24.Sections 1 and 2 allow the Secretary of State to designate individual immigration officers acting in a port in England and Wales or Northern Ireland as having the power to detain a person where the immigration officer considers him someone who a constable could arrest without a warrant pursuant to section 24(1), (2) or (3) of the Police and Criminal Evidence Act 1984 (or the equivalent powers in Northern Ireland) or where a warrant is outstanding for the individual. This detention will be pending the arrival of a constable and is subject to a maximum detention period of three hours. The immigration officer may search a person detained under section 2 for anything that could be used to assist escape or to cause physical injury and may pursue a person and return him to the port if the person attempts to abscond from detention. Section 2 also enables Detainee Custody Officers to provide detention services in respect of individuals detained under this section. A detainee custody officer is a person who has been authorised by the Secretary of State (under section 154 of Immigration and Asylum Act 1999) to perform escort and or custodial functions in connection with persons detained under the Immigration Act 1971 and the Nationality Immigration and Asylum Act 2002.
25.Section 3 creates offences of absconding from detention, and assaulting or obstructing an immigration officer in the course of exercising this power and the sanctions associated with each.
26.Section 4 defines “port” for the purpose of this power.
27.Section 5(1)(a) enables the Secretary of State to make regulations requiring a person subject to immigration control to apply for the issue of a document recording information about his external physical characteristics. This document is called a "biometric immigration document". Regulations may require a biometric immigration document to be used for specified immigration purposes, in connection with specified immigration procedures or in specified circumstances where a question arises about a person's status in relation to nationality and immigration (subsection (1)(b)). The regulations may also provide that a person who produces a biometric immigration document pursuant to a requirement imposed under the regulations may be required to provide information to enable a comparison to be made between that information and information provided in connection with the application for the document (e.g. fingerprints) (subsection(1)(c). "External physical characteristics" includes fingerprints and features of the iris or any other part of the eye (section 15(1)(c))). "Document" includes a card or sticker and any other method of recording information, whether in writing, by the use of electronic or other technology, or by a combination of methods (section 15(1)(d)). A "person subject to immigration control" means a person who, under the Immigration Act 1971, requires leave to enter or remain in the United Kingdom, whether or not leave has been given (section 15(1)(a)).
28.Section 5(2) provides that the regulations requiring a person subject to immigration control to apply for the issue of a biometric immigration document (under section 5(1)(a)) may, in particular, apply generally or to a specific class of persons subject to immigration control. A specific class may include persons making or seeking to make a specified kind of application for immigration purposes. The regulations may specify a period within which the person is required to apply for the biometric immigration document (subsection(2)(b)). They may make provision about the issue and contents of a biometric immigration document, for a biometric immigration document to be combined with another document, and for a biometric immigration document to begin to have effect and cease to have effect (subsection (2)(c), (d), (e) and (f)). Regulations may also provide for the surrender of the biometric immigration document (subsection 5(2)(g) and (h)). The regulations may enable the Secretary of State to require the surrender of other documents connected with immigration or nationality on issuing a biometric immigration document (subsection (2)(i)).
29.Section 5(3) provides that regulations may allow the Secretary of State to cancel a Biometric Immigration Document in specified circumstances.
30.Section 5(4) provides that the holder of a Biometric Immigration Document may be required by regulations to notify the Secretary of State in specified circumstances.
31.Section 5(5) provides that a person applying for a biometric immigration document may be required by regulations to provide information, (which may include biographical and or other non-biometric information). In particular, the regulations may require or enable an authorised person to require the provision of information in a specified form (subsection (5)(a)). The regulations may require an individual to submit, or enable an authorised person to require an individual to submit, to a specified process by means of which biometric information is obtained or recorded (subsection (5)(b)). The regulations may confer a function on an authorised person, which may include the exercise of a discretion (subsection (5)(c)). They may permit the Secretary of State, instead of requiring the provision of information, to use or retain information which she already has in her possession (subsection (5)(d)). An "authorised person" means a constable, an immigration officer, a prison officer, an officer of the Secretary of State authorised for the purpose, or a person who is employed by a contractor in connection with the discharge of the contractor's duties under a removal centre contract (section 15(1)(e)).
32.Section 5(6) provides that regulations made under section 5(1)(b) may require the production or use of a biometric immigration document that is combined with another document, including an identity card. If a biometric immigration document were to be combined with an identity card this provision also makes it clear that section 5 take precedence over section 16 of the Identity Card Act 2006 (prohibition of requirement to produce an ID card).
33.Section 5(7) prevents the Secretary of State from making regulations that would in effect require a person issued with a biometric immigration document having to carry it with them at all times.
34.Clause 5(8) allows for regulations made under subsection (1)(c) (requiring a person producing a biometric immigration document to provide information for the purposes of allowing a comparison to be made) to (a) require, or permit an authorised person to require, the provision of information in a specified form and (b) require an individual to submit, or an authorised person to require a person to submit to a specified process by means of which biometric information is obtained or recorded. Subsection 5(9) provides that immigration rules made under section 3 of the Immigration Act 1971 may require a person applying for a biometric immigration document to provide non-biometric information to be recorded in it or retained by the Secretary of State.
35.Section 5(10) provides that subsections (5) to (9) are without prejudice to the generality of section 50 of the Immigration, Asylum, and Nationality Act 2006.
36.Section 6 makes supplementary provision in respect of regulations under section 5. Regulations amending or replacing earlier regulations may require a person who holds a biometric immigration document issued under the earlier regulations to apply under the new regulations (subsection (2)). Provision must be made, where a person under the age of 16 is required by or in accordance with regulations to submit to a process for recording biometric information, which is similar to sections 141(3) to (5) and (13) of the Immigration and Asylum Act 1999 (section 6(3)). Section 141(3) to (5) provides that fingerprints may not be taken from a person under 16 except in the presence of an adult who is the child's parent or guardian, or a person who takes responsibility for the child for the time being. An authorised person may not act as the responsible adult in this situation.
37.Section 6(4) provides that rules made under section 3 of the Immigration Act 1971 (the Immigration Rules) may make provision by reference to the compliance or non-compliance with regulations. Under section 6(5), information which is in the possession of the Secretary of State which is used or retained in accordance with section 5(3)(d) shall be treated for the purposes of requirements about treatment and destruction as having been provided in accordance with the regulations at the time which it is used or retained in accordance with them.
38.Section 6(6) provides that regulations may make provision having effect generally or in specific cases and circumstances, may make different provision for different cases and circumstances, may include incidental, consequential or transitional provision, shall be made by statutory instrument, and shall not be made unless laid in draft before Parliament and approved by a resolution of each House.
39.Section 7 makes provision for the effect of non-compliance. Regulations made under section 5(1) shall include provision about the effect of failure to comply with a requirement of the regulations. In particular, regulations may provide for an application for a biometric immigration document to be refused, an application or claim in connection with immigration to be disregarded or refused, the cancellation or variation of leave to enter or remain in the United Kingdom, the Secretary of State to consider giving a penalty notice, or the consequence of failure to be at the discretion for the Secretary of State (section 7(2)). In addition, section 7(3) allows the Secretary of State to make regulations designating an adult as the person responsible for ensuring that child complies with requirements of the regulations. Where a child fails to comply, the designated adult will be liable to a civil penalty notice on their behalf.
40.Section 8(1) makes provision about the use and retention of biometric information. Regulations made under section 5(1) must make provision about use and retention of biometric information provided in accordance with regulations.
41.Section 8(2) sets out the purposes for which biometric information collected under regulations made under section 5(1) can be used. Section 8(2) also includes provision to specify further uses for biometric information collected.
42.Section 8(3) provides that regulations under section 5(1) must include provision about the destruction of biometric information held by the Secretary of State which has been obtained or recorded by virtue of the regulations. They must require the destruction of information if the Secretary of State thinks that it is no longer likely to be of use in accordance with regulations made by virtue of section 8(1). The regulations must include provision similar to section 143(2) and (10) to (13) of the Immigration and Asylum Act 1999 (which makes provision about the destruction of fingerprint data taken under section 141 of that Act).
43.Section 8(4) provides that a requirement to destroy information shall not apply if and in so far as the information is retained in accordance with and for the purposes of another enactment.
44.Sections 9 to 14 make provision for a civil penalty scheme for failure to comply with a requirement under regulations made under section 5. Under section 9 the Secretary of State may by notice require a person to pay a penalty for failing to comply with a requirement of the regulations. The notice must specify the amount of the penalty and the date before which the penalty must be paid (which must not be fewer than 14 days after the date on which the notice is given) (subsection 9(2)(a) and (b) and (4)). The notice must specify methods by which the penalty must be paid and explain the grounds on which the Secretary of State thinks the person has failed to comply with the regulations (subsection (2)(c) and (d)). The penalty notice must explain how the person can object to the penalty and appeal the penalty, and how the penalty may be enforced (subsection (2)(e)).
45.Section 9(3) sets the maximum amount of penalty that may be levied, £1,000. The Secretary of State may, by order, change this limit to reflect a change in the value of money (section 9(6)).
46.Section 9(5) provides that a person who has been given a penalty notice may be given a further penalty notice in the case of continued failure. However, the further notice may not be given during the time available for objection or appeal against the previous notice, nor while an objection or appeal is pending.
47.Section 10(1) provides that a person who has been given a penalty notice may by notice object to the Secretary of State on the grounds that she has not failed to comply with a requirement of the regulations, it is unreasonable to expect him to pay the penalty or the amount of the penalty is excessive. A notice of objection must specify the grounds of objection and the person's reasons for objecting (subsection (2)(a)). It must comply with any prescribed requirements as to form and content (subsection (2)(b)). The notice must also be given within a prescribed period (subsection (2)(c)). Under section 10(3) the Secretary of State shall consider the notice of objection and cancel the penalty notice, reduce the penalty by varying the original penalty notice, increase the penalty by issuing a new penalty notice, or confirm the penalty notice. The Secretary of State shall do so in accordance with any prescribed requirements and within a prescribed period, unless the person and the Secretary of State agree a longer time period (subsection (4)).
48.Section 11(1) provides that a person given a penalty notice may appeal that notice to a county court in England and Wales or Northern Ireland, or to the sheriff in Scotland. An appeal may be brought on the grounds that the person has not failed to comply with a requirement of the regulations, it is unreasonable to expect the person to pay the penalty, or the amount of the penalty is excessive. The court may then cancel the penalty notice, reduce the penalty by varying the penalty notice, increase the penalty notice, or confirm the penalty notice (subsection (3)). An appeal may be brought whether or not the person has objected, and irrespective of the Secretary of State's decision on any notice of objection (subsection (4)). The court may consider matters of which the Secretary of State was not and could not have been aware before giving the penalty notice (subsection (5)).
49.Section 12 makes provision for enforcement of a penalty. Where a penalty has not been paid before the specified date, it may be recovered as a debt due to the Secretary of State (subsection (1)). However where an objection notice is given in respect of a penalty notice, the Secretary of State may not take steps to enforce the penalty notice before she has decided what to do in respect of the objection, and has informed the objector (subsection (2)). Additionally, the Secretary of State may not take steps to enforce the penalty notice while an appeal under section 11 could be brought (disregarding the possibility of an appeal out of time) or has been brought and has not been determined or abandoned (subsection (3)). In proceedings for the recovery of a penalty, no question may be raised in respect of matters which are grounds for objection or for appeal (section 12(3)).
50.Section 12(5) requires that any money received by the Secretary of State in respect of a penalty under section 9 is paid into the Consolidated Fund.
51.Section 13 makes provision for a code of practice in respect of the civil penalty scheme. Under subsection (1) the Secretary of State shall issue a code of practice setting out the matters to be considered in determining whether to give a penalty notice and the amount of the penalty. The code may, in particular, require the Secretary of State to consider any decision already taken in respect of non-compliance with a requirement of the regulations (subsection (2)). The Secretary of State may revise and re-issue the code (subsection (4)). Subsection (5) provides that before issuing or re-issuing the code the Secretary of State must publish proposals, consult members of the public and lay a draft before Parliament. Subsection (6) provides that the code shall come into force at the prescribed time.
52.Where a matter is "prescribed" under the civil penalty scheme, this means prescribed by order (section 14(1)). An order may make provision generally or only for specified purposes, may make different provision for different purposes, shall be made by statutory instrument and is subject to annulment in pursuance of a resolution of either House of Parliament.
53.Section 15(1) makes provision for the interpretation of section 5. Section 15(1)(g) provides that regulations may (but need not) enable something to be done by the Secretary of State only where the Secretary of State is of a specified opinion.
54.Section 15(2) enables further provision to be made concerning the procedure to be followed, and for the charging of fees for an application for a biometric immigration document.
55.This section amends section 3(1)(c) of the Immigration Act 1971. Section 3(1)(c) already provides that a person who is given limited leave to enter/remain in the UK may be subject to any or all of the following conditions, namely –
a condition restricting his employment or occupation in the UK;
a condition requiring him to maintain and accommodate himself, and any dependants of his, without recourse to public funds; and
a condition requiring him to register with the police.
56.This section simply adds two new conditions under section 3(1)(c), namely -
a condition requiring him to report to an immigration officer or the Secretary of State;
a condition about residence.
57.Section 17 provides that a person whose claim for asylum has been determined and who can bring or has brought an in-country appeal against an immigration decision will remain an asylum-seeker for the purposes of section 4 and Part 6 of the Immigration and Asylum Act 1999 (the 1999 Act), Part 2 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) and Schedule 3 to the 2002 Act. The effect of this provision is that, whilst an in-country appeal against the immigration decision can be brought or is pending, such a person will be eligible for support on the same basis as asylum-seekers who have not yet received a decision on their claim. Support will continue for a prescribed period after the appeal ceases to be pending.
58.A judgment by the Court of Appeal in May 2006 (in the case of Slough Borough Council v M) held that, for the purposes of Schedule 3 to the 2002 Act, save for when a right of appeal arises under section 83 of that Act, a person ceases to be an asylum-seeker at the time at which the Secretary of State notifies his decision on the claim and not when the appeal related to his asylum claim had been disposed of. Section 17(3) defines an in country appeal as one brought while the appellant is in the United Kingdom and specifies that the possibility of bringing an appeal out of time with permission is to be ignored for the purpose of this section.
59.The purpose of section 17 is to avoid a situation where a person has made a claim for asylum and an in-country appeal against an immigration decision can be brought or is pending but support under Part 6 of the 1999 Act or Part 2 of the 2002 Act (currently not in force) is not available because the claim for asylum is deemed to be determined on conclusion of the prescribed period after the Secretary of State has notified his decision on the claim. Further, the section ensures that such a person will not fall within any of the classes of ineligible person within Schedule 3 of the 2002 Act.
60.This section applies existing immigration officer powers of arrest, entry, search and seizure in the Immigration Act 1971 (the 1971 Act) to the offences of dishonestly obtaining asylum support.
61.New section 109A (arrest) gives an immigration officer the power to arrest a person, without warrant, where the officer has reasonable grounds for suspecting that the person has committed an offence under section 105 or section 106 of the Immigration and Asylum Act 1999 (the 1999 Act) (false or dishonest representations in order to obtain support for asylum-seekers, respectively).
62.New section 109B (entry, search and seizure) extends the relevant powers of entry, search and seizure under sections 28B, 28D, 28E and 28G to 28L of the 1971 Act after a person has been arrested for an offence under section 105 or section 106 of the 1999 Act.
63.Section 85(4) of the Nationality, Immigration and Asylum Act 2002 allows the Asylum and Immigration Tribunal (AIT) to consider any evidence that is relevant to the substance of the decision, including any evidence which arises after the date of decision. This does not apply to an appeal against the refusal of an entry clearance or a certificate of entitlement: in these cases the AIT can only consider the circumstances as they were at the time of the decision to refuse.
64.This section inserts a new section 85A into the 2002 Act which lists the exceptions to the general rule that the AIT can consider any evidence that is relevant to the substance of the decision, including any evidence which arises after the date of decision. It re-enacts the existing evidential restriction in appeals against the refusal of an entry clearance or a certificate of entitlement (subsection (2)), and adds a new restriction in relation to appeals against a refusal of leave to enter or a variation of leave to enter or remain. In appeals against a refusal of leave to enter or a variation of leave to enter or remain the AIT will be prevented from considering evidence adduced by the appellant which was not submitted at the time of making the original application, where that application was one made under a Points-based immigration rule. The point in time during the application process after which further evidence is excluded will be defined in the AIT Procedure Rules. This exclusionary rule will not, however, apply insofar as the appeal is brought on the grounds that the decision was racially discriminatory or in breach of the appellant's rights under the Community Treaties, the Refugee Convention or section 6 of the Human Rights Act 1998. Additionally, evidence which was not submitted with the original application may still be adduced to rebut any reason for refusing an application which does not relate to the attainment of points under a Points-based immigration rule or in order to prove that a document is genuine or valid.
65.Section 20(2) provides a power when setting the fees for applications or processes in connection with sponsorship of persons seeking leave to enter or remain in the UK under section 51(3) of the Immigration, Asylum and Nationality Act 2006 (‘the 2006 Act’), to set them at above administrative cost recovery levels. It does so by allowing the Secretary of State to prescribe an amount which exceeds the administrative cost of the relevant application or process, based upon the benefits that he thinks are likely to accrue to the person who makes the application, to whom the application relates, or by or for whom the process is undertaken, if the application is successful or the process is completed.
66.It does so by inserting a new paragraph, (da), in subsection (2) of section 42 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (‘the 2004 Act’). This will mean that fees specified in regulations which are to be made under section 51(3) of the 2006 Act in reliance on section 42(1) of the 2004 Act, for applications or processes in connection with sponsorship of the relevant persons, will, by virtue of section 42(7) of the 2004 Act, be subject to approval by resolution of each House of Parliament.
67.Section 20(3) provides the Secretary of State with a power when setting the fee for an in-country service in connection with immigration or nationality under section 51 of the 2006 Act to take into account the costs of:
Other such services which are charged under section 51 of that Act; and
Certain out-of-country services, in particular applications for entry clearance, transit visas and certificates of entitlement to the right of abode in the United Kingdom, which are charged under section 1 of the Consular Fees Act 1980.
68.The effect of this is to enable the Secretary of State when setting the fees for immigration or nationality services under section 51 of the 2006 Act, to cross-subsidise between different in-country services in connection with immigration or nationality and between in-country and certain out-of country services in connection with immigration or nationality. This will mean that the Secretary of State can prescribe an amount which exceeds the administrative cost of the relevant service by taking into account the administrative cost of certain other services.
69.It does so by inserting a new subsection, (2A), into section 42 of the 2004 Act. By virtue of section 42(7) of that Act therefore, a draft of the regulations which are to be made under section 51(3) of the 2006 Act in reliance on this new power will be subject to approval by resolution of both Houses of Parliament.
70.Section 20(4) provides a power when setting the amount of a fee under section 1 of the Consular Fees Act 1980 in respect of certain visa services, in particular applications for entry clearance, transit visas and certificates of entitlement to the right of abode in the United Kingdom, to set an amount which takes into account the costs of any in-country services in connection with immigration or nationality which are charged for under section 51 of the 2006 Act.
71.Again, it does so by inserting a new subsection, (3A), into section 42 of the 2004 Act. Therefore by virtue of section 42(7) of that Act, an Order in Council may not be made in reliance on this new power unless a draft of that Order has been laid before and approved by resolution of each House of Parliament.
72.In addition, by virtue of section 42(6) of the 2004 Act, an instrument, i.e. regulations or an Order in Council, may not be made in reliance on these new powers unless the Secretary of State has consulted with such persons as appear to him to be appropriate.
73.Section 21 requires the Secretary of State to issue a code of practice to ensure that in exercising its functions in the United Kingdom the Border and Immigration Agency takes appropriate steps to ensure that while children are in the United Kingdom they are safe from harm. Subsection (2) requires the Border and Immigration Agency to have regard to the code in the exercise of its functions.
74.Subsection (3) provides that the code will come into force through an order made by the Secretary of State by statutory instrument subject to the negative resolution procedure. Subsection (4) enables the Secretary of State to revise the code subject to the same procedure.
75.Section 22 creates an offence of assaulting an immigration officer. It also establishes penalties for anyone found guilty of committing such an offence.
76.Section 23 creates a power of arrest for the offence of assaulting an immigration officer. It enables an immigration officer to arrest a person without warrant where he has reasonable grounds for suspecting that the person has assaulted or is about to assault an immigration officer. The section also applies existing immigration officer powers of entry, search and seizure in the Immigration Act 1971 to the offence of assaulting an immigration officer.
77.Chapter 3 of Part 5 of the Proceeds of Crime Act 2002 allows a police constable or customs officer to search a person or premises for cash where there are reasonable grounds for suspecting that such cash is derived from or intended for use in unlawful conduct. The provisions also empower a police constable or customs officer to seize and detain any such cash. Seized cash can be further detained and forfeited on an application made to a court of summary jurisdiction. The power to apply for further detention and forfeiture of cash does not depend upon a criminal prosecution and the proceedings focus on the source of the cash which has been seized rather than the guilt of any individual. These sections will extend the powers so that they may be exercised by immigration officers.
78.Subsection (2)(a) provides that the power to carry out a search for cash will be available to Immigration Officers where there are reasonable grounds for suspecting that the cash in question is derived from or intended for use in connection with an offence under the Immigration Acts. Subsection (2)(b) provides that the power to seize and detain cash may be exercised where there are reasonable grounds for suspecting that the cash is derived from or intended for use in connection with an offence under the Immigration Acts or an offence listed in section 14 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. The safeguards that apply to constables and officers of HMRC will similarly apply to immigration officers. The code of practice will be amended to apply to immigration officers to provide guidelines on the operation of their search powers.
79.An immigration officer can only exercise the power to search for cash with the prior approval of a judicial officer, unless it is not practicable to obtain that approval at the time. Subsection (2)(c) provides that where it is not practicable to obtain the approval of a judicial officer an Immigration officer must seek the authority of a civil servant of at least the rank of assistant director in order to exercise the power of search.
80.Subsection 2(f)(i) provides that where an immigration officer continues to have reasonable suspicion that the seized cash is the proceeds of or intended for the use in an offence related to immigration, he will be able to make an application for an order to extend the detention period of the cash direct to a Magistrates’ court in England and Wales or Northern Ireland. Subsection (2)(f)(ii) provides that in Scotland such applications must either be made by the Scottish Ministers in connection with their functions under section 298 of Act or by a procurator fiscal.
81.Subsection (2)(g)(i) provides that whilst the cash is detained, an immigration officer will be able to make an application for a forfeiture order direct to the Magistrates Court in England, Wales and Northern Ireland. Subsection (2)(g)(ii) provides that in Scotland such applications must be made by the Scottish Ministers.
82.Subsection (2)(h) provides that compensation claims in relation to cash seized by immigration officers, for which no forfeiture order is made, will be paid by the Secretary of State.
83.Section 25 provides that where a court makes a forfeiture order, the court may order the property to be taken into the possession of the Secretary of State rather than the police (as is presently the case).
84.A “forfeiture order” means an order under section 143 of the Powers of Criminal Courts (Sentencing) Act 2000 (which extends to England and Wales) or Article 11 of the Criminal Justice (Northern Ireland) Order 1994 which allow the court to deprive a convicted offender of property used, essentially, for the commission of a crime or to facilitate the commission of a crime, or intended to be used in this way.
85.The court may order the property be taken into the possession of the Secretary of State only if it thinks that the offence in connection with which the order was made related to immigration or asylum, or was committed for a purpose connected with immigration or asylum. An order under this section might be appropriate, for example, where the Immigration Service is leading the investigation of a criminal offence independently of the police.
86.Section 59 confers powers to make transitional provision so that when section 25 is commenced it will apply to criminal proceedings instituted before the passing of the Act.
87.Section 26 provides powers of disposal in respect of property which is in the possession of an immigration officer, or which has come into the possession of the Secretary of State in the course of the exercise of his immigration functions under the Immigration Acts. This includes property which has been forfeited or seized under the Immigration Acts, as well as property acquired in any other way (under subsection (7)).
88.Under subsection (2) a magistrates’ court may, on the application of the Secretary of State or a claimant of property, order the delivery of the property to the person who appears to the court to be its owner. If the owner cannot be ascertained, the court may make any other order about the property. However, an order under subsection (2) is subject to the right of any person to bring legal proceedings for the recovery of the property within 6 months from the date of the order (subsection (3)).
89.Subsection (4) makes additional provision in respect of property which has been forfeited under section 25C of the Immigration Act 1971 or under section 25 of this Act. (Section 25C of the Immigration Act 1971 gives the court the power to forfeit a vehicle, aircraft or ship used in connection with an immigration facilitation offence under that Act, in certain circumstances.) A magistrates’ court may make an order about the property under subsection (2) if the application is made within six months beginning with the date when the forfeiture order was made (subsection (4)(a)). In addition, if the applicant is not the Secretary of State, an order may be made only if the applicant satisfies the court that he did not consent to the offender’s possession of the property or that he did not know and had no reason to suspect that the property was likely to be used in connection with an offence (subsection (4)(b)).
90.Subsection (5) enables the Secretary of State to make regulations by statutory instrument, subject to annulment by resolution of either House of Parliament, for the disposal of property. The Secretary of State can make regulations where the owner has not been ascertained. For property which is in the possession of an immigration officer or the Secretary of State because it has been forfeited under section 25C of the Immigration Act 1971 or under section 25 of this Act, regulations may also provide for disposal where a court order under subsection (2) cannot be made because of subsection (4)(a) (that is, because six months has expired since a forfeiture order was made). Regulations may also provide for disposal where a court has declined to make an order under subsection (2) because it is not satisfied of the matters specified in subsection (4)(b) (that is, the applicant did not consent to the offender’s use of the property or he did not know and had no reason to suspect that the property was likely to be used in connection with an offence).
91.Subsection (6) makes further provision about the regulations. The regulations may make provision which is the same as, or similar to, provision that may be made by regulations under section 2 of the Police (Property) Act 1897 or any similar enactment which applies in relation to Scotland or Northern Ireland. The regulations may apply, with or without modification regulations made under that Act. They may make provision for property to vest in the Secretary of State. They may make provision about the timing of the disposal (which may differ from the provision made under the Police (Property) Act 1897). The regulations shall have effect only where this is not inconsistent with any court order.
92.Section 59 confers powers to make transitional provision so that when section 26 is commenced, it will have effect in respect of property which is already in the possession of an immigration officer or the Secretary of State.
93.Section 21 of the Immigration, Asylum and Nationality Act 2006 introduced the new offence of knowingly employing an illegal worker and the associated powers to obtain a warrant to enter and search premises to arrest an individual who is liable to be arrested for this offence. The section introduces an express power of arrest.
94.The current offence of employing an illegal worker (section 8 of the Asylum & Immigration Act 1996) will be replaced by a regime of civil penalties for employers and a new offence of knowingly employing an illegal worker (sections 15-21 of the Immigration, Asylum and Nationality Act 2006). Section 8 of the 1996 Act will be repealed upon the commencement of sections 15-21 of the 2006 Act. This section introduces an express power to search for personnel records in connection with an offence under section 21 of the Immigration, Asylum and Nationality Act 2006.
95.Section 29 amends the existing offence in section 25A of the 1971 Act to provide that a person commits an offence if he knowingly and for gain facilitates the entry to the United Kingdom, as well as the arrival in the UK, of an individual that they know or reasonably believe to be an asylum-seeker. This amendment ensures that acts committed after an asylum seeker has arrived in the United Kingdom but before they have entered will be covered by the offence.
96.Section 30 amends section 25 of the Immigration Act 1971. Section 25 makes it an offence to assist unlawful immigration to a member State of the European Union. Presently, the section applies to anything done in the UK, anything done outside the UK by a British national and to anything done outside the UK by a body incorporated in the UK. Section 30 removes these existing limitations on the territorial application of the offence to cover acts of facilitation committed inside or outside the UK, irrespective of the nationality of the person carrying out the act (subsection (1)).
97.Subsection (2) amends sections 25A (helping an asylum seeker to enter the United Kingdom) and 25B (assisting entry to United Kingdom in breach of a deportation or exclusion order) of the Immigration Act 1971 to extend the territorial application of the offences under those sections in the same way as described above for section 25.
98.Section 31(1) amends section 4(1) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (the 2004 Act) to provide that a person commits an offence if they facilitate the arrival in, or the entry into, the United Kingdom of a person that they intend to exploit or who they believe is likely to be exploited by another person.
99.Similarly to the above, subsection (3) amends the existing offence of trafficking for sexual exploitation contained in section 57(1) of the Sexual Offences Act 2003 (the 2003 Act) so that it is an offence for an individual to intentionally arrange the arrival in, or entry into, the United Kingdom of another person (A) with the intention of that individual or a third person then doing anything to or in respect of A that will involve the commission of a relevant offence (as defined at subsection (1) of section 60 of the 2003 Act).
100.These amendments will ensure that acts committed after a person has arrived in the UK but before they have entered the UK will be covered by the offences.
101.The trafficking people for exploitation offences contained in section 4 of the 2004 Act and sections 57 to 59 of the 2003 Act currently encompass anything done in the UK, anything done outside the UK by a British national and anything done outside the UK by a body incorporated in the UK to facilitate the arrival or entry into the UK of an individual for the purposes of exploitation. Section 31, subsections (2) and (4) amends sections 5(1) and (2) of the 2004 Act and sections 60(2) and (3) of the 2003 Act by removing these limitations on the territorial application of the offences and thereby ensuring that facilitating the arrival or entry into the UK of a person for the purposes of exploitation, regardless of where the facilitation took place and irrespective of the nationality of the facilitator, are now caught by the offences.
102.This section provides that the Secretary of State must make a deportation order in respect of a “foreign criminal” unless certain exceptions apply.
103.Subsection (1) defines “foreign criminal” for the purposes of the new automatic deportation process. A “foreign criminal” in this context means a non-British Citizen who has been convicted in the United Kingdom of an offence and to whom Condition 1 or 2 applies. Condition 1 is that he is sentenced to a period of imprisonment of at least 12 months (subsection (2)). Condition 2 is that he is sentenced to a period of imprisonment for an offence specified in an order made under section 72(4) of the Nationality, Asylum and Immigration Act 2002 (subsection (3)).
104.Subsection (4) provides that the deportation of a foreign criminal is conducive to the public good for the purposes of section 3(5)(a) of the Immigration Act 1971.
105.Subsection (6) prohibits the Secretary of State from revoking a deportation order made under the automatic procedure unless he thinks that an exception applies (see section 33 below), the application for revocation is made while the foreign criminal is outside the United Kingdom or section 34(4) applies.
106.Subsection (7) confirms that the requirement on the Secretary of State to make an “automatic” deportation order under subsection (5) does not create a private right of action in respect of the consequences of non-compliance.
107.This section gives effect to the commitment given in the Home Secretary’s statement of 23 May 2006 to create a direct link between deportation and the commission of a crime of the appropriate level of severity; and reduces the scope for challenging “automatic” deportation decisions through the appeals system. The existing legal framework (see Annex A) will continue to be available to deal with those who are exempt from the automatic procedure, those convicted of criminal offences who fall below the threshold for automatic deportation and other residual categories of case where it may be appropriate to exercise the “conducive to the public good” power to deport, for example national security cases and war criminals.
108.The section creates a new statutory framework for the "automatic" deportation of certain non-British citizens convicted in the United Kingdom of a qualifying offence. Under the provision, the Secretary of State will be required to make a deportation order unless he thinks that removal would breach a person’s rights under the European Convention on Human Rights or the United Kingdom’s obligations under the Refugee Convention or one of the other exceptions in section 33 applies.
109.This section creates a number of exceptions to the automatic deportation procedure and preserves the existing exemptions from deportation in sections 7 and 8 of the 1971 Act. Subsections (2) to (6) set out the five exceptions:
Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach a person’s Convention rights, or the United Kingdom’s obligations under the Refugee Convention (subsection (2)).
Exception 2 is where the Secretary of State thinks that the foreign criminal was under the age of 18 on the date of conviction (subsection (3)).
Exception 3 is where the removal of the foreign criminal would breach his rights under the Community treaties (subsection (4)).
Exception 4 is where the Secretary of State has received a valid extradition request in respect of the foreign criminal (subsection (5)).
Exception 5 is where certain provisions of the Mental Health Act 1983 or corresponding legislation in Scotland or Northern Ireland apply (the foreign criminal is a “mentally disordered offender”)(subsection (6)).
110.Subsection (7) makes clear that those who are exempt from the automatic deportation procedure may continue to be deported under existing legislation and the application of an exception will not result in it being assumed either that deportation of the person concerned is conducive to the public good nor that it is not conducive to the public good. However, section 32(4) will continue to apply to persons falling within exceptions 1 and 4.
111.Subsection (1) allows the Secretary of State to choose when the deportation order should be made under section 32 subject to subsection (2) which provides that no order may be made while an appeal against a relevant conviction or sentence is pending (subsection (2)(a)), or could be brought (subsection (2)(b)). For the purpose of subsection (2)(b) the possibility of an appeal out of time must be disregarded and a person who has informed the Secretary of State in writing that he does not intend to appeal is treated as being no longer able to appeal (see subsection (3)).
112.Subsection (4) allows the Secretary of State to revoke a deportation order made in accordance with section 32(5) for the purpose of taking of action under the Immigration Acts or immigration rules and subsequently taking a new decision that section 32(5) applies and making an automatic deportation order. This includes the certification of clearly unfounded asylum and human rights claims under section 94 of the Nationality, Immigration and Asylum Act 2002. Once such action is complete a new deportation order may be made.
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.
116.This section creates a new power for the Secretary of State to detain a person while he considers whether section 32 applies, and pending the making of a deportation order under section 32 (subsection (1)). Where an automatic deportation order has been made, the Secretary of State must exercise the power of detention under paragraph 2(3) of Schedule 3 to the Immigration Act 1971 unless in the circumstances he thinks it inappropriate. A court determining on appeal against conviction or sentence may direct release from detention under subsection (1) or (2) (subsection (3)). Paragraph 2(3) provides a power of detention in respect of a person if a deportation order is in force against that person.
117.Subsections (4) and (5) apply the existing provisions on bail, arrest and restriction orders to automatic deportation cases.
118.This section provides that a deportation order may not be made against a family member of a foreign criminal if more than eight weeks have elapsed since either the expiry of the time limit for appeal (if no appeal against an automatic deportation order is brought) (subsection 3) or such an appeal ceased to be pending (subsection (4)).
119.Subsections (1) and (2) further define a “period of imprisonment” so as to:
exclude suspended sentences unless a court subsequently orders that the suspended sentence is to take effect;
exclude (for the purpose of Condition 1 in section 32) any sentence which amounts to at least 12 months only by virtue of being comprised of consecutive sentences which amount in aggregate to more than 12 months; and
include indeterminate sentences and sentences served in institutions other than a prison.
120.Subsection (3) clarifies that a person subject to an order under section 5 of the Criminal Procedure Insanity Act 1964 has not been convicted of an offence for the purposes of section 32.
121.Subsection (4) defines the following terms for the purposes of the automatic deportation process:
British citizen;
Convention Rights;
Deportation order; and
Refugee convention.
122.This section makes several consequential amendments to section 72(11)(b) of the Nationality, Immigration and Asylum Act 2002 in respect of suspended sentences and consecutive sentences.
123.This section provides that Her Majesty’s Revenue and Customs (HMRC) and the Revenue and Customs Prosecutions Office (RCPO), as well as those authorised to act on behalf of those organisations, may supply the Secretary of State with information, documents or articles for use for those purposes which are specified in this provision, all of which relate to the exercise of the Secretary of State’s immigration and nationality functions.
124.This section sets out the statutory duty of confidentiality placed on the Secretary of State, Ministers and their officials as well as those acting on their behalf in respect of information, documents and articles supplied by HMRC, the RCPO or those acting on either organisation’s behalf under those provisions specified in subsection (2) unless it is for a purpose permitted in this provision.
125.It means that the Secretary of State, Ministers and the officials as well as those acting on their behalf are permitted to disclose information only if permitted to do so by any other enactment (not including an Act of the Scottish Parliament or of the Northern Ireland Assembly or an instrument made under such an Act) or the disclosure is for a purpose specified in subsection (3).
126.This section creates an offence of wrongful disclosure of certain information supplied by HMRC, the RCPO or those authorised to act on behalf of either of them. The offence is committed where a person in disclosing the information which relates to an identifiable natural or legal person contravenes section 41. It does not apply to the disclosure of information about internal administrative arrangements of HMRC or the RCPO.
127.The offence applies in respect of the information supplied to the Secretary of State, etc. under the relevant provisions both before and after this provision is commenced.
128.This section amends section 131 of the Nationality, Immigration and Asylum Act 2002. That provision provides that information may be supplied under section 20 of the Immigration and Asylum Act 1999 for the purpose of determining whether an applicant for naturalisation under the British Nationality Act 1981 is of good character. Section 20 of the Immigration and Asylum Act 1999 provides for information to be supplied to the Secretary of State by a number of persons specified in subsection (1) or specified in an order made under subsection (1)(f) for immigration purposes as defined in that provision.
129.This section in amending section 131 of the Nationality, Immigration and Asylum Act 2002, enables those persons (including chief officers of police and the Serious Organised Crime Agency) to supply information to assist the Secretary of State in determining whether applicants aged 10 or over for registration under a provision listed in section 58(2) of the Immigration, Asylum and Nationality Act 2006 are of good character. Such information may include evidence of previous convictions.
130.Where a person has been arrested for a criminal offence, and an immigration officer or a police constable suspects that the individual might not be a British citizen and documents relating to his nationality might be found on certain premises, the immigration officer or constable may enter and search the premises without warrant for the purpose of finding those documents (under section 44).
131.A nationality document means a document showing the individual’s identity, nationality or citizenship, the place from which he travelled to the United Kingdom, or the place to which he is proposing to go (subsection (5)). The premises which may be searched are premises occupied or controlled by the arrested person, or the premises in which he was when, or immediately before, he was arrested (subsection (1)(b)).
132.Under subsection (3) the power of entry and search may only be exercised with the written authority of a senior officer. In relation to an immigration officer, a senior officer is an immigration officer of at least the rank of chief immigration officer. In relation to a constable, a senior officer is a constable of at least the rank of inspector. The senior officer who authorises the search must arrange for a written record of the grounds for the suspicions in reliance on which the power was exercised and the nature of the documents sought (subsection (3)(b)).
133.Under subsection (4) the power of search may not be exercised where the arrested person has been released without charge.
134.Under section 45, where it is believed that nationality documents may be held at premises other than those set out in section 44, a warrant may be sought to enter and search those premises. This ensures judicial oversight for this wider search power, and subsection (4) provides additional safeguards for when a warrant may be sought. If a warrant is to be obtained by or executed by a police constable the safeguards in sections 15 and 16 of the Police and Criminal Evidence Act 1984 will apply.
135.Under section 46 an immigration officer or constable may seize a document which he thinks is a nationality document relating to the arrested person, provided it is not a document subject to legal privilege (subsection (2)). An immigration officer or a constable may retain the seized document while he suspects that the individual to whom the document relates may be liable to removal, and that retention of the document may facilitate removal.
136.Subsection (4) and (5) provide for the access to and copying of any documents seized.
137.Section 47 inserts a new paragraph 18A to Part 2 of Schedule 4 to the Police Reform Act 2002 (powers exercisable by police civilians: investigating officers). This enables an investigating officer to exercise the new powers of entry, search, seizure and retention, in the same way that a constable can, provided he is designated as having these particular powers.
138.Subsection (1) requires the Secretary of State to appoint a Chief Inspector of the Border and Immigration Agency.
139.Subsection (2) sets out that the Chief Inspector shall monitor, and report on, the efficiency and effectiveness of the Agency. Without prejudice to the generality of this duty, a number of specific areas that the Chief Inspector shall consider and make recommendations about are set out.
140.Subsection (2)(a) states that the Chief Inspector shall look at consistency of approach within the Agency.
141.Subsection (2)(b) tasks the Chief Inspector with comparing the practice and performance of the Agency against similar bodies. This will allow the Chief Inspector to compare the performance of the Agency with other organisations and bodies doing similar things (for example, dealing with large volumes of applications), both within the United Kingdom and more widely.
142.Subsection (2)(c) states that the Chief Inspector shall look at practice and procedure in making decisions.
143.Subsection (2)(d) charges the Chief Inspector with looking at the way the Agency treats applicants. This will involve the Chief Inspector assessing the main processes involved for those experiencing the immigration system.
144.Subsection (2)(e) provides that the Chief Inspector shall look at certification of asylum and human rights claims as clearly unfounded under section 94 of the Nationality, Immigration and Asylum Act 2002. Section 111 of that Act currently provides for oversight of this certification power by a monitor (the monitor of certification of claims as unfounded). That position is abolished by section 53.
145.Subsection (2)(f) tasks the Chief Inspector with looking at compliance with discrimination law. This includes looking at reliance on authorisations made under section 19D of the Race Relations Act 1976, something which is currently done by the monitor provided for by section 19E of that Act (the position of which is abolished by section 53).
146.Subsection (2)(g) sets out that the Chief Inspector shall assess the Agency’s use of enforcement powers.
147.Subsection (2)(h) states that the Chief Inspector shall look at the provision of information. This will allow the Chief Inspector to assess how information is provided by the Agency at the United Kingdom’s ports, through Agency websites and letters, by face-to-face contact, over the telephone and by way of e-mail contact and publications.
148.Subsection (2)(i) provides that the Chief Inspector shall look at the handling of complaints.
149.Subsection (2)(j) tasks the Chief Inspector with looking at information on other countries which the Secretary of State compiles and uses for immigration and asylum purposes. This role is currently undertaken by the Advisory Panel on Country Information provided for by section 142 of the Nationality, Immigration and Asylum Act 2002 (which is abolished by section 53).
150.Subsection (3) defines the Border and Immigration Agency as immigration officers, and any other officials of the Secretary of State, and the Secretary of State, dealing with immigration, asylum or nationality.
151.Subsection (4) makes clear that the Chief Inspector shall not set out to investigate individual cases. However, he is not prevented from looking at individual cases and/or draw conclusions from them for the purpose of, or in the context of, considering a wider issue. So, for example, where there is an allegation of an immigration officer asking for sex in return for favourable immigration status decisions, the Chief Inspector can look at the individual case for the purpose of considering the measures which the Agency has in place to prevent members of staff abusing their positions in this way.
152.Section 49 deals with supplemental issues such as the appointment and pay of the Chief Inspector. Subsection (1) says that the Secretary of State must pay remuneration and allowances to the Chief Inspector. In terms of the Chief Inspector’s budget, subsection (2) says that the Secretary of State must, before the start of each financial year, set the Chief Inspector’s budget for the year. The Secretary of State can allow the Chief Inspector to exceed his budget for a specified purpose. Subsection (3) makes clear that the Chief Inspector shall hold and vacate office in accordance with terms of appointment. Subsection (4) allows him to appoint staff. Subsection (5) sets out that a person employed by a government department or devolved administration may not be appointed Chief Inspector.
153.Section 50 states that the Chief Inspector shall report in writing to the Secretary of State (i) once a year and (ii) at such other times as requested by the Secretary of State in relation to specified matters. The Secretary of State must lay before Parliament a copy of any report received from the Chief Inspector. Subsection (3) allows the Secretary of State to withhold material from the copy laid before Parliament if he thinks its publication is undesirable for reasons of national security or may places an individual in danger.
154.Section 51 requires the Chief Inspector to prepare plans describing the objectives and terms of reference of inspections he proposes to carry out. The Secretary of State has the power to specify when plans should be prepared and what periods they should cover, although the Chief Inspector must prepare plans at such other times, and in respect of such other periods, as he thinks appropriate. The Secretary of State also has the power to lay down the form of plans, what information they must contain, who should be consulted (in addition to himself) when plans are being prepared by the Chief Inspector and who (in addition to himself) should receive copies of plans. The Chief Inspector is free to carry out actions even if they are not listed in a plan.
155.Section 52 allows for close working between the Chief Inspector and other bodies. The Chief Inspector must co-operate with and may act jointly with such persons as the Secretary of State may specify, insofar as the Chief Inspector thinks it consistent with the efficient and effective performance of his functions. The Chief Inspector may also assist a person specified by the Secretary of State. The Chief Inspector may also delegate a specified aspect of his functions to a person specified by the Secretary of State. The relevant persons will be identified by order (see section 55 below).
156.Section 53 gives the Chief Inspector the power to issue a notice preventing a person (specified by the Secretary of State) from conducting an investigation of the Border and Immigration Agency if the Chief Inspector thinks that it may place an unreasonable burden on the Agency. The person on whom the notice is served must comply with it, unless the Secretary of State cancels it on the basis that the inspection would not impose an unreasonable burden on the Agency. The Secretary of State has the power to specify the form of notices and what information they must contain and set out details about the timing, publication and revision or withdrawal of notices.
157.Section 54 provides for the abolition of the monitor provided for by section 19E of the Race Relations Act 1976 (monitor of exception in relation to immigration cases), the Monitor of Accommodation Centres (provided for by section 34 of the Nationality, Immigration and Asylum Act 2002), the monitor provided for by section 111 of that Act (monitor of certification of claims as unfounded) and the Advisory Panel on Country Information (provided for by section 142 of that Act). Section 48 tasks the Chief Inspector with the duties formerly carried out by these persons/bodies, with the exception of the Monitor of Accommodation Centres, the position of which is being abolished because accommodation centres have never been established.
158.Section 55 defines ‘prescribed’ for those sections of the Act that relate to the Chief Inspectorate of the Border and Immigration Agency as meaning prescribed by order of the Secretary of State. The section makes supplemental provision about what an order under any of those sections may do and sets out the parliamentary procedure which applies to such an order.
159.Section 56 amends section 43(3) of the Tribunals, Courts and Enforcement Act 2007. That section requires the Senior President of Tribunals to report to the Lord Chancellor each year on certain matters in relation to relevant tribunal cases. Section 56 adds cases coming before the Asylum and Immigration Tribunal to the definition of “relevant tribunal cases”, with the result being that cases coming before the Tribunal are within the reporting remit of the Senior President.
160.The section also requires the Senior President, in exercising his reporting function, to take into account the functions of the Chief Inspector of the Border and Immigration Agency and the power of the Secretary of State to request the Chief Inspector to report about specified matters. This is with an aim to avoiding duplication of effort by the Senior President and the Chief Inspector.
161.This section gives the Secretary of State authority to spend money provided by Parliament for the purposes of the Act.
162.The provisions specified will be repealed as they are replaced by or rendered obsolete by the provisions in the Act.
163.This section sets out the arrangements for bringing into force the provisions of the Act.
164.Subsection (1) provides that section 17 shall come into force on the day the Act is passed.
165.Subsection (2) states that the other preceding provisions may be brought into force on a day which the Secretary of State may, by order, appoint.
166.Subsection (3) states that different provisions may be brought into force at different times and for different purposes and may include transitional provisions.
167.Subsection (4) specifies certain particular transitional provisions which the commencement order may make in relation to sections 16, 25, 26 and 32.
168.Section 60: the UK Borders Act extends to the whole of the United Kingdom, with three exceptions, sections 1-4 relating to powers of detention for immigration officers at ports, and section 25 relating to forfeiture of property, and section 31(1) and (2) relating to trafficking offences. These will only apply to England, Wales and Northern Ireland.
169.Amendments to other Acts have the same extent as the amended Act (or the amended part thereof).
170.A provision of the Act may be extended to any of the Channel Islands or to the Isle of Man by Order in Council.