 | |
|
SCHEDULE 4
|
| |
APPEALS |
| |
PART I |
| |
PROCEDURE |
| |
Pending proceedings |
| | 1. - (1) While an appeal under section 41(5) or 43(2) is pending, the leave to which the appeal relates, and any condition subject to which it was granted, continues to have effect.
|
| |
(2) If a deportation order is made against a person, any pending appeal by that person under section 43 lapses.
|
| |
(3) A variation is not to take effect so long as an appeal is pending under section 43(1) against the variation.
|
| |
(4) An appellant is not required to leave the United Kingdom by reason of his leave expiring so long as his appeal is pending under section 43(1) against a refusal to enlarge or remove the limit on the duration of the leave.
|
| |
(5) So long as an appeal is pending under section 43 against any provision, effect is not to be given to that provision.
|
| |
Notice of appealable matters |
| | 2. - (1) The Secretary of State may by regulations provide-
|
| |
(a) for written notice to be given to a person of any such decision or action taken in respect of him as is appealable under Part IV (whether or not in his particular case he is entitled to appeal) or would be so appealable but for the ground on which it was taken; |
| |
(b) for any such notice to include a statement of the reasons for the decision or action and, where the action is the giving of directions for the removal of the person from the United Kingdom, of the country or territory to which he is to be removed; |
| |
(c) for any such notice to be accompanied by a statement containing particulars of the rights of appeal available under Part IV and of the procedure by which those rights may be exercised; |
| |
(d) for the form of any such notice or statement and the way in which a notice is to be, or may be, given. |
| |
(2) For the purpose of any proceedings under Part IV, a statement included in a notice in accordance with the regulations is conclusive as to the person by whom and the ground on which any decision or action was taken.
|
| |
(3) The power to make regulations is exercisable by statutory instrument.
|
| |
(4) Any such statutory instrument shall be subject to annulment in pursuance of a resolution of either House of Parliament.
|
| |
Lord Chancellor's rules of procedure |
| | 3. The Lord Chancellor may make rules-
|
| |
(a) for regulating the exercise of the rights of appeal conferred by Part IV; |
| |
(b) for prescribing the practice and procedure to be followed on or in connection with appeals under Part IV, including the mode and burden of proof and admissibility of evidence on such an appeal; and |
| |
(c) for other matters preliminary or incidental or arising out of such appeals, including proof of the decisions of the adjudicator or the Immigration Appeal Tribunal. |
| | 4. - (1) The rules may include provision-
|
| |
(a) enabling appeals to be determined without a hearing; |
| |
(b) enabling an adjudicator or the Tribunal to allow or dismiss an appeal without considering its merits- |
| |
(i) if there has been a failure by one of the parties to comply with a provision of the rules or with a direction given under the rules: or
|
| |
(ii) if one of the parties has failed to attend at a hearing;
|
| |
(c) enabling the Tribunal, on an appeal from an adjudicator, to remit the appeal to an adjudicator for determination by him in accordance with any directions of the Tribunal, or for further evidence to be obtained with a view to determination by the Tribunal; |
| |
(d) as to the circumstances in which a decision of the Tribunal may be set aside by the Tribunal; |
| |
(e) conferring on adjudicators or the Tribunal such ancillary powers as the Lord Chancellor thinks necessary for the purposes of the exercise of their functions; |
| |
(f) as to the procedure to be followed on applications to the Tribunal for leave to appeal under paragraph 12. |
| |
(2) The rules must provide that any appellant is to have the right to be legally represented.
|
| |
(3) Nothing in this paragraph affects the scope of the power conferred by paragraph 3.
|
| |
Hearings in private |
| | 5. - (1) Sub-paragraph (2) applies if, on an appeal under Part IV, it is alleged-
|
| |
(a) that a passport or other travel document, certificate of entitlement, entry clearance or work permit (or any part of it or entry in it) on which a party relies is a forgery, and |
| |
(b) that the disclosure to that party of any matters relating to the method of detection would be contrary to the public interest. |
| |
(2) The adjudicator or Tribunal must arrange-
|
| |
(a) for the proceedings to take place in the absence of that party and his representatives while the allegation mentioned in sub-paragraph (4)(b) is inquired into by the adjudicator or Tribunal; and |
| |
(b) if it appears to the adjudicator or Tribunal that the allegation is made out, for such further period as appears necessary in order to ensure that those matters can be presented to the adjudicator or Tribunal without any disclosure being directly or indirectly made contrary to the public interest. |
| |
Leave to appeal |
| | 6. If, under the rules, leave to appeal to the Tribunal is required in cases in which an adjudicator dismisses an appeal under section 41, the authority having power to grant leave must grant it-
|
| |
(a) if the appeal was against a decision that the appellant required leave to enter the United Kingdom and the authority is satisfied that at the time of the decision he held a certificate of entitlement; and |
| |
(b) if the appeal was against a refusal of leave to enter and the authority is satisfied that- |
| |
(i) at the time of the refusal the appellant held an entry clearance; and
|
| |
(ii) the dismissal of the appeal was not required by paragraph 13.
|
| |
Offences |
| | 7. A person who is required under or in accordance with the rules to attend and give evidence or produce documents before an adjudicator or the Tribunal, and fails without reasonable excuse to comply with the requirement is guilty of an offence and liable on summary conviction to a fine not exceeding level three on the standard scale.
|
| |
Miscellaneous |
| | 8. - (1) In this Schedule "rules" means rules made under paragraph 3.
|
| |
(2) The power to make rules is exercisable by statutory instrument.
|
| |
(3) Any such statutory instrument shall be subject to annulment in pursuance of a resolution of either House of Parliament.
|
| |
Convention cases |
| | 9. - (1) This paragraph applies to an appeal by a person on any of the grounds mentioned in subsections (1) to (4) of section 51 if the Secretary of State has certified that, in his opinion, the person's claim on the ground that it would be contrary to the Convention for him to be removed from, or to be required to leave, the United Kingdom is one to which-
|
| |
(a) sub-paragraph (3) or (4) applies; and |
| |
(b) sub-paragraph (5) does not apply. |
| |
(2) If, on an appeal to which this paragraph applies, the special adjudicator agrees that the claim is one to which this paragraph applies, paragraph 11 does not confer on the appellant any right to appeal to the Immigration Appeal Tribunal.
|
| |
(3) This sub-paragraph applies to a claim if, on his arrival in the United Kingdom, the appellant was required by an immigration officer to produce a valid passport and-
|
| |
(a) he failed to do so, without giving a reasonable explanation for his failure; or |
| |
(b) he produced an invalid passport and failed to inform the officer that it was not valid. |
| |
(4) This sub-paragraph applies to a claim if-
|
| |
(a) it does not show a fear of persecution by reason of the appellant's race, religion, nationality, membership of a particular social group or political opinion; |
| |
(b) it shows a fear of such persecution, but the fear is manifestly unfounded or the circumstances which gave rise to the fear no longer subsist; |
| |
(c) it is made at any time after the appellant- |
| |
(i) has been refused leave to enter the United Kingdom under the 1971 Act;
|
| |
(ii) has been recommended for deportation by a court empowered by that Act to do so;
|
| |
(iii) has been notified of the Secretary of State's decision to make a deportation order against him under section 3(5) of that Act; or
|
| |
(iv) has been notified of his liability to removal under paragraph 9 of Schedule 2 to that Act;
|
| |
(d) it is manifestly fraudulent, or any of the evidence adduced in its support is manifestly false; or |
| |
(e) it is frivolous or vexatious. |
| |
(5) This sub-paragraph applies to a claim if the evidence adduced in its support establishes a reasonable likelihood that the appellant has been tortured in the country or territory to which he is to be sent.
|
| |
(6) "Contrary to the Convention" means contrary to the United Kingdom's obligations under the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and the Protocol to that Convention.
|
| |
(7) "Passport", in relation to an appellant, means a passport with photograph or some other document satisfactorily establishing his identity and nationality or citizenship.
|
