Reply To: Immigration/Statutory review

#8495
Anonymous
Guest

Hello Pete. After our conversation about this yesterday I have been following up the rather tortuous amendments to the immigration appeals mechanism that have been implemented since 2002.

[b:7be574771f]The appeals system under the 1999 Act[/b:7be574771f]
Part IV of the Immigration and Asylum Act 1999 contains provisions for appeals, in particular s61 gives a right of appeal against variation or refusal to vary generally; and s69(2) gives a right of appeal against variation or refusal to vary by way of becoming an asylum seeker.

Schedule 4, para 17 says “while an appeal under section 61 or 69(2) is pending, the leave to which the appeal relates and any conditions subject to which it was granted continue to have effect.” s58(5) defines an appeals as being pending as long as there is still a further avenue open.

However, s115(9)(d) of the Act says that a person is subject to immigration control if their limited leave continues to have effect only by virtue of Sched 4.17.

[b:7be574771f]The case under discussion[/b:7be574771f]

On the face of it, the sequence of events that your first post describes would fall foul initially of s115(9)(a) (person requiring leave but not having it at the point when leave was varied or refused) and (d) thereafter (as soon as the appeal process was launched and while the appeal was pending at any level of the appeals procedure).

However, as you pointed out yesterday, the Nationality, Immigration and Asylum Act 2002 has changed things somewhat.

[b:7be574771f]The 2002 Act[/b:7be574771f]

I have been looking at the changes and I see that s161 of and Schedule 9 to the 2002 Act provide for much of the 1999 ASct to be repealed, including Part IV and Schedule 4. I traced the commencement order for those repeals and it seems they took effect on 1 April 2003 (SI 2003/754). What I could not find was any reference to a consequential amendment of s115(9)(d): it appears to be referring to provisions which no longer exist. Is this right? Does s115(9) still read the same way it always has?

I can only assume that the Interpretation Act is sufficient in these circumstances and that s115(9) should now be read as if it refers to the new appeals procedure. If that is correct, what does the new procedure have to say about appeals against variation/refusal to vary, in particular for how long are such appeals “pending”?

Well, sections 82 and 84 seem to provide for the same kind of appeals on the same kind of grounds so there are directly comparable rights of appeal to those ss61 and 69 of the 1999 Act that have been repealed.

Section 104 defines a “pending appeal” in much the same way that the 1999 Act defined it – from initial appeal right through to final exhaustion of all further avenues.

The thing I haven’t tracked down yet is whether there is an equivalent to the repealed Sched 4, para 17: leave continues to have effect while an appeal is pending. If that isn’t there, s115(9)(d) is no longer required.

[b:7be574771f]Conclusion[/b:7be574771f]

If it is possible to read s115(9)(d) as referring to the 2002 Act appeal provisions, and/or if the 2002 Act does not provide for leave to continue while an appeal is pending, then I think your claimant is a person subject to immigration control at every stage. If s115(9)(d) cannot be read as referring to equivalent provisions under the 2002 Act, then s115(9)(d) is otiose and there are in effect only three categories of person subject to immigration control. But this would only bring people back into HB entitlement if their leave is deemed to continue while an appeal is pending … and I haven’t found such a provision in the 2002 Act.

Finally, I see that there has been yet another immigration and asylum act in 2006, which further amends the 2002 appeal provisions. When I discovered this, I lost the will to live.