Joint Committee on Statutory Instruments First Report


Second Memorandum by the Lord Chancellor's Department


1. The Lord Chancellor's Department submits this Memorandum in response to the Committee's request dated 22 November 2000, on the following point:

    Rule 7(2), in effect, confers a general power on an adjudicator to extend the time for giving notice of an appeal where the conditions set out in the rules are met. Rule 12(5), which applies where the same question falls to be determined as a preliminary issue, repeats the power with the additional restriction that time may not be extended where a deportation order is in force in respect of the appellant. Explain why the provisions are drafted differently and why rule 12(5) does not refer to rule 7(2).

2. These Rules which relate to both immigration and asylum matters, supersede the Immigration Appeals (Procedure) Rules 1984 (S.I. 1984/2041) (the 1984 Rules) and the Asylum Appeals (Procedure) Rules 1996 (S.I. 1996/2070) (the 1996 Rules), which respectively dealt with immigration appeals and asylum appeals. These two instruments treated extension of time by the appellate authority differently. Rule 11(4) of the Immigration Appeals (Procedure) Rules 1984 provided:

    "Where the respondent to an appeal makes such an allegation as is mentioned in Rule 8(3)(b) and the appellate authority determines, as a preliminary issue, that the notice of appeal was not given within the period permitted by Rule 4, then, except where a deportation order is for the time being in force in respect of the appellant, the appellate authority shall not be required to dismiss the appeal but may allow it to proceed if the authority is of the opinion that, by reason of special circumstances, it is just and right to do so; and, in such a case, the notice of appeal shall be treated for all purposes as if it had been given in accordance with Rule 4" [emphasis added].

3. The 1984 Rules were made by the then Home Secretary. The 1996 Rules, which were made by the former Lord Chancellor, provide in rule 41(2):

    "A special adjudicator shall not extend the time limit for giving notice of appeal except where it is in the interests of justice and he is satisfied that the party in default was prevented from complying with the time limit by circumstances beyond his control."

4. The present rules combine elements from both sets of earlier rules. They make provision for appeals out of time both where the respondent has raised the issue of lateness, which is considered as a preliminary issue under rule 12(5), and where the respondent has not made any such allegation (nor has himself allowed the appeal to proceed under rule 7(1)), which can be considered by the adjudicator under rule 7(2). Rule 12(5) is derived from rule 11(4) of the 1984 Rules and rule 7(2) is derived from rule 41(2) of the 1996 Rules.

5. It is regretted that, as a result of their derivation from separate sets of rules, there is an inconsistency as between rules 7(2) and 12(5). This will be corrected in the next instrument amending these Rules. It is envisaged such an instrument will be made during the first half of next year.

28 November 2000

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