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Nationality, Immigration and Asylum Act 2002

Appeal to adjudicator

Section 81 and Schedule 4: Adjudicators

216.Section 81 sets out the criteria for the appointment of adjudicators by the Lord Chancellor and for functions to be assigned to the Chief Adjudicator, Deputy Chief Adjudicator, Regional Adjudicators and Deputy Regional Adjudicators. Subsection (1) requires the Lord Chancellor to appoint adjudicators to hear appeals under Part 5 of the Act. Subsection (2) states the qualifications or experience necessary for appointment. Subsection (3) requires the Lord Chancellor to appoint a Chief Adjudicator, and enables him to appoint a Deputy Chief Adjudicator, one or more Regional Adjudicators and one or more Deputy Regional Adjudicators. Subsection (4) requires the Chief Adjudicator to carry out such functions as the Lord Chancellor may assign. Subsection (5) sets out the duties of the Deputy Chief Adjudicator. Subsection (6) sets out that Regional Adjudicators shall perform such functions as are assigned to them by the Chief Adjudicator. Subsection (7) sets out the duties of a Deputy Regional Adjudicator. Subsection (8) provides for Schedule 4 to have effect.

217.Schedule 4 makes provision on the terms of office of, proceedings before, and payment arrangements for, adjudicators and their support staff. Paragraph 1 deals with the terms of office for adjudicators. Paragraph 2 requires the Chief Adjudicator to arrange for adjudicators to hear appeals and specifies that these must take place when and where the Lord Chancellor determines. Paragraph 3 enables the Chief Adjudicator to determine that a panel consisting of more than one adjudicator may deal with a particular appeal or category of appeal or appeal-related proceedings. Paragraph 4 requires adjudicators to carry out duties allocated by the Chief Adjudicator.

218.Paragraph 5 of Schedule 4 enables the Lord Chancellor to appoint staff to support adjudicators. Paragraph 6 relates to the remuneration, allowances and expenses of adjudicators and their staff. Paragraph 7 concerns payment of compensation on ceasing to be an adjudicator in special circumstances.

Section 82: Right of appeal: general

219.Section 82 and related sections differ considerably in structure from the earlier legislation on immigration appeals, in order to produce a clearer package of appeal rights. The scheme is based on the principle that there is one right of appeal against any of the listed "immigration decisions". Where multiple decisions would result in multiple rights of appeal these are subsumed into one appeal. All appealable grounds of appeal can be raised in that appeal (section 86). The requirement for a person to state all grounds for their application, see section 120, helps to ensure that all relevant issues are dealt with in one appeal. Exceptions and limitations restrict rights of appeal in certain circumstances and define which appeals can be exercised in the United Kingdom (sections 88 to 95).

220.Subsection (2) lists the "immigration decisions" which attract rights of appeal. These are basically the same decisions that trigger a right of appeal under Part IV of the 1999 Act, but there is a new decision (revocation of indefinite leave under section 76 of the Act). The position relating to removal directions has been clarified. It is the initial immigration decision which may result in removal which attracts the right of appeal, not any consequential giving of directions to the carrier or re-giving of directions following an appeal or temporary suspension.

221.Subsection(3) states that where a decision curtails a person's leave to enter or remain so that none remains, or revokes indefinite leave, the variation does not have effect during the period when an appeal may be brought or while an appeal is pending.

Section 83: Appeal: asylum claim

222.Section 83 gives a right of appeal to an adjudicator on asylum grounds only (see section 84(3)) when an asylum claimant is refused asylum but granted leave to enter or remain for more than a year. If periods of less than 12 months are given, the right of appeal arises when an aggregate of 12 months leave has been given since the decision to refuse asylum was taken. There is no right of appeal under section 82 for a person in this position and the purpose of this provision is to provide a specific single-issue asylum appeal.

Section 84: Grounds of appeal

223.Section 84 lists in subsection (1) the grounds on which an appeal under section 82(1) can be brought. Listing the grounds in this way both illustrates what grounds are possible or acceptable and follows the categories of appeal set out in the earlier legislation, for example, immigration appeals, asylum appeals, human rights appeals and race relations appeals. What was a separate category of appeal is now simply a possible ground for the one appeal.

Section 85: Matters to be considered

224.Section 85(1) provides that an appeal under section 82(1) shall be treated by an adjudicator as including an appeal against any decision where the person has a right of appeal under section 82(1). Thus it is not necessary for a person to lodge separate appeals if subject to different immigration decisions: all appealable decisions are to be subsumed in the one appeal.

225.If a person makes a statement under section 120 in response to a requirement to state any additional grounds (the “one-stop warning”), the adjudicator must consider any of the matters raised in the statement, if these matters amount to a ground of appeal, as listed in section 84. It does not matter whether the statement is made before or after the appeal is commenced (subsections (2) and (3)).

226.Subsection (4) allows the adjudicator to consider any evidence that he thinks is relevant to the substance of the decision, including any evidence which arises after the date of decision. The subsection also applies to appeals under section 83 where asylum has been refused but leave to remain granted. But subsection (4) does not apply to an appeal against the refusal of an entry clearance or a certificate of entitlement: in these cases the adjudicator can only consider the circumstances as they were at the time of the decision to refuse.

Section 86: Determination of Appeal

227.This section describes what adjudicators are required to do in consideration of appeals under sections 82(1) or 83. Adjudicators will be required to determine any ground of appeal which is raised in response to any decision against which an appeal has been lodged or against which an appeal is to be treated as included by virtue of section 85(1). They must also determine any other matters which are raised which must be considered under section 85.

228.Subsection (3) states that an adjudicator must allow an appeal if he thinks a relevant decision was not in accordance with the law or that a discretion should have been exercised differently. Otherwise, the appeal must be dismissed (subsection (5)). A refusal to depart from the Immigration Rules does not count as the exercise of a discretion for this purpose (subsection (6)).

229.Subsection (4) indicates that a decision that a person should be removed from the United Kingdom will not be regarded as unlawful if the decision to remove could have been lawfully made under another provision. Thus if the adjudicator comes to a different conclusion from the Secretary of State about the person's nationality or immigration status, but nevertheless considers that the decision to remove is correct on its merits, the appeal does not have to be allowed on a technicality and the process re-started.

Section 87: Successful appeal: direction

230.Section 87 deals with directions which can be given by an adjudicator when allowing an appeal. There is a power under subsection (1) for an adjudicator to give a direction for the purposes of giving an effect to his decision. Subsection (2) requires a decision-maker to act in accordance with any relevant direction. Subsection (3) provides that a direction shall not have effect while an appeal to the Tribunal or a further appeal could be brought, or has been brought and not been finally determined. Under subsection (4) the direction is treated as part of the adjudicator's determination.

Sections 88 to 99:  Exceptions and limitations

231.Sections 88 to 99 set out detailed provisions relating to exceptions and limitations on the general right of appeal as well as stating when appeals may be pursued in the United Kingdom (i.e. when they are "suspensive"). It should be noted that the exceptions do not generally prevent an appeal being brought on asylum, human rights or race discrimination grounds.

Section 88: Ineligibility

232.Section 88 deals with cases where the application has been refused because the person (or a person on whom his application depends) does not meet a basic non-discretionary requirement of the Immigration Rules: thus any appeal based on the Rules could not succeed. An additional category (to those established in the 1999 Act) is subsection (2)(d), which prevents an appeal where the applicant wished to stay for a purpose not covered by the Immigration Rules. Some categories of application currently regarded as "concessions" outside the Rules will be incorporated into the Rules. An appeal may nevertheless be brought on asylum, human rights or race discrimination grounds.

Section 89: Visitor or student without entry clearance

233.Section 89 retains the 1999 Act exceptions relating to a person without entry clearance who applies for leave to enter the United Kingdom at a port of entry as a visitor, a student (who has not enrolled on a course or has enrolled on a course that lasts less than six months) or a dependant of such a person. No appeal can be brought against a decision to refuse entry in these cases (subsection (2)), except on asylum, human rights or race discrimination grounds.

Section 90: Non-family visitor

234.Section 90 restricts appeals against the refusal of entry clearance for a visit to those cases involving a visit to a family member in the United Kingdom. But it does not prevent any other visit applicant who is refused entry clearance from appealing on asylum, race or human rights grounds. Subsections (2) and (3) provide for regulations to be made to define who are to be regarded as family members.

Section 91: Student

235.Section 91 retains the exceptions for appeals by students and their dependants who are refused entry clearance. There is no appeal if the person has not been accepted for a course, or has been accepted and the course lasts for less than six months. This section does not prevent appeals on race or human rights grounds.

Section 92: Appeal from within United Kingdom: general

236.Section 92 sets out the circumstances in which a person may appeal while he is in the United Kingdom, suspending any removal which might follow from the decision. While the appeal is pending a person who has made an asylum or human rights claim or European claim while in the United Kingdom may appeal while in the United Kingdom (subsection (4)). See sections 93 and 94 for cases where the appeal must be brought after the claimant has left the United Kingdom.

237.Other appeals will only be suspensive when made against certain types of decision (subsections (2) and (3)). These include: a decision to make a deportation order; a refusal of leave to enter at the port if the applicant holds an entry clearance or work permit; a decision relating to a person who applied for an extension of stay before his existing leave expired; and a decision to curtail a person's leave to enter or remain. Appeals against the refusal of a certificate of entitlement under section 10 and revocation of indefinite leave are also suspensive.

Section 93: Appeal from within United Kingdom: "third country" removal

238.Clause 93 is broadly similar to a provision in earlier legislation relating to cases where a certificate has been issued under section 11 or 12 of the 1999 Act (removal of asylum claimants to a "third country"). Under subsection (1) a person may not appeal under section 82(1) while in the United Kingdom if a certificate has been issued. If, however, the appellant has made a human rights claim which the Secretary of State has not certified as clearly unfounded, the person can appeal while in the United Kingdom (subsection (2)).

Section 94: Appeal from within the United Kingdom: unfounded human rights or asylum claim

239.This section applies to a right of appeal against an immigration decision (see section 82(1)). Where the person has made either an asylum claim or a human rights claim, or both, an appeal may not be brought while the person is in the United Kingdom by virtue of section 92(4) i.e. on the grounds that they have made an asylum or human rights claim, if the Secretary of State certifies that the claim or claims are clearly unfounded.

240.Subsection (3) provides that if the asylum or human rights claimant is entitled to reside in any of the States listed in subsection (4) then the claim shall be certified unless the Secretary of State is satisfied that it is not clearly unfounded. The States listed are all "EU accession states": Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, the Slovak Republic and Slovenia.

241.Subsection (5) enables the Secretary of State, by order, to add a State, or part of a State to the list in subsection (4) if he is satisfied that there is in general no serious risk of persecution in the State or part State of persons entitled to reside there and that removal to that State will not in general contravene the United Kingdom’s obligations under ECHR. Subsection (6) allows for a State or part State that has been added in accordance with subsection (5) to be removed, by order.

242.Subsection (7) provides that an appeal may not be brought while the person is in the United Kingdom in reliance on section 92(4), if the Secretary of State certifies that it is intended to remove the applicant to a third country of which he is not a national and that there is no reason to suppose that his human rights will be breached in that country. Subsection (8) provides that a country which is named in the certificate to which it is intended to remove an applicant under subsection (7), is to be regarded as one where the applicant's rights under the Refugee Convention will be observed and from where he will not be sent to another country other than in accordance with the Convention.

243.Subsection (9) provides that where a certificate is issued under this section an appeal that is made outside of the United Kingdom shall be considered as if the applicant had not been removed from this country.

Section 95: Appeal from outside United Kingdom: removal

244.This provision prevents an appeal being lodged on asylum grounds by a person who is outside the United Kingdom. It does not apply when a person has been removed on the basis that their asylum claim has been certified under section 94: in that case the asylum appeal must necessarily be made from abroad.

Section 96: Earlier right of appeal

245.Sections 96 and 120 set out the "one-stop" arrangements which prevent a person from seeking to appeal when they have already had an opportunity to put their case to an adjudicator. In all cases, the person will have been required to state any grounds for their application. The earlier legislation (section 73 of the 1999 Act) has been extended in a number of respects. This section covers situations where a person chooses not to appeal a decision but nevertheless makes a further claim or application; where a person withdraws or abandons an appeal but makes a further claim or application; and where a person chooses not to make a claim in response to a requirement under section 120 which would give rise to a right of appeal but has no right of appeal in respect of the matters he has actually put forward. The section also makes it clearer that certification powers are, where the relevant conditions are met, also applicable where a further claim or application is made after leaving and returning to the United Kingdom.

246.Under subsection (1) no appeal can be brought on any ground against an otherwise appealable decision if the Secretary of State or immigration officer certifies that the person was notified of a right of appeal against another decision - whether or not any appeal was lodged or completed - and that in his opinion the person made their claim or application in order to delay removal, or the removal of a family member, and that in his opinion the person had no other legitimate purpose for making the claim or application. If an appeal has already been brought, the appeal may not be continued if a certificate is issued.

247.Subsection (2) prevents an appeal being brought if the Secretary of State or immigration officer certifies that a new decision relates to a ground which was raised on an earlier appeal, or should have been declared in response to an earlier requirement under section 120, or could have been raised at an appeal had the applicant chosen to exercise a right of appeal. If an appeal has already been brought, the appeal may not be continued if a certificate is issued.

248.Under subsection (3), where a further appeal right does arise, the Secretary of State or immigration officer may certify that certain grounds of appeal were already considered in an earlier appeal. The appellant is not then allowed to rely on those grounds.

249.Subsection (4) indicates that the word “notified” in subsection (1) means notified in accordance with regulations made under section 105. These "Notices" Regulations will set out the circumstances when rights of appeal are to be notified and require that information be given as to how to appeal and the assistance available.

250.Subsection (5) indicates that a claim or application or grounds of appeal can be certified if the person has left the United Kingdom and subsequently returned.

251.Subsection (6) ensures that appeals, or potential appeals, to the Special Immigration Appeals Commission are counted as appeals or potential appeals for the purposes of this section.

Section 97 National Security, &c.

252.Section 97 provides that where the Secretary of State certifies that a decision was taken on certain grounds (subsection (2)) or in reliance on certain information (subsection (3)), the person may not appeal under this Act. However, under the Special Immigration Appeals Commission Act 1997 they may appeal to the Special Immigration Appeals Commission (SIAC), the body set up specifically to deal with appeals where national security and other sensitive matters are a consideration.

Section 98: Other grounds of public good

253.Section 98 prevents a person from appealing a refusal of leave to enter or refusal of entry clearance, or prevents such an appeal from continuing, where the Secretary of State has personally certified that the person’s exclusion from the United Kingdom is conducive to the public good, or directed that the person be refused on that ground. Subsections (4) and (5) provide that this does not prevent the person appealing on human rights or race discrimination grounds, or from appealing refusal of leave to enter on asylum grounds.

Section 99: sections 96 to 98: appeal in progress

254.This section provides for a pending appeal to lapse if it is certified under section 96(1) or (2), 97 or 98.

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