This paper seeks views on the draft Immigration and Asylum Appeals (Procedure) Rules 2003 (the "New Rules"). The New Rules will govern the procedures to be followed in appeal and application proceedings before the Immigration Appellate Authorities (IAA) from the commencement of Part 5 of the Nationality, Immigration and Asylum Act 2002 (the "NIA Act"). On commencement, the New Rules will replace the current Immigration and Asylum Appeals (Procedure) Rules 2000 (the "2000 Rules"), as amended by the Immigration and Asylum Appeals (Procedure) (Amendment) Rules 2001.
The consultation is aimed at groups and individuals with an interest in immigration and asylum appeals in the UK and is limited to a period of three weeks. A limited consultation for a period of three weeks is appropriate in this instance because the New Rules reflect broadly the content of the 2000 Rules and incorporate many of the more technical changes which were included in a previous 12 week consultation exercise (CP 11/2001) published by the Lord Chancellor's Department in July 2001.
There are some new key changes, which are intended to refine the existing arrangements. These are discussed in greater detail below.
Copies of the consultation paper are being sent to:
Please send your response by 10 February 2003 to:
Rachel Kamm
Lord Chancellor's Department
Asylum Policy and Programme Division
Room 5.50
Selborne House
54-60 Victoria Street
London SW1E 6QW
Tel: 020-7210 1414
Fax: 020-7210 0681
Email: Rachel Kamm
Representative groups are asked to give a summary of the people and organisations they represent when they respond.
The Department may wish to publish responses to this consultation document in due course. Please ensure your response is marked clearly if you wish your response or your name to be kept confidential. Confidential responses will be included in any statistical summary of numbers of comments received and views expressed.
Further copies of this consultation paper can be obtained from Rachel Kamm at the above address or by phoning 020-7210 1414.
The New Rules aim to provide a clear structure with clearly defined obligations placed on the parties so as to enable the IAA to meet the overriding objective of securing the just, timely and effective disposal of immigration and asylum appeals and bail applications.
Broadly, the New Rules reflect the content of the 2000 Rules and introduce new provisions flowing from the NIA Act. Technical changes have also been made to incorporate the results of the July 2001 consultation exercise. Implementation of the changes flowing from the 2001 consultation was deferred to the introduction of Part 5 of the NIA Act.
The structure of the New Rules reflects the different types of applications and appeals before the IAA. There will now be separate parts for (1) citation, commencement and interpretation; (2) appeals to the adjudicator; (3) applications for permission to appeal and appeals to the Tribunal; (4) applications for permission to appeal from the Tribunal to the Court of Appeal; (5) bail applications; (6) general provisions; and (7) transitional provisions.
Care has been taken throughout the draft to ensure that the wording used is clear and that each rule is structured in a manner that should help to facilitate the process and enable the parties to comply with requirements.
Rule 2.2 reduces the appeal time limits for people detained under the Immigration Acts from 10 working days to 5 working days. The intention is to supplement this shorter appeal time limit by putting into place administrative arrangements to ensure that this category of appeals is processed fairly and efficiently. The new proposals would mean that detainees, especially those who do not qualify for bail, are not detained for longer periods than is necessary.
The New Rules also provide adjudicators with powers to control proceedings more effectively and bring matters to a timely conclusion, in particular where requests for adjournments are made. The proposals for this are set out in rule 2.9 and further detail is provided on page 7 of this paper. The new rule includes the requirement for adjudicators to set a closure date, by which time the appeal must be determined, when a party is granted an adjournment. The intention is that the appeal should be determined at a normal hearing on or before the closure date and, if necessary, in the absence of a party or on the papers.
There is also a new power at rule 3.12 for the Tribunal to issue a "no merits certificate". This will be used in those instances where the Tribunal takes the view that an appeal or application has no merit. The certificate will be issued to both parties to the proceedings and to the Legal Services Commission (LSC). The rule is intended to assist the LSC in its monitoring role and to discourage those that may pursue appeals that have no merit.
The New Rules at 2.5 and 2.6 include revised procedures for late appeals and for cases where the existence of the right of appeal has to be decided as a preliminary issue respectively. These are discussed in greater detail on pages 6 and 7.
There is a list of questions at the end of the paper that we hope will help to facilitate your response.
The NIA Act introduces significant changes to the immigration and asylum appeals process.
There is a new right of appeal following the deprivation of citizenship under section 40A of the British Nationality Act 1981, as inserted by the NIA Act.
Those with 'clearly unfounded' asylum or human rights claims no longer have an in-country right of appeal.
There is a power for the Lord Chancellor to provide for a closure date to prevent multiple adjournments of appeals.
The Tribunal may now take appropriate action where they consider that an appeal has no merit.
All appellants have a right to apply for permission to appeal on a point of law against the adjudicator's determination to the Immigration Appeals Tribunal.
There is a new power for the rules to make provision for the IAA to award costs.
There is a new review process to the Administrative Court/Court of Session for a review of the Tribunal's permission decision on the ground that the Tribunal made an error of law.
The New Rules are contained in an attached pdf document and the main differences from the 2000 Rules are discussed in some detail below. To avoid confusion with the numbering system adopted in the 2000 Rules, the New Rules are numbered differently for the purposes of this consultation paper. The schedules containing the forms are not included in this draft but will form part of the final document.
|
We would be grateful for your views as to whether you prefer the new numbering system or whether you would wish us to revert to the previous numbering system. We would also like to know whether the new layout and format provides transparency of process. |
The New Rules include a number of new or amended definitions, which are set out in rule 1.1. For example, a "relevant decision" is now defined by statutory references to ensure that the scope of the New Rules is clear and transparent. There are also other new definitions, which should be self-explanatory.
|
Do you agree with the proposed definitions in rule 1.1? |
Rule 1.2 extends the overriding objective of the rules (currently found at Rule 30(2)) to bail applications as well as appeals. We have decided to move this rule to Part 1 for greater emphasis.
The order of rules in Part 2 has been rearranged chronologically from the start of the process - the method of giving notice of an appeal - to the end of the process - the giving of the determination.
This part sets out the processes and the time limits that apply for appeals to the adjudicator. An important change lies in the introduction of a shorter time limit to lodge appeals for appellants detained under the Immigration Acts. The current time limit of 10 working days is being replaced by a time limit of 5 working days for cases that fall into this category.
The intention is to supplement a shorter appeal time limit by putting into place administrative arrangements which would ensure that this category of appeals are processed fairly and efficiently. The new proposals would mean that detainees, especially those who do not qualify for bail, are not detained for longer periods than is necessary.
|
Please let us have your views on the new time limit for detained cases. |
There are also revised procedures at rule 2.5 for dealing with all late notices of appeal. Under the new arrangements, the respondent may apply to an adjudicator to determine whether an appeal should be allowed to proceed. This will be in instances where the respondent is not satisfied that it would be just to treat a late notice as if it had been given in time. The adjudicator will consider the matter on the papers and may, exceptionally, call for additional evidence or arrange an oral hearing. There are similar arrangements at rule 2.6 for dealing with the existence of a right of appeal as a preliminary issue.
|
The new procedures in rules 2.5 and 2.6 are intended to encourage appellants and their representatives to lodge appeals within time and to improve the efficiency of the processes for dealing with late notices and preliminary issues. We should be grateful for your views. |
Rule 2.9 places an obligation on the adjudicator to regard requests for adjournment as an exception rather than the rule. Where an adjournment has been granted, the adjudicator must set a closure date according to the circumstances of each case. The closure date may not exceed a period of 6 weeks after the original hearing date unless the adjudicator so determines. The closure date may only be varied if the appellate authority is responsible for the appeal being unable to be heard or, in exceptional circumstances, on the written application of a party. A written application to vary a closure date must be dealt with by a senior adjudicator to ensure consistency of application.
The appeal should be determined at a normal hearing on or before the closure date and, if necessary, in the absence of a party or on the papers. This rule should assist the adjudicator in maintaining effective control of proceedings and help to counter requests for multiple adjournments, which can serve to frustrate the process. The proposed measures should help to bring proceedings to a timely conclusion.
|
What are your views on the proposed requirement for adjudicators to set a closure date when a hearing is adjourned? |
Part 3 of the New Rules applies to applications for permission to appeal to the Tribunal and appeals to the Tribunal. The rules in this part do not apply to applications for bail. These rules are contained in Part 5.
For clarity, the provisions covering the procedures for applications for permission to appeal to the Tribunal will now be set out in a number of separate rules - 3.2 to 3.5 - rather than the current single rule. New measures include explicit provision for the filing of a respondent's notice or an application to cross-appeal. The New Rules clarify that the Tribunal may limit the permission to appeal to one or more of the grounds specified in the application.
The 2000 Rules provided, in rule 19, for a right of review for appellants who were refused permission to appeal to the Tribunal. These appellants could apply to the Tribunal to review its decision on the ground that it was wrongly made as the result of an administrative or procedural error. This provision is not replicated in the New Rules. These appellants will now be able to apply to the Administrative Court (or Court of Session) for a review of the Tribunal's permission decision on the ground that the Tribunal made an error of law. (Sections 101(2) and (3) of the NIA Act). Rules governing the procedures relating to Statutory Review are to be inserted as an amendment to the Civil Procedure Rules 1998.
|
Do you accept that there is no need for this right of review given that all appellants will be able to apply for permission to appeal to the Tribunal and to apply for a review of the Tribunal's permission decision on an error of law? |
Another new and important provision can be found in rule 3.12, which provides for certificates of no merit to be issued by the Tribunal where the Tribunal thinks that an appeal or application for permission to appeal has no merit. The certificate will be sent to both parties to the proceedings and to the Legal Services Commission (LSC). The rule is intended to assist the LSC in its monitoring role and to discourage the practice of pursuing, at public cost, appeals that clearly have no merit. Your views on the issue of no merit certificates would be welcome.
Rule 3.13 enables the Tribunal to determine costs reserved to the Tribunal by the High Court in Statutory Review proceedings, and for this purpose applies with any necessary modifications the costs provisions in the Civil Procedure Rules. The relevant Parts of the Civil Procedure Rules set out the definitions, procedures and basis of calculations of costs by courts.
|
Are the costs powers in rule 3.13 sufficient for determining the reserved costs? |
This part of the New Rules covers the procedure for applying to the Tribunal for permission to appeal to the Court of Appeal. The New Rules do not change the procedure for this stage of the appeals process.
|
Can you suggest any improvements to the current procedures for applying for permission to appeal from the Tribunal? |
The rules covering bail were previously included in Part V (General Provisions) of the 2000 Rules in rule 34. For clarity, we have now set up a separate Part and for ease of reference we have divided the provisions under various sub-headings. These bail provisions apply to applications made to the appellate authority only and not to applications made to an immigration officer, the Secretary of State or a police officer.
A prescribed form will be included in the Schedule to the New Rules for applications for bail based on the provisions of rule 5.2. This will ensure that all the relevant information is before the appellate authority. All applications for bail to the appellate authority must now be made in writing on this prescribed form.
|
Do you welcome the requirement that all bail applications must be made on a prescribed form? If not, please tell us why. Is there any information which would be necessary for determining a bail application and which is not listed in rule 5.2? |
In response to concerns expressed during the passage of the NIA Act, we have removed the requirement that a bail applicant should provide the names of two persons required to act as sureties. However, the details of any person prepared to act as a surety must be provided on the form.
Part 6 provides for the conduct of appeals and applications at both tiers of the appellate authority and clarifies the procedures to be followed to ensure that appeal and applications are processed efficiently and in accordance with procedures. The rules have been framed to ensure clarity and transparency of process.
|
Do you agree that we have achieved our objective in Part 6? |
This part of the draft New Rules has not been finalised in the consultation paper but we would welcome comments.
|
Do you have any further comments or suggestions for the New Rules? |
We would welcome responses to the following questions set out in this consultation paper. Please give reasons for your answers wherever possible and feel free to make any other comments you consider appropriate.
We would be grateful for your views as to whether you prefer the new numbering system or whether you would wish us to revert to the previous numbering system.
We would also like to know whether the new layout and format provides transparency of process.
Do you agree with the proposed definitions in rule 1.1?
Please let us have your views on the new time limit for detained cases.
The new procedures in rules 2.5 and 2.6 are intended to encourage appellants and their representatives to lodge appeals within time and to improve the efficiency of the processes for dealing with late notices and preliminary issues. We should be grateful for your views.
What are your views on the proposed requirement for adjudicators to set a closure date when a hearing is adjourned?
Do you accept that there is no need for this right of review (currently in rule 19) given that all appellants will be able to apply for permission to appeal to the Tribunal and to apply for a review of the Tribunal's permission decision on an error of law?
Your views on the issue of no merit certificates would be welcome.
Are the costs powers in rule 3.13 sufficient for determining the reserved costs?
Can you suggest any improvements to the current procedures for applying for permission to appeal from the Tribunal?
Do you welcome the requirement that all bail applications must be made on a prescribed form? If not, please tell us why.
Is there any information which would be necessary for determining a bail application and which is not listed in rule 5.2?
Do you agree that we have achieved our objective for Part 6?
Do you have any further comments or suggestions for the New Rules?
When responding please give your name, organisation and address.
If you are a representative group, please give a summary of the people and organisations you represent.
Please send your completed response to:
Rachel Kamm
Lord Chancellor's Department
Asylum Policy and Programme Division
Room 5.50
Selborne House
54-60 Victoria Street
London SW1E 6QW
Tel: 020-7210 1414
Fax: 020-7210 0681
Email: Rachel Kamm
[57kb]