The Nationality, Immigration and Asylum Act 2002 (Commencement No. 4) Order 2003

Statutory Instruments

2003 No. 754 (C. 37)

IMMIGRATION

The Nationality, Immigration and Asylum Act 2002 (Commencement No. 4) Order 2003

Made

14th March 2003

In exercise of the powers conferred upon him by section 162(1), (4) and (6) of the Nationality, Immigration and Asylum Act 2002(1), the Secretary of State hereby makes the following Order:

Citation and interpretation

1.—(1) This Order may be cited as the Nationality, Immigration and Asylum Act 2002 (Commencement No. 4) Order 2003.

(2) In this Order—

“the 1971 Act” means the Immigration Act 1971(2);

“the 1988 Act” means the Immigration Act 1988(3);

“the 1993 Act” means the Asylum and Immigration Appeals Act 1993(4);

“the 1997 Act” means the Special Immigration Appeals Commission Act 1997(5);

“the 1999 Act” means the Immigration and Asylum Act 1999(6); and

“the 2002 Act” means the Nationality, Immigration and Asylum Act 2002.

Commencement and appointed date provisions

2.—(1) The provisions of the 2002 Act specified in column 1 of Schedule 1 to this Order shall come into force on the date specified in column 2 of that Schedule, but where a particular purpose is specified in relation to any such provision in column 3 of that Schedule, the provision concerned shall come into force on that date only for that purpose.

(2) The date appointed under section 162(4) of the 2002 Act for the purposes of section 8 of that Act is 1st April 2003.

Transitional provisions

3.—(1) Subject to Schedule 2, the new appeals provisions are not to have effect in relation to events which took place before 1st April 2003 and, notwithstanding their repeal by the provisions of the 2002 Act commenced by this Order, the old appeals provisions are to continue to have effect in relation to such events.

(2) Schedule 2, which makes further transitional provisions, has effect.

Definitions for transitional provisions

4.—(1) In this Order—

(a) “the new appeals provisions” means sections 82 to 99 and sections 101 to 103 of the 2002 Act; together with any provision (including subordinate legislation) of—

(i) the 2002 Act;

(ii) the 1971 Act, the 1997 Act and the 1999 Act (all as amended by the 2002 Act);

which refer to those provisions;

(b) “the old appeals provisions” means—

(i) sections 13 to 17 of the 1971 Act;

(ii) subsections (1) to (4) of section 8 of the 1993 Act;

(iii) the 1997 Act (without the amendments made by the 2002 Act);

(iv) Part IV of, and Schedule 4 (except paragraphs 10 to 20 and 23) to, the 1999 Act;

(v) section 115 of the 2002 Act;

together with—

(vi) any subordinate legislation which applies to those provisions (unless specific provision is made to the contrary); and

(vii) any provision of the old Immigration Acts which refers to those provisions;

(c) “the old Immigration Acts” means the 1971 Act, the 1988 Act, the 1993 Act, the 1996 Act, the 1997 Act and the 1999 Act, all without the amendments made by the 2002 Act.

(3) For the purposes of article 3 and Schedule 2, an event has taken place under the old Immigration Acts where—

(a) a notice was served;

(b) a decision was made or taken;

(c) directions were given; and

(d) a certificate was issued.

(4) For the purposes of this Order—

(a) a notice was served;

(b) a decision was made or taken;

(c) directions were given; and

(d) a certificate was issued;

on the day on which it was or they were sent to the person concerned, if sent by post or by fax, or delivered to that person, if delivered by hand.

(5) In this article—

(a) “the person concerned” means the person who is the subject of the notice, decision, directions or certificate or the person who appears to be his representative; and

(b) a reference to the issue of a certificate is a reference to the issue of a certificate under section 11, 12 or 72(2) of the 1999 Act or section 115 of the 2002 Act.

Beverley Hughes

Minister of State

Home Office

14th March 2003

Article 2

SCHEDULE 1

Column 1	Column 2	Column 3
Section 4 (deprivation of citizenship).	1st April 2003
Section 12 (British citizenship: registration of certain persons without other citizenship).	30th April 2003
Section 13 (British citizenship: registration of certain persons born between 1961and 1983).	30th April 2003
Section 68 (1) to (5) (bail).	1st April 2003
Section 72 (9) and (10) (serious criminal).	1st April 2003
Section 77 (no removal while claim for asylum pending).	1st April 2003
Section 78 (no removal while appeal pending).	1st April 2003
Section 79 (deportation order: appeal).	1st April 2003
Section 80 (removal of asylum-seeker to third country).	1st April 2003	So far as not already in force.
Section 81 (adjudicators).	1st April 2003
Section 82 (right of appeal: general).	1st April 2003
Section 83 (appeal: asylum claim).	1st April 2003
Section 84 (grounds of appeal).	1st April 2003
Section 85 (matters to be considered).	1st April 2003
Section 86 (determination of appeal).	1st April 2003
Section 87 (successful appeal: direction).	1st April 2003
Section 88 (ineligibility).	1st April 2003
Section 89 (visitor or student without entry clearance).	1st April 2003
Section 90 (non-family visitor).	1st April 2003
Section 91 (student).	1st April 2003
Section 92 (appeal from within United Kingdom: general).	1st April 2003
Section 93 (appeal from within United Kingdom: “third country” removal).	1st April 2003
Section 94 (appeal from within United Kingdom: unfounded human rights or asylum claim).	1st April 2003
Section 95 (appeal from outside United Kingdom: removal).	1st April 2003
Section 96 (earlier right of appeal).	1st April 2003
Section 97 (national security, &c.)	1st April 2003
Section 98 (other grounds of public good).	1st April 2003
Section 99 (sections 96 to 98: appeal in progress).	1st April 2003
Section 100 (Immigration Appeal Tribunal).	1st April 2003
Section 101 (appeal to Tribunal).	1st April 2003
Section 102 (decision).	1st April 2003
Section 103 (appeal from Tribunal).	1st April 2003
Section 104 (pending appeal).	1st April 2003
Section 105 (notice of immigration decision).	1st April 2003
Section 106 (rules).	1st April 2003
Section 107 (practice directions).	1st April 2003
Section 108 (forged document: proceedings in private).	1st April 2003
Section 109 (European Union and European Economic Area).	1st April 2003
Section 110 (grants).	1st April 2003
Section 111 (monitor of certification of claims as unfounded).	1st April 2003
Section 114 (1) and (2) (repeal).	1st April 2003
Section 116 (Special Immigration Appeals Commission: Community Legal Service).	1st April 2003
Section 117 (Northern Ireland appeals: legal aid).	1st April 2003
Section 118 (leave pending decision on variation application).	1st April 2003
Section 120 (requirement to state additional grounds for application).	1st April 2003
Section 123 (advice about work permit, &c.).	1st June 2003
Section 126 (physical data: compulsory provision).	1st April 2003
Section 130 (Inland Revenue).	1st April 2003
Section 142 (Advisory Panel on Country Information).	1st April 2003
Section 147(1), (3) and (4) (employment).	1st April 2003
Section 147(2) (employment).	1st April 2003	For the purpose of enabling subordinate legislation to be made under it.
Schedule 4 (Immigration and Asylum Appeals: Adjudicators).	1st April 2003
Schedule 5 (The Immigration Appeal Tribunal).	1st April 2003
Schedule 6 (Immigration and Asylum Appeals: Transitional Provision).	1st April 2003
Schedule 7 (Immigration and Asylum Appeals: Consequential Amendments).	1st April 2003	So far as not already in force.
Section 161 and Schedule 9 (repeals) (the entries relating to sections 3(9)(b), 29 and 31(d) of the Immigration Act 1971; to sections 19E(7) and 71A(1) of the Race Relations Act 1976(7); to sections 7 to 9, 10, 19 to 21, 22, 27(2), 28, 33, 44(2) and (3) of and Schedule 2 paragraph 3(1)(b) and Schedule 4 to the British Nationality Act 1981(8); to section 4(3)(b) of the British Nationality (Falkland Islands) Act 1983(9); to section 1(5) of the British Nationality (Hong Kong) Act 1990(10); to sections 2A, 4, 5(1)(a) and (b) and (2) and 7A of, and Schedule 2 to, the Special Immigration Appeals Commission Act 1997(11); to sections 15, and 56 to 81, of, and Schedules 2 to 4, and 14, to, the 1999 Act; and to Schedule 2 to the Race Relations Amendment Act 2000.(12)	1st April 2003

Article 3

SCHEDULE 2

Transitional provisions relating to the 2002 Act

1.—(1) In this paragraph, a reference to a section or to a Schedule is to be read as a reference to a section of, or to a Schedule to, the 2002 Act, unless otherwise specified.

(2) Section 77 (no removal while claim for asylum pending) shall have effect in relation to a claim for asylum pending on 31st March 2003 as it has effect in relation to a claim for asylum pending under the 2002 Act.

(3) Section 78 (no removal while appeal pending) shall have effect in relation to an appeal pending under the old appeals provisions as it has effect in relation to an appeal pending under section 82(1) of the 2002 Act.

(4) Section 79 (deportation order: appeal) shall have effect in relation to an appeal pending under the old appeals provisions as it has effect in relation to an appeal pending under section 82(1) of the 2002 Act.

(5) Section 115 (appeal from within the United Kingdom: unfounded human rights claim or asylum claim: transitional provision) shall continue to have effect in relation to any person who made an asylum claim or human rights claim (as defined in subsection (10)) on or after 1st April 2003.

Transitional provisions relating to the appeals provisions of the 1971 Act

2.—(1) In this paragraph, a reference to a section or to a Schedule is to be read as a reference to a section of, or to a Schedule to, the 1971 Act, unless otherwise specified.

(2) Section 3C of the 1971 Act (continuation of leave pending variation decision), as substituted by section 118 of the 2002 Act, shall apply in relation to an application made before 1st April 2002, in respect of which no decision has been made on or before 1st April 2002, as it applies to such an application made after 1st April 2002.

(3) Section 5 (procedure for, and further provisions as to, deportation) is to continue to have effect in relation to—

(a) any person on whom the Secretary of State has, before 2nd October 2000, served a notice of his decision to make a deportation order; and

(b) any person—

(i) who applied during the regularisation period fixed by section 9 of the 1999 Act, in accordance with the Immigration (Regularisation Period for Overstayers) Regulations 2000(13), for leave to remain in the United Kingdom; and

(ii) on whom the Secretary of State has since served a notice of his decision to make a deportation order;

and, for the purposes of section 5, such a person is to be taken to be a person who is liable to deportation under section 3(5).

(4) Section 13 (appeals against exclusions from the United Kingdom) is to continue to have effect where the decision to refuse leave to enter the United Kingdom, or to refuse a certificate of entitlement or an entry clearance, was made before 2nd October 2000.

(5) Section 14 (appeals against conditions) is to continue to have effect where the decision to vary, or to refuse to vary, the limited leave to enter or remain was made before 2nd October 2000.

(6) Section 15 (appeals in respect of deportation orders) is to continue to have effect in relation to—

(a) any person on whom the Secretary of State has, before 2nd October 2000, served a notice of his decision to make a deportation order; and

(b) any person—

(i) who applied during the regularisation period fixed by section 9 of the 1999 Act, in accordance with the Immigration (Regularisation Period for Overstayers) Regulations 2000, for leave to remain in the United Kingdom; and

(ii) on whom the Secretary of State has since served a notice of his decision to make a deportation order.

(7) Section 16 (appeals against validity of directions for removal) is to continue to have effect where the directions for a person’s removal from the United Kingdom were given before 2nd October 2000.

(8) Section 17 (appeals against removal on objection to destination) is to continue to have effect—

(a) where the directions for a person’s removal from the United Kingdom were given, or the notice specifying the destination of his removal was served, before 2nd October 2000; and

(b) in relation to any person—

(i) who applied during the regularisation period fixed by section 9 of the 1999 Act, in accordance with the Immigration (Regularisation Period for Overstayers) Regulations 2000, for leave to remain in the United Kingdom; and

(ii) on whom the Secretary of State has since served a notice of his decision to make a deportation order.

(9) Section 21 (references of cases by Secretary of State for further consideration) (including that section as applied by paragraph 4 of Schedule 2 to the 1993 Act) is to continue to have effect where the Secretary of State has referred a matter for consideration under that section before 2nd October 2000.

(10) Where an appeal is made under Part II (including that Part as it applies by virtue of Schedule 2 to the 1993 Act)—

(a) paragraph 28 of Schedule 2 (stay on directions for removal) (including that paragraph as applied by paragraph 9 of Schedule 2 to the 1993 Act) is to continue to have effect;

(b) the following provisions are not to have effect—

(i) paragraph 29(1) of Schedule 2 (grant of bail pending appeal) (including that paragraph as applied by paragraph 9 of Schedule 2 to the 1993 Act and by section 3(6) of the 1996 Act), as amended by paragraph 66 of Schedule 14 to the 1999 Act;

(ii) paragraph 3 of Schedule 3 (effect of appeals) including that paragraph as applied by paragraph 9 of Schedule 2 to the 1993 Act), as amended by paragraph 69 of Schedule 14 to the 1999 Act.

Transitional provision relating to the appeals provisions of the 1988 Act

3.  Section 5 (restricted right of appeal against deportation in cases of breach of limited leave) is to continue to have effect—

(a) where the directions for a person’s removal from the United Kingdom were given, or the notice specifying the destination of his removal was served, before 2nd October 2000,

(b) in relation to any person—

(i) who applied during the regularisation period fixed by section 9 of the 1999 Act, in accordance with the Immigration (Regularisation Period for Overstayers) Regulations 2000, for leave to remain in the United Kingdom; and

(ii) on whom the Secretary of State has since served a notice of his decision to make a deportation order.

Transitional provisions relating to the appeals provisions of the 1993 Act

4.—(1) In this paragraph, a reference to a section or to a Schedule is to be read as a reference to a section of, or to a Schedule to, the 1993 Act, unless otherwise specified.

(2) In section 8 (asylum appeals)—

(a) subsection (1) is to continue to have effect where the decision to refuse leave to enter was made before 2nd October 2000;

(b) subsection (2) is to continue to have effect where the decision to vary, or to refuse to vary, the limited leave to enter or remain was made before 2nd October 2000;

(c) subsection (3) is to continue to have effect where the decision to make a deportation order, or the decision to refuse to revoke a deportation order, was made before 2nd October 2000;

(d) subsection (4) is to continue to have effect where the directions for a person’s removal from the United Kingdom were given before 2nd October 2000.

(3) Where an appeal is made under Part II of the 1971 Act (including that Part as it applies by virtue of Schedule 2)—

(a) section 9A (bail pending appeal from Immigration Appeal Tribunal), as amended by paragraphs 105 and 106 of Schedule 14 to the 1999 Act, is not to have effect;

(b) the reference in section 9A (without the amendments made by the 1999 Act) to section 9 (appeals from Immigration Appeal Tribunal) is to include a reference to paragraph 23 of Schedule 4 to the 1999 Act (appeals from Immigration Appeal Tribunal).

(4) Where an appeal is made under section 8, the section 8 appeals provisions are to continue to have effect.

(5) In this paragraph “the section 8 appeals provisions” means—

(a) paragraph 1 of Schedule 2 (asylum appeal rights to replace rights under the 1971 Act);

(b) paragraph 2 of Schedule 2 (scope of asylum rights of appeal);

(c) paragraph 3 of Schedule 2 (other grounds for appeal);

(d) paragraph 5 of Schedule 2 (special appeals procedures for claims without foundation);

(e) paragraph 6 of Schedule 2 (exception for national security);

(f) paragraph 7 of Schedule 2 (suspension of variation of limited leave pending appeal);

(g) paragraph 8 of Schedule 2 (deportation order not to be made while appeal pending);

(h) paragraph 9 of Schedule 2 (stay of removal directions pending appeal and bail).

(6) Where an appeal is made under section 8, the reference in paragraph 5 of Schedule 2 to section 20(1) of the 1971 Act (appeals to the Immigration Appeal Tribunal) is to include a reference to paragraph 22(1) of Schedule 4 to the 1999 Act (appeals to the Immigration Appeal Tribunal).

Transitional provision relating to the 1997 Act

5.—(1) The amendments to the 1997 Act made by the provisions of the 2002 Act commenced by this Order are not to have effect in relation to an appeal which is pending, by virtue of section 7A of the 1997 Act, on 1st April 2003 and, notwithstanding their amendment by the provisions commenced by this Order, the old appeal provisions are to continue to have effect in relation to such an appeal.

Transitional provisions relating to the 1999 Act

6.—(1) In this paragraph, a reference to a section or to a Schedule is to be read as a reference to a section of, or to a Schedule to, the 1999 Act, unless otherwise specified.

(2) Section 10 (removal of certain persons unlawfully in the United Kingdom) is not to have effect in relation to—

(a) any person on whom the Secretary of State has, before 2nd October 2000, served a notice of his intention to make a deportation order; and

(b) any person—

(i) who applied during the regularisation period fixed by section 9 of the 1999 Act, in accordance with the Immigration (Regularisation Period for Overstayers) Regulations 2000 for leave to remain in the United Kingdom; and

(ii) on whom the Secretary of State has since served a notice of his decision to make a deportation order;

and, for the purposes of section 5, such a person is to be taken to be a person who is liable to deportation under section 3(5).

(3) Where a certificate is issued under section 11 (removal of asylum-seeker to third country), as substituted by section 80 of the 2002 Act, before 1st April 2003 and an allegation is made after 1st April the allegation may be certified under section 72(2) of the 1999 Act, notwithstanding its repeal by the provisions of the 2002 Act commenced by this Order, and that certification shall have effect for the purposes of an appeal under the old appeal provisions.

(4) Subject to the provisions of the Order and any other enactment sections 59 to 78 and Schedules 2 to 4 shall continue to have effect in relation to events which took place before 1st April 2003.

(5) Where a decision has been taken under the Immigration Acts relating to a person’s entitlement to enter or remain in the United Kingdom before 1st April 2003 there shall only be a right of appeal under section 65(1) where an allegation is made before 1st July 2003.

Explanatory Note

(This note is not part of the Order)

This Order brings the provisions of the Nationality, Immigration and Asylum Act 2002 which are listed in Schedule 1 to this Order into force on 1st April 2003.

This Order also makes transitional provisions.

The appeal rights in Part 5 of the 2002 Act apply only where a notice in respect of an immigration decision, as defined in section 81(2) of that Act, is served on or after 1st April 2002. The appeal rights contained in the Immigration Act 1971, the Asylum and Immigration Appeals Act 1993 and the Immigration and Asylum Act 1999 continue to apply to decisions taken before 1st April 2003.

This Order also appoints the date of 1st April 2003 for the purposes of section 8 of the 2002 Act.

Note as to Earlier Commencement Orders

(This note is not part of the Order)

The following provisions of the Nationality, Immigration and Asylum Act 2002 have been brought into force on the dates shown by commencement orders before the date of this Order.

Provision	Date of Commencement	S.I.No.
Section 18 (asylum-seeker: definition) (for the purpose of sections 55(9) and 70(3) and paragraph 17(1)(b) of Schedule 3)	8th January 2003	2003/1
Section 18 (asylum-seeker: definition) (for the purpose of section 26A(2) of the 1971 Act and section 71(5) of the 2002 Act)	10th February 2003	2003/1
Section 54 and paragraphs 2, 8, 9, 10, 11, 12, 15 and 16 of Schedule 3 (withholding and withdrawal of support) (for the purpose of enabling the Secretary of State to exercise the power to make subordinate legislation)	8th December 2002	2002/2811
Section 54 and Schedule 3 (withholding and withdrawal of support) (so far as not already in force)	8th January 2003	2002/2811
Section 55 (late claim for asylum: refusal of support)	8th January 2003	2002/2811
Section 57 (application for support: false or incomplete information)	8th December 2002	2002/2811
Section 60 (Northern Ireland authority)	10th February 2003	2003/1
Section 62 (detention by Secretary of State)	10th February 2003	2003/1
Section 63 (control of entry to United Kingdom, &c.: use of force)	10th February 2003	2003/1
Section 64 (escorts)	10th February 2003	2003/1
Section 65 (detention centres: custodial functions)	10th February 2003	2003/1
Section 66 (detention centres: change of name)	10th February 2003	2003/1
Section 68(6) (bail)	10th February 2003	2003/1
Section 71 (asylum-seeker: residence, &c. restriction)	10th February 2003	2003/1
Section 72(1) to (8) and (11) (serious criminal)	10th February 2003	2003/1
Section 73 (family)	10th February 2003	2003/1
Section 74 (deception)	10th February 2003	2003/1
Section 75 (exemption from deportation)	10th February 2003	2003/1
Section 76 (revocation of leave to enter or remain)	10th February 2003	2003/1
Section 80 (removal of asylum-seeker to third country) (in part)	8th December 2002	2002/2811
Section 94(5) (appeal from within United Kingdom: unfounded human rights or asylum claim) (for the purpose of enabling the Secretary of State to exercise the power to make subordinate legislation)	10th February 2003	2003/249
Section 112 (regulations, &c.)	10th February 2003	2003/249
Section 113 (interpretation)	10th February 2003	2003/249
Section 114(3) and paragraphs 31 to 33 of Schedule 7 (Proceeds of Crime Act 2002 (c. 29))	10th February 2003	2003/1
Section 119 (deemed leave on cancellation of notice)	8th January 2003	2002/2811
Section 121 (compliance with procedure)	10th February 2003	2003/1
Section 122 (fee for work permit, &c.)	10th February 2003	2003/1
Section 125 and paragraphs 1, 2, 7, 11 and 13 of Schedule 8 (carriers' liability) (for the purpose of enabling the Secretary of State to exercise the power to make subordinate legislation under section 32 (2A), 35 (5), (7), (9), (12) and (13), 37 (5B) and (7) and 40A (4) and (6) of the 1999 Act)	14th November 2002	2002/2811
Section 125 and paragraph 3 of Schedule 8 (carriers' liability) (for the purpose of enabling the Secretary of State to exercise the power under section 32A (1), (3) and (4) of the 1999 Act to lay a draft code of practice before Parliament and bring the code of practice into force)	14th November 2002	2002/2811
Section 125 and paragraphs 1 to 12 and 16 and 17 of Schedule 8 (carriers' liability) (for the purposes of clandestine entrants (within the meaning of section 32 (1) of the 1999 Act) who arrive in the United Kingdom concealed in a vehicle or a rail freight wagon)	8th December 2002	2002/2811
Section 125 and paragraphs 13 to 15 of Schedule 8 (carriers' liability)	8th December 2002	2002/2811
Section 128 (data collection under Immigration and Asylum Act 1999)	10th February 2003	2003/1
Section 131 (police, &c.)	10th February 2003	2003/1
Section 132 (supply of document, &c. to Secretary of State)	10th February 2003	2003/1
Section 133 (medical inspectors)	10th February 2003	2003/1
Section 140 (Immigration Services Commissioner)	8th January 2003	2002/2811
Section 141 (EEA ports: juxtaposed controls)	8th January 2003	2002/2811
Section 143 (assisting unlawful immigration, &c.)	10th February 2003	2003/1
Section 144 (section 143: consequential amendments)	10th February 2003	2003/1
Section 145 (traffic in prostitution)	10th February 2003	2003/1
Section 146 (section 145: supplementary)	10th February 2003	2003/1
Section 148 (registration card)	10th February 2003	2003/1
Section 149 (immigration stamp)	10th February 2003	2003/1
Section 150 (sections 148 and 149: consequential amendments)	10th February 2003	2003/1
Section 151 (false information)	10th February 2003	2003/1
Sections 152 (arrest by immigration officer), 153 (power of entry), 154 (power to search for evidence) and 155 (sections 153 and 154: supplemental)	8th January 2003	2002/2811
Section 156 (time limit on prosecution)	10th February 2003	2003/1
Section 157 (consequential and incidental provision)	8th January 2003	2002/2811
Section 158 (interpretation: “the Immigration Acts”)	10th February 2003	2003/1
Section 159 (applied provision)	10th February 2003	2003/1
Section 161 and Schedule 9 (repeals), the entries relating to sections 7(1)(a), 24A(4), 25A(7), 26(3), 28(1) and 28A of the 1971 Act, and sections 10(1)(c), 44 to 52, 53(5), 55 and 147 of the 1999 Act	10th February 2003	2003/1
Section 161 and Schedule 9 (repeals), the entries relating to sections 33(2)(b), 34(3)(c) and (5), 36(1), 37(3)(c), 39, 42 and 43 of the 1999 Act	8th December 2002	2002/2811

(1)

2002 c. 41.

(2)

1971 c. 77.

(3)

1988 c. 14.

(4)

1993 c. 23.

(5)

1997 c. 68.

(6)

1999 c. 33.

(7)

1999 c. 74.

(8)

1981 c. 61.

(9)

1983 c. 6.

(10)

1990 c. 34.

(11)

1997 c. 68.

(12)

2000 c. 34.

(13)

S.I. 2000/265.