Memorandum by the Lord Chancellor's Department
IMMIGRATION AND ASYLUM APPEALS (PROCEDURE) RULES
2000 (S.I. 2000/2333)
1. The Lord Chancellor's Department submits this
Memorandum in response to the Committee's request dated 8th November
2000, on the following points:
(1) Explain the meaning of
"immigration decision", which expression appears in
regulation 5 and elsewhere in the instrument.
2. "Immigration decision" in these Rules
means any decision concerning a person's removal from the United
Kingdom, or his entitlement to be admitted to or reside in the
United Kingdom, against which there is a right of appeal to an
adjudicator. It would have been possible to include in rule 5
a definition to this effect. It was however thought that since
rule 5(1) made it clear that Part II of the Rules applied to appeals
to adjudicators, the expression "immigration decision"
in rule 5(2) was clear, and that in the interests of simplicity
a more detailed definition was unnecessary. However, consideration
will be given to providing a fuller definition at the next opportunity.
(2) Rule 6(2)(a) specifies
the time limit for giving notice of appeal by an appellant who
was in the UK when the decision appealed against was made but
is outside the UK when the appeal is made. The time limit is calculated
from the day on which the appellant departed from the UK. Rule
6(1) and 6(2)(b) provide respectively that the time limit in respect
of a person who appeals within the UK and a person who was not
in the UK when the decision was made and appeals outside the UK
runs from the day on which notice of the decision was received:
(a) why time starts to run against a person to
whom rule 6(2)(a) (but not any other potential appellant) applies
irrespective of whether he is aware of the decision;
3. Rule 6(2)(a) applies to a person who is in the
United Kingdom when the immigration decision is made. Some cannot
appeal whilst in the UK, others can. The great majority of the
latter who wish to appeal will remain within the UK, and therefore
have 10 days in which to give their notice of appeal (rule 6(1)).
The small number who leave the UK and then appeal are given 28
days from their departure. For those who cannot appeal whilst
in the UK, it would be invidious to set the appeal period from
service of the decision notice because there can be long delays
between such service and when they actually leave the country,
and in many cases the appeal would expire before departure.
4. There is no way in which such a person can be
unaware of the decision. Regulation 4 of the Immigration and Asylum
Appeals (Notices) Regulations 2000 (S.I. 2000/2246) requires
the decision-maker to give written notice to a person or his representative
of any decision or action taken in respect of him which is appealable.
The person concerned will therefore have been notified of the
decision to remove him from the United Kingdom. Moreover, the
authorities will have been holding the passport of such a person,
and it will in practice be returned by hand or by post with the
copy of the decision, so that he will not be able to leave the
country without having been notified of the decision.
(b) whether it is intended that a person who remains
in the UK for the period of 10 days prescribed by rule 6(1) but
fails to give notice of appeal within that time may, at any subsequent
time, bring himself within rule 6(2)(a) merely by leaving the
5. A person who is entitled to appeal in the United
Kingdom may not be removed at all while notice of appeal has been
lodged and the appeal is pending; in many cases such a person
may receive financial and other benefits. A person who is so entitled
but leaves the country voluntarily loses those benefits. It is
therefore the intention that a person who is entitled to appeal
in the UK may choose not to do so and may appeal from abroad instead,
and that the appeal from abroad may be lodged within 28 days of
departure whenever that occurs. In practice very few people who
are entitled to appeal before removal choose to appeal from abroad.
(3) Explain the relationship
between rules 7(2) and 12(5).
6. Rule 12(5) applies where the respondent argues
that the notice of appeal is out of time, but the adjudicator,
after hearing the arguments on both sides, determines that there
are special circumstances for allowing the appeal to proceed.
Rule 7(2) on the other hand applies where there has been no objection
from the respondent to the appeal going ahead, but the adjudicator
himself has noticed that it is out of time. He may nevertheless,
if he believes that there are special circumstances, treat the
notice as having been given in time.
(4) Rule 22(3) refers to
time limits for the service of evidence "set out in these
rules". Where in the Rules are such time limits set out?
7. In certain circumstances, rule 19(1) provides
for applications to be made to the Tribunal. By virtue of rule
19(2), it would be possible for evidence to be served with such
an application. This rule has a time limit of 10 days for making
the application. This is at present the only time limit to which
rule 22(3) applies.
(5) Explain how rule 22(4)
is subject to rule 38. Should the reference in rule 22(4) be to
paragraph 6 of Schedule 4 to the 1999 Act?
8. The Department accepts that rule 22(4) should
be subject not to rule 38 itself, but to paragraph 6 of Schedule
4 to the 1999 Act, which is referred to in rule 38. Rule 22(4)
will be amended at the next opportunity. The Department apologises
for this error.
(6) Rule 33(1) permits the
appellate authority to dispose of an appeal in accordance with
paragraph (2) where a party has failed to comply with a direction
and it "is satisfied in all the circumstances, including
the extent of the failure and any reasons for it, that it is necessary
to have regard to the overriding objective in rule 30(2)."
Explain the meaning of the underlined words.
9. Rule 30(2) provides that the overriding objective
is "to secure the just, timely and effective disposal of
appeals...". The Department accepts that it is always necessary
for an appellate authority to have regard to the overriding objective,
and that the requirement in rule 33(1) that the appellate authority
should be satisfied "that it is necessary to have regard
to the overriding objective" is therefore otiose. The intended
meaning of this provision was that the appellate authority should
be satisfied that, in order to further the overriding objective,
it should dispose of the appeal in accordance with rule 33(2).
An appropriate amendment will be made at the next opportunity.
The Department apologises for this error.
14 November 2000