Part 5 E+W+S+N.I.Immigration and Asylum Appeals

ProcedureE+W+S+N.I.

[F1103AReview of Tribunal’s decisionE+W+S+N.I.

(1)A party to an appeal under section 82 [F2, 83 or 83A] 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—

(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.]

[F3103BAppeal from Tribunal following reconsiderationE+W+S+N.I.

(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.]

[F4103CAppeal from Tribunal instead of reconsiderationE+W+S+N.I.

(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—

(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;

(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.]

[F5103DReconsideration: legal aidE+W+S+N.I.

(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 [F6where an order for reconsideration is made]

(a)under section 103A(1), and

(b)on the application of the appellant.

[F7(3)The Tribunal may order payment out of that Fund of the appellant's costs—

(a)in respect of the application for reconsideration;

(b)in respect of preparation for reconsideration;

(c)in respect of the reconsideration.]

(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;

(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 (S.I. 2003/ 435 (N.I. 10)), and

(b)with any other necessary modifications.]

[F8103EAppeal from Tribunal sitting as panelE+W+S+N.I.

(1)This section applies to a decision of the Tribunal on an appeal under section 82 [F9, 83 or 83A] 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.

(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.]

104 Pending appealE+W+S+N.I.

(1)An appeal under section 82(1) is pending during the period—

(a)beginning when it is instituted, and

(b)ending when it is finally determined, withdrawn or abandoned (or when it lapses under section 99).

[F10(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,

(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.]

(3)F11. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F12(4)An appeal under section 82(1) brought by a person while he is in the United Kingdom shall be treated as abandoned if the appellant leaves the United Kingdom.

(4A)An appeal under section 82(1) brought by a person while he is in the United Kingdom shall be treated as abandoned if the appellant is granted leave to enter or remain in the United Kingdom (subject to subsections (4B) and (4C)).

(4B)Subsection (4A) shall not apply to an appeal in so far as it is brought on the ground relating to the Refugee Convention specified in section 84(1)(g) where the appellant—

(a)is granted leave to enter or remain in the United Kingdom for a period exceeding 12 months, and

(b)gives notice, in accordance with any relevant procedural rules (which may include provision about timing), that he wishes to pursue the appeal in so far as it is brought on that ground.

(4C)Subsection (4A) shall not apply to an appeal in so far as it is brought on the ground specified in section 84(1)(b) where the appellant gives notice, in accordance with any relevant procedural rules (which may include provision about timing), that he wishes to pursue the appeal in so far as it is brought on that ground.]

(5)An appeal under section 82(2)(a), (c), (d), (e) or (f) shall be treated as finally determined if a deportation order is made against the appellant.

105 Notice of immigration decisionE+W+S+N.I.

(1)The Secretary of State may make regulations requiring a person to be given written notice where an immigration decision is taken in respect of him.

(2)The regulations may, in particular, provide that a notice under subsection (1) of a decision against which the person is entitled to appeal under section 82(1) must state—

(a)that there is a right of appeal under that section, and

(b)how and when that right may be exercised.

(3)The regulations may make provision (which may include presumptions) about service.

106 RulesE+W+S+N.I.

(1)The Lord Chancellor may make rules—

(a)regulating the exercise of the right of appeal under section 82 [F13[F14, 83 or 83A] or by virtue of section 109] ;

(b)prescribing procedure to be followed in connection with proceedings under section 82 [F15[F16, 83 or 83A] or by virtue of section 109] .

[F17(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.]

(2)In particular, rules under subsection (1)—

(a)must entitle an appellant to be legally represented at any hearing of his appeal;

(b)may enable or require an appeal to be determined without a hearing;

(c)may enable or require an appeal to be dismissed without substantive consideration where practice or procedure has not been complied with;

(d)may enable or require [F18the Tribunal] to treat an appeal as abandoned in specified circumstances;

(e)may enable or require F19. . . the Tribunal to determine an appeal in the absence of parties in specified circumstances;

(f)may enable or require F19. . . the Tribunal to determine an appeal by reference only to written submissions in specified circumstances;

(g)may make provision about the adjournment of an appeal by [F20the Tribunal](which may include provision prohibiting [F20the Tribunal] from adjourning except in specified circumstances);

(h)may make provision about the treatment of adjourned appeals by [F21the Tribunal](which may include provision requiring [F21the Tribunal] to determine an appeal within a specified period);

(i)may make provision about the use of electronic communication in the course of or in connection with a hearing;

(j)F22. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(k)F22. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(l)may enable the Tribunal to set aside a decision of the Tribunal;

(m)must make provision about the consolidation of appeals F23. . . ;

(n)may make provision (which may include presumptions) about service;

(o)may confer ancillary powers on F24. . . the Tribunal;

(p)may confer a discretion on F25. . . the Tribunal;

(q)may require F26. . . the Tribunal to give notice of a determination to a specified person;

(r)may require or enable notice of a determination to be given on behalf of F27. . . the Tribunal;

(s)may make provision about the grant of bail by F28. . . the Tribunal (which may, in particular, include provision which applies or is similar to any enactment).

[F29(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);

(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.]

(3)Rules under subsection (1)—

(a)may enable F30. . . the Tribunal to make an award of costs or expenses,

(b)may make provision (which may include provision conferring discretion on a court) for the taxation or assessment of costs or expenses,

(c)may make provision about interest on an award of costs or expenses (which may include provision conferring a discretion or providing for interest to be calculated in accordance with provision made by the rules),

(d)may enable F31. . . the Tribunal to disallow all or part of a representative’s costs or expenses,

(e)may enable F32. . . the Tribunal to require a representative to pay specified costs or expenses, and

[F33(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).]

(4)A person commits an offence if without reasonable excuse he fails to comply with a requirement imposed in accordance with rules under subsection (1) to attend before F34. . . the Tribunal—

(a)to give evidence, or

(b)to produce a document.

(5)A person who is guilty of an offence under subsection (4) shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Annotations:

Amendments (Textual)

F14Words in s. 106(1)(a)(b) substituted (31.8.2006) by Immigration, Asylum and Nationality Act 2006 (c. 13), ss. 14, 62, Sch. 1 para. 9; S.I. 2006/2226, art. 3, Sch. 1 (subject to transitional provisions in art. 4)

F16Words in s. 106(1)(a)(b) substituted (31.8.2006) by Immigration, Asylum and Nationality Act 2006 (c. 13), ss. 14, 62, Sch. 1 para. 9; S.I. 2006/2226, art. 3, Sch. 1 (subject to transitional provisions in art. 4)

Modifications etc. (not altering text)

C3S. 106 extended by 1981 c. 61, s. 40A(7) (as substituted (1.4.2003) by 2002 c. 41, ss. 4(1), 162(2) (with s. 159); S.I. 2003/754, art. 2(1), Sch. 1))

107 Practice directionsE+W+S+N.I.

(1)The President of [F35the Tribunal] may give directions as to the practice to be followed by the Tribunal.

(2)F36. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F37(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.]

108 Forged document: proceedings in privateE+W+S+N.I.

(1)This section applies where it is alleged—

(a)that a document relied on by a party to an appeal under section 82 [F38, 83 or 83A] is a forgery, and

(b)that disclosure to that party of a matter relating to the detection of the forgery would be contrary to the public interest.

(2)[F39The Tribunal]

(a)must investigate the allegation in private, and

(b)may proceed in private so far as necessary to prevent disclosure of the matter referred to in subsection (1)(b).