(15-20)

House of Commons

Session 2003 - 04
Internet Publications
Other Bills before Parliament

(  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).”