TNAG-0319-FCO40-355-Legislation-for-immigration-and-deportation-in-Hong-Kong-1971 — Page 173

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c. 77

PART II

determination of adjudicator.

Immigration Act 1971

officer, that the discretion should have been exercised differently; and

(b) in any other case, shall dismiss the appeal.

(2) For the purposes of subsection (1)(a) above the adjudicator may review any determination of a question of fact on which the decision or action was based; and for the purposes of sub- section (1)(a)(ii) no decision or action which is in accordance with the immigration rules shall be treated as having involved the exercise of a discretion by the Secretary of State by reason only of the fact that he has been requested by or on behalf of the appellant to depart, or to authorise an officer to depart, from the rules and has refused to do so.

(3) Where an appeal is allowed, the adjudicator shall give such directions for giving effect to the determination as the adjudicator thinks requisite, and may also make recommenda- tions with respect to any other action which the adjudicator considers should be taken in the case under this Act; and, sub- ject to section 20(2) below, it shall be the duty of the Secretary of State and of any officer to whom directions are given under this subsection to comply with them.

(4) Where in accordance with section 15 above a person appeals to the Appeal Tribunal in the first instance, this section shall apply with the substitution of references to the Tribunal for references to an adjudicator.

Appeals from adjudicator to Tribunal, and review of decisions

Appeal to 20.-(1) Subject to any requirement of rules of procedure as Tribunal from to leave to appeal, any party to an appeal to an adjudicator may, if dissatisfied with his determination thereon, appeal to the Appeal Tribunal, and the Tribunal may affirm the determination or make any other determination which could have been made by the adjudicator.

(2) Directions given by an adjudicator under section 19(3) above need not be complied with so long as an appeal can be brought against his determination and, if such an appeal is duly brought, so long as the appeal is pending; and if the Tribunal affirm his determination allowing the appeal, they may alter or add to his directions and recommendations under section 19(3) or replace them with their own directions and recommendations, and the provisions of that subsection shall apply to directions given by them accordingly.

(3) Where an appeal is dismissed by an adjudicator but allowed by the Tribunal, section 19(3) above shall apply with the substitution of references to the Tribunal for references to the adjudicator.

G

Immigration Act 1971

c. 77

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21.-(1) Where in any case-

PART II

Reference

further

(a) an adjudicator has dismissed an appeal, and there has of cases for

been no further appeal to the Appeal Tribunal, or the consideration. Tribunal has dismissed an appeal made to them in the first instance by virtue of section 15 above; or (b) the Appeal Tribunal has affirmed the determination of an adjudicator dismissing an appeal, or reversed the determination of an adjudicator allowing an appeal ; the Secretary of State may at any time refer for consideration under this section any matter relating to the case which was not before the adjudicator or Tribunal.

(2) Any reference under this section shall be to an adjudicator or to the Appeal Tribunal, and the adjudicator or Tribunal shall consider the matter which is the subject of the reference and report to the Secretary of State the opinion of the adjudicator or Tribunal thereon.

Supplementary

22.-(1) The Secretary of State may make rules (in this Act Procedure. referred to as rules of procedure ")-

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(a) for regulating the exercise of the rights of appeal con-

ferred by this Part of this Act;

(b) for prescribing the practice and procedure to be followed on or in connection with appeals thereunder, including the mode and burden of proof and admissibility of evidence on such an appeal; and

(c) for other matters preliminary or incidental to or arising out of such appeals, including proof of the decisions of adjudicators or the Appeal Tribunal.

(2) Rules of procedure may include provision-

(a) enabling the Tribunal, on an appeal from an adjudicator, to remit the appeal to an adjudicator for determination by him in accordance with any directions of the Tribu- nal, or for further evidence to be obtained with a view to determination by the Tribunal; or

(b) enabling any functions of the Tribunal which relate to matters preliminary or incidental to an appeal, or which are conferred by Part II of Schedule 2 to this Act, to be performed by a single member of the Tribunal; or (c) conferring on adjudicators or the Tribunal such ancillary powers as the Secretary of State thinks necessary for the purposes of the exercise of their functions. (3) The rules of procedure shall provide that any appellant shall have the right to be legally represented.

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