The Immigration and Asylum Appeals (Procedure) Rules 2000

PART V GENERAL PROVISIONS

Application of Part V

28.  This Part applies to—

(a) proceedings to which Part II applies (appeals to adjudicator);

(b) proceedings to which Part III applies (appeals to the Tribunal from adjudicator);

(c) proceedings to which Part IV applies (applications to the Tribunal for leave to appeal from the Tribunal); and

(d) applications for bail.

Parties

29.—(1) Subject to paragraph (2), the parties to the appeal shall be the appellant and the respondent.

(2) Where, in the case of a claim for asylum, the United Kingdom Representative of the United Nations High Commissioner for Refugees gives written notice to the appellate authority at any time during the course of an appeal that he wishes to be treated as a party, he shall be so treated from the date of the notice.

Conduct of appeals

30.—(1) The appellate authority may, subject to the provisions of these Rules, regulate the procedure to be followed in relation to the conduct of any appeal.

(2) The overriding objective shall be to secure the just, timely and effective disposal of appeals and, in order to further that objective, the appellate authority may give directions which control the conduct of any appeal.

(3) The appellate authority may give directions under this rule orally or in writing and notice of any written directions given shall be served on the appellant or his representative (if he has one) and any other party.

(4) Directions given under this rule may, in particular,—

(a) relate to any matter concerning the preparation for a hearing and may specify the length of time allowed for anything to be done;

(b) specify the place at which the appeal shall be heard;

(c) provide for—

(i) a particular matter to be dealt with as a preliminary issue;

(ii) a pre-hearing review to be held;

(iii) the furnishing of any particulars which appear to be requisite for the determination of the appeal;

(iv) whether there should be a hearing of the appeal;

(v) the witnesses, if any, to be heard;

(vi) the manner in which any evidence may be given; and

(vii) in the case of the Tribunal, times to be prescribed within which leave must be sought to submit any evidence or call any witnesses;

(d) require any party to file—

(i) statements of the evidence which will be called at the hearing specifying in what respect the services of an interpreter will be required;

(ii) a paginated and indexed bundle of all the documents which will be relied on at the hearing;

(iii) a skeleton argument which summarises succinctly the submissions which will be made at the hearing and cites all the authorities which will be relied on, identifying any particular passages to be relied on;

(iv) an estimate of the time which will be needed for the hearing of the appeal;

(v) a list of the witnesses whom any party wishes to call to give evidence; and

(vi) a chronology of events;

(e) limit—

(i) the number or length of documents produced by, for example, requiring a party to specify to another party the passage or part of any document on which he will rely, especially if the document has to be translated into English for the hearing;

(ii) the length of oral submissions;

(iii) the time allowed for the examination and cross examination of witnesses by, for example, allowing a witness statement to stand as evidence in chief; and

(iv) the issues which will be addressed at the hearing;

(f) facilitate the holding of combined hearings under rule 42.

(5) A party shall provide to every other party a copy of any document which he is directed to file under paragraph (4).

(6) In an appeal in which a party is unrepresented, the appellate authority may not give directions under this rule where it is necessary for the party to comply, unless it is satisfied that he is able to comply with those directions.

Adjournment of hearings

31.—(1) Where an adjournment of the appeal is requested, the appellate authority shall not adjourn the hearing unless it is satisfied that refusing the adjournment would prevent the just disposal of the appeal.

(2) Where a party applies for an adjournment of a hearing, he shall, where practicable, notify all other parties of the application and—

(a) show good reason why an adjournment is necessary;

(b) establish any fact or matter relied on in support of the application; and

(c) offer a new date for the hearing.

(3) Where a hearing is adjourned, the appellate authority shall give any further directions which it considers to be necessary for the future conduct of the appeal.

(4) Written notice of the date, time and place of the adjourned hearing shall be sent to—

(a) every party; and

(b) every party’s representative, except where the representative is acting for the Secretary of State, an officer or the United Kingdom Representative of the United Nations High Commissioner for Refugees.

Abandoned appeals

32.—(1) Where a party has, without a satisfactory explanation, failed—

(a) to comply with a direction given under these Rules;

(b) to comply with a provision of these Rules; or

(c) to appear at a hearing of which he had notice in accordance with these Rules;

and the appellate authority is satisfied in all the circumstances, including the extent of the failure and any reasons for it, that the party is not pursuing his appeal, the appellate authority may treat the appeal as abandoned.

(2) Where the appellate authority treats an appeal as abandoned, it shall send a notice to the parties which shall—

(a) inform the parties that the appeal is being treated as abandoned; and

(b) include the reasons.

Failure to comply with these Rules

33.—(1) Where a party has failed—

(a) to comply with a direction given under these Rules; or

(b) to comply with a provision of these Rules;

and the appellate authority is satisfied in all the circumstances, including the extent of the failure and any reasons for it, that it is necessary to have regard to the overriding objective in rule 30(2), the appellate authority may dispose of the appeal in accordance with paragraph (2).

(2) The appellate authority may—

(a) in the case of a failure by the appellant, dismiss the appeal or, in the case of a failure by the respondent, allow the appeal, without considering its merits;

(b) determine the appeal without a hearing in accordance with rule 43; or

(c) in the case of a failure by a party to send any document, evidence or statement of any witness, prohibit that party from relying on that document, evidence or statement at the hearing.

Bail

34.—(1) An application to be released on bail may be made orally or in writing to an immigration officer, a police officer or the appellate authority.

(2) In an application for bail, an applicant may be represented by any person listed in rule 35(1)(a).

(3) A written application made in accordance with paragraph (1) shall contain the following particulars—

(a) the full name of the applicant and his date of birth;

(b) the address of the place where the applicant is detained at the time when the application is made;

(c) whether an appeal is pending at the time when the application is made;

(d) the address where the applicant would reside if his application for bail were to be granted;

(e) the amount of the recognizance in which he would agree to be bound;

(f) the full names, addresses and occupations of two persons who might act as sureties for the applicant if his application for bail were to be granted, and the amounts of the recognizance in which those persons might agree to be bound; and

(g) the grounds on which the application is made and, where a previous application has been refused, full particulars of any change in circumstances which has occurred since the refusal.

(4) A written application made in accordance with paragraph (1) shall be signed by the applicant or by a person authorised by him to act or, in the case of an applicant who is a minor or who is for any reason incapable of acting, by a person acting on his behalf.

(5) The recognizance of an applicant and that of a surety shall be on the appropriate prescribed forms.

(6) Where the appellate authority directs the release of an applicant on bail and the taking of the recognizance is postponed, it shall certify in writing that bail has been granted in respect of the applicant, and shall include in the certificate particulars of the conditions to be endorsed on the recognizance with a view to the recognizance being taken subsequently, the amounts in which the applicant and any sureties are to be bound and the date of issue of the certificate.

(7) The person having custody of an applicant shall—

(a) on receipt of a certificate signed by or on behalf of the appellate authority stating that the recognizances of any sureties required have been taken, or on being otherwise satisfied that all such recognizances have been taken; and

(b) on being satisfied that the applicant has entered into his recognizance;

release the applicant.

(8) Where the appellate authority directs the release of an applicant on bail and does not require the taking of a recognizance from the applicant or a surety, the person having custody of the applicant shall release him.

(9) Paragraphs (5) and (6) shall not apply to Scotland, and in its application to Scotland, this rule shall have effect as if—

(a) for paragraph (3)(e) and (f), there were substituted—

“(e) the amount, if any, to be deposited if bail is granted;

(f) the full names, addresses and occupations of such persons, if any, who offer to act as cautioners if the application for bail were to be granted;”; and

(b) for paragraph (7), there were substituted—

“(7) The person having custody of an applicant shall, on receipt of a certified copy of the decision to grant bail and on being satisfied that the amount, if any, to be deposited has been deposited, release the applicant.”.

Representation

35.—(1) In any proceedings in an appeal, a party may act in person or be represented—

(a) in the case of a person appealing against an immigration decision, by any person not prohibited by section 84;

(b) in the case of the Secretary of State or any officer, by an authorised advocate or any officer of the Secretary of State; and

(c) in the case of the United Kingdom Representative of the United Nations High Commissioner for Refugees in an asylum appeal, by a person appointed by him.

(2) A person representing a party may do anything relating to the proceedings that the person whom he represents is by these Rules required or authorised to do.

(3) Each party shall have a duty to maintain contact with his representative (if he has one) until the appeal is finally determined and notify the representative of any change of address.

(4) Where a representative referred to in paragraph (1)(a) (“the first representative”) ceases to act, he and the party he was representing, shall forthwith notify the appellate authority and any other party of that fact and of the name and address of any new representative (if known).

(5) Until the appellate authority is notified that the first representative has ceased to act by either the first representative or the party he was representing, any document served on the first representative shall be deemed to be properly served on the party he was representing.

(6) Where a representative begins acting for a party to which these Rules apply, he shall forthwith notify the appellate authority of that fact.

Summoning of witnesses

36.—(1) Subject to paragraph (2), the appellate authority may, for the purposes of any appeal, by summons on the appropriate prescribed form, require any person in the United Kingdom to attend as a witness at a hearing of the appeal at the time and place specified in the form and, subject to the provisions of rule 37(2), at the hearing to answer any questions or produce any documents in his custody or under his control which relate to any matter in question in the appeal.

(2) A person shall not be required, in obedience to a summons referred to in paragraph (1), to travel unless the necessary expenses of his attendance are paid or tendered to him, and when the summons is issued at the request of a party, those expenses are paid or tendered by that party.

Mode of giving evidence

37.—(1) The appellate authority may receive oral, documentary or other evidence of any fact which appears to that authority to be relevant to the appeal, even though that evidence would be inadmissible in a court of law.

(2) In any proceedings before the appellate authority, a person shall not be compelled to give any evidence or produce any document which he could not be compelled to give or produce on the trial of an action in that part of the United Kingdom in which the proceedings are conducted.

(3) The appellate authority may require any witness to give evidence on oath or affirmation or without either, and for that purpose, in a case where an oath or affirmation is required, an oath or affirmation in due form may be administered.

Inspection of documentary evidence

38.  Subject to paragraph 6 of Schedule 4 to the 1999 Act, when the appellate authority takes into consideration documentary evidence, every party shall be given an opportunity of inspecting that evidence and taking copies if copies have not been provided pursuant to rule 30.

Burden of proof

39.—(1) If in any proceedings before the appellate authority a party asserts that a decision or action taken against him under any statutory provision ought not to have been taken on the grounds that he is not a person to whom the provision applies, it shall lie on him to prove that he is not such a person.

(2) If in any proceedings before the appellate authority a party asserts any fact of a kind that, if the assertion were made to the Secretary of State or any officer for the purposes of any statutory provisions or any immigration rules, it would by virtue of those provisions or rules be for him to satisfy the Secretary of State or officer of the truth thereof, it shall lie on that party to prove that the assertion is true.

(3) In this rule, “immigration rules” means the rules referred to in section 3(2) of the 1971 Act and a reference to “statutory provisions” includes a reference to any provision made under an enactment.

Exclusion of public

40.—(1) Subject to the provisions of this rule, any hearing by the appellate authority shall take place in public.

(2) Where the appellate authority is considering an allegation referred to in paragraph 6(1) of Schedule 4 to the 1999 Act in accordance with paragraph 6(2) of that Schedule, all members of the public shall be excluded from that hearing.

(3) Subject to paragraph (4), the appellate authority may exclude any member of the public or members of the public generally from any hearing or from any part of a hearing where—

(a) in the opinion of that authority, it is necessary in the interests of morals, public order or national security;

(b) in the opinion of that authority, the interests of minors or the protection of the private life of the parties so require; or

(c) in special circumstances publicity would prejudice the interests of justice, but only to the extent strictly necessary in the opinion of that authority.

(4) Nothing in this rule shall prevent a member of the Council on Tribunals or of its Scottish Committee from attending a hearing in that capacity.

Hearing of appeal in absence of a party

41.—(1) The appellate authority may, where in the circumstances of the case it appears just so to do, hear an appeal in the absence of a party if satisfied that—

(a) he is not in the United Kingdom;

(b) he is suffering from a communicable disease or from a mental disorder;

(c) by reason of illness or accident he cannot attend the hearing;

(d) it is impracticable to give him notice of the hearing and that no person is authorised to represent him at the hearing; or

(e) he has notified the appellate authority that he does not wish to attend the hearing.

(2) Without prejudice to paragraph (1) but subject to paragraph (3), the appellate authority may proceed with the hearing of an appeal in the absence of a party if satisfied that, in the case of that party, notice of the date, time and place of the hearing, or of the adjourned hearing, has been given in accordance with these Rules.

(3) Where the absent party has not furnished the appellate authority with a satisfactory explanation of his absence, it shall proceed with the hearing in pursuance of paragraph (2).

(4) Where in pursuance of this rule the appellate authority hears an appeal or proceeds with a hearing in the absence of a party, it shall determine the appeal on the evidence which has been received.

(5) Any reference to a party in paragraphs (2) to (4) includes a reference to his representative.

Combined hearings

42.  Where in the case of two or more appeals it appears to the appellate authority that—

(a) some common question of law or fact arises in both or all of them;

(b) they relate to decisions or action taken in respect of persons who are members of the same family; or

(c) for some other reason it is desirable to proceed with the appeals under this rule,

the appellate authority may, after giving all the parties an opportunity of being heard, decide that the appeals should be heard together.

Determination without hearing

43.—(1) An appeal may be determined without a hearing under this rule if—

(a) the appellate authority has decided, after giving every other party an opportunity of replying to any representations submitted in writing by or on behalf of the appellant, to allow the appeal;

(b) the appellate authority is satisfied that the appellant, except where the appellant is the Secretary of State or an officer, is outside the United Kingdom or that it is impracticable to give him notice of a hearing and, in either case, that no person is authorised to represent him at a hearing;

(c) a preliminary issue has arisen under rule 12 and, the appellant having been given an opportunity to submit a written statement rebutting the respondent’s allegation—

(i) the appellant has not submitted such a statement, or

(ii) the appellate authority is of the opinion that matters put forward by the appellant in such a statement do not warrant a hearing;

(d) the appellate authority is satisfied, having given every party an opportunity to make representations and having regard to—

(i) the material before it; and

(ii) the nature of the issues raised;

that the appeal could be so disposed of justly;

(e) no party has requested a hearing; or

(f) the appellate authority is proceeding in accordance with rule 33(2)(b).

(2) Where, in a family visitor appeal, the appellant has not paid the fee for a hearing at the time he made the appeal, the appellate authority shall determine the appeal without a hearing.

(3) The appellate authority shall send written notice of the determination to—

(a) every party; and

(b) every party’s representative, except where the representative is acting for the Secretary of State, an officer or the United Kingdom Representative of the United Nations High Commissioner for Refugees.

Summary determination of appeals

44.—(1) Subject to paragraph (2), where it appears to the appellate authority that the issues raised in an appeal have been determined—

(a) in the case of an appeal before an adjudicator, by the same or another adjudicator or by the Tribunal, or

(b) in the case of an appeal before the Tribunal, by the Tribunal,

in previous proceedings to which the appellant, or a family member, was a party, on the basis of facts which did not materially differ from those to which the appeal relates, the appellate authority may determine the appeal summarily without a hearing.

(2) Before the appellate authority determines an appeal summarily in accordance with paragraph (1), it shall give the parties an opportunity of making representations to the effect that the appeal ought not to be determined in that way.

(3) Where an appeal is determined summarily in accordance with paragraph (1), the appellate authority shall send to the parties written notice of that fact, and that notice shall—

(a) contain a statement of the issues raised in the appeal; and

(b) specify the previous proceedings in which those issues were determined.

(4) In this rule, “family member” means a person on whom a notice was served under section 74(4) at the same time in relation to the previous proceedings referred to in paragraph (1) that such a notice was served on the appellant.

Transfer of proceedings

45.—(1) Where any proceedings before an adjudicator have not been disposed of by him and the Chief Adjudicator, or any person for the time being carrying out the functions of the Chief Adjudicator, is of the opinion that—

(a) it is not practicable without undue delay for the proceedings to be completed by that adjudicator, or

(b) for some other good reason the proceedings cannot be completed justly by that adjudicator,

he shall make arrangements for the appeal to be heard by another adjudicator.

(2) Where any proceedings are transferred to another adjudicator in accordance with paragraph (1)—

(a) any notice or other document which is sent or given to or by the adjudicator from whom the proceedings were transferred shall be deemed to have been sent or given to or by the adjudicator to whom the appeal is transferred; and

(b) any adjudicator to whom an appeal is transferred shall have power to deal with it as if it had been commenced before him.

(3) The powers of the Chief Adjudicator under this rule shall, with the appropriate modifications, also apply to the President in relation to proceedings before the Tribunal.

(4) Where the Secretary of State notifies the Chief Adjudicator or the President, as the case may be, that section 78 applies, the Chief Adjudicator or the President shall transfer the proceedings to the Special Immigration Appeals Commission and shall notify the parties and their representatives (if any) of the transfer.

Notices etc.

46.—(1) Any notice or other document required or authorised by these Rules to be sent or given to any person or authority may be delivered or sent by post to an address, or sent by fax to a fax number, specified by the person or authority to whom the notice or document is directed.

(2) If any notice or other document is sent or given to a person appearing to the authority or person sending it to represent that party, it shall be deemed to have been sent or given to that party.

Notification of address

47.—(1) A party shall inform the appellate authority of the address at which documents may be served on him (“his address for service”) and of any changes to that address.

(2) Until a party gives notice to the appellate authority that his address for service has changed, any document served on him at the most recent address he has given to the appellate authority shall be deemed to have been properly served on him.

(3) A person representing a party shall inform the appellate authority of his address for service and of any changes to that address.

(4) Until a person representing a party gives notice to the appellate authority that his address for service has changed, any document served on him at the most recent address he has given to the appellate authority shall be deemed to have been properly served on him.

Calculation of time

48.—(1) This rule applies to any notice or other document sent, served or given under these Rules.

(2) Subject to paragraphs (3) and (4), any notice or other document that is sent shall, unless the contrary is proved, be deemed to have been received—

(a) where the notice or other document is sent by post to a place within the United Kingdom, on the second day after it was sent;

(b) where the notice or other document is sent by post to a place outside the United Kingdom, on the twenty-eighth day after it was sent; and

(c) in any other case, on the day on which the notice or other document was sent.

(3) Where a notice or other document is sent by post to the appellate authority, it shall be deemed to have been received on the day on which it was received by that authority.

(4) Where a notice of appeal is sent by post or by fax to the address or fax number specified in the notice of decision, it shall be deemed to have been given on the day on which it was received at that address or fax number.

(5) A notice or other document is received by the appellate authority when it is received by any person employed as a clerk to that authority.

(6) Where an act is to be done not later than a specified period after any event, the period shall be calculated from the end of the day on which the event occurred.

(7) Where the time provided by these Rules by which any act must be completed ends on a Saturday, a Sunday, a bank holiday, Christmas Day, 27th to 31st December or Good Friday, the act shall be completed in time if completed on the next day which is not excluded under this paragraph.

(8) Where, apart from this paragraph, the period in question, being a period of 10 days or less, would include a Saturday, a Sunday, a bank holiday, Christmas Day, 27th to 31st December or Good Friday, that day shall be excluded.

(9) In this rule, “bank holiday” means a day that is specified in, or appointed under, the Banking and Financial Dealings Act 1971(1) as a bank holiday.

Irregularities

49.—(1) Any irregularity resulting from failure to comply with these Rules before the appellate authority has reached a decision shall not by itself render the proceedings void.

(2) Where the appellate authority considers that any person may have been prejudiced by that irregularity, it shall take any steps that it considers necessary to cure it, whether by the amendment of any document, the giving of any notice or otherwise.

Correction of accidental errors

50.—(1) Clerical mistakes in any determination or notice of determination, or errors arising therein from any accidental slip or omission, may at any time be corrected and any correction made to, or to a record of, a determination shall be deemed to be part of that determination or record and written notice of it shall be given as soon as practicable to every party.

(2) The Tribunal may, after consulting the adjudicator concerned, correct errors in a determination given by an adjudicator and any correction made to, or to a record of, a determination shall be deemed to be part of that determination or record and written notice of it shall be given as soon as practicable to every party and to the adjudicator.

(1)

1971 c. 80.