House of Commons - Explanatory Note
Nationality, Immigration And Asylum Bill - continued          House of Commons

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Clause 55: Revocation of leave to enter or remain

117.     Clause 55 gives the Secretary of State power to revoke a person's indefinite leave to enter or remain in certain specified circumstances.

118.     Subsection (1) allows the Secretary of State to revoke indefinite leave where the person is liable to deportation but the person cannot be deported for legal reasons. An example of how this power would be used is where a person has committed a serious criminal offence such that their deportation would be conducive to the public good but cannot be returned to their country of origin because they would thereby face treatment contrary to Article 3 of the Convention.

119.     Subsection (2) allows the Secretary of State to revoke the indefinite leave of persons who are liable to removal on the grounds that they obtained the leave by deception, but who cannot be removed for legal or practical reasons. Practical obstacles such as difficulty in establishing nationality or the lack of a safe route of return can prevent removal.

120.     Subsection (3) allows the Secretary of State to revoke the indefinite leave of a person and that person's dependants in certain cases where a person loses their status as a Convention refugee - for example, by accepting the protection of the country of their nationality or establishing themselves in a country they had originally fled. As those concerned will no longer require the protection of the United Kingdom, subsection (7) allows for administrative removal by amending section 10(1) of the 1999 Act.

121.     Subsections (5) and (6) provide that leave granted before the power comes into force may be revoked. In relation to subsections (1) and (2) but not (3) leave may also be revoked where the action which triggers revocations occurs before the power comes into force.

Clause 56: No removal while claim for asylum pending

122.     Clause 56 re-enacts section 15 of the 1999 Act which provides that an asylum claimant may not be removed from or required to leave the United Kingdom before notice of the Secretary of State's decision on the claim is given. By virtue of subsection (4), however, removal directions or a deportation order may be given and other interim or preparatory action taken before notice of a decision on the claim has been given.

Clause 57: No removal while appeal pending

123.     Clause 57 re-enacts the provision in Schedule 4 of the 1999 Act which states that a person may not be removed from or required to leave the United Kingdom while he is in the country and his appeal is pending, as defined in clause 82. By virtue of subsection (3), however, removal directions or a deportation order may be given and other interim or preparatory action taken before the appeal ceases to be pending.

Clause 58: Removal of asylum-seeker to third country

124.     This provision substitutes section 11 of the 1999 Act. The standing arrangements in section 11 of the 1999 Act refer only to removals to European Union Member States under the Dublin Convention. These standing arrangements are now clarified to ensure that any other bi-lateral agreements on asylum returns with Member States outside of the Dublin Convention will still be removable under section 11.


Appeal to adjudicator

Clause 59 and Schedules 3 and 4: Adjudicators and the Immigration Appeal Tribunal

125.     Clause 59 sets out the criteria for the appointment of adjudicators by the Lord Chancellor and the functions he may assign to them. Subsection (1) requires the Lord Chancellor, as now, to appoint adjudicators to hear appeals under Part 2 of the Bill. Subsection (2) states the legal qualifications necessary for appointment. Subsection (3) requires the Lord Chancellor to appoint a Chief Adjudicator, and enables him to appoint a Deputy Chief Adjudicator and Regional Adjudicators. The Chief Adjudicator must carry out such functions as the Lord Chancellor may assign, while his Deputy must act on behalf of the Chief Adjudicator when necessary and perform the duties assigned to him. Regional Adjudicators must also perform tasks assigned by the Chief Adjudicator (subsections (4) - (6)).

126.     Schedule 3 re-states adjudicators and their support staff as set out in Schedule 3 to the 1999 Act. Paragraph 1 deals with the terms of office for adjudicators. Paragraph 2 requires the Chief Adjudicator to arrange for adjudicators to hear appeals and specifies that these must take place when and where the Lord Chancellor determines. Paragraph 3 enables the Chief Adjudicator to direct that a panel consisting of more than one adjudicator may deal with a particular appeal or category of appeal or appeal-related proceedings. Paragraph 4 requires adjudicators to carry out duties allocated by the Chief Adjudicator.

127.     Paragraph 5 of Schedule 2 enables the Lord Chancellor to appoint staff to support adjudicators. Paragraph 6 relates to the remuneration and allowances of adjudicators and their staff. Paragraph 7 concerns repayment of adjudicators expenses and paragraph 8 compensation on ceasing to be an adjudicator in special circumstances.

128.     Schedule 3 relates to the Immigration Appeal Tribunal. Paragraph 1 requires the Lord Chancellor to appoint its members and paragraph 2 deals with certain terms of office. Paragraph 3 requires the Lord Chancellor to appoint a person equivalent to a High Court judge as President, and paragraph 4 requires him to appoint a legally-qualified member of the Tribunal as Deputy President and sets out the latter's functions. Paragraph 5 requires the Tribunal to sit when and where the Lord Chancellor determines. Paragraphs 6 and 7 enable the Tribunal to sit in more than one division and enable the President to direct that certain cases or classes of case be decided by a single member or a set number of members, or legally qualified members.

129.     Paragraph 8 enables the Lord Chancellor to appoint staff for the Tribunal while paragraphs 9 to 11 concern remuneration and allowances for the Tribunal and its staff, Tribunal expenses, and compensation should a member leave in special circumstances. Paragraph 12 sets out the requirements for designation as a legally qualified member of the Tribunal.

Clause 60: Right of appeal: general

130.     Clause 60 sets out the decisions which attract a right of appeal to an adjudicator. The term "immigration decision" is used to describe the decisions taken in the United Kingdom by the Secretary of State and by immigration officers, and abroad by immigration officers and entry clearance officers, which attract the right of appeal. These decisions are listed in subsection (2). Subsection (3) points to the exceptions and limitations to the right of appeal which are listed in clauses 66 to 77. A decision that a person requires leave to enter the United Kingdom will no longer be a separate appealable decision: the matter can instead be raised in an appeal against refusal of a certificate of entitlement or leave to enter. A decision to make a deportation order following a court recommendation will now be appealable.

Clause 61: Appeal: claim for asylum

131.     Clause 61 gives a right of appeal on asylum grounds when an asylum claimant is refused asylum but granted leave to remain exceptionally in excess of one year.

Clause 62: Grounds of Appeal

132.     Clause 62 lists in subsection (1) the grounds on which an appeal may be brought. These are essentially the grounds on which the appellate authority must allow an appeal if it finds in the appellant's favour, and brings together the various bases of appeal which were set out in separate sections in the existing legislation. If a person wishes to put forward an alternative country to which he can be removed as a ground for appeal, that person must produce documentary evidence of permission to enter the alternative country to the Secretary of State (subsection (2)).

Clause 63: Matters to be considered

133.     Clause 63(1) gives the Secretary of State power to require an appellant to state any matters he could raise as a ground of appeal and additional grounds as to why he should be allowed to stay here. (Clause 74 describes how grounds raised later may be certified so that no further appeal can result.) Subsection (2) requires the adjudicator to consider and determine each of the grounds of appeal and additional grounds, and prevents him from considering anything else. Clause 92 gives a similar power for the Secretary of State to require a statement of additional grounds to persons who are not appellants.

134.     Subsection (3) enables an adjudicator to consider evidence concerning matters arising after the date of decision, an arrangement which currently only applies in asylum and Article 3 ECHR cases. Subsection (4) limits the evidence to that available to the decision-taker at the time of the decision in entry clearance and certificate of entitlement cases.

Clause 64: Consolidation of appeals

135.     Clause 64 states that when a person lodges an appeal against a second decision while an appeal against a first decision remains outstanding, the appeals shall be consolidated into one in accordance with rules.

Clause 65: Successful appeal: direction

136.     Clause 65 deals with directions which can be given by an adjudicator when allowing an appeal. There is a power under subsection (1) but no requirement to give directions because sometimes there may be no appropriate action to direct in order to give effect to the decision. Subsection (2) requires a decision-maker to comply with the direction, but the direction does not have effect until the time for appealing the decision is past, or while such an appeal is pending (subsection (3)). Under subsection (4) the direction is part of the adjudicator's determination and as such can be appealed to the Tribunal.

Exceptions and limitations

Clauses 66 to 77

137.     Clauses 66 to 77 set out detailed provisions relating to exceptions and limitations on the general right of appeal as well as stating when appeals may be pursued in the United Kingdom (ie when they are "suspensive"). It should be noted that the general exceptions do not prevent an appeal being lodged on asylum, human rights, European or race discrimination grounds. However, no appeal may be lodged on any ground when the application has been certified under the one-stop procedure (clause 74).

Clause 66: Ineligibility

138.     Clause 66 deals with cases where the application has been refused because the person (or a person on whom his application depends) does not meet a basic non-discretionary requirement of the Rules: thus any appeal based on the Rules could not succeed. Another category is failure to have a particular immigration document and another in addition to those in the 1999 Act is subsection (2)(d), whereby there is no right of appeal on general grounds where the application was to stay for a purpose not covered by the Immigration Rules.

Clause 67: Compliance with procedure

139.     Clause 67 restates provisions in the 1999 Act preventing an appeal when a person (or a person on whom his application depends) fails to follow a prescribed procedure relating to the application. For example, where a charge is levied the fee must be paid, where a certain form is necessary or certain information required it must be provided. These steps must be prescribed in a Statutory Instrument.

Clause 68: Visitor or student without entry clearance

140.     Clause 68 restates the 1999 Act exceptions relating to a person who applies for leave to enter the United Kingdom at a port of entry as a visitor, a student (who has not enrolled on a course or has enrolled on a course that lasts less than six months) or a dependent of such a person, and does not possess an entry clearance (or visa). There is no right of appeal against a decision to refuse entry to such persons (subsection (2)).

Clause 69 Non-family visitor

141.     Clause 69 restates earlier provisions restricting appeals against refusal of entry clearance for a visit to those cases where a family visit has been refused.

Clause 70: Student

142.     Clause 70 restates earlier provisions about appeals by students, and their dependants, who are refused entry clearance. There is no appeal if the person has not been accepted for a course, or has been accepted and the course lasts for less than six months.

Clause 71: Appeal from within United Kingdom: general

143.     Clause 71 sets out the circumstances when an appeal is suspensive, that is when it may be lodged in the United Kingdom, suspending any removal which might follow from the decision. An appeal lodged in the United Kingdom on asylum, human rights, or European grounds is always suspensive (subsection (4)). An appeal lodged solely on general grounds is only suspensive when made against a decision to make a deportation order (subsection (2)(e)), a refusal of leave to enter at the port where the applicant holds an entry clearance or work permit (subsection (3)), or a decision relating to a person who applied "in-time" for an extension of stay or has had leave to stay curtailed (subsection (2(b))). Appeals against refusal of a certificate of entitlement and revocation of indefinite leave are also suspensive ((2)(a) and (d)). The only change from the 1999 Act provisions is that an appeal to an adjudicator solely on race discrimination grounds will no longer be suspensive.

Clause 72: Appeal from within United Kingdom: "third country" removal

144.     Clause 72 is a variation on a provision in earlier legislation relating to people issued with certificates under section 11 or 12 of the 1999 Act (removal of asylum claimants to a "third country"). Under subsection (1) an appeal may not be lodged under clause 60 while the person remains in the United Kingdom. Under subsection (2), however, the person may appeal in the United Kingdom if he claims the decision breaches his human rights and the Secretary of State has not certified that the human rights claim is in his opinion clearly unfounded.

Clause 73: Appeal from outside United Kingdom: removal

145.     This new provision prevents an appeal being lodged on asylum grounds from outside the United Kingdom.

Clause 74: Earlier right of appeal

146.     Under subsection (1) there will be no right of appeal on any ground against an otherwise appealable decision if the Secretary of State or immigration officer certifies that the person has had the opportunity to raise the grounds addressed in the decision at an earlier appeal - whether or not any appeal was lodged or completed, and that in his opinion the person is appealing to delay his removal, or the removal of a member of his family. Subsection (2) removes any right of appeal where the Secretary of State or immigration officer certifies that the matter was raised on an earlier appeal, should have been raised at an earlier appeal (see clause 59) but was not, or could have been raised at an appeal had the applicant chosen to exercise a right of appeal. Under subsection (3), where a further appeal right arises, the Secretary of State or immigration officer may certify certain grounds of appeal put forward to the effect that they were considered in an earlier appeal. Subsection (4) enables the Secretary of State or immigration officer to certify matters raised which should have been declared in response to an earlier one-stop warning.

147.     In all cases, the person will have been warned, in accordance with regulations, that failure to disclose additional grounds might lead to certification (subsection (5)). The earlier legislation is extended in two ways. First, a certificate can be made when the person has not actually had a full one-stop appeal: though they must at least have been required to raise any additional grounds and had the opportunity (by complying with the requirement) to avail themselves of an appeal against refusal of those grounds. Secondly, an application or grounds of appeal can be certified if the person has left the United Kingdom and returned (subsection (6)).

Clause 75: National Security

148.     Clause 75 concerns national security and other cases where the Secretary of State has personally certified that the person's removal or exclusion from the United Kingdom is in the interests of national security or the relationship between this country and another, or desirable for another reason of a political kind (subsection (2)). In these cases there is, as before, no right of appeal to an adjudicator (subsection (1)). But, as before, alternative rights of appeal are available under the SIAC 1997. If an appeal under clause 60 has already commenced when the certificate is issued, subsection (1) prevents it from continuing: in effect it transfers to the Commission.

Clause 76: Other grounds of public good

149.     Clause 76 excludes cases from attracting a right of appeal or prevents an appeal from continuing where the Secretary of State has personally certified that the person's exclusion from the United Kingdom is conducive to the public good.

Clause 77: Sections 75 and 76: appeal in progress

150.     Clause 77 applies to an appeal which is outstanding when a certificate is issued under clause 75 or 76. The appeal will immediately lapse.

Clause 78: Immigration Appeal Tribunal

151.     Clause 78 provides for the Tribunal to continue in being.

Clause 79: Appeal to Tribunal

152.     Clause 79(1) gives a person the right to appeal, with leave, to the Tribunal against an adjudicator's determination on a point of law.

Clause 80: Decision

153.     Clause 80(1) sets out the options open to the Tribunal when determining an appeal: it may affirm the adjudicator's decision (subsection (1(a))), make any decision which the adjudicator could have made (subsection (1(b))), remit it to an adjudicator (subsection (1(c))), affirm any directions made by the adjudicator under clause 65, or vary or give any direction which the adjudicator could have given under clause 65.

154.     Clause 80(2) and (3) govern the evidence the Tribunal may consider. This is on the same basis as evidence which may be considered by an adjudicator under clause 60. Clause 80(4) empowers the Tribunal, in remitting an appeal to an adjudicator, to require the adjudicator to determine the appeal in accordance with its directions, or to take additional evidence so that the case may come back to the Tribunal for determination.

Clause 81: Appeal from Tribunal

155.     Clause 81 re-enacts paragraph 23 of Schedule 4 to the 1999 Act, in respect of appeals to the appropriate appeal court. An appeal may be made with permission of the Tribunal, or of the court if refused by the Tribunal, to the Court of Appeal or (in Scotland) the Court of Session. Subsection (3) states that when the Tribunal remits an appeal to an adjudicator, that decision cannot form the basis of an appeal to the Court of Appeal.


Clause 82: Pending appeal

156.     Clause 82 re-enacts section 58 of the 1999 Act. It defines when an appeal is pending, during which time the appellant is generally protected from enforcement of the consequences of a decision. An appeal remains pending until the time limit for taking it further expires. An appeal taking place in the United Kingdom ceases to be pending if the person leaves the United Kingdom or is granted leave to enter or remain here (unless the appeal is against a decision based on refusal of asylum). A deportation order also brings an end to an appeal.

Clause 83: Notice of immigration decision

157.     Clause 83 re-enacts with amendments paragraph 1(1) of Schedule 4 to the 1999 Act, concerning regulations governing the service of appealable decisions. The clause states that regulations may be made requiring written notice to be given of an immigration decision within the terms of clause 60, which must state that there is a right of appeal and give details of how it may be exercised and the time limit for doing so. Subsection (3) enables the regulations to make provision for service.

Clause 84: Rules

158.     Clause 84 re-enacts, with amendments, and expands upon paragraphs 2 and 4 of Schedule 4 to the 1999 Act. These concern procedural rules made by the Lord Chancellor governing appeals to the adjudicator and Tribunal. The new measures are covered in subsections (2)(g), whereby the rules may prevent adjournment of a case, subsection (2)(h) requiring determination within a certain period and subsection (2)(i) enables electronic communication at hearings, for example video-links, subsection (2)(j) provides for the remittal of an appeal to an adjudicator under clause 80, subsection 2(k) enables an adjudicator to set aside a decision of himself or another adjudicator and subsection (2)(p) which requires an adjudicator to give notice of determination to a specified person. Subsections (3) and (4) re-enact paragraph 8 of Schedule 4 to the 1999 Act, which makes it an offence to fail to give evidence or produce a document without reasonable excuse when required to do so by the Rules.

Clause 85: Practice Directions

159.     Clause 85 re-enacts paragraph 5 of Schedule 4 to the 1999 Act about practice directions given by the President of the Tribunal and the Chief Adjudicator.

Clause 86: Forged immigration document: proceedings in private

160.     Clause 86 re-enacts paragraph 6 of Schedule 4 to the 1999 Act which concerns proceedings held in private when it is alleged that a document is a forgery, in order that forgery detection methods can be protected.


Clause 87: Grants

161.     Clause 87 enables the Secretary of State to make grants to voluntary organisations in connection with appellants.

Clause 88: Regulations

162.     Clause 88 is a general provision regarding regulations and rules for this Part of the Bill. They will be negative resolution statutory instruments made by the Secretary of State.

Clause 90: Repeal

163.     Clause 90(1) repeals Part IV of the 1999 Act, which this Part replaces. Subsection (2) gives effect to Schedule 5 (transitional provisions). Subsection (3) gives effect to Schedule 6 (consequential amendments).


Applications for leave to enter or remain

Clause 91: Leave pending decision on variation application

164.     Clause 91 is a replacement for section 3C of the 1971 Act, which ensures that persons who make an application for leave "in time", that is before their current leave expires, are protected from becoming overstayers while their application is outstanding and while an appeal is pending. The earlier provision made no allowance for when an application was withdrawn, or the decision on that application was not appealable. This is now provided for.

Clause 92: Requirement to state additional grounds for application

165.     Clause 92 replaces and extends the application of the one-stop notice in section 75 of the 1999 Act. There is now no limitation on the category of applicant on whom it can be served. When served with a "notice in writing" the person is required to state all his reasons for staying here. If he does not do so, any attempt to raise grounds later may be certified under clause 74 with the effect that there is no right of appeal against a decision, or those grounds cannot be raised in connection with a further appeal.

Clause 93: Deemed application by asylum-seeker

166.     Clause 93 states that where a person makes a claim for asylum, he shall also be treated as having made an application for leave to enter or remain, as appropriate.

Work permits

Clause 94: Fee for work permit

167.     Clause 94 gives the Secretary of State the power to charge for the consideration of applications for immigration employment documents, including work permits and letters of permission issued in-country which give authority to work and which underpin employment-related leave to enter or remain.

168.     Subsection (3) establishes that the details of charging are to be set out in regulations. These regulations may make different provision in relation to different types or classes of applications. Such variation would allow, for example, different charges (including exemptions) or methods of payment to be introduced according to the type of application or the nature of the employer. Subsection (4) allows such regulations to specify that particular payment arrangements may apply in relation to certain applications.

Clause 95: Advice about work permit

169.     Clause 95 inserts a new paragraph in subsection (1) and a new subsection (3) in section 82 of the 1999 Act. The effect is that applications for an immigration employment document will become a "relevant matter" for the purposes of the regulatory scheme established by Part V of the 1999 Act. This means that anyone who provides advice and/or services regarding work permit applications or any other document relating to the employment of a foreign national in the course of a business will be subject to the regulatory scheme established by Part V of the 1999 Act.

Clause 96: Authority to carry

170.     Clause 96 introduces the ATC scheme, which enables the Secretary of State to operate a scheme, which requires carriers to seek authority for bringing passengers to the United Kingdom. It is envisaged that a scheme or schemes will require them to do so by checking the details of passengers travelling to the United Kingdom against information held on a Home Office database to confirm that they pose no known immigration or security risk and to confirm that their documents are in order. This will take place before the passenger embarks for the United Kingdom.

171.     Subsection (1) allows the Secretary of State to make regulations requiring a carrier who brings a person to the United Kingdom to pay a penalty if they do not seek authority to carry a person, or if they carry a person even though authority has been refused, when required to do so.

172.     Subsection (3) provides that ATC may be applied to any class of carrier or passenger and subsection (4) allows the Secretary of State to operate different ATC schemes for different purposes.

173.     Subsections (6) and (7) provide that the regulations made under this clause may mirror or amend carrier's liability legislation, which concerns people arriving in the United Kingdom without valid travel documents or visas.

174.     Subsection (8) provides that a decision as to whether to grant authority under the scheme does not indicate whether the person is entitled or permitted to enter the United Kingdom.

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Prepared: 12 April 2002