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The Tribunal Procedure (Upper Tribunal) (Immigration and Asylum Chamber) (Amendment) Rules 2024

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EXPLANATORY NOTE

(This note is not part of the Rules)

The Tribunal Procedure (Upper Tribunal) Rules 2008 (S.I. 2008/2698) (‘the UT Rules’), governs the practice and procedure that apply to proceedings before the Upper Tribunal. These Rules amend the UT Rules to implement the provisions of sections 44 to 46, and 48 to 49 of the Illegal Migration Act 2023 (c. 37) (‘the Act’).

The Act establishes a new procedure for the removal of persons who enter or arrive in the United Kingdom in breach of immigration control. Section 2 of the Act places a duty on the Secretary of State to make arrangements for the removal of a person, if the person meets specified conditions, from the United Kingdom to their home country or to a safe third country. A person may challenge the decision of the Secretary of State for removal on the basis that their claim is a ‘suspensive claim’ as defined under section 38(2) of the Act. A successful challenge has the effect of suspending a person’s removal from the United Kingdom.

Section 44 of the Act provides a person who makes a suspensive claim the right to appeal to the Upper Tribunal to challenge a decision of the Secretary of State to refuse their suspensive claim.

Under section 45 of the Act, where a person’s suspensive claim is refused by the Secretary of State and is also certified as clearly unfounded, that person does not have the right to appeal, but may make an application for permission to appeal to the Upper Tribunal.

Section 46 of the Act makes provision in limited circumstances for a person to make a suspensive claim out of time. A person is entitled by this section to make an application to the Upper Tribunal for a declaration that there were compelling reasons why a person was not able to make their suspensive claim in time. If the Upper Tribunal grants the declaration, the Secretary of State is required to consider their suspensive claim.

Section 48 of the Act makes provision for the Upper Tribunal to consider ‘new matters’ as defined under section 48(4) of the Act, when considering an appeal in relation to a suspensive claim, or an application for permission to appeal in respect of a claim certified as clearly unfounded.

Section 49 of the Act requires tribunal procedure rules to be made in respect of appeals and applications in relation to suspensive claims and specifies timescales that the procedure rules must follow.

Rule 2 inserts the Suspensive Claims Rules as a new Schedule 5 to the UT Rules (‘the Suspensive Claims Rules’). Rule 2(2) defines within the main body of the UT Rules (‘the Principal Rules’), the Suspensive Claims Rules and provides that these apply to proceedings in the circumstances specified by those rules. Rule 2(2)(b)(ii) amends the definition of “applicant” within the Principal Rules, to include a person who makes an application for a declaration in respect to a suspensive claim. Rule 2(3) amends rule 11(1) of the Principal Rules to ensure that the prohibition from representing as provided by section 84 of the Immigration and Asylum Act 1999 (c. 33) includes suspensive claims cases.

Rule 1(1) of the Suspensive Claims Rules contains definitions, explains the relationship between the Suspensive Claims Rules and the Principal Rules and sets out which of the Principal Rules do not apply for the purposes of proceedings under the Act. Rule 2 of the Suspensive Claims Rules sets out modifications of the Principal Rules for the purposes of suspensive claims proceedings.

Part 2 of the Suspensive Claims Rules describes the procedure to be followed in applications to the Upper Tribunal for permission to appeal against decisions of the Secretary of State under section 45 of the Act.

Part 3 of the Suspensive Claims Rules describes the procedure to be followed in appeals to the Upper Tribunal in circumstances where the Act does not require appellants to request permission to appeal, or where permission to appeal has been granted by the Upper Tribunal under Part 2 of the Suspensive Claims Rules. In Part 3 of the Suspensive Claims Rules, rule 18 provides for the procedure to be followed where new matters are raised during the course of appeals or applications for permission to appeal to the Upper Tribunal under the Act.

Part 4 of the Suspensive Claims Rules provides for the procedure to be followed in relation to applications to the Upper Tribunal by a person for a declaration under section 46 of the Act.

No impact assessment has been carried out for these amendments as no, or no significant impact, on the private, voluntary, or public sectors is foreseen.

A full impact assessment has been published in relation to the Act and copies can be obtained from the Parliament website: https://bills.parliament.uk/publications/51897/documents/3699.

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