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|
|
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| |
| (b) | if the Tribunal refuses permission, the appropriate appellate |
|
| |
| (4) | On an appeal under subsection (1) the appropriate appellate court |
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| |
| (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 |
|
| |
| (5) | In this section “the appropriate appellate court” means— |
|
| (a) | in relation to an appeal decided in England or Wales, the |
|
| |
| (b) | in relation to an appeal decided in Scotland, the Court of |
|
| |
| (c) | in relation to an appeal decided in Northern Ireland, the |
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| Court of Appeal in Northern Ireland. |
|
| (6) | An appeal under subsection (1) to the Court of Session shall be to |
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| |
| 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 |
|
| |
| (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 |
|
| |
| (g) | restore the application under section 103A to the |
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| |
| |
| | “the appropriate court” has the same meaning as in section |
|
| |
| | “the appropriate appellate court” has the same meaning as in |
|
| |
| (4) | A reference under subsection (1) to the Court of Session shall be to |
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| |
|
|
|
|
|
| “103D | Reconsideration: legal aid |
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| (1) | Subsection (2) applies where the appropriate court has made an |
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| order under section 103A(1), or a reference under section 103C(1), |
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| 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— |
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| (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 |
|
| |
| (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 |
|
| |
| (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 |
|
| |
| (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— |
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| |
| |
| |
| (10) | In relation to an appeal decided in Northern Ireland this section |
|
| |
| (a) | as if a reference to the Community Legal Service Fund were |
|
| to the fund established under paragraph 4(2)(a) of Schedule |
|
|
|
|
|
|
| 3 to the Access to Justice (Northern Ireland) Order 2003 (S.I. |
|
| |
| (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 |
|
| |
| |
| (b) | if the Tribunal refuses permission, the appropriate appellate |
|
| |
| (4) | On an appeal under subsection (2) the appropriate appellate court |
|
| |
| (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 |
|
| |
| (5) | In this section “the appropriate appellate court” means— |
|
| (a) | in relation to an appeal decided in England or Wales, the |
|
| |
| (b) | in relation to an appeal decided in Scotland, the Court of |
|
| |
| (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 |
|
| |
| (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 |
|
| |
|
|
|
|
|
| (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 |
|
| |
| (11) | Before making an order under subsection (9) the Lord Chancellor shall |
|
| |
| (a) | the Lord Chief Justice, if the order affects proceedings in England |
|
| |
| (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.” |
|
|
30 | Insert the following new Clause— |
|
| |
| (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 |
|
| |
| (a) | relate to a provision of immigration rules, and |
|
| (b) | are specified for the purpose of this section by order of the |
|
| |
| |
| (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 |
|
| |
| (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.”” |
|
| |
| Insert the following new Clause— |
|
| |
| (1) | Section 96 of the Nationality, Immigration and Asylum Act 2002 (c. 41) |
|
| (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 |
|
| |
| (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 |
|
| |
| (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, |
|
| |
| (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”. |
|
| |
| “(7) | A certificate under subsection (1) or (2) shall have no effect in |
|
| relation to an appeal instituted before the certificate is issued.”” |
|
|
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 |
|
| |
| “(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. |
|
|
|
|
|
|
| (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”.” |
|
|
33 | Page 20, line 44, leave out “and” |
|
34 | Page 21, line 1, leave out “or by the Special Immigration Appeals Commission).” |
|
| |
| |
| (iii) | bail granted by the Special Immigration Appeals Commission.” |
|
|
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 |
|
| |
| (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 |
|
| |
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— |
|
| |
| (c) | sub-paragraph (ii) of subsection (7)(c) shall be ignored.” |
|
|
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 |
|
| |
| ( ) | 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 |
|
| |
|