Citation and interpretation

1.—(1) This Order may be cited as the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (Commencement No. 5 and Transitional Provisions) Order 2005.

(2) In this Order–

“the 2002 Act” means the Nationality, Immigration and Asylum Act 2002(2);

“the 2004 Act” means the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004;

“adjudicator” means an adjudicator appointed, or treated as if appointed, under section 81 of the 2002 Act;

“appropriate appellate court” has the meaning given in section 103B(5) of the 2002 Act;

“appropriate court” has the meaning given in section 103A(9) of the 2002 Act;

“commencement” means the commencement date in article 2 of this Order;

“the old appeals provisions” means the following provisions, insofar as they continued to have effect immediately before commencement in relation to a pending appeal(3)–

(3) In this Order, references to a section by number alone are to the section so numbered in the 2002 Act.

Commencement provisions

2.  The following provisions of the 2004 Act shall come into force on 4th April 2005–

(a)section 26(1) to (5) and (7) to (10),

(b)section 26(6), except that the insertion of section 103D into the 2002 Act shall not come into force in Northern Ireland;

(c)Schedule 1; and

(d)Schedule 2.

Transitional provisions: general

3.—(1) Where, immediately before commencement, an adjudicator or the Immigration Appeal Tribunal—

(a)has completed the hearing of an appeal, but has not produced his or its written determination; or

(b)has produced a written determination of an appeal but that determination has not been served on all the parties,

the appeal shall continue after commencement as an appeal to an adjudicator or the Immigration Appeal Tribunal, as the case may be, until the determination has been served on all the parties.

(2) A member of the Asylum and Immigration Tribunal who, immediately before commencement was–

(a)an adjudicator; or

(b)a member of the Immigration Appeal Tribunal,

shall, notwithstanding section 26(1), (4) and (5) of the 2004 Act, be deemed to remain an adjudicator or member of the Immigration Appeal Tribunal after commencement, to the extent necessary for the purpose of completing the determination of an appeal in the circumstances specified in paragraph (1) of this article.

4.  Subject to article 3–

(a)any appeal or application to an adjudicator which is pending immediately before commencement shall continue after commencement as an appeal or application to the Asylum and Immigration Tribunal; and

(b)any appeal to the Immigration Appeal Tribunal which is pending immediately before commencement shall continue after commencement as an appeal to the Asylum and Immigration Tribunal.

5.—(1) This article applies, subject to article 3, in relation to any appeal which immediately before commencement is–

(a)pending before an adjudicator, having been remitted to an adjudicator by a court or the Immigration Appeal Tribunal; or

(b)pending before the Immigration Appeal Tribunal.

(2) The Asylum and Immigration Tribunal shall, after commencement, subject to rules under section 106 of the 2002 Act deal with the appeal in the same manner as if it had originally decided the appeal and it was reconsidering its decision .

(3) Following the determination of the appeal by the Asylum and Immigration Tribunal, a party–

(a)may not apply to the appropriate court under section 103A(1); but

(b)may, subject to section 103B(3), bring a further appeal on a point of law to the appropriate appellate court under section 103B(1).

6.—(1) Where an application for permission to appeal to the Immigration Appeal Tribunal against an adjudicator’s decision is pending immediately before commencement, it shall be treated after commencement as an application under section 103A(1) (subject to paragraph (4) and to article 9(4) below) for an order requiring the Asylum and Immigration Tribunal to reconsider the adjudicator’s decision on the appeal.

(2) Where–

(a)an adjudicator has determined an appeal; and

(b)no application for permission to appeal to the Immigration Appeal Tribunal is pending immediately before commencement,

a party to the appeal may after commencement apply under section 103A(1) (as modified by paragraph (4) below) for an order requiring the Asylum and Immigration Tribunal to reconsider the adjudicator’s decision on the appeal.

(3) Where, in a case to which paragraph (2) applies, a time period specified in rules under section 106 for applying for permission to appeal to the Immigration Appeal Tribunal has started to run before 4th April 2005, an application under section 103A(1) may, notwithstanding section 103A(3), be made at any time before the expiry of that time period.

(4) In relation to an application which, by virtue of this article, is made or treated as made under section 103A, that section shall apply with the modifications that–

(a)references to the Tribunal, except for the second such reference in section 103A(1), shall be interpreted as referring to the adjudicator who determined the appeal;

(b)references to the Tribunal’s decision shall be interpreted as referring to the adjudicator’s decision.

(5) Section 103D shall not apply in relation to a pending application which is treated as an application under section 103A by virtue of paragraph (1) of this article.

7.—(1) An application to a court under section 101(2) (review of Immigration Appeal Tribunal’s decision upon application for permission to appeal) which is pending immediately before commencement shall continue after commencement as if that section had not been repealed.

(2) A party who, immediately before commencement, was entitled to make an application to a court under section 101(2), may make such an application after commencement as if that section had not been repealed.

(3) Where, by virtue of this article, an application under section 101(2) is made or continues after commencement–

(a)paragraphs (a) and (c) of section 101(3) shall apply in relation to the application, as if they had not been repealed; and

(b)the judge determining the application may—

(i)affirm the Immigration Appeal Tribunal’s decision to refuse permission to appeal;

(ii)reverse the Immigration Appeal Tribunal’s decision to grant permission to appeal; or

(iii)order the Asylum and Immigration Tribunal to reconsider the adjudicator’s decision on the appeal.

8.—(1) An appeal to the Court of Appeal or Court of Session under section 103 (appeal from Immigration Appeal Tribunal), or an application to the Court of Appeal or Court of Session for permission to appeal under section 103, which is pending immediately before commencement shall continue after commencement as if that section had not been repealed.

(2) Where, immediately before commencement, an application to the Immigration Appeal Tribunal for permission to appeal under section 103 is pending–

(a)the application shall, following commencement, be determined by the Asylum and Immigration Tribunal; and

(b)section 103 shall continue to apply in relation to the application as if it had not been repealed, but with the modification in paragraph (5) below.

(3) A party who–

(a)is granted permission to appeal under section 103; or

(b)immediately before commencement, was entitled to apply to the Court of Appeal or Court of Session for permission to appeal under section 103,

may, after commencement, appeal or apply for permission to appeal under section 103 (as the case may be) as if that section had not been repealed.

(4) A party who, immediately before commencement, was entitled to apply to the Immigration Appeal Tribunal for permission to appeal under section 103, may apply to the Asylum and Immigration Tribunal for permission to appeal under that section; and section 103 shall continue to apply in relation to the application as if it had not been repealed, but with the modification in paragraph (5) below.

(5) In relation to an application for permission to appeal under section 103 which is made to or determined by the Asylum and Immigration Tribunal pursuant to paragraph (2) or (4), section 103 shall apply with the modification that the references to the Tribunal in section 103(2) shall be interpreted as referring to the Asylum and Immigration Tribunal.

(6) Where, after commencement, the Court of Appeal or Court of Session determines an appeal under section 103, section 103B(4) shall apply in relation to the appeal as it would in relation to an appeal under section 103B(1), but with the modification that the references to the Tribunal in paragraphs (a), (b) and (f) shall be interpreted as references to the Immigration Appeal Tribunal.

Further transitional provisions: appeals under the old appeals provisions

9.—(1) Where, immediately before commencement, an appeal to an adjudicator is pending to which any of the old appeals provisions apply, those provisions shall continue to apply to the appeal after commencement, subject (except where article 3 applies) to the modification that any reference in those provisions to an adjudicator shall be treated as a reference to the Asylum and Immigration Tribunal.

(2) Subject to paragraphs (3) to (5), any provision in the old appeals provisions about appeals or applications to the Immigration Appeal Tribunal or to a court shall not have effect after commencement, and instead sections 103A to 103E shall have effect in relation to appeals decided under the old appeals provisions.

(3) Where sections 103A to 103E have effect by virtue of paragraph (2), they shall do so with the modification that references to section 82 or 83 shall be treated as including a reference to the old appeals provisions.

(4) Where an appeal or application for permission to appeal to the Immigration Appeal Tribunal under the old appeals provisions is pending immediately before commencement—

(a)articles 4(b) and 5, or article 6(1), of this Order (as appropriate) shall apply; but

(b)if, under the old appeals provisions, the appeal or application was not restricted to the ground that the adjudicator made an error of law, then it shall not be so restricted following commencement.

(5) In relation to an appeal which has been determined by the Immigration Appeal Tribunal under the old appeals provisions before commencement, article 8 of this Order shall apply with the references to section 103 being treated as including references to corresponding provisions in the old appeals provisions.

Explanatory Note

(This note is not part of the Order)

This Order commences section 26 (unification of appeal system) of and Schedules 1 and 2 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 on 4th April 2005, with the exception that the insertion by section 26(6) of section 103D into the Nationality, Immigration and Asylum Act 2002 shall not come into force in Northern Ireland.

This Order also contains transitional provisions in relation to pending appeals which were made to an adjudicator before 4th April 2005, and in relation to further appeals and applications in such cases.

In particular, it provides that a pending appeal to an adjudicator shall continue after commencement as an appeal to the Asylum and Immigration Tribunal, and a pending appeal to the Immigration Appeal Tribunal shall be dealt with after commencement by the Asylum and Immigration Tribunal, subject to procedure rules, in the same manner as if it had originally decided the appeal and was reconsidering its own decision.

Provision is also made in relation to further appeals, applications for permission to appeal, and applications for review, which immediately before commencement are pending or could be brought.

Note as to Earlier Commencement Orders

(This note is not part of the Order)