SCHEDULE 2 Administrative Provisions as to Control on Entry etc.
Part II Effect of Appeals
Stay on directions for removal
28
(1)
Where a person in the United Kingdom appeals under section 13(1) of this Act on being refused leave to enter, any directions previously given by virtue of the refusal for his removal from the United Kingdom shall cease to have effect, except in so far as they have already been carried out, and no directions shall be so given so long as the appeal is pending.
(2)
Where a person in the United Kingdom appeals under section 16 or 17 of this Act against any directions given under Part I of this Schedule for his removal from the United Kingdom, those directions, except in so far as they have already been carried out, shall be of no effect so long as the appeal is pending.
(3)
Notwithstanding sub-paragraph (1) or (2) above, the provisions of Part I of this Schedule with respect to detention and persons liable to detention shall apply to a person appealing under section 13(1), 16 or 17 of this Act as if there were in force directions for his removal from the United Kingdom, except that he shall not be detained on board a ship or aircraft so as to compel him to leave the United Kingdom while the appeal is pending.
(4)
In calculating the period of two months limited by paragraph 8(2) above for the giving of directions under that paragraph for the removal of a person from the United Kingdom F1and for the giving of a notice of intention to give such directions, there shall be disregarded any period during which there is pending an appeal by him under section 13(1) or 17 of this Act.
(5)
For purposes of sub-paragraphs (1) to (3) above (but not for purposes of sub-paragraph (4)), where an appeal to an adjudicator is dismissed, an appeal shall not be regarded as pending unless forthwith after the dismissal—
(a)
the appellant duly gives notice of appeal against the determination of the adjudicator; or
(b)
in a case in which leave to appeal against that determination is required and the adjudicator has power to grant leave, the appellant duly applies for and obtains the leave of the adjudicator.
(6)
Where directions are given under Part I of this Schedule for anyone’s removal from the United Kingdom, and directions are also so given for the removal with him of persons belonging to his family, then if any of them appeals under section 13(1), 16 or 17 of this Act, the appeal shall have the like effect under this paragraph in relation to the directions given in respect of each of the others as it has in relation to the directions given in respect of the appellant.
Grant of bail pending appeal
29
(1)
Where a person (in the following provisions of this Schedule referred to as “an appellant”) has an appeal pending under section 13(1), 16 or 17 of this Act and is for the time being detained under Part I of this Schedule, he may be released on bail in accordance with this paragraph.
(2)
An immigration officer not below the rank of chief immigration officer or a police officer not below the rank of inspector may release an appellant on his entering into a recognizance or, in Scotland, bail bond conditioned for his appearance before an adjudicator or the Appeal Tribunal at a time and place named in the recognizance or bail bond.
(3)
An adjudicator may release an appellant on his entering into a recognizance or, in Scotland, bail bond conditioned for his appearance before that or any other adjudicator or the Appeal Tribunal at a time and place named in the recognizance or bail bond; and where an adjudicator dismisses an appeal but grants leave to the appellant to appeal to the Tribunal, or, in a case in which leave to appeal is not required, the appellant has duly given notice of appeal to the Tribunal, the adjudicator shall, if the appellant so requests, exercise his powers under this sub-paragraph.
(4)
Where an appellant has duly applied for leave to appeal to the Appeal Tribunal, the Tribunal may release him on his entering into a recognizance or, in Scotland, bail bond conditioned for his appearance before the Tribunal at a time and place named in the recognizance or bail bond; and where—
(a)
the Tribunal grants leave to an appellant to appeal to the Tribunal; or
(b)
in a case in which leave to appeal is not required, the appellant has duly given notice of appeal to the Tribunal;
the Tribunal shall, if the appellant so requests, release him as aforesaid.
(5)
The conditions of a recognizance or bail bond taken under this paragraph may include conditions appearing to the person fixing the bail to be likely to result in the appearance of the appellant at the time and place named; and any recognizance shall be with or without sureties as that person may determine.
(6)
In any case in which an adjudicator or the Tribunal has power or is required by this paragraph to release an appellant on bail, the adjudicator or Tribunal may, instead of taking the bail, fix the amount and conditions of the bail (including the amount in which any sureties are to be bound) with a view to its being taken subsequently by any such person as may be specified by the adjudicator or the Tribunal; and on the recognizance or bail bond being so taken the appellant shall be released.
Restrictions on grant of bail
30
(1)
An appellant shall not be released under paragraph 29 above without the consent of the Secretary of State if directions for the removal of the appellant from the United Kingdom are for the time being in force, or the power to give such directions is for the time being exercisable.
(2)
Notwithstanding paragraph 29(3) or (4) above, an adjudicator and the Tribunal shall not be obliged to release an appellant unless the appellant enters into a proper recognizance, with sufficient and satisfactory sureties if required, or in Scotland sufficient and satisfactory bail is found if so required; and an adjudicator and the Tribunal shall not be obliged to release an appellant if it appears to the adjudicator or the Tribunal, as the case may be—
(a)
that the appellant, having on any previous occasion been released on bail (whether under paragraph 24 or under any other provision), has failed to comply with the conditions of any recognizance or bail bond entered into by him on that occasion;
(b)
that the appellant is likely to commit an offence unless he is retained in detention;
(c)
that the release of the appellant is likely to cause danger to public health;
(d)
that the appellant is suffering from mental disorder and that his continued detention is necessary in his own interests or for the protection of any other person; or
(e)
that the appellant is under the age of seventeen, that arrangements ought to be made for his care in the event of his release and that no satisfactory arrangements for that purpose have been made.
Forfeiture of recognizances
31
(1)
Where under paragraph 29 above (as it applies in England and Wales or in Northern Ireland) a recognizance is entered into conditioned for the appearance of an appellant before an adjudicator or the Tribunal, and it appears to the adjudicator or the Tribunal, as the case may be, to be forfeited, the adjudicator or Tribunal may by order declare it to be forfeited and adjudge the persons bound thereby, whether as principal or sureties, or any of them, to pay the sum in which they are respectively bound or such part of it, if any, as the adjudicator or Tribunal thinks fit.
(2)
An order under this paragraph shall, for the purposes of this sub-paragraph, specify a magistrates’ court or, in Northern Ireland, court of summary jurisdiction; and the recognizance shall be treated for the purposes of collection, enforcement and remission of the sum forfeited as having been forfeited by the court so specified.
(3)
Where an adjudicator or the Tribunal makes an order under this paragraph the adjudicator or Tribunal shall, as soon as practicable, give particulars of the recognizance to the clerk of the court specified in the order in pursuance of sub-paragraph (2) above.
(4)
Any sum the payment of which is enforceable by a magistrates’ court in England or Wales by virtue of this paragraph shall be treated for the F2purposes of the Justices of the Peace Act 1997 and, in particular, section 60 of that Act, as being due under a recognizance forfeited by such a court . . . F3
(5)
Any sum the payment of which is enforceable by virtue of this paragraph by a court of summary jurisdiction in Northern Ireland shall, for the purposes of section 20(5) of the M1Administration of Justice Act (Northern Ireland) 1954, be treated as a forfeited recognizance.
32
Where under paragraph 29 above (as it applies in Scotland) a person released on bail fails to comply with the terms of a bail bond conditioned for his appearance before an adjudicator or the Tribunal, the adjudicator or Tribunal may declare the bail to be forfeited, and any bail so forfeited shall be transmitted by the adjudicator or the Tribunal to the sheriff court having jurisdiction in the area where the proceedings took place, and shall be treated as having been forfeited by that court.
Arrest of appellants released on bail
33
(1)
An immigration officer or constable may arrest without warrant a person who has been released by virtue of this Part of this Schedule—
(a)
if he has reasonable grounds for believing that that person is likely to break the condition of his recognizance or bail bond that he will appear at the time and place required or to break any other condition of it, or has reasonable ground to suspect that that person is breaking or has broken any such other condition; or
(b)
if, a recognizance with sureties having been taken, he is notified in writing by any surety of the surety’s belief that that person is likely to break the first-mentioned condition, and of the surety’s wish for that reason to be relieved of his obligations as a surety;
and paragraph 17(2) above shall apply for the arrest of a person under this paragraph as it applies for the arrest of a person under paragraph 17.
(2)
A person arrested under this paragraph—
(a)
if not required by a condition on which he was released to appear before an adjudicator or Tribunal within twenty-four hours after the time of his arrest, shall as soon as practicable be brought before an adjudicator or, if that is not practicable within those twenty-four hours, before a justice of the peace acting for the petty sessions area in which he is arrested or, in Scotland, the sheriff; and
(b)
if required by such a condition to appear within those twenty-four hours before an adjudicator or before the Tribunal, shall be brought before that adjudicator or before the Tribunal, as the case may be.
(3)
An adjudicator, justice of the peace or sheriff before whom a person is brought by virtue of sub-paragraph (2)(a) above—
(a)
if of the opinion that that person has broken or is likely to break any condition on which he was released, may either—
(i)
direct that he be detained under the authority of the person by whom he was arrested; or
(ii)
release him on his original recognizance or on a new recognizance, with or without sureties, or, in Scotland, on his original bail or on new bail; and
(b)
if not of that opinion, shall release him on his original recognizance or bail.
F4Grant of bail pending removal
F534
(1)
Paragraph 22 above shall apply in relation to a person—
(a)
directions for whose removal from the United Kingdom are for the time being in force; and
(b)
who is for the time being detained under Part I of this Schedule,
as it applies in relation to a person detained under paragraph 16(1) above pending examination F6, detained under paragraph 16(1A) above pending completion of his examination or a decision on whether to cancel his leave to enteror detained under paragraph 16(2) above pending the giving of directions.
(2)
Paragraphs 23 to 25 above shall apply as if any reference to paragraph 22 above included a reference to that paragraph as it applies by virtue of this paragraph.