Immigration & Asylum Appeals (Procedure) Rules 2000: Summary

The Immigration and Asylum Appeals (Procedure) Rules (IAA(P)2000) came in to force on 2 October 2000. This article aims to summarize the main provisions of those rules. The IAA(P)2000 revokes the Immigration Appeals (Procedure) Rules 1994 (applying to non-asylum cases and the Asylum Appeals (Procedure) Rules 1996 (applying to asylum appeals). The present rules are designed to deal with both asylum and non-asylum appeals. They govern appeals before adjudicators and the Immigration Appeal Tribunal (IAT) as well as applications for bail.

The new rules apply to appeals pending on 2.10.00 or brought after that date. There are quite detailed transitional provisions that should be carefully examined in relation to any appeals brought before 2.10.00.

Appeals to the adjudicator
The time limit for the giving of a notice of appeal to an adjudicator shall be 10 days, where the appellant is in the UK and 28 days where the appellant is outside the UK, after the notice of the decision was received. A notice is deemed to be received (unless the contrary is proved) on the second day after it was sent (if in the UK) or 28 days (if abroad) or in any other case the day it was sent (see also below). An appeal brought outside this time limit may still be treated as lodged within the limit, if the person on whom it is served is satisfied, because of special circumstances, it would be just to treat is as such. An adjudicator may not extend the time limit unless he is satisfied that, because of special circumstances, it is just to do so.

An appeal shall be made by sending to the person notified (in the refusal decision) a notice of appeal in the prescribed form. The notice of appeal should contain all the grounds of appeal. If following the service of the notice of appeal the decision-maker serves any supplementary grounds of refusal then any variation to the grounds of appeal should be served within 5 days of receipt of the supplementary grounds of refusal. The rules allow the grounds to be varied later with leave of the adjudicator, but only if s/he is satisfied, because of special circumstances, it is just to do so. However, this presumption against allowing variation does not seem to apply to appeals on Human Rights or asylum grounds.

Once the notice of appeal and the grounds are received (whether in time or not), the respondent has to serve on the adjudicator and appellant the notice of appeal, the grounds of appeal and any other documents relevant to the decision. This is the equivalent of the present explanatory statement. If the respondent alleges that the appellant is not entitled to appeal, either because there is no right of appeal or because the notice of appeal was not given in time, a statement supporting the allegation shall be served on the adjudicator and appellant with the documents. The appellant then has the opportunity to submit a written statement to the adjudicator in reply to the allegation. The adjudicator then determines the allegation as a preliminary issue. Following the hearing the adjudicator may allow the appeal to proceed, unless there is an extant deportation order against the appellant.

Except in the case of summary determinations and determinations without hearing (see below), a hearing shall be conducted to determine an appeal. A hearing may be conducted, or evidence given or representations made by video link or other electronic means. If a party receives a determination against which there is no right of appeal, s/he may apply to the Chief Adjudicator (CA) for a review of the determination on the ground that it was wrongly made as a result of a procedural or administrative error by the adjudicator. The CA may also carry out such a review, of his own motion, not later than 10 days after the determination was sent to the parties, if the interest of justice so require and s/he is satisfied that it was wrongly made as a result of an administrative or procedural error. Following any such review the CA may either confirm the determination or set it side redirecting a re-hearing of the appeal. In either case he is required to give written reasons for his/her decision.

Appeal to the Immigration Appeal Tribunal
Appeals to the IAT (against an adjudicator's determination) may only be brought with leave from itself. An application for leave has to be made, within 10 days where the appellant is in the UK and 28 days where the appellant is abroad, after the receipt of written notice of the determination. The IAT has the power to extend the time limit for appealing if, because of special circumstances, it is just to do so. An application for leave has to be made on a prescribed form, identifying the errors of law or fact that would have made a difference to the outcome of the appeal together with the grounds of appeal. When the Tribunal receives an application for leave it has to inform the other parties of this fact. The Tribunal is not required to consider any grounds of appeal other than those included in the application.

The Tribunal shall only grant leave if it is satisfied that the appeal has a real prospect of success or there is some other compelling reason why leave should be granted. If the IAT grants leave then it has to inform the parties the grounds on which the appellant may appeal. If leave is refused the IAT has to give its reasons, in summary form, for its decision. Except for evidence relating to asylum or human rights, the IAT is not required to take in to account any evidence that was not submitted to the adjudicator in deciding whether or not to grant leave to appeal. However, the IAT may nevertheless take such evidence in to account if it satisfied that there was a good reason why it was not submitted to the adjudicator.

If the IAT refuses leave on an application the applicant may apply to it to review the decision on the grounds that it was wrongly made as a result of an administrative or procedural error. Any such application has to be made within 10 days of the receipt of the determination. The IAT may on its own motion review a refusal decision: the criterion applying to the CA applies here also. Following the review the IAT may either confirm the decision or re-consider it.

The grant of leave to appeal shall be deemed to be the notice of appeal. Any grounds of appeal may be varied with leave of the IAT. Notes of evidence taken by the adjudicator may be considered as evidence by the IAT. The Tribunal has the discretion to admit evidence that was not before the adjudicator. However, any evidence produced in breach of any directions given (see below) may not be considered by the IAT, unless it is satisfied that there are good reasons to do so. If after the grant of leave, a party wishes to adduce further evidence then it must give notice (as soon as practicable) to the IAT indicating its nature. The IAT (if it decides to admit the evidence) may then give directions as to how that evidence should be adduced. Appeals before the IAT should be determined by it, unless it considers remittal to an adjudicator to be in the interests of justice or it would save time and expense.

Application for leave to the Court of Appeal
An application to the IAT for leave to appeal to the Court of Appeal shall be made to it not later than 10 days from receipt of written notice of the final determination. Any such application will need to be made on a prescribed form and include all the grounds of appeal. If the Tribunal decides to grant leave then, having invited every party to the appeal to make representations, it may set aside the determination and direct that the appeal should be re-heard.

General provisions
The immigration appellate authority (IAA) may give directions either orally or in writing to secure the just, timely and effective disposal of appeals. Rule 30 (4) sets out the particulars in relations to which directions may be given. For example, setting the time limit within which something should be done, furnishing of particulars, the number of witnesses to be called, statements of evidence to be called at the hearing, preparation of the bundle of documents to be relied on, facilitation of combined hearings etc.

Adjournments
There is a presumption against the granting of adjournments unless a refusal would prevent the just disposal of the appeal. Any application for adjournments shall be copied to the other side. If a hearing is adjourned then the IAA may give directions for the future conduct of the appeal. If a party without satisfactory explanation, fails to comply with a direction or comply with a provision of the rules or appear at a hearing of which s/he has had notice, the IAA may treat that appeal as abandoned. Other sanctions for failure to comply with directions or the rules, include dismissing or allowing an appeal without consideration of the merits or determining an appeal without a hearing and prohibiting the admission fresh of evidence.

Bail
Applications for bail may be made either orally or in writing to an immigration officer, a police officer or the IAA. A written application has to contain such particulars as the name and date of birth of the applicant, where the applicant would reside if granted bail, the names, addresses and occupations of two sureties and the amount of recognizance they agree to be bound by and the grounds of any application. If the application is a repeat application the particulars of any change in circumstance needs to be furnished. If the application is granted, the IAA has to issue a certificate to this effect. On receipt of the certificate, the person having custody of the applicant shall release him/her.

Representation
The rules expressly exclude a person who is not a qualified person under section 84 of the immigration and Asylum Act 1999 from being able to represent an appellant in an appeal. Therefore, immigration consultants will not be able to act as representatives in appeals, unless they are registered with the immigration Services Commissioner created under the 1999 Act. There is a duty on an appellant to maintain contact with his representative. If a representative ceases to act, both s/he and the appellant are required to forthwith inform the IAA of this fact. Until the IAA is notified of the change of representative any document served on the representative shall be deemed to be validly served. A new representative is required by the rules to notify the IAA of that s/she is now acting for the appellant.

Summoning of witnesses
The IAA may by summons on a prescribed form require any person in the United Kingdom to give evidence or produce any document in his custody. However, that person could not be compelled to give evidence on any matter on which he could not be compelled in an action in a court of law. Also there is no duty to comply with the summons unless his/her expenses have been paid for

Mode of giving evidence
Evidence may be given before the IAA on any fact relevant to the appeal even if that evidence would be inadmissible in a court of law.

Burden of proof
If on an appeal a person asserts that he is not the person against whom a particular provision applies then it will be for him to prove that fact. For example, a person who claims to have the right of abode in the UK may claim that the public funds requirements in the immigration rules does not apply to him/her, in such a scenario it will be for him/her to prove that fact. Also, where in his/her dealings with the Secretary of State the burden of proof rests on the applicant, that burden still remains on him/her in an appeal before the IAA.

Exclusion of the public
The IAA shall exclude members of the public from a hearing in which it is considering an allegation that a passport or other travel document is a forgery; and may exclude the public from any other hearing if it is necessary in the interests of morals, public order, national security, interest of minors, protection of private life or where publicity may prejudice the interest of justice.

Hearing in the absence of a party
The IAA may hear an appeal in the absence of a party if satisfied that s/he is not in the UK; s/he is suffering from a communicable disease or mental disorder; by reason of illness or accident cannot attend the hearing; it is impracticable to give him/her notice of hearing and no other person is authorised to act for him her; or s/he has notified the IAA that they do not wish to attend the hearing. The IAA may also proceed with a hearing in the absence of a party where notice of hearing has been given, but the absent party has not furnished a satisfactory explanation for his/her absence.

Combined hearings
The IAA may combine two or more appeals together, if it appears to it that some common question of law or fact arises between them or they relate to a decision or action in respect of persons who are members of the same family or for some other reason it is desirable to hear the appeals together.

Determination without a hearing
An appeal may be determined without a hearing if the IAA, having given all the parties an opportunity of making representations, decides to allow the appeal. An appeal may also be determined without a hearing if the appellant is outside the UK and the IAA is satisfied that there is no person authorised to represent him at the hearing. Other instances include: in a preliminary issue the appellant not having filed a statement in reply or the IAA concluding that the reply does not warrant a hearing; the IAA being satisfied in view of the material before it and the nature of the issues raised that the matter can be determined without a hearing; no party has requested a hearing; the failure to comply with directions or the rules. A family visitor appeal shall also be determined without a hearing where the appellant has failed to pay the requisite fees when lodging the appeal.

Summary determination of appeals
IAA may determine an appeal summarily without a hearing, where the issues raised in the appeal have been considered in a previous appeal. However, this only applies where the facts raised in the two appeals do not materially differ and where the parties have been given an opportunity of making representations as to why it should not be dealt with summarily.

Transfer of proceedings
The Chief Adjudicator or any person carrying out his functions may transfer an appeal from one adjudicator to another, if it is not practicable, without undue delay for the appeal to be disposed of or for some other reason the appeal cannot be justly disposed of by that adjudicator. This power is also extended to the President of the IAT.

Notices
Notices may be sent by post or fax. Any notice sent to a person appearing to the authority to represent a party shall be deemed to have been sent to that party.

Notification of address
Parties are required to inform the IAA of their address for service and any change to that address. Unless a party gives notice of change of address, any service at his/her most recent address known to the IAA shall be deemed validly served. There is also a duty on the representative to notify the change of his/her address.

Calculation of time
The provision dealing with calculation of time is quite complex and will require closer examination in the appropriate factual context. Briefly, unless the contrary is proved, a document or notice is deemed to have been received on the second day (in the UK) and 28 days (abroad) after it was sent and in any other case on the day it was sent. Where a document is sent to the IAA it shall be deemed to be received on the day it was received. The same applies to the service of the notice of appeal. Bank holidays, weekends, Christmas Day, 27 to 31 December and Good Friday are excluded from the calculations.

Irregularities
Any irregularity from a failure to comply with the rules does not on its own render the proceedings void. However, if the IAA considers that any person may have been prejudiced by any irregularity, then it may take such steps it considers necessary to cure it. This includes the power to amend any document or give any notice etc.

Correction of accidental errors
Any errors or clerical mistakes in a determination may at any time be corrected. The IAT may correct any such errors or mistakes in the determination of an adjudicator after consulting him/her. Any such correction shall be notified to the parties concerned and treated as part determination.

Commentary on the (IAA(P)2000) is not contained within this briefing. Nevertheless, practitioners will have noticed that by and large these repeat the provisions contained in the previous rules it revokes and replaces. It does, however, introduce some new provisions whose meanings and implications will no doubt be tested in the courts in the coming days. Note should also be taken of the fact that all the prescribed forms are appended to the Rules and their use seems to be compulsory.