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United Kingdom Statutory Instruments |
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You are here: BAILII >> Databases >> United Kingdom Statutory Instruments >> The Immigration and Asylum Appeals (Procedure) Rules 2000 No. 2333 (L. 21) URL: http://www.bailii.org/uk/legis/num_reg/2000/uksi_20002333_en.html |
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Statutory Instruments
IMMIGRATION
Made
24th August 2000
Laid before Parliament
1st September 2000
Coming into force
2nd October 2000
The Lord Chancellor, in exercise of the powers conferred by sections 58(2) and 166(3) of, and paragraphs 3 and 4 of Schedule 4 to, the Immigration and Asylum Act 1999(1) and section 22 of the Immigration Act 1971(2) so far as paragraph 25 of Schedule 2 to that Act relates to section 22, and of all other powers enabling him in that behalf, after consultation with the Council on Tribunals in accordance with section 8 of the Tribunals and Inquiries Act 1992(3), makes the following Rules-
1.-(1) These Rules may be cited as the Immigration and Asylum Appeals (Procedure) Rules 2000 and shall come into force on 2nd October 2000.
(2) Subject to rule 4, the following Rules-
(a)the Immigration Appeals (Procedure) Rules 1984(4);
(b)the Immigration Appeals (Procedure) (Amendment) Rules 1991(5);
(c)the Immigration Appeals (Procedure) (Amendment) Rules 1993(6); and
(d)the Asylum Appeals (Procedure) Rules 1996(7);
shall be revoked.
2.-(1) In these Rules-
"the 1971 Act" means the Immigration Act 1971;
"the 1993 Act" means the Asylum and Immigration Appeals Act 1993(8);
"the 1996 Act" means the Asylum and Immigration Act 1996(9);
"the 1999 Act" means the Immigration and Asylum Act 1999;
"appellate authority" means the adjudicator or the Tribunal, as the case may be;
"appeal" means, subject to rule 4, any appeal under Part IV of the 1999 Act;
"appellant" has the meaning given in Parts II and III of these Rules and includes an applicant for bail;
"appropriate prescribed form" means the appropriate form in the Schedule to these Rules and those forms, or similar forms, may be used with any variations that the circumstances may require;
"authorised advocate"-
in relation to England and Wales, has the meaning given in section 119(1) of the Courts and Legal Services Act 1990(10);
in relation to Scotland, means a solicitor or advocate; and
in relation to Northern Ireland, means a solicitor or barrister;
"Chief Adjudicator" includes an adjudicator nominated by the Chief Adjudicator under paragraph 6(2)(a) of Schedule 3 to the 1999 Act;
"determination" means the decision of the appellate authority to allow or dismiss an appeal and the reasons for that decision;
"entry clearance officer" means a person having authority to grant an entry clearance on behalf of the Government of the United Kingdom;
"family visitor appeal" means an appeal made under section 59 by a person who is a family visitor as defined by regulations made under section 60;
"member" means a member of the Tribunal;
"officer" means an immigration officer or an entry clearance officer;
"party" has the meaning given in rule 29;
"President" means the President of the Tribunal;
"previous appeals provisions" means Part II of the 1971 Act, section 8 of the 1993 Act or section 3 of the 1996 Act;
"supplementary grounds of refusal" means the reasons given for maintaining the decision being appealed against after consideration of the additional grounds required under section 74(4); and
"Tribunal" means the Immigration Appeal Tribunal.
(2) In these Rules, a section referred to by number alone is a reference to a section of the 1999 Act.
3. Subject to rule 4, these Rules shall apply to-
(a)appeals to an adjudicator;
(b)applications to the Tribunal for leave to appeal to the Tribunal and appeals to the Tribunal;
(c)applications for bail; and
(d)applications to the Tribunal for leave to appeal to the Court of Appeal or in Scotland, to the Court of Session.
4.-(1) Subject to paragraphs (3) to (9), these Rules shall apply, with appropriate modifications, to any appeal made under the previous appeals provisions pending on 2nd October 2000 or made on or after that date.
(2) Anything done or any direction given under the Immigration Appeals (Procedure) Rules 1984 ("the 1984 Rules") or the Asylum Appeals (Procedure) Rules 1996 ("the 1996 Rules") in relation to an appeal made under the previous appeals provisions pending on 2nd October 2000 or made on or after that date, shall be treated as if done or given under these Rules.
(3) Where an appeal is made under Part II of the 1971 Act, the time limits for giving notice of appeal shall be those in rule 4 of the 1984 Rules and the reference to rule 6 in paragraphs (1)(b), (5) and (6) of rule 12 of these Rules shall be read as a reference to rule 4 of the 1984 Rules.
(4) Where an appeal is made under section 8 of the 1993 Act or section 3 of the 1996 Act, the time limits for giving notice of appeal shall be those in rule 5 of the 1996 Rules and the reference to rule 6 in paragraphs (1)(b), (5) and (6) of rule 12 of these Rules shall be read as a reference to rule 5 of the 1996 Rules.
(5) Where an appeal made under Part II of the 1971 Act has been determined by an adjudicator before 2nd October 2000, the time limits for making an application to the Tribunal for leave to appeal shall be those in paragraphs (2) to (4) of rule 15 of the 1984 Rules.
(6) Where an appeal is made under section 8 of the 1993 Act, the reference in rule 11(3) of these Rules to section 69 of the 1999 Act shall be read as a reference to section 8 of the 1993 Act.
(7) Where an appeal is made under the previous appeals provisions, the reference in rule 12(1)(a)(i) of these Rules to a provision of the 1999 Act shall be read as a reference to a provision of the 1971 Act, the 1993 Act or the 1996 Act specified by the respondent.
(8) Where an appeal is made to the Tribunal at first instance under section 15(7) of the 1971 Act as provided by rule 3 of the 1984 Rules, Part II of these Rules shall apply as if the appeal had been made to an adjudicator at first instance.
(9) Rule 41 of the 1984 Rules shall continue to apply to a reference made by the Secretary of State under section 21 of the 1971 Act.
(10) In rule 35(1)(a) of these Rules, before the coming into force of section 84, a person appealing against an immigration decision may be represented by-
(a)a solicitor, barrister, advocate or a person who is a Fellow of the Institute of Legal Executives;
(b)a person appointed by a voluntary organisation in receipt of a grant under section 23 of the 1971 Act or section 81 of the 1999 Act; or
(c)with the leave of the appellate authority, any other person.
5.-(1) This Part applies to appeals to an adjudicator.
(2) In this Part, "appellant" means a person appealing against an immigration decision.
6.-(1) Where an appellant makes an appeal within the United Kingdom, notice of appeal shall be given not later than 10 days after the notice of the decision was received.
(2) Where the appellant makes an appeal outside the United Kingdom, notice of appeal shall be given-
(a)in a case where the appellant is in the United Kingdom when the decision is made, not later than 28 days after his departure from the United Kingdom; or
(b)in a case where the appellant is not in the United Kingdom when the decision is made, not later than 28 days after the notice of the decision was received.
(3) In this rule, "decision" means the decision against which the appellant is appealing.
7.-(1) Where any notice of appeal is not given within the appropriate time limit, it shall nevertheless be treated for all purposes as having been given within that time limit if the person to whom it was given is satisfied that, because of special circumstances, it is just for the notice to be treated in that way.
(2) An adjudicator shall not extend the time limit for giving notice of appeal unless he is satisfied that because of special circumstances, it is just for the notice to be treated in that way.
8.-(1) Subject to paragraph (2), an appeal to an adjudicator shall be made by sending to the person, and at the address, specified in the notice of the decision which is the subject of the appeal, a notice of appeal in the appropriate prescribed form.
(2) In any case where an appellant is in custody, service under paragraph (1) may be upon the person having custody of him.
(3) The notice of appeal shall set out the grounds for the appeal.
(4) Where the appeal is made under section 59, in relation to a family visitor appeal, the appellant shall specify in, or attach to, the notice of appeal all matters he wishes to be considered for the purposes of the appeal.
(5) The notice of appeal shall state the name and address of the appellant and the name and address of his representative (if he has one).
(6) The appellant or his representative (if he has one) shall sign the notice of appeal.
(7) The appellant shall attach to the notice of appeal-
(a)a copy of any document which informed him of the decision against which he is appealing and any reasons for that decision; and
(b)where a notice has been served on the appellant under section 74(4), a statement form, on which additional grounds which he has or may have for wishing to enter or remain in the United Kingdom may be stated, whether or not that form has been completed.
9. Where the appellant is treated as appealing on additional grounds by virtue of section 77(2), he shall serve on the person, and at the address, specified in the supplementary grounds of refusal, any variation of his grounds of appeal not later than 5 days after he received the supplementary grounds of refusal.
10.-(1) Whether or not the notice of appeal was given within the time limit specified, the respondent shall send to an adjudicator, the appellant and the appellant's representative-
(a)the notice of appeal, together with any documents attached to it under rule 8;
(b)any supplementary grounds of refusal;
(c)any variation of the grounds of appeal;
(d)any notes of an asylum interview; and
(e)any other document (except statutory or public materials) referred to in the decision which is the subject of appeal.
(2) In this rule, "statutory or public materials" means an enactment or a provision made under an enactment, a convention or other provisions of a similar nature or other documents which are published or publicly available.
11.-(1) This rule applies where the documents have been sent to the adjudicator in accordance with rule 10.
(2) The grounds of the appeal may be varied by the appellant with the leave of the adjudicator.
(3) Except in the case of an appeal under section 65 or 69, the adjudicator shall not give leave to vary the grounds of appeal unless he is satisfied that because of special circumstances, it is just to allow the variation.
12.-(1) When the respondent alleges that-
(a)the appellant is not entitled to appeal-
(i)by virtue of a provision of the 1999 Act specified by the respondent;
(ii)by virtue of a provision of Regulations made under section 2(2) of the European Communities Act 1972(11) and section 80 of the 1999 Act specified by the respondent;
(iii)by reason that a passport or other travel document, certificate of entitlement, entry clearance or work permit on which the appellant relies is a forgery or was issued to, and relates to, another person; or
(iv)by reason that notice of appeal has not been signed by the appellant or by his representative (if he has one) or, in the case of an appellant who is a minor or who is for any reason incapable of acting, by any person acting on his behalf; or
(b)the notice of appeal was not given within the period specified by rule 6; the respondent shall send to the adjudicator with the documents required under rule 10, and to the appellant and his representative (if he has one), a written statement setting out the allegation, the reasons for it and any relevant facts relating to it.
(2) The appellant may send a written statement in reply to the respondent's statement given in accordance with paragraph (1) to the adjudicator and the respondent.
(3) Where a written statement has been given in accordance with paragraph (1), the adjudicator may, and at the request of the respondent shall, determine the validity of the allegation as a preliminary issue.
(4) At a hearing before the adjudicator in accordance with paragraph (3)-
(a)the respondent shall be given an opportunity to explain the allegation contained in his statement and any matters relating to it; and
(b)the appellant shall be given an opportunity to respond to the matters raised under sub-paragraph (a).
(5) Where the adjudicator determines as a preliminary issue that the notice of appeal was not given within the period specified by rule 6, then, except where a deportation order is in force in respect of the appellant, the adjudicator may allow the appeal to proceed if he is satisfied that by reason of special circumstances, it is just to do so.
(6) Where the adjudicator allows the appeal to proceed in accordance with paragraph (5), the notice of appeal shall be treated for all purposes as if it had been given in accordance with rule 6.
13. Notice of the date, time and place fixed for the hearing and any directions given under rule 30 shall be served on the appellant or his representative (if he has one) and any other party.
14.-(1) Except where rule 43 or 44 applies, a hearing shall be conducted to determine the appeal.
(2) A hearing may be conducted or evidence given or representations made by video link or by other electronic means.
15. Written notice of the adjudicator's determination shall be sent to every party and the appellant's representative (if he has one).
16.-(1) Where a party receives written notice of a determination to which there is no right of appeal to the Tribunal, he may apply to the Chief Adjudicator to review that determination on the ground that it was wrongly made as a result of an administrative or procedural error by the adjudicator.
(2) An application under paragraph (1) shall-
(a)be made not later than 10 days after written notice of the determination was received by the party;
(b)be in writing;
(c)identify all matters relied on; and
(d)be accompanied by copies of all relevant documents.
(3) In addition to his power to review a determination on an application made under paragraph (1), the Chief Adjudicator may, of his own motion, if satisfied that the interests of justice so require, not later than 10 days after written notice of the determination has been sent to the parties, review that determination on the ground that it was wrongly made as a result of an administrative or procedural error by the adjudicator.
(4) Where the Chief Adjudicator reviews the determination, he may-
(a)confirm it; or
(b)set it aside and direct a re-hearing of the appeal.
(5) Where the Chief Adjudicator confirms the determination, written notice shall be sent to the parties.
(6) Where the Chief Adjudicator sets aside the determination, written notice shall be sent to the parties, together with the date, time and place, and any directions, for the re-hearing of the appeal.
(7) Any notice given under paragraphs (5) and (6) shall contain, in summary form, the reasons for the decision.
17.-(1) This Part applies to-
(a)applications to the Tribunal for leave to appeal to the Tribunal; and
(b)appeals to the Tribunal from the determination of an adjudicator.
(2) In this Part, "appellant" means a party appealing against an adjudicator's determination and includes an applicant for leave to appeal under rule 18 and an applicant for a review under rule 19.
18.-(1) An appeal from the determination of an adjudicator may be made only with the leave of the Tribunal.
(2) An application for leave to appeal shall be made not later than 10 days, or in the case of an application made from outside the United Kingdom, 28 days, after the appellant has received written notice of the determination against which he wishes to appeal.
(3) A time limit set out in paragraph (2) may be extended by the Tribunal where it is satisfied that because of special circumstances, it is just for the time limit to be extended.
(4) An application for leave to appeal shall be made by serving upon the Tribunal the appropriate prescribed form, which shall-
(a)be signed by the appellant or his representative (if he has one);
(b)be accompanied by the adjudicator's determination;
(c)identify the alleged errors of fact or law in the adjudicator's determination which would have made a material difference to the outcome, together with all the grounds relied on for the appeal; and
(d)state whether a hearing of the appeal is desired.
(5) When an application for leave to appeal has been made, the Tribunal shall notify the other parties.
(6) The Tribunal shall not be required to consider any grounds other than those included in that application.
(7) Leave to appeal shall be granted only where-
(a)the Tribunal is satisfied that the appeal would have a real prospect of success; or
(b)there is some other compelling reason why the appeal should be heard.
(8) An application for leave to appeal shall be decided by a legally qualified member without a hearing.
(9) When an application for leave to appeal has been decided, written notice of the Tribunal's decision on the application shall be sent to the parties and, if granted, the grounds upon which the appellant may appeal.
(10) Where the application for leave to appeal is refused, the notice referred to in paragraph (9) shall include, in summary form, the reasons for the refusal.
(11) Subject to section 77, where evidence which was not submitted to the adjudicator is relied upon in an application for leave to appeal, the Tribunal shall not be required to consider that evidence in deciding whether to grant leave to appeal, unless it is satisfied that there were good reasons why it was not submitted to the adjudicator.
19.-(1) Where the Tribunal has refused an application for leave to appeal, the appellant may apply to the Tribunal to review its decision on the ground that it was wrongly made as a result of an administrative or procedural error by the Tribunal.
(2) An application under paragraph (1) shall-
(a)be made not later than 10 days after written notice of the decision refusing leave to appeal was received by the appellant;
(b)be in writing;
(c)identify all matters relied on; and
(d)be accompanied by copies of all relevant documents.
(3) In addition to its power to review a decision on an application made under paragraph (1), the Tribunal may, of its own motion, if satisfied that the interests of justice so require, not later than 10 days after sending to the appellant the notice of its decision, review its decision on the ground that it was wrongly made as a result of an administrative or procedural error by the Tribunal.
(4) A review under this rule shall be conducted by a legally qualified member without a hearing.
(5) Where the Tribunal reviews the decision, it may-
(a)confirm it; or
(b)set it aside and re-consider the decision.
(6) Written notice of the Tribunal's decision shall be sent to the parties and shall contain, in summary form, the reasons for the decision.
20.-(1) Where an application for leave to appeal is granted, it shall be deemed to be the notice of appeal.
(2) Where leave to appeal is granted, written notice of the date, time and place fixed for any hearing shall be sent to-
(a)every party; and
(b)every party's representative, except where the representative is acting for the Secretary of State, an officer or the United Kingdom Representative of the United Nations High Commissioner for Refugees.
21. The grounds of appeal may be varied by the appellant with the leave of the Tribunal.
22.-(1) The Tribunal may consider as evidence any note or record made by the adjudicator of any proceedings before him in connection with the appeal.
(2) Subject to paragraph (3), the Tribunal may, of its own motion or on the application of any party, consider evidence further to that which was submitted to the adjudicator.
(3) The Tribunal shall not consider any evidence which is not served in accordance with time limits set out in these Rules or directions given under rule 30, unless the Tribunal is satisfied that there are good reasons to do so.
(4) Subject to rule 38, the Tribunal shall not in its determination rely on any evidence which was not disclosed to all the parties.
(5) Where any party wishes to adduce further evidence before the Tribunal in accordance with paragraph (2), he shall give written notice to that effect to the Tribunal indicating the nature of the evidence.
(6) The notice referred to in paragraph (5) shall be given as soon as practicable after the parties have been notified that leave to appeal has been granted.
(7) Where the Tribunal decides to admit any evidence under this rule, it may direct that it be given, either-
(a)orally, in which case the Tribunal may take the evidence itself or remit the appeal to the same or another adjudicator for the taking of that evidence; or
(b)in writing, in which case it shall be given in any manner and at any time that the Tribunal may direct.
23. Unless it considers-
(a)that it is necessary in the interests of justice, and
(b)that it would save time and avoid expense
to remit the case to the same or another adjudicator for determination by him in accordance with any directions given to him by the Tribunal, the Tribunal shall determine the appeal itself.
24.-(1) Except where rule 43 or 44 applies, a hearing shall be conducted to determine an appeal.
(2) A hearing may be conducted or evidence given or representations made by video link or by other electronic means.
25.-(1) Written notice of the Tribunal's determination shall be sent to-
(a)every party; and
(b)every party's representative, except where the representative is acting for the Secretary of State, an officer or the United Kingdom Representative of the United Nations High Commissioner for Refugees.
(2) Where an appeal is determined by a panel of more than one member, the determination may be given by a legally qualified member of that panel or, if the panel contains no legally qualified member, by such member as the President may direct.
26. This Part applies to applications to the Tribunal for leave to appeal, on a question of law, to the Court of Appeal or, in Scotland, to the Court of Session, from a final determination of an appeal by the Tribunal.
27.-(1) An application to the Tribunal for leave to appeal shall be made not later than 10 days after the party seeking to appeal has received written notice of the determination.
(2) An application for leave to appeal shall be made by serving upon the Tribunal and any other party a notice of application for leave to appeal on the appropriate prescribed form and shall include the grounds of appeal.
(3) The appropriate prescribed form shall be signed by the party seeking leave to appeal or his representative (if he has one).
(4) An application for leave to appeal shall be decided by a legally qualified member without a hearing.
(5) Where the Tribunal intends to grant leave to appeal, it may, having given every party an opportunity to make representations, instead, set aside the determination appealed against and direct that the appeal to the Tribunal be re-heard.
(6) Written notice of the Tribunal's decision shall be sent to the parties.
(7) Any notice given under paragraph (6) shall contain, in summary form, the reasons for the decision.
28. This Part applies to-
(a)proceedings to which Part II applies (appeals to adjudicator);
(b)proceedings to which Part III applies (appeals to the Tribunal from adjudicator);
(c)proceedings to which Part IV applies (applications to the Tribunal for leave to appeal from the Tribunal); and
(d)applications for bail.
29.-(1) Subject to paragraph (2), the parties to the appeal shall be the appellant and the respondent.
(2) Where, in the case of a claim for asylum, the United Kingdom Representative of the United Nations High Commissioner for Refugees gives written notice to the appellate authority at any time during the course of an appeal that he wishes to be treated as a party, he shall be so treated from the date of the notice.
30.-(1) The appellate authority may, subject to the provisions of these Rules, regulate the procedure to be followed in relation to the conduct of any appeal.
(2) The overriding objective shall be to secure the just, timely and effective disposal of appeals and, in order to further that objective, the appellate authority may give directions which control the conduct of any appeal.
(3) The appellate authority may give directions under this rule orally or in writing and notice of any written directions given shall be served on the appellant or his representative (if he has one) and any other party.
(4) Directions given under this rule may, in particular,-
(a)relate to any matter concerning the preparation for a hearing and may specify the length of time allowed for anything to be done;
(b)specify the place at which the appeal shall be heard;
(c)provide for-
(i)a particular matter to be dealt with as a preliminary issue;
(ii)a pre-hearing review to be held;
(iii)the furnishing of any particulars which appear to be requisite for the determination of the appeal;
(iv)whether there should be a hearing of the appeal;
(v)the witnesses, if any, to be heard;
(vi)the manner in which any evidence may be given; and
(vii)in the case of the Tribunal, times to be prescribed within which leave must be sought to submit any evidence or call any witnesses;
(d)require any party to file-
(i)statements of the evidence which will be called at the hearing specifying in what respect the services of an interpreter will be required;
(ii)a paginated and indexed bundle of all the documents which will be relied on at the hearing;
(iii)a skeleton argument which summarises succinctly the submissions which will be made at the hearing and cites all the authorities which will be relied on, identifying any particular passages to be relied on;
(iv)an estimate of the time which will be needed for the hearing of the appeal;
(v)a list of the witnesses whom any party wishes to call to give evidence; and
(vi)a chronology of events;
(e)limit-
(i)the number or length of documents produced by, for example, requiring a party to specify to another party the passage or part of any document on which he will rely, especially if the document has to be translated into English for the hearing;
(ii)the length of oral submissions;
(iii)the time allowed for the examination and cross examination of witnesses by, for example, allowing a witness statement to stand as evidence in chief; and
(iv)the issues which will be addressed at the hearing;
(f)facilitate the holding of combined hearings under rule 42.
(5) A party shall provide to every other party a copy of any document which he is directed to file under paragraph (4).
(6) In an appeal in which a party is unrepresented, the appellate authority may not give directions under this rule where it is necessary for the party to comply, unless it is satisfied that he is able to comply with those directions.
31.-(1) Where an adjournment of the appeal is requested, the appellate authority shall not adjourn the hearing unless it is satisfied that refusing the adjournment would prevent the just disposal of the appeal.
(2) Where a party applies for an adjournment of a hearing, he shall, where practicable, notify all other parties of the application and-
(a)show good reason why an adjournment is necessary;
(b)establish any fact or matter relied on in support of the application; and
(c)offer a new date for the hearing.
(3) Where a hearing is adjourned, the appellate authority shall give any further directions which it considers to be necessary for the future conduct of the appeal.
(4) Written notice of the date, time and place of the adjourned hearing shall be sent to-
(a)every party; and
(b)every party's representative, except where the representative is acting for the Secretary of State, an officer or the United Kingdom Representative of the United Nations High Commissioner for Refugees.
32.-(1) Where a party has, without a satisfactory explanation, failed-
(a)to comply with a direction given under these Rules;
(b)to comply with a provision of these Rules; or
(c)to appear at a hearing of which he had notice in accordance with these Rules;
and the appellate authority is satisfied in all the circumstances, including the extent of the failure and any reasons for it, that the party is not pursuing his appeal, the appellate authority may treat the appeal as abandoned.
(2) Where the appellate authority treats an appeal as abandoned, it shall send a notice to the parties which shall-
(a)inform the parties that the appeal is being treated as abandoned; and
(b)include the reasons.
33.-(1) Where a party has failed-
(a)to comply with a direction given under these Rules; or
(b)to comply with a provision of these Rules;
and the appellate authority is satisfied in all the circumstances, including the extent of the failure and any reasons for it, that it is necessary to have regard to the overriding objective in rule 30(2), the appellate authority may dispose of the appeal in accordance with paragraph (2).
(2) The appellate authority may-
(a)in the case of a failure by the appellant, dismiss the appeal or, in the case of a failure by the respondent, allow the appeal, without considering its merits;
(b)determine the appeal without a hearing in accordance with rule 43; or
(c)in the case of a failure by a party to send any document, evidence or statement of any witness, prohibit that party from relying on that document, evidence or statement at the hearing.
34.-(1) An application to be released on bail may be made orally or in writing to an immigration officer, a police officer or the appellate authority.
(2) In an application for bail, an applicant may be represented by any person listed in rule 35(1)(a).
(3) A written application made in accordance with paragraph (1) shall contain the following particulars-
(a)the full name of the applicant and his date of birth;
(b)the address of the place where the applicant is detained at the time when the application is made;
(c)whether an appeal is pending at the time when the application is made;
(d)the address where the applicant would reside if his application for bail were to be granted;
(e)the amount of the recognizance in which he would agree to be bound;
(f)the full names, addresses and occupations of two persons who might act as sureties for the applicant if his application for bail were to be granted, and the amounts of the recognizance in which those persons might agree to be bound; and
(g)the grounds on which the application is made and, where a previous application has been refused, full particulars of any change in circumstances which has occurred since the refusal.
(4) A written application made in accordance with paragraph (1) shall be signed by the applicant or by a person authorised by him to act or, in the case of an applicant who is a minor or who is for any reason incapable of acting, by a person acting on his behalf.
(5) The recognizance of an applicant and that of a surety shall be on the appropriate prescribed forms.
(6) Where the appellate authority directs the release of an applicant on bail and the taking of the recognizance is postponed, it shall certify in writing that bail has been granted in respect of the applicant, and shall include in the certificate particulars of the conditions to be endorsed on the recognizance with a view to the recognizance being taken subsequently, the amounts in which the applicant and any sureties are to be bound and the date of issue of the certificate.
(7) The person having custody of an applicant shall-
(a)on receipt of a certificate signed by or on behalf of the appellate authority stating that the recognizances of any sureties required have been taken, or on being otherwise satisfied that all such recognizances have been taken; and
(b)on being satisfied that the applicant has entered into his recognizance;
release the applicant.
(8) Where the appellate authority directs the release of an applicant on bail and does not require the taking of a recognizance from the applicant or a surety, the person having custody of the applicant shall release him.
(9) Paragraphs (5) and (6) shall not apply to Scotland, and in its application to Scotland, this rule shall have effect as if-
(a)for paragraph (3)(e) and (f), there were substituted-
"(e)the amount, if any, to be deposited if bail is granted;
(f)the full names, addresses and occupations of such persons, if any, who offer to act as cautioners if the application for bail were to be granted;"; and
(b)for paragraph (7), there were substituted-
"(7) The person having custody of an applicant shall, on receipt of a certified copy of the decision to grant bail and on being satisfied that the amount, if any, to be deposited has been deposited, release the applicant.".
35.-(1) In any proceedings in an appeal, a party may act in person or be represented-
(a)in the case of a person appealing against an immigration decision, by any person not prohibited by section 84;
(b)in the case of the Secretary of State or any officer, by an authorised advocate or any officer of the Secretary of State; and
(c)in the case of the United Kingdom Representative of the United Nations High Commissioner for Refugees in an asylum appeal, by a person appointed by him.
(2) A person representing a party may do anything relating to the proceedings that the person whom he represents is by these Rules required or authorised to do.
(3) Each party shall have a duty to maintain contact with his representative (if he has one) until the appeal is finally determined and notify the representative of any change of address.
(4) Where a representative referred to in paragraph (1)(a) ("the first representative") ceases to act, he and the party he was representing, shall forthwith notify the appellate authority and any other party of that fact and of the name and address of any new representative (if known).
(5) Until the appellate authority is notified that the first representative has ceased to act by either the first representative or the party he was representing, any document served on the first representative shall be deemed to be properly served on the party he was representing.
(6) Where a representative begins acting for a party to which these Rules apply, he shall forthwith notify the appellate authority of that fact.
36.-(1) Subject to paragraph (2), the appellate authority may, for the purposes of any appeal, by summons on the appropriate prescribed form, require any person in the United Kingdom to attend as a witness at a hearing of the appeal at the time and place specified in the form and, subject to the provisions of rule 37(2), at the hearing to answer any questions or produce any documents in his custody or under his control which relate to any matter in question in the appeal.
(2) A person shall not be required, in obedience to a summons referred to in paragraph (1), to travel unless the necessary expenses of his attendance are paid or tendered to him, and when the summons is issued at the request of a party, those expenses are paid or tendered by that party.
37.-(1) The appellate authority may receive oral, documentary or other evidence of any fact which appears to that authority to be relevant to the appeal, even though that evidence would be inadmissible in a court of law.
(2) In any proceedings before the appellate authority, a person shall not be compelled to give any evidence or produce any document which he could not be compelled to give or produce on the trial of an action in that part of the United Kingdom in which the proceedings are conducted.
(3) The appellate authority may require any witness to give evidence on oath or affirmation or without either, and for that purpose, in a case where an oath or affirmation is required, an oath or affirmation in due form may be administered.
38. Subject to paragraph 6 of Schedule 4 to the 1999 Act, when the appellate authority takes into consideration documentary evidence, every party shall be given an opportunity of inspecting that evidence and taking copies if copies have not been provided pursuant to rule 30.
39.-(1) If in any proceedings before the appellate authority a party asserts that a decision or action taken against him under any statutory provision ought not to have been taken on the grounds that he is not a person to whom the provision applies, it shall lie on him to prove that he is not such a person.
(2) If in any proceedings before the appellate authority a party asserts any fact of a kind that, if the assertion were made to the Secretary of State or any officer for the purposes of any statutory provisions or any immigration rules, it would by virtue of those provisions or rules be for him to satisfy the Secretary of State or officer of the truth thereof, it shall lie on that party to prove that the assertion is true.
(3) In this rule, "immigration rules" means the rules referred to in section 3(2) of the 1971 Act and a reference to "statutory provisions" includes a reference to any provision made under an enactment.
40.-(1) Subject to the provisions of this rule, any hearing by the appellate authority shall take place in public.
(2) Where the appellate authority is considering an allegation referred to in paragraph 6(1) of Schedule 4 to the 1999 Act in accordance with paragraph 6(2) of that Schedule, all members of the public shall be excluded from that hearing.
(3) Subject to paragraph (4), the appellate authority may exclude any member of the public or members of the public generally from any hearing or from any part of a hearing where-
(a)in the opinion of that authority, it is necessary in the interests of morals, public order or national security;
(b)in the opinion of that authority, the interests of minors or the protection of the private life of the parties so require; or
(c)in special circumstances publicity would prejudice the interests of justice, but only to the extent strictly necessary in the opinion of that authority.
(4) Nothing in this rule shall prevent a member of the Council on Tribunals or of its Scottish Committee from attending a hearing in that capacity.
41.-(1) The appellate authority may, where in the circumstances of the case it appears just so to do, hear an appeal in the absence of a party if satisfied that-
(a)he is not in the United Kingdom;
(b)he is suffering from a communicable disease or from a mental disorder;
(c)by reason of illness or accident he cannot attend the hearing;
(d)it is impracticable to give him notice of the hearing and that no person is authorised to represent him at the hearing; or
(e)he has notified the appellate authority that he does not wish to attend the hearing.
(2) Without prejudice to paragraph (1) but subject to paragraph (3), the appellate authority may proceed with the hearing of an appeal in the absence of a party if satisfied that, in the case of that party, notice of the date, time and place of the hearing, or of the adjourned hearing, has been given in accordance with these Rules.
(3) Where the absent party has not furnished the appellate authority with a satisfactory explanation of his absence, it shall proceed with the hearing in pursuance of paragraph (2).
(4) Where in pursuance of this rule the appellate authority hears an appeal or proceeds with a hearing in the absence of a party, it shall determine the appeal on the evidence which has been received.
(5) Any reference to a party in paragraphs (2) to (4) includes a reference to his representative.
42. Where in the case of two or more appeals it appears to the appellate authority that-
(a)some common question of law or fact arises in both or all of them;
(b)they relate to decisions or action taken in respect of persons who are members of the same family; or
(c)for some other reason it is desirable to proceed with the appeals under this rule,
the appellate authority may, after giving all the parties an opportunity of being heard, decide that the appeals should be heard together.
43.-(1) An appeal may be determined without a hearing under this rule if-
(a)the appellate authority has decided, after giving every other party an opportunity of replying to any representations submitted in writing by or on behalf of the appellant, to allow the appeal;
(b)the appellate authority is satisfied that the appellant, except where the appellant is the Secretary of State or an officer, is outside the United Kingdom or that it is impracticable to give him notice of a hearing and, in either case, that no person is authorised to represent him at a hearing;
(c)a preliminary issue has arisen under rule 12 and, the appellant having been given an opportunity to submit a written statement rebutting the respondent's allegation-
(i)the appellant has not submitted such a statement, or
(ii)the appellate authority is of the opinion that matters put forward by the appellant in such a statement do not warrant a hearing;
(d)the appellate authority is satisfied, having given every party an opportunity to make representations and having regard to-
(i)the material before it; and
(ii)the nature of the issues raised;
that the appeal could be so disposed of justly;
(e)no party has requested a hearing; or
(f)the appellate authority is proceeding in accordance with rule 33(2)(b).
(2) Where, in a family visitor appeal, the appellant has not paid the fee for a hearing at the time he made the appeal, the appellate authority shall determine the appeal without a hearing.
(3) The appellate authority shall send written notice of the determination to-
(a)every party; and
(b)every party's representative, except where the representative is acting for the Secretary of State, an officer or the United Kingdom Representative of the United Nations High Commissioner for Refugees.
44.-(1) Subject to paragraph (2), where it appears to the appellate authority that the issues raised in an appeal have been determined-
(a)in the case of an appeal before an adjudicator, by the same or another adjudicator or by the Tribunal, or
(b)in the case of an appeal before the Tribunal, by the Tribunal,
in previous proceedings to which the appellant, or a family member, was a party, on the basis of facts which did not materially differ from those to which the appeal relates, the appellate authority may determine the appeal summarily without a hearing.
(2) Before the appellate authority determines an appeal summarily in accordance with paragraph (1), it shall give the parties an opportunity of making representations to the effect that the appeal ought not to be determined in that way.
(3) Where an appeal is determined summarily in accordance with paragraph (1), the appellate authority shall send to the parties written notice of that fact, and that notice shall-
(a)contain a statement of the issues raised in the appeal; and
(b)specify the previous proceedings in which those issues were determined.
(4) In this rule, "family member" means a person on whom a notice was served under section 74(4) at the same time in relation to the previous proceedings referred to in paragraph (1) that such a notice was served on the appellant.
45.-(1) Where any proceedings before an adjudicator have not been disposed of by him and the Chief Adjudicator, or any person for the time being carrying out the functions of the Chief Adjudicator, is of the opinion that-
(a)it is not practicable without undue delay for the proceedings to be completed by that adjudicator, or
(b)for some other good reason the proceedings cannot be completed justly by that adjudicator,
he shall make arrangements for the appeal to be heard by another adjudicator.
(2) Where any proceedings are transferred to another adjudicator in accordance with paragraph (1)-
(a)any notice or other document which is sent or given to or by the adjudicator from whom the proceedings were transferred shall be deemed to have been sent or given to or by the adjudicator to whom the appeal is transferred; and
(b)any adjudicator to whom an appeal is transferred shall have power to deal with it as if it had been commenced before him.
(3) The powers of the Chief Adjudicator under this rule shall, with the appropriate modifications, also apply to the President in relation to proceedings before the Tribunal.
(4) Where the Secretary of State notifies the Chief Adjudicator or the President, as the case may be, that section 78 applies, the Chief Adjudicator or the President shall transfer the proceedings to the Special Immigration Appeals Commission and shall notify the parties and their representatives (if any) of the transfer.
46.-(1) Any notice or other document required or authorised by these Rules to be sent or given to any person or authority may be delivered or sent by post to an address, or sent by fax to a fax number, specified by the person or authority to whom the notice or document is directed.
(2) If any notice or other document is sent or given to a person appearing to the authority or person sending it to represent that party, it shall be deemed to have been sent or given to that party.
47.-(1) A party shall inform the appellate authority of the address at which documents may be served on him ("his address for service") and of any changes to that address.
(2) Until a party gives notice to the appellate authority that his address for service has changed, any document served on him at the most recent address he has given to the appellate authority shall be deemed to have been properly served on him.
(3) A person representing a party shall inform the appellate authority of his address for service and of any changes to that address.
(4) Until a person representing a party gives notice to the appellate authority that his address for service has changed, any document served on him at the most recent address he has given to the appellate authority shall be deemed to have been properly served on him.
48.-(1) This rule applies to any notice or other document sent, served or given under these Rules.
(2) Subject to paragraphs (3) and (4), any notice or other document that is sent shall, unless the contrary is proved, be deemed to have been received-
(a)where the notice or other document is sent by post to a place within the United Kingdom, on the second day after it was sent;
(b)where the notice or other document is sent by post to a place outside the United Kingdom, on the twenty-eighth day after it was sent; and
(c)in any other case, on the day on which the notice or other document was sent.
(3) Where a notice or other document is sent by post to the appellate authority, it shall be deemed to have been received on the day on which it was received by that authority.
(4) Where a notice of appeal is sent by post or by fax to the address or fax number specified in the notice of decision, it shall be deemed to have been given on the day on which it was received at that address or fax number.
(5) A notice or other document is received by the appellate authority when it is received by any person employed as a clerk to that authority.
(6) Where an act is to be done not later than a specified period after any event, the period shall be calculated from the end of the day on which the event occurred.
(7) Where the time provided by these Rules by which any act must be completed ends on a Saturday, a Sunday, a bank holiday, Christmas Day, 27th to 31st December or Good Friday, the act shall be completed in time if completed on the next day which is not excluded under this paragraph.
(8) Where, apart from this paragraph, the period in question, being a period of 10 days or less, would include a Saturday, a Sunday, a bank holiday, Christmas Day, 27th to 31st December or Good Friday, that day shall be excluded.
(9) In this rule, "bank holiday" means a day that is specified in, or appointed under, the Banking and Financial Dealings Act 1971(12) as a bank holiday.
49.-(1) Any irregularity resulting from failure to comply with these Rules before the appellate authority has reached a decision shall not by itself render the proceedings void.
(2) Where the appellate authority considers that any person may have been prejudiced by that irregularity, it shall take any steps that it considers necessary to cure it, whether by the amendment of any document, the giving of any notice or otherwise.
50.-(1) Clerical mistakes in any determination or notice of determination, or errors arising therein from any accidental slip or omission, may at any time be corrected and any correction made to, or to a record of, a determination shall be deemed to be part of that determination or record and written notice of it shall be given as soon as practicable to every party.
(2) The Tribunal may, after consulting the adjudicator concerned, correct errors in a determination given by an adjudicator and any correction made to, or to a record of, a determination shall be deemed to be part of that determination or record and written notice of it shall be given as soon as practicable to every party and to the adjudicator.
Irvine of Lairg, C.
Dated 24th August 2000
(This note is not part of the Rules)
These Rules prescribe the procedure to be followed for appeals made under provisions of Part IV of the Immigration and Asylum Act 1999, which come into force on 2nd October 2000. These provisions will replace certain provisions of the Immigration Act 1971, the Asylum and Immigration Appeals Act 1993 and the Asylum and Immigration Act 1996 ("the previous appeals provisions").
During a transitional period, these Rules also apply to appeals made under the previous appeals provisions where the appeal is pending on 2nd October 2000 or made on or after that date. The Rules revoke the Immigration Appeals (Procedure) Rules 1984 ("the 1984 Rules"), the Immigration Appeals (Procedure) (Amendment) Rules 1991, the Immigration Appeals (Procedure) (Amendment) Rules 1993 and the Asylum Appeals (Procedure) Rules 1996 ("the 1996 Rules").
In rule 4, transitional provision is made to provide that, in relation to an appeal made under the previous appeals provisions pending on 2nd October 2000 or made on or after that date, anything done or any direction given under the 1984 Rules or the 1996 Rules, shall be treated as if done or given under these Rules. Rule 4 also makes provision for the time limits in the 1984 Rules or the 1996 Rules for serving a notice of appeal or for making an application for leave to appeal to the Tribunal, to apply to an appeal made under the previous appeals provisions where that period would be longer than any period given under these Rules. Rule 4 also makes further minor transitional provision necessary as a result of making appeals under the previous appeals provisions subject to these Rules.
