Schedule 4: Appeals
Schedule 4, Part I: Procedure.
228.Part I of Schedule 4 sets out detailed provisions as to the operation of Part IV covering issues such as notice of appealable matters, the Lord Chancellor’s rules of procedure, hearings in private, leave to appeal and Convention cases.
229.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.
230.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.
231.Paragraph 4(1)(e) provides that rules may make provision for the circumstances in which an adjudicator or the Immigration Appeal Tribunal may set aside for its decision. It is intended, for example, that the power to set aside will be exercisable on the Tribunal’s own motion when considering an application for leave to appeal to the Court of Appeal.
232.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 to give evidence or attend.
233.Paragraph 9 applies to Refugee Convention cases and claims under the ECHR. It sets out the circumstances under which an asylum or human rights 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, subject to the adjudicator’s agreement that the certificate was properly made. The paragraph sets out the circumstances in 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. A certificate may not be made if evidence suggests there is a reasonable likelihood that the appellant has been tortured in the country to which he is to be sent. A further effect of the new certification procedures in this Act, and the repeal of section 2 of the Asylum and Immigration Act 1996 by Schedule 16, is to abolish to so-called “White List”.
Schedule 4, Part II: Effect of appeals.
234.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 section 59 or 69(1).
235.Paragraph 11 makes similar provision in relation to appeals under sections 66, 67 or 69(5) against removal directions given under section 10 of this Act, or 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.
236.Paragraph 13 provides that any period where an appeal is pending under section 59, 67 or 69(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.
237.Paragraph 16 provides that a variation of leave will not take effect while an appeal against the variation is pending under section 61 or 69(2). Paragraph 17 provides that an appellant’s leave and the conditions attached to it continue while an appeal is pending under section 61 or 69(2).
238.Paragraph 18 provides that a deportation order is not to be made where an appeal is brought under section 63(1)(a) or 69(4)(a) is pending. Paragraph 19 applies similar provisions in respect of the family members of appellants.
239.Paragraph 20 provides that a person will not be required to leave the United Kingdom if an appeal is pending under section 65 (Acts made unlawful by section 6(1) of the Human Rights Act 1998). But that does not prevent the actual giving of directions for removal or the making of a deportation order: such actions will not, however, have effect during the period.
Schedule 4, Part III: Determination of appeals.
240.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 subparagraph (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. The Immigration Rules are to be amended to include certain concessionary matters over which adjudicators previously had no jurisdiction.
241.Paragraph 22 sets out the circumstances in which an appellant may appeal to the Immigration Appeal Tribunal against an adjudicator’s determination. If the Tribunal affirms the adjudicator’s determination it may add to or alter any directions or recommendations.
242.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. If leave is refused the appellant may bring an appeal with the leave of the court itself.
243.Paragraph 24 sets out those appeals which must be dismissed. These are where the adjudicator is satisfied that the appellant was an illegal entrant at the time of the refusal of leave to enter; where a deportation order was in force at the time an entry clearance was refused; or where the appeal relates to a certain category of crew member subject to removal directions as such, but the adjudicator is satisfied that there was power to give removal directions as an illegal entrant.
