The Tribunal Procedure (Upper Tribunal) (Immigration and Asylum Chamber) (Amendment) Rules 2024

Amendments to the Tribunal Procedure (Upper Tribunal) Rules 2008

2.—(1) The Tribunal Procedure (Upper Tribunal) Rules 2008(1) are amended as follows.

(2) In rule 1 (citation, commencement, application and interpretation)—

(a) after paragraph (2) insert—

“(2A) The Suspensive Claims Rules apply to proceedings before the Upper Tribunal in the circumstances and in the manner specified in those Rules.”;

(b) in paragraph (3)—

(i) in the appropriate place insert—

““the 2023 Act” means the Illegal Migration Act 2023;”

““suspensive claim” has the meaning given in section 38(2) of the 2023 Act; ”

““the Suspensive Claims Rules” means the rules set out in Schedule 5(2);”;

(ii) in the definition of “applicant”—

(aa) at the end of paragraph (a) omit “or”;

(bb) at the end of paragraph (b) insert “or”;

(cc) after paragraph (b) insert—

“(c) a person who applies to the Upper Tribunal under rule 19 (application for a declaration) of the Suspensive Claims Rules for a declaration;”.

(3) In rule 11(1) (representatives) for “in an asylum or immigration case” substitute “in an asylum case, immigration case or suspensive claim case”.

(4) After rule 26C (financial sanctions cases) insert—

“Suspensive Claims Rules

26D.   Schedule 5 makes provision for the Suspensive Claims Rules.”.

(5) After Schedule 4 (procedure in financial sanctions cases) insert—

Rule 26D

“SCHEDULE 5 The Suspensive Claims Rules

PART 1 Preliminary

Interpretation and relationship with the Principal Rules

1.— (1) The rules in this Schedule are the Suspensive Claims Rules.

(2) A rule referred to in this Schedule by number alone means a rule in the Suspensive Claims Rules.

(3) In this Schedule—

“appeal” means an appeal notified under rule 8(2) or 9(2);

“claim period” has the meaning given in section 42(7) or, as the case may be, 43(7) of the 2023 Act;

“final hearing” means a hearing at which the Upper Tribunal intends to make a decision which disposes of proceedings;

“new matter” has the meaning given in section 48(4) of the 2023 Act;

“suspensive claim decision” means the decision made by the Secretary of State under section 42(2)(b) or 43(2)(b) of the 2023 Act;

“the Principal Rules” means rules 1 to 48 of the Tribunal Procedure (Upper Tribunal) Rules 2008;

(4) Subject to the modifications in rule 2, the Principal Rules apply for the purposes and the interpretation of the Suspensive Claims Rules, except for rules 5(3)(h), 12, 17(3), 21, 22, 23, 24, 25, 26A, 27, 28, 28A, 29, 30, 31, 32, 33, 33A, 36, and 40 of the Principal Rules.

Modification of the Principal Rules

2.— (1) Rule 4 (delegation to staff) of the Principal Rules does not apply to the function mentioned in rule 15(3) (readiness check).

(2) Rule 5(3)(a) (power to extend time) of the Principal Rules is modified so far as it applies to rules—

(a) 4(2) (application for permission to appeal),

(b) 6(b) (late application for permission to appeal),

(c) 7(3) and (5) (decision in relation to permission to appeal with or without a hearing),

(d) 8(2) (notice of appeal where permission to appeal is granted),

(e) 9(2) (notice of appeal where permission to appeal is not required),

(f) 10(b) (late notice of appeal),

(g) 11(b) (steps to be taken by the Upper Tribunal upon receipt of the notice of appeal),

(h) 16(2) (adjournment of the final hearing),

(i) 17(2) (notice of decisions),

(j) 19(2)(a) (application for a declaration),

(k) 20(b) (late application for a declaration), and

(l) 21(2) (decision in relation to an application for a declaration),

such that the Upper Tribunal may only extend the time or period for complying with a rule if it is satisfied that to do so is the only way to secure that justice is done in a particular application or appeal.

(3) Rule 34(1) (decision with or without a hearing) of the Principal Rules is subject to rules 7(1) (decision in relation to permission to appeal with or without a hearing) and 21(1) (decision in relation to an application for a declaration).

Scope of the Suspensive Claims Rules

3.   The Suspensive Claims Rules apply to proceedings brought under sections 44, 45, 46 and 48 of the 2023 Act.

PART 2 Applications for permission to appeal

Application for permission to appeal

4.— (1) This rule applies where pursuant to section 45(2) of the 2023 Act the appellant requires permission to appeal against a suspensive claim decision.

(2) An application for permission to appeal must be made in writing and received by the Upper Tribunal within the period of 7 working days beginning with the day on which the appellant received the notice in which the Secretary of State certified the appellant’s suspensive claim as clearly unfounded.

Contents of the application for permission to appeal

5.— (1) The application for permission to appeal must state—

(a) the name and address of the appellant;

(b) the name and address of the appellant’s representative (if any);

(c) if no representative is named under sub-paragraph (b), the postal address or any email address where documents for the appellant may be sent or delivered;

(d) details of the suspensive claim decision being challenged;

(e) the statutory grounds (see section 44(3) of the 2023 Act) on which the appellant relies; and

(f) the reasons why the appellant contends that their suspensive claim was not clearly unfounded.

(2) The appellant must provide with the application a copy of—

(a) the notice of the suspensive claim decision being challenged or if it is not practicable to include the notice of that decision, the reasons why it is not practicable;

(b) unless already included in the notice mentioned in paragraph (2)(a), the notice of certification that their suspensive claim was clearly unfounded or, if it is not practicable to include the notice of that certification, the reasons why it is not practicable; and

(c) any documents in support of the appellant’s case which have not been supplied to the Secretary of State.

Late application for permission to appeal

6.   If the appellant provides the application to the Upper Tribunal later than the time specified by rule 4(2) (application for permission to appeal), or allowed by an extension of time granted under rule 5(3)(a) (power to extend time) of the Principal Rules—

(a) the application must include a request for an extension of time and the reason why the application was not provided in time; and

(b) unless the Upper Tribunal extends time for the application under rule 5(3)(a) (power to extend time) of the Principal Rules, the Upper Tribunal must not admit the application.

Decision in relation to permission to appeal with or without a hearing

7.— (1) Subject to paragraph (2), the Upper Tribunal must determine an application for permission to appeal without a hearing.

(2) When considering the application, the Upper Tribunal may direct that the application be determined at a hearing if it considers that a hearing is necessary to secure that justice is done in relation to a particular application.

(3) Subject to paragraph (8), where the Upper Tribunal makes a direction under paragraph (2), the hearing must be set for a date not later than 6 working days after the day on which the Upper Tribunal received the application for permission under rule 4(2) (application for permission to appeal).

(4) The Upper Tribunal may, when considering an application without a hearing, or, in any direction under paragraph (2)—

(a) identify any issue or issues on which the appellant should specifically focus their submissions at the hearing in order to assist the Upper Tribunal to determine the application; and

(b) direct the Secretary of State to serve and file written submissions and to attend the hearing.

(5) Subject to paragraph (8), the Upper Tribunal must determine the application for permission to appeal and notify the parties of that determination within a period of 7 working days beginning with the day on which the Upper Tribunal received the application for permission under rule 4(2).

(6) If the Upper Tribunal refuses permission to appeal or refuses to admit a late application for permission, it must send written notice of the refusal and of the reasons for the refusal to the parties.

(7) If the Upper Tribunal gives permission to appeal, it must send written notice of the permission to the parties.

(8) If at any time a new matter is raised under rule 18 (new matters), the Upper Tribunal may extend the periods mentioned in paragraphs (3) or (5) by a period of up to 3 working days.

PART 3 Appeals

Notice of appeal where permission to appeal is granted

8.— (1) This rule applies if the Upper Tribunal gives permission to the appellant to appeal under rule 7(7) (decision in relation to permission to appeal with or without a hearing).

(2) A notice of appeal must be in writing and received by the Upper Tribunal within the period of 7 working days beginning with the day on which the appellant received the written notice mentioned in rule 7(7).

(3) The notice of appeal may state that the application received by the Upper Tribunal under rule 4(2) (application for permission to appeal) stands as the notice of appeal.

(4) If the notice of appeal does not state that the application received by the Upper Tribunal under rule 4(2) stands as the notice of appeal, the appellant must provide with the notice of appeal—

(a) any evidence, information or documents in support of the appellant’s case which were not provided to the Secretary of State and which were not provided under rule 5(2) (contents of the application for permission to appeal);

(b) the statutory grounds (see section 44(3) of the 2023 Act) on which the appellant relies; and

(c) any further information or documents required by a practice direction.

Notice of appeal where permission to appeal is not required

9.— (1) This rule applies where pursuant to section 44(1) and (2) of the 2023 Act the appellant appeals against a suspensive claim decision.

(2) A notice of appeal must be in writing and received by the Upper Tribunal within the period of 7 working days beginning with the day on which the appellant received written notice of the suspensive claim decision.

(3) The notice of appeal must state—

(a) the name and address of the appellant;

(b) the name and address of the appellant’s representative (if any);

(c) if no representative is named under sub-paragraph (b), the postal address or any email address where documents for the appellant may be sent or delivered;

(d) details of the suspensive claim decision being challenged; and

(e) the statutory grounds (see section 44(3) of the 2023 Act) on which the appellant relies.

(4) The appellant must provide with the notice of appeal a copy of—

(a) the notice of the suspensive claim decision being challenged or, if it is not practicable to include the notice of that decision, the reasons why it is not practicable;

(b) any documents in support of the appellant’s case which have not been supplied to the Secretary of State; and

(c) any further information or documents required by a practice direction.

Late notice of appeal

10.   If the appellant provides the notice of appeal to the Upper Tribunal later than the time specified in rule 8(2) (notice of appeal where permission to appeal is granted) or 9(2) (notice of appeal where permission to appeal is not required), or allowed by an extension of time granted under rule 5(3)(a) (power to extend time) of the Principal Rules—

(a) the notice of appeal must include a request for an extension of time and the reason why the notice of appeal was not provided in time; and

(b) unless the Upper Tribunal extends time for the notice of appeal under rule 5(3)(a) (power to extend time) of the Principal Rules, the Upper Tribunal must not admit the notice of appeal.

Steps to be taken by the Upper Tribunal upon receipt of the notice of appeal

11.   Not later than the next working day after the day on which the Upper Tribunal receives a notice of appeal, it must—

(a) send to the Secretary of State a copy of the notice of appeal and the accompanying documents or information provided by the appellant;

(b) subject to rule 16 (adjournment of the final hearing), set a date for the final hearing of the appeal which is not later than 20 working days after the day on which the notice of appeal is received; and

(c) send the parties directions which set out—

(i) the date of the hearing;

(ii) the dates on which the actions required by rules 12(2) (Secretary of State’s response to the notice of appeal), 13(2) (appellant’s reply) and 14(2) (Secretary of State’s written statement) must be completed; and

(iii) that if at any time either party considers it is not capable of completing the actions required by rules 12(2), 13(2) and 14(2) within the timescales set out therein, it must make an application to the Upper Tribunal for an extension of time under rule 5(3)(a) (power to extend time) of the Principal Rules.

Secretary of State’s response to the notice of appeal

12.— (1) When the Secretary of State receives a copy of the notice of appeal, the Secretary of State must provide the Upper Tribunal and the appellant with—

(a) the following information—

(i) the name and address of the Secretary of State;

(ii) the name and address of the Secretary of State’s representative (if any);

(iii) an email or postal address where documents for the Secretary of State may be sent or delivered;

(iv) details of any other asylum or immigration decision, any other suspensive claim decision, or any other outstanding decision of the Secretary of State relating to the appellant;

(v) whether the Secretary of State wants the appeal to be decided at a hearing;

(vi) whether the Secretary of State intends to provide a written statement under rule 14(2) (Secretary of State’s written statement); and

(b) the following documents if not provided with the notice of appeal—

(i) a copy of the notice of the suspensive claim decision to which the notice of appeal relates and any other document the Secretary of State provided to the appellant giving reasons for that decision;

(ii) any statement of evidence or application form completed by the appellant;

(iii) any record of an interview with the appellant in relation to the suspensive claim decision being appealed;

(iv) any other unpublished document which is referred to in a document mentioned in sub-paragraph (b)(i) or otherwise relied upon by the Secretary of State;

(v) any documents provided to the Secretary of State in support of the appellant’s application for a suspensive claim; and

(vi) any other document directed or ordered by the Upper Tribunal.

(2) The documents and information listed in paragraph (1) must be received not later than the next working day after the day on which the Secretary of State received the notice of appeal and any accompanying documents or information provided under rule 11(a) (steps to be taken by the Upper Tribunal upon receipt of the notice of appeal).

Appellant’s reply

13.— (1) If the appellant is represented the appellant must provide the Upper Tribunal and the Secretary of State with—

(a) an appeal skeleton argument which complies with any practice direction; and

(b) copies of the evidence relied upon in the appeal skeleton argument, insofar as that evidence is not already contained in the documents provided by the appellant with the notice of appeal or by the Secretary of State under rule 12.

(2) The appellant must send the documents specified in paragraph (1) not later than 7 working days after receipt of the information and documents provided under rule 12.

(3) A practice direction may disapply the requirement in paragraph (1) in a specified category of case.

Secretary of State’s written statement

14.— (1) This rule applies if the Secretary of State has indicated that it intends to provide a written statement under rule 12(1)(a)(vi) (Secretary of State’s response to the notice of appeal).

(2) The Secretary of State must not later than 9 working days after notifying the Upper Tribunal and the appellant that it intends to provide a written statement, send to the Upper Tribunal and appellant—

(a) a written statement which complies with any practice direction, of whether the Secretary of State opposes all or part of the appellant’s case and if so the grounds for such opposition; or

(b) notice that the Secretary of State no longer intends to provide a written statement.

Readiness check

15.— (1) Not later than 15 working days after the Upper Tribunal receives a notice of appeal, the Upper Tribunal must conduct in relation to the appeal a readiness check and determine—

(a) whether there is any reason why the final hearing set in accordance with rule 11(b) (steps to be taken by the Upper Tribunal upon receipt of the notice of appeal) cannot proceed; and

(b) whether the appeal will be determined with or without a hearing.

(2) The parties may make representations as to the matters mentioned in paragraph (1)(a) and (b).

(3) The Upper Tribunal may, if it is satisfied that it is the only way to secure that justice is done in relation to a particular appeal, adjourn the hearing set in accordance with rule 11(b).

(4) The Upper Tribunal must, not later than the next working day after it makes a determination under paragraph (1), notify the parties in writing of that determination.

(5) The notification mentioned in paragraph (4)—

(a) must state–—

(i) whether the date set in accordance with rule 11(b) remains and, if adjourned, what the revised date of the final hearing will be;

(ii) whether the appeal will be determined with or without a hearing; and

(b) may include whatever direction or directions the Upper Tribunal considers appropriate.

Adjournment of the final hearing

16.— (1) If at any time a new matter has been raised under rule 18 (new matters), the Upper Tribunal may adjourn the hearing set in accordance with rule 11(b) (steps to be taken by the Upper Tribunal upon receipt of the notice of appeal) by a period of up to 3 working days.

(2) Paragraph (1) is without prejudice to the ability of the Upper Tribunal to adjourn the final hearing of the appeal at any time if the Upper Tribunal is satisfied that the condition mentioned in rule 2(2) (modification of the Principal Rules – power to extend time) is satisfied.

Notice of decisions

17.— (1) Where the Upper Tribunal decides an appeal, it must send to the parties—

(a) a notice of the decision and the reasons for it; and

(b) notification of any right of appeal against the decision and the time within which, and the manner in which, such right of appeal may be exercised.

(2) The Upper Tribunal must send the notice and the notification—

(a) where the appeal was decided at a hearing, not later than 2 working days after the day on which the hearing of the appeal was concluded; or

(b) in any other case, not later than 2 working days after the day on which the appeal was decided.

New matters

18.— (1) An appellant who wishes to raise a new matter must—

(a) notify the Upper Tribunal and the Secretary of State that they wish to raise a new matter; and

(b) set out the details of the new matter either orally at a hearing or in writing during the course of proceedings on an application or appeal.

(2) Subject to paragraph (4), the Secretary of State must within the period of 3 working days beginning with the day on which any of the circumstances mentioned in paragraph (3) arise, send written notice of its decision to the Upper Tribunal and the appellant indicating whether the Secretary of State gives consent to the Upper Tribunal to consider the new matter when deciding the application or appeal and if not, why not.

(3) The circumstances referred to in paragraph (2) are as follows—

(a) where the appellant provides notice under paragraph (1);

(b) where the appellant submits to the Upper Tribunal and the Secretary of State, any document in support of the application or appeal not previously submitted to the Secretary of State, and which the Secretary of State considers raises a new matter; or

(c) in any other case, where the Secretary of State considers that an appellant has raised a new matter.

(4) If the new matter is first raised at a hearing, the Secretary of State may provide consent to the Upper Tribunal considering the new matter during the course of that hearing.

(5) If the Secretary of State gives consent under paragraph (2) or (4), the Upper Tribunal may consider the new matter when deciding the application or appeal.

(6) If the Secretary of State does not provide consent under paragraph (2) or (4), or otherwise fails to provide notice under paragraph (2), the Upper Tribunal must as soon as reasonably practicable determine of its own motion whether there were compelling reasons for the appellant not to have provided details of the new matter to the Secretary of State before the end of the claim period.

(7) The Upper Tribunal must, in making a determination as to whether there were compelling reasons for the appellant not to have provided details of the new matter to the Secretary of State before the end of the claim period, consider—

(a) any submissions from the appellant as to why there were compelling reasons for not providing the details of the matter to the Secretary of State before the end of the claim period; and

(b) any submissions from the Secretary of State in response to the appellant’s submission as to why there were no such reasons.

(8) If the new matter is first raised at a hearing and the Upper Tribunal during the course of that hearing makes a determination under paragraph (6), the Upper Tribunal—

(a) must in its written reasons record the compelling reasons, or if it decides there were no such reasons, why any reasons given were not compelling; and

(b) if it decides such compelling reasons existed, may consider the new matter when deciding the application or appeal.

(9) If the new matter is raised otherwise than at a hearing and the Upper Tribunal determines that there were compelling reasons for the appellant not to have provided details of the new matter to the Secretary of State before the end of the claim period, the Upper Tribunal—

(a) must not later than the next working day after it made the determination notify the parties in writing of that determination; and

(b) may consider the new matter when deciding the application or appeal.

(10) In this rule an “application” is an application for permission to appeal under rule 4(2).

PART 4 Declarations in relation to suspensive claims out of time

Application for a declaration

19.— (1) This rule applies where a person requires a declaration from the Upper Tribunal under section 46(4) of the 2023 Act that there were compelling reasons for the person not to make a suspensive claim within the claim period.

(2) An application for a declaration under paragraph (1) must—

(a) be in writing and received by the Upper Tribunal within the period of 7 working days beginning with the day on which the applicant received notice of the decision of the Secretary of State that there were not compelling reasons why the applicant failed to make the suspensive claim within the claim period;

(b) state—

(i) the name and address of the applicant;

(ii) the name and address of the applicant’s representative (if any);

(iii) if no representative is named under sub-paragraph (2)(b)(ii), the postal address or any email address where documents for the applicant may be sent or delivered;

(iv) the reasons why the applicant did not make the suspensive claim within the claim period; and

(v) the grounds on which the applicant contends that those reasons were compelling; and

(c) contain a copy of—

(i) the notice of decision in relation to which the application is brought, or if it is not practicable to include that notice, the reasons why it is not practicable;

(ii) any documents or evidence which were supplied by the applicant to the Secretary of State in relation to compelling reasons why the applicant did not make the suspensive claim within the claim period;

(iii) any relevant documents or evidence which have not been supplied to the Secretary of State in support of the applicant’s contention that those reasons were of a compelling nature; and

(iv) any further information or documents required by a practice direction.

Late application for a declaration

20.   If the applicant provides the application to the Upper Tribunal later than the time allowed by rule 19(2)(a) (application for a declaration), or allowed by an extension of time granted under rule 5(3)(a) (power to extend time) of the Principal Rules—

(a) the application must include a request for an extension of time and the reason why the application was not provided in time; and

(b) unless the Upper Tribunal extends time for the application under rule 5(3)(a) (power to extend time) of the Principal Rules, the Upper Tribunal must not admit the application.

Decision in relation to an application for a declaration

21.— (1) The Upper Tribunal must determine the application under rule 19(2) (application for a declaration) without a hearing.

(2) Unless the Upper Tribunal extends time under rule 5(3)(a) (power to extend time) of the Principal Rules, it must determine the application and notify the parties of that determination within a period of 7 working days beginning with the day on which the Upper Tribunal received the application under rule 19(2)(a).

(3) If the Upper Tribunal does not allow the application, the notice mentioned in paragraph (2) must state that there were not compelling reasons why the applicant did not make the suspensive claim within the claim period and give reasons why any reasons given were not compelling.

(4) If the Upper Tribunal allows the application, the notice mentioned in paragraph (2) must—

(a) record the compelling reasons why the applicant did not make the suspensive claim within the claim period; and

(b) make an order requiring the Secretary of State to comply with section 46(6) of the 2023 Act.”.

(1)

S.I. 2008/2698 (L. 15); relevant amending instruments are S.I. 2009/274, 2009/1975, 2010/43, 2010/44, 2010/747, 2011/2343, 2013/2067, 2014/514, 2017/723, 2020/61, 2020/651 and 2020/1309.

(2)

Schedule 5 is inserted by rule 2(4) of this instrument.