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Asylum and Immigration (Treatment of Claimants, etc.) Act 2004

Section 26: Unification of appeal system

86.Section 26 (1) replaces section 81 of the Nationality, Immigration and Asylum Act 2002, which made provision for the appointment of asylum adjudicators under the two-tier system. Section 26 establishes a single-tier tribunal called the Asylum and Immigration Tribunal, which is referred to in the rest of this part of the Act as “the Tribunal”.

87.Section 26 (2) amends section 82(1) of the 2002 Act. Section 82 lists the immigration decisions that attract a right of appeal to an adjudicator. This amendment is consequential upon the merger of the two-tier system. With the amendment, the appeal is to the new Tribunal.

88.Section 26 (3) makes a similar consequential amendment to section 83(2) of the 2002 Act which states the circumstances in which a person has a right of appeal from rejection of an asylum claim. Appeals will be to the new Tribunal.

89.Section 26(4) substitutes a new Schedule (found at Schedule 1 ) for Schedule 4 of the 2002 Act. The old Schedule 4 made provision for the terms of office, staffing, remuneration and sitting arrangements for adjudicators. It is replaced by a Schedule making similar provision in respect of Tribunal members, and related matters.

90.Section 26(5) repeals sections 100 to 103 and Schedule 5 of the 2002 Act, thereby abolishing the Immigration Appeal Tribunal (IAT), the second tier of the current system. As a consequence of this, this section also removes the right of appeal to the IAT, the right to seek statutory review of a refusal by the IAT to grant permission to appeal to itself, and the right to appeal from the IAT to the higher appellate courts. Schedule 5 made provision as to the membership, staffing and sitting arrangements of the IAT.

91.Section 26(6) inserts new sections 103A to 103E into the 2002 Act.

92.Section 103A enables a party to an appeal to the Tribunal to apply to the appropriate court for an order requiring the Tribunal to reconsider its decision on appeal on the grounds that the Tribunal made an error of law. If the appropriate court thinks the Tribunal may have made an error of law it will order the case to be reconsidered by the Tribunal.

93.The application must be made within 5 working days of receipt of the Tribunal determination but if made from abroad the application must be made within 28 days. An application will be determined by reference to the written submissions of the applicant, and where rules of court permit, other written submissions. The decision of the appropriate court will be final.

94.In this section the ‘appropriate court’ is: in relation an appeal decided in England and Wales, the High Court; in relation to an appeal decided in Scotland, the Outer House of the Court of Session; in relation to an appeal decided in Northern Ireland, the High Court in Northern Ireland.

95.This section does not apply to a decision of the Tribunal where its jurisdiction is exercised by three or more legally qualified members. In such cases, higher court oversight would be by way of appeal on a point of law under section 103E.

96.Section 103B provides for a party to an appeal, where an appeal has been reconsidered, to bring a further appeal on a point of law to the appropriate appellate court. An appeal may only be brought with the permission of the Tribunal, or if the Tribunal refuses permission, the appropriate appellate court.

97.The reference to ‘reconsideration’ is to a reconsideration following an order under section 103A(1) or a remittal to the Tribunal under section 103C or 103E.

98.In this section the ‘appropriate appellate court’ is: in relation to an appeal decided in England and Wales, the Court of Appeal; in relation to an appeal decided in Scotland, the Inner House of the Court of Session; in relation to an appeal decided in Northern Ireland, the Court of Appeal in Northern Ireland.

99.Section 103C enables the appropriate court, on consideration of an application under section 103A(1), to refer a case straight to the appropriate appellate court if it thinks the case raises a question of law of such importance that it should be decided by that court.

100.In this section ‘appropriate court’ has the same meaning as in section 103A and ‘appropriate appellate court’ has the same meaning as in section 103B.

101.Section 103D provides for an enabling power to make regulations for an appellant’s costs for review and reconsideration under section 103A to be paid out of the Community Legal Service Fund. This type of legal aid remuneration will apply only where it is the appellant who is the party applying for review and reconsideration.

102.Section 103D(1) enables the appropriate court to order an appellant’s costs to be paid in respect of the review application. Section 103D(3) enables the Tribunal to order an appellant’s costs to be paid in respect of both the review application and the reconsideration

103.The power to make regulations about the exercise of the power in subsections (1) and (3) would be exercised by the Secretary of State for Constitutional Affairs. Regulations made under this section are subject to the affirmative resolution procedure.

104.The regulation-making power enables restrictions to be placed upon the exercise of the power in 103D(1) and (3) by reference to the appellant’s prospects of success at the time the application under section 103A(1) was made. Regulations will also govern detailed matters such as the manner of determining the amount payable. Regulations can also add to the Legal Services Commission’s statutory functions and apply, modify or disapply other enactments relating to the funding (in England, Wales or Northern Ireland) the funding of legal services.

105.In this section ‘appropriate court’ has the same meaning as in section 103A.

106.This Section only has effect in relation to an appeal decided in England, Wales or Northern Ireland.

107.Section 103E provides that a party to an appeal that has been decided by the Tribunal exercising its jurisdiction by three or more legally qualified members may bring an appeal to the appropriate appellate court. An appeal may only be brought with the permission of the Tribunal, or if the Tribunal refuses permission, the appropriate appellate court.

108.In this section ‘appropriate appellate court’ has the same meaning as in section 103B.

109.Section 26(7) gives effect to Schedule 2, which makes consequential amendments and transitional provisions.

110.Section 26(8) enables the Lord Chancellor to vary time limits specified in section 103A(3)(a), (b) or (c) or paragraph 29(5)(b) of Schedule 2, by order. An order made under this section is subject to the negative resolution procedure and the Lord Chancellor is required to consult the heads of judiciary in the parts of the United Kingdom affected by the order.

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