Asylum and Immigration Act 1996

Asylum claims

1 Extension of special appeals procedures

For paragraph 5 of Schedule 2 to the [1993 c. 23.] Asylum and Immigration Appeals Act 1993 (“the 1993 Act”) there shall be substituted the following paragraph—

“5 (1) This paragraph applies to an appeal by a person on any of the grounds mentioned in subsections (1) to (4) of section 8 of this Act if the Secretary of State has certified that, in his opinion, the person’s claim on the ground that it would be contrary to the United Kingdom’s obligations under the Convention for him to be removed from, or be required to leave, the United Kingdom is one to which—

(a) sub-paragraph (2), (3) or (4) below applies; and

(b) sub-paragraph (5) below does not apply.

(2) This sub-paragraph applies to a claim if the country or territory to which the appellant is to be sent is designated in an order made by the Secretary of State by statutory instrument as a country or territory in which it appears to him that there is in general no serious risk of persecution.

(3) This sub-paragraph applies to a claim if, on his arrival in the United Kingdom, the appellant was required by an immigration officer to produce a valid passport and either—

(a) he failed to produce a passport without giving a reasonable explanation for his failure to do so; or

(b) he produced a passport which was not in fact valid and failed to inform the officer of that fact.

(4) This sub-paragraph applies to a claim if—

(a) it does not show a fear of persecution by reason of the appellant’s race, religion, nationality, membership of a particular social group, or political opinion;

(b) it shows a fear of such persecution, but the fear is manifestly unfounded or the circumstances which gave rise to the fear no longer subsist;

(c) it is made at any time after the appellant—

(i) has been refused leave to enter under the 1971 Act,

(ii) has been recommended for deportation by a court empowered by that Act to do so,

(iii) has been notified of the Secretary of State’s decision to make a deportation order against him by virtue of section 3(5) of that Act, or

(iv) has been notified of his liability to removal under paragraph 9 of Schedule 2 to that Act;

(d) it is manifestly fraudulent, or any of the evidence adduced in its support is manifestly false; or

(e) it is frivolous or vexatious.

(5) This sub-paragraph applies to a claim if the evidence adduced in its support establishes a reasonable likelihood that the appellant has been tortured in the country or territory to which he is to be sent.

(6) Rules of procedure under section 22 of the 1971 Act may make special provision in relation to appeals to which this paragraph applies.

(7) If on an appeal to which this paragraph applies the special adjudicator agrees that the claim is one to which—

(a) sub-paragraph (2), (3) or (4) above applies; and

(b) sub-paragraph (5) above does not apply,

section 20(1) of that Act shall not confer on the appellant any right to appeal to the Immigration Appeal Tribunal.

(8) The first order under this paragraph shall not be made unless a draft of the order has been laid before and approved by a resolution of each House of Parliament.

(9) A statutory instrument containing a subsequent order under this paragraph shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(10) In this paragraph—

• “immigration officer” means an immigration officer appointed for the purposes of the 1971 Act;

• “passport”, in relation to an appellant, means a passport with photograph or some other document satisfactorily establishing his identity and nationality or citizenship.”

2 Removal etc. of asylum claimants to safe third countries

(1) Nothing in section 6 of the 1993 Act (protection of claimants from deportation etc.) shall prevent a person who has made a claim for asylum being removed from the United Kingdom if—

(a) the Secretary of State has certified that, in his opinion, the conditions mentioned in subsection (2) below are fulfilled;

(b) the certificate has not been set aside on an appeal under section 3 below; and

(c) except in the case of a person who is to be sent to a country or territory to which subsection (3) below applies, the time for giving notice of such an appeal has expired and no such appeal is pending.

(2) The conditions are—

(a) that the person is not a national or citizen of the country or territory to which he is to be sent;

(b) that his life and liberty would not be threatened in that country or territory by reason of his race, religion, nationality, membership of a particular social group, or political opinion; and

(c) that the government of that country or territory would not send him to another country or territory otherwise than in accordance with the Convention.

(3) This subsection applies to any country or territory which is or forms part of a member State, or is designated for the purposes of this subsection in an order made by the Secretary of State by statutory instrument.

(4) The first order under this section shall not be made unless a draft of the order has been laid before and approved by a resolution of each House of Parliament.

(5) A statutory instrument containing a subsequent order under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(6) For the purposes of this section, an appeal under section 3 below is pending during the period beginning when notice of appeal is duly given and ending when the appeal is finally determined or withdrawn.

(7) In this section “claim for asylum” and “the Convention” have the same meanings as in the 1993 Act.

3 Appeals against certificates under section 2

(1) Where a certificate has been issued under section 2(1) above in respect of any person—

(a) that person may appeal against the certificate to a special adjudicator on the ground that any of the conditions mentioned in section 2(2) above was not fulfilled when the certificate was issued, or has since ceased to be fulfilled; but

(b) unless and until the certificate is set aside on such an appeal, he shall not be entitled to bring or pursue any appeal under—

(i) Part II of the 1971 Act (appeals: general); or

(ii) section 8 of the 1993 Act (appeals to special adjudicator on Convention grounds),

as respects matters arising before his removal from the United Kingdom.

(2) A person who has been, or is to be, sent to a country or territory to which section 2(3) above applies shall not be entitled to bring or pursue an appeal under this section so long as he is in the United Kingdom.

(3) The Lord Chancellor shall designate such number of the adjudicators appointed for the purposes of Part II of the 1971 Act as he thinks necessary to act as special adjudicators for the purposes of this section and may from time to time vary that number and the persons who are so designated.

(4) Subject to subsection (5) below, the following provisions of the 1971 Act, namely—

(a) section 18 (notice of decisions appealable under that Part and statement of appeal rights etc.);

(b) section 19 (determination of appeals under that Part by adjudicators);

(c) section 21 (references of cases by Secretary of State for further consideration);

(d) section 22(1) to (4), (6) and (7) (rules of procedure for appeals);

(e) section 23 (grants to voluntary organisations helping persons with rights of appeal); and

(f) Schedule 5 (provisions about adjudicators and Immigration Appeal Tribunal),

shall have effect as if this section were contained in Part II of that Act.

(5) Rules of procedure under section 22 of the 1971 Act—

(a) may make special provision in relation to appeals under this section; and

(b) may make different provision in relation to appeals by persons who have been, or are to be, sent to countries or territories of different descriptions;

and so much of paragraph 5 of Schedule 5 to that Act as relates to the allocation of duties among the adjudicators shall have effect subject to subsection (3) above.

(6) Paragraph 29 of Schedule 2 to the 1971 Act (grant of bail pending appeal) shall have effect as if the references to appeals under sections 13(1), 15(1)(a) and 16 of that Act included references to appeals under this section.

Immigration offences

4 Obtaining leave by deception

In subsection (1) of section 24 of the 1971 Act (illegal entry and similar offences), after paragraph (a) there shall be inserted the following paragraph—

“(aa) if, by means which include deception by him, he obtains or seeks to obtain leave to enter or remain in the United Kingdom;”.

5 Assisting asylum claimants, and persons seeking to obtain leave by deception

(1) In subsection (1) of section 25 of the 1971 Act (assisting illegal entry, and habouring), for the words from “the entry” to “illegal entrant” there shall be substituted the following paragraphs—

“(a) the entry into the United Kingdom of anyone whom he knows or has reasonable cause for believing to be an illegal entrant;

(b) the entry into the United Kingdom of anyone whom he knows or has reasonable cause for believing to be an asylum claimant; or

(c) the obtaining by anyone of leave to remain in the United Kingdom by means which he knows or has reasonable cause for believing to include deception,”.

(2) After that subsection there shall be inserted the following subsection—

“(1A) Nothing in subsection (1)(b) above shall apply to anything which is done—

(a) by a person otherwise than for gain, or in the course of his employment by a bona fide organisation whose purpose it is to assist refugees; or

(b) in relation to a person who has been detained under paragraph 16 of Schedule 2 to this Act, or has been granted temporary admission under paragraph 21 of that Schedule;

and in that provision “asylum claimant” means a person who intends to make a claim for asylum (within the meaning of the [1993 c. 23.] Asylum and Immigration Appeals Act 1993).”

(3) In subsection (5) of that section, for the words “Subsection (1)” there shall be substituted the words “Subsection (1)(a)”.

(4) In subsection (6) of that section, for the words “subsection (1)” there shall be substituted the words “subsection (1)(a) or (b)”.

6 Increased penalties

In the following provisions, namely—

(a) subsection (1) of section 24 of the 1971 Act (illegal entry and similar offences);

(b) subsection (1) of section 26 (general offences in connection with administration of Act); and

(c) section 27 (offences by persons connected with ships or aircraft or with ports),

for the words “level 4” there shall be substituted the words “level 5”.

7 Power of arrest and search warrants

(1) A constable or immigration officer may arrest without warrant anyone whom he has reasonable grounds for suspecting to have committed an offence to which this section applies.

(2) If—

(a) a justice of the peace is by written information on oath satisfied that there is reasonable ground for suspecting that a person who is liable to be arrested under subsection (1) above is to be found on any premises; or

(b) in Scotland, a sheriff, or a justice of the peace, having jurisdiction in the place where the premises are situated is by evidence on oath so satisfied,

he may grant a warrant authorising any constable to enter, if need be by force, the premises named in the warrant for the purposes of searching for and arresting that person.

(3) The following provisions, namely—

(a) section 8 of the [1984 c. 60.] Police and Criminal Evidence Act 1984 (power of justice to authorise entry and search of premises); and

(b) Article 10 of the [S.I. 1989/1341 (N.I.12).] Police and Criminal Evidence (Northern Ireland) Order 1989 (corresponding provision for Northern Ireland),

shall have effect as if the reference in subsection (1) of that section or, as the case may be, paragraph (1) of that Article to a serious arrestable offence included a reference to an offence to which this section applies.

(4) This section applies to the following offences under section 24(1) of the 1971 Act, namely—

(a) an offence under paragraph (a) (illegal entry);

(b) an offence under paragraph (aa) (obtaining leave to enter or remain by deception); and

(c) an offence under paragraph (b) (remaining beyond time limited by leave or failing to observe condition of leave).

(5) In this section “immigration officer” has the same meaning as in the 1971 Act.

Persons subject to immigration control

8 Restrictions on employment

(1) Subject to subsection (2) below, if any person (“the employer”) employs a person subject to immigration control (“the employee”) who has attained the age of 16, the employer shall be guilty of an offence if—

(a) the employee has not been granted leave to enter or remain in the United Kingdom; or

(b) the employee’s leave is not valid and subsisting, or is subject to a condition precluding him from taking up the employment,

and (in either case) the employee does not satisfy such conditions as may be specified in an order made by the Secretary of State.

(2) Subject to subsection (3) below, in proceedings under this section, it shall be a defence to prove that—

(a) before the employment began, there was produced to the employer a document which appeared to him to relate to the employee and to be of a description specified in an order made by the Secretary of State; and

(b) either the document was retained by the employer, or a copy or other record of it was made by the employer in a manner specified in the order in relation to documents of that description.

(3) The defence afforded by subsection (2) above shall not be available in any case where the employer knew that his employment of the employee would constitute an offence under this section.

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

(5) Where an offence under this section committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of—

(a) any director, manager, secretary or other similar officer of the body corporate; or

(b) any person who was purporting to act in any such capacity,

he as well as the body corporate shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly.

(6) Where the affairs of a body corporate are managed by its members, subsection (5) above shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.

(7) An order under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(8) In this section—

• “contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether it is oral or in writing;

• “employ” means employ under a contract of employment and “employment” shall be construed accordingly.

9 Entitlement to housing accommodation and assistance

(1) Each housing authority shall secure that, so far as practicable, no tenancy of, or licence to occupy, housing accommodation provided under the accommodation Part is granted to a person subject to immigration control unless he is of a class specified in an order made by the Secretary of State.

(2) A person subject to immigration control—

(a) shall not be eligible for accommodation or assistance under the homelessness Part; and

(b) shall be disregarded in determining, for the purposes of that Part, whether another person—

(i) is homeless or is threatened with homelessness; or

(ii) has a priority need for accommodation,

unless he is of a class specified in an order made by the Secretary of State.

(3) An order under this section—

(a) may make different provision for different circumstances or for accommodation or assistance of different descriptions; and

(b) shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(4) In this section—

• “the accommodation Part” and “the homelessness Part” mean respectively—

  (a)

  in relation to England and Wales, Parts II and III of the [1985 c. 68.] Housing Act 1985;

  (b)

  in relation to Scotland, Parts I and II of the [1987 c. 26.] Housing (Scotland) Act 1987;

  (c)

  in relation to Northern Ireland, Part II of the [S.I. 1981/156 (N.I.3).] Housing (Northern Ireland) Order 1981 and Part II of the [S.I. 1988/1990 (N.I.23).] Housing (Northern Ireland) Order 1988;

• “housing authority” means—

  (a)

  in relation to England and Wales, a local housing authority within the meaning of the [1985 c. 68.] Housing Act 1985;

  (b)

  in relation to Scotland, a local authority within the meaning of the Housing (Scotland) Act 1987;

  (c)

  in relation to Northern Ireland, the Northern Ireland Housing Executive;

• “licence to occupy”, in relation to Scotland, means a permission or right to occupy;

• “tenancy”, in relation to England and Wales, has the same meaning as it has in the Housing Act 1985.

10 Entitlement to child benefit

(1) The provision set out in subsection (2) below shall be inserted—

(a) after section 146 of the [1992 c. 4.] Social Security Contributions and Benefits Act 1992, as section 146A of that Act; and

(b) after section 142 of the [1992 c. 7.] Social Security Contributions and Benefits (Northern Ireland) Act 1992, as section 142A of that Act.

(2) The provision is as follows—

“  Persons subject to immigration control

No person subject to immigration control within the meaning of the Asylum and Immigration Act 1996 shall be entitled to child benefit for any week unless he satisfies prescribed conditions.”

11 Saving for social security regulations

(1) Notwithstanding any enactment or rule of law, regulations may exclude any person who has made a claim for asylum from entitlement to any of the following benefits, namely—

(a) income support, housing benefit and council tax benefit under the Social Security Contributions and Benefits Act 1992;

(b) income support and housing benefit under the Social Security Contributions and Benefits (Northern Ireland) Act 1992; and

(c) jobseeker’s allowance under the [1995 c. 18.] Jobseekers Act 1995 or the [S.I. 1995/2705.] Jobseekers (Northern Ireland) Order 1995.

(2) Regulations may provide that, where such a person who is so excluded is subsequently recorded by the Secretary of State as a refugee within the meaning of the Convention—

(a) that person may, within a prescribed period, claim the whole or any prescribed proportion of any income support, housing benefit or council tax benefit to which he would have been entitled had he been recorded as a refugee immediately after he made the claim for asylum; and

(b) where he makes such a claim as is mentioned in paragraph (a) above in respect of housing benefit or council tax benefit having resided in the areas of two or more local authorities in Great Britain, the claim shall be investigated and determined, and any benefit awarded shall be paid or allowed, by such one of those authorities as may be prescribed.

(3) Regulations making such provision as is mentioned in subsection (2)(b) above may require the other authorities there mentioned to supply the prescribed authority with such information as it may reasonably require in connection with the exercise of its functions under the regulations.

(4) Schedule 1 to this Act—

(a) Part I of which modifies the [S.I. 1996/30.] Social Security (Persons from Abroad) Miscellaneous Amendments Regulations 1996; and

(b) Part II of which modifies the [S.R. (N.I.) 1996 No. 11.] Social Security (Persons from Abroad) (Miscellaneous Amendments) Regulations (Northern Ireland) 1996,

shall have effect.

(5) The [S.I. 1996/1516.] Jobseeker’s Allowance (Amendment) Regulations 1996 shall have effect as if they had been made on the day on which this Act is passed.

(6) In this section—

• “claim for asylum” and “the Convention” have the same meanings as in the 1993 Act;

• “prescribed” means prescribed by regulations;

• “regulations”—

  (a)

  in relation to income support, housing benefit or council tax benefit under the [1992 c. 4.] Social Security Contributions and Benefits Act 1992, means regulations under that Act or the [1992 c. 5.] Social Security Administration Act 1992;

  (b)

  in relation to income support or housing benefit under the [1992 c. 7.] Social Security Contributions and Benefits (Northern Ireland) Act 1992, means regulations under that Act or the [1992 c. 8.] Social Security Administration (Northern Ireland) Act 1992;

  (c)

  in relation to jobseeker’s allowance under the [1995 c. 18.] Jobseekers Act 1995, means regulations under that Act or the Social Security Administration Act 1992;

  (d)

  in relation to jobseeker’s allowance under the [S.I. 1995/2705.] Jobseekers (Northern Ireland) Order 1995, means regulations under that Order or the Social Security Administration (Northern Ireland) Act 1992.

Miscellaneous and supplemental

12 Other amendments and repeals

(1) Schedule 2 to this Act (which contains amendments of the 1971 Act and a related amendment of the [1988 c. 14.] Immigration Act 1988) shall have effect.

(2) Schedule 3 to this Act (which contains amendments of the 1993 Act) shall have effect.

(3) The enactments specified in Schedule 4 to this Act are hereby repealed to the extent specified in the third column of that Schedule.

13 Short title, interpretation, commencement and extent

(1) This Act may be cited as the Asylum and Immigration Act 1996.

(2) In this Act—

• “the 1971 Act” means the [1971 c. 77.] Immigration Act 1971;

• “the 1993 Act” means the [1993 c. 23.] Asylum and Immigration Appeals Act 1993;

• “person subject to immigration control” means a person who under the 1971 Act requires leave to enter or remain in the United Kingdom (whether or not such leave has been given).

(3) This Act, except section 11 and Schedule 1, shall come into force on such day as the Secretary of State may by order made by statutory instrument appoint, and different days may be appointed for different purposes.

(4) An order under subsection (3) above may make such transitional and supplemental provision as the Secretary of State thinks necessary or expedient.

(5) Her Majesty may by Order in Council direct that any of the provisions of this Act shall extend, with such modifications as appear to Her Majesty to be appropriate, to any of the Channel Islands or the Isle of Man.

(6) This Act extends to Northern Ireland.