OpenLegislation

Explanatory note

Original text. Later amendments are not shown.

(This note is not part of the Regulations)

These Regulations amend the Prevention of Terrorism (Temporary Provisions) Act 1989 (“the 1989 Act”) to take account of the judgment of the European Court of Justice in R v Secretary of State for the Home Department, ex parte Gallagher (30th November 1995) which interpreted Article 9.1 of Council Directive 64/221/EEC (OJ No. 056, 4.4.64, p.850, OJ/SE 1963-64 p.117) as prohibiting an administrative authority (except in cases of urgency) from taking a decision ordering expulsion before a competent authority has given its opinion.

The Regulations amend Schedule 2 to the 1989 Act by requiring certain procedures to be followed where the Secretary of State is considering whether to make an exclusion order against a person under section 5, 6 or 7 of the 1989 Act. These procedures replace similar procedures which were previously contained in Schedule 2 but which applied only after an exclusion order had been made.

Under the new procedures, the Secretary of State must serve written notice on any person in the United Kingdom against whom he is considering making an exclusion order. He must also refer the matter for the advice of one or more persons nominated for that purpose. A person who has been served with such a notice may make written representations setting out his objections and may request a personal interview with the person or persons nominated by the Secretary of State.

In deciding whether to make an exclusion order, the Secretary of State must take account of the advice, any representations and the report of any interview. If it is reasonably practicable to do so, he must then give to the person in question written notice of whether or not an exclusion order has been made.

A person on whom notice has been served that the Secretary of State is considering making an exclusion order may be detained by the Secretary of State pending completion of the new procedures unless the Secretary of State has given approval for his departure from the territory in respect of which an exclusion order is being considered.