The Magistrates’ Courts (Immigration Act 2014) (Freezing Orders) Rules 2018

Statutory Instruments

2018 No. 66 (L. 1)

Magistrates’ Courts, England And Wales

The Magistrates’ Courts (Immigration Act 2014) (Freezing Orders) Rules 2018

Made

19th January 2018

Laid before Parliament

22nd January 2018

Coming into force in accordance with rule 1

The Lord Chief Justice, with the concurrence of the Lord Chancellor, makes the following Rules in exercise of the powers conferred by section 144 of the Magistrates’ Courts Act 1980(1).

Citation, commencement, extent and interpretation

1.—(1) These Rules may be cited as the Magistrates’ Courts (Immigration Act 2014) (Freezing Orders) Rules 2018, and come into force on the 21st day after the day on which they are laid before Parliament.

(2) In these Rules—

(a) “the 2014 Act” means the Immigration Act 2014(2);

(b) “disqualified person” has the meaning given by section 40D(9) of the 2014 Act;

(c) “document” includes any notice required to be given under these Rules;

(d) “freezing order” means a freezing order under section 40D of the 2014 Act;

(e) references to an account being operated by or for a person have the meaning given by section 40A(5) of the 2014 Act;

(f) “respondent” means the disqualified person by or for whom the account in respect of which a freezing order is sought is operated.

Form of application

2.  An application for a freezing order, or an application to vary or discharge a freezing order, must be made in writing.

Application for a freezing order

3.—(1) An application for a freezing order under section 40D of the 2014 Act must—

(a) state the name, date of birth and address of the respondent;

(b) explain why the respondent has been determined to be a disqualified person;

(c) specify the account in respect of which the freezing order is sought;

(d) explain the connection of the respondent to the specified account;

(e) identify any other persons by or for whom the specified account is operated and explain the connection of any person so identified to the specified account;

(f) state whether the Secretary of State considers that the order sought should, if made, be made subject to any exceptions, and if so, specify those exceptions.

(2) If the application is made without notice pursuant to section 40D(5) of the 2014 Act, the application must also state the reasons why it is necessary for the application to be made without notice having been given.

(3) If the application is made on notice—

(a) a copy must be given by the Secretary of State to the respondent and to any persons within paragraph (1)(e);

(b) the Secretary of State must confirm in writing to the court that this has been done and provide to the court details of the address or addresses of each person to whom a copy of the application has been given; and

(c) notice of the date of the hearing must be given by the court to the Secretary of State and to each person to whom a copy of the application has been given.

(4) Notice of any order made, and a copy of the order, must be given by the Secretary of State, as soon as reasonably practicable after the making of the order, to the respondent and any person within paragraph (1)(e).

Application to vary or discharge a freezing order

4.—(1) An application to vary or discharge a freezing order must specify—

(a) the reason why the person applying for variation or discharge believes the court should vary or discharge the order; and

(b) if the application is to vary the order, the variation which is sought.

(2) A copy of the application must be given by the court to every person, other than the person making the application, to whom notice was given under rule 3(3)(c).

(3) Notice of the date of any hearing must be given by the court to every person to whom notice was given under rule 3(3)(c).

(4) If the order is varied or discharged—

(a) notice of the variation and a copy of the order; or

(b) notice of the discharge of the order,

as the case may be, must be given by the court to every person to whom notice was given under rule 3(3)(c).

Procedure at hearings

5.—(1) At the hearing of any application for a freezing order, or of any application to vary or discharge a freezing order, any person to whom notice of the application has been given may attend and be heard on the question of whether the application should be granted, but the fact that any such person does not attend shall not prevent the court from hearing the application.

(2) Subject to the foregoing provisions of these Rules, proceedings on such an application shall be regulated in the same manner as proceedings on a complaint, and accordingly for the purposes of these Rules—

(a) the application is deemed to be a complaint;

(b) the Secretary of State (or, if the application is to vary or discharge a freezing order and is made by a person other than the Secretary of State, that person) is deemed to be a complainant;

(c) the respondent (or the Secretary of State, if the application is to vary or discharge a freezing order and is made by a person other than the Secretary of State) is deemed to be a defendant; and

(d) any notice of hearing given under rule 3(3)(c) or 4(3) is deemed to be a summons, but nothing in this rule shall be construed as enabling a warrant of arrest to issue for failure to appear in response to any such notice.

Giving of documents

6.—(1) Any document required to be given to any person under these Rules may be given—

(a) by post in accordance with rule 7;

(b) by means of electronic communication in accordance with rule 8; or

(c) by any method authorised by the court under rule 9.

(2) If any document is given to a person in accordance with paragraph (1), it is deemed to have been received by that person unless the contrary is shown.

Giving documents by post

7.—(1) In order to give a document by post to a person (other than to the court), it must be sent by properly addressing, pre-paying and posting to an address which has been given by that person for the purpose of receipt of documents under these Rules.

(2) If no address has been given as is mentioned in paragraph (1), the document must be sent to the person’s last known residential address.

(3) Unless the contrary is shown, the document is to be deemed as having been given to the person on the second day after it was posted, provided that day is a business day; or if not, the next business day after that day.

Giving documents by means of electronic communications

8.—(1) In order to give a document by fax, email or other means of electronic communication, the intended recipient of the document must previously have indicated in writing to the person giving the document—

(a) that they are willing to accept service of documents for the purposes of these Rules by that means of electronic communication; and

(b) the fax number, e-mail address or other electronic identification to which documents must be sent.

(2) Where a person intends to give a document by means of electronic communication (other than by fax), that person must first ask the intended recipient whether there are any limitations to their agreement to accept service by such means (for example, the format in which documents are to be sent and the maximum size of attachments that may be received).

(3) Giving a document by means of electronic communication is effected by sending or transmitting the document in accordance with the written indication given by the intended recipient under paragraph (1), having complied with any limitations specified by the intended recipient under paragraph (2).

(4) The document is to be treated as having been given on the day on which it is sent or transmitted if the electronic communication containing it is sent or transmitted before 4.30pm. If the electronic communication is sent or transmitted after 4.30 p.m., the document is to be treated as having been given the following day.

(5) Where a document is given by electronic means, the person giving the document need not in addition send or deliver a hard copy.

Giving of documents by an alternative method or at an alternative place

9.—(1) Where it appears to the court that there is a good reason to authorise the giving of a document by a method or at a place not otherwise permitted by these Rules, the court may make an order permitting the giving of a document by an alternative method or at an alternative place.

(2) On an application under this rule, the court may order that steps already taken to give the document to a person by an alternative method or at an alternative place constitute the giving of that document under these Rules.

(3) An application for an order under this rule—

(a) must be supported by evidence; and

(b) may be made without notice.

(4) An order under this rule must specify—

(a) the method by which the document may be given, if it is not a method permitted by these Rules;

(b) the place at which the document may be given, if it is not a place permitted by these Rules; and

(c) the date on which the document is deemed to be given.

Giving a document to a child or a protected person

10.—(1) Where the intended recipient of a document is known to be a child who is not also a protected person, the document must be given to the child and—

(a) one of the child’s parents or guardians; or

(b) if there is no parent or guardian, an adult with whom the child resides or in whose care the child is.

(2) Where the intended recipient of a document is known to be a protected person, the document must be given to the protected person and—

(a) where the protected person is resident in England and Wales, to one of the following persons—

(i) the attorney under a registered enduring power of attorney which relates to the protected person;

(ii) the donee of a lasting power of attorney which relates to the protected person; or

(iii) the deputy appointed in relation to the protected person by the Court of Protection;

(b) where the protected person is resident in Northern Ireland, to one of the following persons—

(i) the attorney under a registered enduring power of attorney which relates to the protected person;

(ii) the controller appointed in relation to the protected person by the Office of Care and Protection;

(c) where the protected person is resident in Scotland, to one of the following persons—

(i) the continuing attorney under a continuing power of attorney which relates to the protected person;

(ii) the welfare attorney under a welfare power of attorney which relates to the protected person;

(iii) the person authorised under an intervention order in respect of the protected person;

(iv) the person authorised under a guardianship order in respect of the protected person;

(v) the person authorised under a withdrawal certificate in respect of the protected person; or

(d) if in any case under sub-paragraph (a), (b) or (c) there is no such person, to an adult with whom the protected person resides or in whose care the protected person is.

(3) Any reference in these Rules to a person to whom a document is to be given includes the person to be given documents on behalf of a child or protected person under paragraph (1) or (2).

(4) The court may make an order permitting a document to be given to a child or protected person, or to a person other than the person specified in paragraph (1) or (2), and an application for such an order may be made without notice.

(5) In this rule—

(a) “child” means a person under 18 years; and

(b) “protected person” means—

(i) in relation to England and Wales, a person who lacks capacity (within the meaning of the Mental Capacity Act 2005(3)) to understand the nature of proceedings relating to account freezing orders;

(ii) in relation to Northern Ireland, a person who is 16 years or over who lacks capacity to understand the nature of proceedings relating to account freezing orders because of an impairment of, or a disturbance in the functioning of, the mind or brain;

(iii) in relation to Scotland, a person who is incapable, within the meaning of the Adults with Incapacity (Scotland) Act 2000(4), of understanding the nature of proceedings relating to account freezing orders.

Ian Burnett

Lord Chief Justice

10th January 2018

I concur

Lucy Frazer

Parliamentary Under-Secretary of State

Ministry of Justice

19th January 2018

EXPLANATORY NOTE

(This note is not part of the Rules)

Section 40D of the Immigration Act 2014 makes provision for the court (which in England and Wales means a magistrates’ court) to be able on the application of the Secretary of State (which may be an application without notice) to make a freezing order, which is an order prohibiting any person or body by or for whom an account specified in the order is operated from making withdrawals or payments from the account. The section also makes provision for the court to be able to vary or discharge a freezing order which has been made.

These Rules make provision (including provision for the ways in which documents may be given to persons where required under the Rules) for the procedure for making an application for a freezing order under section 40D of the Immigration Act 2014, and for making an application under that section to vary or discharge such an order.

No forms are prescribed for applications. The Rules provide for all applications to which they apply to be made in writing, and provide separately for the matters which must be included in the different types of applications.

(1)

1980 c.43. Section 144 has been amended by the Access to Justice Act 1999 (c.22), Schedule 11, paragraphs 26 and 29; the Courts Act 2003 (c.39), Schedule 8, paragraph 245 and Schedule 10; the Constitutional Reform Act 2005 (c.4), Schedule 4, paragraphs 99 and 102; the Legal Services Act 2007, Schedule 21, paragraphs 42 and 43; the Crime and Courts Act 2013 (c.22), Schedule 10, paragraphs 39, 52 and 99; and by S.I. 2012/2398, article 3(2) and Schedule 2, paragraph 1.

(2)

2014 c.22. Sections 40A to 40H of the 2014 Act were inserted by the Immigration Act 2016 (c.19), section 45 and Schedule 7, paragraph 2.

(3)

2005 c. 9.

(4)

2000 asp 4.