Select Committee on Delegated Powers and Deregulation Twenty-Second Report


ANNEX

IMMIGRATION AND ASYLUM BILL
Memorandum by the Home Office

PART IV: APPEALS

SCHEDULE 4, PARAGRAPH 4: POWER TO PROVIDE FOR NOTICE OF APPEALABLE MATTERS
Power conferred on: The Secretary of State
Power exercisable by: Statutory instrument
Parliamentary procedure: Negative resolution of either House of Parliament
Other relevant provisions: Clauses 48 (2) and 154 (1), (2) and (5)

172.  Paragraph 1 of Schedule 4 enables the Secretary of State to provide for written notice to be given of appealable matters under Part IV. Provision may be made for such a notice to include a statement of the reasons for the decision or action in question, the available rights of appeal and connected procedures, as well as the form of such notices and statements and the way they may be given.

173.  Paragraph 1 is a re-enactment (with very minor modifications) of section 18 of the 1971 Act. The Immigration Appeals (Notices) Regulations 1984 (SI 1984/2040) are the current regulations made under this section. It seems appropriate for procedural issues of this sort to continue to be dealt with by way of secondary legislation as they are at present. The negative resolution procedure, which currently applies under section 18 (3) of the 1971 Act, also seems appropriate for any future regulations dealing with these notices.

SCHEDULE 4, PARAGRAPHS 3 AND 4: POWER TO MAKE RULES FOR THE PRACTICE AND PROCEDURES TO BE ADOPTED BY ADJUDICATORS AND THE IMMIGRATION APPEAL TRIBUNAL.
Power conferred on: The Lord Chancellor
Power Exercisable by:Statutory Instrument
Parliamentary Procedure:Negative Resolution
Other relevant ProvisionsSchedule 4, paragraphs 6 and 22(1)

174.  Schedule 4, paragraph 3 enables the Lord Chancellor to make rules for regulating the exercise of rights of appeal conferred by Part IV of the Act; for prescribing the practice and procedure to be followed in connection with those appeals, including the mode and burden of proof and admissibility of evidence; and for other matters preliminary or incidental or arising out of such appeals, including proof of the decisions of the adjudicator or the Immigration Appeal Tribunal.

175.  Schedule 4, paragraphs 3 and 4 continue the rule making power contained in Section 2 and Schedule 2 of the 1971 Act. It is appropriate that the power should continue to be exercisable through subordinate legislation because of the detail which the rules have to contain and the need to respond quickly to changing demands. Paragraph 3 indicates the broad framework. Paragraph 4 enables rules to cover certain specified matters. Those that are new are: provision enabling an appeal to be allowed or dismissed without considering the merits of a party's case; provision enabling an appeal to be treated as abandoned; provision enabling the Tribunal to set aside its decision. The rules will be subject to consultation with the judiciary of the Immigration Appellate Authorities, interest groups and, by statute, the Council on Tribunals. It is submitted that the negative resolution procedure provides an appropriate level of Parliamentary scrutiny.

SCHEDULE 4, PARAGRAPH 5: POWER TO MAKE PRACTICE DIRECTIONS.
Power conferred on: The President of the Immigration Appeal Tribunal and on the Chief Adjudicator
Parliamentary Procedure:None
Other relevant Provisions:None

176.  Schedule 4, paragraph 5 enables the President of the Immigration Appeal Tribunal and the Chief Adjudicator to make Directions as to the practice and procedure to be adopted within their respective jurisdictions. Practice Directions will deal with the fine detail relating to the day to day conduct of business, for example provision of information in preparation for a hearing. It is submitted that such detail represents judicial housekeeping and that the power can be exercised without the need for a Direction to be subject to Parliamentary scrutiny.

CLAUSE 50 (6) AND (10): POWER TO MAKE REGULATIONS IN CONNECTION WITH VISITOR APPEALS
Power conferred on: The Secretary of State
Power exercisable by:Statutory instrument
Parliamentary procedure: Negative resolution of either House of Parliament
Other relevant provisions:Clause 49, 50 (5), 154 (1), (2) and (5) and 155(1)

177.  Clause 50 (5) provides that a family visitor is entitled to appeal under clause 49 against a refusal of an entry clearance. Clause 50 (6) gives the Secretary of State power to make regulations requiring such an appellant to pay a fee and for the repayment of such a fee if the appeal is successful. The regulations may provide that an appeal is not to be entertained unless the required fee has been paid. Subsection (10) enables the Secretary of State to prescribe the meaning of "family visitor".

178.  It is considered appropriate for the power to require payment of, and to repay fees, to be contained in regulations since the amount of the fee may change over time. Similarly, in relation to the power to prescribe the meaning of "family visitor" a power is necessary in case the meaning needs to change over time, for example, to adapt to the requirements of article 8 of the ECHR.

179.  The negative resolution procedure is considered adequate for the power to fix fees since the fees will be set in accordance with Treasury guidance and will be fixed no higher than the rate regarded as necessary to recover the costs of running family visitor appeals. Similarly, the negative resolution procedure is considered adequate in relation to the meaning of "family visitor".

CLAUSE 62 (3): POWER TO PRESCRIBE APPLICATION FORMS
Power conferred on: The Secretary of State
Power exercisable by:Statutory instrument
Parliamentary procedure:Negative resolution of either House of Parliament
Other relevant provisions: clauses 154 (1), (2) and (5) and 155 (1)

180.  Clause 62 (3) enables the Secretary of State to prescribe the form in which an application must be made in order for an applicant to enjoy a right of appeal in relation to any refusal of the application. In addition, it enables him to prescribe the steps an applicant must take or the timescale within which they must be taken in relation to the application, failing which the applicant is denied a right of appeal.

181.  It is considered normal for application forms to be prescribed by secondary legislation and the negative resolution procedure seems appropriate for such procedural matters.

CLAUSE 64 (3), (8), (9) AND (10): POWER TO APPLY THE ONE-STOP APPEAL PROCEDURE TO OTHER CIRCUMSTANCES AND TO PRESCRIBE THE PROCEDURE
Power conferred on: The Secretary of State
Power exercisable by:Statutory instrument
Parliamentary procedure for subsections (3) and (10):Draft affirmative (each House of Parliament)
Parliamentary procedure for subsections (8) and (9):Negative resolution of either House of Parliament
Other relevant provisions:Clauses 65, 66, 67, 154 (1), (2) and (4), and 155(1)

182.  Clause 64 provides for a one-stop appeal procedure for persons (and members of their families) whose application for leave to enter or remain (or a variation of such leave) is refused and who enjoy an in-country right of appeal against the refusal. In such cases, the applicant may be served with a notice requiring him to state any additional grounds he may have for wishing to enter or remain in the United Kingdom. If he fails unreasonably to do so then, in the case of claims other than those under the ECHR, he may lose any right of appeal in respect of it (clause 65). Clauses 66 and 67 require the appellate bodies to take into account all the grounds contained in the applicant's statement.

183.  Subsection (8) merely enables the Secretary of State to prescribe who, in relation to an applicant, is a relevant member of his family. Subsection (9) enables the Secretary of State to prescribe procedures which are to be followed in connection with the one-stop appeal process including the form in which notices and statements are to be given. These are matters which it is thought are better suited to secondary legislation than matters which should be set out on the face of the Bill because of the possibility of the need for future changes and the extent of the procedural detail which may be required. The negative resolution procedure seems consistent with what is in issue.

184.  Subsection (3) and the extension of that power in subsection (10) enable clauses 64 to 67 to be applied with modifications to other prescribed circumstances. The purpose of this power is to apply a modified form of one-stop procedure to persons not presently covered by those clauses, namely, those who do not have an in-country right of appeal except on ECHR or asylum grounds (those falling into this category are illegal entrants, those liable to be removed under clause 8 and those seeking leave to enter at a port). In such cases, the regulations will provide for a similar one-stop procedure so that all ECHR and asylum issues can be considered at one appeal.

185.  It is considered appropriate for this to be achieved by way of a power since the key principles and objectives set out in clauses 64 to 68 will continue to apply but will simply do so in a slightly different context, in effect, at an earlier stage when it has not yet been decided that a person should not be given leave but there is some onus on him to justify his presence in the United Kingdom. It is thought that that draft affirmative procedure is appropriate given the possibly significant impact of the regulations on appeal rights in individual cases.

CLAUSES 66 (4) AND 67 (3): POWER TO MAKE PROVISION IN RELATION TO THE CONSIDERATION OF ADDITIONAL GROUNDS
Power conferred on: The Secretary of State
Power exercisable by: Statutory instrument
Parliamentary procedure: Negative resolution of either House of Parliament
Other relevant provisions: Clause 154 (1), (2) and (5)

186.  Clauses 66 and 67 require the appellate bodies to consider, in addition to the original claim of an applicant, any additional grounds he raises in response to a notice from the Secretary of State. Subsections (4) and (3) of those clauses respectively enable the Secretary of State to make further provision with respect to appeals in relation to which additional grounds are to be considered under those clauses. This means that the Secretary of State can clarify in the regulations which additional grounds are to be considered by the appellate bodies.

187.  It is considered appropriate for procedural matters of this sort to be contained in secondary legislation rather than on the face of the Bill. The negative resolution procedure seems appropriate and consistent with other powers to make secondary legislation in connection with appeals (see, for example, paragraphs 1 and 3 of Schedule 4 to the Bill).

CLAUSE 69: POWER (1) TO REQUIRE THAT NOTIFICATION BY THE IMMIGRATION APPEAL TRIBUNAL THAT AN APPEAL TO IT LACKS MERIT IS GIVEN IN PRESCRIBED FORM; (2) TO PRESCRIBE THE FINANCIAL PENALTY WHICH MAY BE IMPOSED IF SUCH AN APPEAL IS CONTINUED AND FAILS; (3) TO PRESCRIBE THE METHOD OF ENFORCING A PENALTY.
Power conferred on: The Lord Chancellor
Powers exercisable by:Statutory Instrument
Parliamentary Procedure:Negative Resolution
Other relevant ProvisionsSchedule 4, paragraphs 3, 6 and 22

188.  Clause 69 will be implemented if the requirement to apply for leave to appeal to the Immigration Appeal Tribunal is lifted. It provides a way of deterring appeals which would not now be given leave. The Tribunal will be able to issue a notice that an appeal appears to lack merit and to impose a penalty if the appeal is continued and fails. Notices will need to be consistent and readily understandable and it is therefore appropriate to prescribe their form. So that an appellant and his representative are not exposed to an unknown risk, it is appropriate that the amount of the penalty should be prescribed. The Tribunal has no mechanism for collecting or accounting for monies, and it will be more practical to enforce payment through existing machinery.

189.  Consideration will not be given to lifting the leave requirement until changes arising from the Act have bedded in. The use of subordinate legislation will enable tribunal users, interest groups and the Council on Tribunals to be consulted about the detail of the regime as a single issue, and for changes to be made as soon as the need arises. It is submitted that the negative resolution procedure provides an appropriate level of Parliamentary control.

CLAUSE 70: POWER TO MAKE PROVISION FOR APPEALS BY EEA NATIONALS
Power conferred on: The Secretary of State
Power exercisable by: Statutory instrument
Parliamentary procedure: Negative resolution of either House of Parliament
Other relevant provisions:Clause 154 (1), (2) and (5)

190.  Clause 70 enables the Secretary of State to make provision for appeals by EEA nationals and their families concerning their entitlement to be admitted to the United Kingdom, to reside or continue to reside in the United Kingdom and to be issued with, or to have withdrawn, a residence permit. The regulations may also make similar provision in connection with citizens of other states who fall to be treated in the same way as EEA nationals as a result of an agreement to which the United Kingdom is a party. The regulations also enable provision to be made for a one-stop appeal procedure to apply to EEA nationals comparable to clauses 64 to 67.

191.  The appeal rights of EEA nationals are presently contained in the Immigration (European Economic Area) Order 1994 (SI 1994/1895). That Order, which was made under section 2 (2) of the European Communities Act 1972, covers a much wider range of issues than appeal rights. For example, it sets out the various rights enjoyed by EEA nationals in respect of admission to, and residence in, the United Kingdom, and the limitations on those rights, as well as the duties of the Secretary of State in respect of those issues. Those issues will continue to be dealt with in that Order. It is only rights of appeal which are covered by clause 70.

192.  It is considered appropriate for these matters to be dealt with by secondary legislation as they are presently under the EEA Order since it is possible that changes may from time to time be necessary in the light of developments under EU law. The negative resolution procedure is thought to be adequate because the regulations will simply provide for appeal rights and the procedures that are to apply in connection with them in relation to the substantive entitlements that will continue to be provided for in the EEA Order itself.


 
previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries

© Parliamentary copyright 1999