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

(The document as of February, 2008)

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Section 81

SCHEDULE 4 Immigration and Asylum Appeals: Adjudicators

Term of office

1 (1) An adjudicator--

(a) may resign by notice in writing to the Lord Chancellor,

(b) shall cease to hold office on reaching the age of 70, and

(2) Sub-paragraph (1)(b) is subject to section 26(4) to (6) of the Judicial Pensions and Retirement Act 1993 (c. 8) (extension to age 75).

Proceedings

2 The Chief Adjudicator shall arrange for adjudicators to sit at times and places determined by the Lord Chancellor.

3 The Chief Adjudicator may determine--

(a) that a specified appeal shall be heard by more than one adjudicator;

(b) that appeals of a specified kind shall be heard by more than one adjudicator;

4 An adjudicator shall undertake duties allocated to him by the Chief Adjudicator.

Staff

5 The Lord Chancellor may appoint staff for the adjudicators.

Money

6 The Lord Chancellor--

(a) may pay remuneration and allowances to adjudicators,

(b) may pay remuneration and allowances to staff of the adjudicators, and

7 The Lord Chancellor may pay compensation to a person who ceases to be an adjudicator if the Lord Chancellor thinks it appropriate because of special circumstances.

Section 100

SCHEDULE 5 The Immigration Appeal Tribunal

Membership

1 The Lord Chancellor shall appoint the members of the Tribunal.

2 (1) A member--

(a) may resign by notice in writing to the Lord Chancellor,

(b) shall cease to be a member on reaching the age of 70, and

(2) Sub-paragraph (1)(b) is subject to section 26(4) to (6) of the Judicial Pensions and Retirement Act 1993 (c. 8) (extension to age 75).

Presidency

3 The Lord Chancellor shall appoint as President of the Tribunal a member who holds or has held high judicial office within the meaning of the Appellate Jurisdiction Act 1876 (c. 59).

4 (1) The Lord Chancellor shall appoint one legally qualified member of the Tribunal as its Deputy President.

(2) The Deputy President--

(a) may act for the President if the President is unable to act or unavailable, and

(b) shall perform such functions as the President may delegate or assign to him.

Proceedings

5 The Tribunal shall sit at times and places determined by the Lord Chancellor.

6 The Tribunal may sit in more than one division.

7 (1) The jurisdiction of the Tribunal may be exercised by such number of its members as the President may direct.

(2) A direction under this sub-paragraph--

(a) may relate to specified proceedings or proceedings of a specified kind,

(b) may enable jurisdiction to be exercised by a single member,

(c) may require the member hearing proceedings, or a specified number of the members hearing proceedings, to be legally qualified, and

(d) may be varied or revoked by a further direction.

Staff

8 The Lord Chancellor may appoint staff for the Tribunal.

Money

9 The Lord Chancellor--

(a) may pay remuneration and allowances to members of the Tribunal,

(b) may pay remuneration and allowances to staff of the Tribunal, and

10 The Lord Chancellor may pay compensation to a person who ceases to be a member of the Tribunal if the Lord Chancellor thinks it appropriate because of special circumstances.

Interpretation: legally qualified member

11 (1) For the purpose of this Schedule a member of the Tribunal is legally qualified if he--

(a) has a seven year general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990 (c. 41),

(b) is an advocate or solicitor in Scotland of at least seven years' standing,

(c) is a member of the Bar of Northern Ireland, or a solicitor of the Supreme Court of Northern Ireland, of at least seven years' standing, or

(d) is appointed by the Lord Chancellor as a legally qualified member.

(2) A person may be appointed by the Lord Chancellor under sub-paragraph (1)(d) only if he has legal or other experience which in the Lord Chancellor's opinion makes him suitable for appointment as a legally qualified member.

Section 114

SCHEDULE 6 Immigration and Asylum Appeals: Transitional Provision

"Commencement"

1 In this Schedule "commencement" means the coming into force of Part 5 of this Act.

Adjudicator

2 Where a person is an adjudicator under section 57 of the Immigration and Asylum Act 1999 (c. 33) immediately before commencement his appointment shall have effect after commencement as if made under section 81 of this Act.

Tribunal

3 (1) Where a person is a member of the Immigration Appeal Tribunal immediately before commencement his appointment shall have effect after commencement as if made under Schedule 5.

(2) Where a person is a member of staff of the Immigration Appeal Tribunal immediately before commencement his appointment shall have effect after commencement as if made under Schedule 5.

Earlier appeal

4 In the application of section 96--

(a) a reference to an appeal or right of appeal under a provision of this Act includes a reference to an appeal or right of appeal under the Immigration and Asylum Act 1999,

(b) a reference to a requirement imposed under this Act includes a reference to a requirement of a similar nature imposed under that Act,

(c) a reference to a statement made in pursuance of a requirement imposed under a provision of this Act includes a reference to anything done in compliance with a requirement of a similar nature under that Act, and

(d) a reference to notification by virtue of this Act includes a reference to notification by virtue of any other enactment.

Saving

5 (1) This Schedule is without prejudice to the power to include transitional provision in an order under section 162.

(2) An order under that section may, in particular, provide for a reference to a provision of Part 5 of this Act to be treated as being or including a reference (with or without modification) to a provision of the Immigration and Asylum Act 1999 (c. 33).

Section 114

SCHEDULE 7 Immigration and Asylum Appeals: Consequential Amendments

Immigration Act 1971 (c. 77)

1 In section 33(4) of the Immigration Act 1971 (c. 77) (pending appeal: interpretation) for paragraphs (a) and (b) substitute "in accordance with section 104 of the Nationality, Immigration and Asylum Act 2002 (pending appeals)".

2 In paragraph 2A(9) of Schedule 2 to that Act (control of entry: person with continuing leave) for "Part IV of the Immigration and Asylum Act 1999" substitute "Part 5 of the Nationality, Immigration and Asylum Act 2002 (immigration and asylum appeals)".

3 In paragraph 4(4) of that Schedule (examination and detention of documents) for "an appeal under this Act" substitute "an appeal under the Nationality, Immigration and Asylum Act 2002".

4 In paragraph 8(2) of that Schedule (time within which directions may be given) after "United Kingdom" insert "(ignoring any period during which an appeal by him under the Immigration Acts is pending)".

5 In paragraph 25 of that Schedule (rules) for "section 22 of this Act" substitute "section 106 of the Nationality, Immigration and Asylum Act 2002 (appeals)".

6 In paragraph 29 of that Schedule (bail pending appeal)--

(a) in sub-paragraph (1), for the words from "section" to "1999" substitute "Part 5 of the Nationality, Immigration and Asylum Act 2002", and

(b) for the words "Appeal Tribunal" substitute, in each place, "Immigration Appeal Tribunal".

7 In paragraph 2(2) of Schedule 3 to that Act (deportation) for "section 18 of this Act" substitute "section 105 of the Nationality, Immigration and Asylum Act 2002 (notice of decision)".

8 For paragraph 3 of that Schedule (deportation: effect of appeal) substitute--

" 3 So far as they relate to an appeal under section 82(1) of the Nationality, Immigration and Asylum Act 2002 against a decision of the kind referred to in section 82(2)(j) or (k) of that Act (decision to make deportation order and refusal to revoke deportation order), paragraphs 29 to 33 of Schedule 2 to this Act shall apply for the purposes of this Schedule as if the reference in paragraph 29(1) to Part I of that Schedule were a reference to this Schedule. "

House of Commons Disqualification Act 1975 (c. 24)

9 In Part III of Schedule 1 to the House of Commons Disqualification Act 1975 (disqualifying offices) for "Adjudicator appointed for the purposes of the Immigration and Asylum Act 1999." substitute "Adjudicator appointed for the purposes of Part 5 of the Nationality, Immigration and Asylum Act 2002.".

Northern Ireland Assembly Disqualification Act 1975 (c. 25)

10 In Part III of Schedule 1 to the Northern Ireland Assembly Disqualification Act 1975 (disqualifying offices) for "Adjudicator appointed for the purposes of the Immigration and Asylum Act 1999." substitute "Adjudicator appointed for the purposes of Part 5 of the Nationality, Immigration and Asylum Act 2002.".

Race Relations Act 1976 (c. 74)

11 In section 53(1) (restriction of proceedings) for "Part IV of the Immigration and Asylum Act 1999" substitute "Part 5 of the Nationality, Immigration and Asylum Act 2002".

12 Section 57A (immigration cases) shall be amended as follows--

(a) in subsection (1)(a) for "Part IV of the 1999 Act" substitute "Part 5 of the 2002 Act",

(b) in subsection (5) for the definition of "the Immigration Acts" substitute--

" "the Immigration Acts" has the meaning given by section 158 of the 2002 Act; " ,

(c) in that subsection in the definition of "immigration appellate body" for "the 1999 Act" substitute "Part 5 of the 2002 Act",

(d) in that subsection for the definition of "immigration authority" substitute--

" "immigration authority" means the Secretary of State, an immigration officer or a person responsible for the grant or refusal of entry clearance (within the meaning of section 33(1) of the Immigration Act 1971 (c. 77)); " ,

(e) in that subsection in the definition of "pending" for "Part IV of the 1999 Act" substitute "Part 5 of the 2002 Act",

(f) in that subsection in the definition of "relevant decision" for "Part IV of the 1999 Act" substitute "Part 5 of the 2002 Act",

(g) in that subsection in the definition of "relevant immigration proceedings" for "Part IV of the 1999 Act" substitute "Part 5 of the 2002 Act", and

(h) in that subsection for the definition of "the 1999 Act" substitute--

" "the 2002 Act" means the Nationality, Immigration and Asylum Act 2002; " .

13 In section 62(1)(ba) (persistent discrimination) for "Part IV of the Immigration and Asylum Act 1999" substitute "Part 5 of the Nationality, Immigration and Asylum Act 2002".

14 In section 65(7)(b) (help for aggrieved person) for "Part IV of the Immigration and Asylum Act 1999" substitute "Part 5 of the Nationality, Immigration and Asylum Act 2002".

15 In section 66 (assistance by Commission)--

(a) in subsection (8) for "Part IV of the Immigration and Asylum Act 1999" substitute "Part 5 of the Nationality, Immigration and Asylum Act 2002", and

(b) in subsection (9)--

(i) for "Part IV of the Act of 1999" substitute "Part 5 of the Act of 2002",

(ii) for "rules under section 5 or 8 of that Act;" substitute "rules under that Act;", and

(iii) for "rules under paragraph 3 or 4 of Schedule 4 to that Act." substitute "rules under that Act.".

Courts and Legal Services Act 1990 (c. 41)

16 In Schedule 11 to the Courts and Legal Services Act 1990 (judges &c. barred from legal practice) for "Adjudicator for the purposes of the Immigration and Asylum Act 1999 (other than Asylum Support Adjudicator)" substitute "Adjudicator appointed for the purposes of Part 5 of the Nationality, Immigration and Asylum Act 2002".

Tribunals and Inquiries Act 1992 (c. 53)

17 In paragraph 22 of Schedule 1 to the Tribunals and Inquiries Act 1992 (tribunals under the supervision of the Council on Tribunals)--

(a) in sub-paragraph (a), for "section 57 of the Immigration and Asylum Act 1999" substitute "section 81 of the Nationality, Immigration and Asylum Act 2002", and

(b) in sub-paragraph (b), for "section 56 of that Act" substitute "section 100 of that Act".

Judicial Pensions and Retirement Act 1993 (c. 8)

18 In Part II of Schedule 1 to the Judicial Pensions and Retirement Act 1993 (offices which may be qualifying judicial offices) for "Adjudicator for the purposes of the Immigration and Asylum Act 1999 (other than Asylum Support Adjudicator)" substitute "Adjudicator appointed for the purposes of Part 5 of the Nationality, Immigration and Asylum Act 2002".

19 In Schedule 5 to that Act (retirement provisions: the relevant offices) for "Adjudicator for the purposes of the Immigration and Asylum Act 1999 (other than Asylum Support Adjudicator)" substitute "Adjudicator appointed for the purposes of Part 5 of the Nationality, Immigration and Asylum Act 2002".

Special Immigration Appeals Commission Act 1997 (c. 68)

20 The following shall be substituted for section 2 of the Special Immigration Appeals Commission Act 1997 (jurisdiction: appeals)--

" 2 Jurisdiction: appeals

(1) A person may appeal to the Special Immigration Appeals Commission against a decision if--

(a) he would be able to appeal against the decision under section 82(1) or 83(2) of the Nationality, Immigration and Asylum Act 2002 but for a certificate of the Secretary of State under section 97 of that Act (national security, &c.), or

(b) an appeal against the decision under section 82(1) or 83(2) of that Act lapsed under section 99 of that Act by virtue of a certificate of the Secretary of State under section 97 of that Act.

(2) The following provisions shall apply, with any necessary modifications, in relation to an appeal against an immigration decision under this section as they apply in relation to an appeal under section 82(1) of the Nationality, Immigration and Asylum Act 2002--

(a) section 3C of the Immigration Act 1971 (c. 77) (continuation of leave pending variation decision),

(b) section 78 of the Nationality, Immigration and Asylum Act 2002 (no removal while appeal pending),

(d) section 82(3) of that Act (variation or revocation of leave to enter or remain: appeal),

(e) section 84 of that Act (grounds of appeal),

(f) section 85 of that Act (matters to be considered),

(g) section 86 of that Act (determination of appeal),

(h) section 87 of that Act (successful appeal: direction),

(i) section 96 of that Act (earlier right of appeal),

(j) section 104 of that Act (pending appeal),

(k) section 105 of that Act (notice of immigration decision), and

(l) section 110 of that Act (grants).

(3) The following provisions shall apply, with any necessary modifications, in relation to an appeal against the rejection of a claim for asylum under this section as they apply in relation to an appeal under section 83(2) of the Nationality, Immigration and Asylum Act 2002--

(a) section 85(4) of that Act (matters to be considered),

(b) section 86 of that Act (determination of appeal),

(d) section 110 of that Act (grants).

(4) An appeal against the rejection of a claim for asylum under this section shall be treated as abandoned if the appellant leaves the United Kingdom.

(5) A person may bring or continue an appeal against an immigration decision under this section while he is in the United Kingdom only if he would be able to bring or continue the appeal while he was in the United Kingdom if it were an appeal under section 82(1) of that Act.

(6) In this section "immigration decision" has the meaning given by section 82(2) of the Nationality, Immigration and Asylum Act 2002. "

21 Section 2A of that Act (human rights) shall cease to have effect.

22 Section 4 of that Act (determination of appeals) shall cease to have effect.

23 In section 5 of that Act (procedure)--

(a) in subsections (1)(a) and (b) and (2) omit "or 2A", and

(b) after subsection (2) insert--

" (2A) Rules under this section may, in particular, do anything which may be done by rules under section 106 of the Nationality, Immigration and Asylum Act 2002 (appeals: rules). "

24 Section 7A of that Act (pending appeals) shall cease to have effect.

25 In paragraph 5 of Schedule 1 to that Act--

(a) in sub-paragraph (b)(i), for "section 57(2) of the Immigration and Asylum Act 1999" substitute "section 81(3)(a) of the Nationality, Immigration and Asylum Act 2002", and

(b) in sub-paragraph (b)(ii), for "paragraph 1(3) of Schedule 2" substitute "paragraph 11 of Schedule 5".

26 Schedule 2 to that Act shall cease to have effect.

Immigration and Asylum Act 1999 (c. 33)

27 In section 23(1) of the Immigration and Asylum Act 1999 (monitoring refusal of entry clearance) for "section 60(5)" there shall be substituted "section 90 or 91 of the Nationality, Immigration and Asylum Act 2002".

28 In section 53(4) of that Act (bail) for "this Act" there shall be substituted "the Nationality, Immigration and Asylum Act 2002".

29 (1) Paragraph 9 of Schedule 4 to that Act (appeals: procedure: Convention cases) shall be amended as follows--

(a) in sub-paragraph (1)(a), omit "(4), (5)", and

(b) omit sub-paragraphs (4) and (5).

(2) This paragraph is without prejudice to--

(a) the effect after commencement of this paragraph of a certificate issued before commencement, or

(b) the power of the Secretary of State after the commencement of this paragraph to issue a certificate in respect of a claim made before commencement.

Anti-terrorism, Crime and Security Act 2001 (c. 24)

30 The following shall be substituted for section 27(10) of the Anti-terrorism, Crime and Security Act 2001 (grants)--

" (10) The reference in section 110 of the Nationality, Immigration and Asylum Act 2002 (immigration and asylum appeal: grant to voluntary organisation) to persons who have rights of appeal under Part 5 of that Act shall be treated as including a reference to suspected international terrorists. "

Proceeds of Crime Act 2002 (c. 29)

31 The following shall be substituted for paragraph 4 of Schedule 2 to the Proceeds of Crime Act 2002 (lifestyle offences: England and Wales: people trafficking)--

" 4 (1) An offence under section 25, 25A or 25B of the Immigration Act 1971 (c. 77) (assisting unlawful immigration etc.).

(2) An offence under section 145 of the Nationality, Immigration and Asylum Act 2002 (traffic in prostitution). "

32 In paragraph 4 of Schedule 4 to that Act (lifestyle offences: Scotland: people trafficking) for "section 25(1) of the Immigration Act 1971 (assisting illegal entry etc.)" there shall be substituted "section 25, 25A or 25B of the Immigration Act 1971 (assisting unlawful immigration etc.)".

33 The following shall be substituted for paragraph 4 of Schedule 5 to that Act (lifestyle offences: Northern Ireland: people trafficking)--

" 4 (1) An offence under section 25, 25A or 25B of the Immigration Act 1971 (assisting unlawful immigration etc.).

(2) An offence under section 145 of the Nationality, Immigration and Asylum Act 2002 (traffic in prostitution). "

Section 125

SCHEDULE 8 Carriers' Liability

1 The Immigration and Asylum Act 1999 (c. 33) shall be amended as follows.

2 (1) Section 32 (penalty for carrying clandestine entrant) shall be amended as follows.

(2) After subsection (1)(a) insert--

" (aa) he arrives in the United Kingdom concealed in a rail freight wagon, " .

(3) For subsection (2) substitute--

" (2) The Secretary of State may require a person who is responsible for a clandestine entrant to pay--

(a) a penalty in respect of the clandestine entrant;

(b) a penalty in respect of any person who was concealed with the clandestine entrant in the same transporter.

(2A) In imposing a penalty under subsection (2) the Secretary of State--

(a) must specify an amount which does not exceed the maximum prescribed for the purpose of this paragraph,

(b) may, in respect of a clandestine entrant or a concealed person, impose separate penalties on more than one of the persons responsible for the clandestine entrant, and

(c) may not impose penalties in respect of a clandestine entrant or a concealed person which amount in aggregate to more than the maximum prescribed for the purpose of this paragraph. "

(4) For subsection (4) substitute--

" (4) Where a penalty is imposed under subsection (2) on the driver of a vehicle who is an employee of the vehicle's owner or hirer--

(a) the employee and the employer shall be jointly and severally liable for the penalty imposed on the driver (irrespective of whether a penalty is also imposed on the employer), and

(b) a provision of this Part about notification, objection or appeal shall have effect as if the penalty imposed on the driver were also imposed on the employer (irrespective of whether a penalty is also imposed on the employer in his capacity as the owner or hirer of the vehicle).

(4A) In the case of a detached trailer, subsection (4) shall have effect as if a reference to the driver were a reference to the operator. "

(5) In subsection (5)--

(a) in paragraph (a) for the second "or" substitute "and", and

(b) in paragraphs (b) and (c) for "or" substitute "and".

(6) After subsection (5) insert--

" (5A) In the case of a clandestine entrant to whom subsection (1)(aa) applies, the responsible person is--

(a) where the entrant arrived concealed in a freight train, the train operator who, at the train's last scheduled stop before arrival in the United Kingdom, was responsible for certifying it as fit to travel to the United Kingdom, or

(b) where the entrant arrived concealed in a freight shuttle wagon, the operator of the shuttle-train of which the wagon formed part. "

(7) In subsection (6)(a) and (b) for "or" substitute "and".

(8) After subsection (6) insert--

" (6A) Where a person falls within the definition of responsible person in more than one capacity, a separate penalty may be imposed on him under subsection (2) in respect of each capacity. "

3 After section 32 insert--

" 32A Level of penalty: code of practice

(1) The Secretary of State shall issue a code of practice specifying matters to be considered in determining the amount of a penalty under section 32.

(2) The Secretary of State shall have regard to the code (in addition to any other matters he thinks relevant)--

(a) when imposing a penalty under section 32, and

(b) when considering a notice of objection under section 35(4).

(3) Before issuing the code the Secretary of State shall lay a draft before Parliament.

(4) After laying the draft code before Parliament the Secretary of State may bring the code into operation by order.

(5) The Secretary of State may from time to time revise the whole or any part of the code and issue the code as revised.

(6) Subsections (3) and (4) also apply to a revision or proposed revision of the code. "

4 The heading of section 33 (code of practice) becomes "Prevention of clandestine entrants: code of practice".

5 In section 33(2)(b) omit "both Houses of".

6 (1) Section 34 (defence) shall be amended as follows.

(2) For subsection (1) substitute--

" (1) A person ("the carrier") shall not be liable to the imposition of a penalty under section 32(2) if he has a defence under this section. "

(3) In subsection (3)(c) omit the first "that".

(4) After subsection (3) insert--

" (3A) It is also a defence for the carrier to show that--

(a) he knew or suspected that a clandestine entrant was or might be concealed in a rail freight wagon, having boarded after the wagon began its journey to the United Kingdom;

(b) he could not stop the train or shuttle-train of which the wagon formed part without endangering safety;

(c) an effective system for preventing the carriage of clandestine entrants was in operation in relation to the train or shuttle-train; and

(d) on the occasion in question the person or persons responsible for operating the system did so properly. "

(5) Omit subsection (5).

(6) For subsection (6) substitute--

" (6) Where a person has a defence under subsection (2) in respect of a clandestine entrant, every other responsible person in respect of the clandestine entrant is also entitled to the benefit of the defence. "

7 (1) Section 35 (notification and objection) shall be amended as follows.

(2) In subsection (2)(d)(i) for "must" substitute "may".

(3) For subsections (3) to (8) substitute--

" (3) Subsection (4) applies where a person to whom a penalty notice is issued objects on the ground that--

(a) he is not liable to the imposition of a penalty, or

(b) the amount of the penalty is too high.

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