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Immigration and Asylum Act 1999

Immigration and Asylum Act 1999

1999 CHAPTER 33

Commentary on Sections

Schedule 4: Appeals

Schedule 4, Part I: Procedure.

228.Part I of Schedule 4 sets out detailed provisions as to the operation of Part IV covering issues such as notice of appealable matters, the Lord Chancellor’s rules of procedure, hearings in private, leave to appeal and Convention cases.

229.Paragraph 1 concerns notice of appealable matters. The Secretary of State may make regulations to provide for written notice to be given to anyone of a decision or action which attracts a right of appeal under Part IV (whether or not the decision or action is appealable in a particular case). The regulations will allow the form and procedure of such a notice to be defined.

230.Paragraph 3 empowers the Lord Chancellor to make appeal procedure rules. It re-states and extends the rule making powers as set out in section 22(1) of the 1971 Act and transferred to the Lord Chancellor by the Transfer of Functions (Immigration Appeals) Order 1987.

231.Paragraph 4(1)(e) provides that rules may make provision for the circumstances in which an adjudicator or the Immigration Appeal Tribunal may set aside for its decision. It is intended, for example, that the power to set aside will be exercisable on the Tribunal’s own motion when considering an application for leave to appeal to the Court of Appeal.

232.Paragraph 6 concerns hearings in private and paragraph 7 concerns the circumstances in which leave to appeal to the Tribunal must be granted. Paragraph 8 makes it an offence to fail without reasonable excuse to comply with a requirement of an adjudicator or the Tribunal to give evidence or attend.

233.Paragraph 9 applies to Refugee Convention cases and claims under the ECHR. It sets out the circumstances under which an asylum or human rights claim may or may not be certified. The effect of certification by the Secretary of State is to permit a right of appeal to an adjudicator only, subject to the adjudicator’s agreement that the certificate was properly made. The paragraph sets out the circumstances in which a claim may be certified. These include where a claim was made after the appellant was refused leave to enter, recommended for deportation, notified of a decision to deport or removal, or if it is manifestly unfounded, fraudulent or vexatious. A certificate may not be made if evidence suggests there is a reasonable likelihood that the appellant has been tortured in the country to which he is to be sent. A further effect of the new certification procedures in this Act, and the repeal of section 2 of the Asylum and Immigration Act 1996 by Schedule 16, is to abolish to so-called “White List”.

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