Special Immigration Appeals Commission Act 1997

Establishment of the Commission

1

• (1) There shall be a commission, known as the Special Immigration Appeals Commission, for the purpose of exercising the jurisdiction conferred by this Act and Schedule 4A to the British Nationality Act 1981.

• (2) Schedule 1 to this Act shall have effect in relation to the Commission.

• (3) The Commission shall be a superior court of record.

• (4) A decision of the Commission shall be questioned in legal proceedings only in accordance with—

• (a) section 7 and sections 7B to 7D, or

• (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Jurisdiction: appeals

2

• (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), 83(2) or 83A(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), 83(2) or 83A(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,

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

• (c) section 79 of that Act (deportation order: appeal),

• (ca) section 78A of that Act (restriction on removal of children and their parents),

• (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 a decision other than an immigration decision under this section as they apply in relation to an appeal under section 83(2) or 83A(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),

• (c) section 87 of that Act (successful appeal: direction), and

• (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.

Jurisdiction: bail

3

• (1) In the case of a person to whom subsection (2) below applies, the provisions of Schedule 10 to the Immigration Act 2016 specified in Schedule 3 to this Act shall have effect with the modifications set out there.

• (2) This subsection applies to a person who is detained under the Immigration Act 1971 or the Nationality, Immigration and Asylum Act 2002 if—

• (a) the Secretary of State certifies that his detention is necessary in the interests of national security,

• (b) he is detained following a decision to refuse him leave to enter the United Kingdom on the ground that his exclusion is in the interests of national security, or

• (c) he is detained following a decision to make a deportation order against him on the ground that his deportation is in the interests of national security.

Determination of appeals

4

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Procedure in relation to jurisdiction under sections 2 and 3

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• (1) The Lord Chancellor may make rules—

• (a) for regulating the exercise of the rights of appeal conferred by section 2 or 2B... above,

• (b) for prescribing the practice and procedure to be followed on or in connection with appeals under that section section 2 or 2B... above, including the mode and burden of proof and admissibility of evidence on such appeals, and

• (c) for other matters preliminary or incidental to or arising out of such appeals, including proof of the decisions of the Special Immigration Appeals Commission.

• (2) Rules under this section shall provide that an appellant has the right to be legally represented in any proceedings before the Commission on an appeal under section 2 or 2B... above, subject to any power conferred on the Commission by such rules.

• (2A) Rules under this section may, in particular, do anything which may be done by Tribunal Procedure Rules.

• (3) Rules under this section may, in particular—

• (a) make provision enabling proceedings before the Commission to take place without the appellant being given full particulars of the reasons for the decision which is the subject of the appeal,

• (b) make provision enabling the Commission to hold proceedings in the absence of any person, including the appellant and any legal representative appointed by him,

• (c) make provision about the functions in proceedings before the Commission of persons appointed under section 6 below, and

• (d) make provision enabling the Commission to give the appellant a summary of any evidence taken in his absence.

• (4) Rules under this section may also include provision—

• (a) enabling any functions of the Commission which relate to matters preliminary or incidental to an appeal, or which are conferred by Schedule 10 to the Immigration Act 2016, to be performed by a single member of the Commission, or

• (b) conferring on the Commission such ancillary powers as the Lord Chancellor thinks necessary for the purposes of the exercise of its functions.

• (5) The power to make rules under this section shall include power to make rules with respect to applications to the Commission under Schedule 10 to the Immigration Act 2016 and matters arising out of such applications.

• (5A) Rules under this section must secure that, where the Commission has decided not to release a person on immigration bail under Schedule 10 to the Immigration Act 2016, the Commission is required to dismiss any further application by the person for release on immigration bail that is made during the period of 28 days starting with the date of the Commission's decision, unless there has been a material change in circumstances.

• (6) In making rules under this section, the Lord Chancellor shall have regard, in particular, to—

• (a) the need to secure that decisions which are the subject of appeals are properly reviewed, and

• (b) the need to secure that information is not disclosed contrary to the public interest.

• (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (8) The power to make rules under this section shall be exercisable by statutory instrument.

• (9) No rules shall be made under this section unless a draft of them has been laid before and approved by resolution of each House of Parliament.

Appointment of person to represent the appellant’s interests

6

• (1) The relevant law officer may appoint a person to represent the interests of an appellant in any proceedings before the Special Immigration Appeals Commission from which the appellant and any legal representative of his are excluded.

• (2) For the purposes of subsection (1) above, the relevant law officer is—

• (a) in relation to proceedings before the Commission in England and Wales, the Attorney General,

• (b) in relation to proceedings before the Commission in Scotland, the Lord Advocate, and

• (c) in relation to proceedings before the Commission in Northern Ireland, the Advocate General for Northern Ireland.

• (3) A person appointed under subsection (1) above—

• (a) if appointed for the purposes of proceedings in England and Wales, shall have a general qualification for the purposes of section 71 of the Courts and Legal Services Act 1990,

• (b) if appointed for the purposes of proceedings in Scotland, shall be—

• (i) an advocate, or

• (ii) a solicitor who has by virtue of section 25A of the Solicitors (Scotland) Act 1980 rights of audience in the Court of Session and the High Court of Justiciary, and

• (c) if appointed for the purposes of proceedings in Northern Ireland, shall be a member of the Bar of Northern Ireland.

• (4) A person appointed under subsection (1) above shall not be responsible to the person whose interests he is appointed to represent.

Appeals from the Commission

7

• (1) Where the Special Immigration Appeals Commission has made a final determination of an appeal, any party to the appeal may bring a further appeal to the appropriate appeal court on any question of law material to that determination.

• (1A) Where the Commission has made a final determination of a review under section 2C , 2D or 2F, any party to the review may bring an appeal against that determination to the appropriate appeal court.

• (1B) Where the Commission has made a final determination of an application under paragraph 1(1), (2) or (6) or paragraph 2(5) of Schedule 4A to the British Nationality Act 1981 (deprivation of citizenship without notice), the Secretary of State may bring an appeal against that determination to the appropriate appeal court.

• (2) An appeal under this section may be brought only with the leave of the Commission or, if such leave is refused, with the leave of the appropriate appeal court.

• (3) In this section and sections 7B to 7D “the appropriate appeal court” means—

• (a) in relation to a determination made by the Commission in England and Wales, the Court of Appeal,

• (b) in relation to a determination made by the Commission in Scotland, the Court of Session, and

• (c) in relation to a determination made by the Commission in Northern Ireland, the Court of Appeal in Northern Ireland.

• (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Procedure on applications to the Commission for leave to appeal

8

• (1) The Lord Chancellor may make rules regulating, and prescribing the procedure to be followed on, applications to the Special Immigration Appeals Commission for leave to appeal under section 7 above or for the grant of a certificate under section 7B.

• (2) Rules under this section may include provision enabling an application ... to be heard by a single member of the Commission.

• (3) The power to make rules under this section shall be exercisable by statutory instrument.

• (4) No rules shall be made under this section unless a draft of them has been laid before and approved by resolution of each House of Parliament.

Short title, commencement and extent

9

• (1) This Act may be cited as the Special Immigration Appeals Commission Act 1997.

• (2) This Act, except for this section, shall come into force on such day as the Secretary of State may by order made by statutory instrument appoint; and different days may be so appointed for different purposes.

• (3) Her Majesty may by Order in Council direct that any of the provisions of this Act shall extend, with such modifications as appear to Her Majesty to be appropriate, to any of the Channel Islands or the Isle of Man.

• (4) This Act extends to Northern Ireland.

SCHEDULE 1

Members

1

• (1) The Special Immigration Appeals Commission shall consist of such number of members appointed by the Lord Chancellor as he may determine.

• (2) A member of the Commission shall hold and vacate office in accordance with the terms of his appointment and shall, on ceasing to hold office, be eligible for re-appointment.

• (3) A member of the Commission may resign his office at any time by notice in writing to the Lord Chancellor.

Chairman

2

The Lord Chancellor shall appoint one of the members of the Commission to be its chairman.

Payments to members

3

• (1) The Lord Chancellor may pay to the members of the Commission such remuneration and allowances as he may determine.

• (2) The Lord Chancellor may, if he thinks fit in the case of any member of the Commission pay such pension, allowance or gratuity to or in respect of the member, or such sums towards the provision of such pension, allowance or gratuity, as he may determine.

• (3) If a person ceases to be a member of the Commission and it appears to the Lord Chancellor that there are special circumstances which make it right that the person should receive compensation, he may pay to that person a sum of such amount as he may determine.

Proceedings

4

The Commission shall sit at such times and in such places as the Lord Chancellor may direct and may sit in two or more divisions.

5

The Commission shall be deemed to be duly constituted if it consists of three members of whom—

• (a) at least one holds or has held high judicial office (within the meaning of Part 3 of the Constitutional Reform Act 2005) or is or has been a member of the Judicial Committee of the Privy Council, and

• (b) at least one is or has been a judge of the First-tier Tribunal, or of the Upper Tribunal, who is assigned to a chamber with responsibility for immigration and asylum matters.

6

The chairman or, in his absence, such other member of the Commission as he may nominate, shall preside at sittings of the Commission and report its decisions.

Staff

7

The Lord Chancellor may appoint such officers and servants for the Commission as he thinks fit.

Expenses

8

The Lord Chancellor shall defray the remuneration of persons appointed under paragraph 7 above and such expenses of the Commission as he thinks fit.

SCHEDULE 2

Stay on directions for removal

1

If a person in the United Kingdom appeals under section 2(1) above on being refused leave to enter, any directions previously given by virtue of the refusal for his removal from the United Kingdom cease to have effect, except in so far as they have already been carried out, and no directions may be so given so long as the appeal is pending.

Deportation order not to be made while appeal pending

2

If a person in the United Kingdom appeals under section 2(1) above against any directions given under Part I of Schedule 2 or Schedule 3 to the 1971 Act for his removal from the United Kingdom, those directions except in so far as they have already been carried out, have no effect while the appeal is pending.

Stay of removal directions pending appeal and bail

3

But the provisions of Part I of Schedule 2 or, as the case may be, Schedule 3 to the 1971 Act with respect to detention and persons liable to detention apply to a person appealing under section 2(1) above as if there were in force directions for his removal from the United Kingdom, except that he may not be detained on board a ship or aircraft so as to compel him to leave the United Kingdom while the appeal is pending.

Construction of references to pending appeal

4

For the purposes of this Schedule, an appeal under section 2 or 2A above shall be treated as pending during the period beginning when notice of appeal is duly given and ending when the appeal is finally determined or withdrawn; and an appeal shall not be treated as finally determined so long as a further appeal can be brought by virtue of section 7 above, nor, if such an appeal is duly brought, until it is determined or withdrawn.

Appeals involving asylum

5

Notice of appealable decision and statement of appeal rights etc.

6

Paragraph 1 of Schedule 4 to the Immigration and Asylum Act 1999 has effect as if section 2 and 2A of this Act were contained in Part IV of that Act.

Financial support for organisations helping persons with rights of appeal

7

Section 81 of the Immigration and Asylum Act 1999 shall have effect as if section 2 and 2A above were contained in Part IV of that Act.

SCHEDULE 3

1

Paragraph 1(3) (power to grant bail) has effect as if—

• (a) for “The First-tier Tribunal” there were substituted “ The Special Immigration Appeals Commission ”, and

• (b) for “the Tribunal” there were substituted “ the Commission ”.

2

Paragraph 2 (conditions of immigration bail) has effect as if—

• (a) in sub-paragraphs (1)(a), (7) and (8) for “the First-tier Tribunal” there were substituted “ the Special Immigration Appeals Commission ”, and

• (b) in sub-paragraph (7) for “the Tribunal” there were substituted “ the Commission ”.

3

Paragraph 3 (exercise of power to grant immigration bail) has effect as if—

• (a) in sub-paragraphs (1), (2)(f), (3), (4), (5) and (6) for “the First-tier Tribunal” there were substituted “ the Special Immigration Appeals Commission ”, and

• (b) in sub-paragraph (5) for “the Tribunal” there were substituted “ the Commission ”.

4

Paragraph 4(2)(d) (arrangements under electronic monitoring condition) has effect as if for “the First-tier Tribunal” there were substituted “ the Special Immigration Appeals Commission ”.

5

Paragraph 5(5) (payment of sum under financial condition) has effect as if for “the First-tier Tribunal” there were substituted “ the Special Immigration Appeals Commission ”.

6

Paragraph 6 (power to vary bail conditions) has effect as if—