Immigration and Asylum Act 1999 (c. 33)

(The document as of February, 2008)

-- Back --

Page 6

Pages: P.1 | P.2 | P.3 | P.4 | P.5 | P.6 | P.7 | P.8 | P.9 | P.10 | P.11 | P.12 | P.13 | P.14 | P.15 | P.16 | P.17 | P.18

(iii) a current work permit in which he is named,

makes a claim for asylum or a claim that it would be contrary to the United Kingdom's obligations under the Human Rights Convention for him to be removed from, or required to leave, the United Kingdom.

(2) The person responsible for the determination of the claim must serve on the claimant and on any relevant member of his family a notice requiring the recipient of the notice to state any additional grounds which he has or may have for wishing to enter or remain in the United Kingdom.

(3) The statement must be--

(a) in writing; and

(b) served on the person who is responsible for the determination of the claim before the end of such period as may be prescribed.

(4) Regulations may prescribe the procedure to be followed in connection with notices given and statements made in accordance with this section and, in particular, may prescribe the form in which such notices and statements are to be given or made.

(5) Regulations may prescribe the persons who, in relation to a claimant, are relevant members of his family.

(6) Regulations may provide that, if a claim is determined against the claimant, prescribed provisions of section 73, 76, or 77 are to apply to an appeal against that determination by a person on whom a notice has been served under subsection (2), with such modifications (if any) as may be prescribed.

76 Result of failure to comply with section 74

(1) In this section--

(a) "the applicant" means the person on whom a notice has been served under section 74(4);

(b) "notice" means a notice served under that section; and

(2) If the applicant's statement does not mention a particular ground--

(a) on which he wishes to enter or remain in the United Kingdom, and

(b) of which he is aware at the material time,

he may not rely on that ground in any appeal under the [1997 c. 68.] Special Immigration Appeals Commission Act 1997 or this Part.

(3) Subsection (2) does not apply if--

(a) the ground is a claim for asylum or a claim that an act breached the applicant's human rights; or

(b) the Secretary of State considers that the applicant had a reasonable excuse for the omission.

(4) Subsection (5) applies if the applicant's statement does not include a claim for asylum.

(5) If the applicant claims asylum after the end of the period prescribed under section 74(6)(b), no appeal may be made under section 69 if the Secretary of State has certified that in his opinion --

(a) one purpose of making the claim for asylum was to delay the removal from the United Kingdom of the applicant or of any member of his family; and

(b) the applicant had no other legitimate purpose for making the application.

(6) "Member of the family" has such meaning as may be prescribed.

77 "One-stop" appeals

(1) This section applies in relation to--

(a) an appeal brought on any of the grounds mentioned in section 69;

(b) any other appeal against a decision--

(i) to refuse an application for leave to enter or remain in the United Kingdom;

(ii) to vary, or to refuse to vary, any limited leave to enter or remain in the United Kingdom, which has the result mentioned in section 74(2)(a); or

(iii) to make a deportation order against a person under section 5(1) of the 1971 Act as a result of his liability to deportation under section 3(5) of that Act.

(2) Subject to section 72(2), the appellant is to be treated as also appealing on any additional grounds--

(a) which he may have for appealing against the refusal, variation, decision or directions in question under any other provision of this Act; and

(b) which he is not prevented (by any provision of section 76) from relying on.

(3) In considering--

(a) any ground mentioned in section 69, or

(b) any question relating to the appellant's rights under Article 3 of the Human Rights Convention,

the appellate authority may take into account any evidence which it considers to be relevant to the appeal (including evidence about matters arising after the date on which the decision appealed against was taken).

(4) In considering any other ground, the appellate authority may take into account only evidence--

(a) which was available to the Secretary of State at the time when the decision appealed against was taken; or

(b) which relates to relevant facts as at that date.

(5) "Additional grounds", in relation to an appeal, means any grounds specified in a statement made to the Secretary of State under section 74(4) other than those on which the appeal has been brought.

(6) "Appellate authority" means an adjudicator, the Tribunal or the Special Immigration Appeals Commission.

78 Transfer of appellate proceedings

(1) Subsection (3) applies if--

(a) a person who has brought an appeal under this Part has been notified of the Secretary of State's decision to make a deportation order against him; and

(b) as a result of section 64(1), he is not entitled to appeal against that decision under section 63.

(2) Subsection (3) also applies if--

(a) a person who has brought an appeal under this Part has been notified of the Secretary of State's decision to refuse to revoke a deportation order made against him; and

(b) as a result of section 64(2), he is not entitled to appeal against that refusal under section 63.

(3) If he appeals against that decision under section 2(1) or 2A of the [1997 c. 68.] Special Immigration Appeals Commission Act 1997, any appeal under this Part is transferred to, and must be heard by, the Commission.

(4) Subsection (5) applies if a person, in a statement required by a notice under section 74 or 75, states an additional ground which relates to a matter which may be the subject of an appeal under section 2(1) or 2A of the Special Immigration Appeals Commission Act 1997.

(5) The appeal under this Part is transferred to, and must be heard by, the Commission.

Appeals without merit

79 Penalty on continuing an appeal without merit

(1) If, at any time before it determines an appeal, the Immigration Appeal Tribunal considers that the appeal has no merit it may notify the appellant of its opinion.

(2) A notice under subsection (1) must--

(a) include an explanation of the Tribunal's powers under this section; and

(b) be made in such form as may be required by rules made under paragraph 3 of Schedule 4.

(3) Subsection (1) does not apply if leave for appeal to the Tribunal was required.

(4) Subsection (5) applies if an appeal which has been continued by the appellant after he has been given a notice under subsection (1) is dismissed.

(5) The Tribunal may impose on the appellant, or on his representative, a penalty of the specified amount.

(6) "Specified" means specified by an order made by the Lord Chancellor.

(7) The Lord Chancellor may by order make such provision as he considers appropriate as to--

(a) the enforcement in England and Wales and Northern Ireland, and

(b) the payment and application,

of penalties imposed under this section.

(8) Such an order may, in particular, make provision similar to that made by sections 129 and 130 of the [1984 c. 28.] County Courts Act 1984.

(9) An order imposing a penalty under subsection (5) may be enforced in Scotland as if it were an extract registered decree arbitral bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland.

EEA nationals

80 EEA nationals

(1) The Secretary of State may by regulations make provision for appeals against any immigration decision in relation to--

(a) an EEA national;

(b) a member of the family of an EEA national;

(2) "Immigration decision" means a decision concerning a person's removal from the United Kingdom or his entitlement--

(a) to be admitted to the United Kingdom;

(b) to reside, or to continue to reside, in the United Kingdom; or

(3) The regulations may also make provision for appeals against any decision concerning the matters mentioned in subsection (1) taken in relation to a citizen of any other State on whom any such entitlement has been conferred by an agreement to which the United Kingdom is a party or by which it is bound.

(4) An appeal under the regulations lies to an adjudicator or, in such circumstances as may be prescribed, to the Commission.

(5) The regulations may provide for appeals from the adjudicator or the Commission.

(6) The regulations may prescribe cases, or classes of case, in which a person is not entitled to appeal while he is in the United Kingdom.

(7) The regulations may make provision under which an appellant may be required to state, in such manner as may be prescribed, any grounds he has or may have for wishing to be admitted to, or to remain in, the United Kingdom additional to those on which he is appealing and for the consequences of such a requirement.

(8) The regulations may--

(a) amend sections 2 and 2A of the [1997 c. 68.] Special Immigration Appeals Commission Act 1997 (appellate jurisdiction of the Commission);

(b) amend or revoke the [S.I. 1994/1895] Immigration (European Economic Area) Order 1994.

(9) Part IV has effect subject to any regulations made under this section.

(10) "EEA national" means a person who is, or claims to be, a national of an EEA State (other than the United Kingdom).

(11) "United Kingdom national" means a person who falls to be treated as a national of the United Kingdom for the purposes of the Community Treaties.

(12) If a person claims to be an EEA national, he may not appeal under the regulations unless he produces--

(a) a valid national identity card, or

(b) a valid passport,

issued by an EEA State other than the United Kingdom.

(13) For the purposes of subsection (12), a document--

(a) is to be regarded as being what it purports to be unless its falsity is reasonably apparent; and

(b) is to be regarded as relating to the person producing it unless it is reasonably apparent that it relates to another person.

(14) The regulations may--

(a) prescribe the persons who, for the purposes of this section, are the members of a person's family; and

(b) make provision as to the manner in which membership of a person's family is to be established.

(15) "Residence permit" means any permit or other document issued by the Secretary of State as proof of the holder's right of residence in the United Kingdom.

Grants

81 Grants to voluntary organisations

(1) The Secretary of State may, with the approval of the Treasury, make grants to any voluntary organisation which provides advice or assistance for, or other services for the welfare of, persons who have rights of appeal under this Act.

(2) Grants may be made on such terms, and subject to such conditions, as the Secretary of State may determine.

Part V Immigration Advisers and Immigration Service Providers

Interpretation

82 Interpretation of Part V

(1) In this Part--

"claim for asylum" means a claim that it would be contrary to the United Kingdom's obligations under--
(a)
the Refugee Convention, or
(b)
Article 3 of the Human Rights Convention,

for the claimant to be removed from, or required to leave, the United Kingdom;
"the Commissioner" means the Immigration Services Commissioner;
"the complaints scheme" means the scheme established under paragraph 5(1) of Schedule 5;
"designated judge" has the same meaning as in section 119(1) of the [1990 c. 41.] Courts and Legal Services Act 1990;
"designated professional body" has the meaning given by section 86;
"immigration advice" means advice which--
(a)
relates to a particular individual;
(b)
is given in connection with one or more relevant matters;
(c)
is given by a person who knows that he is giving it in relation to a particular individual and in connection with one or more relevant matters; and
(d)
is not given in connection with representing an individual before a court in criminal proceedings or matters ancillary to criminal proceedings;
"immigration services" means the making of representations on behalf of a particular individual--
(a)
in civil proceedings before a court, tribunal or adjudicator in the United Kingdom, or
(b)
in correspondence with a Minister of the Crown or government department,

in connection with one or more relevant matters;
"Minister of the Crown" has the same meaning as in the Ministers of the [1975 c. 26.] Crown Act 1975;
"qualified person" means a person who is qualified for the purposes of section 84;
"registered person" means a person who is registered with the Commissioner under section 85;
"relevant matters" means any of the following--
(a)
a claim for asylum;
(b)
an application for, or for the variation of, entry clearance or leave to enter or remain in the United Kingdom;
(c)
unlawful entry into the United Kingdom;
(d)
nationality and citizenship under the law of the United Kingdom;
(e)
citizenship of the European Union;
(f)
admission to Member States under Community law;
(g)
residence in a Member State in accordance with rights conferred by or under Community law;
(h)
removal or deportation from the United Kingdom;
(i)
an application for bail under the Immigration Acts or under the [1997 c. 68.] Special Immigration Appeals Commission Act 1997;
(j)
an appeal against, or an application for judicial review in relation to, any decision taken in connection with a matter referred to in paragraphs (a) to (i); and
"the Tribunal" means the Immigration Services Tribunal.

(2) In this Part, references to the provision of immigration advice or immigration services are to the provision of such advice or services by a person--

(a) in the United Kingdom (regardless of whether the persons to whom they are provided are in the United Kingdom or elsewhere); and

(b) in the course of a business carried on (whether or not for profit) by him or by another person.

The Immigration Services Commissioner

83 The Commissioner

(1) There is to be an Immigration Services Commissioner (referred to in this Part as "the Commissioner").

(2) The Commissioner is to be appointed by the Secretary of State after consulting the Lord Chancellor and the Scottish Ministers.

(3) It is to be the general duty of the Commissioner to promote good practice by those who provide immigration advice or immigration services.

(4) In addition to any other functions conferred on him by this Part, the Commissioner is to have the regulatory functions set out in Part I of Schedule 5.

(5) The Commissioner must exercise his functions so as to secure, so far as is reasonably practicable, that those who provide immigration advice or immigration services--

(a) are fit and competent to do so;

(b) act in the best interests of their clients;

(d) do not seek to abuse any procedure operating in the United Kingdom in connection with immigration or asylum (including any appellate or other judicial procedure);

(e) do not advise any person to do something which would amount to such an abuse.

(6) The Commissioner--

(a) must arrange for the publication, in such form and manner and to such extent as he considers appropriate, of information about his functions and about matters falling within the scope of his functions; and

(b) may give advice about his functions and about such matters.

(7) Part II of Schedule 5 makes further provision with respect to the Commissioner.

The general prohibition

84 Provision of immigration services

(1) No person may provide immigration advice or immigration services unless he is a qualified person.

(2) A person is a qualified person if--

(a) he is registered with the Commissioner or is employed by, or works under the supervision of, such a person;

(b) he is a member or employee of a body which is a registered person, or works under the supervision of such a member or employee;

(c) he is authorised by a designated professional body to practise as a member of the profession whose members are regulated by that body, or works under the supervision of such a person;

(d) he is registered with, or authorised by, a person in another EEA State responsible for regulating the provision in that EEA State of advice or services corresponding to immigration advice or immigration services or would be required to be so registered or authorised were he not exempt from such a requirement;

(e) he is authorised by a body regulating the legal profession, or any branch of it, in another EEA State to practise as a member of that profession or branch; or

(f) he is employed by a person who falls within paragraph (d) or (e) or works under the supervision of such a person or of an employee of such a person.

(3) If a registered person's registration has limited effect (by virtue of paragraph 2(2) of Schedule 6), neither paragraph (a) nor (b) of subsection (2) authorises the provision of advice or services falling outside the scope of that registration.

(4) Subsection (1) does not apply to a person who--

(a) is certified by the Commissioner as exempt ("an exempt person");

(b) is employed by an exempt person;

(d) who falls within a category of person specified in an order made by the Secretary of State for the purposes of this subsection.

(5) A certificate under subsection (4)(a) may relate only to a specified description of immigration advice or immigration services.

(6) Subsection (1) does not apply to a person--

(a) holding an office under the Crown, when acting in that capacity;

(b) employed by, or for the purposes of, a government department, when acting in that capacity;

(d) otherwise exercising functions on behalf of the Crown.

(7) An exemption given under subsection (4) may be withdrawn by the Commissioner.

85 Registration and exemption by the Commissioner

(1) The Commissioner must prepare and maintain a register for the purposes of section 84(2)(a) and (b).

(2) The Commissioner must keep a record of the persons to whom he has issued a certificate of exemption under section 84(4)(a).

(3) Schedule 6 makes further provision with respect to registration.

86 Designated professional bodies

(1) "Designated professional body" means--

(a) The Law Society;

(b) The Law Society of Scotland;

(d) The Institute of Legal Executives;

(e) The General Council of the Bar;

(f) The Faculty of Advocates; or

(g) The General Council of the Bar of Northern Ireland.

(2) If the Secretary of State considers that a designated professional body has consistently failed to provide effective regulation of its members in their provision of immigration advice or immigration services, he may by order amend subsection (1) to remove the name of that body.

(3) If a designated professional body asks the Secretary of State to amend subsection (1) so as to remove its name, the Secretary of State may by order do so.

(4) If the Secretary of State is proposing to act under subsection (2) he must, before doing so--

(a) consult the Commissioner;

(b) consult the Legal Services Ombudsman, if the proposed order would affect a designated professional body in England and Wales;

(c) consult the Scottish Legal Services Ombudsman, if the proposed order would affect a designated professional body in Scotland;

(d) consult the lay observers appointed under Article 42 of the [S.I. 1976/582 (N.I. 12).] Solicitors (Northern Ireland) Order 1976, if the proposed order would affect a designated professional body in Northern Ireland;

(e) notify the body concerned of his proposal and give it a reasonable period within which to make representations; and

(f) consider any representations so made.

(5) An order under subsection (2) requires the approval of--

(a) the Lord Chancellor, if it affects a designated professional body in England and Wales or Northern Ireland;

(b) the Scottish Ministers, if it affects a designated professional body in Scotland.

(6) Before deciding whether or not to give his approval under subsection (5)(a), the Lord Chancellor must consult--

(a) the designated judges, if the order affects a designated professional body in England and Wales;

(b) the Lord Chief Justice of Northern Ireland, if it affects a designated professional body in Northern Ireland.

(7) Before deciding whether or not to give their approval under subsection (5)(b), the Scottish Ministers must consult the Lord President of the Court of Session.

(8) If the Secretary of State considers that a body which--

(a) is concerned (whether wholly or in part) with regulating the legal profession, or a branch of it, in an EEA State,

(b) is not a designated professional body, and

(c) is capable of providing effective regulation of its members in their provision of immigration advice or immigration services,

ought to be designated, he may by order amend subsection (1) to include the name of that body.

(9) The Commissioner must--

(a) keep under review the list of designated professional bodies set out in subsection (1); and

(b) report to the Secretary of State if he considers that a designated professional body is failing to provide effective regulation of its members in their provision of immigration advice or immigration services.

(10) For the purpose of meeting the costs incurred by the Commissioner in discharging his functions under this Part, each designated professional body must pay to the Commissioner, in each year and on such date as may be specified, such fee as may be specified.

(11) Any unpaid fee for which a designated professional body is liable under subsection (10) may be recovered from that body as a debt due to the Commissioner.

(12) "Specified" means specified by an order made by the Secretary of State.

The Immigration Services Tribunal

87 The Tribunal

(1) There is to be a tribunal known as the Immigration Services Tribunal (referred to in this Part as "the Tribunal").

(2) Any person aggrieved by a relevant decision of the Commissioner may appeal to the Tribunal against the decision.

(3) "Relevant decision" means a decision--

(a) to refuse an application for registration made under paragraph 1 of Schedule 6;

(b) to withdraw an exemption given under section 84(4)(a);

(d) to refuse an application for continued registration made under paragraph 3 of that Schedule;

(e) to vary a registration on an application under paragraph 3 of that Schedule; or

(f) which is recorded under paragraph 9(1)(a) of Schedule 5.

(4) The Tribunal is also to have the function of hearing disciplinary charges laid by the Commissioner under paragraph 9(1)(e) of Schedule 5.

Pages: P.1 | P.2 | P.3 | P.4 | P.5 | P.6 | P.7 | P.8 | P.9 | P.10 | P.11 | P.12 | P.13 | P.14 | P.15 | P.16 | P.17 | P.18

-- Back --

Stat