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Nationality, Immigration and Asylum Act 2002


Section 104: Pending appeal

262.Section 104 makes provision equivalent to section 58 of the 1999 Act. It defines when an appeal under section 82(1) is pending, during which time the appellant is generally protected from enforcement of the consequences of a decision. An appeal is pending from the time it is instituted (in accordance with Procedure Rules under section 106). It remains pending until the time limit for taking it further expires or until it has been finally determined, withdrawn or abandoned. An appeal while the appellant is in the United Kingdom ceases to be pending if the person leaves the United Kingdom or is granted leave to enter or remain here (subsection (4)). In some circumstances (those specified in subsection (5) ) the making of a deportation order brings appeals to an end. It is assumed that the relevant issues will have been addressed during the course of any appeal against the decision to deport the person concerned.

263.Subsection (3) now makes it clear that if the Tribunal remits an appeal to an adjudicator, its determination is not a final determination for this purpose, so the appeal remains pending.

264.The section does not apply to appeals under section 83 where leave to remain of more than 12 months has been granted to a person refused asylum.

Section 105: Notice of immigration decision

265.Section 105 makes provision similar to paragraph 1(1) of Schedule 4 to the 1999 Act, concerning regulations governing the service of appealable decisions. Regulations may be made requiring written notice to be given of an immigration decision within the terms of section 82. When the decision is appealable the notice must declare the right of appeal and give details of how it may be exercised. Subsection (3) enables the Notices Regulations to make provision for service of the notice, including presumptions - this might include, for example, provision for service where a person has absconded and no address is known.

Section 106: Rules

266.Section 106 makes provision similar to and expands upon paragraphs 3, 4 and 8 of Schedule 4 to the 1999 Act. Subsection (1) of section 106 allows the Lord Chancellor to make appeals procedure rules that regulate the exercise of the right of appeal in Part 5 of this Act and prescribe the procedure to be followed in connection with proceedings. Subsection (2) sets out particular matters that must or may be included in the rules. It clarifies the content and effect of paragraph 4 of Schedule 4 to the 1999 Act and provides that rules may make provision about the grant of bail (contained in the Immigration Act 1971). Subsection (3) introduces new measures which enable the rules to include provisions about costs powers for the adjudicator and the Tribunal. Subsections (4) and (5) re-enact paragraph 8 of Schedule 4 to the 1999 Act, which makes it an offence to fail to give evidence or produce a document without reasonable excuse when required to do so by the rules.

Section 107: Practice Directions

267.Section 107 enables practice directions to be given by the President of the Tribunal and the Chief Adjudicator.

Section 108: Forged document: proceedings in private

268.Section 108 makes provision equivalent to paragraph 6 of Schedule 4 to the 1999 Act which enables an adjudicator, following an allegation that relevant documents are forged, to hold further proceedings in private where to do otherwise would not be in the public interest. The class of document which may be relevant has been extended since many types of document may be submitted in evidence and these may rely on sophisticated technologies. The security features, ways of forging or defeating them and forgery detection methods should not normally be divulged to the public.

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