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(  15  )

 
 

(a)   

the Tribunal, or

 

(b)   

if the Tribunal refuses permission, the appropriate appellate

 

court.

 

(4)   

On an appeal under subsection (1) the appropriate appellate court

 

may—

 

(a)   

affirm the Tribunal’s decision;

 

(b)   

make any decision which the Tribunal could have made;

 

(c)   

remit the case to the Tribunal;

 

(d)   

affirm a direction under section 87;

 

(e)   

vary a direction under section 87;

 

(f)   

give a direction which the Tribunal could have given under

 

section 87.

 

(5)   

In this section “the appropriate appellate court” means—

 

(a)   

in relation to an appeal decided in England or Wales, the

 

Court of Appeal,

 

(b)   

in relation to an appeal decided in Scotland, the Court of

 

Session, and

 

(c)   

in relation to an appeal decided in Northern Ireland, the

 

Court of Appeal in Northern Ireland.

 

(6)   

An appeal under subsection (1) to the Court of Session shall be to

 

the Inner House.

 

103C    

     Appeal from Tribunal instead of reconsideration

 

(1)   

On an application under section 103A in respect of an appeal the

 

appropriate court, if it thinks the appeal raises a question of law of

 

such importance that it should be decided by the appropriate

 

appellate court, may refer the appeal to that court.

 

(2)   

On a reference under subsection (1) the appropriate appellate court

 

may—

 

(a)   

affirm the Tribunal’s decision;

 

(b)   

make any decision which the Tribunal could have made;

 

(c)   

remit the case to the Tribunal;

 

(d)   

affirm a direction under section 87;

 

(e)   

vary a direction under section 87;

 

(f)   

give a direction which the Tribunal could have given under

 

section 87;

 

(g)   

restore the application under section 103A to the

 

appropriate court.

 

(3)   

In this section—

 

   

“the appropriate court” has the same meaning as in section

 

103A, and

 

   

“the appropriate appellate court” has the same meaning as in

 

section 103B.

 

(4)   

A reference under subsection (1) to the Court of Session shall be to

 

the Inner House.


 

(  16  )

 
 

“103D   

     Reconsideration: legal aid

 

(1)   

Subsection (2) applies where the appropriate court has made an

 

order under section 103A(1), or a reference under section 103C(1),

 

on the application of an appellant under section 103A.

 

(2)   

The appropriate court may order that the appellant’s costs in

 

respect of the application under section 103A shall be paid out of

 

the Community Legal Service Fund established under section 5 of

 

the Access to Justice Act 1999 (c. 22).

 

(3)   

Subsection (4) applies where the Tribunal has decided an appeal

 

following reconsideration pursuant to an order made—

 

(a)   

under section 103A(1), and

 

(b)   

on the application of the appellant.

 

(4)   

The Tribunal may order that the appellant’s costs—

 

(a)   

in respect of the application for reconsideration, and

 

(b)   

in respect of the reconsideration,

 

   

shall be paid out of that Fund.

 

(5)   

The Secretary of State may make regulations about the exercise of

 

the powers in subsections (2) and (4).

 

(6)   

Regulations under subsection (3) may, in particular, make

 

provision—

 

(a)   

specifying or providing for the determination of the amount

 

of payments (which may, in particular, vary according to

 

the result of the reconsideration or of the reference under

 

section 103C);

 

(b)   

about the persons to whom the payments are to be made;

 

(c)   

restricting the exercise of the power (whether by reference

 

to the outcome of the appeal, the circumstances of the

 

appellant, the nature of the appellant’s legal

 

representatives, or otherwise).

 

(7)   

Regulations under subsection (3) may make provision—

 

(a)   

conferring a function on the Legal Services Commission;

 

(b)   

modifying a duty or power of the Legal Services

 

Commission in respect of compliance with orders under

 

subsection (2);

 

(c)   

applying (with or without modifications), modifying or

 

disapplying a provision of, or of anything done under, an

 

enactment relating to the funding of legal services.

 

(8)   

Before making regulations under subsection (3) the Secretary of

 

State shall consult such persons as he thinks appropriate.

 

(9)   

This section has effect only in relation to an appeal decided in—

 

(a)   

England,

 

(b)   

Wales, or

 

(c)   

Northern Ireland.

 

(10)   

In relation to an appeal decided in Northern Ireland this section

 

shall have effect—

 

(a)   

as if a reference to the Community Legal Service Fund were

 

to the fund established under paragraph 4(2)(a) of Schedule


 

(  17  )

 
 

3 to the Access to Justice (Northern Ireland) Order 2003 (S.I.

 

2003/435 (N.I. 10)), and

 

(b)   

with any other necessary modifications.

 

103E    

    Appeal from Tribunal sitting as panel

 

(1)   

This section applies to a decision of the Tribunal on an appeal under

 

section 82 or 83 where its jurisdiction is exercised by three or more

 

legally qualified members.

 

(2)   

A party to the appeal may bring a further appeal on a point of law

 

to the appropriate appellate court.

 

(3)   

An appeal under subsection (2) may be brought only with the

 

permission of—

 

(a)   

the Tribunal, or

 

(b)   

if the Tribunal refuses permission, the appropriate appellate

 

court.

 

(4)   

On an appeal under subsection (2) the appropriate appellate court

 

may—

 

(a)   

affirm the Tribunal’s decision;

 

(b)   

make any decision which the Tribunal could have made;

 

(c)   

remit the case to the Tribunal;

 

(d)   

affirm a direction under section 87;

 

(e)   

vary a direction under section 87;

 

(f)   

give a direction which the Tribunal could have given under

 

section 87.

 

(5)   

In this section “the appropriate appellate court” means—

 

(a)   

in relation to an appeal decided in England or Wales, the

 

Court of Appeal,

 

(b)   

in relation to an appeal decided in Scotland, the Court of

 

Session, and

 

(c)   

in relation to an appeal decided in Northern Ireland, the

 

Court of Appeal in Northern Ireland.

 

(6)   

A further appeal under subsection (2) to the Court of Session shall

 

be to the Inner House.

 

(7)   

In this section a reference to the Tribunal’s decision on an appeal

 

does not include a reference to—

 

(a)   

a procedural, ancillary or preliminary decision, or

 

(b)   

a decision following remittal under section 103B or 103C.”

29

Page 16, line 19, at end insert—

 

“(9)   

The Lord Chancellor may by order vary a period specified in—

 

(a)   

section 103A(3)(a), (b) or (c) of the Nationality, Immigration and

 

Asylum Act 2002 (c. 41) (review of Tribunal’s decision) (as inserted

 

by subsection (6) above), or

 

(b)   

paragraph 30(5)(b) of Schedule 2 to this Act.

 

(10)   

An order under subsection (9)—

 

(a)   

may make provision generally or only for specified cases or

 

circumstances,


 

(  18  )

 
 

(b)   

may make different provision for different cases or circumstances,

 

(c)   

shall be made by statutory instrument, and

 

(d)   

shall be subject to annulment in pursuance of a resolution of either

 

House of Parliament.

 

(11)   

Before making an order under subsection (9) the Lord Chancellor shall

 

consult—

 

(a)   

the Lord Chief Justice, if the order affects proceedings in England

 

and Wales,

 

(b)   

the Lord President of the Court of Session, if the order affects

 

proceedings in Scotland, and

 

(c)   

the Lord Chief Justice of Northern Ireland, if the order affects

 

proceedings in Northern Ireland.”

After Clause 16

30

Insert the following new Clause—

 

“Entry clearance

 

(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.””

 

31

 

Insert the following new Clause—

 

“Earlier right of appeal

 

(1)   

Section 96 of the Nationality, Immigration and Asylum Act 2002 (c. 41)

 

(earlier right of appeal) shall be amended as follows.


 

(  19  )

 
 

(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.””

After Clause 17

32

Insert the following new Clause—

 

“Suspected international terrorist: bail

 

(1)   

At the end of section 24 of the Anti-terrorism, Crime and Security Act 2001

 

(c. 24) (suspected international terrorist: bail by Special Immigration

 

Appeals Commission) add—

 

“(4)   

Where the Special Immigration Appeals Commission determines

 

an application for bail, the applicant or a person who made

 

representations to the Commission about the application may

 

appeal on a question of law to the appropriate appeal court.


 

(  20  )

 
 

(5)   

Section 7(2) and (3) of the Special Immigration Appeals

 

Commission Act 1997 (c. 68) (appeals from Commission) shall have

 

effect for the purposes of an appeal under subsection (4) above.”

 

(2)   

In section 27(5) and (6) of the Anti-terrorism, Crime and Security Act 2001

 

(c. 24) (suspected international terrorist: Special Immigration Appeals

 

Commission: procedure) for “section 25 or 26 of this Act” substitute

 

“section 24, 25 or 26 of this Act”.”

Clause 21

33

Page 20, line 44, leave out “and”

34

Page 21, line 1, leave out “or by the Special Immigration Appeals Commission).”

 

and insert—

 

   

“), and

 

(iii)   

bail granted by the Special Immigration Appeals Commission.”

Clause 23

35

Page 24, line 42, leave out from beginning to end of line 4 on page 25 and insert—

 

“(c)   

a reference to material—

 

(i)   

includes material subject to legal privilege within the

 

meaning of the Police and Criminal Evidence Act 1984

 

(c. 60),

 

(ii)   

does not include excluded material or special procedure

 

material within the meaning of that Act, and

 

(iii)   

includes material whether or not it would be admissible in

 

evidence at a trial.”

36

Page 25, line 7, leave out “or a justice of the peace, and”

37

Page 25, line 9, leave out “whether or not it is” and insert “includes”

38

Page 25, line 11, at end insert—

 

   

“, and

 

(c)   

sub-paragraph (ii) of subsection (7)(c) shall be ignored.”

Clause 27

39

Page 28, line 37, at end insert—

 

“( )   

An instrument may not be made in reliance on this section unless the

 

Secretary of State has consulted with such persons as appear to him to be

 

appropriate.

 

( )   

An instrument may not be made in reliance on this section unless a draft

 

has been laid before and approved by resolution of each House of

 

Parliament (and any provision making the instrument subject to

 

annulment in pursuance of a resolution of either House of Parliament shall

 

not apply).”


 
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