of.................................38, 77–78 Immigration Services Commissioner, powers of entry ....................38–39, 78–80 Immigration Services Tribunal, appeal to ..........................39, 81 Imminent removal cases ....109–10, 157–58 Information about passengers .........................................18, 59 Integration loans for refugees .................................17, 56–57 Joint Committee of Human Rights (JCHR)........20, 25, 32–33 Judges Council of Immigration Judges ............41 dismissal.............................................40–41 District Immigration Judges....................1 immigration judges ..................................1 senior immigration judges ......................1 Judicial review ...............................28–29, 32

176


‘Leap-frog’ appeals ..............................23–24 Leave stamps, fees for transfer .........40, 83 Legal aid ..........................................24, 27, 28 reconsideration of appeals .........................67–68, 165–66 Leggatt, Sir Andrew ....................................3 Loans for refugees .........................17, 56–57 Local authorities accommodation for asylum seekers...............................16–17 children of failed asylum seekers.....................................15 Macklin, Audrey........................................13 Managed migration.....................................1 Marriage application for permission to marry ......................................2, 22, 64 EEA nationals, and ...........................20–21 England and Wales ...............20–21, 60–61 ethnic minorities, and.......................20–21 human rights ...........................................20 ’marriage tourism’ ............................20–21 Northern Ireland...................21–22, 62–64 notice of ..............................................20, 21 residence requirement............................20 Scotland ........................................21, 61–62 sham marriages .................................20–21 Medical Foundation for the Care of Victims of Torture.......27–28 Morecambe Bay tragedy 2004....................8 National Asylum Support Scheme (NASS) ........................................4 ‘No win, no fee’ arrangements ................27 Non-refoulement principle......................25 Northern Ireland, marriage .................................21–22, 62–64 Offences advertising services ................5, 39, 80–81 assisting unlawful immigration .....................................5, 43 being undocumented without reasonable explanation.............................................4 failing to co-operate with redocumentation process .....................4 forgery of immigration documents ........................................7, 46

trafficking people for exploitation ......................7–9, 46–47 Ouseley, Sir Duncan .................................31 Palermo Protocol..........................................9 Passenger information........................18, 59 Passports See also Documents; Redocumentation bio-data page ...........................................18 entering UK without ................5–7, 43–46 failure to produce ...........................5, 6, 10 false ...................................................5–6, 19 retention of.........................................18–19 return of....................................................19 Poppy Project................................................9 Professional bodies .......................39, 81–82 Race discrimination ..................1–2, 32, 168 Reasonable excuse defence ...................5, 7 Redocumentation See also Documents failure to co-operate with ........................4 retention of documents, and ...................................19 Refugee Convention .................6, 34, 35, 36 Refugees back-dating of benefits...............17, 55–56 integration loans .........................17, 56–57 Removal co-operation...................37, 73–75 Removal direction, failure to co-operate ................................4 Removal to safe country..............34–36, 73, 97–102 Retention of documents ...............18–19, 59 Safe country, removal to................4, 34–36, 73, 97–102 Scotland, marriage.........................21, 61–62 Seamen, right of appeal ...............33–34, 72 Search and seizure powers immigration officers ...................18, 57–58 Immigration Services Commissioner....................38–39, 78–80 Senior immigration judges........................1 Ships, information about passengers..............................18, 59

Index Single-tier appeal system, introduction of .....................................1, 2 Somalia ..................................................11, 30 Special Immigration Appeals Commission ............................34 Students amount of fees .........................................40 entry clearance ..................................32, 33 Sudan .......................................................6, 30 Suspected international terrorist bail ................................34, 72–73 Terrorism, suspected international terrorist bail .......34, 72–73 Torture....................................................27–28 Trafficking people for exploitation.........................7–9, 46–47 children...............................................7–8, 9 illegal working ......................................8–9 protection of victims.................................9 women ........................................................9 Transforming Public Services: Complaints, Redress and Tribunals (White Paper) ..........................2

177

UK Representative ..................................124 United Nations Convention on the Rights of the Child ..............................15 Palermo Protocol.......................................9 Refugee Convention...............6, 34, 35, 36 Unlawful immigration, assisting ...............................................5, 43 Withdrawal of asylum support...............................4, 15–16, 51–52 Women trafficking for exploitation ......................9 Working holidaymaker, leave to enter as..............................131–34 Workplace enforcement officers................................9 Zimbabwean refugees ................................6

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