Commentary on Sections Part 5: Deportation of criminals Section 35: Appeal
113.This section modifies the usual appeals regime for cases subject to the automatic deportation process.
114.Subsection (2) disapplies the prohibition on making a deportation order while an appeal to the Tribunal against a decision to make an automatic deportation order is pending or could be brought. If a deportation order is made it invalidates any leave to enter or remain that the person has or is subsequently given while the order is in force (section 5(1) of the Immigration Act 1971). However, new subsection (4) of section 79 of the Nationality, Immigration and Asylum Act 2002, inserted by subsection (2), provides that a deportation order made under section 32 will not invalidate the deportee's leave to enter or remain while an in-country appeal against an immigration decision is pending.
115.Subsection (3) amends section 82 of the Nationality, Immigration and Asylum Act 2002 to provide that the definition of "immigration decision" includes a decision that section 32(5) applies. The effect of this is that an appeal can be brought against the decision to the Asylum and Immigration Tribunal under section 82(1) of that Act. The section distinguishes between a decision to make a deportation order under section 5(1) of the Immigration Act 1971 and a decision that section 32(5) applies. Appeals against the former may be brought in the United Kingdom in reliance on section 92(2) of the Nationality, Immigration and Asylum Act 2002 while the latter may not. It will still be possible to bring an appeal in the United Kingdom against a decision that section 32(5) applies in reliance on section 92(4) of the Nationality, Immigration and Asylum Act 2002. However, an appeal may not be brought in reliance on section 92(4) if the asylum or human rights claim is certified as clearly unfounded under section 94 of the 2002 Act.