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Make provision about immigration, asylum and nationality; and for |
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Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and |
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consent of the Lords Spiritual and Temporal, and Commons, in this present |
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Parliament assembled, and by the authority of the same, as follows:— |
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1 | Variation of leave to enter or remain |
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After section 83 of the Nationality, Immigration and Asylum Act 2002 (c. 41) |
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(right of appeal: asylum claim) insert— |
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“83A | Appeal: variation of limited leave |
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(1) | This section applies where— |
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(a) | a person has made an asylum claim, |
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(b) | he was granted limited leave to enter or remain in the United |
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Kingdom as a refugee within the meaning of the Refugee |
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(c) | a decision is made that he is not a refugee, and |
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(d) | following the decision specified in paragraph (c) he has limited |
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leave to enter or remain in the United Kingdom otherwise than |
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(2) | The person may appeal to the Tribunal against the decision to curtail or |
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to refuse to extend his limited leave.” |
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In section 82(2)(g) of the Nationality, Immigration and Asylum Act 2002 (c. 41) |
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(right of appeal: removal) for “section 10(1)(a), (b) or (c)” substitute “section |
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10(1)(a), (b), (ba) or (c)”. |
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After section 84(3) of the Nationality, Immigration and Asylum Act 2002 (c. 41) |
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“(4) | An appeal under section 83A must be brought on the grounds that |
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removal of the appellant from the United Kingdom would breach the |
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United Kingdom’s obligations under the Refugee Convention.” |
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(1) | For sections 88A, 90 and 91 of the Nationality, Immigration and Asylum Act |
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2002 (restricted right of appeal in relation to refusal of entry clearance for |
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visitor or student) substitute— |
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(1) | A person may not appeal under section 82(1) against refusal of an |
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application for entry clearance unless the application was made for the |
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(a) | visiting a person of a class or description prescribed by |
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regulations for the purpose of this subsection, or |
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(b) | entering as the dependant of a person in circumstances |
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prescribed by regulations for the purpose of this subsection. |
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(2) | Regulations under subsection (1) may, in particular— |
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(a) | make provision by reference to whether the applicant is a |
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member of the family (within such meaning as the regulations |
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may assign) of the person he seeks to visit; |
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(b) | provide for the determination of whether one person is |
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(c) | make provision by reference to the circumstances of the |
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applicant, of the person whom the applicant seeks to visit or on |
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whom he depends, or of both (and the regulations may, in |
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particular, include provision by reference to— |
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(i) | whether or not a person is lawfully settled in the United |
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Kingdom within such meaning as the regulations may |
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(ii) | the duration of two individuals’ residence together); |
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(d) | make provision by reference to an applicant’s purpose in |
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(e) | make provision by reference to immigration rules; |
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(a) | does not prevent the bringing of an appeal on either or both of |
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the grounds referred to in section 84(1)(b) and (c), and |
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(b) | is without prejudice to the effect of section 88 in relation to an |
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appeal under section 82(1) against refusal of entry clearance.” |
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(2) | For section 23(1) of the Immigration and Asylum Act 1999 (c. 33) (monitoring |
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refusals of entry clearance) substitute— |
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“(1) | The Secretary of State must appoint a person to monitor, in such |
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manner as the Secretary of State may determine, refusals of entry |
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clearance in cases where, as a result of section 88A of the Nationality, |
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Immigration and Asylum Act 2002 (c. 41) (entry clearance: non-family |
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visitors and students), an appeal under section 82(1) of that Act may be |
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brought only on the grounds referred to in section 84(1)(b) and (c) of |
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that Act (racial discrimination and human rights).” |
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5 | Failure to provide documents |
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After section 88(2)(b) of the Nationality, Immigration and Asylum Act 2002 |
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(c. 41) (appeal: ineligibility) insert— |
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“(ba) | has failed to supply a medical report or a medical certificate in |
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accordance with a requirement of immigration rules,”. |
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6 | Refusal of leave to enter |
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For section 89 of the Nationality, Immigration and Asylum Act 2002 (appeal |
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against refusal of leave to enter: visitor or student without entry clearance) |
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“89 | Refusal of leave to enter |
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(1) | A person may not appeal under section 82(1) against refusal of leave to |
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enter the United Kingdom unless— |
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(a) | on his arrival in the United Kingdom he had entry clearance, |
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(b) | the purpose of entry specified in the entry clearance is the same |
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as that specified in his application for leave to enter. |
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(2) | Subsection (1) does not prevent the bringing of an appeal on any or all |
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of the grounds referred to in section 84(1)(b), (c) and (g).” |
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(1) | After section 97 of the Nationality, Immigration and Asylum Act 2002 (c. 41) |
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(appeals: national security) insert— |
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“97A | National security: deportation |
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(1) | This section applies where the Secretary of State certifies that the |
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decision to make a deportation order in respect of a person was taken |
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on the grounds that his removal from the United Kingdom would be in |
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the interests of national security. |
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(2) | Where this section applies— |
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(a) | section 79 shall not apply, |
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(b) | the Secretary of State shall be taken to have certified the decision |
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to make the deportation order under section 97, and |
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(c) | for the purposes of section 2(5) of the Special Immigration |
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Appeals Commission Act 1997 (c. 68) (appeals from within |
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United Kingdom) it shall be assumed that section 92 of this |
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(i) | would not apply to an appeal against the decision to |
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make the deportation order by virtue of section 92(2) to |
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(ii) | would not apply to an appeal against that decision by |
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virtue of section 92(4)(a) in respect of an asylum claim, |
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(iii) | would be capable of applying to an appeal against that |
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decision by virtue of section 92(4)(a) in respect of a |
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human rights claim unless the Secretary of State certifies |
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that the removal of the person from the United Kingdom |
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would not breach the United Kingdom’s obligations |
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under the Human Rights Convention. |
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(3) | A person in respect of whom a certificate is issued under subsection |
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(2)(c)(iii) may appeal to the Special Immigration Appeals Commission |
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against the issue of the certificate; and for that purpose the Special |
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Immigration Appeals Commission Act 1997 shall apply as to an appeal |
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against an immigration decision to which section 92 of this Act applies. |
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(4) | The Secretary of State may repeal this section by order.” |
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(2) | In section 112 of that Act (regulations, &c.) after subsection (5A) insert— |
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“(5B) | An order under section 97A(4)— |
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(a) | must be made by statutory instrument, |
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(b) | shall be subject to annulment in pursuance of a resolution of |
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either House of Parliament, and |
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(c) | may include transitional provision.” |
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(1) | Section 103D of the Nationality, Immigration and Asylum Act 2002 (c. 41) |
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(reconsideration: legal aid) shall be amended as follows. |
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(2) | In subsection (2) for the words “where the Tribunal has decided an appeal |
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following reconsideration pursuant to an order made” substitute “where an |
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order for reconsideration is made”. |
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(3) | For subsection (3) substitute— |
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“(3) | The Tribunal may order payment out of that Fund of the appellant’s |
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(a) | in respect of the application for reconsideration; |
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(b) | in respect of preparation for reconsideration; |
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(c) | in respect of the reconsideration.” |
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For section 104(4) of the Nationality, Immigration and Asylum Act 2002 |
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(pending appeal: deemed abandonment) substitute— |
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“(4) | An appeal under section 82(1) brought by a person while he is in the |
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United Kingdom shall be treated as abandoned if the appellant leaves |
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(4A) | An appeal under section 82(1) brought by a person while he is in the |
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United Kingdom shall be treated as abandoned if the appellant is |
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granted leave to enter or remain in the United Kingdom (subject to |
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subsections (4B) and (4C)). |
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(4B) | Subsection (4A) shall not apply to an appeal in so far as it is brought on |
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the ground relating to the Refugee Convention specified in section |
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84(1)(g) where the appellant— |
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(a) | is granted leave to enter or remain in the United Kingdom for a |
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period exceeding 12 months, and |
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(b) | gives notice, in accordance with any relevant procedural rules |
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(which may include provision about timing), that he wishes to |
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pursue the appeal in so far as it is brought on that ground. |
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(4C) | Subsection (4A) shall not apply to an appeal in so far as it is brought on |
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the ground specified in section 84(1)(b) where the appellant gives |
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notice, in accordance with any relevant procedural rules (which may |
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include provision about timing), that he wishes to pursue the appeal in |
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so far as it is brought on that ground.” |
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Section 110 (grants to advisory organisations) of the Nationality, Immigration |
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and Asylum Act 2002 (c. 41) shall cease to have effect. |
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(1) | Section 3C of the Immigration Act 1971 (c. 77) (continuation of leave to enter or |
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remain pending variation decision) shall be amended as follows. |
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(2) | In subsection (2)(b) (continuation pending possible appeal) after “could be |
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brought” insert “, while the appellant is in the United Kingdom”. |
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(3) | In subsection (2)(c) (continuation pending actual appeal) after “against that |
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decision” insert “, brought while the appellant is in the United Kingdom,”. |
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(4) | For subsection (6) (decision) substitute— |
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“(6) | The Secretary of State may make regulations determining when an |
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application is decided for the purposes of this section; and the |
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(a) | may make provision by reference to receipt of a notice, |
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(b) | may provide for a notice to be treated as having been received |
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in specified circumstances, |
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(c) | may make different provision for different purposes or |
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(d) | shall be made by statutory instrument, and |
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(e) | shall be subject to annulment in pursuance of a resolution of |
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either House of Parliament.” |
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(5) | After section 3C insert— |
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“3D | Continuation of leave following revocation |
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(1) | This section applies if a person’s leave to enter or remain in the United |
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(a) | is varied with the result that he has no leave to enter or remain |
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in the United Kingdom, or |
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(2) | The person’s leave is extended by virtue of this section during any |
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(a) | an appeal under section 82(1) of the Nationality, Immigration |
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and Asylum Act 2002 could be brought, while the person is in |
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the United Kingdom, against the variation or revocation |
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(ignoring any possibility of an appeal out of time with |
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(b) | an appeal under that section against the variation or revocation, |
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brought while the appellant is in the United Kingdom, is |
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pending (within the meaning of section 104 of that Act). |
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(3) | A person’s leave as extended by virtue of this section shall lapse if he |
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leaves the United Kingdom. |
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(4) | A person may not make an application for variation of his leave to enter |
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or remain in the United Kingdom while that leave is extended by virtue |
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(6) | Section 82(3) of the Nationality, Immigration and Asylum Act 2002 (c. 41) |
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(variation and revocation: extension of leave pending appeal) shall cease to |
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12 | Asylum and human rights claims: definition |
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(1) | Section 113(1) of the Nationality, Immigration and Asylum Act 2002 (c. 41) |
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(appeals: interpretation) shall be amended as follows. |
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(2) | For the definition of “asylum claim” substitute— |
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(a) | means a claim made by a person that to remove him from or |
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require him to leave the United Kingdom would breach the |
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United Kingdom’s obligations under the Refugee Convention, |
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(b) | does not include a claim which, having regard to a former claim, |
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falls to be disregarded for the purposes of this Part in |
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accordance with immigration rules,”. |
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(3) | For the definition of “human rights claim” substitute— |
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(a) | means a claim made by a person that to remove him from or |
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require him to leave the United Kingdom would be unlawful |
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under section 6 of the Human Rights Act 1998 (c. 42) (public |
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authority not to act contrary to Convention) as being |
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incompatible with his Convention rights, but |
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(b) | does not include a claim which, having regard to a former claim, |
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falls to be disregarded for the purposes of this Part in |
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accordance with immigration rules,”. |
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13 | Appeal from within United Kingdom: certification of unfounded claim |
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After section 94(6A) of the Nationality, Immigration and Asylum Act 2002 (c. |
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41) (appeal from within United Kingdom: unfounded human rights or asylum |
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“(6B) | A certificate under subsection (1A) or (2) may not be issued (and |
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subsection (3) shall not apply) in relation to an appeal under section |
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82(2)(d) or (e) against a decision relating to leave to enter or remain in |
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the United Kingdom, where the leave was given in circumstances |
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specified for the purposes of this subsection by order of the Secretary of |
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14 | Consequential amendments |
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Schedule 1 (which makes amendments consequential on the preceding |
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provisions of this Act) shall have effect. |
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(1) | It is contrary to this section to employ an adult subject to immigration control |
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(a) | he has not been granted leave to enter or remain in the United |
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(b) | his leave to enter or remain in the United Kingdom— |
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(ii) | has ceased to have effect (whether by reason of curtailment, |
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revocation, cancellation, effluxion of time or otherwise), or |
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(iii) | is subject to a condition preventing him from accepting the |
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(2) | The Secretary of State may give an employer who acts contrary to this section |
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a notice requiring him to pay a penalty of a specified amount not exceeding the |
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(3) | An employer is excused from paying a penalty if he shows that he complied |
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with any prescribed requirements in relation to the employment. |
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(4) | But the excuse in subsection (3) shall not apply to an employer who knew, at |
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any time during the period of the employment, that it was contrary to this |
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(5) | The Secretary of State may give a penalty notice without having established |
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whether subsection (3) applies. |
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(6) | A penalty notice must— |
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(a) | state why the Secretary of State thinks the employer is liable to the |
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(b) | state the amount of the penalty, |
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(c) | specify a date, at least 28 days after the date specified in the notice as |
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the date on which it is given, before which the penalty must be paid, |
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(d) | specify how the penalty must be paid, |
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(e) | explain how the employer may object to the penalty, and |
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(f) | explain how the Secretary of State may enforce the penalty. |
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