Explanatory note

This Order amends the Civil Proceedings Fees Order 2008 (S.I. 2008/1053) (‘the 2008 Order’) as a consequence of amendments made to immigration legislation by the Illegal Migration Act 2023 (c. 37) (‘the Act’) and in relation to certain appeal proceedings brought against decisions of the Upper Tribunal under the Act.

The Act establishes a new procedure for the removal of persons who enter or arrive in the United Kingdom in breach of immigration control. Section 2 of the Act places a duty on the Secretary of State to make arrangements for the removal of a person, if the person meets specified conditions, from the United Kingdom to their home country or to a safe third country. Section 11(2) of the Act inserts into Schedule 2 to the Immigration Act 1971 (c. 19) paragraph 16(2C) which gives immigration officers powers to detain persons in connection with that duty. Section 11(5) and (6) of the Act inserts into section 62 of the Nationality, Immigration and Asylum Act 2002 (c. 41) subsection (2A) which gives the Secretary of State powers to detain persons in the same circumstances. By paragraphs 3A(1), (2) and (3) of Schedule 10 to the Immigration Act 2016 (c. 19) (‘the 2016 Act’), inserted by section 13(4) of the Act, subject to certain exceptions those detention decisions, as well as a decision of the Secretary of State to refuse immigration bail from detention thereunder, are final and not liable to be questioned in any court or tribunal, including by way of judicial review. However, paragraph 3A(5)(a) of the 2016 Act (as inserted by the Act) preserves the ability for a person detained under the provisions listed in paragraph 3A(1) of the 2016 Act to make an application for habeas corpus.

A person may challenge the decision of the Secretary of State for removal under the Act on the basis that their claim is a ‘suspensive claim’ as defined under section 38(2) of the Act. Section 44 of the Act provides a right of appeal to the Upper Tribunal against a decision of the Secretary of State to refuse a suspensive claim.

Article 2 inserts into the 2008 Order new articles 3D and 3E. Article 3D exempts fees for habeas corpus applications made in respect of a decision listed in paragraph 3A(1) of the 2016 Act. Article 3E exempts fees payable in the Court of Appeal where the decision being appealed is a decision of the Upper Tribunal under section 44 of the Act.

By virtue of the High Court (Distribution of Business) Order 2014 (S.I. 2014/3257), all applications for habeas corpus in relation to minors are made to the Family Division of the High Court. Article 3 inserts into the Family Proceedings Fees Order 2008 (S.I. 2008/1054) new article 3D which exempts fees for habeas corpus applications in relation to a minor in respect of a decision listed in paragraph 3A(1) of the 2016 Act.

An impact assessment has not been produced for this instrument as no significant impact on the private, voluntary or public sectors is foreseen.