House of Lords - Explanatory Note
Immigration And Asylum Bill - continued          House of Lords

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163.     Subsections (4) and (5) deny a right of appeal against refusal of entry clearance or leave to enter under clause 49 in respect of :

  • visitors (but not including family visitors - see below);

  • students accepted for a course for up to 6 months;

  • those intending to study but not accepted for any course; or

  • a dependant of one of the above.

The appeal right is not removed in the case of a person refused leave to enter if he holds a current entry clearance.

164.     Under subsection (5), a person who is refused an entry clearance for a family visit will now enjoy a right of appeal. The meaning of "family visitor" will be prescribed and the procedures relating to this right of appeal will be set out in procedural rules. Subsection (6) enables the Secretary of State by regulation to require a family visitor appealing under clause 49 to pay a fee and for the fee to be re-paid if the appeal is allowed.

165.     Subsection (7) of clause 49 denies a right of appeal against refusal of leave to enter where refusal is mandatory under the Immigration Rules, including a requirement to hold specific documents which are defined in subsection (8) as entry clearances, passports or other identity documents and work permits. And subsection (9) denies a right of appeal against refusal of leave to enter or refusal of entry clearance if the Secretary of State certifies that directions have been given by the Secretary of State personally that the person's exclusion is conducive to the public good.

Clause 51: Variation of limited leave to enter or remain

166.      This clause gives a right of appeal against a decision to vary or refuse to vary limited leave if, as a result of the decision, the person with the leave may be required to leave the United Kingdom within 28 days. This gives effect to the principle that a right of appeal should exist only for the most adverse immigration decisions and that there should be no right of appeal unless a decision requires the person's departure from the United Kingdom. A person must have valid leave to enter or remain at the time the application is made in order to have a right of appeal under this clause. (See also commentary on clauses 7 and 8 above).

Clause 52: Limitations on rights of appeal under clause 51

167.     Clause 52 applies restrictions on the right of appeal under clause 51. Subsection (1) denies a right of appeal against a refusal to grant further leave in circumstances where refusal is mandatory under the Immigration Rules. Dependants of such persons similarly have no right of appeal. In addition, there is no right of appeal under clause 51 against a refusal where the Secretary of State personally certifies that the person's departure would be conducive to the public good in the interests of national security, the relations between the United Kingdom and any other country or for other reasons of a political nature. As at present, such persons would have a right of appeal to SIAC. Finally, there is no right of appeal under clause 51 against a variation of leave made by statutory instrument, or a refusal to make such an instrument.

Clause 53: Appeals against deportation orders

168.      Clause 53 gives a right of appeal against a decision to make a deportation order or a refusal to revoke a deportation order. The right of appeal exists in relation to deportation orders made because the Secretary of State deems the person's deportation to be conducive to the public good or where a court has recommended the person's deportation. Under the Bill, deportation will be reserved for such cases. Other persons not entitled to be in the United Kingdom will be removed by administrative arrangements under clause 8. Subsection (4) provides that an appellant may object to the country to which it is intended to deport him and claim that he ought to be removed, if at all, to a different country specified by him. Where a person claims that he should be removed to a different country specified by him he must show, in accordance with clause 58, if he is not a national of the country, that the specified country will admit him. This provision is to ensure that objection to destination is taken as part of the appeal against deportation: it is not a separate right of appeal in its own right.

Clause 54: Limitations on rights of appeal under clause 53

169.      This clause sets out limitations on the right of appeal under clause 53. As now, there will be no right of appeal to the Immigration Appellate Authority for those whom it is decided to deport on the ground that this would be conducive to the public good for national security or similar reasons. Likewise, there will still be no right of appeal to the Immigration Appellate Authority against a refusal to revoke a deportation order where the Secretary of State certifies the appellant's exclusion on these grounds, nor if the Secretary of State personally refuses to revoke the order. As now, there will be right of appeal in these circumstances to SIAC.

170.     An appeal against a refusal to revoke a deportation order will still not be exercisable in the United Kingdom. But clauses 51 and 55 will enable an in-country appeal solely on ECHR or asylum grounds in some circumstances. Finally, clause 54 sets out the restriction in the 1971 Act which prevents a person who is being deported as a family member from disputing statements about the family relationship made to secure his entry or stay here.

Clause 55: Human rights : acts made unlawful by section 6(1) of the Human Rights Act 1998

171.     This clause creates a new right of appeal on human rights grounds. It provides for a right of appeal where someone believes that a decision under the Immigration Acts relating to their entitlement to enter or remain in the United Kingdom was made in breach of their ECHR rights. Acting in breach of human rights is defined by reference to section 6(1) of the Human Rights Act 1998.

172.     Clause 55 extends a right of appeal to anyone who alleges a breach of human rights. Under subsections (3) and (6) the right of appeal applies to decisions made by an immigration officer, the Secretary of State or an entry clearance officer, that is, in respect of refusal of leave to enter, leave to remain or refusal of an entry clearance, or a variation or refusal to vary leave.

Clause 56: Validity of directions for removal

173.      Clause 56 provides for a right of appeal against directions for removal in certain circumstances. Under subsection (2) the appellant is limited, as now, to arguing that there was in law no power to give the directions on the grounds quoted. The appeal is not a review of whether or not the directions should have been made in the appellant's particular circumstances. Subsection (4) provides that where an appeal is against directions given by virtue of a deportation order the appellant cannot dispute the original validity of that order. He will already have had the opportunity to do so.

174.     Subsection (3) maintains the principle that an appeal under this clause may not be exercised in the United Kingdom; but where the person has an in-country appeal under the asylum or new ECHR provisions, he may dispute the validity of the directions at the same time.

Clause 57: Removal on objection to destination

175.     Clause 57 confers a right of appeal against directions for removal on the ground that removal should be to a specified country other than the one in the directions. This right is not extended to those removed under clause 8.

Clause 58: Limitations on rights of appeal under clause 57

176.      Clause 58 sets out a number of limitations on the rights of appeal under clause 57. A person will not be entitled to appeal against the destination specified in removal directions given following a refusal of leave to enter unless he is also appealing against he decision that he required leave to enter or he was refused leave at a time when he held a current entry clearance or work permit. In addition, if a person is entitled to object to a country on an appeal under clause 49 or clause 53 and he does not object to it, or his objection is not upheld, then clause 57 does not entitle him to appeal against any directions subsequently given as a result of the refusal if their effect will be his removal to that country.

Clause 59: Claims for asylum

177.      Clause 59 sets out the rights of appeal of persons who are refused asylum. Subsection (1) provides for a right of appeal on asylum grounds against refusal of leave to enter. Subsection (2) provides a right of appeal on asylum grounds against a decision to vary or refuse to vary a person's limited leave to enter or remain and where the decision would require the person's departure within 28 days. The clause also provides a right of appeal on asylum grounds against deportation and removal (subsections (4) and (5)).

178.     In contrast to other provisions in Part IV which restrict a right of appeal to decisions which require the applicant's departure from the United Kingdom, subsection (3) provides a right of appeal where an asylum seeker is refused asylum but granted leave to enter or remain on other grounds. A right of appeal is provided in such circumstances in the light of the significant difference in the rights attached to refugee status as distinct from other immigration categories.

Clause 60: Limitations on rights of appeal under clause 59

179.     Clause 60 imposes a number of limitations on the rights of appeal set out under clause 59. These principally concern cases where leave to enter has been refused on the grounds that the appellant's exclusion from the United Kingdom would be in the interests of national security; or where a decision to make a deportation order, or to refuse to revoke one, was also made on grounds of national security. They also include cases where the Secretary of State himself (and not someone acting under his authority) has refused to revoke a deportation order. In all of these instances, there is no entitlement to appeal under clause 59. However, there is a right of appeal to SIAC under section 2 of the Special Immigration Appeals Commission Act 1997.

180.     Subsection (4) has the effect of restricting the right of appeal, set out in subsection (2) of clause 59, against a refusal to grant asylum but where limited leave to enter or remain has been given. A person who has been granted leave but refused asylum on the basis that he falls under Article 1(F) of the 1951 Convention (which lists those categories of persons considered not to be deserving of protection) will not have a right of appeal under clause 59 where the Secretary of State certifies that the disclosure of material on which the refusal was based is not in the interests of national security. In such cases it will be SIAC which hears the appeal unless SIAC quashes the certificate and remits the matter to the ordinary appellate bodies under section 4(1A) of the Special Immigration Appeals Commission Act 1997 as amended by paragraph 102 of Schedule 13 of the Bill. Finally, clause 60 states that a claim for asylum must have been made before the time of the refusal to grant or vary leave, or the making of directions (as the case may be), if the person wishes to appeal against the refusal on asylum grounds.

Clause 61: Removal of asylum claimants to safe third countries

181.     Clause 61 provides a right of appeal against a certificate issued under clauses 9 or 10 where it is claimed that any of the requirements applicable to such a certificate was, or is, not satisfied. In these circumstances, a person may appeal to an adjudicator against the certificate, but not to the Immigration Appeal Tribunal (Schedule 4, paragraph 22).

Clause 62: Miscellaneous limitations on rights of appeal

182.     Clause 62 imposes limitations on certain appeal rights. Subsection (1) provides that unless a certificate issued under clauses 9 or 10 has been set aside on appeal under clause 55 or 61, or otherwise ceases to have effect, the person in respect of whom it was issued is not entitled to appeal on other matters arising before his removal.

183.     Subsection (2) provides that an appeal under clause 55 will not be exercisable in the United Kingdom if the applicant has been, or is to be sent, to a member State or a designated safe third country. Subsection (3) provides that applicants cannot appeal against a decision made on an application where that application had to be made on a prescribed form and they did not comply with any prescribed procedures and time limits.

Clause 63: Limitation on further appeals

184.     Clause 63 makes provision for cases where a person has appealed and that appeal has been finally determined. In such a case, the clause prevents such a person from raising by way of a further appeal or claim, matters which were the subject of the earlier appeal, including ECHR issues which have already been addressed. This is achieved by the Secretary of State certifying that the matter has already been heard on appeal.

Clause 64 : "One-stop" procedures : duty to disclose grounds for appeal etc

185.     Under clause 64, when an applicant is refused leave to enter or remain or refused a variation of leave or his leave is varied, and the refusal attracts a right of appeal, the applicant and any relevant member of his family will be notified of their duty, if they wish to appeal against the decision, to state within a prescribed period any other grounds they have for staying in the United Kingdom. These might be immigration, asylum or ECHR matters, compassionate circumstances or a mixture of these. These additional grounds will then be considered. If these new grounds for remaining are also refused, and they attract a right of appeal, the refusal, or refusals, will be dealt with at a single appeal along with the original refusal.

186.     Subsection (3) enables the requirements of this clause to be applied by regulations to others types of case such as illegal entrants and overstayers. Subsection (10) provides that regulations made under subsection (3) may also apply to, and where appropriate modify, the effect of any of the provisions of clauses 65, 66 or 67 (all of which deal with aspects of the one-stop appeal).

Clause 65: Result of failure to comply with clause 64

187.     This clause sets out the consequences of failure to comply with the requirements of clause 64. It provides that if an applicant fails to mention a particular ground on which he intends to rely in his statement, even though he was aware of it at the time, he may not rely on that ground in any appeal. The clause provides for exceptions to this general principle. Subsection (3) disapplies the principle where the ground is a claim for asylum or a claim that an act breached the applicant's human rights, or where the Secretary of State considers that the applicant had a reasonable excuse for the omission.

188.     Subsection (5) provides that if the applicant claims asylum after the prescribed period for the statement required under clause 64, no appeal may be made against a refusal of that claim if the Secretary of State certifies that the claim for asylum was made solely for the purpose of delaying his removal from the United Kingdom.

Clause 66 : "One-stop" appeals : asylum claims

189.     Clause 66 sets out a number of matters in respect of asylum appeals and the new "one-stop" appeal process. Its purpose is to require an adjudicator considering an asylum appeal also to deal with any other appealable matters raised by the appellant in his statement in response to the notice given him under clause 64 and which he is not prevented from relying on by clause 65. It also embodies the principle, established in current case law, that in asylum matters the appellate body is to consider the evidence of the situation which obtains when the appeal is heard, rather than being limited to reviewing the evidence available when the initial decision was taken. Regulations may be made detailing which of the additional grounds raised in the statement can be considered.

Clause 67: "One-stop" appeals - other cases

190.     Clause 67 makes equivalent provision to clause 66 for non-asylum appeals by requiring the appellate authorities in such cases to consider additional grounds submitted in response to the disclosure notice and enabling them to allow the appeal on any of those grounds (subsection (2)).

Clause 68: Transfer of appellate proceedings

191.     Clause 68 clarifies the position of those applicants who have appealed and who subsequently have a decision to deport taken against them against which they cannot appeal under clause 53 because of the limitations of rights of appeal imposed by clause 54(2). If such a person appeals against that decision under section 2(1) of the Special Immigrations Appeals Commissions Act 1997, any appeal under this Part is transferred to, and must be heard by SIAC.

Clause 69: Appeals without merit : penalty on continuing an appeal without merit

192.     This clause allows the Tribunal to notify a party bringing an appeal before it that, in the opinion of the Tribunal, the appeal lacks merit and that a fixed financial penalty may be imposed if the appeal is pursued and fails. The Tribunal will be able to exercise this power at any time before it determines an appeal by a notification in such form as may be prescribed in rules. The power will be exercisable if, in the future, the requirement to apply for leave to appeal to the Tribunal in that category of appeal is removed. The power of the Lord Chancellor to determine the financial penalty, which it is intended will cover the Tribunal's costs, will be exercisable through statutory instrument subject to annulment by either House of Parliament.

Clause 70: EEA Nationals

193.     Clause 70 makes provision in primary legislation for the rights of appeal which have been prescribed under EU law for EEA nationals and their dependants. Details of the rights of appeal will be set out in regulations and will comprise decisions relating to admission, residence and the issue or withdrawal of residence permits. Appeals against decisions under this clause will be heard by the Immigration Appellate Authority or, where appropriate, by SIAC.

Clause 71: Grants to voluntary organisations

194.     This clause enables the Secretary of State, with the approval of the Treasury, to make grants to any voluntary organisation which provides advice and assistance for, or other services for the welfare of persons who have rights of appeal under the Bill.

Schedule 4: Appeals

Schedule 4, Part I : Procedure

195.     Part I of Schedule 4 sets out provisions as to how Part IV of the Bill will operate in practice, covering issues such as notice of appealable matters, the Lord Chancellor's rules of procedure, hearings in private, leave to appeal and Convention cases.

196.     Paragraph 1 concerns notice of appealable matters. The Secretary of State may make regulations to provide for written notice to be given to anyone of a decision or action which attracts a right of appeal under Part IV (whether or not the decision or action is appealable in a particular case). The regulations will allow the form and procedure of such a notice to be defined.

197.     Paragraph 3 empowers the Lord Chancellor to make appeal procedure rules. It re-states and extends the rule making powers as set out in section 22(1) of the 1971 Act and transferred to the Lord Chancellor by the Transfer of Functions (Immigration Appeals) Order 1987.

198.     Paragraph 4(1)(e) provides that rules may make provision for the circumstances in which the Tribunal may set aside its decision. It is intended that the power will be exercisable on the Tribunal's own motion when considering an application for leave to appeal to the Court of Appeal. 199.     Paragraph 6 concerns hearings in private and paragraph 7 concerns the circumstances in which leave to appeal to the Tribunal must be granted. Paragraph 8 makes it an offence to fail without reasonable excuse to comply with a requirement of an adjudicator or the Tribunal. 200.     Paragraph 9 applies to 1951 Convention cases and claims under the ECHR. It sets out the circumstances under which an asylum or ECHR claim may or may not be certified. The effect of certification by the Secretary of State is to permit a right of appeal to an adjudicator only. The paragraph sets out the circumstances to which a claim may be certified. These include where a claim was made after the appellant was refused leave to enter, recommended for deportation, notified of a decision to deport or removal, or if it is manifestly unfounded, fraudulent or vexatious.

Schedule 4, Part II : Effect of appeals

201.      Part II deals with the effect of appeals. Paragraph 10 provides that any directions for removal already given cease to have effect when an appeal is pending under clause 49 or 59(1). 202.     Paragraph 11 makes similar provision in relation to appeals under clauses 56, 57 or 59(5) against removal directions given under Part I of Schedule 2 or Schedule 3 to the 1971 Act. But paragraph 12 ensures that the detention provisions of Schedule 2 and Schedule 3 may still be applied where appropriate. 203.     Paragraph 13 provides that any period where an appeal is pending under clause 49, 57 or 59(1) is to be disregarded for the purpose of calculating the period of two months for the giving of directions or notice of directions under Schedule 2 to the 1971 Act. Paragraph 14 defines when an appeal is to be regarded as pending for these purposes and paragraph 15 provides that the same provisions apply to persons belonging to his family as well as to the appellant. 204.     Paragraph 16 provides that a variation of leave will not take effect while an appeal against the variation is pending under clause 51 or 59(2). Paragraph 17 provides that an appellant's leave and the conditions attached to it continue while an appeal is pending under clause 51 or 59(2). 205.     Paragraph 18 provides that a deportation order is not to have effect where an appeal is brought under clause 53(1)(a) or 59(4)(a). Paragraph 19 applies similar provisions in respect of the family members of appellants. 206.     Paragraph 20 provides that a person will not be required to leave the United Kingdom if an appeal is pending under clause 55 (acts made unlawful by section 6(1) of the Human Rights Act 1998).

Schedule 4, Part III : Determination of appeals

207.     Part III of Schedule 4 sets out provisions for the determination of appeals. Paragraph 21 provides that, subject to paragraph 24, which sets out the appeals which must be dismissed, an adjudicator must allow an appeal if he considers that a decision was not in accordance with the law or with any immigration rules applicable to the case or if the decision involved the exercise of discretion which should have been exercised differently. Under sub-paragraph (5) the adjudicator must, in allowing an appeal, give directions for giving effect to the determinations and may also make recommendations with regard to any other action he considers should be taken under the immigration acts. 208.     Paragraph 22 sets out the circumstances in which an appellant may appeal to the Tribunal against an adjudicator's determination. If the Tribunal affirms the adjudicator's determination it may add to or alter any directions or recommendations. 209.     Paragraph 23 provides that with the leave of the Tribunal an appellant may appeal further to the Court of Appeal, or, in Scotland, the Court of Session. 210.     Paragraph 24 sets out those appeals which must be dismissed. These are where the adjudicator is satisfied the appellant was an illegal entrant at the time of the refusal; or of leave to enter where a deportation order was in force at the time an entry clearance was refused.

Part V : Immigration advisers and immigration service providers

211.     Part V of the Bill makes provision for the regulation of immigration advisers and immigration service providers.

212.      In the White Paper, the Government announced its intention to introduce legislation to regulate immigration advisers. The scheme covers both non-legally and legally qualified advisers. It would be unlawful for any person to provide immigration advice by way of business in or from the United Kingdom, unless registered to do so; a member of a designated professional body or European equivalent; or exempt from registration

Clause 72: Interpretation

213.     Those providing immigration advice and services in connection with criminal proceedings are not caught by the regulation. Those providing advice in connection with a bail application in the context of immigration detention are caught as a relevant matter. Immigration advice or services are references to advice given in the course of business whether or not for profit. The term "relevant matters" means, a claim for asylum; an application for, or the variation of, entry clearance or leave to enter or remain in the United Kingdom; unlawful entry into the United Kingdom; nationality and citizenship under the law of the United Kingdom; citizenship of the European Union; admission to Member States under Community law; residence in a Member State in accordance with rights conferred by or under Community law; removal or deportation from the United Kingdom; an application for bail under the Immigration Acts or under the Special Immigration Appeals Commission Act 1997; and an appeal against, or an application for judicial review in relation to, any decision taken in connection with the above matters.

 
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Prepared: 21 June 1999