The Immigration (Isle of Man) Order 2008

Article 17

PART 5 The Nationality, Immigration and Asylum Act 2002

“Part 1 - nationality

10    Right of abode: certificate of entitlement

(1) The Governor may by regulations make provision for the issue to a person of a certificate that he has the right of abode in the Isle of Man.

(2) The regulations may, in particular—

(a) specify to whom an application must be made;

(b) specify the place (which may be outside the United Kingdom) to which an application must be sent;

(c) provide that an application must be made in a specified form;

(d) provide that an application must be accompanied by specified documents;

(f) specify the consequences of failure to comply with a requirement under any of paragraphs (a) to (d) above;

(g) provide for a certificate to cease to have effect after a period of time specified in or determined in accordance with the regulations;

(h) make provision about the revocation of a certificate.

(3) The regulations may—

(a) make provision which applies generally or only in specified cases or circumstances;

(b) make different provision for different purposes;

(c) include consequential, incidental or transitional provision.

(6) Regulations under this section may, in particular, include provision saving, with or without modification, the effect of a certificate which is issued before the regulations come into force.

Part 4 – detention and removal

Detention

62    Detention by Governor

(1) A person may be detained under the authority of the Governor pending—

(a) a decision by the Governor whether to give directions in respect of the person under paragraph 10, 10A or 14 of Schedule 2 to the Immigration Act 1971 (control of entry: removal), or

(b) removal of the person from the Isle of Man in pursuance of directions given by the Governor under any of those paragraphs.

(2) Where the Governor is empowered under section 3A of that Act (powers of Governor) to examine a person or to give or refuse a person leave to enter the Isle of Man, the person may be detained under the authority of the Governor pending—

(a) the person’s examination by the Governor,

(b) the Governor’s decision to give or refuse the person leave to enter,

(c) a decision by the Governor whether to give directions in respect of the person under paragraph 8 or 9 of Schedule 2 to that Act (removal), or

(d) removal of the person in pursuance of directions given by the Governor under either of those paragraphs.

(3) A provision of Schedule 2 to that Act about a person who is detained or liable to detention under that Schedule shall apply to a person who is detained or liable to detention under this section: and for that purpose—

(a) a reference to paragraph 16 of that Schedule shall be taken to include a reference to this section,

(b) a reference in paragraph 21 of that Schedule to an immigration officer shall be taken to include a reference to the Governor, and

(c) a reference to detention under that Schedule or under a provision or Part of that Schedule shall be taken to include a reference to detention under this section.

(4) In the case of a restriction imposed under paragraph 21 of that Schedule by virtue of this section—

(a) a restriction imposed by an immigration officer may be varied by the Governor, and

(b) a restriction imposed by the Governor may be varied by an immigration officer.

(5) In subsection (1) the reference to paragraph 10 of that Schedule includes a reference to that paragraph as applied by virtue of section 10 of the Immigration and Asylum Act 1999 (persons unlawfully in Isle of Man: removal).

(6) Subsection (5) is without prejudice to the generality of section 159.

(7) A power under this section which is exercisable pending a decision of a particular kind by the Governor is exercisable where the Governor has reasonable grounds to suspect that he may make a decision of that kind.

Removal

72    Serious criminal

(1) This section applies for the purpose of the construction and application of Article 33(2) of the Refugee Convention (exclusion from protection).

(2) A person shall be presumed to have been convicted by a final judgment of a particularly serious crime and to constitute a danger to the community of the Isle of Man if he is—

(a) convicted in the Isle of Man of an offence, and

(b) sentenced to a period of custody of at least two years.

(3) A person shall be presumed to have been convicted by a final judgment of a particularly serious crime and to constitute a danger to the community of the Isle of Man if—

(a) he is convicted outside the Isle of Man of an offence,

(b) he is sentenced to a period of custody of at least two years, and

(c) he could have been sentenced to a period of custody of at least two years had his conviction been a conviction in the Isle of Man of a similar offence.

(4) A person shall be presumed to have been convicted by a final judgment of a particularly serious crime and to constitute a danger to the community of the Isle of Man if—

(a) he is convicted of an offence specified by order of the Governor, or

(b) he is convicted outside the Isle of Man of an offence and the Governor certifies that in his opinion the offence is similar to an offence specified by order under paragraph (a).

(6) A presumption under subsection (2), (3) or (4) that a person constitutes a danger to the community is rebuttable by that person.

(7) A presumption under subsection (2), (3) or (4) does not apply while an appeal against conviction or sentence—

(a) is pending, or

(b) could be brought (disregarding the possibility of appeal out of time with leave).

(9) Subsection (10) applies where—

(a) a person appeals under section 82 of this Act wholly or partly on the ground that to remove him from or to require him to leave the Isle of Man would breach the United Kingdom’s obligations under the Refugee Convention, and

(b) the Governor issues a certificate that presumptions under subsection (2), (3) or (4) apply to the person (subject to rebuttal).

(10) The adjudicator hearing the appeal—

(a) must begin substantive deliberation on the appeal by considering the certificate, and

(b) if in agreement that presumptions under subsection (2), (3) or (4) apply (having given the appellant an opportunity for rebuttal) must dismiss the appeal in so far as it relies on the ground specified in subsection (9)(a).

(11) For the purposes of this section—

(a) “the Refugee Convention” means the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and its Protocol, and

(b) a reference to a person who is sentenced to a period of custody of at least two years—

(i) does not include a reference to a person who receives a suspended sentence (unless at least two years of the sentence are not suspended),

(ii) includes a reference to a person who is sentenced to detention, or ordered or directed to be detained, in an institution other than a prison (including, in particular, a hospital or an institution for young offenders), and

(iii) includes a reference to a person who is sentenced to custody or detention, or ordered or directed to be detained, for an indeterminate period (provided that it may last for two years).

76    Revocation of leave to enter or remain

(1) The Governor may revoke a person’s indefinite leave to enter or remain in the Isle of Man if the person—

(a) is liable to deportation, but

(b) cannot be deported for legal reasons.

(2) The Governor may revoke a person’s indefinite leave to enter or remain in the Isle of Man if—

(a) the leave was obtained by deception,

(b) the person would be liable to removal because of the deception, but

(c) the person cannot be removed for legal or practical reasons.

(3) The Governor may revoke a person’s indefinite leave to enter or remain in the Isle of Man if the person, or someone of whom he is a dependant, ceases to be a refugee as a result of—

(a) voluntarily availing himself of the protection of his country of nationality,

(b) voluntarily re-acquiring a lost nationality,

(c) acquiring the nationality of a country other than the United Kingdom and availing himself of its protection, or

(d) voluntarily establishing himself in a country in respect of which he was a refugee.

(4) In this section—

“indefinite leave” has the meaning given by section 33(1) of the Immigration Act 1971 (interpretation),

“liable to deportation” has the meaning given by section 3(5) and (6) of that Act (deportation),

“refugee” has the meaning given by the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and its Protocol, and

“removed” means removed from the Isle of Man under—

(a)

paragraph 9 or 10 of Schedule 2 to the Immigration Act 1971 (control of entry: directions for removal), or

(b)

section 10(1)(b) of the Immigration and Asylum Act 1999 (removal of persons unlawfully in Isle of Man: deception).

(5) A power under subsection (1) or (2) to revoke leave may be exercised—

(a) in respect of leave granted before this section comes into force;

(b) in reliance on anything done before this section comes into force.

(6) A power under subsection (3) to revoke leave may be exercised—

(a) in respect of leave granted before this section comes into force, but

(b) only in reliance on action taken after this section comes into force.

78    No removal while appeal pending

(1) While a person’s appeal under section 82(1) is pending he may not be—

(a) removed from the Isle of Man in accordance with a provision of the Immigration Acts, or

(b) required to leave the Isle of Man in accordance with a provision of the Immigration Acts.

(2) In this section “pending” has the meaning given by section 104.

(3) Nothing in this section shall prevent any of the following while an appeal is pending—

(a) the giving of a direction for the appellant’s removal from the Isle of Man,

(b) the making of a deportation order in respect of the appellant (subject to section 79), or

(c) the taking of any other interim or preparatory action.

(4) This section applies only to an appeal brought while the appellant is in the Isle of Man in accordance with section 92.

79    Deportation order: appeal

(1) A deportation order may not be made in respect of a person while an appeal under section 82(1) against the decision to make the order—

(a) could be brought (ignoring any possibility of an appeal out of time with permission), or

(b) is pending.

(2) In this section “pending” has the meaning given by section 104.

Part 5 - immigration appeals

Appeal to adjudicator

81    Adjudicators

The High Bailiff and any Deputy High Bailiff shall be adjudicators for the purposes of this Part.

82    Right of appeal: general

(1) Where an immigration decision is made in respect of a person he may appeal to an adjudicator.

(2) In this Part “immigration decision” means—

(a) refusal of leave to enter the Isle of Man,

(b) refusal of entry clearance,

(c) refusal of a certificate of entitlement under section 10 of this Act,

(d) refusal to vary a person’s leave to enter or remain in the Isle of Man if the result of the refusal is that the person has no leave to enter or remain,

(e) variation of a person’s leave to enter or remain in the Isle of Man if when the variation takes effect the person has no leave to enter or remain,

(f) revocation under section 76 of this Act of indefinite leave to enter or remain in the Isle of Man,

(g) a decision that a person is to be removed from the Isle of Man by way of directions under section 10(1)(a), (b), (ba) or (c) of the Immigration and Asylum Act 1999 (removal of person unlawfully in Isle of Man),

(h) a decision that an illegal entrant is to be removed from the Isle of Man by way of directions under paragraphs 8 to 10 of Schedule 2 to the Immigration Act 1971 (control of entry: removal),

(i) a decision that a person is to be removed from the Isle of Man by way of directions given by virtue of paragraph 10A of that Schedule (family),

(ia) a decision that a person is to be removed from the Isle of Man by way of directions under paragraph 12(2) of Schedule 2 to the Immigration Act 1971 (seamen and aircrews),

(ib) a decision to make an order under section 2A of that Act (deprivation of right of abode),

(j) a decision to make a deportation order under section 5(1) of that Act, and

(k) refusal to revoke a deportation order under section 5(2) of that Act.

(4) The right of appeal under subsection (1) is subject to the exceptions and limitations specified in this Part.

84    Grounds of appeal

(1) An appeal under section 82(1) against an immigration decision must be brought on one or more of the following grounds—

(a) that the decision is not in accordance with immigration rules;

(b) that the decision is unlawful by virtue of section 1 or 2 of the Race Relations Act 2004 (an Act of Tynwald) (public authorities: general statutory duty);

(c) that the decision is unlawful under section 6 of the Human Rights Act 2001 (an Act of Tynwald) (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant’s Convention rights;

(d) that the appellant is an EEA national or a member of the family of an EEA national and the decision breaches the appellant’s rights under the Community Treaties in respect of entry to or residence in the Isle of Man;

(e) that the decision is otherwise not in accordance with the law;

(f) that the person taking the decision should have exercised differently a discretion conferred by immigration rules;

(g) that removal of the appellant from the Isle of Man in consequence of the immigration decision would breach the United Kingdom’s obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 2001 (an Act of Tynwald) as being incompatible with the appellant’s Convention rights.

(2) In subsection (1)(d) “EEA national” means a national of a State which is a contracting party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 (as it has effect from time to time).

85    Matters to be considered

(1) An appeal under section 82(1) against a decision shall be treated by the adjudicator as including an appeal against any decision in respect of which the appellant has a right of appeal under section 82(1).

(2) If an appellant under section 82(1) makes a statement under section 120, the adjudicator shall consider any matter raised in the statement which constitutes a ground of appeal of a kind listed in section 84(1) against the decision appealed against.

(3) Subsection (2) applies to a statement made under section 120 whether the statement was made before or after the appeal was commenced.

(4) On an appeal under section 82(1) against a decision an adjudicator may consider evidence about any matter which he thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision.

(5) But in relation to an appeal under section 82(1) against refusal of entry clearance or refusal of a certificate of entitlement under section 10—

(a) subsection (4) shall not apply, and

(b) the adjudicator may consider only the circumstances appertaining at the time of the decision to refuse.

86    Determination of appeal

(1) This section applies on an appeal under section 82(1).

(2) The adjudicator must determine—

(a) any matter raised as a ground of appeal (whether or not by virtue of section 85(1)), and

(b) any matter which section 85 requires him to consider.

(3) The adjudicator must allow the appeal in so far as he thinks that—

(a) a decision against which the appeal is brought or is treated as being brought was not in accordance with the law (including immigration rules), or

(b) a discretion exercised in making a decision against which the appeal is brought or is treated as being brought should have been exercised differently.

(4) For the purposes of subsection (3) a decision that a person should be removed from the Isle of Man under a provision shall not be regarded as unlawful if it could have been lawfully made by reference to removal under another provision.

(5) In so far as subsection (3) does not apply, the adjudicator shall dismiss the appeal.

(6) Refusal to depart from or to authorise departure from immigration rules is not the exercise of a discretion for the purposes of subsection (3)(b).

87    Successful appeal: direction

(1) If an adjudicator allows an appeal under section 82 he may give a direction for the purpose of giving effect to his decision.

(2) A person responsible for making an immigration decision shall act in accordance with any relevant direction under subsection (1).

Exceptions and limitations

88    Ineligibility

(1) This section applies to an immigration decision of a kind referred to in section 82(2)(a), (b), (d) or (e).

(2) A person may not appeal under section 82(1) against an immigration decision which is taken on the grounds that he or a person of whom he is a dependant—

(a) does not satisfy a requirement as to age, nationality or citizenship specified in immigration rules,

(b) does not have an immigration document of a particular kind (or any immigration document),

(ba) has failed to supply a medical report or a medical certificate in accordance with a requirement of immigration rules,

(c) is seeking to be in the Isle of Man for a period greater than that permitted in his case by immigration rules, or

(d) is seeking to enter or remain in the Isle of Man for a purpose other than one for which entry or remaining is permitted in accordance with immigration rules.

(3) In subsection (2)(b) “immigration document” means—

(a) entry clearance,

(b) a passport,

(c) an immigration employment document, and

(d) a document which relates to a national of a country other than the United Kingdom and which is designed to serve the same purpose as a passport.

(4) Subsection (2) does not prevent the bringing of an appeal on any or all of the grounds referred to in section 84(1)(b), (c) and (g).

(5) In subsection (3)(c), “immigration employment document” means—

(a) a work permit, and

(b) any other document which relates to employment and is issued for a purpose of immigration rules or in connection with leave to enter or remain in the Isle of Man.

88A    Ineligibility: entry clearance

(1) A person may not appeal under section 82(1) against refusal of entry clearance if the decision to refuse is taken on grounds which—

(a) relate to a provision of immigration rules, and

(b) are specified for the purpose of this section by order of the Governor.

(2) Subsection (1)—

(a) does not prevent the bringing of an appeal on either or both of the grounds referred to in section 84(1)(b) and (c), and

(b) is without prejudice to the effect of section 88 in relation to an appeal under section 82(1) against refusal of entry clearance.

89    Refusal of leave to enter

(1) A person may not appeal under section 82(1) against refusal of leave to enter the Isle of Man unless—

(a) on his arrival in the Isle of Man he had entry clearance, and

(b) the purpose of entry specified in the entry clearance is the same as that specified in his application for leave to enter.

(2) Subsection (1) does not prevent the bringing of an appeal on any or all of the grounds referred to in section 84(1)(b), (c) and (g).

90    Non-family visitor

(1) A person who applies for entry clearance for the purpose of entering the Isle of Man as a visitor may appeal under section 82(1) against refusal of entry clearance only if the application was made for the purpose of visiting a member of the applicant’s family.

(2) In subsection (1) the reference to a member of the applicant’s family shall be construed in accordance with regulations.

(3) Regulations under subsection (2) may, in particular, make provision wholly or partly by reference to the duration of two individuals’ residence together.

(4) Subsection (1) does not prevent the bringing of an appeal on either or both of the grounds referred to in section 84(1)(b) and (c).

91    Student

(1) A person may not appeal under section 82(1) against refusal of entry clearance if he seeks it—

(a) in order to follow a course of study for which he has been accepted and which will not last more than six months,

(b) in order to study but without having been accepted for a course, or

(c) as the dependant of a person seeking entry clearance for a purpose described in paragraph (a) or (b).

(2) Subsection (1) does not prevent the bringing of an appeal on either or both of the grounds referred to in section 84(1)(b) and (c).

92    Appeal from within Isle of Man: general

(1) A person may not appeal under section 82(1) while he is in the Isle of Man unless his appeal is of a kind to which this section applies.

(2) This section applies to an appeal against an immigration decision of a kind specified in section 82(2)(c), (d), (e), (f) and (j).

(3) This section also applies to an appeal against refusal of leave to enter the Isle of Man if—

(a) at the time of the refusal the appellant is in the Isle of Man, and

(b) on his arrival in the Isle of Man the appellant had entry clearance.

(3A) But this section does not apply by virtue of subsection (3) if subsection (3B) or (3C) applies to the refusal of leave to enter.

(3B) This subsection applies to a refusal of leave to enter which is a deemed refusal under paragraph 2A(9) of Schedule 2 to the Immigration Act 1971 resulting from cancellation of leave to enter by an immigration officer—

(a) under paragraph 2A(8) of that Schedule, and

(b) on the grounds specified in paragraph 2A(2A) of that Schedule.

(3C) This subsection applies to a refusal of leave to enter which specifies that the grounds for refusal are that the leave is sought for a purpose other than that specified in the entry clearance.

(3D) This section also applies to an appeal against refusal of leave to enter the Isle of Man if at the time of the refusal the appellant—

(a) is in the Isle of Man,

(b) has a work permit, and

(c) is any of the following (within the meaning of the British Nationality Act 1981)—

(i) a British overseas territories citizen,

(ii) a British Overseas citizen,

(iii) a British National (Overseas),

(iv) a British protected person, or

(v) a British subject.

(4) This section also applies to an appeal against an immigration decision if the appellant—

(a) has made a human rights claim, while in the Isle of Man, or

(b) is an EEA national or a member of the family of an EEA national and makes a claim to the Governor that the decision breaches the appellant’s rights under the Community Treaties in respect of entry to or residence in the Isle of Man.

94    Appeal from within Isle of Man: unfounded human rights claim

(1) This section applies to an appeal under section 82(1) where the appellant has a human rights claim.

(1A) A person may not bring an appeal against an immigration decision of a kind specified in section 82(2)(c), (d) or (e) in reliance on section 92(2) if the Governor certifies that the claim mentioned in subsection (1) above is clearly unfounded.

(2) A person may not bring an appeal to which this section applies in reliance on section 92(4)(a) if the Governor certifies that the claim mentioned in subsection (1) above is clearly unfounded.

(3) If the Governor is satisfied that a human rights claimant is entitled to reside in a State specified in an order under subsection (4), he shall certify the claim under subsection (2) unless satisfied that it is not clearly unfounded.

(4) The Governor may by order specify a State for the purpose of subsection (3) if he is satisfied that—

(a) there is in general in that State or part no serious risk of persecution of persons entitled to reside in that State or part, and

(b) removal to that State or part of persons entitled to reside there will not in general contravene the United Kingdom’s obligations under the Human Rights Convention.

(6A) Subsection (3) shall not apply in relation to a human rights claimant who—

(d) is the subject of an authority to proceed under section 7 of the Extradition Act 1989) or an order under paragraph 4(2) of Schedule 1 to that Act, or

(e) is the subject of a provisional warrant under section 8 of that Act or of a warrant under paragraph 5(1)(b) of Schedule 1 to that Act.

(6B) A certificate under subsection (1A) or (2) may not be issued (and subsection (3) shall not apply) in relation to an appeal under section 82(2)(d) or (e) against a decision relating to leave to enter or remain in the Isle of Man, where the leave was given in circumstances specified for the purposes of this subsection by order of the Governor.

(7) A person may not bring an appeal to which this section applies in reliance on section 92(4) if the Governor certifies that—

(a) it is proposed to remove the person to a country of which he is not a national or citizen, and

(b) there is no reason to believe that the person’s rights under the Human Rights Convention will be breached in that country.

(8) In determining whether a person in relation to whom a certificate has been issued under subsection (7) may be removed from the Isle of Man, the country specified in the certificate is to be regarded as—

(a) a place where a person’s life and liberty is not threatened by reason of his race, religion, nationality, membership of a particular social group, or political opinion, and

(b) a place from which a person will not be sent to another country otherwise than in accordance with the Refugee Convention.

(9) Where a person in relation to whom a certificate is issued under this section subsequently brings an appeal under section 82(1) while outside the Isle of Man, the appeal shall be considered as if he had not been removed from the Isle of Man.

95    Appeal from outside Isle of Man: removal

A person who is outside the Isle of Man may not appeal under section 82(1) on the ground specified in section 84(1)(g) (except in a case to which section 94(9) applies).

96    Earlier right of appeal

(1) An appeal under section 82(1) against an immigration decision (“the new decision”) in respect of a person may not be brought if the Governor or an immigration officer certifies—

(a) that the person was notified of a right of appeal under that section against another immigration decision (“the old decision”) (whether or not an appeal was brought and whether or not any appeal brought has been determined),

(b) that the claim or application to which the new decision relates relies on a matter that could have been raised in an appeal against the old decision, and

(c) that, in the opinion of the Governor or the immigration officer, there is no satisfactory reason for that matter not having been raised in an appeal against the old decision.

(2) An appeal under section 82(1) against an immigration decision (“the new decision”) in respect of a person may not be brought if the Governor or an immigration officer certifies—

(a) that the person received a notice under section 120 by virtue of an application other than that to which the new decision relates or by virtue of a decision other than the new decision,

(b) that the new decision relates to an application or claim which relies on a matter that should have been, but has not been, raised in a statement made in response to that notice, and

(c) that, in the opinion of the Governor or the immigration officer, there is no satisfactory reason for that matter not having been raised in a statement made in response to that notice.

(4) In subsection (1) “notified” means notified in accordance with regulations under section 105.

(5) Subsections (1) and (2) apply to prevent a person’s right of appeal whether or not he has been outside the Isle of Man since an earlier right of appeal arose or since a requirement under section 120 was imposed.

(7) A certificate under subsection (1) or (2) shall have no effect in relation to an appeal instituted before the certificate is issued.

97    National security, &c

(1) An appeal under section 82(1) against a decision in respect of a person may not be brought or continued if the Governor certifies that the decision is or was taken—

(a) by the Governor wholly or partly on a ground listed in subsection (2), or

(b) in accordance with a direction of the Governor which identifies the person to whom the decision relates and which is given wholly or partly on a ground listed in subsection (2).

(2) The grounds mentioned in subsection (1) are that the person’s exclusion or removal from the Isle of Man is—

(a) in the interests of national security in the United Kingdom or the Isle of Man, or

(b) in the interests of the relationship between the United Kingdom and another country.

(3) An appeal under section 82(1) against a decision may not be brought or continued if the Governor certifies that the decision is or was taken wholly or partly in reliance on information which in his opinion should not be made public—

(a) in the interests of national security,

(b) in the interests of the relationship between the United Kingdom and another country, or

(c) otherwise in the public interest.

(4) In subsections (1)(a) and (b) and (3) a reference to the Governor is to the Governor acting in person.

97A    National security: deportation

(1) This section applies where the Governor certifies that the decision to make a deportation order in respect of a person was taken on the grounds that his removal from the Isle of Man would be in the interests of national security in the United Kingdom or the Isle of Man.

(2) Where this section applies—

(a) section 79 shall not apply, and

(b) the Governor shall be taken to have certified the decision to make the deportation order under section 97.

98    Other grounds of public good

(1) This section applies to an immigration decision of a kind referred to in section 82(2)(a) or (b).

(2) An appeal under section 82(1) against an immigration decision may not be brought or continued if the Governor certifies that the decision is or was taken—

(a) by the Governor wholly or partly on the ground that the exclusion or removal from the Isle of Man of the person to whom the decision relates is conducive to the public good, or

(b) in accordance with a direction of the Governor which identifies the person to whom the decision relates and which is given wholly or partly on that ground.

(3) In subsection (2)(a) and (b) a reference to the Governor is to the Governor acting in person.

(4) Subsection (2) does not prevent the bringing of an appeal on either or both of the grounds referred to in section 84(1)(b) and (c).

(5) Subsection (2) does not prevent the bringing of an appeal against an immigration decision of the kind referred to in section 82(2)(a) on the grounds referred to in section 84(1)(g).

99    Sections 96 to 98: appeal in progress

(1) This section applies where a certificate is issued under section 96(1) or (2), 97 or 98 in respect of a pending appeal.

(2) The appeal shall lapse.

103E    Appeal from adjudicator

(1) This section applies to a decision of the adjudicator on an appeal under section 82.

(2) A party to the appeal may bring a further appeal on a point of law to the High Court.

(3) An appeal under subsection (2) may be brought only with the permission of—

(a) the adjudicator, or

(b) if the adjudicator refuses permission, the High Court.

(4) On an appeal under subsection (2) the High Court may—

(a) affirm the adjudicator’s decision;

(b) make any decision which the adjudicator could have made;

(c) remit the case to the adjudicator;

(d) affirm a direction under section 87;

(e) vary a direction under section 87;

(f) give a direction which the adjudicator could have given under section 87.

(7) In this section a reference to the adjudicator’s decision on an appeal does not include a reference to—

(a) a procedural, ancillary or preliminary decision.

(8) A decision of the High Court under this section shall be final.

104    Pending appeal

(1) An appeal under section 82(1) is pending during the period—

(a) beginning when it is instituted, and

(b) ending when it is finally determined, withdrawn or abandoned (or when it lapses under section 99).

(4) An appeal under section 82(1) brought by a person while he is in the Isle of Man shall be treated as abandoned if the appellant leaves the Isle of Man.

(4A) An appeal under section 82(1) brought by a person while he is in the Isle of Man shall be treated as abandoned if the appellant is granted leave to enter or remain in the Isle of Man (subject to subsections (4B) and (4C)).

(4B) Subsection (4A) shall not apply to an appeal in so far as it is brought on the ground relating to the Refugee Convention specified in section 84(1)(g) where the appellant—

(a) is granted leave to enter or remain in the Isle of Man for a period exceeding 12 months, and

(b) gives notice, in accordance with any relevant procedural rules (which may include provision about timing), that he wishes to pursue the appeal in so far as it is brought on that ground.

(4C) Subsection (4A) shall not apply to an appeal in so far as it is brought on the ground specified in section 84(1)(b) where the appellant gives notice, in accordance with any relevant procedural rules (which may include provision about timing), that he wishes to pursue the appeal in so far as it is brought on that ground.

(5) An appeal under section 82(2)(a), (c), (d), (e) or (f) shall be treated as finally determined if a deportation order is made against the appellant.

105    Notice of immigration decision

(1) The Governor may make regulations requiring a person to be given written notice where an immigration decision is taken in respect of him.

(2) The regulations may, in particular, provide that a notice under subsection (1) of a decision against which the person is entitled to appeal under section 82(1) must state—

(a) that there is a right of appeal under that section, and

(b) how and when that right may be exercised.

(3) The regulations may make provision (which may include presumptions) about service.

106    Rules

(1) The Deemsters may make rules—

(a) regulating the exercise of the right of appeal under section 82 or by virtue of section 109;

(b) prescribing procedure to be followed in connection with proceedings under section 82 or by virtue of section 109.

(1A) In making rules under subsection (1) the Deemsters shall aim to ensure—

(a) that the rules are designed to ensure that proceedings before an adjudicator are handled as fairly, quickly and efficiently as possible, and

(b) that the rules where appropriate confer on an adjudicator responsibility for ensuring that proceedings before the adjudicator are handled as fairly, quickly and efficiently as possible.

(2) In particular, rules under subsection (1)—

(a) must entitle an appellant to be legally represented at any hearing of his appeal;

(b) may enable or require an appeal to be determined without a hearing;

(c) may enable or require an appeal to be dismissed without substantive consideration where practice or procedure has not been complied with;

(d) may enable or require an adjudicator to treat an appeal as abandoned in specified circumstances;

(e) may enable or require an adjudicator to determine an appeal in the absence of parties in specified circumstances;

(f) may enable or require an adjudicator to determine an appeal by reference only to written submissions in specified circumstances;

(g) may make provision about the adjournment of an appeal by an adjudicator (which may include provision prohibiting an adjudicator from adjourning except in specified circumstances);

(h) may make provision about the treatment of adjourned appeals by an adjudicator (which may include provision requiring an adjudicator to determine an appeal within a specified period);

(i) may make provision about the use of electronic communication in the course of or in connection with a hearing;

(m) must make provision about the consolidation of appeals;

(n) may make provision (which may include presumptions) about service;

(o) may confer ancillary powers on an adjudicator;

(p) may confer a discretion on an adjudicator;

(q) may require an adjudicator to give notice of a determination to a specified person;

(r) may require or enable notice of a determination to be given on behalf of an adjudicator;

(s) may make provision about the grant of bail by an adjudicator (which may, in particular, include provision which applies or is similar to any enactment).

(w) shall provide that a party to an appeal is to be treated as having received notice of an adjudicator’s decision, unless the contrary is shown, at such time as may be specified in, or determined in accordance with, the rules;

(y) may make provision about the form and content of decisions of an adjudicator.

(3) Rules under subsection (1)—

(a) may enable an adjudicator to make an award of costs or expenses,

(b) may make provision (which may include provision conferring discretion on a court) for the taxation or assessment of costs or expenses,

(c) may make provision about interest on an award of costs or expenses (which may include provision conferring a discretion or providing for interest to be calculated in accordance with provision made by the rules),

(d) may enable an adjudicator to disallow all or part of a representative’s costs or expenses, and

(e) may enable an adjudicator to require a representative to pay specified costs or expenses.

(4) A person commits an offence if without reasonable excuse he fails to comply with a requirement imposed in accordance with rules under subsection (1) to attend before an adjudicator—

(a) to give evidence, or

(b) to produce a document.

(5) A person who is guilty of an offence under subsection (4) shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.

108    Forged document: proceedings in private

(1) This section applies where it is alleged—

(a) that a document relied on by a party to an appeal under section 82 is a forgery, and

(b) that disclosure to that party of a matter relating to the detection of the forgery would be contrary to the public interest.

(2) The adjudicator—

(a) must investigate the allegation in private, and

(b) may proceed in private so far as necessary to prevent disclosure of the matter referred to in subsection (1)(b).

General

109    European Union and European Economic Area

(1) Regulations may provide for, or make provision about, an appeal against an immigration decision taken in respect of a person who has or claims to have a right under any of the Community Treaties.

(2) The regulations may—

(a) apply a provision of this Act with or without modification;

(b) make provision similar to a provision made by or under this Act;

(c) disapply or modify the effect of a provision of this Act.

(3) In subsection (1) “immigration decision” means a decision about—

(a) a person’s entitlement to enter or remain in the Isle of Man, or

(b) removal of a person from the Isle of Man.

112    Regulations, &c

(1) Regulations under this Part shall be made by the Governor.

(3) Regulations and rules under this Part—

(a) may make provision which applies generally or only in a specified case or in specified circumstances,

(b) may make different provision for different cases or circumstances,

(c) may include consequential, transitional or incidental provision, and

(d) may include savings.

(3A) An order under section 88A—

(c) may include transitional provision.

113    Interpretation

(1) In this Part, unless a contrary intention appears—

“entry clearance” has the meaning given by section 33(1) of the Immigration Act 1971 (interpretation),

“human rights claim” means a claim made by a person to the Governor that to remove the person from or require him to leave the Isle of Man or the United Kingdom would be unlawful under section 6 of the Human Rights Act 2001 (an Act of Tynwald) (public authority not to act contrary to Convention) as being incompatible with his Convention rights,

“the Human Rights Convention” has the same meaning as “the Convention” in the Human Rights Act 2001 (an Act of Tynwald) and “Convention rights” shall be construed in accordance with section 1 of that Act,

“illegal entrant” has the meaning given by section 33(1) of the Immigration Act 1971,

“immigration rules” means rules under section 1(4) of that Act (general immigration rules),

“prescribed” means prescribed by regulations,

“the Refugee Convention” means the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and its Protocol,

“visitor” means a visitor in accordance with immigration rules, and

“work permit” has the meaning given by section 33(1) of the Immigration Act 1971 (interpretation).

(2) A reference to varying leave to enter or remain in the Isle of Man does not include a reference to adding, varying or revoking a condition of leave.

Part 6 - immigration procedure

Applications

120    Requirement to state additional grounds for application

(1) This section applies to a person if—

(a) he has made an application to enter or remain in the Isle of Man, or

(b) an immigration decision within the meaning of section 82 has been taken or may be taken in respect of him.

(2) An immigration officer may by notice in writing require the person to state—

(a) his reasons for wishing to enter or remain in the Isle of Man,

(b) any grounds on which he should be permitted to enter or remain in the Isle of Man, and

(c) any grounds on which he should not be removed from or required to leave the Isle of Man.

(3) A statement under subsection (2) need not repeat reasons or grounds set out in—

(a) the application mentioned in subsection (1)(a), or

(b) an application to which the immigration decision mentioned in subsection (1)(b) relates.

Provision of information by traveller

126    Physical data: compulsory provision

(1) The Governor may by regulations—

(a) require an immigration application to be accompanied by specified information about external physical characteristics of the applicant;

(b) enable an authorised person to require an individual who makes an immigration application to provide information about his external physical characteristics;

(c) enable an authorised person to require an entrant to provide information about his external physical characteristics.

(2) In subsection (1) “immigration application” means an application for—

(a) entry clearance,

(b) leave to enter or remain in the Isle of Man, or

(c) variation of leave to enter or remain in the Isle of Man.

(3) Regulations under subsection (1) may not—

(a) impose a requirement in respect of a person to whom section 141 of the Immigration and Asylum Act 1999 (fingerprinting) applies, during the relevant period within the meaning of that section, or

(b) enable a requirement to be imposed in respect of a person to whom that section applies, during the relevant period within the meaning of that section.

(4) Regulations under subsection (1) may, in particular—

(a) require, or enable an authorised person to require, the provision of information in a specified form;

(b) require an individual to submit, or enable an authorised person to require an individual to submit, to a specified process by means of which information is obtained or recorded;

(c) make provision about the effect of failure to provide information or to submit to a process (which may, in particular, include provision for an application to be disregarded or dismissed if a requirement is not satisfied);

(d) confer a function (which may include the exercise of a discretion) on an authorised person;

(e) require an authorised person to have regard to a code (with or without modification);

(f) require an authorised person to have regard to such provisions of a code (with or without modification) as may be specified by direction of the Governor;

(g) make provision about the use and retention of information provided (which may include provision permitting the use of information for specified purposes which do not relate to immigration);

(h) make provision which applies generally or only in specified cases or circumstances;

(i) make different provision for different cases or circumstances.

(5) Regulations under subsection (1) must—

(a) include provision about the destruction of information obtained or recorded by virtue of the regulations,

(b) require the destruction of information at the end of the period of ten years beginning with the day on which it is obtained or recorded in a case for which destruction at the end of another period is not required by or in accordance with the regulations, and

(c) include provision similar to section 143(2) and (10) to (13) of the Immigration and Asylum Act 1999 (fingerprints: destruction of copies and electronic data).

(6) In so far as regulations under subsection (1) require an individual under the age of 16 to submit to a process, the regulations must make provision similar to section 141(3) to (5) and (13) of the Immigration and Asylum Act 1999 (fingerprints: children).

(7) In so far as regulations under subsection (1) enable an authorised person to require an individual under the age of 16 to submit to a process, the regulations must make provision similar to section 141(3) to (5), (12) and (13) of that Act (fingerprints: children).

(9) In this section—

“authorised person” has the meaning given by section 141(5) of the Immigration and Asylum Act 1999 (authority to take fingerprints),

“code” has the meaning given by section 145(6) of that Act (code of practice),

“entrant” has the meaning given by section 33(1) of the Immigration Act 1971 (interpretation),

“entry clearance” has the meaning given by section 33(1) of that Act, and

“external physical characteristics” includes, in particular, features of the iris or any other part of the eye.

127    Physical data: voluntary provision

(1) The Governor may operate a scheme under which an individual may supply, or submit to the obtaining or recording of, information about his external physical characteristics to be used (wholly or partly) in connection with entry to the Isle of Man.

(2) In particular, the Governor may—

(a) require an authorised person to use information supplied under a scheme;

(b) make provision about the collection, use and retention of information supplied under a scheme (which may include provision requiring an authorised person to have regard to a code);

(c) charge for participation in a scheme.

(3) In this section the following expressions have the same meaning as in section 126—

(a) “authorised person”,

(b) “code”, and

(c) “external physical characteristics”.

Disclosure of information by public authority

133    Medical inspectors

(1) This section applies to a person if an immigration officer acting under Schedule 2 to the Immigration Act 1971 (control on entry, &c) has brought the person to the attention of—

(a) a medical inspector appointed under paragraph 1(2) of that Schedule, or

(b) a person working under the direction of a medical inspector appointed under that paragraph.

(2) A medical inspector may disclose to the Department—

(a) the name of a person to whom this section applies,

(b) his place of residence in the Isle of Man,

(c) his age,

(d) the language which he speaks,

(e) the nature of any disease with which the inspector thinks the person may be infected,

(f) relevant details of the person’s medical history,

(g) the grounds for an opinion mentioned in paragraph (e) (including the result of any test or examination which has been carried out), and

(h) the inspector’s opinion about action which the Department should take.

(3) A disclosure may be made under subsection (2) only if the medical inspector thinks it necessary for the purpose of—

(a) preventative medicine,

(b) medical diagnosis,

(c) the provision of care or treatment, or

(d) the management of health care services.

(4) In this section “the Department” means the Department of Health and Social Security.

Disclosure of information by private person

134    Employer

(1) The Governor may require an employer to supply information about an employee whom the Governor reasonably suspects of having committed an offence under—

(a) section 24(1)(a), (b), (c), (e) or (f), 24A(1) or 26(1)(c) or (d) of the Immigration Act 1971 (illegal entry, deception, &c),

(2) The power under subsection (1) may be exercised to require information about an employee only if the information—

(a) is required for the purpose of establishing where the employee is, or

(b) relates to the employee’s earnings or to the history of his employment.

(3) In this section a reference to an employer or employee—

(a) includes a reference to a former employer or employee, and

(b) shall be construed in accordance with section 8(8) of the Asylum and Immigration Act 1996 (restrictions on employment).

(4) Where—

(a) a business (the “employment agency”) arranges for one person (the “worker”) to provide services to another (the “client”), and

(b) the worker is not employed by the employment agency or the client,

this section shall apply as if the employment agency were the worker’s employer while he provides services to the client.

136    Notice

(1) A requirement to provide information under section 134 must be imposed by notice in writing specifying—

(a) the information,

(b) the manner in which it is to be provided, and

(c) the period of time within which it is to be provided.

(2) A period of time specified in a notice under subsection (1)(c)—

(a) must begin with the date of receipt of the notice, and

(b) must not be less than ten working days.

(3) A person on whom a notice is served under subsection (1) must provide the Governor with the information specified in the notice.

(4) Information provided under subsection (3) must be provided—

(a) in the manner specified under subsection (1)(b), and

(b) within the time specified under subsection (1)(c).

(5) In this section “working day” means a day which is not—

(a) Saturday,

(b) Sunday,

(c) Christmas Day,

(d) Good Friday, or

(e) a day which has been declared a bank holiday under section 1 of the Bank Holidays Act 1989 (an Act of Tynwald).

137    Disclosure of information: offences

(1) A person commits an offence if without reasonable excuse he fails to comply with section 136(3).

(2) A person who is guilty of an offence under subsection (1) shall be liable on summary conviction to—

(a) custody for a term not exceeding three months,

(b) a fine not exceeding level 5 on the standard scale, or

(c) both.

138    Offence by body corporate

(1) Subsection (2) applies where an offence under section 137 is committed by a body corporate and it is proved that the offence—

(a) was committed with the consent or connivance of an officer of the body, or

(b) was attributable to neglect on the part of an officer of the body.

(2) The officer, as well as the body, shall be guilty of the offence.

(3) In this section a reference to an officer of a body corporate includes a reference to—

(a) a director, manager or secretary,

(b) a person purporting to act as a director, manager or secretary, and

(c) if the affairs of the body are managed by its members, a member.

(4) Where an offence under section 137 is committed by a partnership (other than a limited partnership), each partner shall be guilty of the offence.

(5) Subsection (1) shall have effect in relation to a limited partnership as if—

(a) a reference to a body corporate were a reference to a limited partnership, and

(b) a reference to an officer of the body were a reference to a partner.

(5A) Subsection (1) shall have effect in relation to a limited liability company constituted under the Limited Liability Companies Act 1996 (an Act of Tynwald) as if—

(a) a reference to a body corporate were a reference to a limited liability company, and

(b) a reference to an officer of the body were a reference to a member of the company or its manager or registered agent.

139    Privilege against self-incrimination

(1) Information provided by a person pursuant to a requirement under section 134 shall not be admissible in evidence in criminal proceedings against that person.

(2) This section shall not apply to proceedings for an offence under section 137.

Part 7 - Offences

145    Traffic in prostitution

(1) A person commits an offence if he arranges or facilitates the arrival in the Isle of Man of an individual (the “passenger”) and—

(a) he intends to exercise control over prostitution by the passenger in the United Kingdom or elsewhere, or

(b) he believes that another person is likely to exercise control over prostitution by the passenger in the United Kingdom or elsewhere.

(2) A person commits an offence if he arranges or facilitates travel within the Isle of Man by an individual (the “passenger”) in respect of whom he believes that an offence under subsection (1) may have been committed and—

(a) he intends to exercise control over prostitution by the passenger in the Isle of Man or elsewhere, or

(b) he believes that another person is likely to exercise control over prostitution by the passenger in the Isle of Man or elsewhere.

(3) A person commits an offence if he arranges or facilitates the departure from the Isle of Man of an individual (the “passenger”) and—

(a) he intends to exercise control over prostitution by the passenger outside the Isle of Man, or

(b) he believes that another person is likely to exercise control over prostitution by the passenger outside the Isle of Man .

(4) For the purposes of subsections (1) to (3) a person exercises control over prostitution by another if for purposes of gain he exercises control, direction or influence over the prostitute’s movements in a way which shows that he is aiding, abetting or compelling the prostitution.

(5) A person guilty of an offence under this section shall be liable—

(a) on conviction on information, to custody for a term not exceeding 14 years, to a fine or to both, or

(b) on summary conviction, to custody for a term not exceeding six months, to a fine not exceeding the statutory maximum or to both.

146    Section 145: supplementary

(1) Subsections (1) to (3) of section 145 apply to anything done—

(a) in the Isle of Man,

(b) outside the Isle of Man by an individual to whom subsection (2) applies, or

(c) outside the Isle of Man by a body incorporated under the law of the Isle of Man.

(2) This subsection applies to—

(a) a British citizen,

(b) a British overseas territories citizen,

(c) a British National (Overseas),

(d) a British Overseas citizen,

(e) a person who is a British subject under the British Nationality Act 1981, and

(f) a British protected person within the meaning of that Act.

(3) Sections 25C and 25D of the Immigration Act 1971 (forfeiture or detention of vehicle, &c.) shall apply in relation to an offence under section 145 of this Act as they apply in relation to an offence under section 25 of that Act.

Part 8 – General

159    Applied provision

(1) Subsection (2) applies where this Act amends or refers to a provision which is applied by, under or for purposes of—

(a) another provision of the Act which contains the provision, or

(b) another Act.

(2) The amendment or reference shall have effect in relation to the provision as applied.

(3) Where this Act applies a provision of another Act, a reference to that provision in any enactment includes a reference to the provision as applied by this Act.

160    Money

(1) Expenditure of the Governor in connection with a provision of this Act shall be paid out of money provided by Tynwald.

(2) An increase attributable to this Act in the amount payable out of money provided by Tynwald under another enactment shall be paid out of money provided by Tynwald.

(3) Sums received under this Act shall be paid into the General Revenue of the Isle of Man.

164    Short title

This Act may be cited as the Nationality, Immigration and Asylum Act 2002.”