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Immigration and Asylum Act 1999

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E+W+S+N.I.

Immigration and Asylum Act 1999

1999 CHAPTER 33

An Act to make provision about immigration and asylum; to make provision about procedures in connection with marriage on superintendent registrar’s certificate; and for connected purposes.

[11th November 1999]

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

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Modifications etc. (not altering text)

C1Act modified (2.10.2000) by S.I. 2000/2444, arts. 3, 4, Sch.

Act modified (1.9.2001) by 2001 c. 17, s. 32(7); S.I. 2001/2161, art. 2

C3Act: a reference to a detention centre within the meaning of Pt. 8 of the Immigration and Asylum Act 1999 (c. 33) to be construed as a reference to a removal centre within the meaning of that part (10.2.2003) by virtue of 2002 c. 41, ss. 66(4), 162(1)

C4Act specified provisions extended (Jersey) (with modifications) (5.6.2003) by The Immigration and Asylum Act 1999 (Jersey) Order 2003 (S.I. 2003/1252), arts. 1(1), 2, Sch. (as amended (17.10.2012) by The Immigration and Asylum (Jersey) Order 2012 (S.I. 2012/2593), art. 4(2))

C5Act specified provisions extended (Guernsey) (with modifications) (11.12.2003) by The Immigration and Asylum Act 1999 (Guernsey) Order 2003 (S.I. 2003/2900), art. 2, Sch.

C9Act applied (with modifications) (E.W.S.) (1.10.2010) by The Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) Regulations 2010 (S.I. 2010/875), regs. 1(2), 16, Sch. 2 (amending S.I. was revoked (27.8.2010) by S.I. 2010/1906, reg. 2)

C10Act extended (Isle of Man) in part (with modifications) (13.3.2008 for specified purposes, 1.5.2008 in so far as not already in force) by Immigration (Isle of Man) Order 2008 (S.I. 2008/680), art. 14, Sch. 6 (with art. 5, Sch. 2) (as amended (29.6.2011) by Immigration (Isle of Man) (Amendment) Order 2011 (S.I. 2011/1408), Sch. paras. 4, 5)

Part IE+W+S+N.I. Immigration: General

Leave to enter, or remain in, the United KingdomE+W+S+N.I.

1 Leave to enter.E+W+S+N.I.

In the 1971 Act, after section 3, insert—

3A Further provision as to leave to enter.

(1)The Secretary of State may by order make further provision with respect to the giving, refusing or varying of leave to enter the United Kingdom.

(2)An order under subsection (1) may, in particular, provide for—

(a)leave to be given or refused before the person concerned arrives in the United Kingdom;

(b)the form or manner in which leave may be given, refused or varied;

(c)the imposition of conditions;

(d)a person’s leave to enter not to lapse on his leaving the common travel area.

(3)The Secretary of State may by order provide that, in such circumstances as may be prescribed—

(a)an entry visa, or

(b)such other form of entry clearance as may be prescribed,

is to have effect as leave to enter the United Kingdom.

(4)An order under subsection (3) may, in particular—

(a)provide for a clearance to have effect as leave to enter—

(i)on a prescribed number of occasions during the period for which the clearance has effect;

(ii)on an unlimited number of occasions during that period;

(iii)subject to prescribed conditions; and

(b)provide for a clearance which has the effect referred to in paragraph (a)(i) or (ii) to be varied by the Secretary of State or an immigration officer so that it ceases to have that effect.

(5)Only conditions of a kind that could be imposed on leave to enter given under section 3 may be prescribed.

(6)In subsections (3), (4) and (5) “prescribed” means prescribed in an order made under subsection (3).

(7)The Secretary of State may, in such circumstances as may be prescribed in an order made by him, give or refuse leave to enter the United Kingdom.

(8)An order under subsection (7) may provide that, in such circumstances as may be prescribed by the order, paragraphs 2, 4, 6, 7, 8, 9 and 21 of Part I of Schedule 2 to this Act are to be read, in relation to the exercise by the Secretary of State of functions which he has as a result of the order, as if references to an immigration officer included references to the Secretary of State.

(9)Subsection (8) is not to be read as affecting any power conferred by subsection (10).

(10)An order under this section may—

(a)contain such incidental, supplemental, consequential and transitional provision as the Secretary of State considers appropriate; and

(b)make different provision for different cases.

(11)This Act and any provision made under it has effect subject to any order made under this section.

(12)An order under this section must be made by statutory instrument.

(13)But no such order is to be made unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

2 Leave to remain.E+W+S+N.I.

In the 1971 Act, after section 3A, insert—

3B Further provision as to leave to remain.

(1)The Secretary of State may by order make further provision with respect to the giving, refusing or varying of leave to remain in the United Kingdom.

(2)An order under subsection (1) may, in particular, provide for—

(a)the form or manner in which leave may be given, refused or varied;

(b)the imposition of conditions;

(c)a person’s leave to remain in the United Kingdom not to lapse on his leaving the common travel area.

(3)An order under this section may—

(a)contain such incidental, supplemental, consequential and transitional provision as the Secretary of State considers appropriate; and

(b)make different provision for different cases.

(4)This Act and any provision made under it has effect subject to any order made under this section.

(5)An order under this section must be made by statutory instrument.

(6)But no such order is to be made unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

3 Continuation of leave pending decision.E+W+S+N.I.

In the 1971 Act, after section 3B, insert—

3C Continuation of leave pending decision.

(1)This section applies if—

(a)a person who has limited leave to enter or remain in the United Kingdom applies to the Secretary of State, before his leave expires, for it to be varied; and

(b)when it expires, no decision has been taken on the application.

(2)His leave is to be treated as continuing until the end of the period allowed under rules made under paragraph 3 of Schedule 4 to the Immigration and Asylum Act 1999 for bringing an appeal against a decision on the application.

(3)An application for variation of a person’s leave to enter or remain in the United Kingdom may not be made while that leave is treated as continuing as a result of this section.

(4)But subsection (3) does not prevent the variation of an application mentioned in subsection (1).

4[F1Accommodation]E+W+S+N.I.

[F2(1)]The Secretary of State may provide, or arrange for the provision of, facilities for the accommodation of persons—

(a)temporarily admitted to the United Kingdom under paragraph 21 of Schedule 2 to the 1971 Act;

(b)released from detention under that paragraph; or

(c)released on bail from detention under any provision of the Immigration Acts.

[F3(2)The Secretary of State may provide, or arrange for the provision of, facilities for the accommodation of a person if—

(a)he was (but is no longer) an asylum-seeker, and

(b)his claim for asylum was rejected.

(3)The Secretary of State may provide, or arrange for the provision of, facilities for the accommodation of a dependant of a person for whom facilities may be provided under subsection (2).

(4)The following expressions have the same meaning in this section as in Part VI of this Act (as defined in section 94)—

(a)asylum-seeker,

(b)claim for asylum, and

(c)dependant.]

[F4(5)The Secretary of State may make regulations specifying criteria to be used in determining—

(a)whether or not to provide accommodation, or arrange for the provision of accommodation, for a person under this section;

(b)whether or not to continue to provide accommodation, or arrange for the provision of accommodation, for a person under this section.

(6)The regulations may, in particular—

(a)provide for the continuation of the provision of accommodation for a person to be conditional upon his performance of or participation in community activities in accordance with arrangements made by the Secretary of State;

(b)provide for the continuation of the provision of accommodation to be subject to other conditions;

(c)provide for the provision of accommodation (or the continuation of the provision of accommodation) to be a matter for the Secretary of State’s discretion to a specified extent or in a specified class of case.

(7)For the purposes of subsection (6)(a)—

(a)community activities” means activities that appear to the Secretary of State to be beneficial to the public or a section of the public, and

(b)the Secretary of State may, in particular—

(i)appoint one person to supervise or manage the performance of or participation in activities by another person;

(ii)enter into a contract (with a local authority or any other person) for the provision of services by way of making arrangements for community activities in accordance with this section;

(iii)pay, or arrange for the payment of, allowances to a person performing or participating in community activities in accordance with arrangements under this section.

(8)Regulations by virtue of subsection (6)(a) may, in particular, provide for a condition requiring the performance of or participation in community activities to apply to a person only if the Secretary of State has made arrangements for community activities in an area that includes the place where accommodation is provided for the person.

(9)A local authority or other person may undertake to manage or participate in arrangements for community activities in accordance with this section.]

[F5(10)The Secretary of State may make regulations permitting a person who is provided with accommodation under this section to be supplied also with services or facilities of a specified kind.

(11)Regulations under subsection (10)—

(a)may, in particular, permit a person to be supplied with a voucher which may be exchanged for goods or services,

(b)may not permit a person to be supplied with money,

(c)may restrict the extent or value of services or facilities to be provided, and

(d)may confer a discretion.]

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Amendments (Textual)

F1S. 4 heading substituted (7.11.2002) by Nationality, Immigration and Asylum Act 2002 (c. 41), s. 49(2) (with s. 159)

F2S. 4 renumbered (7.11.2002) as s. 4(1) by Nationality, Immigration and Asylum Act 2002 (c. 41), s. 49(2) (with s. 159)

Modifications etc. (not altering text)

F65 Charges.E+W+S+N.I.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

Exemption from immigration controlE+W+S+N.I.

6 Members of missions other than diplomatic agents.E+W+S+N.I.

In the 1971 Act, in section 8 (exceptions for certain categories of person), for subsection (3A) (members of diplomatic missions) substitute—

(3A)For the purposes of subsection (3), a member of a mission other than a diplomatic agent (as defined by the 1964 Act) is not to count as a member of a mission unless—

(a)he was resident outside the United Kingdom, and was not in the United Kingdom, when he was offered a post as such a member; and

(b)he has not ceased to be such a member after having taken up the post.

7 Persons ceasing to be exempt.E+W+S+N.I.

In the 1971 Act, after section 8, insert—

8A Persons ceasing to be exempt.

(1)A person is exempt for the purposes of this section if he is exempt from provisions of this Act as a result of section 8(2) or (3).

(2)If a person who is exempt—

(a)ceases to be exempt, and

(b)requires leave to enter or remain in the United Kingdom as a result,

he is to be treated as if he had been given leave to remain in the United Kingdom for a period of 90 days beginning on the day on which he ceased to be exempt.

(3)If—

(a)a person who is exempt ceases to be exempt, and

(b)there is in force in respect of him leave for him to enter or remain in the United Kingdom which expires before the end of the period mentioned in subsection (2),

his leave is to be treated as expiring at the end of that period.

8 Persons excluded from the United Kingdom under international obligations.E+W+S+N.I.

In the 1971 Act, after section 8A, insert—

8B Persons excluded from the United Kingdom under international obligations.

(1)An excluded person must be refused—

(a)leave to enter the United Kingdom;

(b)leave to remain in the United Kingdom.

(2)A person’s leave to enter or remain in the United Kingdom is cancelled on his becoming an excluded person.

(3)A persons’s exemption from the provisions of this Act as a result of section 8(1), (2) or (3) ceases on his becoming an excluded person.

(4)Excluded person” means a person—

(a)named by or under, or

(b)of a description specified in,

a designated instrument.

(5)The Secretary of State may by order designate an instrument if it is a resolution of the Security Council of the United Nations or an instrument made by the Council of the European Union and it—

(a)requires that a person is not to be admitted to the United Kingdom (however that requirement is expressed); or

(b)recommends that a person should not be admitted to the United Kingdom (however that recommendation is expressed).

(6)Subsections (1) to (3) are subject to such exceptions (if any) as may specified in the order designating the instrument in question.

(7)An order under this section must be made by statutory instrument.

(8)Such a statutory instrument shall be laid before Parliament without delay.

Removal from the United KingdomE+W+S+N.I.

9 Treatment of certain overstayers.E+W+S+N.I.

(1)During the regularisation period overstayers may apply, in the prescribed manner, for leave to remain in the United Kingdom.

(2)The regularisation period begins on the day prescribed for the purposes of this subsection and is not to be less than three months.

(3)The regularisation period ends—

(a)on the day prescribed for the purposes of this subsection; or

(b)if later, on the day before that on which section 65 comes into force.

(4)Section 10 and paragraph 12 of Schedule 15 come into force on the day after that on which the regularisation period ends

(5)The Secretary of State must publicise the effect of this section in the way appearing to him to be best calculated to bring it to the attention of those affected.

(6)Overstayer” means a person who, having only limited leave to enter or remain in the United Kingdom, remains beyond the time limited by the leave.

[F710Removal of persons unlawfully in the United KingdomE+W+S+N.I.

(1)A person may be removed from the United Kingdom under the authority of the Secretary of State or an immigration officer if the person requires leave to enter or remain in the United Kingdom but does not have it.

(2)Where a person (“P”) is liable to be or has been removed from the United Kingdom under subsection (1), a member of P's family who meets the following three conditions may also be removed from the United Kingdom under the authority of the Secretary of State or an immigration officer, provided that the Secretary of State or immigration officer has given the family member written notice of the intention to remove him or her.

(3)The first condition is that the family member is—

(a)P's partner,

(b)P's child, or a child living in the same household as P in circumstances where P has care of the child,

(c)in a case where P is a child, P's parent, or

(d)an adult dependent relative of P.

(4)The second condition is that—

(a)in a case where the family member has leave to enter or remain in the United Kingdom, that leave was granted on the basis of his or her family life with P;

(b)in a case where the family member does not have leave to enter or remain in the United Kingdom, in the opinion of the Secretary of State or immigration officer the family member—

(i)would not, on making an application for such leave, be granted leave in his or her own right, but

(ii)would be granted leave on the basis of his or her family life with P, if P had leave to enter or remain.

(5)The third condition is that the family member is neither a British citizen, nor is he or she entitled to enter or remain in the United Kingdom by virtue of an enforceable EU right or of any provision made under section 2(2) of the European Communities Act 1972.

(6)A notice given to a family member under subsection (2) invalidates any leave to enter or remain in the United Kingdom previously given to the family member.

(7)For the purposes of removing a person from the United Kingdom under subsection (1) or (2), the Secretary of State or an immigration officer may give any such direction for the removal of the person as may be given under paragraphs 8 to 10 of Schedule 2 to the 1971 Act.

(8)But subsection (7) does not apply where a deportation order is in force against a person (and any directions for such a person's removal must be given under Schedule 3 to the 1971 Act).

(9)The following paragraphs of Schedule 2 to the 1971 Act apply in relation to directions under subsection (7) (and the persons subject to those directions) as they apply in relation to directions under paragraphs 8 to 10 of Schedule 2 (and the persons subject to those directions)—

(a)paragraph 11 (placing of person on board ship or aircraft);

(b)paragraph 16(2) to (4) (detention of person where reasonable grounds for suspecting removal directions may be given or pending removal in pursuance of directions);

(c)paragraph 17 (arrest of person liable to be detained and search of premises for person liable to arrest);

(d)paragraph 18 (supplementary provisions on detention);

(e)paragraph 18A (search of detained person);

(f)paragraph 18B (detention of unaccompanied children);

(g)paragraphs 19 and 20 (payment of expenses of custody etc);

(h)paragraph 21 (temporary admission to UK of person liable to detention);

(i)paragraphs 22 to 25 (bail);

(j)paragraphs 25A to 25E (searches etc).

(10)The Secretary of State may by regulations make further provision about—

(a)the time period during which a family member may be removed under subsection (2);

(b)the service of a notice under subsection (2).

(11)In this section “child” means a person who is under the age of 18.]

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Amendments (Textual)

F7S. 10 substituted (20.10.2014) by Immigration Act 2014 (c. 22), ss. 1, 75(3); S.I. 2014/2771, art. 2(a) (with arts. 9-11) (as amended (2.3.2015 and 6.4.2015) by S.I. 2015/371, arts. 1(2)(3), 7, 8; and with transitional provisions and savings in S.I. 2014/2928, art. 2 (which S.I. is revoked (6.4.2015) by S.I. 2015/371, arts. 1(3), 9))

Modifications etc. (not altering text)

F811 Removal of asylum claimant under standing arrangement with member StatesE+W+S+N.I.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

F912 Removal of asylum claimants in other circumstances.E+W+S+N.I.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

13 Proof of identity of persons to be removed or deported.E+W+S+N.I.

(1)This section applies if a person—

(a)is to be removed from the United Kingdom to a country of which he is a national or citizen; but

(b)does not have a valid passport or other document establishing his identity and nationality or citizenship and permitting him to travel.

(2)If the country to which the person is to be removed indicates that he will not be admitted to it unless identification data relating to him are provided by the Secretary of State, he may provide them with such data.

(3)In providing identification data, the Secretary of State must not disclose whether the person concerned has made a claim for asylum.

(4)For the purposes of paragraph 4(1) of Schedule 4 to the M1Data Protection Act 1998, the provision under this section of identification data is a transfer of personal data which is necessary for reasons of substantial public interest.

(5)Identification data” means—

(a)fingerprints taken under section 141; or

(b)data collected in accordance with regulations made under section 144.

(6)Removed” means removed as a result of directions given under section 10 or under Schedule 2 or 3 to the 1971 Act.

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Marginal Citations

14 Escorts for persons removed from the United Kingdom under directions.E+W+S+N.I.

(1)Directions for, or requiring arrangements to be made for, the removal of a person from the United Kingdom may include or be amended to include provision for the person who is to be removed to be accompanied by an escort consisting of one or more persons specified in the directions.

(2)The Secretary of State may by regulations make further provision supplementing subsection (1).

(3)The regulations may, in particular, include provision—

(a)requiring the person to whom the directions are given to provide for the return of the escort to the United Kingdom;

(b)requiring him to bear such costs in connection with the escort (including, in particular, remuneration) as may be prescribed;

(c)as to the cases in which the Secretary of State is to bear those costs;

(d)prescribing the kinds of expenditure which are to count in calculating the costs incurred in connection with escorts.

F1015 Protection of claimants from removal or deportation.E+W+S+N.I.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

Prospective

Provision of financial securityE+W+S+N.I.

16 Security on grant of entry clearance.E+W+S+N.I.

(1)In such circumstances as may be specified, the Secretary of State may require security to be given, with respect to a person applying for entry clearance, before clearance is given.

(2)In such circumstances as may be specified—

(a)the Secretary of State may accept security with respect to a person who is applying for entry clearance but for whom security is not required; and

(b)in determining whether to give clearance, account may be taken of any security so provided.

(3)Security” means—

(a)the deposit of a sum of money by the applicant, his agent or any other person, or

(b)the provision by the applicant, his agent or any other person of a financial guarantee of a specified kind,

with a view to securing that the applicant will, if given leave to enter the United Kingdom for a limited period, leave the United Kingdom at the end of that period.

(4)Immigration rules must make provision as to the circumstances in which a security provided under this section—

(a)is to be repaid, released or otherwise cancelled; or

(b)is to be forfeited or otherwise realised by the Secretary of State.

(5)No security provided under this section may be forfeited or otherwise realised unless the person providing it has been given an opportunity, in accordance with immigration rules, to make representations to the Secretary of State.

(6)Immigration rules may, in particular—

(a)fix the maximum amount that may be required, or accepted, by way of security provided under this section;

(b)specify the form and manner in which such a security is to be given or may be accepted;

(c)make provision, where such a security has been forfeited or otherwise realised, for the person providing it to be reimbursed in such circumstances as may be specified;

(d)make different provision for different cases or descriptions of case.

(7)Specified” means specified by immigration rules.

(8)Any security forfeited or otherwise realised by the Secretary of State under this section must be paid into the Consolidated Fund.

17 Provision of further security on extension of leave.E+W+S+N.I.

(1)This section applies if security has been provided under section 16(1) or (2) with respect to a person who, having entered the United Kingdom (with leave to do so), applies—

(a)to extend his leave to enter the United Kingdom; or

(b)for leave to remain in the United Kingdom for a limited period.

(2)The Secretary of State may refuse the application if security of such kind as the Secretary of State considers appropriate is not provided, or continued, with respect to the applicant.

(3)Immigration rules must make provision as to the circumstances in which a security provided under this section—

(a)is to be repaid, released or otherwise cancelled; or

(b)is to be forfeited or otherwise realised by the Secretary of State.

(4)No security provided under this section may be forfeited or otherwise realised unless the person providing it has been given an opportunity, in accordance with immigration rules, to make representations to the Secretary of State.

(5)Subsection (7) of section 16 applies in relation to this section as it applies in relation to that section.

(6)Any security forfeited or otherwise realised by the Secretary of State under this section must be paid into the Consolidated Fund.

InformationE+W+S+N.I.

18 Passenger information.E+W+S+N.I.

In the 1971 Act, in Schedule 2, after paragraph 27, insert—

Passenger information

27B(1)This paragraph applies to ships or aircraft—

(a)which have arrived, or are expected to arrive, in the United Kingdom; or

(b)which have left, or are expected to leave, the United Kingdom.

(2)If an immigration officer asks the owner or agent (“the carrier”) of a ship or aircraft for passenger information, the carrier must provide that information to the officer.

(3)The officer may ask for passenger information relating to—

(a)a particular ship or particular aircraft of the carrier;

(b)particular ships or aircraft (however described) of the carrier; or

(c)all of the carrier’s ships or aircraft.

(4)The officer may ask for—

(a)all passenger information in relation to the ship or aircraft concerned; or

(b)particular passenger information in relation to that ship or aircraft.

(5)A request under sub-paragraph (2)—

(a)must be in writing;

(b)must state the date on which it ceases to have effect; and

(c)continues in force until that date, unless withdrawn earlier by written notice by an immigration officer.

(6)The date may not be later than six months after the request is made.

(7)The fact that a request under sub-paragraph (2) has ceased to have effect as a result of sub-paragraph (5) does not prevent the request from being renewed.

(8)The information must be provided—

(a)in such form and manner as the Secretary of State may direct; and

(b)at such time as may be stated in the request.

(9)Passenger information” means such information relating to the passengers carried, or expected to be carried, by the ship or aircraft as may be specified.

(10)Specified” means specified in an order made by statutory instrument by the Secretary of State.

(11)Such an instrument shall be subject to annulment in pursuance of a resolution of either House of Parliament.

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Modifications etc. (not altering text)

C14S. 18 extended (Guernsey) (with modifications) (12.10.2011) by The Immigration (Guernsey) Order 2011 (S.I. 2011/2444), art. 6, Sch. 3

C15S. 18 modified (coming into force in accordance with art. 1(1) of the modifying S.I.) by The Immigration (Jersey) Order 2012 (S.I. 2012/1763), art. 3, Sch. 2

Commencement Information

I1S. 18 wholly in force; s. 18 not in force at Royal Assent see s. 170(4); s. 18 in force for certain purposes at 1.3.2000 and 3.4.2000 insofar as not already in force by S.I. 2000/464, art. 2, Sch.

F1119 Notification of non-EEA arrivals.E+W+S+N.I.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

20[F12Power to supply information etc to Secretary of State]E+W+S+N.I.

(1)This section applies to information held by—

[F13(a)a public authority, or

(b)any specified person, for purposes specified in relation to that person.]

[F14(1A)This section also applies to a document or article which—

(a)comes into the possession of [F15a public authority or someone acting on behalf of a public authority] , or

(b)is discovered by [F16a public authority or someone acting on behalf of a public authority] .]

[F17(1B)This section does not apply to—

(a)information which is held by the Crown Prosecution Service, or

(b)a document or article which comes into the possession of, or is discovered by, the Crown Prosecution Service, or someone acting on behalf of the Crown Prosecution Service,

if section 40 of the UK Borders Act 2007 applies to the information, document or article.]

(2)The information [F18, document or article] may be supplied to the Secretary of State for use for immigration purposes.

[F19(2A)The Secretary of State may—

(a)retain for immigration purposes a document or article supplied to him under subsection (2), and

(b)dispose of a document or article supplied to him under subsection (2) in such manner as he thinks appropriate (and the reference to use in subsection (2) includes a reference to disposal).]

[F20(2B)Subsection (2A)(a) does not affect any other power of the Secretary of State to retain a document or article.]

(3)Immigration purposes” means any of the following—

(a)the administration of immigration control under the Immigration Acts;

(b)the prevention, detection, investigation or prosecution of criminal offences under those Acts;

(c)the imposition of penalties or charges under Part II;

(d)the provision of support for asylum-seekers and their dependants under Part VI;

[F21(da)anything else that is done in connection with the exercise of a function under any of the Immigration Acts;]

(e)such other purposes as may be specified.

[F22(3A)Public authority” means a person with functions of a public nature but does not include—

(a)Her Majesty's Revenue and Customs,

(b)either House of Parliament or a person exercising functions in connection with proceedings in Parliament,

(c)the Scottish Parliament or a person exercising functions in connection with proceedings in the Scottish Parliament,

(d)the National Assembly for Wales or a person exercising functions in connection with proceedings in that Assembly, or

(e)the Northern Ireland Assembly or a person exercising functions in connection with proceedings in that Assembly.]

F23(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5)Specified” means specified in an order made by the Secretary of State.

(6)This section does not limit the circumstances in which information [F24, documents or articles] may be supplied apart from this section.

[F25(7)Nothing in this section authorises information, a document or an article to be supplied if to do so would contravene a restriction on the disclosure of information (however imposed).]

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Amendments (Textual)

F12S. 20 heading substituted (12.7.2016) by Immigration Act 2016 (c. 19), ss. 55(2), 94(1); S.I. 2016/603, reg. 3(h)

F13S. 20(1)(a)(b) substituted for s. 20(1)(a)-(f) (12.7.2016) by Immigration Act 2016 (c. 19), ss. 55(3), 94(1); S.I. 2016/603, reg. 3(h)

F15Words in s. 20(1A)(a) substituted (12.7.2016) by Immigration Act 2016 (c. 19), ss. 55(4), 94(1); S.I. 2016/603, reg. 3(h)

F16Words in s. 20(1A)(b) substituted (12.7.2016) by Immigration Act 2016 (c. 19), ss. 55(4), 94(1); S.I. 2016/603, reg. 3(h)

F21S. 20(3)(da) inserted (12.7.2016) by Immigration Act 2016 (c. 19), ss. 55(7), 94(1); S.I. 2016/603, reg. 3(h)

F23S. 20(4) omitted (12.7.2016) by virtue of Immigration Act 2016 (c. 19), ss. 55(9), 94(1); S.I. 2016/603, reg. 3(h)

Modifications etc. (not altering text)

[F2620ADuty to supply nationality documents to Secretary of StateE+W+S+N.I.

(1)This section applies to a nationality document which the Secretary of State has reasonable grounds for believing is lawfully in the possession of a person listed in Schedule A1.

(2)The Secretary of State may direct the person to supply the document to the Secretary of State if the Secretary of State suspects that—

(a)a person to whom the document relates may be liable to removal from the United Kingdom in accordance with a provision of the Immigration Acts, and

(b)the document may facilitate the removal.

(3)A person to whom a direction is given must, as soon as is practicable, supply the document to the Secretary of State.

(4)If the document was originally created in hard copy form and the person possesses the original document, it must be supplied to the Secretary of State unless it is required by the person for the performance of any of the person's functions.

(5)If the original document is required by the person for the performance of any of the person's functions—

(a)the person must, as soon as is practicable, supply a copy of the document to the Secretary of State, and

(b)if subsequently the person no longer requires the original document, the person must supply it to the Secretary of State as soon as is practicable after it is no longer required.

(6)Subsection (5)(b) does not apply if the Secretary of State notifies the person that the original document is no longer required.

(7)If subsection (5) applies the person may make a copy of the original document before supplying it to the Secretary of State.

(8)The Secretary of State may retain a nationality document supplied under this section while the Secretary of State suspects that—

(a)a person to whom the document relates may be liable to removal from the United Kingdom in accordance with a provision of the Immigration Acts, and

(b)retention of the document may facilitate the removal.

(9)Subsection (8) does not affect any other power of the Secretary of State to retain a document.

(10)The Secretary of State may dispose of a nationality document supplied under this section in such manner as the Secretary of State thinks appropriate.

(11)Nothing in this section authorises or requires a document to be supplied if to do so would contravene a restriction on the disclosure of information (however imposed).

(12)The Secretary of State may by regulations amend Schedule A1 so as to add, modify or remove a reference to a person or description of person.

(13)Regulations under subsection (12) may not amend Schedule A1 so as to apply this section to—

(a)either House of Parliament or a person exercising functions in connection with proceedings in Parliament,

(b)the Scottish Parliament or a person exercising functions in connection with proceedings in the Scottish Parliament,

(c)the National Assembly for Wales or a person exercising functions in connection with proceedings in that Assembly, or

(d)the Northern Ireland Assembly or a person exercising functions in connection with proceedings in that Assembly.

(14)In this section “nationality document” means a document which might—

(a)establish a person's identity, nationality or citizenship, or

(b)indicate the place from which a person has travelled to the United Kingdom or to which a person is proposing to go.]

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Amendments (Textual)

21 Supply of information by Secretary of State.E+W+S+N.I.

(1)This section applies to information held by the Secretary of State in connection with the exercise of functions under any of the Immigration Acts.

(2)The information may be supplied to—

(a)a chief officer of police, for use for police purposes;

[F27(b)the National Crime Agency, for use in connection with the discharge of any function of that Agency;]

(d)the Commissioners of Customs and Excise, or a person providing services to them, for use for customs purposes; or

(e)any specified person, for use for purposes specified in relation to that person.

(3)Police purposes” means any of the following—

(a)the prevention, detection, investigation or prosecution of criminal offences;

(b)safeguarding national security;

(c)such other purposes as may be specified.

F28(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6)Customs purposes” means any of the Commissioners’ functions in relation to—

(a)the prevention, detection, investigation or prosecution of criminal offences;

(b)the prevention, detection or investigation of conduct in respect of which penalties which are not criminal penalties are provided for by or under any enactment;

(c)the assessment or determination of penalties which are not criminal penalties;

(d)checking the accuracy of information relating to, or provided for purposes connected with, any matter under the care and management of the Commissioners or any assigned matter (as defined by section 1(1) of the M2Customs and Excise Management Act 1979);

(e)amending or supplementing any such information (where appropriate);

(f)legal or other proceedings relating to anything mentioned in paragraphs (a) to (e);

(g)safeguarding national security; and

(h)such other purposes as may be specified.

(7)Chief officer of police” and “specified” have the same meaning as in section 20.

(8)This section does not limit the circumstances in which information may be supplied apart from this section.

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Amendments (Textual)

Marginal Citations

Employment: code of practiceE+W+S+N.I.

22 Restrictions on employment: code of practice.E+W+S+N.I.

In the M3Asylum and Immigration Act 1996, after section 8, insert—

8A Code of practice.

(1)The Secretary of State must issue a code of practice as to the measures which an employer is to be expected to take, or not to take, with a view to securing that, while avoiding the commission of an offence under section 8, he also avoids unlawful discrimination.

(2)Unlawful discrimination” means—

(a)discrimination in contravention of section 4(1) of the M4Race Relations Act 1976 (“the 1976 Act”); or

(b)in relation to Northern Ireland, discrimination in contravention of Article 6(1) of the M5Race Relations (Northern Ireland) Order 1997 (“the 1997 Order”).

(3)Before issuing the code, the Secretary of State must—

(a)prepare and publish a draft of the proposed code; and

(b)consider any representations about it which are made to him.

(4)In preparing the draft, the Secretary of State must consult—

(a)the Commission for Racial Equality;

(b)the Equality Commission for Northern Ireland; and

(c)such organisations and bodies (including organisations or associations of organisations representative of employers or of workers) as he considers appropriate.

(5)If the Secretary of State decides to proceed with the code, he must lay a draft of the code before both Houses of Parliament.

(6)The draft code may contain modifications to the original proposals made in the light of representations to the Secretary of State.

(7)After laying the draft code before Parliament, the Secretary of State may bring the code into operation by an order made by statutory instrument.

(8)An order under subsection (7)—

(a)shall be subject to annulment in pursuance of a resolution of either House of Parliament;

(b)may contain such transitional provisions or savings as appear to the Secretary of State to be necessary or expedient in connection with the code.

(9)A failure on the part of any person to observe a provision of the code does not of itself make him liable to any proceedings.

(10)But the code is admissible in evidence—

(a)in proceedings under the 1976 Act before an employment tribunal;

(b)in proceedings under the 1997 Order before an industrial tribunal.

(11)If any provision of the code appears to the tribunal to be relevant to any question arising in such proceedings, that provision is to be taken into account in determining the question.

(12)The Secretary of State may from time to time revise the whole or any part of the code and issue the code as revised.

(13)The provisions of this section also apply (with appropriate modifications) to any revision, or proposed revision, of the code.

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Commencement Information

I2S. 22 wholly in force at 22.5.2001; s. 22 not in force at royal assent; S. 22 in force for certain purposes at 19.2.2001 by S.I. 2001/239, art. 2, Sch. and s. 22 in force so far as not already in force at 22.5.2001 by S.I. 2001/1394, art. 2, Sch.

Marginal Citations

Monitoring entry clearanceE+W+S+N.I.

F2923 Monitoring refusals of entry clearance.E+W+S+N.I.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

F29S. 23 repealed (20.10.2014) by Immigration Act 2014 (c. 22), s. 75(3), Sch. 9 para. 28; S.I. 2014/2771, art. 2(e) (with arts. 9-11) (as amended (2.3.2015 and 6.4.2015) by S.I. 2015/371, arts. 1(2)(3), 7, 8; and with transitional provisions and savings in S.I. 2014/2928, art. 2 (which S.I. is revoked (6.4.2015) by S.I. 2015/371, arts. 1(3), 9))

Reporting suspicious marriagesE+W+S+N.I.

24 Duty to report suspicious marriages.E+W+S+N.I.

(1)Subsection (3) applies if—

(a)a superintendent registrar to whom a notice of marriage has been given under section 27 of the M6Marriage Act 1949,

[F30(aa)a superintendent registrar, or registrar of births, deaths and marriages, who receives information in advance of a person giving such a notice,]

(b)any other person who, under section 28(2) of that Act, has attested a declaration accompanying such a notice,

(c)a district registrar to whom a marriage notice or an approved certificate has been submitted under section 3 of the M7Marriage (Scotland) Act 1977, F31...

[F32(ca)a district registrar who receives information in advance of a person submitting such a notice or certificate,]

(d)a registrar or deputy registrar to whom notice has been given under section 13 of the M8Marriages (Ireland) Act 1844 or section 4 of the M9Marriage Law (Ireland) Amendment Act 1863, [F33or

(da)a registrar or deputy registrar who receives information in advance of a person giving such a notice,]

has reasonable grounds for suspecting that the marriage will be a sham marriage.

(2)Subsection (3) also applies if—

(a)a marriage is solemnized in the presence of a registrar of marriages or, in relation to Scotland, an authorised registrar (within the meaning of the Act of 1977); and

(b)before, during or immediately after solemnization of the marriage, the registrar has reasonable grounds for suspecting that the marriage will be, or is, a sham marriage.

(3)The person concerned must report his suspicion to the Secretary of State without delay and in such form and manner as may be prescribed by regulations.

(4)The regulations are to be made—

(a)in relation to England and Wales, by the Registrar General for England and Wales with the approval of [F34the Secretary of State];

(b)in relation to Scotland, by the Secretary of State after consulting the Registrar General of Births, Deaths and Marriages for Scotland;

(c)in relation to Northern Ireland, by the Secretary of State after consulting the Registrar General in Northern Ireland.

[F35(5)A marriage (whether or not it is void) is a “sham marriage” if—

(a)either, or both, of the parties to the marriage is not a relevant national,

(b)there is no genuine relationship between the parties to the marriage, and

(c)either, or both, of the parties to the marriage enter into the marriage for one or more of these purposes—

(i)avoiding the effect of one or more provisions of United Kingdom immigration law or the immigration rules;

(ii)enabling a party to the marriage to obtain a right conferred by that law or those rules to reside in the United Kingdom.

(6)In subsection (5)—

  • relevant national” means—

    (a)

    a British citizen,

    (b)

    a national of an EEA State other than the United Kingdom, or

    (c)

    a national of Switzerland;

  • United Kingdom immigration law” includes any subordinate legislation concerning the right of relevant nationals to move between and reside in member States.]

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Amendments (Textual)

F30S. 24(1)(aa) inserted (14.7.2014) by Immigration Act 2014 (c. 22), ss. 56(2)(a), 75(2)

F31Word in s. 24(1)(c) omitted (14.7.2014) by virtue of Immigration Act 2014 (c. 22), ss. 56(2)(b), 75(2)

F32S. 24(1)(ca) inserted (14.7.2014) by Immigration Act 2014 (c. 22), ss. 56(2)(c), 75(2)

F33S. 24(1)(da) and word inserted (14.7.2014) by Immigration Act 2014 (c. 22), ss. 56(2)(d), 75(2)

Modifications etc. (not altering text)

C18S. 24(4)(a): transfer of functions (3.4.2008) by Transfer of Functions (Registration) Order 2008 (S.I. 2008/678), art. 1(2), Sch. 1 para. 11(a) (with art. 4)

Commencement Information

I3S. 24 wholly in force at 1.1.2001, see s. 170(4) and S.I. 2000/2698, art. 2, Sch. (as amended by S.I. 2000/3099, art. 4) subject to the transitional provision in art. 3 (as also inserted by art. 4 of the said S.I. 2000/3099)

Marginal Citations

[F3624ADuty to report suspicious civil partnershipsE+W+S+N.I.

(1)Subsection (3) applies if—

(a)a registration authority to whom a notice of proposed civil partnership has been given under section 8 of the Civil Partnership Act 2004,

[F37(aa)a registration authority that receives information in advance of a person giving such a notice,]

(b)any person who, under section 8 of the 2004 Act, has attested a declaration accompanying such a notice,

(c)a district registrar to whom a notice of proposed civil partnership has been given under section 88 of the 2004 Act, F38...

[F39(ca)a district registrar who receives information in advance of a person giving such a notice,]

(d)a registrar to whom a civil partnership notice has been given under section 139 of the 2004 Act, [F40or

(da)a registrar who receives information in advance of a person giving such a notice,]

has reasonable grounds for suspecting that the civil partnership will be a sham civil partnership.

(2)Subsection (3) also applies if—

(a)two people register as civil partners of each other under Part 2, 3 or 4 of the 2004 Act in the presence of the registrar, and

(b)before, during or immediately after they do so, the registrar has reasonable grounds for suspecting that the civil partnership will be, or is, a sham civil partnership.

(3)The person concerned must report his suspicion to the Secretary of State without delay and in such form and manner as may be prescribed by regulations.

(4)The regulations are to be made—

(a)in relation to England and Wales, by the Registrar General for England and Wales with the approval of [F41the Secretary of State];

(b)in relation to Scotland, by the Secretary of State after consulting the Registrar General of Births, Deaths and Marriages for Scotland;

(c)in relation to Northern Ireland, by the Secretary of State after consulting the Registrar General in Northern Ireland.

[F42(5)A civil partnership (whether or not it is void) is a “sham civil partnership” if—

(a)either, or both, of the parties to the civil partnership is not a relevant national,

(b)there is no genuine relationship between the parties to the civil partnership, and

(c)either, or both, of the parties to the civil partnership enter into the civil partnership for one or more of these purposes—

(i)avoiding the effect of one or more provisions of United Kingdom immigration law or the immigration rules;

(ii)enabling a party to the civil partnership to obtain a right conferred by that law or those rules to reside in the United Kingdom.

(5A)In subsection (5)—

  • relevant national” means—

    (a)

    a British citizen,

    (b)

    a national of an EEA State other than the United Kingdom, or

    (c)

    a national of Switzerland;

  • United Kingdom immigration law” includes any subordinate legislation concerning the right of relevant nationals to move between and reside in member States.]

(6)The registrar” means—

(a)in relation to England and Wales, the civil partnership registrar acting under Part 2 of the 2004 Act;

(b)in relation to Scotland, the authorised registrar acting under Part 3 of the 2004 Act;

(c)in relation to Northern Ireland, the registrar acting under Part 4 of the 2004 Act.]

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Amendments (Textual)

F36S. 24A inserted (15.4.2005 for specified purposes, 5.12.2005 in so far as not already in force) by Civil Partnership Act 2004 (c. 33), s. 263(10)(b), Sch. 27 para. 162; S.I. 2005/1112, art. 2, Sch. 1; S.I. 2005/3175, art. 2(2)

F37S. 24A(1)(aa) inserted (14.7.2014) by Immigration Act 2014 (c. 22), ss. 56(3)(a), 75(2)

F38Word in s. 24A(1)(c) omitted (14.7.2014) by virtue of Immigration Act 2014 (c. 22), ss. 56(3)(b), 75(2)

F39S. 24A(1)(ca) inserted (14.7.2014) by Immigration Act 2014 (c. 22), ss. 56(3)(c), 75(2)

F40S. 24A(1)(da) and word inserted (14.7.2014) by Immigration Act 2014 (c. 22), ss. 56(3)(d), 75(2)

Modifications etc. (not altering text)

C19S. 24A(4)(a): transfer of functions (3.4.2008) by Transfer of Functions (Registration) Order 2008 (S.I. 2008/678), art. 1(2), Sch. 1 para. 11(b) (with art. 4)

Immigration control: facilities and chargesE+W+S+N.I.

25 Provision of facilities for immigration control at ports.E+W+S+N.I.

(1)The person responsible for the management of a control port (“the manager”) must provide the Secretary of State free of charge with such facilities at the port as the Secretary of State may direct as being reasonably necessary for, or in connection with, the operation of immigration control there.

(2)Before giving such a direction, the Secretary of State must consult such persons likely to be affected by it as he considers appropriate.

(3)If the Secretary of State gives such a direction, he must send a copy of it to the person appearing to him to be the manager.

(4)If the manager persistently fails to comply with the direction (or part of it), the Secretary of State may—

(a)in the case of a control port which is not a port of entry, revoke any approval in relation to the port given under paragraph 26(1) of Schedule 2 to the 1971 Act;

(b)in the case of a control port which is a port of entry, by order revoke its designation as a port of entry.

(5)A direction under this section is enforceable, on the application of the Secretary of State—

(a)by injunction granted [F43in England and Wales by the county court or in Northern Ireland] by a county court; or

(b)in Scotland, by an order under section 45 of the M10Court of Session Act 1988.

(6)Control port” means a port in which a control area is designated under paragraph 26(3) of Schedule 2 to the 1971 Act.

(7)Facilities” means accommodation, facilities, equipment and services of a class or description specified in an order made by the Secretary of State.

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Amendments (Textual)

F43Words in s. 25(5)(a) inserted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 9 para. 90(a); S.I. 2014/954, art. 2(c) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

Commencement Information

I4S. 25 in force (17.2.2003 for specified purposes, 1.4.2003 in so far as not already in force) by S.I. 2003/2, art. 2, Sch.

Marginal Citations

26 Charges: immigration control.E+W+S+N.I.

(1)The Secretary of State may, at the request of any person and in consideration of such charges as he may determine, make arrangements—

(a)for the provision at any control port of immigration officers or facilities in addition to those (if any) needed to provide a basic service at the port;

(b)for the provision of immigration officers or facilities for dealing with passengers of a particular description or in particular circumstances.

(2)Control port” has the same meaning as in section 25.

(3)Facilities” includes equipment.

(4)Basic service” has such meaning as may be prescribed.

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Commencement Information

I5S. 26 in force at 5.6.2003 for specified purposes by S.I. 2003/1469, art. 2, Sch.; and 30.6.2003 in so far as not already in force by S.I. 2003/1469, art. 2, Sch.

Charges: travel documentsE+W+S+N.I.

F4427 Charges: travel documents.E+W+S+N.I.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

OffencesE+W+S+N.I.

28 Deception.E+W+S+N.I.

In the 1971 Act, after section 24, insert—

24A Deception.

(1)A person who is not a British citizen is guilty of an offence if, by means which include deception by him—

(a)he obtains or seeks to obtain leave to enter or remain in the United Kingdom; or

(b)he secures or seeks to secure the avoidance, postponement or revocation of enforcement action against him.

(2)Enforcement action”, in relation to a person, means—

(a)the giving of directions for his removal from the United Kingdom (“directions”) under Schedule 2 to this Act or section 10 of the Immigration and Asylum Act 1999;

(b)the making of a deportation order against him under section 5 of this Act; or

(c)his removal from the United Kingdom in consequence of directions or a deportation order.

(3)A person guilty of an offence under this section is liable—

(a)on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both; or

(b)on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine, or to both.

(4)The extended time limit for prosecutions which is provided for by section 28 applies to an offence under this section.

29 Facilitation of entry.E+W+S+N.I.

(1)Section 25 of the 1971 Act (assisting illegal entry) is amended as follows.

(2)In subsection (1), for “seven” substitute “ ten ”.

(3)For subsection (1A) substitute—

(1A)Nothing in subsection (1)(b) applies to anything done in relation to a person who—

(a)has been detained under paragraph 16 of Schedule 2 to this Act; or

(b)has been granted temporary admission under paragraph 21 of that Schedule.

(1B)Nothing in subsection (1)(b) applies to anything done by a person otherwise than for gain.

(1C)Nothing in subsection (1)(b) applies to anything done to assist an asylum claimant by a person in the course of his employment by a bona fide organisation, if the purposes of that organisation include assistance to persons in the position of the asylum claimant.

(1D)Asylum claimant” means a person who intends to make a claim that it would be contrary to the United Kingdom’s obligations under the Refugee Convention or the Human Rights Convention for him to be removed from, or required to leave, the United Kingdom.

(1E)Refugee Convention” and “Human Rights Convention” have the meaning given in the Immigration and Asylum Act 1999.

(4)In subsection (5), for “Subsection (1)(a)” substitute “ Paragraphs (a) and (b) of subsection (1) ”.

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Commencement Information

I6S. 29 wholly in force; s. 29 not in force at Royal Assent see s. 170(4); s. 29(2)(4) wholly in force and s. 29(1) in force for certain purposes at 14.2.2000 by S.I. 2000/168, art. 2, Sch. (with transitional provisions in art. 3); s. 29 in force so far as not already in force 2.10.2000 by S.I. 2000/2444, art. 2, Sch. 1 (subject to arts. 3, 4, Sch. 2)

30 False statements etc.E+W+S+N.I.

(1)Section 26 of the 1971 Act (general offences in connection with administration of the Act) is amended as follows.

(2)In subsection (1)(c), for “this Act” substitute “ a relevant enactment ”.

(3)After subsection (2), insert—

(3)Relevant enactment” means—

(a)this Act;

(b)the M11Immigration Act 1988;

(c)the M12Asylum and Immigration Appeals Act 1993 (apart from section 4 or 5); or

(d)the Immigration and Asylum Act 1999 (apart from Part VI).

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Marginal Citations

31 Defences based on Article 31(1) of the Refugee Convention.E+W+S+N.I.

(1)It is a defence for a refugee charged with an offence to which this section applies to show that, having come to the United Kingdom directly from a country where his life or freedom was threatened (within the meaning of the Refugee Convention), he—

(a)presented himself to the authorities in the United Kingdom without delay;

(b)showed good cause for his illegal entry or presence; and

(c)made a claim for asylum as soon as was reasonably practicable after his arrival in the United Kingdom.

(2)If, in coming from the country where his life or freedom was threatened, the refugee stopped in another country outside the United Kingdom, subsection (1) applies only if he shows that he could not reasonably have expected to be given protection under the Refugee Convention in that other country.

(3)In England and Wales and Northern Ireland the offences to which this section applies are any offence, and any attempt to commit an offence, under—

(a)Part I of the M13Forgery and Counterfeiting Act 1981 (forgery and connected offences);

[F45(aa)section 4 or 6 of the Identity Documents Act 2010;]

(b)section 24A of the 1971 Act (deception); or

(c)section 26(1)(d) of the 1971 Act (falsification of documents).

(4)In Scotland, the offences to which this section applies are those—

(a)of fraud,

(b)of uttering a forged document,

[F46(ba)under section 4 or 6 of the Identity Documents Act 2010,]

(c)under section 24A of the 1971 Act (deception), or

(d)under section 26(1)(d) of the 1971 Act (falsification of documents),

and any attempt to commit any of those offences.

(5)A refugee who has made a claim for asylum is not entitled to the defence provided by subsection (1) in relation to any offence committed by him after making that claim.

(6)Refugee” has the same meaning as it has for the purposes of the Refugee Convention.

(7)If the Secretary of State has refused to grant a claim for asylum made by a person who claims that he has a defence under subsection (1), that person is to be taken not to be a refugee unless he shows that he is.

(8)A person who—

(a)was convicted in England and Wales or Northern Ireland of an offence to which this section applies before the commencement of this section, but

(b)at no time during the proceedings for that offence argued that he had a defence based on Article 31(1),

may apply to the Criminal Cases Review Commission with a view to his case being referred to the Court of Appeal by the Commission on the ground that he would have had a defence under this section had it been in force at the material time.

(9)A person who—

(a)was convicted in Scotland of an offence to which this section applies before the commencement of this section, but

(b)at no time during the proceedings for that offence argued that he had a defence based on Article 31(1),

may apply to the Scottish Criminal Cases Review Commission with a view to his case being referred to the High Court of Justiciary by the Commission on the ground that he would have had a defence under this section had it been in force at the material time.

(10)The Secretary of State may by order amend—

(a)subsection (3), or

(b)subsection (4),

by adding offences to those for the time being listed there.

(11)Before making an order under subsection (10)(b), the Secretary of State must consult the Scottish Ministers.

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Amendments (Textual)

Marginal Citations

Part IIE+W+S+N.I. Carriers’ Liability

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Modifications etc. (not altering text)

C20Pt. II (ss. 32-43) modified (7.2.2001 for certain purposes and otherwise 1.3.2001) by S.I. 2001/280, arts. 1, 2 (with art. 5)

Clandestine entrantsE+W+S+N.I.

32 Penalty for carrying clandestine entrants.E+W+S+N.I.

(1)A person is a clandestine entrant if—

(a)he arrives in the United Kingdom concealed in a vehicle, ship or aircraft,

[F47(aa)he arrives in the United Kingdom concealed in a rail freight wagon,]

(b)he passes, or attempts to pass, through immigration control concealed in a vehicle, or

(c)he arrives in the United Kingdom on a ship or aircraft, having embarked—

(i)concealed in a vehicle; and

(ii)at a time when the ship or aircraft was outside the United Kingdom,

and claims, or indicates that he intends to seek, asylum in the United Kingdom or evades, or attempts to evade, immigration control.

[F48(2)The Secretary of State may require a person who is responsible for a clandestine entrant to pay—

(a)a penalty in respect of the clandestine entrant;

(b)a penalty in respect of any person who was concealed with the clandestine entrant in the same transporter.

(2A)In imposing a penalty under subsection (2) the Secretary of State—

(a)must specify an amount which does not exceed the maximum prescribed for the purpose of this paragraph,

(b)may, in respect of a clandestine entrant or a concealed person, impose separate penalties on more than one of the persons responsible for the clandestine entrant, and

(c)may not impose penalties in respect of a clandestine entrant or a concealed person which amount in aggregate to more than the maximum prescribed for the purpose of this paragraph.]

(3)A penalty imposed under this section must be paid to the Secretary of State before the end of the prescribed period.

[F49(4)Where a penalty is imposed under subsection (2) on the driver of a vehicle who is an employee of the vehicle’s owner or hirer—

(a)the employee and the employer shall be jointly and severally liable for the penalty imposed on the driver (irrespective of whether a penalty is also imposed on the employer), and

(b)a provision of this Part about notification, objection or appeal shall have effect as if the penalty imposed on the driver were also imposed on the employer (irrespective of whether a penalty is also imposed on the employer in his capacity as the owner or hirer of the vehicle).

(4A)In the case of a detached trailer, subsection (4) shall have effect as if a reference to the driver were a reference to the operator.]

(5)In the case of a clandestine entrant to whom subsection (1)(a) applies, each of the following is a responsible person—

(a)if the transporter is a ship or aircraft, the owner [F50and] captain;

(b)if it is a vehicle (but not a detached trailer), the owner, hirer [F51and] driver of the vehicle;

(c)if it is a detached trailer, the owner, hirer [F51and] operator of the trailer.

[F52(5A)In the case of a clandestine entrant to whom subsection (1)(aa) applies, the responsible person is—

(a)where the entrant arrived concealed in a freight train, the train operator who, at the train’s last scheduled stop before arrival in the United Kingdom, was responsible for certifying it as fit to travel to the United Kingdom, or

(b)where the entrant arrived concealed in a freight shuttle wagon, the operator of the shuttle-train of which the wagon formed part.]

(6)In the case of a clandestine entrant to whom subsection (1)(b) or (c) applies, each of the following is a responsible person—

(a)if the transporter is a detached trailer, the owner, hirer [F53and] operator of the trailer;

(b)if it is not, the owner, hirer [F53and] driver of the vehicle.

[F54(6A)Where a person falls within the definition of responsible person in more than one capacity, a separate penalty may be imposed on him under subsection (2) in respect of each capacity.]

(7)Subject to any defence provided by section 34, it is immaterial whether a responsible person knew or suspected—

(a)that the clandestine entrant was concealed in the transporter; or

(b)that there were one or more other persons concealed with the clandestine entrant in the same transporter.

(8)Subsection (9) applies if a transporter (“the carried transporter”) is itself being carried in or on another transporter.

(9)If a person is concealed in the carried transporter, the question whether any other person is concealed with that person in the same transporter is to be determined by reference to the carried transporter and not by reference to the transporter in or on which it is carried.

(10)Immigration control” means United Kingdom immigration control and includes any United Kingdom immigration control operated in a prescribed control zone outside the United Kingdom.

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Amendments (Textual)

F47S. 32(1)(aa) inserted (14.11.2002 for certain purposes, 8.12.2002 for certain further purposes, 11.5.2012 in so far as not already in force) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 162(1), Sch. 8 para. 2(2) (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4), S.I. 2012/1263, art. 2

F48S. 32(2)(2A) substituted for s. 32(2) (14.11.2002 for certain purposes, 8.12.2002 for certain further purposes, 11.5.2012 in so far as not already in force) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 162(1), Sch. 8 para. 2(3) (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4), S.I. 2012/1263, art. 2

F49S. 32(4)(4A) substituted for s. 32(4) (14.11.2002 for certain purposes, 8.12.2002 for certain further purposes, 11.5.2012 in so far as not already in force) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 162(1), Sch. 8 para. 2(4) (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4), S.I. 2012/1263, art. 2

F50Word in s. 32(5)(a) substituted (14.11.2002 for certain purposes, 8.12.2002 for certain further purposes, 11.5.2012 in so far as not already in force) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 162(1), Sch. 8 para. 2(5)(a) (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4), S.I. 2012/1263, art. 2

F51Words in s. 32(5)(b)(c) substituted (14.11.2002 for certain purposes, 8.12.2002 for certain further purposes, 11.5.2012 in so far as not already in force) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 162(1), Sch. 8 para. 2(5)(b) (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4), S.I. 2012/1263, art. 2

F52S. 32(5A) inserted (14.11.2002 for certain purposes, 8.12.2002 for certain further purposes, 11.5.2012 in so far as not already in force) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 162(1), Sch. 8 para. 2(6) (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4), S.I. 2012/1263, art. 2

F53Words in s. 32(6)(a)(b) substituted (14.11.2002 for certain purposes, 8.12.2002 for certain further purposes, 11.5.2012 in so far as not already in force) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 162(1), Sch. 8 para. 2(7) (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4), S.I. 2012/1263, art. 2

F54S. 32(6A) inserted (14.11.2002 for certain purposes, 8.12.2002 for certain further purposes, 11.5.2012 in so far as not already in force) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 162(1), Sch. 8 para. 2(8) (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4), S.I. 2012/1263, art. 2

Modifications etc. (not altering text)

C21S. 32(2)-(5)(7)(10) applied (with modifications) (7.2.2001 for certain purposes and otherwise 1.3.2001) by S.I. 2001/280, arts. 1-4 (with art. 5)

Commencement Information

I7S. 32 partly in force; s. 32 not in force at Royal Assent, see s. 170(4); s. 32(2)(a)(3)(10) in force for certain purposes at 6.12.1999 by S.I. 1999/3190, art. 2, Sch.; s. 32 in force for certain purposes at: 3.4.2000 by S.I. 2000/464, art. 2, Sch.; 18.9.2000 by S.I. 2000/2444, art. 2, Sch. 1 (subject to arts. 3, 4, Sch. 2); 8.12.2002 by S.I. 2002/2815, art. 2, Sch.

[F5532A Level of penalty: code of practiceE+W+S+N.I.

(1)The Secretary of State shall issue a code of practice specifying matters to be considered in determining the amount of a penalty under section 32.

(2)The Secretary of State shall have regard to the code (in addition to any other matters he thinks relevant)—

(a)when imposing a penalty under section 32, and

(b)when considering a notice of objection under section 35(4).

(3)Before issuing the code the Secretary of State shall lay a draft before Parliament.

(4)After laying the draft code before Parliament the Secretary of State may bring the code into operation by order.

(5)The Secretary of State may from time to time revise the whole or any part of the code and issue the code as revised.

(6)Subsections (3) and (4) also apply to a revision or proposed revision of the code.]

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Amendments (Textual)

F55S. 32A inserted (14.11.2002 for certain purposes, 8.12.2002 for certain further purposes and 11.5.2012 in so far as not already in force) by Nationality, Immigration and Asylum Act 2002 (c. 41), s. 162(1), Sch. 8 para. 3 (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4), S.I. 2012/1263, art. 2

33[F56Prevention of clandestine entrants: code of practice]E+W+S+N.I.

(1)The Secretary of State must issue a code of practice to be followed by any person operating a system for preventing the carriage of clandestine entrants.

(2)Before issuing the code, the Secretary of State must—

(a)consult such persons as he considers appropriate; and

(b)lay a draft before F57. . . Parliament.

(3)The requirement of subsection (2)(a) may be satisfied by consultation before the passing of this Act.

(4)After laying the draft code before Parliament, the Secretary of State may bring the code into operation by an order.

(5)The Secretary of State may from time to time revise the whole or any part of the code and issue the code as revised.

(6)Subsections (2) and (4) also apply to any revision, or proposed revision, of the code.

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Amendments (Textual)

F56S. 33 heading substituted (8.12.2002 for certain purposes, 11.5.2012 in so far as not already in force) by Nationality, Immigration and Asylum Act 2002 (c. 41), s. 162(1), Sch. 8 para. 4 (with s. 159, Sch. 8 para. 17); S.I. 2002/2811, art. 2, Sch. (with art. 4), S.I. 2012/1263, art. 2

F57Words in s. 33(2)(b) repealed (8.12.2002 for certain purposes, 11.5.2012 in so far as not already in force) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 161, 162(1), Sch. 8 para. 5, Sch. 9 (with s. 159, Sch. 8 para. 17); S.I. 2002/2811, art. 2, Sch. (with art. 4), S.I. 2012/1263, art. 2

Modifications etc. (not altering text)

C22S. 33 applied (with modifications) (7.2.2001 for certain purposes and otherwise 1.3.2001) by S.I. 2001/208, arts. 1(2), 3, 4 (with art. 5)

34 Defences to claim that penalty is due under section 32.E+W+S+N.I.

[F58(1)A person (“the carrier”) shall not be liable to the imposition of a penalty under section 32(2) if he has a defence under this section.]

(2)It is a defence for the carrier to show that he, or an employee of his who was directly responsible for allowing the clandestine entrant to be concealed, was acting under duress.

(3)It is also a defence for the carrier to show that—

(a)he did not know, and had no reasonable grounds for suspecting, that a clandestine entrant was, or might be, concealed in the transporter;

(b)an effective system for preventing the carriage of clandestine entrants was in operation in relation to the transporter; and

(c)F59. . . on the occasion in question the person or persons responsible for operating that system did so properly.

[F60(3A)It is also a defence for the carrier to show that—

(a)he knew or suspected that a clandestine entrant was or might be concealed in a rail freight wagon, having boarded after the wagon began its journey to the United Kingdom;

(b)he could not stop the train or shuttle-train of which the wagon formed part without endangering safety;

(c)an effective system for preventing the carriage of clandestine entrants was in operation in relation to the train or shuttle-train; and

(d)on the occasion in question the person or persons responsible for operating the system did so properly.]

(4)In determining, for the purposes of this section, whether a particular system is effective, regard is to be had to the code of practice issued by the Secretary of State under section 33.

(5)F61. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F62(6)Where a person has a defence under subsection (2) in respect of a clandestine entrant, every other responsible person in respect of the clandestine entrant is also entitled to the benefit of the defence.]

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Amendments (Textual)

F58S. 34(1) substituted (8.12.2002 for certain purposes, 11.5.2012 in so far as not already in force) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 162(1), Sch. 8 para. 6(2) (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4), S.I. 2012/1263, art. 2

F59Word in s. 34(3)(c) repealed (8.12.2002 for certain purposes, 11.5.2012 in so far as not already in force) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 161, 162(1), Sch. 8 para. 6(3), Sch. 9 (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4), S.I. 2012/1263, art. 2

F60S. 34(3A) inserted (8.12.2002 for certain purposes, 11.5.2012 in so far as not already in force) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 162(1), Sch. 8 para. 6(4) (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4), S.I. 2012/1263, art. 2

F61S. 34(5) repealed (8.12.2002 for certain purposes, 11.5.2012 in so far as not already in force) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 161, 162(1), Sch. 8 para. 6(5), Sch. 9 (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4), S.I. 2012/1263, art. 2

F62S. 34(6) substituted (8.12.2002 for certain purposes, 11.5.2012 in so far as not already in force) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 162(1), Sch. 8 para. 6(6) (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4), S.I. 2012/1263, art. 2

Modifications etc. (not altering text)

C23S. 34 applied (with modifications) (7.2.2001 for certain purposes and otherwise 1.3.2001) by S.I. 2001/280, arts. 1-4 (with art. 5)

Commencement Information

I8S. 34 partly in force; s. 34 not in force at Royal Assent, see s. 170(4); s. 34 in force for certain purposes at: 3.4.2000 by S.I. 2000/464, art. 2, Sch.; 18.9.2000 by S.I. 2000/2444, art. 2, Sch. 1 (subject to arts. 3, 4, Sch. 2); 8.12.2002 by S.I. 2002/2815, art. 2, Sch.

35 Procedure.E+W+S+N.I.

(1)If the Secretary of State decides that a person (“P”) is liable to one or more penalties under section 32, he must notify P of his decision.

(2)A notice under subsection (1) (a “penalty notice”) must—

(a)state the Secretary of State’s reasons for deciding that P is liable to the penalty (or penalties);

(b)state the amount of the penalty (or penalties) to which P is liable;

(c)specify the date before which, and the manner in which, the penalty (or penalties) must be paid; and

(d)include an explanation of the steps—

(i)that P [F63may] take if he objects to the penalty;

(ii)that the Secretary of State may take under this Part to recover any unpaid penalty.

[F64(3)Subsection (4) applies where a person to whom a penalty notice is issued objects on the ground that—

(a)he is not liable to the imposition of a penalty, or

(b)the amount of the penalty is too high.

(4)The person may give a notice of objection to the Secretary of State.

(5)A notice of objection must—

(a)be in writing,

(b)give the objector’s reasons, and

(c)be given before the end of such period as may be prescribed.

(6)Where the Secretary of State receives a notice of objection to a penalty in accordance with this section he shall consider it and—

(a)cancel the penalty,

(b)reduce the penalty,

(c)increase the penalty, or

(d)determine to take no action under paragraphs (a) to (c).

(7)Where the Secretary of State considers a notice of objection under subsection (6) he shall—

(a)inform the objector of his decision before the end of such period as may be prescribed or such longer period as he may agree with the objector,

(b)if he increases the penalty, issue a new penalty notice under subsection (1), and

(c)if he reduces the penalty, notify the objector of the reduced amount.]

(9)The Secretary of State may by regulations provide, in relation to detached trailers, for a penalty notice which is [F65issued] in such manner as may be prescribed to have effect as a penalty notice properly [F66issued to] the responsible person or persons concerned under this section.

(10)Any sum payable to the Secretary of State as a penalty under section 32 may be recovered by the Secretary of State as a debt due to him.

[F67(11)In proceedings for enforcement of a penalty under subsection (10) no question may be raised as to—

(a)liability to the imposition of the penalty, or

(b)its amount.

(12)A document which is to be issued to or served on a person outside the United Kingdom for the purpose of subsection (1) or (7) or in the course of proceedings under subsection (10) may be issued or served—

(a)in person,

(b)by post,

(c)by facsimile transmission, or

(d)in another prescribed manner.

(13)The Secretary of State may by regulations provide that a document issued or served in a manner listed in subsection (12) in accordance with the regulations is to be taken to have been received at a time specified by or determined in accordance with the regulations.]

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Amendments (Textual)

F63Word in s. 35(2)(d)(i) substituted (14.11.2002 for certain purposes, 8.12.2002 for certain further purposes, 11.5.2012 in so far as not already in force) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 162(1), Sch. 8 para. 7(2) (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4), S.I. 2012/1263, art. 2

F64S. 35(3)-(7) substituted for s. 35(3)-(8) (14.11.2002 for certain purposes, 8.12.2002 for certain further purposes, 11.5.2012 in so far as not already in force) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 162(1), Sch. 8 para. 7(3) (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4), S.I. 2012/1263, art. 2

F65Word in s. 35(9) substituted (14.11.2002 for certain purposes, 8.12.2002 for certain further purposes, 11.5.2012 in so far as not already in force) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 162(1), Sch. 8 para. 7(4)(a) (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4), S.I. 2012/1263, art. 2

F66Words in s. 35(9) substituted (14.11.2002 for certain purposes, 8.12.2002 for certain further purposes, 11.5.2012 in so far as not already in force) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 162(1), Sch. 8 para. 7(4)(b) (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4), S.I. 2012/1263, art. 2

F67S. 35(11)-(13) added (14.11.2002 for certain purposes, 8.12.2002 for certain further purposes, 11.5.2012 in so far as not already in force) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 162(1), Sch. 8 para. 7(5) (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4), S.I. 2012/1263, art. 2

Modifications etc. (not altering text)

C24S. 35(1)(2)(6)-(8)(10) applied (with modifications) (7.2.2001 for certain purposes and otherwise 1.3.2001) by S.I. 2001/280, arts. 1-4 (with art. 5)

Commencement Information

I9S. 35 partly in force; s. 35 not in force at Royal Assent, see s. 170(4); s. 35(7)-(9) in force for certain purposes at 6.12.1999 by S.I. 1999/3190, art. 2, Sch.; s. 35 in force for certain purposes at: 3.4.2000 by S.I. 2000/464, art. 2, Sch.; 18.9.2000 by S.I. 2000/2444, art. 2, Sch. 1 (subject to arts. 3, 4, Sch. 2); 8.12.2002 by S.I. 2002/2815, art. 2, Sch.

[F6835A AppealE+W+S+N.I.

(1)A person may appeal to the court against a penalty imposed on him under section 32 on the ground that—

(a)he is not liable to the imposition of a penalty, or

(b)the amount of the penalty is too high.

(2)On an appeal under this section the court may—

(a)allow the appeal and cancel the penalty,

(b)allow the appeal and reduce the penalty, or

(c)dismiss the appeal.

(3)An appeal under this section shall be a re-hearing of the Secretary of State’s decision to impose a penalty and shall be determined having regard to—

(a)any code of practice under section 32A which has effect at the time of the appeal,

(b)the code of practice under section 33 which had effect at the time of the events to which the penalty relates, and

(c)any other matters which the court thinks relevant (which may include matters of which the Secretary of State was unaware).

(4)Subsection (3) has effect despite any provision of Civil Procedure Rules.

(5)An appeal may be brought by a person under this section against a penalty whether or not—

(a)he has given notice of objection under section 35(4);

(b)the penalty has been increased or reduced under section 35(6).]

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Amendments (Textual)

F68S. 35A inserted (8.12.2002 for certain purposes, 11.5.2012 in so far as not already in force) by Nationality, Immigration and Asylum Act 2002 (c. 41), s. 162(1), Sch. 8 para. 8 (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4), S.I. 2012/1263, art. 2

36 Power to detain vehicles etc. in connection with penalties under section 32.E+W+S+N.I.

(1)If a penalty notice has been [F69issued] under section 35, a senior officer may detain any relevant—

(a)vehicle,

(b)small ship, F70. . .

(c)small aircraft,[F71 or

(d)rail freight wagon,]

until all penalties to which the notice relates, and any expenses reasonably incurred by the Secretary of State in connection with the detention, have been paid.

(2)That power—

(a)may be exercised only if, in the opinion of the senior officer concerned, there is a significant risk that the penalty (or one or more of the penalties) will not be paid before the end of the prescribed period if the transporter is not detained; and

(b)may not be exercised if alternative security which the Secretary of State considers is satisfactory, has been given.

[F72(2A)A vehicle may be detained under subsection (1) only if—

(a)the driver of the vehicle is an employee of its owner or hirer,

(b)the driver of the vehicle is its owner or hirer, or

(c)a penalty notice is issued to the owner or hirer of the vehicle.

(2B)A senior officer may detain a relevant vehicle, small ship, small aircraft or rail freight wagon pending—

(a)a decision whether to issue a penalty notice,

(b)the issue of a penalty notice, or

(c)a decision whether to detain under subsection (1).

(2C)That power may not be exercised in any case—

(a)for longer than is necessary in the circumstances of the case, or

(b)after the expiry of the period of 24 hours beginning with the conclusion of the first search of the vehicle, ship, aircraft or wagon by an immigration officer after it arrived in the United Kingdom.]

(3)If a transporter is detained under this section, the owner, consignor or any other person who has an interest in any freight or other thing carried in or on the transporter may remove it, or arrange for it to be removed, at such time and in such way as is reasonable.

(4)The detention of a transporter under this section is lawful even though it is subsequently established that the penalty notice on which the detention was based was ill-founded in respect of all or any of the penalties to which it related.

(5)But subsection (4) does not apply if the Secretary of State was acting unreasonably in issuing the penalty notice.

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Amendments (Textual)

F69Word in s. 36(1) substituted (8.12.2002 for certain purposes, 11.5.2012 in so far as not already in force) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 162(1), Sch. 8 para. 9(2)(a) (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4), S.I. 2012/1263, art. 2

F70Word after s. 36(1)(b) repealed (8.12.2002 for certain purposes, 11.5.2012 in so far as not already in force) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 161, 162(1), Sch. 8 para. 9(2)(b), Sch. 9 (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4), S.I. 2012/1263, art. 2

F71S. 36(1)(d) and preceding word inserted (8.12.2002 for certain purposes, 11.5.2012 in so far as not already in force) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 162(1), Sch. 8 para. 9(2)(c) (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4), S.I. 2012/1263, art. 2

F72S. 36(2A)-(2C) inserted (8.12.2002 for certain purposes, 11.5.2012 in so far as not already in force) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 162(1), Sch. 8 para. 9(3) (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4), S.I. 2012/1263, art. 2

Modifications etc. (not altering text)

C25S. 36 applied (with modifications) (7.2.2001 for certain purposes and otherwise 1.3.2001) by S.I. 2001/280, arts. 1-4 (with art. 5))

Commencement Information

I10S. 36 partly in force; s. 36 not in force at Royal Assent, see s. 170(4); s. 36(2)(a) in force for certain purposes at 6.12.1999 by S.I. 1999/3190, art. 2, Sch.; s. 36 in force for certain purposes at: 3.4.2000 by S.I. 2000/464, art. 2, Sch.; 18.9.2000 by S.I. 2000/2444, art. 2, Sch. 1 (subject to arts. 3, 4, Sch. 2); 8.12.2002 by S.I. 2002/2815, art. 2, Sch.

[F7336A Detention in default of paymentE+W+S+N.I.

(1)This section applies where a person to whom a penalty notice has been issued under section 35 fails to pay the penalty before the date specified in accordance with section 35(2)(c).

(2)The Secretary of State may make arrangements for the detention of any vehicle, small ship, small aircraft or rail freight wagon which the person to whom the penalty notice was issued uses in the course of a business.

(3)A vehicle, ship, aircraft or wagon may be detained under subsection (2) whether or not the person to whom the penalty notice was issued owns it.

(4)But a vehicle may be detained under subsection (2) only if the person to whom the penalty notice was issued—

(a)is the owner or hirer of the vehicle, or

(b)was an employee of the owner or hirer of the vehicle when the penalty notice was issued.

(5)The power under subsection (2) may not be exercised while an appeal against the penalty under section 35A is pending or could be brought (ignoring the possibility of an appeal out of time with permission).

(6)The Secretary of State shall arrange for the release of a vehicle, ship, aircraft or wagon detained under this section if the person to whom the penalty notice was issued pays—

(a)the penalty, and

(b)expenses reasonably incurred in connection with the detention.]

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Amendments (Textual)

F73S. 36A inserted (8.12.2002 for certain purposes, 11.5.2012 in so far as not already in force) by Nationality, Immigration and Asylum Act 2002 (c. 41), s. 162(1), Sch. 8 para. 10 (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4), S.I. 2012/1263, art. 2

37 Effect of detention.E+W+S+N.I.

(1)This section applies if a transporter is detained under [F74section 36(1)].

(2)The person to whom the penalty notice was addressed, or the owner or any other person [F75whose interests may be affected by detention of the transporter,] may apply to the court for the transporter to be released.

(3)The court may release the transporter if it considers that—

(a)satisfactory security has been tendered in place of the transporter for the payment of the penalty alleged to be due and connected expenses;

(b)there is no significant risk that the penalty (or one or more of the penalties) and any connected expenses will not be paid; or

(c)there is a significant doubt as to whether the penalty is payable F76. . .

[F77(3A)The court may also release the transporter on the application of the owner of the transporter under subsection (2) if—

(a)a penalty notice was not issued to the owner or an employee of his, and

(b)the court considers it right to release the transporter.

(3B)In determining whether to release a transporter under subsection (3A) the court shall consider—

(a)the extent of any hardship caused by detention,

(b)the extent (if any) to which the owner is responsible for the matters in respect of which the penalty notice was issued, and

(c)any other matter which appears to the court to be relevant (whether specific to the circumstances of the case or of a general nature).]

(4)If the court has not ordered the release of the transporter, the Secretary of State may sell it if the penalty in question and connected expenses are not paid before the end of the period of 84 days beginning with the date on which the detention began.

(5)Connected expenses” means expenses reasonably incurred by the Secretary of State in connection with the detention.

[F78(5A)The power of sale under subsection (4) may be exercised only when no appeal against the imposition of the penalty is pending or can be brought (ignoring the possibility of an appeal out of time with permission).

(5B)The power of sale under subsection (4) shall lapse if not exercised within a prescribed period.]

(6)Schedule 1 applies to the sale of transporters under this section.

[F79(7)This section applies to a transporter detained under section 36A as it applies to a transporter detained under section 36(1); but for that purpose—

(a)the court may release the transporter only if the court considers that the detention was unlawful or under subsection (3A)(and subsection (3) shall not apply), and

(b)the reference in subsection (4) to the period of 84 days shall be taken as a reference to a period prescribed for the purpose of this paragraph.]

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Amendments (Textual)

F74Words in s. 37(1) substituted (14.11.2002 for certain purposes, 8.12.2002 for certain further purposes, 11.5.2012 in so far as not already in force) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 162(1), Sch. 8 para. 11(2) (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4), S.I. 2012/1263, art. 2

F75Words in s. 37(2) substituted (14.11.2002 for certain purposes, 8.12.2002 for certain further purposes, 11.5.2012 in so far as not already in force) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 162(1), Sch. 8 para. 11(3) (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4), S.I. 2012/1263, art. 2

F76Words in s. 37(3)(c) repealed (14.11.2002 for certain purposes, 11.5.2012 in so far as not already in force) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 161, 162(2), Sch. 8 para. 11(4), Sch. 9 (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4), S.I. 2012/1263, art. 2

F77S. 37(3A)(3B) inserted (14.11.2002 for certain purposes, 8.12.2002 for certain further purposes, 11.5.2012 in so far as not already in force) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 162(1), Sch. 8 para. 11(5) (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4), S.I. 2012/1263, art. 2

F78S. 37(5A)(5B) inserted (14.11.2002 for certain purposes, 8.12.2002 for certain further purposes, 11.5.2012 in so far as not already in force) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 162(1), Sch. 8 para. 11(6) (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4), S.I. 2012/1263, art. 2

F79S. 37(7) added (14.11.2002 for certain purposes, 8.12.2002 for certain further purposes, 11.5.2012 in so far as not already in force) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 162(1), Sch. 8 para. 11(7) (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4), S.I. 2012/1263, art. 2

Modifications etc. (not altering text)

C26S. 37 (and Sch. 1) applied (with modifications) (7.2.2001 for certain purposes and otherwise 1.3.2001) by S.I. 2001/280, arts. 1-4 (with art. 5)

Commencement Information

I11S. 37 partly in force; s. 37 not in force at Royal Assent, see s. 170(4); s. 37(6) in force for certain purposes at 6.12.1999 by S.I. 1999/3190, art. 2, Sch.; s. 37 in force for certain purposes at: 3.4.2000 by S.I. 2000/464, art. 2, Sch.; 18.9.2000 by S.I. 2000/2444, art. 2, Sch. 1 (subject to arts. 3, 4, Sch. 2); 8.12.2002 by S.I. 2002/2815, art. 2, Sch.

38 Assisting illegal entry and harbouring.E+W+S+N.I.

(1)In section 25 of the 1971 Act (assisting illegal entry and harbouring), at the end of paragraph (c) of subsection (6), insert—

or

(d)the driver of any such vehicle;.

(2)After section 25, insert—

25A Detention of ships, aircraft and vehicles in connection with offences under section 25(1).

(1)If a person has been arrested for an offence under section 25(1)(a) or (b), a senior officer or a constable may detain a relevant ship, aircraft or vehicle—

(a)until a decision is taken as to whether or not to charge the arrested person with that offence; or

(b)if the arrested person has been charged—

(i)until he is acquitted, the charge against him is dismissed or the proceedings are discontinued; or

(ii)if he has been convicted, until the court decides whether or not to order forfeiture of the ship, aircraft or vehicle.

(2)A ship, aircraft or vehicle is a relevant ship, aircraft or vehicle, in relation to an arrested person, if it is one which the officer or constable concerned has reasonable grounds for believing could, on conviction of the arrested person for the offence for which he was arrested, be the subject of an order for forfeiture made under section 25(6).

(3)A person (other than the arrested person) who claims to be the owner of a ship, aircraft or vehicle which has been detained under this section may apply to the court for its release.

(4)The court to which an application is made under subsection (3) may, on such security or surety being tendered as it considers satisfactory, release the ship, aircraft or vehicle on condition that it is made available to the court if—

(a)the arrested person is convicted; and

(b)an order for its forfeiture is made under section 25(6).

(5)In the application to Scotland of subsection (1), for paragraphs (a) and (b) substitute—

“(a)until a decision is taken as to whether or not to institute criminal proceedings against the arrested person for that offence; or

(b)if criminal proceedings have been instituted against the arrested person—

(i)until he is acquitted or, under section 65 or 147 of the M14Criminal Procedure (Scotland) Act 1995, discharged or liberated or the trial diet is desertedsimpliciter;

(ii)if he has been convicted, until the court decides whether or not to order forfeiture of the ship, aircraft or vehicle,

and for the purposes of this subsection, criminal proceedings are instituted against a person at whichever is the earliest of his first appearance before the sheriff on petition, or the service on him of an indictment or complaint. ”

(6)Court” means—

(a)in England and Wales—

(i)if the arrested person has not been charged, the magistrates’ court for the petty sessions area in which he was arrested;

(ii)if he has been charged but proceedings for the offence have not begun to be heard, the magistrates’ court for the petty sessions area in which he was charged;

(iii)if he has been charged and proceedings for the offence are being heard, the court hearing the proceedings;

(b)in Scotland, the sheriff; and

(c)in Northern Ireland—

(i)if the arrested person has not been charged, the magistrates’ court for the county court division in which he was arrested;

(ii)if he has been charged but proceedings for the offence have not begun to be heard, the magistrates’ court for the county court division in which he was charged;

(iii)if he has been charged and proceedings for the offence are being heard, the court hearing the proceedings.

(7)Owner” has the same meaning as it has in section 25(6).

(8)Senior officer” means an immigration officer not below the rank of chief immigration officer.

(3)Subsection (1) has effect in relation to offences committed after the coming into force of that subsection.

(4)Subsection (2) has effect in relation to persons arrested for offences alleged to have been committed after the coming into force of that subsection.

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Marginal Citations

39 Rail freight.E+W+S+N.I.

F80. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

Passengers without proper documentsE+W+S+N.I.

[F8140 Charge in respect of passenger without proper documentsE+W+S+N.I.

(1)This section applies if an individual requiring leave to enter the United Kingdom arrives in the United Kingdom by ship or aircraft and, on being required to do so by an immigration officer, fails to produce—

(a)an immigration document which is in force and which satisfactorily establishes his identity and his nationality or citizenship, and

(b)if the individual requires a visa, a visa of the required kind.

(2)The Secretary of State may charge the owner of the ship or aircraft, in respect of the individual, the sum of £2,000.

(3)The charge shall be payable to the Secretary of State on demand.

(4)No charge shall be payable in respect of any individual who is shown by the owner to have produced the required document or documents to the owner or his employee or agent when embarking on the ship or aircraft for the voyage or flight to the United Kingdom.

(5)For the purpose of subsection (4) an owner shall be entitled to regard a document as—

(a)being what it purports to be unless its falsity is reasonably apparent, and

(b)relating to the individual producing it unless it is reasonably apparent that it does not relate to him.

(6)For the purposes of this section an individual requires a visa if—

(a)under the immigration rules he requires a visa for entry into the United Kingdom, or

(b)as a result of section 41 he requires a visa for passing through the United Kingdom.

(7)The Secretary of State may by order amend this section for the purpose of applying it in relation to an individual who—

(a)requires leave to enter the United Kingdom, and

(b)arrives in the United Kingdom by train.

(8)An order under subsection (7) may provide for the application of this section—

(a)except in cases of a specified kind;

(b)subject to a specified defence.

(9)In this section “immigration document” means—

(a)a passport, and

(b)a document which relates to a national of a country other than the United Kingdom and which is designed to serve the same purpose as a passport.

(10)The Secretary of State may by order substitute a sum for the sum in subsection (2).]

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F81Ss. 40-40B substituted (14.11.2002 for certain purposes and otherwise 8.12.2002) for s. 40 by Nationality, Immigration and Asylum Act 2002 (c. 41), s. 125, Sch. 8 para. 13 (with s. 159); S.I. 2002/2811, art. 2, Sch.

Modifications etc. (not altering text)

C27Ss. 40-43 power to apply (with modifications) or amend conferred (18.7.2012) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 124(6), 162(1) (with s. 159); S.I. 2012/1887, art. 2

[F8240A Notification and objectionE+W+S+N.I.

(1)If the Secretary of State decides to charge a person under section 40, the Secretary of State must notify the person of his decision.

(2)A notice under subsection (1)(a “charge notice”) must—

(a)state the Secretary of State’s reasons for deciding to charge the person,

(b)state the amount of the charge,

(c)specify the date before which, and the manner in which, the charge must be paid,

(d)include an explanation of the steps that the person may take if he objects to the charge, and

(e)include an explanation of the steps that the Secretary of State may take under this Part to recover any unpaid charge.

(3)Where a person on whom a charge notice is served objects to the imposition of the charge on him, he may give a notice of objection to the Secretary of State.

(4)A notice of objection must—

(a)be in writing,

(b)give the objector’s reasons, and

(c)be given before the end of such period as may be prescribed.

(5)Where the Secretary of State receives a notice of objection to a charge in accordance with this section, he shall—

(a)consider it, and

(b)determine whether or not to cancel the charge.

(6)Where the Secretary of State considers a notice of objection, he shall inform the objector of his decision before the end of—

(a)such period as may be prescribed, or

(b)such longer period as he may agree with the objector.

(7)Any sum payable to the Secretary of State as a charge under section 40 may be recovered by the Secretary of State as a debt due to him.

(8)In proceedings for enforcement of a charge under subsection (7) no question may be raised as to the validity of the charge.

(9)Subsections (12) and (13) of section 35 shall have effect for the purpose of this section as they have effect for the purpose of section 35(1), (7) and (10).]

Annotations: Help about Annotation
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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F82Ss. 40-40B substituted (14.11.2002 for certain purposes and otherwise 8.12.2002) for s. 40 by Nationality, Immigration and Asylum Act 2002 (c. 41), s. 125, Sch. 8 para. 13 (with s. 159); S.I. 2002/2811, art. 2, Sch.

Modifications etc. (not altering text)

C27Ss. 40-43 power to apply (with modifications) or amend conferred (18.7.2012) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 124(6), 162(1) (with s. 159); S.I. 2012/1887, art. 2

[F8340B AppealE+W+S+N.I.

(1)A person may appeal to the court against a decision to charge him under section 40.

(2)On an appeal under this section the court may—

(a)allow the appeal and cancel the charge, or

(b)dismiss the appeal.

(3)An appeal under this section—

(a)shall be a re-hearing of the Secretary of State’s decision to impose a charge, and

(b)may be determined having regard to matters of which the Secretary of State was unaware.

(4)Subsection (3)(a) has effect despite any provision of Civil Procedure Rules.

(5)An appeal may be brought by a person under this section against a decision to charge him whether or not he has given notice of objection under section 40A(3).]

Annotations: Help about Annotation
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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F83Ss. 40-40B substituted (14.11.2002 for certain purposes and otherwise 8.12.2002) for s. 40 by Nationality, Immigration and Asylum Act 2002 (c. 41), s. 125, Sch. 8 para. 13 (with s. 159); S.I. 2002/2811, art. 2, Sch.

Modifications etc. (not altering text)

C27Ss. 40-43 power to apply (with modifications) or amend conferred (18.7.2012) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 124(6), 162(1) (with s. 159); S.I. 2012/1887, art. 2

41 Visas for transit passengers.E+W+S+N.I.

(1)The Secretary of State may by order require transit passengers to hold a transit visa.

(2)Transit passengers” means persons of any description specified in the order who on arrival in the United Kingdom pass through to another country without entering the United Kingdom; and “transit visa” means a visa for that purpose.

(3)The order—

(a)may specify a description of persons by reference to nationality, citizenship, origin or other connection with any particular country but not by reference to race, colour or religion;

(b)may not provide for the requirement imposed by the order to apply to any person who under the 1971 Act has the right of abode in the United Kingdom;

(c)may provide for any category of persons of a description specified in the order to be exempt from the requirement imposed by the order;

(d)may make provision about the method of application for visas required by the order.

Annotations: Help about Annotation
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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Modifications etc. (not altering text)

C27Ss. 40-43 power to apply (with modifications) or amend conferred (18.7.2012) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 124(6), 162(1) (with s. 159); S.I. 2012/1887, art. 2

42 Power to detain vehicles etc. in connection with charges under section 40.E+W+S+N.I.

F84. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Annotations: Help about Annotation
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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

Modifications etc. (not altering text)

C27Ss. 40-43 power to apply (with modifications) or amend conferred (18.7.2012) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 124(6), 162(1) (with s. 159); S.I. 2012/1887, art. 2

InterpretationE+W+S+N.I.

43 Interpretation of Part II.E+W+S+N.I.

[F85(1)]In this Part—

  • aircraft” includes hovercraft;

  • captain” means the master of a ship or commander of an aircraft;

  • concealed” includes being concealed in any freight, stores or other thing carried in or on the vehicle, ship [F86, aircraft or rail freight wagon] concerned;

  • F87. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

  • detached trailer” means a trailer, semi-trailer, caravan or any other thing which is designed or adapted for towing by a vehicle but which has been detached for transport—

    (a)

    in or on the vehicle concerned; or

    (b)

    in the ship or aircraft concerned (whether separately or in or on a vehicle);

  • equipment”, in relation to an aircraft, includes—

    (a)

    any certificate of registration, maintenance or airworthiness of the aircraft;

    (b)

    any log book relating to the use of the aircraft; and

    (c)

    any similar document;

  • [F88freight shuttle wagon” means a wagon which—

    (a)

    forms part of a shuttle-train, and

    (b)

    is designed to carry commercial goods vehicles;

  • freight train” means any train other than—

    (a)

    a train engaged on a service for the carriage of passengers, or

    (b)

    a shuttle-train;]

  • hirer”, in relation to a vehicle, means any person who has hired the vehicle from another person;

  • operating weight”, in relation to an aircraft, means the maximum total weight of the aircraft and its contents at which the aircraft may take off anywhere in the world, in the most favourable circumstances, in accordance with the certificate of airworthiness in force in respect of the aircraft;

  • owner” includes—

    (a)

    in relation to a ship or aircraft, the agent or operator of the ship or aircraft; F89. . .

    (b)

    F89. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

    in relation to a transporter which is the subject of a hire-purchase agreement, includes the person in possession of it under that agreement;

  • penalty notice” has the meaning given in section 35(2);

  • [F90rail freight wagon” means—

    (a)

    any rolling stock, other than a locomotive, which forms part of a freight train, or

    (b)

    a freight shuttle wagon,

    and for the purpose of this definition, “rolling stock” and “locomotive” have the meanings given by section 83 of the Railways Act 1993 (c.43);]

  • senior officer” means an immigration officer not below the rank of chief immigration officer;

  • ship” includes every description of vessel used in navigation;

  • [F91shuttle-train” has the meaning given by section 1(9) of the Channel Tunnel Act 1987 (c. 53);]

  • small aircraft” means an aircraft which has an operating weight of less than 5,700 kilogrammes;

  • small ship” means a ship which has a gross tonnage of less than 500 tonnes;

  • train” means a train which—

    (a)

    is engaged on an international service as defined by section 13(6) of the M15Channel Tunnel Act 1987; but

    (b)

    is not a shuttle train as defined by section 1(9) of that Act;

  • train operator”, in relation to a person arriving in the United Kingdom on a train, means the operator of trains who embarked that person on that train for the journey to the United Kingdom;

  • transporter” means a vehicle, ship [F92, aircraft or rail freight wagon] together with—

    (a)

    its equipment; and

    (b)

    any stores for use in connection with its operation;

  • vehicle” includes a trailer, semi-trailer, caravan or other thing which is designed or adapted to be towed by another vehicle.

[F93(2)A reference in this Part to “the court” is a reference—

(a)in England and Wales, to [F94the county court] ,

(b)in Scotland, to the sheriff, and

(c)in Northern Ireland, to a county court.

(3)But—

(a)a county court [F95in Northern Ireland, or the county court in England and Wales,] may transfer proceedings under this Part to the High Court, and

(b)the sheriff may transfer proceedings under this Part to the Court of Session.]

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F86S. 43(1): words in definition of "concealed" substituted (8.12.2002) by Nationality, Immigration and Asylum Act 2002 (c. 41), s. 125, Sch. 8 para. 15(a) (with s. 159); S.I. 2002/2811, art. 2, Sch.

F87S. 43(1): definition of "court" omitted (8.12.2002) by virtue of Nationality, Immigration and Asylum Act 2002 (c. 41), s. 125, Sch. 8 para. 15(b) (with s. 159); S.I. 2002/2811, art. 2, Sch.

F88S. 43(1): definitions of "freight shuttle wagon" and "freight train" inserted (8.12.2002) by Nationality, Immigration and Asylum Act 2002 (c. 41), s. 125, Sch. 8 para. 15(c) (with s. 159); S.I. 2002/2811, art. 2, Sch.

F89S. 43(1): in definition of "owner" paragraph (b) and preceding word repealed (8.12.2002) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 161, Sch. 8 para. 15(d), Sch. 9 (with s. 159); S.I. 2002/2811, art. 2, Sch.

F90S. 43(1): definition of "rail freight wagon" substituted (8.12.2002) by Nationality, Immigration and Asylum Act 2002 (c. 41), s. 125, Sch. 8 para. 15(e) (with s. 159); S.I. 2002/2811, art. 2, Sch.

F91S. 43(1): definition of "shuttle-train" inserted (8.12.2002) by Nationality, Immigration and Asylum Act 2002 (c. 41), s. 125, Sch. 8 para. 15(f) (with s. 159); S.I. 2002/2811, art. 2, Sch.

F92S. 43(1): words in definition of "transporter" substituted (8.12.2002) by Nationality, Immigration and Asylum Act 2002 (c. 41), s. 125, Sch. 8 para. 15(g) (with s. 159); S.I. 2002/2811, art. 2, Sch.

F94Words in s. 43(2)(a) substituted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 9 para. 52; S.I. 2014/954, art. 2(c) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F95Words in s. 43(3)(a) inserted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 9 para. 90(b); S.I. 2014/954, art. 2(c) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

Modifications etc. (not altering text)

C27Ss. 40-43 power to apply (with modifications) or amend conferred (18.7.2012) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 124(6), 162(1) (with s. 159); S.I. 2012/1887, art. 2

C28S. 43 applied (with modifications) (7.2.2001 for certain purposes and otherwise 1.3.2001) by S.I. 2001/280, arts. 1-4 (with art. 5)

Marginal Citations

Part IIIE+W+S+N.I. Bail

Prospective

Routine bail hearingsE+W+S+N.I.

F9644 Bail hearings for detained persons.E+W+S+N.I.

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Amendments (Textual)

F9645 Location of bail hearings.E+W+S+N.I.

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Amendments (Textual)

F9646 General right to be released on bail.E+W+S+N.I.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F9647 Powers exercisable on granting bail.E+W+S+N.I.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F9648 Forfeiture.E+W+S+N.I.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F9649 Forfeiture of securities.E+W+S+N.I.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F9650 Power of arrest.E+W+S+N.I.

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Amendments (Textual)

Prospective

ProcedureE+W+S+N.I.

F9651 Procedure.E+W+S+N.I.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

F9652 Use of live television links at bail hearings.E+W+S+N.I.

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Amendments (Textual)

Bail hearings under other enactmentsE+W+S+N.I.

53 Applications for bail in immigration cases.E+W+S+N.I.

(1)The Secretary of State may by regulations make new provision in relation to applications for bail by persons detained under the 1971 Act [F97or under section 62 of the Nationality, Immigration and Asylum Act 2002].

(2)The regulations may confer a right to be released on bail in prescribed circumstances.

(3)The regulations may, in particular, make provision—

(a)creating or transferring jurisdiction to hear an application for bail by a person detained under the 1971 Act [F98or under section 62 of the Nationality, Immigration and Asylum Act 2002];

(b)as to the places in which such an application may be held;

(c)as to the procedure to be followed on, or in connection with, such an application;

(d)as to circumstances in which, and conditions (including financial conditions) on which, an applicant may be released on bail;

(e)amending or repealing any enactment so far as it relates to such an application.

(4)The regulations must include provision for securing that an application for bail made by a person who has brought an appeal under any provision of [F99the Nationality, Immigration and Asylum Act 2002] or the M16Special Immigration Appeals Commission Act 1997 is heard by the appellate authority hearing that appeal.

F100(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6)Regulations under this section require the approval of the Lord Chancellor.

[F101(6A)In so far as regulations under this section relate to England and Wales, the Lord Chancellor must consult the Lord Chief Justice of England and Wales before giving his approval.

(6B)In so far as regulations under this section relate to Northern Ireland, the Lord Chancellor must consult the Lord Chief Justice of Northern Ireland [F102and the Department of Justice in Northern Ireland] before giving his approval.]

(7)In so far as regulations under this section relate to the sheriff or the Court of Session, the Lord Chancellor must obtain the consent of the Scottish Ministers before giving his approval.

[F103(8)The Lord Chief Justice of England and Wales may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise his functions under this section.

(9)The Lord Chief Justice of Northern Ireland may nominate any of the following to exercise his functions under this section—

(a)the holder of one of the offices listed in Schedule 1 to the Justice (Northern Ireland) Act 2002;

(b)a Lord Justice of Appeal (as defined in section 88 of that Act).]

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

Commencement Information

I12S. 53(1)-(4)(6)(7) in force at 10.2.2003 by S.I. 2003/2, art. 2, Sch.

Marginal Citations

54 Extension of right to apply for bail in deportation cases.E+W+S+N.I.

(1)Paragraph 2 of Schedule 3 to the 1971 Act (detention or control pending deportation) is amended as follows.

(2)In sub-paragraph (1), at the end insert “ or he is released on bail ”.

(3)In sub-paragraph (3), after “unless” insert “ he is released on bail or ”.

(4)After sub-paragraph (4) insert—

(4A)Paragraphs 22 to 25 of Schedule 2 to this Act apply in relation to a person detained under sub-paragraph (1), (2) or (3) as they apply in relation to a person detained under paragraph 16 of that Schedule.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Commencement Information

I13S. 54 in force at 10.2.2003 by S.I. 2003/2, art. 2, Sch.

Prospective

GrantsE+W+S+N.I.

F10455 Grants to voluntary organisations.E+W+S+N.I.

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Amendments (Textual)

F105Part IVE+W+S+N.I. Appeals

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Amendments (Textual)

F105Pt. IV repealed (1.4.2003) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 114(1), 162(1), Sch. 9 (with s. 159, Sch. 6 and (7.3.2005) S.I. 2005/565, arts. 1(2), 9 (with arts. 3-9)); S.I. 2003/754, art. 2(1), Sch. 1 (with arts. 3, 4, Sch. 2 para. 6)

The appellate authoritiesE+W+S+N.I.

56 The Immigration Appeal Tribunal.E+W+S+N.I.

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57 Adjudicators.E+W+S+N.I.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

AppealsE+W+S+N.I.

58 General.E+W+S+N.I.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Leave to enterE+W+S+N.I.

59 Leave to enter the United Kingdom.E+W+S+N.I.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

60 Limitations on rights of appeal under section 59.E+W+S+N.I.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Variation of limited leave to enter or remainE+W+S+N.I.

61 Variation of limited leave to enter or remain.E+W+S+N.I.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

62 Limitations on rights of appeal under section 61.E+W+S+N.I.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

DeportationE+W+S+N.I.

63 Deportation orders.E+W+S+N.I.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

64 Limitations on rights of appeal under section 63.E+W+S+N.I.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Human rightsE+W+S+N.I.

65Racial discrimination and breach of human rights.E+W+S+N.I.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Directions for removalE+W+S+N.I.

66 Validity of directions for removal.E+W+S+N.I.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Objection to destinationE+W+S+N.I.

67 Removal on objection to destination.E+W+S+N.I.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

68 Limitations on rights of appeal under section 67.E+W+S+N.I.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

AsylumE+W+S+N.I.

69 Claims for asylum.E+W+S+N.I.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

70 Limitations on rights of appeal under section 69.E+W+S+N.I.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Removal to safe countriesE+W+S+N.I.

71 Removal of asylum claimants to safe third countries.E+W+S+N.I.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

MiscellaneousE+W+S+N.I.

72 Miscellaneous limitations on rights of appeal.E+W+S+N.I.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

73 Limitation on further appeals.E+W+S+N.I.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

“One-stop procedure”E+W+S+N.I.

74 Duty to disclose grounds for appeal etc.E+W+S+N.I.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

75 Duty to disclose grounds for entering etc. the United Kingdom.E+W+S+N.I.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

76 Result of failure to comply with section 74.E+W+S+N.I.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

77“One-stop” appeals.E+W+S+N.I.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

78 Transfer of appellate proceedings.E+W+S+N.I.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Prospective

F105 Appeals without meritE+W+S+N.I.

F10579 Penalty on continuing an appeal without merit.E+W+S+N.I.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

F105Pt. IV repealed (1.4.2003) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 114(1), 162(1), Sch. 9 (with s. 159, Sch. 6 and (7.3.2005) S.I. 2005/565, arts. 1(2), 9 (with arts. 3-9)); S.I. 2003/754, art. 2(1), Sch. 1 (with arts. 3, 4, Sch. 2 para. 6)

European Economic AreaEEA nationalsE+W+S+N.I.

80 EEA nationals.E+W+S+N.I.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

GrantsE+W+S+N.I.

81 Grants to voluntary organisations.E+W+S+N.I.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Part VE+W+S+N.I. Immigration Advisers and Immigration Service Providers

InterpretationE+W+S+N.I.

82 Interpretation of Part V.E+W+S+N.I.

(1)In this Part—

  • claim for asylum” means a claim that it would be contrary to the United Kingdom’s obligations under—

    (a)

    the Refugee Convention, or

    (b)

    Article 3 of the Human Rights Convention,

    for the claimant to be removed from, or required to leave, the United Kingdom;

  • the Commissioner” means the Immigration Services Commissioner;

  • the complaints scheme” means the scheme established under paragraph 5(1) of Schedule 5;

  • designated judge” has the same meaning as in section 119(1) of the M17Courts and Legal Services Act 1990;

  • designated professional body” has the meaning given by section 86;

  • [F106designated qualifying regulator” has the meaning given by section 86A;]

  • immigration advice” means advice which—

    (a)

    relates to a particular individual;

    (b)

    is given in connection with one or more relevant matters;

    (c)

    is given by a person who knows that he is giving it in relation to a particular individual and in connection with one or more relevant matters; and

    (d)

    is not given in connection with representing an individual before a court in criminal proceedings or matters ancillary to criminal proceedings;

  • immigration services” means the making of representations on behalf of a particular individual—

    (a)

    in civil proceedings before a court, tribunal or adjudicator in the United Kingdom, or

    (b)

    in correspondence with a Minister of the Crown or government department,

    in connection with one or more relevant matters;

  • Minister of the Crown” has the same meaning as in the Ministers of the M18Crown Act 1975;

  • qualified person” means a person who is qualified for the purposes of section 84;

  • registered person” means a person who is registered with the Commissioner under section 85;

  • relevant matters” means any of the following—

    (a)

    a claim for asylum;

    (b)

    an application for, or for the variation of, entry clearance or leave to enter or remain in the United Kingdom;

    (ba)

    [F107 an application for an immigration employment document;]

    (c)

    unlawful entry into the United Kingdom;

    (d)

    nationality and citizenship under the law of the United Kingdom;

    (e)

    citizenship of the European Union;

    (f)

    admission to Member States under [F108EU] law;

    (g)

    residence in a Member State in accordance with rights conferred by or under [F108EU] law;

    (h)

    removal or deportation from the United Kingdom;

    (i)

    an application for bail under the Immigration Acts or under the M19Special Immigration Appeals Commission Act 1997;

    (j)

    an appeal against, or an application for judicial review in relation to, any decision taken in connection with a matter referred to in paragraphs (a) to (i); F109...

  • F109...

(2)In this Part, references to the provision of immigration advice or immigration services are to the provision of such advice or services by a person—

(a)in the United Kingdom (regardless of whether the persons to whom they are provided are in the United Kingdom or elsewhere); and

(b)in the course of a business carried on (whether or not for profit) by him or by another person.

[F110(3)In the definition of “relevant matters” in subsection (1) “immigration employment document” means—

(a)a work permit (within the meaning of section 33(1) of the Immigration Act 1971 (interpretation)), and

(b)any other document which relates to employment and is issued for a purpose of immigration rules or in connection with leave to enter or remain in the United Kingdom.]

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Amendments (Textual)

F107Words in s. 82(1) inserted (1.4.2004) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 123(2), 162(1) (with s. 159); S.I. 2003/754, art. 2(1), Sch. 1 (with arts. 3, 4, Sch. 2 para. 5) (as amended (21.5.2003) by S.I. 2003/1339, art. 3 and (19.11.2003) by S.I. 2003/2993, art. 3)

F109Definition and preceding word in s. 82(1) omitted (18.1.2010) by virtue of The Transfer of Tribunal Functions Order 2010 (S.I. 2010/22), art. 1(1), Sch. 2 para. 33 (with Sch. 5)

F110S. 82(3) added (1.4.2004) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 123(3), 162(1) (with s. 159); S.I. 2003/754, art. 2(1), Sch. 1 (with arts. 3, 4, Sch. 2 para. 5) (as amended (21.5.2003) by S.I. 2003/1339, art. 3 and (19.11.2003) by S.I. 2003/2993, art. 3)

Marginal Citations

The Immigration Services CommissionerE+W+S+N.I.

83 The Commissioner.E+W+S+N.I.

(1)There is to be an Immigration Services Commissioner (referred to in this Part as “the Commissioner”).

(2)The Commissioner is to be appointed by the Secretary of State after consulting the Lord Chancellor[F111, the Department of Justice in Northern Ireland] and the Scottish Ministers.

(3)It is to be the general duty of the Commissioner to promote good practice by those who provide immigration advice or immigration services.

(4)In addition to any other functions conferred on him by this Part, the Commissioner is to have the regulatory functions set out in Part I of Schedule 5.

(5)The Commissioner must exercise his functions so as to secure, so far as is reasonably practicable, that those who provide immigration advice or immigration services—

(a)are fit and competent to do so;

(b)act in the best interests of their clients;

(c)do not knowingly mislead any court, tribunal or adjudicator in the United Kingdom;

(d)do not seek to abuse any procedure operating in the United Kingdom in connection with immigration or asylum (including any appellate or other judicial procedure);

(e)do not advise any person to do something which would amount to such an abuse.

(6)The Commissioner—

(a)must arrange for the publication, in such form and manner and to such extent as he considers appropriate, of information about his functions and about matters falling within the scope of his functions; and

(b)may give advice about his functions and about such matters.

[F112(6A)The duties imposed on the Commissioner by subsections (3) and (5) apply in relation to persons within section 84(2)(ba) only to the extent that those duties have effect in relation to the Commissioner's functions under section 92 or 92A.]

(7)Part II of Schedule 5 makes further provision with respect to the Commissioner.

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Amendments (Textual)

Commencement Information

I14S. 83 wholly in force at 30.10.2000; s. 83 not in force at Royal Assent see s. 170(4); s. 83(1)-(3)(6)(7) wholly in force and s. 83(4)(5) in force for certain purposes at 22.5.2000 by S.I. 2000/1282, art. 2, Sch.; s. 83(4)(5) in force at 30.10.2000 insofar as not already in force by S.I. 2000/1985, art. 2, Sch. (with transitional provisions in art. 3)

The general prohibitionE+W+S+N.I.

84 Provision of immigration services.E+W+S+N.I.

(1)No person may provide immigration advice or immigration services unless he is a qualified person.

[F113(2)A person is a qualified person if he is—

(a)a registered person,

(b)authorised by a designated professional body to practise as a member of the profession whose members the body regulates,

[F114(ba)a person authorised to provide immigration advice or immigration services by a designated qualifying regulator,]

(c)the equivalent in an EEA State of—

(i)a registered person, or

(ii)a person within paragraph (b) [F115or (ba)] ,

(d)a person permitted, by virtue of exemption from a prohibition, to provide in an EEA State advice or services equivalent to immigration advice or services, or

(e)acting on behalf of, and under the supervision of, a person within any of paragraphs (a) to (d) (whether or not under a contract of employment).]

[F113(3)Subsection (2)(a) and (e) are subject to—

[F116(a)] any limitation on the effect of a person’s registration imposed under paragraph 2(2) of Schedule 6.]

[F117(b)paragraph 4B(5) of that Schedule (effect of suspension of registration).]

[F118(3A)A person's entitlement to provide immigration advice or immigration services by virtue of subsection (2)(ba)—

(a)is subject to any limitation on that person's authorisation imposed by the regulatory arrangements of the designated qualifying regulator in question, and

(b)does not extend to the provision of such advice or services by the person other than in England and Wales (regardless of whether the persons to whom they are provided are in England and Wales or elsewhere).

(3B)In subsection (3A) “regulatory arrangements” has the same meaning as in the Legal Services Act 2007 (see section 21 of that Act).]

(4)Subsection (1) does not apply to a person who—

F119(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F120(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F121(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d)F122... falls within a category of person specified in an order made by the Secretary of State for the purposes of this subsection.

F123(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6)Subsection (1) does not apply to a person—

(a)holding an office under the Crown, when acting in that capacity;

(b)employed by, or for the purposes of, a government department, when acting in that capacity;

(c)acting under the control of a government department; or

(d)otherwise exercising functions on behalf of the Crown.

F124(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

F115Words in s. 84(2)(c)(ii) inserted (1.4.2011) by Legal Services Act 2007 (c. 29), s. 211(2), Sch. 18 para. 12(2)(b) (with ss. 29, 192, 193); S.I. 2011/720, art. 2(c)

Modifications etc. (not altering text)

C29S. 84(1) excluded (temp. from 30.4.2001 to the end of January 2002) by S.I. 2001/1393, arts. 1, 3, 4

S. 84(1) excluded (30.4.2001) by S.I. 2001/1403, arts. 2-4, Schs. 1-3

S. 84(1) excluded (temp. from 1.2.2002 to 31.12.2002) by The Immigration and Asylum Act 1999 (Part V Exemption: Relevant Employers) Order 2002 (S.I. 2002/9), arts. 1, 3

S. 84(1) excluded (temp. from 1.1.2003 to 31.12.2003) by The Immigration and Asylum Act 1999 (Part V Exemption: Relevant Employers) Order 2002 (S.I. 2002/3025), arts. 1, 3

Commencement Information

I15S. 84 wholly in force at 30.4.2001; s. 84 not in force at Royal Assent see s. 170(4); s. 84(5)(7) wholly in force and s. 84(2)(a)(b)(4)(a)(d) in force for certain purposes at 30.10.2000 by S.I. 2000/1985, art. 2, Sch. (with transitional provisions in art. 3); s. 84 in force so far as not already in force at 30.4.2001 by S.I. 2001/1394, art. 2, Sch.

85 Registration and exemption by the Commissioner.E+W+S+N.I.

(1)The Commissioner must prepare and maintain a register for the purposes of section 84(2)(a) F125....

F126(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)Schedule 6 makes further provision with respect to registration.

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Amendments (Textual)

Commencement Information

I16S. 85 wholly in force at 30.10.2000; s. 85 not in force at Royal Assent see s. 170(4); s. 85(3) in force for certain purposes at 1.8.2000 and s. 85 in force at 30.10.2000 insofar as not already in force by S.I. 2000/1985, art. 2, Sch. (with transitional provisions in art. 3)

86 Designated professional bodies.E+W+S+N.I.

(1)Designated professional body” means—

F127(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)The Law Society of Scotland;

(c)The Law Society of Northern Ireland;

F127(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F127(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(f)The Faculty of Advocates; or

(g)The General Council of the Bar of Northern Ireland.

[F128(2)The Secretary of State may by order remove a body from the list in subsection (1) if he considers that the body—

(a)has failed to provide effective regulation of its members in their provision of immigration advice or immigration services, or

(b)has failed to comply with a request of the Commissioner for the provision of information (whether general or in relation to a particular case or matter).]

(3)If a designated professional body asks the Secretary of State to amend subsection (1) so as to remove its name, the Secretary of State may by order do so.

(4)If the Secretary of State is proposing to act under subsection (2) he must, before doing so—

(a)consult the Commissioner;

F129(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)consult the [F130Scottish Legal Complaints Commission], if the proposed order would affect a designated professional body in Scotland;

(d)consult the lay observers appointed under Article 42 of the M20Solicitors (Northern Ireland) Order 1976, if the proposed order would affect a designated professional body in Northern Ireland;

(e)notify the body concerned of his proposal and give it a reasonable period within which to make representations; and

(f)consider any representations so made.

(5)An order under subsection (2) requires the approval of—

(a)the [F131Department of Justice in Northern Ireland] , if it affects a designated professional body in F132... Northern Ireland;

(b)the Scottish Ministers, if it affects a designated professional body in Scotland.

[F133(6)Before deciding whether or not to give its approval under subsection (5)(a), the Department of Justice in Northern Ireland must consult the Lord Chief Justice of Northern Ireland.]

(7)Before deciding whether or not to give their approval under subsection (5)(b), the Scottish Ministers must consult the Lord President of the Court of Session.

(8)If the Secretary of State considers that a body [F134(other than a body in England and Wales)] which—

(a)is concerned (whether wholly or in part) with regulating the legal profession, or a branch of it, in an EEA State,

(b)is not a designated professional body, and

(c)is capable of providing effective regulation of its members in their provision of immigration advice or immigration services,

ought to be designated, he may by order amend subsection (1) to include the name of that body.

(9)The Commissioner must—

(a)keep under review the list of designated professional bodies set out in subsection (1); and

[F135(b)report to the Secretary of State if the Commissioner considers that a designated professional body—

(i)is failing to provide effective regulation of its members in their provision of immigration advice or immigration services, or

(ii)has failed to comply with a request of the Commissioner for the provision of information (whether general or in relation to a particular case or matter).]

[F136(9A)A designated professional body shall comply with a request of the Commissioner for the provision of information (whether general or in relation to a specified case or matter).]

(10)For the purpose of meeting the costs incurred by the Commissioner in discharging his functions under this Part, each designated professional body must pay to the Commissioner, in each year and on such date as may be specified, such fee as may be specified.

(11)Any unpaid fee for which a designated professional body is liable under subsection (10) may be recovered from that body as a debt due to the Commissioner.

(12)Specified” means specified by an order made by the Secretary of State.

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Amendments (Textual)

F130Words in s. 86(4)(c) substituted (1.10.2008) by Legal Services Act 2007 (c. 29), ss. 196(2)(a), 211(2) (with ss. 29, 192, 193); S.I. 2008/1436, art. 3(a)

Commencement Information

I17S. 86 wholly in force at 30.4.2001; s. 86 not in force at Royal Assent see s. 170(4); s. 86(1)-(9) in force at 22.5.2000 by S.I. 2000/1282, art. 2, Sch.; s. 86(10)-(12) in force for certain purposes at 30.10.2000 by S.I. 2000/1985, art. 2, Sch. (with transitional provisions in art. 3); S. 86 in force so far as not already in force at 30.4.2001 by S.I. 2001/1394, art. 2, Sch.

Marginal Citations

[F13786ADesignated qualifying regulatorsE+W+S+N.I.

(1)Designated qualifying regulator” means a body which is a qualifying regulator and is listed in subsection (2).

(2)The listed bodies are—

(a)the Law Society;

(b)the Institute of Legal Executives;

(c)the General Council of the Bar.

(3)The Secretary of State may by order remove a body from the list in subsection (2) if the Secretary of State considers that the body has failed to provide effective regulation of relevant authorised persons in their provision of immigration advice or immigration services.

(4)If a designated qualifying regulator asks the Secretary of State to amend subsection (2) so as to remove its name, the Secretary of State may by order do so.

(5)Where, at a time when a body is listed in subsection (2), the body ceases to be a qualifying regulator by virtue of paragraph 8(1)(a) of Schedule 18 to the Legal Services Act 2007 (loss of approved regulator status), the Secretary of State must, by order, remove it from the list.

(6)If the Secretary of State considers that a body which—

(a)is a qualifying regulator,

(b)is not a designated qualifying regulator, and

(c)is capable of providing effective regulation of relevant authorised persons in their provision of immigration advice or immigration services,

ought to be designated, the Secretary of State may, by order, amend the list in subsection (2) to include the name of that body.

(7)If the Secretary of State is proposing to act under subsection (3) or (6), the Secretary of State must, before doing so, consult the Commissioner.

(8)If the Secretary of State is proposing to act under subsection (3), the Secretary of State must, before doing so, also —

(a)notify the body concerned of the proposal and give it a reasonable period within which to make representations, and

(b)consider any representations duly made.

(9)An order under subsection (3) or (6) requires the approval of the Lord Chancellor.

(10)If the Legal Services Board considers that a designated qualifying regulator is failing to provide effective regulation of relevant authorised persons in their provision of immigration advice or immigration services, the Legal Services Board must make a report to this effect to—

(a)the Secretary of State, and

(b)the Lord Chancellor.

(11)In this section—

  • qualifying regulator” means a body which is a qualifying regulator for the purposes of this Part of this Act by virtue of Part 1 of Schedule 18 to the Legal Services Act 2007 (approved regulators approved by the Legal Services Board in relation to immigration matters);

  • relevant authorised persons”, in relation to a designated qualifying regulator, means persons who are authorised by the designated qualifying regulator to provide immigration advice or immigration services.]

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Amendments (Textual)

[F138Appeals to the First-tier Tribunal]E+W+S+N.I.

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Amendments (Textual)

87 [F139Appeals to the First-tier Tribunal.]E+W+S+N.I.

F140(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2)Any person aggrieved by a relevant decision of the Commissioner may appeal to the [F141First-tier Tribunal] against the decision.

(3)Relevant decision” means a decision—

(a)to refuse an application for registration made under paragraph 1 of Schedule 6;

F142(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)under paragraph 2(2) of that Schedule to register with limited effect;

(d)to refuse an application for continued registration made under paragraph 3 of that Schedule;

(e)to vary a registration on an application under paragraph 3 of that Schedule;

[F143(ea)to vary a registration under paragraph 3A of that Schedule;] or

[F144(eb)to cancel a registration under paragraph 4A(e) of that Schedule.]

F145(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F146(3A)A relevant decision of the Commissioner is not to have effect while the period within which an appeal may be brought against the decision is running.

(3B)In the case of an appeal under this section, Tribunal Procedure Rules may include provision permitting the First-tier Tribunal to direct that while the appeal is being dealt with—

(a)no effect is to be given to the decision appealed against; or

(b)only such limited effect is to be given to it as may be specified in the direction.

(3C)If provision is made in Tribunal Procedure Rules by virtue of subsection (3B), the rules must also include provision requiring the First-tier Tribunal to consider applications by the Commissioner for the cancellation or variation of directions given by virtue of that subsection.]

[F147(4)For [F148further functions] of the First-tier Tribunal under this Part, see paragraph 9(1)(e) of Schedule 5 (disciplinary charges laid by the Commissioner) [F149and paragraph 4B of Schedule 6 (suspension of registration by First-tier Tribunal)] .]

F150(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

Commencement Information

I18S. 87 wholly in force at 30.10.2000; s. 87 not in force at Royal Assent see s. 170(4); s. 87(5) in force for certain purposes at 1.8.2000 and s. 87 in force at 30.10.2000 insofar as not already in force by S.I. 2000/1985, art. 2, Sch. (with transitional provisions in art. 3)

88 Appeal upheld by the [F151First-tier Tribunal].E+W+S+N.I.

(1)This section applies if the [F152First-tier Tribunal] allows an appeal under section 87.

(2)If the [F153First-tier Tribunal] considers it appropriate, it may direct the Commissioner—

(a)to register the applicant or to continue the applicant’s registration;

(b)to make or vary the applicant’s registration so as to have limited effect in any of the ways mentioned in paragraph 2(2) of Schedule 6;

F154(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d)to quash a decision recorded under paragraph 9(1)(a) of Schedule 5 and the record of that decision.

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Amendments (Textual)

89 Disciplinary charge upheld by the [F155First-tier Tribunal].E+W+S+N.I.

(1)This section applies if the [F156First-tier Tribunal] upholds a disciplinary charge laid by the Commissioner under paragraph 9(1)(e) of Schedule 5 against a person (“the person charged”).

[F157(2)[F158Subsections (2A) and (2B) apply if the person charged was, at the time to which the charge relates, a registered person or a person acting on behalf of a registered person.

(2A)If the registered person mentioned in subsection (2) is still registered, the First-tier Tribunal may direct the Commissioner—

(a)to record the charge and the First-tier Tribunal's decision on it for consideration in connection with that person's next application for continued registration;

(b)to cancel that person's registration.

(2B)If the registered person mentioned in subsection (2) is no longer registered, the First-tier Tribunal may direct the Commissioner to record the charge and the First-tier Tribunal's decision on it for consideration in connection with any application by that person for registration.]

F159(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5)If the person charged is found to have charged unreasonable fees for immigration advice or immigration services, the [F156First-tier Tribunal] may direct him to repay to the clients concerned such portion of those fees as it may determine.

(6)The [F156First-tier Tribunal] may direct the person charged to pay a penalty to the Commissioner of such sum as it considers appropriate.

(7)A direction given by the [F156First-tier Tribunal] under subsection (5) (or under subsection (6)) may be enforced by the clients concerned (or by the Commissioner)—

(a)as if it were an order of a county court [F160in Northern Ireland or the county court in England and Wales] ; or

(b)in Scotland, as if it were an extract registered decree arbitral bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland.

(8)The [F156First-tier Tribunal] may direct that the person charged or any person [F161acting on his behalf or] under his supervision is to be—

(a)subject to such restrictions on the provision of immigration advice or immigration services as the [F156First-tier Tribunal] considers appropriate;

(b)suspended from providing immigration advice or immigration services for such period as the [F156First-tier Tribunal] may determine; or

(c)prohibited from providing immigration advice or immigration services indefinitely.

(9)The Commissioner must keep a record of the persons against whom there is in force a direction given by the [F156First-tier Tribunal] under subsection (8).]

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Amendments (Textual)

F158S. 89(2)-(2B) substituted for s. 89(2) (17.11.2014) by Immigration Act 2014 (c. 22), s. 75(3), Sch. 7 para. 7(1); S.I. 2014/2771, art. 5(c)

F160Words in s. 89(7) inserted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 9 para. 90(c); S.I. 2014/954, art. 2(c) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

Modifications etc. (not altering text)

C31S. 89(2)-(2B) modified (17.11.2014) by Immigration Act 2014 (c. 22), s. 75(3), Sch. 9 paras. 68, 69; S.I. 2014/2771, art. 5(d)

90 Orders by disciplinary bodies.E+W+S+N.I.

(1)A disciplinary body may make an order directing that a person subject to its jurisdiction is to be—

(a)subject to such restrictions on the provision of immigration advice or immigration services as the body considers appropriate;

(b)suspended from providing immigration advice or immigration services for such period as the body may determine; or

(c)prohibited from providing immigration advice or immigration services indefinitely.

(2)Disciplinary body” means any body—

[F162(a)appearing to the Secretary of State to be established for the purpose of hearing disciplinary charges against—

(i)members of a designated professional body, or

(ii)persons regulated by designated qualifying regulators; and]

(b)specified in an order made by the Secretary of State.

(3)The Secretary of State must consult the designated professional body [F163or designated qualifying regulator] concerned before making an order under subsection (2)(b).

(4)For the purposes of this section, a person is subject to the jurisdiction of a disciplinary body if he is an authorised person or [F164is acting on behalf of] an authorised person.

(5)Authorised person” means [F165

(a)] a person who is authorised by the designated professional body concerned to practise as a member of the profession whose members are regulated by that body[F166, or

( b)a person who is authorised by the designated qualifying regulator concerned to provide immigration advice or immigration services.]

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Amendments (Textual)

Commencement Information

I19S. 90 wholly in force at 30.4.2001; s. 90 not in force at Royal Assent see s. 170(4); s. 90 in force for certain purposes at 1.8.2000 by S.I. 2000/1985, art. 2, Sch. (with transitional provisions in art. 3); S. 90 in force so far as not already in force at 30.4.2001 by S.I. 2001/1394, art. 2, Sch.

EnforcementE+W+S+N.I.

91 Offences.E+W+S+N.I.

(1)A person who provides immigration advice or immigration services in contravention of section 84 or of a restraining order is guilty of an offence and liable—

(a)on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both; or

(b)on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine, or to both.

(2)Restraining order” means—

(a)a direction given by the [F167First-tier Tribunal] under section 89(8) or paragraph 9(3) of Schedule 5; or

(b)an order made by a disciplinary body under section 90(1).

(3)If an offence under this section committed by a body corporate is proved—

(a)to have been committed with the consent or connivance of an officer, or

(b)to be attributable to neglect on his part,

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

(4)Officer”, in relation to a body corporate, means a director, manager, secretary or other similar officer of the body, or a person purporting to act in such a capacity.

(5)If the affairs of a body corporate are managed by its members, subsection (3) applies 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.

(6)If an offence under this section committed by a partnership in Scotland is proved—

(a)to have been committed with the consent or connivance of a partner, or

(b)to be attributable to neglect on his part,

the partner as well as the partnership is guilty of the offence and liable to be proceeded against and punished accordingly.

(7)Partner” includes a person purporting to act as a partner.

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Amendments (Textual)

92 Enforcement.E+W+S+N.I.

(1)If it appears to the Commissioner that a person—

(a)is providing immigration advice or immigration services in contravention of section 84 or of a restraining order, and

(b)is likely to continue to do so unless restrained,

the Commissioner may apply to a county court [F168in Northern Ireland or the county court in England and Wales] for an injunction, or to the sheriff for an interdict, restraining him from doing so.

(2)If the court is satisfied that the application is well-founded, it may grant the injunction or interdict in the terms applied for or in more limited terms.

(3)Restraining order” has the meaning given by section 91.

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Amendments (Textual)

F168Words in s. 92(1) inserted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 9 para. 90(c); S.I. 2014/954, art. 2(c) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

[F16992AInvestigation of offence: power of entryE+W+S+N.I.

(1)On an application made by the Commissioner a justice of the peace may issue a warrant authorising the Commissioner to enter and search premises.

(2)A justice of the peace may issue a warrant in respect of premises only if satisfied that there are reasonable grounds for believing that—

(a)an offence under section 91 has been committed,

(b)there is material on the premises which is likely to be of substantial value (whether by itself or together with other material) to the investigation of the offence, and

(c)any of the conditions specified in subsection (3) is satisfied.

(3)Those conditions are—

(a)that it is not practicable to communicate with a person entitled to grant entry to the premises,

(b)that it is not practicable to communicate with a person entitled to grant access to the evidence,

(c)that entry to the premises will be prevented unless a warrant is produced, and

(d)that the purpose of a search may be frustrated or seriously prejudiced unless the Commissioner can secure immediate entry on arrival at the premises.

(4)The Commissioner may seize and retain anything for which a search is authorised under this section.

(5)A person commits an offence if without reasonable excuse he obstructs the Commissioner in the exercise of a power by virtue of this section.

(6)A person guilty of an offence under subsection (5) shall be liable on summary conviction to—

(a)imprisonment for a term not exceeding six months,

(b)a fine not exceeding level 5 on the standard scale, or

(c)both.

(7)In this section—

(a)a reference to the Commissioner includes a reference to a member of his staff authorised in writing by him,

(b)a reference to premises includes a reference to premises used wholly or partly as a dwelling, and

(c)a reference to material—

(i)includes material subject to legal privilege within the meaning of the Police and Criminal Evidence Act 1984 (c. 60),

(ii)does not include excluded material or special procedure material within the meaning of that Act, and

(iii)includes material whether or not it would be admissible in evidence at a trial.

(8)In the application of this section to Scotland—

(a)a reference to a justice of the peace shall be taken as a reference to the sheriff,

(b)for sub-paragraph (i) of subsection (7)(c) there is substituted—

(i)includes material comprising items subject to legal privilege (as defined by section 412 of the Proceeds of Crime Act 2002 (c. 29)), and

(c)sub-paragraph (ii) of subsection (7)(c) shall be ignored.

(9)In the application of this section to Northern Ireland the reference to the Police and Criminal Evidence Act 1984 shall be taken as a reference to the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)).]

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Amendments (Textual)

[F17092BAdvertisingE+W+S+N.I.

(1)A person commits an offence if—

(a)he offers to provide immigration advice or immigration services, and

(b)provision by him of the advice or services would constitute an offence under section 91.

(2)For the purpose of subsection (1) a person offers to provide advice or services if he—

(a)makes an offer to a particular person or class of person,

(b)makes arrangements for an advertisement in which he offers to provide advice or services, or

(c)makes arrangements for an advertisement in which he is described or presented as competent to provide advice or services.

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

(4)Subsections (3) to (7) of section 91 shall have effect for the purposes of this section as they have effect for the purposes of that section.

(5)An information relating to an offence under this section may in England and Wales be tried by a magistrates' court if—

(a)it is laid within the period of six months beginning with the date (or first date) on which the offence is alleged to have been committed, or

(b)it is laid—

(i)within the period of two years beginning with that date, and

(ii)within the period of six months beginning with a date certified by the Immigration Services Commissioner as the date on which the commission of the offence came to his notice.

(6)In Scotland, proceedings for an offence under this section may be commenced—

(a)at any time within the period of six months beginning with the date (or first date) on which the offence is alleged to have been committed, or

(b)at any time within both—

(i)the period of two years beginning with that date, and

(ii)the period of six months beginning with a date specified, in a certificate signed by or on behalf of the procurator fiscal, as the date on which evidence sufficient in his opinion to warrant such proceedings came to his knowledge,

and any such certificate purporting to be so signed shall be deemed so signed unless the contrary is proved and be conclusive as to the facts stated in it.

(7)Subsection (3) of section 136 of the Criminal Procedure (Scotland) Act 1995 (c. 46) (date on which proceedings are deemed commenced) has effect to the purposes of subsection (6) as it has effect for the purposes of that section.

(8)A complaint charging the commission of an offence under this section may in Northern Ireland be heard and determined by a magistrates' court if—

(a)it is made within the period of six months beginning with the date (or first date) on which the offence is alleged to have been committed, or

(b)it is made—

(i)within the period of two years beginning with that date, and

(ii)within the period of six months beginning with a date certified by the Immigration Services Commissioner as the date on which the commission of the offence came to his notice.]

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Amendments (Textual)

MiscellaneousE+W+S+N.I.

93 Information.E+W+S+N.I.

(1)No enactment or rule of law prohibiting or restricting the disclosure of information prevents a person from—

(a)giving the Commissioner information which is necessary for the discharge of his functions; or

(b)giving the [F171First-tier Tribunal] information which is necessary for the discharge of its functions.

(2)No relevant person may at any time disclose information which—

(a)has been obtained by, or given to, the Commissioner under or for purposes of this Act,

(b)relates to an identified or identifiable individual or business, and

(c)is not at that time, and has not previously been, available to the public from other sources,

unless the disclosure is made with lawful authority.

(3)For the purposes of subsection (2), a disclosure is made with lawful authority only if, and to the extent that—

(a)it is made with the consent of the individual or of the person for the time being carrying on the business;

(b)it is made for the purposes of, and is necessary for, the discharge of any of the Commissioner’s functions under this Act or any [F108EU] obligation of the Commissioner;

(c)it is made for the purposes of any civil or criminal proceedings arising under or by virtue of this Part, or otherwise; or

(d)having regard to the rights and freedoms or legitimate interests of any person, the disclosure is necessary in the public interest.

(4)A person who knowingly or recklessly discloses information in contravention of subsection (2) is guilty of an offence and liable—

(a)on summary conviction, to a fine not exceeding the statutory maximum; or

(b)on conviction on indictment, to a fine.

(5)Relevant person” means a person who is or has been—

(a)the Commissioner;

(b)a member of the Commissioner’s staff; or

(c)an agent of the Commissioner.

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Amendments (Textual)

Part VIE+W+S+N.I. Support for Asylum-Seekers

InterpretationE+W+S+N.I.

94 Interpretation of Part VI.E+W+S+N.I.

(1)In this Part—

  • F172...

  • asylum-seeker” means a person who is not under 18 and has made a claim for asylum which has been recorded by the Secretary of State but which has not been determined;

  • claim for asylum” means a claim that it would be contrary to the United Kingdom’s obligations under the Refugee Convention, or under Article 3 of the Human Rights Convention, for the claimant to be removed from, or required to leave, the United Kingdom;

  • the Department” means the Department of Health and Social Services for Northern Ireland;

  • dependant”, in relation to an asylum-seeker or a supported person, means a person in the United Kingdom who—

    (a)

    is his spouse;

    (b)

    is a child of his, or of his spouse, who is under 18 and dependent on him; or

    (c)

    falls within such additional category, if any, as may be prescribed;

  • the Executive” means the Northern Ireland Housing Executive;

  • housing accommodation” includes flats, lodging houses and hostels;

  • local authority” means—

    (a)

    in England and Wales, a county council, a county borough council, a district council, a London borough council, the Common Council of the City of London or the Council of the Isles of Scilly;

    (b)

    in Scotland, a council constituted under section 2 of the M21Local Government etc. (Scotland) Act 1994;

  • [F173Northern Ireland authority” has the meaning given by section 110(9).]

  • supported person” means—

    (a)

    an asylum-seeker, or

    (b)

    a dependant of an asylum-seeker,

    who has applied for support and for whom support is provided under section 95.

(2)References in this Part to support provided under section 95 include references to support which is provided under arrangements made by the Secretary of State under that section.

(3)For the purposes of this Part, a claim for asylum is determined at the end of such period beginning—

(a)on the day on which the Secretary of State notifies the claimant of his decision on the claim, or

(b)if the claimant has appealed against the Secretary of State’s decision, on the day on which the appeal is disposed of,

as may be prescribed.

(4)An appeal is disposed of when it is no longer pending for the purposes of the Immigration Acts or the M22Special Immigration Appeals Commission Act 1997.

(5)If an asylum-seeker’s household includes a child who is under 18 and a dependant of his, he is to be treated (for the purposes of this Part) as continuing to be an asylum-seeker while—

(a)the child is under 18; and

(b)he and the child remain in the United Kingdom.

(6)Subsection (5) does not apply if, on or after the determination of his claim for asylum, the asylum-seeker is granted leave to enter or remain in the United Kingdom (whether or not as a result of that claim).

(7)For the purposes of this Part, the Secretary of State may inquire into, and decide, the age of any person.

(8)A notice under subsection (3) must be given in writing.

(9)If such a notice is sent by the Secretary of State by first class post, addressed—

(a)to the asylum-seeker’s representative, or

(b)to the asylum-seeker’s last known address,

it is to be taken to have been received by the asylum-seeker on the second day after the day on which it was posted.

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Amendments (Textual)

Marginal Citations

Provision of supportE+W+S+N.I.

95 Persons for whom support may be provided.E+W+S+N.I.

(1)The Secretary of State may provide, or arrange for the provision of, support for—

(a)asylum-seekers, or

(b)dependants of asylum-seekers,

who appear to the Secretary of State to be destitute or to be likely to become destitute within such period as may be prescribed.

(2)In prescribed circumstances, a person who would otherwise fall within subsection (1) is excluded.

(3)For the purposes of this section, a person is destitute if—

(a)he does not have adequate accommodation or any means of obtaining it (whether or not his other essential living needs are met); or

(b)he has adequate accommodation or the means of obtaining it, but cannot meet his other essential living needs.

(4)If a person has dependants, subsection (3) is to be read as if the references to him were references to him and his dependants taken together.

(5)In determining, for the purposes of this section, whether a person’s accommodation is adequate, the Secretary of State—

(a)must have regard to such matters as may be prescribed for the purposes of this paragraph; but

(b)may not have regard to such matters as may be prescribed for the purposes of this paragraph or to any of the matters mentioned in subsection (6).

(6)Those matters are—

(a)the fact that the person concerned has no enforceable right to occupy the accommodation;

(b)the fact that he shares the accommodation, or any part of the accommodation, with one or more other persons;

(c)the fact that the accommodation is temporary;

(d)the location of the accommodation.

(7)In determining, for the purposes of this section, whether a person’s other essential living needs are met, the Secretary of State—

(a)must have regard to such matters as may be prescribed for the purposes of this paragraph; but

(b)may not have regard to such matters as may be prescribed for the purposes of this paragraph.

(8)The Secretary of State may by regulations provide that items or expenses of such a description as may be prescribed are, or are not, to be treated as being an essential living need of a person for the purposes of this Part.

(9)Support may be provided subject to conditions.

[F174(9A)A condition imposed under subsection (9) may, in particular, relate to—

(a)any matter relating to the use of the support provided, or

(b)compliance with a restriction imposed under paragraph 21 of Schedule 2 to the 1971 Act (temporary admission or release from detention) or paragraph 2 or 5 of Schedule 3 to that Act (restriction pending deportation).]

(10)The conditions must be set out in writing.

(11)A copy of the conditions must be given to the supported person.

(12)Schedule 8 gives the Secretary of State power to make regulations supplementing this section.

(13)Schedule 9 makes temporary provision for support in the period before the coming into force of this section.

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Amendments (Textual)

Modifications etc. (not altering text)

C34S. 95(2)-(7) applied (with modifications) (S.) (5.10.2005) by The Mental Health (Care and Treatment) (Scotland) Act 2003 (Consequential Provisions) Order 2005 (S.I. 2005/2078), arts. 1(1), 14(2) (as substituted by 2002 c. 41, s. 46(4)), Sch. 1 para. 6

C35S. 95(2)-(7) applied (with modifications) (E.W.) (1.3.2007) by National Health Service (Wales) Act 2006 (c. 42), s. 208(1), Sch. 15 para. 2(7) (with s. 19(3))

C36S. 95(2)-(7) applied (with modifications) (E.W.) (1.3.2007) by National Health Service Act 2006 (c. 41), Sch. 20 para. 2(7)

C37S. 95(2)-(7) applied (with modifications) (E.W.) (1.4.2015) by Care Act 2014 (c. 23), ss. 21(2)(3), 127(1); S.I. 2015/993, art. 2(d) (with transitional provisions in S.I. 2015/995)

C38S. 95(2)-(7) applied (with modifications) (E.W.) (6.4.2016) by Social Services and Well-being (Wales) Act 2014 (anaw 4), s. 46(2)(3), 199(2); S.I. 2016/412, art. 2 (with art. 4 Sch. 1 Sch. 2)

C39S. 95(3)(5)-(8) applied (with modifications) (6.12.1999) by 1948 c. 29, s. 21(1B) (as inserted by 1999 c. 33, ss. 116, 169(2), Sch. 15 para. 5; S.I. 1999/3190, art. 2, Sch.)

S. 95(3)(5)-(8) applied (with modifications) (6.12.1999) by 1968 c. 46, s. 45(4B) (as inserted by 1999 c. 33, ss. 117(1), 169(2), Sch. 15 para. 6; S.I. 1999/3190, art. 2, Sch.)

S. 95(3)(5)-(8) applied (with modifications) (6.12.1999) by 1977 c. 49, Sch. 8 para 2 (2B) (as inserted by 1999 c. 33, ss. 117(2), 169(2), Sch. 15 para. 9; S.I. 1999/3190, art. 2, Sch.)

S. 95(3)(5)-(8) applied (with modifications) (1.3.2000 for specified purposes and otherwise 3.4.2000) by 1968 c. 49, ss. 12(2B), 13A(5), 13B(4) (as inserted by 1999 c. 33, ss. 120(1)-(3), 169(2), 170(4), Sch. 15 para. 7)

S. 95(3)(5)-(8) applied (with modifications) (1.3.2000 for specified purposes and otherwise 3.4.2000) by 1984 c. 36, ss. 7(4), 8(5) (as inserted by 1999 c. 33, ss. 120(4)(5), 169(2), 170(4), Sch. 15 para. 10)

Commencement Information

I20S. 95 wholly in force at 3.4.2000; s. 95(13) in force at Royal Assent see s. 170(3)(g); s. 95(3)-(8) in force for certain purposes at 6.12.1999 and s. 95 in force for certain purposes at 1.1.2000 insofar as not already in force by S.I. 1999/3190, art. 2, Sch.; s. 95 in force at 3.4.2000 insofar as not already in force by S.I. 2000/464, art. 2, Sch.

96 Ways in which support may be provided.E+W+S+N.I.

(1)Support may be provided under section 95—

(a)by providing accommodation appearing to the Secretary of State to be adequate for the needs of the supported person and his dependants (if any);

(b)by providing what appear to the Secretary of State to be essential living needs of the supported person and his dependants (if any);

(c)to enable the supported person (if he is the asylum-seeker) to meet what appear to the Secretary of State to be expenses (other than legal expenses or other expenses of a prescribed description) incurred in connection with his claim for asylum;

(d)to enable the asylum-seeker and his dependants to attend bail proceedings in connection with his detention under any provision of the Immigration Acts; or

(e)to enable the asylum-seeker and his dependants to attend bail proceedings in connection with the detention of a dependant of his under any such provision.

(2)If the Secretary of State considers that the circumstances of a particular case are exceptional, he may provide support under section 95 in such other ways as he considers necessary to enable the supported person and his dependants (if any) to be supported.

(3)F175. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)[F176But the Secretary of State may by order provide for subsection (3) not to apply—

(a)in all cases, for such period as may be specified;

(b)in such circumstances as may be specified;

(c)in relation to specified categories of person; or

(d)in relation to persons whose accommodation is in a specified locality.]

(5)[F176The Secretary of State may by order repeal subsection (3).]

(6)[F176Specified” means specified in an order made under subsection (4).]

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Amendments (Textual)

F176S. 96(4)-(6) cease to have effect (7.11.2002) and repealed (prosp.) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 61(a), 161, Sch. 9 (with s. 159)

Modifications etc. (not altering text)

C40S. 96(1)(b): power to restrict conferred (7.11.2002) by Nationality, Immigration and Asylum Act 2002 (c. 41), s. 43 (with s. 159)

97 Supplemental.E+W+S+N.I.

(1)When exercising his power under section 95 to provide accommodation, the Secretary of State must have regard to—

(a)the fact that the accommodation is to be temporary pending determination of the asylum-seeker’s claim;

(b)the desirability, in general, of providing accommodation in areas in which there is a ready supply of accommodation; and

(c)such other matters (if any) as may be prescribed.

(2)But he may not have regard to—

(a)any preference that the supported person or his dependants (if any) may have as to the locality in which the accommodation is to be provided; or

(b)such other matters (if any) as may be prescribed.

(3)The Secretary of State may by order repeal all or any of the following—

(a)subsection (1)(a);

(b)subsection (1)(b);

(c)subsection (2)(a).

(4)When exercising his power under section 95 to provide essential living needs, the Secretary of State—

(a)must have regard to such matters as may be prescribed for the purposes of this paragraph; but

(b)may not have regard to such other matters as may be prescribed for the purposes of this paragraph.

(5)In addition, when exercising his power under section 95 to provide essential living needs, the Secretary of State may limit the overall amount of the expenditure which he incurs in connection with a particular supported person—

[F177(za)to such portion of the maximum amount of an award of universal credit under section 8(1) of the Welfare Reform Act 2012, or]

(a)to such portion of the income support applicable amount provided under section 124 of the M23Social Security Contributions and Benefits Act 1992, or

(b)to such portion of any components [F178or elements] of that amount,

as he considers appropriate having regard to the temporary nature of the support that he is providing.

(6)For the purposes of subsection (5), any support of a kind falling within section 96(1)(c) is to be treated as if it were the provision of essential living needs.

(7)In determining how to provide, or arrange for the provision of, support under section 95, the Secretary of State may disregard any preference which the supported person or his dependants (if any) may have as to the way in which the support is to be given.

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Amendments (Textual)

Commencement Information

I21S. 97 wholly in force at 3.4.2000; s. 97 not in force at Royal Assent see s. 170(4); s. 97 in force for certain purposes at 1.1.2000 by S.I. 1999/3190, art. 2, Sch.; s. 97 in force at 3.4.2000 insofar as not already in force by S.I. 2000/464, art. 2, Sch.

Marginal Citations

98 Temporary support.E+W+S+N.I.

(1)The Secretary of State may provide, or arrange for the provision of, support for—

(a)asylum-seekers, or

(b)dependants of asylum-seekers,

who it appears to the Secretary of State may be destitute.

(2)Support may be provided under this section only until the Secretary of State is able to determine whether support may be provided under section 95.

(3)Subsections (2) to (11) of section 95 apply for the purposes of this section as they apply for the purposes of that section.

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Modifications etc. (not altering text)

Commencement Information

I22S. 98 partly in force; s. 98 not in force at Royal Assent see s. 170(4); s. 98(3) in force for certain purposes at 1.3.2000 by S.I. 2000/464, art. 2, Sch.

Support and assistance by local authorities etc.E+W+S+N.I.

99 Provision of support by local authorities.E+W+S+N.I.

(1)A local authority [F179or Northern Ireland authority] may provide support for [F180persons] in accordance with arrangements made by the Secretary of State under section [F1814,] 95 [F182or 98].

[F183(2)Support may be provided by an authority in accordance with arrangements made with the authority or with another person.

(3)Support may be provided by an authority in accordance with arrangements made under section 95 only in one or more of the ways mentioned in section 96(1) and (2).]

(4)[F184An authority] may incur reasonable expenditure in connection with the preparation of proposals for entering into arrangements under section [F1854,] 95 [F186or 98].

(5)The powers conferred on [F187an authority] by this section include power to—

(a)provide services outside their area;

(b)provide services jointly with one or more [F188other bodies];

(c)form a company for the purpose of providing services;

(d)tender for contracts (whether alone or with any other person).

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Amendments (Textual)

F179Words in s. 99(1) inserted (7.11.2002) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 56(2)(a), 162(2) (with s. 159)

F184Words in s. 99(4) substituted (7.11.2002) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 56(4)(a), 162(2) (with s. 159)

F187Words in s. 99(5) substituted (7.11.2002) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 56(5)(a), 162(2) (with s. 159)

F188Words in s. 99(5)(b) substituted (7.11.2002) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 56(5)(b), 162(2) (with s. 159)

Commencement Information

I23S. 99 wholly in force at 3.4.2000; s. 99(4)(5) in force at Royal Assent see s. 170(3)(h); S. 99 in force at 3.4.2000 insofar as not already in force by S.I. 2000/464, art. 2, Sch.

100 Local authority and other assistance for Secretary of State.E+W+S+N.I.

(1)This section applies if the Secretary of State asks—

(a)a local authority,

[F189(aa)a private registered provider of social housing,]

(b)a registered social landlord,

(c)a registered housing association in Scotland or Northern Ireland, or

(d)the Executive,

to assist him to exercise his power under section 95 to provide accommodation.

(2)The person to whom the request is made must co-operate in giving the Secretary of State such assistance in the exercise of that power as is reasonable in the circumstances.

(3)Subsection (2) does not require [F190a private registered provider of social housing or] a registered social landlord to act beyond its powers.

(4)A local authority must supply to the Secretary of State such information about their housing accommodation (whether or not occupied) as he may from time to time request.

(5)The information must be provided in such form and manner as the Secretary of State may direct.

(6)Registered social landlord” has the same meaning as in Part I of the M24Housing Act 1996.

(7)Registered housing association” has the same meaning—

(a)in relation to Scotland, as in the M25Housing Associations Act 1985; and

(b)in relation to Northern Ireland, as in Part II of the M26Housing (Northern Ireland) Order 1992.

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Amendments (Textual)

Marginal Citations

101 Reception zones.E+W+S+N.I.

(1)The Secretary of State may by order designate as reception zones—

(a)areas in England and Wales consisting of the areas of one or more local authorities;

(b)areas in Scotland consisting of the areas of one or more local authorities;

(c)Northern Ireland.

(2)Subsection (3) applies if the Secretary of State considers that—

(a)a local authority whose area is within a reception zone has suitable housing accommodation within that zone; or

(b)the Executive has suitable housing accommodation.

(3)The Secretary of State may direct the local authority or the Executive to make available such of the accommodation as may be specified in the direction for a period so specified—

(a)to him for the purpose of providing support under section 95; or

(b)to a person with whom the Secretary of State has made arrangements under section 95.

(4)A period specified in a direction under subsection (3)—

(a)begins on a date so specified; and

(b)must not exceed five years.

(5)A direction under subsection (3) is enforceable, on an application made on behalf of the Secretary of State, by injunction or in Scotland an order under section 45(b) of the M27Court of Session Act 1988.

(6)The Secretary of State’s power to give a direction under subsection (3) in respect of a particular reception zone must be exercised by reference to criteria specified for the purposes of this subsection in the order designating that zone.

(7)The Secretary of State may not give a direction under subsection (3) in respect of a local