The Special Immigration Appeals Commission (Procedure) (Amendment) Rules 2013

Statutory Instruments

2013 No. 2995

Immigration

The Special Immigration Appeals Commission (Procedure) (Amendment) Rules 2013

Made

27th November 2013

Coming into force in accordance with rule 1

The Lord Chancellor, in exercise of the powers conferred by sections 5(1) and 8 of the Special Immigration Appeals Commission Act 1997(2), makes the following Rules.

In accordance with sections 5(9) and 8(4) of that Act, a draft of these Rules has been laid before and approved by resolution of each House of Parliament.

Citation, commencement and interpretation

1.—(1) These rules may be cited as the Special Immigration Appeals Commission (Procedure) (Amendment) Rules 2013 and come into force on the day after the day on which they are made.

(2) In these Rules, a reference to a rule by number alone means the rule so numbered in the Special Immigration Appeals Commission (Procedure) Rules 2003(3).

Amendments to the Special Immigration Appeals Commission (Procedure) Rules 2003

2.  In rule 2(1)—

(a) in the definition of “appellant”(4), after “the Commission”, insert—

“or, as the case may be, making an application to the Commission for review under section 2C or section 2D of the 1997 Act”(5);

(b) after the definition of “appellant”, insert—

““application to the Commission for review under section 2C or section 2D of the 1997 Act” means an application to the Commission under subsection 2C(2) of the 1997 Act to set aside a direction to which that subsection applies, or an application to the Commission under subsection 2D(2) of the 1997 Act to set aside a decision to which that subsection applies, and, unless the contrary intention appears, “applying for review” and “application for review” are to be read accordingly;”.

3.  In rule 3(6), after paragraph (a) insert—

“(aa) applications to the Commission for review under section 2C or section 2D of the 1997 Act;”.

4.  In rule 5(1)(7)—

(a) in sub-paragraph (a), after “appealing” insert “or applying for review”;

(b) in sub-paragraph (b), after “appeal” insert “or review”.

5.  For the heading of Part 2, substitute “Appeals to and reviews by the Commission under the 1997 Act”.

6.  For rule 6(8), substitute—

“Scope of this Part

6.   This Part applies to—

(a) appeals to the Commission under section 2 or 2B of the 1997 Act and section 97A(3) of the 2002 Act; and

(b) applications to the Commission for review under section 2C or 2D of the 1997 Act.”.

7.  In the heading of rule 7, after “appeal” insert “or application for review”.

8.  In rule 7(9)—

(a) after paragraph (1), insert—

“(1A) An application to the Commission for review under the 1997 Act must be made by giving notice of application in accordance with these Rules.”;

(b) in paragraph (2), after “appeal” insert “or notice of application for review”;

(c) in paragraph (3), after “appeal” insert “or notice of application for review”;

(d) in paragraph (4), after “appeal” insert “or notice of application for review”;

(e) in paragraph (5), after “appeal” insert “or notice of application for review”.

9.  In the heading of rule 8, after “appealing” insert “or for applying for review”.

10.  In rule 8(10)—

(a) in paragraph (1), after “the 2002 Act” insert “or a notice of application for review under the 1997 Act”;

(b) in sub-paragraph (1)(a) after “appeal” insert “or direction or decision in respect of which he wishes to apply for review”;

(c) in sub-paragraph (1)(b) after “appeal” insert “or direction or decision in respect of which he wishes to apply for review”;

(d) after paragraph (4), insert—

“(4A) Where a person is served with notice of certification under section 2C(1)(a) or section 2D(1)(b) of the 1997 Act, the date from which the time limit for giving a notice of application for review under paragraph (1) begins is the later of the following—

(a) the date he is served with that notice of certification; or

(b) the date on which this paragraph came into force.”.

11.  In the heading of rule 9, after “appeal” insert “or notice of application for review”.

12.  In rule 9—

(a) after paragraph (1), insert—

“(1A) The notice of application for review must—

(a) specify, by reference to the principles which would be applied in an application for judicial review, the grounds for applying for a review;

(b) give reasons in support of those grounds; and

(c) specify the order or relief sought.”;

(b) in paragraph (2), after “appeal” insert “or application for review”;

(c) in paragraph (3), after “appeal” insert “or application for review”;

(d) in paragraph (4), after “appeal” at each place, insert “or application for review”;

(e) in paragraph (5), after “appeal” insert “or application for review”.

13.  In rule 9A(11)—

(a) in paragraph (1), after “appeal” insert “or notice of application for review”;

(b) in sub-paragraph (3)(c), after “appeal” insert “or application for review”.

14.  In the heading of rule 10, after “reply” insert “to an appeal”.

15.  In rule 10(12), before paragraph (1) insert—

“(A1) This rule does not apply to an application to the Commission for review under section 2C or 2D of the 1997 Act.”.

16.  In the heading of rule 10A, after “material” insert “in relation to an appeal”.

17.  In rule 10A(13), before paragraph (1) insert—

“(A1) This rule does not apply to an application to the Commission for review under section 2C or 2D of the 1997 Act.”.

18.  After rule 10A, insert—

“Secretary of State’s reply to an application for review

10B.— (1) Where the Secretary of State intends to oppose an application for review, he must file with the Commission—

(a) a statement of the evidence on which he relies in opposition to the application for review; and

(b) material relevant to the issues in the application for review.

(2) Unless the Secretary of State objects to the statement and material filed under paragraph (1), or to part thereof, being disclosed to the appellant or his representative, he must serve a copy of the statement and material, or as much of the statement and material as he does not object to disclosing to the appellant or his representative, on the appellant at the same time as filing it.

(3) Where the Secretary of State objects to the statement and material filed under paragraph (1), or to part thereof, being disclosed to the appellant or his representative, rules 37 and 38 shall apply in respect of the statement and material, or the part thereof which the Secretary of State objects to disclosing to the appellant or his representative.

(4) Where a special advocate is appointed, the Secretary of State must serve on him a copy of the statement and material filed under paragraph (1).”.

19.  In the heading of rule 11, after “appeal” insert “or application for review”.

20.  In rule 11—

(a) in paragraph (1), after “appeal” insert “or application for review”;

(b) in paragraph (2), after “appeal” insert “or application for review”.

21.  In the heading of rule 11A, after “appeal” insert “or application for review”.

22.  In rule 11A(14)—

(a) in paragraph (1), after “appeal” insert “or application for review”;

(b) in paragraph (2), after “appeal” in both places, insert “or application for review”;

(c) in paragraph (3), after “appeal” in both places, insert “or application for review”.

23.  For rule 11B(15), substitute—

“Striking out

11B.   The Commission may strike out—

(a) a notice of appeal, a notice of application for review or a reply by the Secretary of State, if it appears to the Commission that it discloses no reasonable grounds for bringing or defending the appeal or for seeking or opposing the application for review, as the case may be; or

(b) a notice of appeal or a notice of application for review, if it appears to the Commission that it is an abuse of the Commission’s process.”.

24.  In the heading of rule 12, after “appeal” insert “or application for review”.

25.  In rule 12(16)—

(a) after “Every appeal” insert “and every application for review”;

(b) after paragraph (a), insert—

“(aa) the application for review is withdrawn by the appellant;”;

(c) for paragraph (b), substitute—

“(b) the Secretary of State consents to—

(i) the appeal being allowed; or

(ii) the granting of the order or the relief sought in an application for review; or”.

26.  For rule 26(17), substitute—

“Scope of this Part

26.   This Part applies to applications to the Commission for leave to appeal to the Court of Appeal, the Court of Session or the Court of Appeal in Northern Ireland from a final determination by the Commission—

(a) of an appeal, on a question of law; or

(b) of an application for review under section 2C or 2D of the 1997 Act.”.

27.  In rule 34(1), for “appeal or application” substitute “appeal, application for review or other application”.

28.  In rule 37(18)—

(a) for paragraph (1), substitute—

“(1) In this rule, “closed material” means material which the Secretary of State would otherwise be required to disclose to the appellant or his representative under rule 10, 10A or 10B, but which the Secretary of State objects to disclosing to the appellant or his representative.”;

(b) in paragraph (3), for “10(2) or 10A(8)”, substitute “10(2), 10A(8) or 10B(2)”.

29.  In rule 40(19)—

(a) in sub-paragraph (1)(c)(i), after “appeal” insert “or application for review”;

(b) in sub-paragraph (1)(c)(ii), after “appeal” insert “, notice of application for review”;

(c) after paragraph (2), insert—

“(3) Where the Commission has struck out a notice of appeal, notice of application for review or the Secretary of State’s reply under paragraph (1)(c)(ii), it may subsequently reinstate the notice or reply if it is satisfied that circumstances outside the control of the appellant or the Secretary of State (as the case may be) made it impracticable for the appellant or the Secretary of State to comply with the direction.”.

30.  In rule 43A(20), after “appeal” insert “or application for review”.

Signed by the authority of the Lord Chancellor

Shailesh Vara

Parliamentary Under Secretary of State

Ministry of Justice

27th November 2013

EXPLANATORY NOTE

(This note is not part of the Rules)

These rules amend the Special Immigration Appeals Commission (Procedure) Rules 2003 (S.I. 2003/1034) (“the 2003 Rules”) as a consequence of amendments to the Special Immigration Appeals Commission Act 1997 (c.68) (“the 1997 Act”) by section 15 of the Justice and Security Act 2013 (c.18). Under the new provisions an applicant may apply to the Special Immigration Appeals Commission (“SIAC”) to set aside a direction by the Secretary of State to exclude a non-EEA national from the UK (section 2C(2) of the 1997 Act), and to set aside a decision by the Secretary of State in relation to naturalisation and citizenship applications (under section 2D(2) of the 1997 Act). When deciding such applications SIAC must apply the principles which would be applied in judicial review proceedings.

These rules ensure that the 2003 Rules provide procedures for these applications for review and on the use of closed material proceedings in relation to such applications.

(1)

Section 5 was extended by section 6A of the Justice and Security Act 2013 (c.18) to apply to reviews under section 2C or 2D of the Special Immigration Appeals Commission Act 1997 (c.68) as it applies to appeals under section 2 or 2B of that Act.

(2)

1997 c.68. Section 5 was amended by section 82(2) of, and schedule 5 to, the Regulation of Investigatory Powers Act 2000 (c.23), section 9(1) of, and paragraph 28 of Schedule 2 to, the Race Relations (Amendment) Act 2000 (c.34), sections 4(3), 114(3) and 161 of, and paragraph 23 of Schedule 7 and Schedule 9 to, the Nationality, Immigration and Asylum Act 2002 (c.41) and article 5(1) of, and paragraphs 14 and 15 of Schedule 1 to, S.I. 2010/21 and was extended by section 6A of the Special Immigration Appeals Commission Act 1997, as inserted by section 19 of, and paragraph 9 of Schedule 2 to, the Justice and Security Act 2013 (c.18), and by section 97A(2K) of the Nationality, Immigration and Asylum Act 2002 (c.41), as inserted by section 54 of the Crime and Courts Act 2013 (c.22) (section 97A was inserted by section 7(1) of the Immigration, Asylum and Nationality Act 2006 (c.13)).

(3)

S.I. 2003/1034, as amended by S.I. 2007/1285, 2007/3370.

(4)

As amended by S.I. 2007/1285.

(5)

Sections 2C and 2D were inserted by section 15 of the Justice and Security Act 2013 (c.18).

(6)

As amended by S.I. 2007/1285.

(7)

As amended by S.I. 2007/1285.

(8)

As amended by S.I. 2007/1285.

(9)

As amended by S.I. 2007/1285.

(10)

As amended by S.I. 2007/1285.

(11)

Inserted by S.I. 2007/1285.

(12)

As amended by S.I. 2007/1285.

(13)

Inserted by S.I. 2007/1285.

(14)

Inserted by S.I. 2007/1285.

(15)

Inserted by S.I. 2007/1285.

(16)

As amended by S.I. 2007/1285.

(17)

As amended by S.I. 2007/1285.

(18)

As amended by S.I. 2007/1285.

(19)

As amended by S.I. 2007/1285.

(20)

Inserted by S.I. 2007/3370.