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Nationality, Immigration and Asylum Act 2002

Appeal from adjudicator

Section 100 and Schedule 5: Immigration Appeal Tribunal

255.Section 100 provides for the Tribunal to continue in being and gives effect to Schedule 5.

256.Schedule 5 makes further provision about the Immigration Appeal Tribunal. Paragraph 1 requires the Lord Chancellor to appoint its members and paragraph 2 deals with certain terms of office. Paragraph 3 requires the Lord Chancellor to appoint as President a member who holds or has held high judicial office, and paragraph 4 requires him to appoint a legally-qualified member of the Tribunal as Deputy President and sets out his functions. Paragraph 5 requires the Tribunal to sit when and where the Lord Chancellor determines. Paragraphs 6 and 7 enable the Tribunal to sit in more than one division and enable the President to direct that certain cases or classes of case be decided by a single member or a set number of members, or legally qualified members.

257.Paragraph 8 enables the Lord Chancellor to appoint staff for the Tribunal while paragraphs 9 and 10 concern remuneration and allowances for the Tribunal and its staff, Tribunal expenses, and compensation should a member leave in special circumstances. Paragraph 11 sets out the requirements for designation as a legally qualified member of the Tribunal.

Section 101: Appeal to Tribunal

258.Subsection (1) provides an appeal with permission to the Tribunal against the adjudicator’s decision on a point of law. Subsection (2) provides that a party to an application to the Tribunal for permission to appeal may apply to the High Court or, in Scotland, to the Court of Session, for a review of the Tribunal’s decision on the ground that the Tribunal made an error of law. Subsection (3) provides that an application shall be determined by a single judge by reference only to written submissions. The judge may affirm or reverse the Tribunal’s decision, and the judge’s decision is final. Subsection (3) also provides that if, in an application to the High Court, the judge thinks the application had no merit he is required to issue a certificate to this effect. Subsection (4) allows the Lord Chancellor to make an order to repeal the statutory review process set out in subsections (2) and (3). The order is subject to affirmative resolution.

Section 102: Decision

259.Subsection (1) sets out the options open to the Tribunal when determining an appeal: it may affirm the adjudicator's decision (subsection (1)(a)), make any decision which the adjudicator could have made (subsection (1)(b)), remit it to an adjudicator (subsection (1)(c)), affirm any directions made by the adjudicator under section 87, or vary or give any direction which the adjudicator could have given.

260.Subsections (2) and (3) govern the evidence the Tribunal may consider. This is on the same basis as evidence which may be considered by an adjudicator under section 85 (4) and (5). Subsection (4) enables the Tribunal, in remitting an appeal to an adjudicator, to require the adjudicator to determine the appeal in accordance with its directions, or to take additional evidence so that the case may come back to the Tribunal for determination.

Section 103: Appeal from Tribunal

261.Subsection (1) provides that where the Tribunal determines an appeal, under section 101, a party to the appeal may bring a further appeal to the Court of Appeal on a point of law. Where the original decision of the adjudicator was made in Scotland, a party to the appeal may bring a further appeal to the Court of Session on a point of law. Subsection (2) provides that such a further appeal may be brought only with the permission of the Tribunal. If the Tribunal refuses permission, permission may be sought from the Court of Appeal or, in Scotland, the Court of Session.

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