Joint Committee on Statutory Instruments Eighteenth Report


Appendix 2

S.I. 2003/652: memorandum from the Lord Chancellor's Department

Immigration and Asylum Appeals (Procedure) Rules 2003 (S.I. 2003/652)

3.  The Committee has asked for a memorandum from the Lord Chancellor's Department on the following points:

(1) In relation to the saving for "any other enactment" in rules 12(b), 23(c), 37, 38(2) and 40(1), explain what enactments are contemplated and why the saving is necessary.

4.  The rules referred to relate to the circumstances in which an appeal may be determined without a hearing (rules 12(b) and 23(c)), the general power of the appellate authority to decide the procedure to be followed in relation to an appeal or application (rule 37), the power to give directions (rule 38(2)) and the power to adjourn a hearing (rule 40(1)).

5.  These Rules relate to a fast-moving area of Government policy, and at the time they were drafted there was a significant possibility that further Rules might be made in the future to prescribe different procedures for dealing with appeals, either in specific types of cases or by way of pilot schemes. The rules in which savings were included are rules which it was thought likely that any such further Rules might modify or make subject to exceptions. The inclusion of the savings in these Rules was considered by the Department to be desirable to reduce the likelihood of these Rules requiring amendment in the event of such further Rules being made in the future.

6.  As it transpired, by the time of making these Rules, policy had been developed for a further set of procedure rules to be made, modifying these Rules for the purpose of providing a faster procedure for immigration and asylum appeals in certain circumstances where the appellant is detained under the Immigration Acts. It was contemplated that those Rules might, in particular, include modifications or exceptions to the rules in which the saving has been included. Those Rules have subsequently been made and they were laid before Parliament on 20th March 2003 (the Immigration and Asylum Appeals (Fast Track Procedure) Rules 2003 (S.I 2003/801)).

(2) Rule 37 allows the appellate authority (defined in rule 2 to include the adjudicator's or the Tribunal's staff) to decide the procedure to be followed in relation to any appeal or application. Explain the intended scope of this provision.

7.  Rule 37 is intended to give the appellate authority general power to decide the procedure to be followed in relation to any matters not specifically covered by the Rules. The rule refers to "the appellate authority" rather than "an adjudicator or the Tribunal" because it is contemplated that decisions about the procedure to be followed may include matters of an administrative nature which may properly be decided by members of staff (for example, the administrative listing of cases) as well as matters requiring judicial consideration by an adjudicator or the Tribunal. The reference is also for consistency with rule 38(1) (directions) which refers to "the appellate authority" for the reason explained below.

8.  The steps which may be taken by members of staff will be subject to the supervision and directions of the Chief Adjudicator and the President of the Tribunal, who have confirmed that it is not their intention that this rule should lead to members of staff making decisions of a judicial rather than administrative nature. Adjudicators and Tribunal members alone, and subject to the directions of the Chief Adjudicator and the President in assigning work, make judicial directions, and the role of members of their staff is to implement judicial directions (whether general or specific) and to make administrative decisions.

(3) In relation to rule 38(1) and (5), explain whether it is intended that a non-legally-qualified member of the adjudicator's or the Tribunal's staff should be able to give directions to the parties relating to the conduct of any appeal or application, and in particular directions varying any time limit (rule 38(5)(c)) or dealing with the matters mentioned in rule 38(5)(d) and (f)

9.  Rule 38(1) refers to "the appellate authority" rather than "an adjudicator or the Tribunal" because it is intended that the adjudicators' and the Tribunal's staff (both legally and non-legally qualified) should be able to follow an administrative practice whereby a standard set of directions approved by the Chief Adjudicator or the President of the Tribunal is issued to the parties in all appeals of a particular description. Where this is done, although the directions will have received judicial approval for use generally, the issuing of the directions in an individual case will be an administrative act which may properly be carried out by a member of staff. The reason for referring to "the appellate authority" in rule 38(1) is to avoid casting any doubt on the validity of this practice.

10.  The steps which may be taken by members of staff will be subject to the supervision and directions of the Chief Adjudicator and the President of the Tribunal, who again have confirmed that it is not their intention that a member of staff should be able to give directions about any of the matters set out in sub-paragraphs (c), (d) or (f) of rule 38(5), except insofar as such matters may be the subject of standard directions as described above. Standard directions might, for example, include provision for a pre-trial review to be held (sub-paragraph (d)(ii)) or a direction that witness statements are to stand as evidence in chief (sub-paragraph (d)(v)). They would not cover matters such as varying a time limit (sub-paragraph (c)) which would require a judicial decision by an adjudicator or the Tribunal based on the circumstances of the particular case.

(4) In relation to certain applications and appeals, rule 61(1) (transitional provisions) provides for these Rules to apply with the modification in paragraph (2) and such other modifications as are appropriate. Explain the inclusion of the underlined words and indicate the modifications contemplated.

11.  The words "such other modifications as are appropriate" are included in rule 61(1) to cater for appeals and applications which are brought or continue after 1st April 2003 under the legislation preceding the Nationality, Immigration and Asylum Act 2002 (in most cases under Part IV of and Schedule 4 to the Immigration and Asylum Act 1999) as a result of the transitional provisions contained in the Nationality, Immigration and Asylum Act 2002 (Commencement No. 4) Order 2003 (S.I. 2003/754).

12.  In relation to those appeals and applications, any rules which include references to the 2002 Act or to a specific provision of the 2002 Act will require modification. The modifications contemplated are, first, to treat any reference in the Rules to the 2002 Act as if it were a reference to the applicable previous legislation, and, secondly, to treat any reference to a specific provision of the 2002 Act as if it were a reference to any corresponding provision of the applicable previous legislation or, where there is no such corresponding provision, to treat the provision of the rules containing the reference as having no effect.

4 April 2003


 
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