Asylum and Immigration (Treatment of Claimants, etc.) Bill

House of Lords

Session 2003 - 04
Internet Publications
Other Bills before Parliament

Asylum and Immigration (Treatment of Claimants, etc.) Bill

Asylum and Immigration (Treatment of Claimants, etc.) Bill
14

Appeals
15
Unification of appeal system
(1)
For section 81 of the Nationality, Immigration and Asylum Act 2002 (c. 41)
(appeals: adjudicators) substitute—
“Appeal to Tribunal
5
81
The Asylum and Immigration Tribunal
(1)
There shall be a tribunal to be known as the Asylum and Immigration
Tribunal.
(2)
Schedule 4 (which makes provision about the Tribunal) shall have
effect.
10
(3)
A reference in this Part to the Tribunal is a reference to the Asylum and
Immigration Tribunal.”
(2)
In section 82(1) of that Act (right of appeal: general) for “to an adjudicator”
substitute “to the Tribunal”.
(3)
In section 83(2) of that Act (appeal: asylum claim) for “to an adjudicator”
15
substitute “to the Tribunal”.
(4)
For Schedule 4 to that Act (adjudicators) substitute the Schedule set out in
Schedule 1 to this Act (Asylum and Immigration Tribunal).
(5)
The following provisions of that Act shall cease to have effect—
(a)
sections 100 to 103 (Immigration Appeal Tribunal), and
20
(b)
Schedule 5 (Immigration Appeal Tribunal).
(6)
Before section 104 of that Act (pending appeal) insert—
“103A
    Review of Tribunal’s decision
(1)
A party to an appeal under section 82 or 83 may apply to the
appropriate court, on the grounds that the Tribunal made an error of
25
law, for an order requiring the Tribunal to reconsider its decision on the
appeal.
(2)
The appropriate court may make an order under subsection (1)—
(a)
only if it thinks that the Tribunal may have made an error of
law, and
30
(b)
only once in relation to an appeal.
(3)
An application under subsection (1) must be made—
(a)
in the case of an application by the appellant made while he is
in the United Kingdom, within the period of 10 working days
beginning with the date on which he is treated, in accordance
35
with rules under section 106, as receiving notice of the
Tribunal’s decision, and
(b)
in the case of an application by the appellant made while he is
outside the United Kingdom, within the period of 28 days
beginning with the date on which he is treated, in accordance
40
with rules under section 106, as receiving notice of the
Tribunal’s decision, and

Asylum and Immigration (Treatment of Claimants, etc.) Bill
15

(c)
in the case of an application brought by a party to the appeal
other than the appellant, within the period of 10 working days
beginning with the date on which he is treated, in accordance
with rules under section 106, as receiving notice of the
Tribunal’s decision.
5
(4)
But—
(a)
rules of court may specify days to be disregarded in applying
subsection (3)(a), (b) or (c), and
(b)
the appropriate court may permit an application under
subsection (1) to be made outside the period specified in
10
subsection (3) where it thinks that the application could not
reasonably practicably have been made within that period.
(5)
An application under subsection (1) shall be determined by reference
only to written submissions of the applicant.
(6)
A decision of the appropriate court on an application under subsection
15
(1) shall be final.
(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, 103C or 103E.
20
(8)
This section does not apply to a decision of the Tribunal where its
jurisdiction is exercised by three or more members.
(9)
In this section “the appropriate court” means—
(a)
in relation to an appeal decided in England or Wales, the High
Court,
25
(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 High
Court in Northern Ireland.
(10)
An application under subsection (1) to the Court of Session shall be to
30
the Outer House.
103B
     Appeal from Tribunal following reconsideration
(1)
Where an appeal to the Tribunal has been reconsidered, a party to the
appeal may bring a further appeal on a point of law to the appropriate
appellate court.
35
(2)
In subsection (1) the reference to reconsideration is to reconsideration
pursuant to—
(a)
an order under section 103A(1), or
(b)
remittal to the Tribunal under this section or under section 103C
or 103E.
40
(3)
An appeal under subsection (1) may be brought only with the
permission of—
(a)
the Tribunal, or
(b)
if the Tribunal refuses permission, the appropriate appellate
court.
45

Asylum and Immigration (Treatment of Claimants, etc.) Bill
16

(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;
5
(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—
10
(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
15
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
20
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—
25
(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;
30
(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—
35

“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
40
Inner House.
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.
45

Asylum and Immigration (Treatment of Claimants, etc.) Bill
17

(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
5
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
10
(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
power in subsections (2) and (4).
(6)
Regulations under subsection (5) may, in particular, make provision—
15
(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;
20
(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 (5) may make provision—
(a)
conferring a function on the Legal Services Commission;
25
(b)
modifying a duty or power of the Legal Services Commission in
respect of compliance with orders under subsection (4);
(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.
30
(8)
Before making regulations under subsection (5) 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
35
(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 3 to
40
the Access to Justice (Northern Ireland) Order 2003 (S.I. 2003/
435 (N.I. 10)), and
(b)
with any other necessary modifications.