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Part 5 E+W+S+N.I.Immigration and Asylum Appeals

[F1Appeal to Tribunal]E+W+S+N.I.

Annotations:

Amendments (Textual)

F1S. 81 and preceding cross-heading substituted (4.4.2005) by virtue of Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (c. 19), ss. 26(1), 48(1)-(3) (with transitional provisions in Sch. 2); S.I. 2005/565, art. 2 (with savings in arts. 3-9)

[F281The Asylum and Immigration TribunalE+W+S+N.I.

(1)There shall be a tribunal to be known as the Asylum and Immigration Tribunal.

(2)Schedule 4 (which makes provision about the Tribunal) shall have effect.

(3)A reference in this Part to the Tribunal is a reference to the Asylum and Immigration Tribunal.]

Annotations:

Amendments (Textual)

F2S. 81 and preceding cross-heading substituted (4.4.2005) by virtue of Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (c. 19), ss. 26(1), 48(1)-(3) (with transitional provisions in Sch. 2); S.I. 2005/565, art. 2 (with savings in arts. 3-9)

82 Right of appeal: generalE+W+S+N.I.

(1)Where an immigration decision is made in respect of a person he may appeal [F3to the Tribunal] .

(2)In this Part “immigration decision” means—

(a)refusal of leave to enter the United Kingdom,

(b)refusal of entry clearance,

(c)refusal of a certificate of entitlement under section 10 of this Act,

(d)refusal to vary a person’s leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain,

(e)variation of a person’s leave to enter or remain in the United Kingdom if when the variation takes effect the person has no leave to enter or remain,

(f)revocation under section 76 of this Act of indefinite leave to enter or remain in the United Kingdom,

(g)a decision that a person is to be removed from the United Kingdom by way of directions under [F4section 10(1)(a), (b), (ba) or (c)] of the Immigration and Asylum Act 1999 (c. 33) (removal of person unlawfully in United Kingdom),

(h)a decision that an illegal entrant is to be removed from the United Kingdom by way of directions under paragraphs 8 to 10 of Schedule 2 to the Immigration Act 1971 (c. 77) (control of entry: removal),

(i)a decision that a person is to be removed from the United Kingdom by way of directions given by virtue of paragraph 10A of that Schedule (family),

[F5(ia)a decision that a person is to be removed from the United Kingdom by way of directions under paragraph 12(2) of Schedule 2 to the Immigration Act 1971 (c. 77) (seamen and aircrews),]

[F6(ib)a decision to make an order under section 2A of that Act (deprivation of right of abode),]

(j)a decision to make a deportation order under section 5(1) of that Act, and

(k)refusal to revoke a deportation order under section 5(2) of that Act.

(3)F7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)The right of appeal under subsection (1) is subject to the exceptions and limitations specified in this Part.

Annotations:

Amendments (Textual)

F3Words in s. 82(1) substituted (4.4.2005) by Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (c. 19), ss. 26(2), 48(1)-(3) (with transitional provisions in Sch. 2); S.I. 2005/565, art. 2 (with savings in arts. 3-9)

F4Words in s. 82(2)(g) substituted (31.8.2006) by Immigration, Asylum and Nationality Act 2006 (c. 13), ss. 2, 62; S.I. 2006/2226, art. 3, Sch. 1 (subject to transitional provisions in art. 4)

F7S. 82(3) repealed (31.8.2006) by Immigration, Asylum and Nationality Act 2006 (c. 13), ss. 11(6), 61, 62, Sch. 3; S.I. 2006/2226, art. 3, Sch. 1 (subject to transitional provisions in art. 4)

Modifications etc. (not altering text)

C1Ss. 82-99 restricted (14.3.2003) by The Nationality, Immigration and Asylum Act 2002 (Commencement No. 4) Order 2003 (S.I. 2003/754), arts. 3, 4 (with transitional provisions in arts. 3, 4, Sch. 2 (as amended by S.I. 2003/1040, S.I. 2003/1339 and S.I. 2003/2993))

83 Appeal: asylum claimE+W+S+N.I.

(1)This section applies where a person has made an asylum claim and—

(a)his claim has been rejected by the Secretary of State, but

(b)he has been granted leave to enter or remain in the United Kingdom for a period exceeding one year (or for periods exceeding one year in aggregate).

(2)The person may appeal [F8to the Tribunal] against the rejection of his asylum claim.

Annotations:

Amendments (Textual)

F8Words in s. 83(2) substituted (4.4.2005) by Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (c. 19), ss. 26(3), 48(1)-(3) (with transitional provisions in Sch. 2); S.I. 2005/565, art. 2 (with savings in arts. 3-9)

Modifications etc. (not altering text)

[F983AAppeal: variation of limited leaveE+W+S+N.I.

(1)This section applies where—

(a)a person has made an asylum claim,

(b)he was granted limited leave to enter or remain in the United Kingdom as a refugee within the meaning of the Refugee Convention,

(c)a decision is made that he is not a refugee, and

(d)following the decision specified in paragraph (c) he has limited leave to enter or remain in the United Kingdom otherwise than as a refugee.

(2)The person may appeal to the Tribunal against the decision to curtail or to refuse to extend his limited leave.]

Annotations:

Amendments (Textual)

F9S. 83A inserted (31.8.2006) by Immigration, Asylum and Nationality Act 2006 (c. 13), ss. 1, 62; S.I. 2006/2226, art. 3, Sch. 1 (subject to transitional provisions in art. 4)

84 Grounds of appealE+W+S+N.I.

(1)An appeal under section 82(1) against an immigration decision must be brought on one or more of the following grounds—

(a)that the decision is not in accordance with immigration rules;

(b)that the decision is unlawful by virtue of section 19B of the Race Relations Act 1976 (c. 74) (discrimination by public authorities) [F10or Article 20A of the Race Relations (Northern Ireland) Order 1997] ;

(c)that the decision is unlawful under section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant’s Convention rights;

(d)that the appellant is an EEA national or a member of the family of an EEA national and the decision breaches the appellant’s rights under the Community Treaties in respect of entry to or residence in the United Kingdom;

(e)that the decision is otherwise not in accordance with the law;

(f)that the person taking the decision should have exercised differently a discretion conferred by immigration rules;

(g)that removal of the appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdom’s obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant’s Convention rights.

(2)In subsection (1)(d) “EEA national” means a national of a State which is a contracting party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 (as it has effect from time to time).

(3)An appeal under section 83 must be brought on the grounds that removal of the appellant from the United Kingdom would breach the United Kingdom’s obligations under the Refugee Convention.

[F11(4)An appeal under section 83A must be brought on the grounds that removal of the appellant from the United Kingdom would breach the United Kingdom's obligations under the Refugee Convention.]

Annotations:

Amendments (Textual)

F10Words after "1976" inserted (N.I.) (19.7.2003) by virtue of the Race Relations Order (Amendment) Regulations (Northern Ireland) 2003 (S.R. 2003/341), reg. 60

F11S. 84(4) added (31.8.2006) by Immigration, Asylum and Nationality Act 2006 (c. 13), ss. 3, 62; S.I. 2006/2226, art. 3, Sch. 1 (subject to transitional provisions in art. 4)

Modifications etc. (not altering text)

C6S. 84 applied (with modifications) by 1997 c. 68, s. 2(2)(e) (as substituted (1.4.2003) by 2002 c. 41, ss. 114, 162(2), Sch. 7 para. 20 (with s. 159); S.I. 2003/754, art. 2(1), Sch. 1))

Ss. 82-99 restricted (14.3.2003) by The Nationality, Immigration and Asylum Act 2002 (Commencement No. 4) Order 2003 (S.I. 2003/754), arts. 3, 4 (with transitional provisions in arts. 3, 4, Sch. 2 (as amended by S.I. 2003/1040, S.I. 2003/1339 and S.I. 2003/2993))

C7S. 84(1)(2) applied in part (1.4.2003) by S.I. 2000/2326, Sch. 2 (as substituted by The Immigration (European Economic Area) (Amendment) Regulations 2003 (S.I. 2003/549), reg. 2(10) (with transitional provisions in reg. 3))

85 Matters to be consideredE+W+S+N.I.

(1)An appeal under section 82(1) against a decision shall be treated by [F12the Tribunal] as including an appeal against any decision in respect of which the appellant has a right of appeal under section 82(1).

(2)If an appellant under section 82(1) makes a statement under section 120, [F12the Tribunal] shall consider any matter raised in the statement which constitutes a ground of appeal of a kind listed in section 84(1) against the decision appealed against.

(3)Subsection (2) applies to a statement made under section 120 whether the statement was made before or after the appeal was commenced.

(4)On an appeal under section 82(1) [F13, 83(2) or 83A(2)] against a decision [F14the Tribunal] may consider evidence about any matter which [F15it] thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision.

(5)But in relation to an appeal under section 82(1) against refusal of entry clearance or refusal of a certificate of entitlement under section 10—

(a)subsection (4) shall not apply, and

(b)[F12the Tribunal] may consider only the circumstances appertaining at the time of the decision to refuse.

Annotations:

Amendments (Textual)

F13Words in s. 85(4) substituted (31.8.2006) by Immigration, Asylum and Nationality Act 2006 (c. 13), ss. 14, 62, Sch. 1 para. 3; S.I. 2006/2226, art. 3, Sch. 1 (subject to transitional provisions in art. 4)

Modifications etc. (not altering text)

C9S. 85 applied (with modifications) by 1997 c. 68, s. 2(2)(f) (as substituted (1.4.2003) by 2002 c. 41, ss. 114, 162(2), Sch. 7 para. 20 (with s. 159); S.I. 2003/754, art. 2(1), Sch. 1))

Ss. 82-99 restricted (14.3.2003) by The Nationality, Immigration and Asylum Act 2002 (Commencement No. 4) Order 2003 (S.I. 2003/754), arts. 3, 4 (with transitional provisions in arts. 3, 4, Sch. 2 (as amended by S.I. 2003/1040, S.I. 2003/1339 and S.I. 2003/2993))

Ss. 85-87 applied (1.4.2003) by S.I. 2000/2326, Sch. 2 (as substituted by The Immigration (European Economic Area) (Amendment) Regulations 2003 (S.I. 2003/549), reg. 2(10) (with transitional provisions in reg. 3))

C10S. 85(4) applied (with modifications) by 1997 c. 68, s. 2(3)(a) (as substituted (1.4.2003) by 2002 c. 41, ss. 114, 162(2), Sch. 7 para. 20 (with s. 159); S.I. 2003/754, art. 2(1), Sch. 1))

Prospective

[F1685AMatters to be considered: new evidence: exceptionsE+W+S+N.I.

(1)This section sets out the exceptions mentioned in section 85(5).

(2)Exception 1 is that in relation to an appeal under section 82(1) against an immigration decision of a kind specified in section 82(2)(b) or (c) the Tribunal may consider only the circumstances appertaining at the time of the decision.

(3)Exception 2 applies to an appeal under section 82(1) if—

(a)the appeal is against an immigration decision of a kind specified in section 82(2)(a) or (d),

(b)the immigration decision concerned an application of a kind identified in immigration rules as requiring to be considered under a “Points Based System”, and

(c)the appeal relies wholly or partly on grounds specified in section 84(1)(a), (e) or (f).

(4)Where Exception 2 applies the Tribunal may consider evidence adduced by the appellant only if it—

(a)was submitted in support of, and at the time of making, the application to which the immigration decision related,

(b)relates to the appeal in so far as it relies on grounds other than those specified in subsection (3)(c),

(c)is adduced to prove that a document is genuine or valid, or

(d)is adduced in connection with the Secretary of State's reliance on a discretion under immigration rules, or compliance with a requirement of immigration rules, to refuse an application on grounds not related to the acquisition of “points” under the “Points Based System”.]

Annotations:

Amendments (Textual)

86 Determination of appealE+W+S+N.I.

(1)This section applies on an appeal under section 82(1) [F17, 83 or 83A.]

(2)[F18The Tribunal] must determine—

(a)any matter raised as a ground of appeal (whether or not by virtue of section 85(1)), and

(b)any matter which section 85 requires [F19it] to consider.

(3)[F18The Tribunal] must allow the appeal in so far as [F20it] thinks that—

(a)a decision against which the appeal is brought or is treated as being brought was not in accordance with the law (including immigration rules), or

(b)a discretion exercised in making a decision against which the appeal is brought or is treated as being brought should have been exercised differently.

(4)For the purposes of subsection (3) a decision that a person should be removed from the United Kingdom under a provision shall not be regarded as unlawful if it could have been lawfully made by reference to removal under another provision.

(5)In so far as subsection (3) does not apply, [F18the Tribunal] shall dismiss the appeal.

(6)Refusal to depart from or to authorise departure from immigration rules is not the exercise of a discretion for the purposes of subsection (3)(b).

Annotations:

Amendments (Textual)

F17Words in s. 86(1) substituted (31.8.2006) by Immigration, Asylum and Nationality Act 2006 (c. 13), ss. 14, 62, Sch. 1 para. 4; S.I. 2006/2226, art. 3, Sch. 1 (subject to transitional provisions in art. 4)

Modifications etc. (not altering text)

C11S. 86 applied (with modifications) by 1997 c. 68, s. 2(2)(g)(3)(b) (as substituted (1.4.2003) by 2002 c. 41, ss. 114, 162(2), Sch. 7 para. 20 (with s. 159); S.I. 2003/754, art. 2(1), Sch. 1))

Ss. 82-99 restricted (14.3.2003) by The Nationality, Immigration and Asylum Act 2002 (Commencement No. 4) Order 2003 (S.I. 2003/754), arts. 3, 4 (with transitional provisions in arts. 3, 4, Sch. 2 (as amended by S.I. 2003/1040, S.I. 2003/1339 and S.I. 2003/2993))

Ss. 85-87 applied (1.4.2003) by S.I. 2000/2326, Sch. 2 (as substituted by The Immigration (European Economic Area) (Amendment) Regulations 2003 (S.I. 2003/549), reg. 2(10) (with transitional provisions in reg. 3))

87 Successful appeal: directionE+W+S+N.I.

(1)If [F21the Tribunal] allows an appeal under section 82 [F22, 83 or 83A][F23it] may give a direction for the purpose of giving effect to [F24its] decision.

(2)A person responsible for making an immigration decision shall act in accordance with any relevant direction under subsection (1).

[F25(3)But a direction under this section shall not have effect while—

(a)an application under section 103A(1) (other than an application out of time with permission) could be made or is awaiting determination,

(b)reconsideration of an appeal has been ordered under section 103A(1) and has not been completed,

(c)an appeal has been remitted to the Tribunal and is awaiting determination,

(d)an application under section 103B or 103E for permission to appeal (other than an application out of time with permission) could be made or is awaiting determination,

(e)an appeal under section 103B or 103E is awaiting determination, or

(f)a reference under section 103C is awaiting determination.]

(4)A direction under subsection (1) shall be treated [F26as part of the Tribunal’s decision on the appeal for the purposes of section 103A] .

Annotations:

Amendments (Textual)

F22Words in s. 87(1) substituted (31.8.2006) by Immigration, Asylum and Nationality Act 2006 (c. 13), ss. 14, 62, Sch. 1 para. 5; S.I. 2006/2226, art. 3, Sch. 1 (subject to transitional provisions in art. 4)

Modifications etc. (not altering text)

C12S. 87 applied (with modifications) by 1997 c. 68, s. 2(2)(h)(3)(c) (as substituted (1.4.2003) by 2002 c. 41, ss. 114, 162(2), Sch. 7 para. 20 (with s. 159); S.I. 2003/754, art. 2(1), Sch. 1))

Ss. 82-99 restricted (14.3.2003) by The Nationality, Immigration and Asylum Act 2002 (Commencement No. 4) Order 2003 (S.I. 2003/754), arts. 3, 4 (with transitional provisions in arts. 3, 4, Sch. 2 (as amended by S.I. 2003/1040, S.I. 2003/1339 and S.I. 2003/2993))

Ss. 85-87 applied (1.4.2003) by S.I. 2000/2326, Sch. 2 (as substituted by The Immigration (European Economic Area) (Amendment) Regulations 2003 (S.I. 2003/549), reg. 2(10) (with transitional provisions in reg. 3))