Act of Adjournal (Criminal Procedure Rules 1996 Amendment) (Labour Market Enforcement Orders) 2019

CHAPTER 69LABOUR MARKET ENFORCEMENT ORDERS

Interpretation of this Chapter69.1

In this Chapter—

• “the 2016 Act” means the Immigration Act 20164;

• “enforcing authority” has the meaning given by section 14 of the 2016 Act;

• “labour market enforcement order” has the meaning given by section 18 of the 2016 Act;

• “trigger offence” has the meaning given by section 14 of the 2016 Act.

Variation and discharge of a labour market enforcement order69.2

1

An application under section 23 of the 2016 Act for variation or discharge of a labour market enforcement order made under section 20 of that Act is to be made in Form 69.2.

2

When an application under section 23 of the 2016 Act is lodged, the court must—

a

appoint a hearing on the application; and

b

order intimation of the application—

i

where the application is made by the respondent to the original order made under section 20 of the 2016 Act, on the enforcing authority whose officer conducted the investigation which resulted in the prosecution of the respondent for the trigger offence; or

ii

where the application is made by the enforcing authority whose officer conducted the investigation which resulted in the prosecution of the respondent for the trigger offence, on the respondent to the original order made under section 20 of the 2016 Act.

3

Where an application referred to in paragraph (1) is made in respect of a labour market enforcement order which was made by the High Court of Justiciary and which has not subsequently been varied in the sheriff court—

a

the sheriff clerk with whom the application is lodged is to notify the Clerk of Justiciary; and

b

the Clerk of Justiciary is,

i

not later than 4 days after receipt of such notification, to send a certified copy of the indictment and of the labour market enforcement order to the sheriff clerk of the court in which the application is made; and

ii

not later than 21 days after receipt of such notification, to obtain a report from the judge who made the labour market enforcement order in respect of which variation or discharge is sought and send that report to the sheriff clerk of the court in which the application is made.

4

Where the judge’s report as mentioned in paragraph (3)(b)(ii) above is not furnished within the period specified in that provision, the sheriff may hear and determine the application without the report.

Appeals69.3

1

An appeal to the Sheriff Appeal Court under section 24(1)(b) of the 2016 Act against the making of, or refusal to make, an order under section 23 varying or discharging a labour market enforcement order made under section 20 is to be made by note of appeal in Form 69.3.

2

The note of appeal is to be lodged no later than 7 days after the decision appealed against with the clerk of the court from which the appeal is to be taken.

3

On receipt of the note of appeal the clerk of court must send a copy of the note to the respondent in the appeal or to the respondent’s solicitor, and obtain a report from the sheriff who made the decision appealed against.

4

Subject to paragraph (5), the clerk of court must no later than 14 days after the decision against which the appeal is taken—

a

send to the Clerk of the Sheriff Appeal Court the note of appeal, together with the report mentioned in paragraph (3) above, the minute of proceedings and any other relevant documents; and

b

send copies of that report to the appellant and respondent in the appeal or to their solicitors.

5

The sheriff principal of the sheriffdom in which the judgment was pronounced may, on cause shown, extend the period of 14 days specified in paragraph (4) above for such period as the sheriff principal considers reasonable.

6

Where the sheriff’s report as mentioned in paragraph (3) above is not furnished within the period mentioned in paragraph (4) above, or such period as extended under paragraph (5) above, the Sheriff Appeal Court may extend such period, or, if it thinks fit, hear and determine the appeal without the report.

7

For the purposes of hearing and determining any appeal under this rule three of the Appeal Sheriffs is a quorum of the Sheriff Appeal Court, and the determination of any question under this rule by the court is to be according to the votes of the majority of the members of the court sitting, including the presiding Appeal Sheriff, and each Appeal Sheriff so sitting is entitled to pronounce a separate opinion.

8

Rule 19.14 (list of appeals) and rule 19.16 (intimation of determination of appeal) of Chapter 19 (Appeals from Summary Proceedings) apply to any appeal made under this Chapter.