S.I. 2006/2788: memorandum from the Department for Constitutional Affairs

Asylum and Immigration Tribunal (Procedure) (Amendment) Rules 2006 (S.I. 2006/2788)

1.  The Committee has requested a memorandum on the following points-

Identify the vires for-

(a)  rules 3, 12 and 13, and

(b)  rules 15 in so far as it inserts new rules 60(1D) in the principal Rules..

Rules 3, 12 and 13

2.  The Department considers that the vires for rules 3, 12 and 13 is contained in section 106(1)(b) of the Nationality, Immigration and Asylum Act 2002, which permits the Lord Chancellor to make rules "prescribing procedure to be followed in connection with proceedings under section 82, …". Section 82 contains the right of appeal to the Asylum and Immigration Tribunal. The Department considers that provisions requiring appeals to be made on a "form approved for the purpose by the President" falls within the scope of the procedure to be followed to make an appeal. The Department has considered whether this amounts to unlawful sub-delegation, but it does not believe that the approval of forms to be used in the Tribunal is of such critical importance to the Tribunal's procedures that it is a function the exercise of which must be retained by the Lord Chancellor and approved by Parliament. It notes that in one of the leading textbooks on Judicial Review, Judicial Review Handbook, Michael Fordham states that, when considering improper delegation, one of the factors which judges will take into account is "the nature of the function in question (eg whether it is ancillary to or at the heart of the public body's role)" (paragraph 50.3)

3.  The Department also notes that rules 18 and 19 of the Pensions Appeal Tribunal (England and Wales) Rules 1980 (S.I. 1980/1120), inserted by rules 5 and 6 of the Pensions Appeal Tribunal (England and Wales) (Amendment) Rules 2005 (S.I. 2005/709), refer to decision notices and records of proceedings being "in such written form as shall have been approved by the President". Those Rules were made under paragraph 5 of the Schedule to the Pensions Appeal Tribunal Act 1943, which in the view of the Department does not differ materially from section 106 of the Nationality, Immigration and Asylum Act 2002.

Rule 15

4.  The Department considers that the vires for the insertion of new rule 60(1D) is also found within section 106(1)(b), in that it falls within the Lord Chancellor's general power to prescribe procedure to be followed in the appeal process. The purpose of the new rule is to enable the Tribunal to set aside orders made erroneously. However, because this is not a common power, the Department considers that it was appropriate for the power to be exercised by the President and that it was within the vires of section 106(1)(b) to limit the exercise of the Tribunal's new jurisdiction in that way. But it also considers that it is within those vires for the rule to enable the President, in individual cases, to delegate his power to Tribunal judiciary of a suitable seniority.

5.  Section 106(1A)(b) provides that the rules may confer "responsibility for ensuring that proceedings before the tribunal are handled as fairly, quickly and efficiently as possible" and rule 4 of the principal Rules states that "where appropriate…members of the Tribunal have responsibility" for ensuring that that overriding objective of fairness, quickness and efficiency is met. It is the Department's view that new rule 60(1D) assists in securing a fair, quick and efficient appeal system, by providing that the President may delegate to a person of appropriate seniority the judicial power to consider an application to set aside an decision on the basis that it has been erroneously made as the result of an administrative error by the Tribunal or its staff.

28 November 2006

Department for Constitutional Affairs