Asylum and Immigration (Treatment of Claimants, etc.) Act 2004

Appeals U.K.

26 Unification of appeal system U.K.

(1) For section 81 of the Nationality, Immigration and Asylum Act 2002 (c. 41) (appeals: adjudicators) substitute—

“Appeal to Tribunal U.K.

81 The Asylum and Immigration Tribunal

(1) There shall be a tribunal to be known as the Asylum and Immigration Tribunal.

(2) Schedule 4 (which makes provision about the Tribunal) shall have effect.

(3) A reference in this Part to the Tribunal is a reference to the Asylum and Immigration Tribunal.”

(2) In section 82(1) of that Act (right of appeal: general) for “to an adjudicator” substitute “ to the Tribunal ”.

(3) In section 83(2) of that Act (appeal: asylum claim) for “to an adjudicator” substitute “ to the Tribunal ”.

F1 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) The following provisions of that Act shall cease to have effect—

(a) sections 100 to 103 (Immigration Appeal Tribunal), and

(b) Schedule 5(Immigration Appeal Tribunal).

F2 (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7) Schedule 2 (which makes amendments consequential on this section, and transitional provision) shall have effect.

F3 (8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F3 (9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F3 (10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F1 S. 26(4) repealed (15.2.2010) by The Transfer of Functions of the Asylum and Immigration Tribunal Order 2010 (S.I. 2010/21), art. 1, Sch. 3 (with Sch. 4)

F2 S. 26(6) repealed (15.2.2010) by The Transfer of Functions of the Asylum and Immigration Tribunal Order 2010 (S.I. 2010/21), art. 1, Sch. 3 (with Sch. 4)

F3 S. 26(8)-(10) repealed (15.2.2010) by The Transfer of Functions of the Asylum and Immigration Tribunal Order 2010 (S.I. 2010/21), art. 1, Sch. 3 (with Sch. 4)

Commencement Information

I1 S. 26(1)-(5)(7)-(10) in force at 4.4.2005 by S.I. 2005/565, art. 2(a) (with arts. 3-9)

I2 S. 26(6) in force at 4.4.2005 for specified purposes by S.I. 2005/565, art. 2(b) (with arts. 3-9)

I3 S. 26(6) in force at 30.4.2007 in so far as not already in force by S.I. 2007/845, art. 2

27 Unfounded human rights or asylum claim U.K.

(1) Section 94 of the Nationality, Immigration and Asylum Act 2002 (c. 41) (no appeal from within United Kingdom for unfounded human rights or asylum claim) shall be amended as follows.

(2) After subsection (1) insert—

“(1A) A person may not bring an appeal against an immigration decision of a kind specified in section 82(2)(c), (d) or (e) in reliance on section 92(2) if the Secretary of State certifies that the claim or claims mentioned in subsection (1) above is or are clearly unfounded.”

(3) In subsection (2) for “in reliance on section 92(4)” substitute “ in reliance on section 92(4)(a) ”.

(4) In subsection (4) omit paragraphs (a) to (j).

(5) After subsection (5) insert—

“(5A) If the Secretary of State is satisfied that the statements in subsection (5) (a) and (b) are true of a State or part of a State in relation to a description of person, an order under subsection (5) may add the State or part to the list in subsection (4) in respect of that description of person.

(5B) Where a State or part of a State is added to the list in subsection (4) in respect of a description of person, subsection (3) shall have effect in relation to a claimant only if the Secretary of State is satisfied that he is within that description (as well as being satisfied that he is entitled to reside in the State or part).

(5C) A description for the purposes of subsection (5A) may refer to—

(a) gender,

(b) language,

(c) race,

(d) religion,

(e) nationality,

(f) membership of a social or other group,

(g) political opinion, or

(h) any other attribute or circumstance that the Secretary of State thinks appropriate.”

(6) For subsection (6) substitute—

“(6) The Secretary of State may by order amend the list in subsection (4) so as to omit a State or part added under subsection (5); and the omission may be—

(a) general, or

(b) effected so that the State or part remains listed in respect of a description of person.”

(7) After subsection (6) insert—

“(6A) Subsection (3) shall not apply in relation to an asylum claimant or human rights claimant who—

(a) is the subject of a certificate under section 2 or 70 of the Extradition Act 2003 (c. 41),

(b) is in custody pursuant to arrest under section 5 of that Act,

(c) is the subject of a provisional warrant under section 73 of that Act,

(d) is the subject of an authority to proceed under section 7 of the Extradition Act 1989 (c. 33) or an order under paragraph 4(2) of Schedule 1 to that Act, or

(e) is the subject of a provisional warrant under section 8 of that Act or of a warrant under paragraph 5(1)(b) of Schedule 1 to that Act.”

(8) After section 112(5) of that Act (orders, &c.) insert—

“(5A) If an instrument makes provision under section 94(5) and 94(6)—

(a) subsection (4)(b) above shall apply, and

(b) subsection (5)(b) above shall not apply.”

Commencement Information

I4 S. 27 in force at 1.10.2004 by S.I. 2004/2523, art. 2, Sch.

28 Appeal from within United Kingdom U.K.

For section 92(3) of the Nationality, Immigration and Asylum Act 2002 (c. 41) (appeal from within United Kingdom: person with entry clearance or work permit) substitute—

“(3) This section also applies to an appeal against refusal of leave to enter the United Kingdom if—

(a) at the time of the refusal the appellant is in the United Kingdom, and

(b) on his arrival in the United Kingdom the appellant had entry clearance.

(3A) But this section does not apply by virtue of subsection (3) if subsection (3B) or (3C) applies to the refusal of leave to enter.

(3B) This subsection applies to a refusal of leave to enter which is a deemed refusal under paragraph 2A(9) of Schedule 2 to the Immigration Act 1971 (c. 77) resulting from cancellation of leave to enter by an immigration officer—

(a) under paragraph 2A(8) of that Schedule, and

(b) on the grounds specified in paragraph 2A(2A) of that Schedule.

(3C) This subsection applies to a refusal of leave to enter which specifies that the grounds for refusal are that the leave is sought for a purpose other than that specified in the entry clearance.

(3D) This section also applies to an appeal against refusal of leave to enter the United Kingdom if at the time of the refusal the appellant—

(a) is in the United Kingdom,

(b) has a work permit, and

(c) is any of the following (within the meaning of the British Nationality Act 1981 (c. 61))—

(i) a British overseas territories citizen,

(ii) a British Overseas citizen,

(iii) a British National (Overseas),

(iv) a British protected person, or

(v) a British subject.”

Commencement Information

I5 S. 28 in force at 1.10.2004 by S.I. 2004/2523, art. 2, Sch.

29 Entry clearance U.K.

(1) After section 88 of the Nationality, Immigration and Asylum Act 2002 (c. 41) (appeal: ineligibility) insert—

“88A Ineligibility: entry clearance

(1) A person may not appeal under section 82(1) against refusal of entry clearance if the decision to refuse is taken on grounds which—

(a) relate to a provision of immigration rules, and

(b) are specified for the purpose of this section by order of the Secretary of State.

(2) Subsection (1)—

(a) does not prevent the bringing of an appeal on either or both of the grounds referred to in section 84(1)(b) and (c), and

(b) is without prejudice to the effect of section 88 in relation to an appeal under section 82(1) against refusal of entry clearance.”

(2) In section 112 of that Act (regulations, &c.) after subsection (3) insert—

“(3A) An order under section 88A—

(a) must be made by statutory instrument,

(b) may not be made unless a draft has been laid before and approved by resolution of each House of Parliament, and

(c) may include transitional provision.”

Commencement Information

I6 S. 29 in force at 1.10.2004 by S.I. 2004/2523, art. 2, Sch.

30 Earlier right of appeal U.K.

(1) Section 96 of the Nationality, Immigration and Asylum Act 2002 (earlier right of appeal) shall be amended as follows.

(2) For subsections (1) to (3) substitute—

“(1) An appeal under section 82(1) against an immigration decision (“the new decision”) in respect of a person may not be brought if the Secretary of State or an immigration officer certifies—

(a) that the person was notified of a right of appeal under that section against another immigration decision (“the old decision”) (whether or not an appeal was brought and whether or not any appeal brought has been determined),

(b) that the claim or application to which the new decision relates relies on a matter that could have been raised in an appeal against the old decision, and

(c) that, in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that matter not having been raised in an appeal against the old decision.

(2) An appeal under section 82(1) against an immigration decision (“the new decision”) in respect of a person may not be brought if the Secretary of State or an immigration officer certifies—

(a) that the person received a notice under section 120 by virtue of an application other than that to which the new decision relates or by virtue of a decision other than the new decision,

(b) that the new decision relates to an application or claim which relies on a matter that should have been, but has not been, raised in a statement made in response to that notice, and

(c) that, in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that matter not having been raised in a statement made in response to that notice.”

(3) In subsection (5) for “Subsections (1) to (3) apply to prevent or restrict” substitute “ Subsections (1) and (2) apply to prevent ”.

(4) At the end add—

“(7) A certificate under subsection (1) or (2) shall have no effect in relation to an appeal instituted before the certificate is issued.”

Commencement Information

I7 S. 30 in force at 1.10.2004 by S.I. 2004/2523, art. 2, Sch.

31 Seamen and aircrews: right of appeal U.K.

In section 82(2) of the Nationality, Immigration and Asylum Act 2002 (c. 41) after paragraph (i) insert—

“(ia) a decision that a person is to be removed from the United Kingdom by way of directions under paragraph 12(2) of Schedule 2 to the Immigration Act 1971 (c. 77) (seamen and aircrews),”.

Commencement Information

I8 S. 31 in force at 1.10.2004 by S.I. 2004/2523, art. 2, Sch.

F4 32 Suspected international terrorist: bail U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F4 S. 32 repealed (14.3.2005) by Prevention of Terrorism Act 2005 (c. 2), s. 16(2)(d)(3) (with s. 16(4))

Commencement Information

I9 S. 32 partly in force; s. 32(2) in force at 22.9.2004 see s. 48