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

(The document as of February, 2008)

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(a) he is convicted outside the United Kingdom of an offence,

(b) he is sentenced to a period of imprisonment of at least two years, and

(c) he could have been sentenced to a period of imprisonment of at least two years had his conviction been a conviction in the United Kingdom of a similar offence.

(4) A person shall be presumed to have been convicted by a final judgment of a particularly serious crime and to constitute a danger to the community of the United Kingdom if--

(a) he is convicted of an offence specified by order of the Secretary of State, or

(b) he is convicted outside the United Kingdom of an offence and the Secretary of State certifies that in his opinion the offence is similar to an offence specified by order under paragraph (a).

(5) An order under subsection (4)--

(a) must be made by statutory instrument, and

(b) shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(6) A presumption under subsection (2), (3) or (4) that a person constitutes a danger to the community is rebuttable by that person.

(7) A presumption under subsection (2), (3) or (4) does not apply while an appeal against conviction or sentence--

(a) is pending, or

(b) could be brought (disregarding the possibility of appeal out of time with leave).

(8) Section 34(1) of the Anti-terrorism, Crime and Security Act 2001 (c. 24) (no need to consider gravity of fear or threat of persecution) applies for the purpose of considering whether a presumption mentioned in subsection (6) has been rebutted as it applies for the purpose of considering whether Article 33(2) of the Refugee Convention applies.

(9) Subsection (10) applies where--

(a) a person appeals under section 82, 83 or 101 of this Act or under section 2 of the Special Immigration Appeals Commission Act 1997 (c. 68) wholly or partly on the ground that to remove him from or to require him to leave the United Kingdom would breach the United Kingdom's obligations under the Refugee Convention, and

(b) the Secretary of State issues a certificate that presumptions under subsection (2), (3) or (4) apply to the person (subject to rebuttal).

(10) The adjudicator, Tribunal or Commission hearing the appeal--

(a) must begin substantive deliberation on the appeal by considering the certificate, and

(b) if in agreement that presumptions under subsection (2), (3) or (4) apply (having given the appellant an opportunity for rebuttal) must dismiss the appeal in so far as it relies on the ground specified in subsection (9)(a).

(11) For the purposes of this section--

(a) "the Refugee Convention" means the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and its Protocol, and

(b) a reference to a person who is sentenced to a period of imprisonment of at least two years--

(i) does not include a reference to a person who receives a suspended sentence (unless at least two years of the sentence are not suspended),

(ii) includes a reference to a person who is sentenced to detention, or ordered or directed to be detained, in an institution other than a prison (including, in particular, a hospital or an institution for young offenders), and

(iii) includes a reference to a person who is sentenced to imprisonment or detention, or ordered or directed to be detained, for an indeterminate period (provided that it may last for two years).

73 Family

(1) The following shall be inserted after paragraph 10 of Schedule 2 to the Immigration Act 1971 (c. 77) (control of entry: removal)--

" 10A Where directions are given in respect of a person under any of paragraphs 8 to 10 above, directions to the same effect may be given under that paragraph in respect of a member of the person's family. "

(2) Section 10 of the Immigration and Asylum Act 1999 (c. 33) (removal of person unlawfully in United Kingdom) shall be amended as follows.

(3) In subsection (1)(c) omit--

(a) "("the first directions")", and

(b) "("the other person")".

(4) The following shall be substituted for subsections (3) to (5) (removal of family)--

" (3) Directions for the removal of a person may not be given under subsection (1)(c) unless the Secretary of State has given the person written notice of the intention to remove him.

(4) A notice under subsection (3) may not be given if--

(a) the person whose removal under subsection (1)(a) or (b) is the cause of the proposed directions under subsection (1)(c) has left the United Kingdom, and

(b) more than eight weeks have elapsed since that person's departure.

(5) If a notice under subsection (3) is sent by first class post to a person's last known address, that subsection shall be taken to be satisfied at the end of the second day after the day of posting.

(5A) Directions for the removal of a person under subsection (1)(c) cease to have effect if he ceases to belong to the family of the person whose removal under subsection (1)(a) or (b) is the cause of the directions under subsection (1)(c). "

(5) In paragraph 16(2) of Schedule 2 to the Immigration Act 1971 (c. 77) (control of entry, &c.: detention) for the words "8 to 10" there shall be substituted "8 to 10A".

74 Deception

In section 10(1) of the Immigration and Asylum Act 1999 (c. 33) (removal) the following shall be substituted for paragraph (b)--

" (b) he uses deception in seeking (whether successfully or not) leave to remain; " .

75 Exemption from deportation

(1) Section 7 of the Immigration Act 1971 (existing residents exempt from deportation) shall be amended as follows.

(2) Subsection (1)(a) (which is redundant) shall cease to have effect.

(3) The following shall be substituted for subsection (1)(b)--

" (b) shall not be liable to deportation under section 3(5) if at the time of the Secretary of State's decision he had for the last five years been ordinarily resident in the United Kingdom and Islands; " .

(4) The following shall be added at the end of section 10 of the Immigration and Asylum Act 1999 (removal)--

" (10) A person shall not be liable to removal from the United Kingdom under this section at a time when section 7(1)(b) of the Immigration Act 1971 (Commonwealth and Irish citizens ordinarily resident in United Kingdom) would prevent a decision to deport him. "

76 Revocation of leave to enter or remain

(1) The Secretary of State may revoke a person's indefinite leave to enter or remain in the United Kingdom if the person--

(a) is liable to deportation, but

(b) cannot be deported for legal reasons.

(2) The Secretary of State may revoke a person's indefinite leave to enter or remain in the United Kingdom if--

(a) the leave was obtained by deception,

(b) the person would be liable to removal because of the deception, but

(3) The Secretary of State may revoke a person's indefinite leave to enter or remain in the United Kingdom if the person, or someone of whom he is a dependant, ceases to be a refugee as a result of--

(a) voluntarily availing himself of the protection of his country of nationality,

(b) voluntarily re-acquiring a lost nationality,

(d) voluntarily establishing himself in a country in respect of which he was a refugee.

(4) In this section--

"indefinite leave" has the meaning given by section 33(1) of the Immigration Act 1971 (c. 77) (interpretation),
"liable to deportation" has the meaning given by section 3(5) and (6) of that Act (deportation),
"refugee" has the meaning given by the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and its Protocol, and
"removed" means removed from the United Kingdom under--
(a)
paragraph 9 or 10 of Schedule 2 to the Immigration Act 1971 (control of entry: directions for removal), or
(b)
section 10(1)(b) of the Immigration and Asylum Act 1999 (c. 33) (removal of persons unlawfully in United Kingdom: deception).

(5) A power under subsection (1) or (2) to revoke leave may be exercised--

(a) in respect of leave granted before this section comes into force;

(b) in reliance on anything done before this section comes into force.

(6) A power under subsection (3) to revoke leave may be exercised--

(a) in respect of leave granted before this section comes into force, but

(b) only in reliance on action taken after this section comes into force.

(7) In section 10(1) of the Immigration and Asylum Act 1999 (removal of persons unlawfully in United Kingdom) after paragraph (b) (and before the word "or") there shall be inserted--

" (ba) his indefinite leave to enter or remain has been revoked under section 76(3) of the Nationality, Immigration and Asylum Act 2002 (person ceasing to be refugee); " .

77 No removal while claim for asylum pending

(1) While a person's claim for asylum is pending he may not be--

(a) removed from the United Kingdom in accordance with a provision of the Immigration Acts, or

(b) required to leave the United Kingdom in accordance with a provision of the Immigration Acts.

(2) In this section--

(a) "claim for asylum" means a claim by a person that it would be contrary to the United Kingdom's obligations under the Refugee Convention to remove him from or require him to leave the United Kingdom, and

(b) a person's claim is pending until he is given notice of the Secretary of State's decision on it.

(3) In subsection (2) "the Refugee Convention" means the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and its Protocol.

(4) Nothing in this section shall prevent any of the following while a claim for asylum is pending--

(a) the giving of a direction for the claimant's removal from the United Kingdom,

(b) the making of a deportation order in respect of the claimant, or

(5) Section 15 of the Immigration and Asylum Act 1999 (c. 33) (protection from removal or deportation) shall cease to have effect.

78 No removal while appeal pending

(1) While a person's appeal under section 82(1) is pending he may not be--

(a) removed from the United Kingdom in accordance with a provision of the Immigration Acts, or

(b) required to leave the United Kingdom in accordance with a provision of the Immigration Acts.

(2) In this section "pending" has the meaning given by section 104.

(3) Nothing in this section shall prevent any of the following while an appeal is pending--

(a) the giving of a direction for the appellant's removal from the United Kingdom,

(b) the making of a deportation order in respect of the appellant (subject to section 79), or

(4) This section applies only to an appeal brought while the appellant is in the United Kingdom in accordance with section 92.

79 Deportation order: appeal

(1) A deportation order may not be made in respect of a person while an appeal under section 82(1) against the decision to make the order--

(a) could be brought (ignoring any possibility of an appeal out of time with permission), or

(b) is pending.

(2) In this section "pending" has the meaning given by section 104.

80 Removal of asylum-seeker to third country

The following shall be substituted for section 11 of the Immigration and Asylum Act 1999 (c. 33) (removal of asylum claimant under standing arrangements with member States)--

" 11 Removal of asylum claimant under standing arrangement with member States

(1) In determining whether a person in relation to whom a certificate has been issued under subsection (2) may be removed from the United Kingdom, a member State is to be regarded as--

(a) a place where a person's life and liberty is not threatened by reason of his race, religion, nationality, membership of a particular social group, or political opinion; and

(b) a place from which a person will not be sent to another country otherwise than in accordance with the Refugee Convention.

(2) Nothing in section 77 of the Nationality, Immigration and Asylum Act 2002 prevents a person who has made a claim for asylum ("the claimant") from being removed from the United Kingdom to a member State if the Secretary of State has certified that--

(a) the member State has accepted that, under standing arrangements, it is the responsible State in relation to the claimant's claim for asylum; and

(b) in his opinion, the claimant is not a national or citizen of the member State to which he is to be sent.

(3) Subsection (4) applies where a person who is the subject of a certificate under subsection (2)--

(a) has instituted or could institute an appeal under section 82(1) of the Nationality, Immigration and Asylum Act 2002 (immigration appeal), and

(b) has made a human rights claim (within the meaning of section 113 of that Act).

(4) The person may not be removed from the United Kingdom in reliance upon this section unless--

(a) the appeal is finally determined, withdrawn or abandoned (within the meaning of section 104 of that Act) or can no longer be brought (ignoring any possibility of an appeal out of time with permission), or

(b) the Secretary of State has issued a certificate in relation to the human rights claim under section 93(2)(b) of that Act (clearly unfounded claim).

(5) In this section "standing arrangements" means arrangements in force between two or more member States for determining which State is responsible for considering applications for asylum. "

Part 5 Immigration and Asylum Appeals

Appeal to adjudicator

81 Adjudicators

(1) The Lord Chancellor shall appoint adjudicators for the purposes of this Part.

(2) A person is eligible for appointment as an adjudicator only 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) has legal or other experience which in the Lord Chancellor's opinion makes him suitable for appointment.

(3) The Lord Chancellor--

(a) shall appoint one of the adjudicators as Chief Adjudicator,

(b) may appoint one of the adjudicators as Deputy Chief Adjudicator,

(d) may appoint one or more adjudicators as Deputy Regional Adjudicator.

(4) The Chief Adjudicator shall perform such functions as the Lord Chancellor may assign to him.

(5) The Deputy Chief Adjudicator--

(a) may act for the Chief Adjudicator if he is unable to act or unavailable, and

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

(6) A Regional Adjudicator shall perform such functions as the Chief Adjudicator may assign to him.

(7) A Deputy Regional Adjudicator--

(a) may act for the Regional Adjudicator whose deputy he is if the Regional Adjudicator is unable to act or unavailable, and

(b) shall perform such other functions as may be delegated or assigned to him by the Regional Adjudicator whose deputy he is or assigned to him by the Chief Adjudicator.

(8) Schedule 4 (which makes further provision about adjudicators) shall have effect.

82 Right of appeal: general

(1) Where an immigration decision is made in respect of a person he may appeal to an adjudicator.

(2) In this Part "immigration decision" means--

(a) refusal of leave to enter the United Kingdom,

(b) refusal of entry clearance,

(d) refusal to vary a person's leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain,

(e) variation of a person's leave to enter or remain in the United Kingdom if when the variation takes effect the person has no leave to enter or remain,

(f) revocation under section 76 of this Act of indefinite leave to enter or remain in the United Kingdom,

(g) a decision that a person is to be removed from the United Kingdom by way of directions under section 10(1)(a), (b) or (c) of the Immigration and Asylum Act 1999 (c. 33) (removal of person unlawfully in United Kingdom),

(h) a decision that an illegal entrant is to be removed from the United Kingdom by way of directions under paragraphs 8 to 10 of Schedule 2 to the Immigration Act 1971 (c. 77) (control of entry: removal),

(i) a decision that a person is to be removed from the United Kingdom by way of directions given by virtue of paragraph 10A of that Schedule (family),

(j) a decision to make a deportation order under section 5(1) of that Act, and

(k) refusal to revoke a deportation order under section 5(2) of that Act.

(3) A variation or revocation of the kind referred to in subsection (2)(e) or (f) shall not have effect while an appeal under subsection (1) against that variation or revocation--

(a) could be brought (ignoring any possibility of an appeal out of time with permission), or

(b) is pending.

(4) The right of appeal under subsection (1) is subject to the exceptions and limitations specified in this Part.

83 Appeal: asylum claim

(1) This section applies where a person has made an asylum claim and--

(a) his claim has been rejected by the Secretary of State, but

(b) he has been granted leave to enter or remain in the United Kingdom for a period exceeding one year (or for periods exceeding one year in aggregate).

(2) The person may appeal to an adjudicator against the rejection of his asylum claim.

84 Grounds of appeal

(1) An appeal under section 82(1) against an immigration decision must be brought on one or more of the following grounds--

(a) that the decision is not in accordance with immigration rules;

(b) that the decision is unlawful by virtue of section 19B of the Race Relations Act 1976 (c. 74) (discrimination by public authorities);

(c) that the decision is unlawful under section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant's Convention rights;

(d) that the appellant is an EEA national or a member of the family of an EEA national and the decision breaches the appellant's rights under the Community Treaties in respect of entry to or residence in the United Kingdom;

(e) that the decision is otherwise not in accordance with the law;

(f) that the person taking the decision should have exercised differently a discretion conferred by immigration rules;

(g) that removal of the appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdom's obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant's Convention rights.

(2) In subsection (1)(d) "EEA national" means a national of a State which is a contracting party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 (as it has effect from time to time).

(3) An appeal under section 83 must be brought on the grounds that removal of the appellant from the United Kingdom would breach the United Kingdom's obligations under the Refugee Convention.

85 Matters to be considered

(1) An appeal under section 82(1) against a decision shall be treated by the adjudicator as including an appeal against any decision in respect of which the appellant has a right of appeal under section 82(1).

(2) If an appellant under section 82(1) makes a statement under section 120, the adjudicator shall consider any matter raised in the statement which constitutes a ground of appeal of a kind listed in section 84(1) against the decision appealed against.

(3) Subsection (2) applies to a statement made under section 120 whether the statement was made before or after the appeal was commenced.

(4) On an appeal under section 82(1) or 83(2) against a decision an adjudicator may consider evidence about any matter which he thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision.

(5) But in relation to an appeal under section 82(1) against refusal of entry clearance or refusal of a certificate of entitlement under section 10--

(a) subsection (4) shall not apply, and

(b) the adjudicator may consider only the circumstances appertaining at the time of the decision to refuse.

86 Determination of appeal

(1) This section applies on an appeal under section 82(1) or 83.

(2) The adjudicator must determine--

(a) any matter raised as a ground of appeal (whether or not by virtue of section 85(1)), and

(b) any matter which section 85 requires him to consider.

(3) The adjudicator must allow the appeal in so far as he thinks that--

(a) a decision against which the appeal is brought or is treated as being brought was not in accordance with the law (including immigration rules), or

(b) a discretion exercised in making a decision against which the appeal is brought or is treated as being brought should have been exercised differently.

(4) For the purposes of subsection (3) a decision that a person should be removed from the United Kingdom under a provision shall not be regarded as unlawful if it could have been lawfully made by reference to removal under another provision.

(5) In so far as subsection (3) does not apply, the adjudicator shall dismiss the appeal.

(6) Refusal to depart from or to authorise departure from immigration rules is not the exercise of a discretion for the purposes of subsection (3)(b).

87 Successful appeal: direction

(1) If an adjudicator allows an appeal under section 82 or 83 he may give a direction for the purpose of giving effect to his decision.

(2) A person responsible for making an immigration decision shall act in accordance with any relevant direction under subsection (1).

(3) But a direction under this section shall not have effect while an appeal under section 101 or a further appeal--

(a) could be brought (ignoring any possibility of an appeal out of time with permission), or

(b) has been brought and has not been finally determined.

(4) A direction under subsection (1) shall be treated as part of the determination of the appeal for the purposes of section 101.

Exceptions and limitations

88 Ineligibility

(1) This section applies to an immigration decision of a kind referred to in section 82(2)(a), (b), (d) or (e).

(2) A person may not appeal under section 82(1) against an immigration decision which is taken on the grounds that he or a person of whom he is a dependant--

(a) does not satisfy a requirement as to age, nationality or citizenship specified in immigration rules,

(b) does not have an immigration document of a particular kind (or any immigration document),

(d) is seeking to enter or remain in the United Kingdom for a purpose other than one for which entry or remaining is permitted in accordance with immigration rules.

(3) In subsection (2)(b) "immigration document" means--

(a) entry clearance,

(b) a passport,

(d) a document which relates to a national of a country other than the United Kingdom and which is designed to serve the same purpose as a passport.

(4) Subsection (2) does not prevent the bringing of an appeal on any or all of the grounds referred to in section 84(1)(b), (c) and (g).

89 Visitor or student without entry clearance

(1) This section applies to a person who applies for leave to enter the United Kingdom--

(a) as a visitor,

(b) in order to follow a course of study for which he has been accepted and which will not last more than six months,

(d) as the dependant of a person who applies for leave to enter as a visitor or for a purpose described in paragraph (b) or (c).

(2) A person may not appeal under section 82(1) against refusal of leave to enter the United Kingdom if at the time of the refusal he does not have entry clearance.

(3) Subsection (2) does not prevent the bringing of an appeal on any or all of the grounds referred to in section 84(1)(b), (c) and (g).

90 Non-family visitor

(1) A person who applies for entry clearance for the purpose of entering the United Kingdom as a visitor may appeal under section 82(1) against refusal of entry clearance only if the application was made for the purpose of visiting a member of the applicant's family.

(2) In subsection (1) the reference to a member of the applicant's family shall be construed in accordance with regulations.

(3) Regulations under subsection (2) may, in particular, make provision wholly or partly by reference to the duration of two individuals' residence together.

(4) Subsection (1) does not prevent the bringing of an appeal on either or both of the grounds referred to in section 84(1)(b) and (c).

91 Student

(1) A person may not appeal under section 82(1) against refusal of entry clearance if he seeks it--

(a) in order to follow a course of study for which he has been accepted and which will not last more than six months,

(b) in order to study but without having been accepted for a course, or

(2) Subsection (1) does not prevent the bringing of an appeal on either or both of the grounds referred to in section 84(1)(b) and (c).

92 Appeal from within United Kingdom: general

(1) A person may not appeal under section 82(1) while he is in the United Kingdom unless his appeal is of a kind to which this section applies.

(2) This section applies to an appeal against an immigration decision of a kind specified in section 82(2)(c), (d), (e), (f) and (j).

(3) This section also applies to an appeal against refusal of leave to enter the United Kingdom where at the time of the refusal the appellant is in the United Kingdom and has--

(a) entry clearance, or

(b) a work permit.

(4) This section also applies to an appeal against an immigration decision if the appellant--

(a) has made an asylum claim, or a human rights claim, while in the United Kingdom, or

(b) is an EEA national or a member of the family of an EEA national and makes a claim to the Secretary of State that the decision breaches the appellant's rights under the Community Treaties in respect of entry to or residence in the United Kingdom.

93 Appeal from within United Kingdom: "third country" removal

(1) A person may not appeal under section 82(1) while he is in the United Kingdom if a certificate has been issued in relation to him under section 11(2) or 12(2) of the Immigration and Asylum Act 1999 (c. 33) (removal of asylum claimants to "third country").

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