Joint Committee on Statutory Instruments First Report


Memorandum by the Lord Chancellor's Department


1. The Lord Chancellor's Department submits this Memorandum in response to the Committee's request dated 8th November 2000, on the following points:

    (1)  Explain the meaning of "immigration decision", which expression appears in regulation 5 and elsewhere in the instrument.

2. "Immigration decision" in these Rules means any decision concerning a person's removal from the United Kingdom, or his entitlement to be admitted to or reside in the United Kingdom, against which there is a right of appeal to an adjudicator. It would have been possible to include in rule 5 a definition to this effect. It was however thought that since rule 5(1) made it clear that Part II of the Rules applied to appeals to adjudicators, the expression "immigration decision" in rule 5(2) was clear, and that in the interests of simplicity a more detailed definition was unnecessary. However, consideration will be given to providing a fuller definition at the next opportunity.

    (2)  Rule 6(2)(a) specifies the time limit for giving notice of appeal by an appellant who was in the UK when the decision appealed against was made but is outside the UK when the appeal is made. The time limit is calculated from the day on which the appellant departed from the UK. Rule 6(1) and 6(2)(b) provide respectively that the time limit in respect of a person who appeals within the UK and a person who was not in the UK when the decision was made and appeals outside the UK runs from the day on which notice of the decision was received: Explain:

    (a) why time starts to run against a person to whom rule 6(2)(a) (but not any other potential appellant) applies irrespective of whether he is aware of the decision;

3. Rule 6(2)(a) applies to a person who is in the United Kingdom when the immigration decision is made. Some cannot appeal whilst in the UK, others can. The great majority of the latter who wish to appeal will remain within the UK, and therefore have 10 days in which to give their notice of appeal (rule 6(1)). The small number who leave the UK and then appeal are given 28 days from their departure. For those who cannot appeal whilst in the UK, it would be invidious to set the appeal period from service of the decision notice because there can be long delays between such service and when they actually leave the country, and in many cases the appeal would expire before departure.

4. There is no way in which such a person can be unaware of the decision. Regulation 4 of the Immigration and Asylum Appeals (Notices) Regulations 2000 (S.I. 2000/2246) requires the decision-maker to give written notice to a person or his representative of any decision or action taken in respect of him which is appealable. The person concerned will therefore have been notified of the decision to remove him from the United Kingdom. Moreover, the authorities will have been holding the passport of such a person, and it will in practice be returned by hand or by post with the copy of the decision, so that he will not be able to leave the country without having been notified of the decision.

    (b) whether it is intended that a person who remains in the UK for the period of 10 days prescribed by rule 6(1) but fails to give notice of appeal within that time may, at any subsequent time, bring himself within rule 6(2)(a) merely by leaving the UK.

5. A person who is entitled to appeal in the United Kingdom may not be removed at all while notice of appeal has been lodged and the appeal is pending; in many cases such a person may receive financial and other benefits. A person who is so entitled but leaves the country voluntarily loses those benefits. It is therefore the intention that a person who is entitled to appeal in the UK may choose not to do so and may appeal from abroad instead, and that the appeal from abroad may be lodged within 28 days of departure whenever that occurs. In practice very few people who are entitled to appeal before removal choose to appeal from abroad.

    (3)  Explain the relationship between rules 7(2) and 12(5).

6. Rule 12(5) applies where the respondent argues that the notice of appeal is out of time, but the adjudicator, after hearing the arguments on both sides, determines that there are special circumstances for allowing the appeal to proceed. Rule 7(2) on the other hand applies where there has been no objection from the respondent to the appeal going ahead, but the adjudicator himself has noticed that it is out of time. He may nevertheless, if he believes that there are special circumstances, treat the notice as having been given in time.

    (4)  Rule 22(3) refers to time limits for the service of evidence "set out in these rules". Where in the Rules are such time limits set out?

7. In certain circumstances, rule 19(1) provides for applications to be made to the Tribunal. By virtue of rule 19(2), it would be possible for evidence to be served with such an application. This rule has a time limit of 10 days for making the application. This is at present the only time limit to which rule 22(3) applies.

    (5)  Explain how rule 22(4) is subject to rule 38. Should the reference in rule 22(4) be to paragraph 6 of Schedule 4 to the 1999 Act?

8. The Department accepts that rule 22(4) should be subject not to rule 38 itself, but to paragraph 6 of Schedule 4 to the 1999 Act, which is referred to in rule 38. Rule 22(4) will be amended at the next opportunity. The Department apologises for this error.

    (6)  Rule 33(1) permits the appellate authority to dispose of an appeal in accordance with paragraph (2) where a party has failed to comply with a direction and it "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)." Explain the meaning of the underlined words.

9. Rule 30(2) provides that the overriding objective is "to secure the just, timely and effective disposal of appeals...". The Department accepts that it is always necessary for an appellate authority to have regard to the overriding objective, and that the requirement in rule 33(1) that the appellate authority should be satisfied "that it is necessary to have regard to the overriding objective" is therefore otiose. The intended meaning of this provision was that the appellate authority should be satisfied that, in order to further the overriding objective, it should dispose of the appeal in accordance with rule 33(2). An appropriate amendment will be made at the next opportunity. The Department apologises for this error.

14 November 2000

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