The Immigration (Jersey) Order 2021

Section 12

SCHEDULE 3 U.K. TEMPORARY EXCLUSION ORDERS: PROCEEDINGS

Commencement Information

I1 Sch. 3n4 comes into force in accordance with art. 1(1)

Introductory

1. In this Schedule – “appeal proceedings” means proceedings in the Court of Appeal on an appeal relating to TEO proceedings; “the relevant court” means – (a) in relation to TEO proceedings, the Royal Court; (b) in relation to appeal proceedings, the Court of Appeal; “rules of court” means rules for regulating the practice and procedure to be followed in the Royal Court or the Court of Appeal; “TEO proceedings” means proceedings on – (a) an application under section 3, (b) a reference under Schedule 2, (c) a review under section 11, or (d) an application made by virtue of paragraph 6 of this Schedule (application for order requiring anonymity).

Rules of court: general provision

2.—(1) Regard must be had, in making rules of court relating to TEO proceedings or appeal proceedings, to the need to secure the following – (a) that the decisions that are the subject of the proceedings are properly reviewed, and (b) that disclosures of information are not made where they would be contrary to the public interest. (2) Rules of court relating to TEO proceedings or appeal proceedings may make provision – (a) about the mode of proof and about evidence in the proceedings; (b) enabling or requiring the proceedings to be determined without a hearing; (c) about legal representation in the proceedings; (d) enabling the proceedings to take place without full particulars of the reasons for the decisions to which the proceedings relate being given to a party to the proceedings (or to any legal representative of that party); (e) enabling the relevant court to conduct proceedings in the absence of any person, including a party to the proceedings (or any legal representative of that party); (f) about the functions of a person appointed as special counsel (see paragraph 10); (g) enabling the relevant court to give a party to the proceedings a summary of evidence taken in the party’s absence. (3) In this paragraph – (a) references to a party to the proceedings do not include the Minister; (b) references to a party’s legal representative do not include a person appointed as special counsel.

Rules of court: disclosure

3.—(1) Rules of court relating to TEO proceedings or appeal proceedings must secure that the Minister is required to disclose – (a) material on which the Minister relies, (b) material which adversely affects the Minister’s case, and (c) material which supports the case of another party to the proceedings. (2) This paragraph is subject to paragraph 4.

4.—(1) Rules of court relating to TEO proceedings or appeal proceedings must secure – (a) that the Minister has the opportunity to make an application to the relevant court for permission not to disclose material otherwise than to the relevant court and any person appointed as special counsel; (b) that such an application is always considered in the absence of every party to the proceedings (and every party’s legal representative); (c) that the relevant court is required to give permission for material not to be disclosed if it considers that the disclosure of the material would be contrary to the public interest; (d) that, if permission is given by the relevant court not to disclose material, it must consider requiring the Minister to provide a summary of the material to every party to the proceedings (and every party’s legal representative); (e) that the relevant court is required to ensure that such a summary does not contain material the disclosure of which would be contrary to the public interest. (2) Rules of court relating to TEO proceedings or appeal proceedings must secure that provision to the effect mentioned in sub-paragraph (3) applies in cases where the Minister – (a) does not receive the permission of the relevant court to withhold material, but elects not to disclose it, or (b) is required to provide a party to the proceedings with a summary of material that is withheld, but elects not to provide the summary. (3) The relevant court must be authorised – (a) if it considers that the material or anything that is required to be summarised might adversely affect the Minister’s case or support the case of a party to the proceedings, to direct that the Minister – (i) is not to rely on such points in the Minister’s case, or (ii) is to make such concessions or take such other steps as the court may specify, or (b) in any other case, to ensure that the Minister does not rely on the material or (as the case may be) on that which is required to be summarised. (4) In this paragraph – (a) references to a party to the proceedings do not include the Minister; (b) references to a party’s legal representative do not include a person appointed as special counsel.

Article 6 rights

5.—(1) Nothing in paragraphs 2 to 4, or in rules of court made under any of those paragraphs, is to be read as requiring the relevant court to act in a manner inconsistent with Article 6 of the Human Rights Convention. (2) The “Human Rights Convention” means the Convention within the meaning of the Human Rights (Jersey) Law 2000 (see Article 1(1) of that Law).

Rules of court: anonymity

6.—(1) Rules of court relating to TEO proceedings may make provision for – (a) the making by the Minister or the relevant individual of an application to the court for an order requiring anonymity for that individual, and (b) the making by the Royal Court, on such an application, of an order requiring such anonymity; and the provision made by the rules may allow the application and the order to be made irrespective of whether any other TEO proceedings have been begun in the Royal Court. (2) Rules of court may provide for the Court of Appeal to make an order in connection with any appeal proceedings requiring anonymity for the relevant individual. (3) In sub-paragraphs (1) and (2) the references, in relation to a court, to an order requiring anonymity for the relevant individual are references to an order by that court which imposes such prohibition or restriction as it thinks fit on the disclosure – (a) by such persons as the court specifies or describes, or (b) by persons generally, of the identity of the relevant individual or of any information that would tend to identify the relevant individual. (4) In this paragraph “relevant individual” means an individual on whom the Minister is proposing to impose, or has imposed, a temporary exclusion order.

Use of advisers

8.—(1) In any TEO proceedings or appeal proceedings the relevant court may if it thinks fit – (a) call in aid one or more advisers able to be called in aid by the equivalent court in England and Wales, and (b) hear and dispose of the proceedings with the assistance of the adviser or advisers. (3) Rules of court may regulate the use of, and payment of remuneration, expenses and allowances to, advisers in proceedings who are called in aid under sub-paragraph (1).

Appointment of special counsel

10.—(1) The Attorney General may appoint a person to represent the interests of a party in any TEO proceedings or appeal proceedings from which the party (and any legal representative of the party) is excluded. (2) A person appointed under sub-paragraph (1) is referred to in this Schedule as appointed as “special counsel”. (4) A person appointed as special counsel is not responsible to the party to the proceedings whose interests the person is appointed to represent. (5) A person may be appointed as special counsel only if – (a) the person is a member of the panel referred to in sub-paragraph (6); or (b) the person is eligible to be appointed as a special advocate in equivalent TEO proceedings or appeal proceedings in any part of the United Kingdom. (6) The Attorney General shall appoint a panel of persons, such panel consisting of not less than 10 advocates of the Royal Court, for the purposes of this paragraph. (7) A person appointed under sub-paragraph (6) may be removed from the panel at any time by the Attorney General whether or not at the person’s request.

Relationship with other powers to make rules of court and other proceedings

11. Nothing in this Schedule is to be read as restricting the power to make rules of court or the matters to be taken into account when doing so.