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


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

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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

5

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

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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;

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(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.

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(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

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(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

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not include a reference to—

(a)   

a procedural, ancillary or preliminary decision, or

(b)   

a decision following remittal under section 103B or 103C.”

(7)   

Schedule 2 (which makes amendments consequential on this section, and

transitional provision) shall have effect.

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(8)   

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 29(5)(b) of Schedule 2 to this Act.

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(9)   

An order under subsection (8)—

(a)   

may make provision generally or only for specified cases or

circumstances,

(b)   

may make different provision for different cases or circumstances,

(c)   

shall be made by statutory instrument, and

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

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(d)   

shall be subject to annulment in pursuance of a resolution of either

House of Parliament.

(10)   

Before making an order under subsection (8) the Lord Chancellor shall

consult—

(a)   

the Lord Chief Justice, if the order affects proceedings in England and

5

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.

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16      

Unfounded human rights or asylum claim

(1)   

Section 94 of the Nationality, Immigration and Asylum Act 2002 (c. 41) (no

appeal from within United Kingdom for unfounded human rights or asylum

claim) shall be amended as follows.

(2)   

After subsection (1) insert—

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“(1A)   

A person may not bring an appeal against an immigration decision of a

kind specified in section 82(2)(c), (d) or (e) in reliance on section 92(2) if

the Secretary of State certifies that the claim or claims mentioned in

subsection (1) above is or are clearly unfounded.”

(3)   

In subsection (2) for “in reliance on section 92(4)” substitute “in reliance on

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section 92(4)(a)”.

(4)   

In subsection (4) omit paragraphs (a) to (j).

(5)   

After subsection (5) insert—

“(5A)   

If the Secretary of State is satisfied that the statements in subsection (5)

(a) and (b) are true of a State or part of a State in relation to a description

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of person, an order under subsection (5) may add the State or part to the

list in subsection (4) in respect of that description of person.

(5B)   

Where a State or part of a State is added to the list in subsection (4) in

respect of a description of person, subsection (3) shall have effect in

relation to a claimant only if the Secretary of State is satisfied that he is

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within that description (as well as being satisfied that he is entitled to

reside in the State or part).

(5C)   

A description for the purposes of subsection (5A) may refer to—

(a)   

gender,

(b)   

language,

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(c)   

race,

(d)   

religion,

(e)   

nationality,

(f)   

membership of a social or other group,

(g)   

political opinion, or

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(h)   

any other attribute or circumstance that the Secretary of State

thinks appropriate.”

 

 

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

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(6)   

For subsection (6) substitute—

“(6)   

The Secretary of State may by order amend the list in subsection (4) so

as to omit a State or part added under subsection (5); and the omission

may be—

(a)   

general, or

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(b)   

effected so that the State or part remains listed in respect of a

description of person.”

(7)   

After subsection (6) insert—

“(6A)   

Subsection (3) shall not apply in relation to an asylum claimant or

human rights claimant who—

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(a)   

is the subject of a certificate under section 2 or 70 of the

Extradition Act 2003 (c. 41),

(b)   

is in custody pursuant to arrest under section 5 of that Act,

(c)   

is the subject of a provisional warrant under section 73 of that

Act,

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(d)   

is the subject of an authority to proceed under section 7 of the

Extradition Act 1989 (c. 33) or an order under paragraph 4(2) of

Schedule 1 to that Act, or 

(e)   

is the subject of a provisional warrant under section 8 of that Act

or of a warrant under paragraph 5(1)(b) of Schedule 1 to that

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Act.”

(8)   

After section 112(5) of that Act (orders, &c.) insert—

“(5A)   

If an instrument makes provision under section 94(5) and 94(6)—

(a)   

subsection (4)(b) above shall apply, and

(b)   

subsection (5)(b) above shall not apply.”

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17      

Appeal from within United Kingdom

For section 92(3) of the Nationality, Immigration and Asylum Act 2002 (c. 41)

(appeal from within United Kingdom: person with entry clearance or work

permit) substitute —

“(3)   

This section also applies to an appeal against refusal of leave to enter

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the United Kingdom if—

(a)   

at the time of the refusal the appellant is in the United Kingdom,

and

(b)   

on his arrival in the United Kingdom the appellant had entry

clearance.

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(3A)   

But this section does not apply by virtue of subsection (3) if subsection

(3B) or (3C) applies to the refusal of leave to enter.

(3B)   

This subsection applies to a refusal of leave to enter which is a deemed

refusal under paragraph 2A(9) of Schedule 2 to the Immigration Act

1971 (c. 77) resulting from cancellation of leave to enter by an

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immigration officer—

(a)   

under paragraph 2A(8) of that Schedule, and

(b)   

on the grounds specified in paragraph 2A(2A) of that Schedule.

 

 

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

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(3C)   

This subsection applies to a refusal of leave to enter which specifies that

the grounds for refusal are that the leave is sought for a purpose other

than that specified in the entry clearance.

(3D)   

This section also applies to an appeal against refusal of leave to enter

the United Kingdom if at the time of the refusal the appellant—

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(a)   

is in the United Kingdom,

(b)   

has a work permit, and

(c)   

is any of the following (within the meaning of the British

Nationality Act 1981 (c. 61))—

(i)   

a British overseas territories citizen,

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(ii)   

a British Overseas citizen,

(iii)   

a British National (Overseas),

(iv)   

a British protected person, or

(v)   

a British subject.”

18      

Seamen and aircrews: right of appeal

15

In section 82(2) of the Nationality, Immigration and Asylum Act 2002 (c. 41)

after paragraph (i) insert—

“(ia)   

a decision that a person is to be removed from the United

Kingdom by way of directions under paragraph 12(2) of

Schedule 2 to the Immigration Act 1971 (c. 77) (seamen and

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aircrews),”.

19      

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—

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“(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

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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

(suspected international terrorist: Special Immigration Appeals Commission:

procedure) for “section 25 or 26 of this Act” substitute “section 24, 25 or 26 of

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this Act”.

Removal and detention

20      

Removing asylum seeker to safe country

(1)   

Schedule 3 (which concerns the removal of persons claiming asylum to

countries known to protect refugees and to respect human rights) shall have

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effect.

 

 

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

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(2)   

Sections 11 and 12 of the Immigration and Asylum Act 1999 (c. 33) (removal of

asylum claimant to country under standing or other arrangements) shall cease

to have effect.

(3)   

The following provisions of the Nationality, Immigration and Asylum Act 2002

(c. 41) shall cease to have effect—

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(a)   

section 80 (new section 11 of 1999 Act), and

(b)   

section 93 (appeal from within United Kingdom: “third country”

removal).

21      

Detention pending deportation

(1)   

In paragraph 2(1) of Schedule 3 to the Immigration Act 1971 (c. 77) (detention

10

pending deportation on recommendation by court) for the words “and that

person is neither detained in pursuance of the sentence or order of any court

nor for the time being released on bail by any court having power so to release

him” substitute “and that person is not detained in pursuance of the sentence

or order of any court”.

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(2)   

In paragraph 2(2) of that Schedule (detention following notice of deportation)

for the words “and he is neither detained in pursuance of the sentence or order

of a court nor for the time being released on bail by a court having power so to

release him” substitute “and he is not detained in pursuance of the sentence or

order of a court”.

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22      

Deportation or removal: cooperation

(1)   

The Secretary of State may require a person to take specified action if the

Secretary of State thinks that—

(a)   

the action will or may enable a travel document to be obtained by or for

the person, and

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(b)   

possession of the travel document will facilitate the person’s

deportation or removal from the United Kingdom.

(2)   

In particular, the Secretary of State may require a person to—

(a)   

provide information or documents to the Secretary of State or to any

other person;

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(b)   

obtain information or documents;

(c)   

provide fingerprints, submit to the taking of a photograph or provide

information, or submit to a process for the recording of information,

about external physical characteristics (including, in particular,

features of the iris or any other part of the eye);

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(d)   

make, or consent to or cooperate with the making of, an application to

a person acting for the government of a State other than the United

Kingdom;

(e)   

cooperate with a process designed to enable determination of an

application;

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(f)   

complete a form accurately and completely;

(g)   

attend an interview and answer questions accurately and completely;

(h)   

make an appointment.

(3)   

A person commits an offence if he fails without reasonable excuse to comply

with a requirement of the Secretary of State under subsection (1).

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

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(4)   

A person guilty of an offence under subsection (3) shall be liable—

(a)   

on conviction on indictment, to imprisonment for a term not exceeding

two years, to a fine or to both, or

(b)   

on summary conviction, to imprisonment for a term not exceeding

twelve months, to a fine not exceeding the statutory maximum or to

5

both.

(5)   

If a constable or immigration officer reasonably suspects that a person has

committed an offence under subsection (3) he may arrest the person without

warrant.

(6)   

An offence under subsection (3) shall be treated as—

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(a)   

a relevant offence for the purposes of sections 28B and 28D of the

Immigration Act 1971 (c. 77) (search, entry and arrest), and

(b)   

an offence under Part III of that Act (criminal proceedings) for the

purposes of sections 28(4), 28E, 28G and 28H (search after arrest, &c.) of

that Act.

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(7)   

In subsection (1)—

   

“travel document” means a passport or other document which is issued

by or for Her Majesty’s Government or the government of another State

and which enables or facilitates travel from the United Kingdom to

another State, and

20

   

“removal from the United Kingdom” means removal under—

(a)   

Schedule 2 to the Immigration Act 1971 (control on entry)

(including a provision of that Schedule as applied by another

provision of the Immigration Acts),

(b)   

section 10 of the Immigration and Asylum Act 1999 (c. 33)

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(removal of person unlawfully in United Kingdom), or

(c)   

Schedule 3 to this Act.

(8)   

While sections 11 and 12 of the Immigration and Asylum Act 1999 continue to

have effect, the reference in subsection (7)(c) above to Schedule 3 to this Act

shall be treated as including a reference to those sections.

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(9)   

In so far as subsection (3) extends to England and Wales, subsection (4)(b) shall,

until the commencement of section 154 of the Criminal Justice Act 2003 (c. 44)

(increased limit on magistrates’ power of imprisonment), have effect as if the

reference to twelve months were a reference to six months.

(10)   

In so far as subsection (3) extends to Scotland, subsection (4)(b) shall have effect

35

as if the reference to twelve months were a reference to six months.

(11)   

In so far as subsection (3) extends to Northern Ireland, subsection (4)(b) shall

have effect as if the reference to twelve months were a reference to six months.

23      

Electronic monitoring

(1)   

In this section—

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(a)   

“residence restriction” means a restriction as to residence imposed

under—

(i)   

paragraph 21 of Schedule 2 to the Immigration Act 1971 (control

on entry) (including that paragraph as applied by another

provision of the Immigration Acts), or

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(ii)   

Schedule 3 to that Act (deportation),

 

 

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

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(b)   

“reporting restriction” means a requirement to report to a specified

person imposed under any of those provisions,

(c)   

“employment restriction” means a restriction as to employment or

occupation imposed under any of those provisions, and

(d)   

“immigration bail” means—

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(i)   

release under a provision of the Immigration Acts on entry into

a recognizance or bail bond,

(ii)   

bail granted in accordance with a provision of the Immigration

Acts by a court, a justice of the peace, the sheriff, the Asylum

and Immigration Tribunal, the Secretary of State or an

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immigration officer (but not by a police officer), and

(iii)   

bail granted by the Special Immigration Appeals Commission.

(2)   

Where a residence restriction is imposed on an adult—

(a)   

he may be required to cooperate with electronic monitoring, and

(b)   

failure to comply with a requirement under paragraph (a) shall be

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treated for all purposes of the Immigration Acts as failure to observe

the residence restriction.

(3)   

Where a reporting restriction could be imposed on an adult—

(a)   

he may instead be required to cooperate with electronic monitoring,

and

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(b)   

the requirement shall be treated for all purposes of the Immigration

Acts as a reporting restriction.

(4)   

Immigration bail may be granted to an adult subject to a requirement that he

cooperate with electronic monitoring; and the requirement may (but need not)

be imposed as a condition of a recognizance or bail bond.

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(5)   

In this section a reference to requiring an adult to cooperate with electronic

monitoring is a reference to requiring him to cooperate with such

arrangements as the person imposing the requirement may specify for

detecting and recording by electronic means the location of the adult, or his

presence in or absence from a location—

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(a)   

at specified times,

(b)   

during specified periods of time, or

(c)   

throughout the currency of the arrangements.

(6)   

In particular, arrangements for the electronic monitoring of an adult—

(a)   

may require him to wear a device;

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(b)   

may require him to make specified use of a device;

(c)   

may prohibit him from causing or permitting damage of or interference

with a device;

(d)   

may prohibit him from taking or permitting action that would or might

prevent the effective operation of a device;

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(e)   

may require him to communicate in a specified manner and at specified

times or during specified periods of time;

(f)   

may involve the performance of functions by persons other than the

person imposing the requirement to cooperate with electronic

monitoring (and those functions may relate to any aspect or condition

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of a residence restriction, of a reporting restriction, of an employment

restriction, of a requirement under this section or of immigration bail).

(7)   

In this section “adult” means an individual who is at least 18 years old.

 

 

 
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