Clause 26 : Visas for transit passengers

112.     This clause currently forms part of the Immigration (Carriers' Liability) Act 1987 which is to be repealed.

113.     Subsection (1) gives the Secretary of State the power to lay an order before Parliament to require transit passengers (that is those people who are travelling through the United Kingdom on their way to their ultimate destination) to hold a transit visa.

114.     Subsection (2) defines the terms "transit passenger" and "transit visa"; it provides that those transit passenger who must hold a transit visa are to be specified in the order.

115.     Subsection (3)(a) stipulates that the transit visa order can specify the relevant passengers by nationality, citizenship, place of origin or other connection with a country or territory but cannot refer to colour, race or religion.

116.     Subsection (3)(b) states that someone who has the right of abode in the United Kingdom cannot be required to have a transit visa. That is someone who has the right to live in the United Kingdom and who is not subject to immigration control.

117.     Subsection (3)(c) allows the Secretary of State to provide for an exemption from the requirement to obtain a transit visa for certain categories of person. For example, people possessing a residence permit of an EU Member State.

118.     Subsection (3)(d) allows the Secretary of State to stipulate the method in which applications for transit visas have to be made.

Clause 27 : Power to detain vehicles etc in connection with charges under clause 25

119.     Subsection (1) provides a senior immigration officer with the power to detain any transporter used to carry a person who is not properly documented and for whom a carriers' liability charge is incurred. In addition, any other transporter, used on any route to carry passengers by the person liable to the charge, may also be detained. Subsection (2) gives the court power to release a detained transporter if satisfactory security is given for the payment of the charge, if there is significant doubt as to whether the charge will stand and the retention of the transporter is vital to the applicant.

120.     Subsection (3) states that, if the charge is not paid within the allotted timescale (56 days from the first day of detention) and the court has not ordered its release, the Secretary of State can sell the transporter.

121.     Subsection (4) makes the detention of a transporter lawful even if it subsequently turns out the charge is not owed, unless (subsection (5)) the charge was imposed reasonably.

Schedule 1 : Detention and sale of transporters

122.     This Schedule deals with the detention and sale of transporters under clause 23 or 27.

123.     Paragraph 1 provides that the permission of the court must be obtained before a transporter can be sold. It also states that before the court can give its permission it must have proof that the penalty or charge is due but has not been paid by the person liable and that the transporter is liable to sale.

124.     Paragraph 2 provides that the Secretary of State must bring the proposed sale to the notice of anyone who may be affected by the sale of the transporter so that they can involve themselves in any application the Secretary of State makes to the court.

125.     Paragraph 3 requires the Secretary of State to obtain the best possible price for any transporter sold.

126.     Paragraph 4 provides that, should the Secretary of State fail to comply with the conditions as set out in paragraphs 2 and 3 of the Schedule, any person suffering loss as a consequence will be able to take proceedings to obtain compensation. This will not, however, serve to make the sale of the transporter invalid.

127.     Paragraph 5 sets out how the proceeds from any sale will be distributed. The order of distribution will be set out in an order to be made by the Secretary of State

Part III : Bail

Clause 29 : Bail hearings for detained persons

128.     This clause introduces routine bail hearings for those detained under immigration legislation. It provides that detained persons will be entitled to a routine bail hearing between 5 and 9 days following initial detention and, where they remain in detention, a further hearing between 33 and 37 days following initial detention. The Secretary of State is placed under a duty to notify the appropriate court of the need to arrange a hearing in time. A person will be entitled to a routine bail hearing if he is released and re-detained at a later date. In such circumstances there will again be two routine bail hearings.

129.     Subsection (11) provides that, except for those coming under the jurisdiction of the Special Immigration Appeals Commission under the Special Immigration Appeals Commission Act 1997 on national security grounds, the routine hearings in England, Wales and Northern Ireland will be before magistrates until such time as an appeal has been lodged. Where an appeal has been lodged the hearing will be before the court dealing with that appeal. Routine hearings will be held before the Special Immigration Appeals Commission in the case of any person whose bail application would be held before that body under current provisions. In Scotland, all routine bail hearings not held before the Commission will be before an Immigration Appellate Authority adjudicator.

130.     Subsection (6) ensures that the routine bail hearing will be limited to addressing the individual's suitability for release on bail.

131.     Subsections (9) and (10) ensure that if the Secretary of State fails to make a reference to the court, or the court fails to hear a routine bail hearing in time, arrangements will be put in place so as to ensure that the hearing will take place within a short timescale.

Clause 30 : Location of bail hearings

132.     This allows routine bail hearings to be heard in such places as may be specified, which places may include court-rooms, detention centres, prisons, or Immigration Appellate Authority hearing centres

Clause 31 : Power to grant bail

133.     This provides that the grant of bail may be subject to a number of conditions, including requiring the person to enter into a recognizance, or bail bond in Scotland. The recognizance or bail bond may include monetary sureties. The court must require any released person to report at a specified time and place, or at any such other time and place as may be notified in writing by an immigration officer. The person may not be released until recognizance or bond under the clause has been taken.

Clause 32 : Forfeiture

134.     This clause allows for forfeiture of recognizances or, in Scotland, bail bonds entered into under clause 31.

Clause 33 : Power of arrest

135.     This provision grants power to an immigration officer or constable to arrest, without warrant, a person who has been released on bail if there are reasonable grounds for believing that the person has broken, is breaking, or is likely to break any condition of bail. The person must, if not required by a condition his release to appear before an immigration officer within 24 hours, be brought before a justice of the peace or, in Scotland, before an adjudicator or, where this is impracticable, the Sheriff. The clause also provides immigration officers and constables with powers to enter premises for the purposes of searching for a person liable to arrest under the clause so long as an authorising warrant has been issued.

Clause 34 : Procedure

136.     This clause makes provision for the procedure and practice to be followed in connection with routine bail hearings and requires the Lord Chancellor to make appropriate rules in this regard. The clause also provides for the conduct of proceedings at routine bail hearings by persons other than barristers (or, in Scotland, advocates) or solicitors.

Clause 35 : Use of live television links at bail hearings

137.     This clause will enable courts to direct that live television links may be used for the purposes of routine bail hearings in any particular case.

Clause 36 : Power to provide for certain bail hearings to be before magistrates

138.     This clause allows the Secretary of State, by rules, to provide for applications for bail made under current immigration legislation to be heard by magistrates' courts in circumstances where the detainee has not brought an appeal. These rules will be subject to the approval of the Lord Chancellor.

Clause 37 : Grants to voluntary organisations

139.     This clause will enable the Secretary of State, with the approval of the Treasury, to make grants to voluntary organisations providing advice or assistance to detained persons in connection, inter alia, with routine bail hearings.

Part IV : Appeals

Clause 38 and Schedules 2 and 13 : The appellate authorities

140.     Clause 38 confirms that the Immigration Appeal Tribunal will continue to hear appeals from adjudicators.

141.     Schedule 2 re-states responsibility for appointment and payment of Tribunal members and staff and for making rules of procedure as set out in Part II to Schedule 5 of the 1971 Act. References to the Secretary of State have been replaced by references to the Lord Chancellor to whom responsibility was transferred by the Transfer of Functions (Immigration Appeals) Order 1987 (SI 1987 No. 465).

142.     Paragraph 1(3) provides that only those who are legally qualified will be eligible for appointment as a member of the Immigration Appeal Tribunal. Schedule 13 provides that those who are legally qualified and who were appointed to the Tribunal before the coming into force of clause 38, will, unless they were appointed as lay members, continue to be members of the Tribunal.

143.     Paragraph 2(1) confers power on the Lord Chancellor to appoint a Deputy President in addition to the President. The Deputy will support the President in the judicial management of the Tribunal. Paragraphs 2(2) and 2(3) provide for the Deputy to undertake functions conferred on him by the President and to act on behalf of the President in the President's absence. Paragraphs 3 to 5 bring forward from Schedule 5 to the 1971 Act provisions relating to the terms of service of the members of the Tribunal.

144.     Paragraph 6 provides for the jurisdiction of the Tribunal to be exercised by a single member, including the determination of appeals. In future, Tribunal members will be legally qualified: there will be no lay members. Therefore, the requirement imposed by paragraph 12 of Part II to Schedule 5 of the 1971 Act that the Tribunal is duly constituted if it consists of three (or more) members at least one of whom is legally qualified is no longer needed. However, paragraph 6(4) provides for the President to direct that a case is dealt with by a tribunal consisting of more than one person where he considers that circumstances demand it.

Clause 39 and Schedule 3 : Adjudicators

145.     This clause and Schedule re-state and bring together the appointment and payment arrangements for adjudicators and their support staff as set out in Part I of Schedule 5 to the 1971 Act, Section 8(5) of the Asylum and Immigration Appeals Act 1993 and Section 3(3) of the Asylum and Immigration Act 1996.

Clause 40 : Appeals - general

146.     This clause establishes that the appeal rights set out in this part of the Bill are to be read as subject to any limitations elsewhere in the same Part.

Clause 41 : Leave to enter the United Kingdom

147.     Subsection (1) confers a right of appeal to an adjudicator against either a refusal of leave to enter or a decision that the applicant is a person who is subject to immigration control and thus requires leave to enter.

148.     Subsection (2) confers a right of appeal to an adjudicator against a decision taken abroad to refuse a certificate of entitlement or an entry clearance.

149.     Subsection (7) makes it clear that "country" includes "territory".

Clause 42 : Limitations on rights of appeal under clause 41

150.     This clause restricts the right to appeal under clause 41.

151.     Persons who claim they are not subject to control have no right of appeal if they do not possess the appropriate documentary evidence.

152.     Subsection (2) and (3) remove the entitlement to appeal against refusal of entry clearance or leave to enter under clause 40 in respect of those falling into the following categories.

• visitors (not including family visitors) - see below;

• students accepted for a course for up to 6 months;

• those intending to study but not accepted for any course; or

• a dependant of one of the above.

153. Moreover, the appeal right is not removed in the case of a person refused leave to enter if he holds a current entry clearance. And a person who is refused an entry clearance for a family visit will now enjoy a right of appeal. Therefore, the effect of this clause is to restore a right of appeal for persons who are refused an entry clearance for a family visit. The procedures relating to this appeal will be set out in procedural rules.

154.     Subsection (4) enables the Secretary of State by regulations to make provision requiring a family visitor appealing under section 41 to pay a fee, for such an appeal not to be entertained unless the required fee has been paid and for the repayment of any such fee if the appeal is successful.

155.     Subsection (5) removes the entitlement to appeal against refusal of entry clearance or leave to enter in certain circumstances where refusal is mandatory under the immigration rules.

156.     Subsection (7) removes the entitlement to appeal against refusal of leave to enter or refusal of entry clearance if the Secretary of State certifies that directions have been given by the Secretary of State on the ground that the applicant's exclusion is conducive to the public good, or leave to enter or entry clearance was refused in compliance with such directions.

Clause 43 : Variation of limited leave to enter or remain

157.     This clause confers a right of appeal against any refusal by the Secretary of State to grant further leave. Provided the appellant applies for his leave to be varied before it expires then he may appeal under this clause even though it has expired.

Clause 44 : Limitations on rights of appeal under clause 43

158.     This clause imposes restrictions on the right of appeal under clause 43.

159.     Subsection (1) removes the entitlement to appeal against a refusal to grant further leave in certain circumstances where refusal is mandatory under the immigration rules.

160.     In addition, there is no right of appeal under clause 43 against a refusal to grant further leave if the Secretary of State certifies that the appellant's departure would be conducive to the public good as being in the interests of national security, the relations between the United Kingdom and any other country or for other reasons of a political nature or the decision was taken on that ground by the Secretary of State (subsections (3) and (4)).

161.     There is no right of appeal against a variation of leave made by statutory instrument, nor one against refusal to make such an instrument (subsection (5)).

Clause 45 : Appeals against deportation orders

162.     This clause gives a right of appeal against a decision to make a deportation order or a refusal to revoke a deportation order. Under the Bill, deportation will be reserved for cases where removal is conducive to the public good or recommended by a court; these cases will now all go to an adjudicator in the first instance, or to the Special Immigration Appeals Commission.

163.     Subsection (2) prevent the making of a deportation order while there remains an opportunity to appeal against the decision to deport or while such an appeal is outstanding.

Clause 46 : Limitations on rights of appeal under clause 45

164.     This clause imposes restrictions on the right of appeal under clause 45. Subsection (1) removes the right of appeal from those against whom a decision to deport has been made if the ground of that decision was that deportation would be conducive to the public good as being in the interests of national security or of the relations between the United Kingdom and any other country or for other reasons of a political nature.

165.     Subsection (2) provides that there is no right of appeal against a refusal to revoke a deportation order if the Secretary of State has certified that the appellant's exclusion would be conducive to the public good; or if revocation was refused on that ground by the Secretary of State.

166.     Subsection (3) provides that appeals against refusal to revoke a deportation order may not be made in the United Kingdom.

167.     Subsections (4) to (6) limit, with exceptions, the grounds on which a decision to make, or a refusal to revoke, a deportation order against a person as belonging to the family of another person may be appealed.

Clause 47 : Acts made unlawful by section 6(1) of the Human Rights Act 1998

168.     This clause creates a new right of appeal on human rights grounds against decisions affecting a person's entitlement to enter or remain in the United Kingdom which are alleged to be unlawful under section 6(1) of the Human Rights Act 1998.

Clause 48 : Validity of directions

169.     This clause gives an out-of-country right of appeal on the ground that there was no power in law to give directions for removal in three types of case: where the directions were given on the ground that the person is an illegal entrant, under clause 6 of the Bill or under the special powers conferred by Schedule 2 to the 1971 Act in relation to members of the crew of a ship or aircraft. However, subsection (3) of this clause makes it clear that a person claiming asylum on ECHR rights is entitled to an in-country right of appeal.

Clause 49 : Removal on objection to destination

170.     This clause confers a right of appeal against directions for removal on the ground that removal should be to a specified country other than the one in the directions. This right is not extended to those removed under clause 6.

171.     Subsections (3) and (4) apply if a person appeals on being refused leave to enter. In such a case, where directions have previously been given for his removal to any country, or the Secretary of State or an immigration officer serves notice that directions which may be given for removal as a result of the refusal will be for removal to a country or one of several countries, then he may object to the country to which he would be removed as a result of the directions and claim that he ought to be removed to a different country.

Clause 50 : Limitations on rights of appeal under clause 49

172.     This clause does not entitle a person to appeal under clause 49 against directions given on his being refused leave to enter the United Kingdom unless he is also appealing against the decision that he requires leave to enter or he was refused leave at a time when he held a current entry clearance or work permit (subsection (1)). In addition, if a person is entitled to object to a country on an appeal under clause 49 and he does not object to it or his objection is not upheld then clause 49 does not entitle him to appeal against any directions subsequently given as a result of the refusal if their effect will be his removal to that country (subsection (2)).

Clause 51 : Appeals : Claims for asylum

173     This clause provides a right of appeal on asylum grounds where a person is refused leave to enter or leave to remain, or his leave is varied, or the Secretary of State decides to make a deportation order against him or refuses to revoke such an order (subsections (1) to (3)).

174.     In addition, subsection (4) confers a right to appeal on asylum grounds against directions for removal under clause 48.

Clause 52 : Limitations on rights of appeal under clause 51

175.     This clause imposes limitations on the appeal rights set out in the previous clause. In particular, there is no appeal on asylum grounds if the decision appealed against was made on grounds of national security (subsections (1) to (5)).

176.     Subsection (6) requires that an asylum claim must have been made before an appeal can be brought.

177.     Subsection (7) provides that a person who has had the opportunity to appeal against the decision to make a deportation order (whether or not he exercised it) may not appeal against a refusal to revoke the order.

Clause 53 : Removal of asylum claimants to safe third countries

178.     This clause provides a right of appeal against a certificate issued under section 2 of the Asylum and Immigration Act 1996 where it is claimed that any of the conditions mentioned in section 2(2) of the 1996 Act was or is not satisfied.

Clause 54 : Miscellaneous limitations on rights of appeal

179.     Subsection (1) provides that an asylum appeal can only be brought under clause 51.

180.     Subsection (2) provides that while a certificate issued under section 2 of the Asylum and Immigration Act 1996 remains in force, the person in respect of whom it was issued is not entitled to appeal as respects matters arising before his removal from the United Kingdom.

181.     Subsection (3) provides that an appeal under clause 53 shall not be exercisable in the United Kingdom if the applicant has been, or is to be, sent to a country or territory as specified in section 2(3) of the 1996 Act.

Clause 55 : "One-stop" procedure : Duty to disclose grounds for appeal etc

182.     Under this clause, when an applicant is refused leave to enter or remain, and that refusal attracts a right of appeal the applicant and any relevant member of his family will be notified of their duty, if they wish to appeal the decision, to state within a prescribed period any other grounds they have for staying here. The purpose is to ensure as far as possible that all relevant issues, for example an asylum claim, can be considered at the same time.

183.     Subsection (2) enables the requirements of this clause to be applied by regulations to other types of case such as illegal entrants and overstayers. Subsection (7) provides that the regulations may provide for clauses 56-58 to have effect with prescribed modifications.

184.     Subsection (5) requires the person on whom a notice is served, if they wish to claim asylum, ECHR rights or entitlement under the Immigration Rules or to any prescribed concession, to do so in the statement they are required to make at that stage.

Clause 56 : Result of failure to comply with clause 55 (to disclose grounds)

185.     This clause sets out the consequences of failing to comply with the previous clause. If the applicant's statement does not mention a particular ground on which he wishes to enter or remain and of which he is aware at the material time then he may not rely on that ground in any appeal unless the Secretary of State considers that he had a reasonable excuse for the omission. (Subsection (2) and (8)).

186.     Similarly, an applicant who makes a claim for asylum or for ECHR rights. If the claim is not made within the prescribed time for submitting such claims then no appeal may be made against a refusal of the claim if the Secretary of State certifies that the claim was made solely for the purpose of delaying removal (subsections (4) to (6)).

Clause 57 : "One-stop" appeals : asylum claims

187.     The purpose of this clause is to require the special adjudicator dealing with an asylum appeal to consider other matters raised by the appellant as additional grounds and which he is not prevented by clause 56 from relying on (subsection (2)).

188.     Subsection (3) enables a special adjudicator to take into account evidence which was not available to the Secretary of State when the decision was taken and which he considers relevant to the appeal.

Clause 58: "One-stop" appeals - other cases

189.     This clause makes equivalent provision to clause 57 for non-asylum cases by requiring the appellate authorities in such cases to consider additional grounds submitted in response to the disclosure notice and enabling them to allow the appeal on any of those grounds (subsection (2).

Clause 59 : Appeals without merit : Penalty on continuing an appeal without merit

190.     This clause allows the Tribunal to notify a party bringing an appeal before it that, in the opinion of the Tribunal, the appeal lacks merit and that a fixed financial penalty may be imposed if the appeal is pursued and fails. The Tribunal will be able to exercise this power at any time before it determines an appeal by a notification in such form as may be prescribed in rules. The power will be exercisable if, in the future, the requirement to apply for leave to appeal to the Tribunal in that category of appeal is removed.

Clause 60 :Grants to voluntary organisations

191.     This clause enables the Secretary of State, with the approval of the Treasury, to make grants to any voluntary organisation which provides advice and assistance for, or other services for the welfare of, persons who have rights of appeal under the Bill.

Schedule 4 : Appeals

Schedule 4, Part I : Procedure

192.     Paragraph 1 provides that while an appeal under clause 41(5) or 43(2) is pending, the appellant's leave continues to have effect as well as any conditions to which it was subject.

193.     Paragraph 1(2) provides that a pending appeal against refusal to vary leave lapses if a deportation order is made.

194.     While an appeal is pending paragraphs 1(3), (4) and (5) provide that variations of leave shall not take effect, an appellant shall not be required to leave the United Kingdom and effect shall not be given to provisions appealed against.

195.     Paragraph 2 provides for the Secretary of State to make regulations concerning notices to be given in respect of appealable decisions.

196.     Paragraphs 3 and 4 enable rules of procedure to be made by the Lord Chancellor. Paragraph 3 makes provision for the Lord Chancellor to make rules for regulating the exercise of rights of appeal conferred by this Bill. Paragraph 4 sets out the details of what the Rules which the Lord Chancellor makes may include. In particular the powers and functions of adjudicators and the Tribunal in hearing and disposing of appeals. Paragraph 5 makes provision for an appeal to be heard in certain circumstances in the absence of an appellant or his representatives. This is the requirement of section 22(4) of the 1971 Act. Paragraph 6 sets out the circumstances in which the Tribunal must grant leave to appeal.

197.     Paragraph 5 makes provision for hearings before the adjudicator or Tribunal to be held in private in certain circumstances.

198.     Paragraph 6 requires leave to appeal to be granted in certain circumstances.

199.     Paragraph 7 makes it an offence to fail to comply with a requirement to attend and give evidence or produce documents before an adjudicator or the Tribunal.

200.     Paragraph 9 concerns asylum appeals and enables the Secretary of State to issue a certificate if in his opinion certain conditions apply such as that the appellant's claim does not show a fear of persecution by reason of the appellant's race, religion, nationality etc or if such a fear is manifestly unfounded. Where a certificate is issued and the special adjudicator upholds the certificate then the appellant cannot appeal to the Immigration Appeal Tribunal against any ruling by the special adjudicator. The only effective change which these provisions make to the existing position is that the power to certify on the basis of a designated safe country (the "White List") has been removed.