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


Asylum and Immigration (Treatment of Claimants, etc.) Bill
Schedule 2 — Asylum and Immigration Tribunal: Consequential Amendments and Transitional Provision
Part 2 — Transitional Provision

44

 

23    (1)  

Section 112 (regulations, &c.) shall be amended as follows.

      (2)  

In subsection (2) after “Regulations and rules under this Part” insert “, other

than regulations under section 103D(3),”.

      (3)  

For subsection (6) substitute—

“(6)   

Regulations under section 103D(3)—

5

(a)   

must be made by statutory instrument, and

(b)   

shall not be made unless a draft has been laid before and

approved by resolution of each House of Parliament.

(7)   

An order under paragraph 4 of Schedule 4—

(a)   

may include consequential or incidental provision (which

10

may include provision amending, or providing for the

construction of, a reference in an enactment, instrument or

other document to a member of the Asylum and Immigration

Tribunal),

(b)   

must be made by statutory instrument, and

15

(c)   

shall be subject to annulment in pursuance of a resolution of

either House of Parliament.”

Access to Justice (Northern Ireland) Order 2003 (S.I. 2003/435 (N.I. 10))

24    (1)  

For paragraph 2(i) of Schedule 2 to the Access to Justice (Northern Ireland)

Order 2003 (civil legal services: excluded services) substitute—

20

“(i)   

proceedings before the Asylum and Immigration Tribunal

or the Special Immigration Appeals Commission,”.

      (2)  

The amendment made by sub-paragraph (1) is without prejudice to any

power to amend or revoke the provision inserted by that sub-paragraph.

Part 2

25

Transitional Provision

25         

In this Part “commencement” means the coming into force of section 15.

26         

A person who immediately before commencement is, or is to be treated as,

an adjudicator appointed under section 81 of the Nationality, Immigration

and Asylum Act 2002 (c. 41) (appeals) (as it has effect before

30

commencement) shall be treated as having been appointed as a member of

the Asylum and Immigration Tribunal under paragraph 1 of Schedule 4 to

that Act (as it has effect after commencement) immediately after

commencement.

27         

A person who immediately before commencement is a legally qualified

35

member of the Immigration Appeal Tribunal (within the meaning of

Schedule 5 to that Act) shall be treated as having been appointed as a

member of the Asylum and Immigration Tribunal under paragraph 1 of

Schedule 4 to that Act immediately after commencement.

28         

A person who immediately before commencement is a member of staff of

40

adjudicators appointed or treated as appointed under section 81 of the

Nationality, Immigration and Asylum Act 2002 or of the Immigration

Appeal Tribunal shall be treated as having been appointed as a member of

the staff of the Asylum and Immigration Tribunal under paragraph 9 of

 

 

Asylum and Immigration (Treatment of Claimants, etc.) Bill
Schedule 2 — Asylum and Immigration Tribunal: Consequential Amendments and Transitional Provision
Part 2 — Transitional Provision

45

 

Schedule 4 to the Nationality, Immigration and Asylum Act 2002

immediately after commencement.

29    (1)  

This paragraph shall have effect in relation to applications under section

103A(1) or for permission under section 103A(4)(b) made—

(a)   

during the period beginning with commencement and ending with

5

such date as may be appointed by order of the Lord Chancellor, and

(b)   

during any such later period as may be appointed by order of the

Lord Chancellor.

      (2)  

An application in relation to which this paragraph has effect shall be

considered by a member of the Asylum and Immigration Tribunal (in

10

accordance with arrangements under paragraph 8(1) of Schedule 4 to the

Nationality, Immigration and Asylum Act 2002 (c. 41) (inserted by Schedule

1 above)).

      (3)  

For the purposes of sub-paragraph (2)—

(a)   

references in section 103A to the appropriate court shall be taken as

15

references to the member of the Tribunal who is considering the

application or who is to consider the application,

(b)   

rules of court made for the purpose of section 103A(4)(a) in relation

to the court to which an application is made shall have effect in

relation to the application despite the fact that it is considered

20

outside the appropriate court, and

(c)   

section 103A(6) shall be subject to sub-paragraph (5) below.

      (4)  

Where a member of the Tribunal considers an application under section

103A(1) or 103A(4)(b) by virtue of this paragraph—

(a)   

he may make an order under section 103A(1) or grant permission

25

under section 103A(4)(b), and

(b)   

if he does not propose to make an order or grant permission, he shall

notify the appropriate court and the applicant.

      (5)  

Where notice is given under sub-paragraph (4)(b)—

(a)   

the applicant may notify the appropriate court that he wishes the

30

court to consider his application under section 103A(1) or 103A(4)(b),

(b)   

the notification must be given within the period of 10 working days

beginning with the date on which the applicant is treated, in

accordance with rules under section 106 of the Nationality,

Immigration and Asylum Act 2002, as receiving the notice under

35

sub-paragraph (4)(b) above, and

(c)   

the appropriate court shall consider the application under section

103A(1) or 103A(4)(b) if—

(i)   

the applicant has given notice in accordance with paragraphs

(a) and (b) above, or

40

(ii)   

the applicant has given notice under paragraph (a) above

outside the period specified in paragraph (b) above, but the

appropriate court concludes that the application should be

considered on the grounds that the notice could not

reasonably practicably have been given within that period.

45

      (6)  

Rules of court may specify days to be disregarded in applying sub-

paragraph (5)(b).

      (7)  

A member of the Tribunal considering an application under section 103A(1)

by virtue of this paragraph may not make a reference under section 103C.

      (8)  

An order under sub-paragraph (1)(a) or (b)—

50

 

 

Asylum and Immigration (Treatment of Claimants, etc.) Bill
Schedule 3 — Removal of Asylum Seeker to Safe Country
Part 2 — First List of Safe Countries (Refugee Convention and Human Rights)

46

 

(a)   

shall be made by statutory instrument,

(b)   

shall not be made unless the Lord Chancellor has consulted such

persons as he thinks appropriate, and

(c)   

shall not be made unless a draft has been laid before and approved

by resolution of each House of Parliament.

5

Schedule 3

Section 20

 

Removal of Asylum Seeker to Safe Country

Part 1

Introductory

1     (1)  

In this Schedule—

10

“asylum claim” means a claim by a person that to remove him from or

require him to leave the United Kingdom would breach the United

Kingdom’s obligations under the Refugee Convention,

“Convention rights” means the rights identified as Convention rights

by section 1 of the Human Rights Act 1998 (c. 42) (whether or not in

15

relation to a State that is a party to the Convention),

“human rights claim” means a claim by a person that to remove him

from or require him to leave the United Kingdom would be

unlawful under section 6 of the Human Rights Act 1998 (public

authority not to act contrary to Convention) as being incompatible

20

with his Convention rights,

“immigration appeal” means an appeal under section 82(1) of the

Nationality, Immigration and Asylum Act 2002 (c. 41) (appeal

against immigration decision), and

“the Refugee Convention” means the Convention relating to the

25

Status of Refugees done at Geneva on 28th July 1951 and its

Protocol.

      (2)  

In this Schedule a reference to anything being done in accordance with the

Refugee Convention is a reference to the thing being done in accordance

with the principles of the Convention, whether or not by a signatory to it.

30

Part 2

First List of Safe Countries (Refugee Convention and Human Rights)

2          

This Part applies to—

(a)   

Austria,

(b)   

Belgium,

35

(c)   

Republic of Cyprus,

(d)   

Czech Republic,

(e)   

Denmark,

(f)   

Estonia,

(g)   

Finland,

40

(h)   

France,

(i)   

Germany,

 

 

Asylum and Immigration (Treatment of Claimants, etc.) Bill
Schedule 3 — Removal of Asylum Seeker to Safe Country
Part 2 — First List of Safe Countries (Refugee Convention and Human Rights)

47

 

(j)   

Greece,

(k)   

Hungary,

(l)   

Iceland,

(m)   

Ireland,

(n)   

Italy,

5

(o)   

Latvia,

(p)   

Lithuania,

(q)   

Luxembourg,

(r)   

Malta,

(s)   

Netherlands,

10

(t)   

Norway,

(u)   

Poland,

(v)   

Portugal,

(w)   

Slovak Republic,

(x)   

Slovenia,

15

(y)   

Spain, and

(z)   

Sweden.

3     (1)  

This paragraph applies for the purposes of the determination by any person,

tribunal or court whether a person who has made an asylum claim or a

human rights claim may be removed—

20

(a)   

from the United Kingdom, and

(b)   

to a State of which he is not a national or citizen.

      (2)  

A State to which this Part applies shall be treated, in so far as relevant to the

question mentioned in sub-paragraph (1), as a place—

(a)   

where a person’s life and liberty are not threatened by reason of his

25

race, religion, nationality, membership of a particular social group or

political opinion,

(b)   

from which a person will not be sent to another State in

contravention of his Convention rights, and

(c)   

from which a person will not be sent to another State otherwise than

30

in accordance with the Refugee Convention.

4          

Section 77 of the Nationality, Immigration and Asylum Act 2002 (c. 41) (no

removal while claim for asylum pending) shall not prevent a person who

has made a claim for asylum from being removed—

(a)   

from the United Kingdom, and

35

(b)   

to a State to which this Part applies;

           

provided that the Secretary of State certifies that in his opinion the person is

not a national or citizen of the State.

5     (1)  

This paragraph applies where the Secretary of State certifies that—

(a)   

it is proposed to remove a person to a State to which this Part applies,

40

and

(b)   

in the Secretary of State’s opinion the person is not a national or

citizen of the State.

      (2)  

The person may not bring an immigration appeal by virtue of section 92(2)

or (3) of that Act (appeal from within United Kingdom: general).

45

      (3)  

The person may not bring an immigration appeal by virtue of section

92(4)(a) of that Act (appeal from within United Kingdom: asylum or human

rights) in reliance on—

 

 

Asylum and Immigration (Treatment of Claimants, etc.) Bill
Schedule 3 — Removal of Asylum Seeker to Safe Country
Part 3 — Second List of Safe Countries (Refugee Convention and Human Rights(2))

48

 

(a)   

an asylum claim which asserts that to remove the person to a

specified State to which this Part applies would breach the United

Kingdom’s obligations under the Refugee Convention, or

(b)   

a human rights claim in so far as it asserts that to remove the person

to a specified State to which this Part applies would be unlawful

5

under section 6 of the Human Rights Act 1998 because of the

possibility of removal from that State to another State.

      (4)  

The person may not bring an immigration appeal by virtue of section

92(4)(a) of that Act in reliance on a human rights claim to which this sub-

paragraph applies if the Secretary of State certifies that the claim is clearly

10

unfounded; and the Secretary of State shall certify a human rights claim to

which this sub-paragraph applies unless satisfied that the claim is not clearly

unfounded.

      (5)  

Sub-paragraph (4) applies to a human rights claim if, or in so far as, it asserts

a matter other than that specified in sub-paragraph (3)(b).

15

6          

A person who is outside the United Kingdom may not bring an immigration

appeal on any ground that is inconsistent with treating a State to which this

Part applies as a place—

(a)   

where a person’s life and liberty are not threatened by reason of his

race, religion, nationality, membership of a particular social group or

20

political opinion,

(b)   

from which a person will not be sent to another State in

contravention of his Convention rights, and

(c)   

from which a person will not be sent to another State otherwise than

in accordance with the Refugee Convention.

25

Part 3

Second List of Safe Countries (Refugee Convention and Human Rights(2))

7     (1)  

This Part applies to such States as the Secretary of State may by order

specify.

      (2)  

An order under this paragraph—

30

(a)   

shall be made by statutory instrument, and

(b)   

shall not be made unless a draft has been laid before and approved

by resolution of each House of Parliament.

8     (1)  

This paragraph applies for the purposes of the determination by any person,

tribunal or court whether a person who has made an asylum claim may be

35

removed—

(a)   

from the United Kingdom, and

(b)   

to a State of which he is not a national or citizen.

      (2)  

A State to which this Part applies shall be treated, in so far as relevant to the

question mentioned in sub-paragraph (1), as a place—

40

(a)   

where a person’s life and liberty are not threatened by reason of his

race, religion, nationality, membership of a particular social group or

political opinion, and

(b)   

from which a person will not be sent to another State otherwise than

in accordance with the Refugee Convention.

45

 

 

Asylum and Immigration (Treatment of Claimants, etc.) Bill
Schedule 3 — Removal of Asylum Seeker to Safe Country
Part 4 — Third List of Safe Countries: Refugee Convention Only

49

 

9          

Section 77 of the Nationality, Immigration and Asylum Act 2002 (c. 41) (no

removal while claim for asylum pending) shall not prevent a person who

has made a claim for asylum from being removed—

(a)   

from the United Kingdom, and

(b)   

to a State to which this Part applies;

5

           

provided that the Secretary of State certifies that in his opinion the person is

not a national or citizen of the State.

10    (1)  

This paragraph applies where the Secretary of State certifies that—

(a)   

it is proposed to remove a person to a State to which this Part applies,

and

10

(b)   

in the Secretary of State’s opinion the person is not a national or

citizen of the State.

      (2)  

The person may not bring an immigration appeal by virtue of section 92(2)

or (3) of that Act (appeal from within United Kingdom: general).

      (3)  

The person may not bring an immigration appeal by virtue of section

15

92(4)(a) of that Act (appeal from within United Kingdom: asylum or human

rights) in reliance on an asylum claim which asserts that to remove the

person to a specified State to which this Part applies would breach the

United Kingdom’s obligations under the Refugee Convention.

      (4)  

The person may not bring an immigration appeal by virtue of section

20

92(4)(a) of that Act in reliance on a human rights claim if the Secretary of

State certifies that the claim is clearly unfounded; and the Secretary of State

shall certify a human rights claim where this paragraph applies unless

satisfied that the claim is not clearly unfounded.

11         

A person who is outside the United Kingdom may not bring an immigration

25

appeal on any ground that is inconsistent with treating a State to which this

Part applies as a place—

(a)   

where a person’s life and liberty are not threatened by reason of his

race, religion, nationality, membership of a particular social group or

political opinion, and

30

(b)   

from which a person will not be sent to another State otherwise than

in accordance with the Refugee Convention.

Part 4

Third List of Safe Countries: Refugee Convention Only

12    (1)  

This Part applies to such States as the Secretary of State may by order

35

specify.

      (2)  

An order under this paragraph—

(a)   

shall be made by statutory instrument, and

(b)   

shall not be made unless a draft has been laid before and approved

by resolution of each House of Parliament.

40

13    (1)  

This paragraph applies for the purposes of the determination by any person,

tribunal or court whether a person who has made an asylum claim may be

removed—

(a)   

from the United Kingdom, and

(b)   

to a State of which he is not a national or citizen.

45

      (2)  

A State to which this Part applies shall be treated, in so far as relevant to the

question mentioned in sub-paragraph (1), as a place—

 

 

Asylum and Immigration (Treatment of Claimants, etc.) Bill
Schedule 3 — Removal of Asylum Seeker to Safe Country
Part 5 — Countries Certified as Safe for Individuals

50

 

(a)   

where a person’s life and liberty are not threatened by reason of his

race, religion, nationality, membership of a particular social group or

political opinion, and

(b)   

from which a person will not be sent to another State otherwise than

in accordance with the Refugee Convention.

5

14         

Section 77 of the Nationality, Immigration and Asylum Act 2002 (c. 41) (no

removal while claim for asylum pending) shall not prevent a person who

has made a claim for asylum from being removed—

(a)   

from the United Kingdom, and

(b)   

to a State to which this Part applies;

10

           

provided that the Secretary of State certifies that in his opinion the person is

not a national or citizen of the State.

15    (1)  

This paragraph applies where the Secretary of State certifies that—

(a)   

it is proposed to remove a person to a State to which this Part applies,

and

15

(b)   

in the Secretary of State’s opinion the person is not a national or

citizen of the State.

      (2)  

The person may not bring an immigration appeal by virtue of section 92(2)

or (3) of that Act (appeal from within United Kingdom: general).

      (3)  

The person may not bring an immigration appeal by virtue of section

20

92(4)(a) of that Act (appeal from within United Kingdom: asylum or human

rights) in reliance on an asylum claim which asserts that to remove the

person to a specified State to which this Part applies would breach the

United Kingdom’s obligations under the Refugee Convention.

      (4)  

The person may not bring an immigration appeal by virtue of section

25

92(4)(a) of that Act in reliance on a human rights claim if the Secretary of

State certifies that the claim is clearly unfounded.

16         

A person who is outside the United Kingdom may not bring an immigration

appeal on any ground that is inconsistent with treating a State to which this

Part applies as a place—

30

(a)   

where a person’s life and liberty are not threatened by reason of his

race, religion, nationality, membership of a particular social group or

political opinion, and

(b)   

from which a person will not be sent to another State otherwise than

in accordance with the Refugee Convention.

35

Part 5

Countries Certified as Safe for Individuals

17         

This Part applies to a person who has made an asylum claim if the Secretary

of State certifies that—

(a)   

it is proposed to remove the person to a specified State,

40

(b)   

in the Secretary of State’s opinion the person is not a national or

citizen of the specified State, and

(c)   

in the Secretary of State’s opinion the specified State is a place—

(i)   

where the person’s life and liberty will not be threatened by

reason of his race, religion, nationality, membership of a

45

particular social group or political opinion, and

 

 

 
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