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Immigration and Asylum Act 1999

Status:

This is the original version (as it was originally enacted).

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:—

Part IImmigration: General

Leave to enter, or remain in, the United Kingdom

1Leave to enter

In the 1971 Act, after section 3, insert—

3AFurther 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.

2Leave to remain

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

3BFurther 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.

3Continuation of leave pending decision

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

3CContinuation 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).

4Accommodation for those temporarily admitted or released from detention

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.

5Charges

(1)The Secretary of State may, with the approval of the Treasury, make regulations prescribing fees to be paid in connection with applications for—

(a)leave to remain in the United Kingdom;

(b)the variation of leave to enter, or remain in, the United Kingdom;

(c)an indefinite leave stamp to be fixed on the applicant’s passport (or travel document) as the result of the renewal or replacement of his previous passport (or travel document).

(2)If a fee prescribed in connection with an application of a particular kind is payable, no such application is to be entertained by the Secretary of State unless the fee has been paid in accordance with the regulations.

(3)But—

(a)a fee prescribed in connection with such an application is not payable if the basis on which the application is made is that the applicant is—

(i)a person making a claim for asylum which claim either has not been determined or has been granted; or

(ii)a dependant of such a person; and

(b)the regulations may provide for no fee to be payable in prescribed circumstances.

(4)If no fee is payable in respect of some part of the application, the Secretary of State must entertain that part of the application.

(5)“Indefinite leave stamp” means a stamp which indicates that the applicant has been granted indefinite leave to enter, or remain in, the United Kingdom.

(6)“Claim for asylum” has the meaning given in subsection (1) of section 94; and subsection (3) of that section applies for the purposes of this section as it applies for the purposes of Part VI.

(7)“Dependant” has such meaning as may be prescribed.

Exemption from immigration control

6Members of missions other than diplomatic agents

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.

7Persons ceasing to be exempt

In the 1971 Act, after section 8, insert—

8APersons 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.

8Persons excluded from the United Kingdom under international obligations

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

8BPersons 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 Kingdom

9Treatment of certain overstayers

(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.

10Removal of certain persons unlawfully in the United Kingdom

(1)A person who is not a British citizen may be removed from the United Kingdom, in accordance with directions given by an immigration officer, if—

(a)having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave;

(b)he has obtained leave to remain by deception; or

(c)directions (“the first directions”) have been given for the removal, under this section, of a person (“the other person”) to whose family he belongs.

(2)Directions may not be given under subsection (1)(a) if the person concerned has made an application for leave to remain in accordance with regulations made under section 9.

(3)Directions may not be given under subsection (1)(c) unless the Secretary of State has given the person concerned written notice, not more than eight weeks after the other person left the United Kingdom in accordance with the first directions, that he intends to remove the person concerned from the United Kingdom.

(4)If such a notice is sent by the Secretary of State by first class post, addressed to the person concerned’s last known address, it is to be taken to have been received by that person on the second day after the day on which it was posted.

(5)Directions for the removal of a person under subsection (1)(c) cease to have effect if he ceases to belong to the family of the other person.

(6)Directions under this section—

(a)may be given only to persons falling within a prescribed class;

(b)may impose any requirements of a prescribed kind.

(7)In relation to any such directions, paragraphs 10, 11, 16 to 18, 21 and 22 to 24 of Schedule 2 to the 1971 Act (administrative provisions as to control of entry), apply as they apply in relation to directions given under paragraph 8 of that Schedule.

(8)Directions for the removal of a person given under this section invalidate any leave to enter or remain in the United Kingdom given to him before the directions are given or while they are in force.

(9)The costs of complying with a direction given under this section (so far as reasonably incurred) must be met by the Secretary of State.

11Removal of asylum claimants under standing arrangements with member States

(1)In determining whether a person in relation to whom a certificate has been issued under subsection (2) may be removed from the United Kingdom, a member State is to be regarded as—

(a)a place where a person’s life and liberty is not threatened by reason of his race, religion, nationality, membership of a particular social group, or political opinion; and

(b)a place from which a person will not be sent to another country otherwise than in accordance with the Refugee Convention.

(2)Nothing in section 15 prevents a person who has made a claim for asylum (“the claimant”) from being removed from the United Kingdom to a member State if—

(a)the Secretary of State has certified that—

(i)the member State has accepted that, under standing arrangements, it is the responsible State in relation to the claimant’s claim for asylum; and

(ii)in his opinion, the claimant is not a national or citizen of the member State to which he is to be sent;

(b)the certificate has not been set aside on an appeal under section 65.

(3)Unless a certificate has been issued under section 72(2)(a) in relation to a person, he is not to be removed from the United Kingdom—

(a)if he has an appeal under section 65 against the decision to remove him in accordance with this section pending; or

(b)before the time for giving notice of such an appeal has expired.

(4)“Standing arrangements” means arrangements in force as between member States for determining which state is responsible for considering applications for asylum.

12Removal of asylum claimants in other circumstances

(1)Subsection (2) applies if the Secretary of State intends to remove a person who has made a claim for asylum (“the claimant”) from the United Kingdom to—

(a)a member State, or a territory which forms part of a member State, otherwise than under standing arrangements; or

(b)a country other than a member State which is designated by order made by the Secretary of State for the purposes of this section.

(2)Nothing in section 15 prevents the claimant’s removal if—

(a)the Secretary of State has certified that, in his opinion, the conditions set out in subsection (7) are fulfilled;

(b)the certificate has not been set aside on an appeal under section 65.

(3)Unless a certificate has been issued under section 72(2)(a) in relation to a person, he is not to be removed from the United Kingdom—

(a)if he has an appeal under section 65 against the decision to remove him in accordance with subsection (2) pending; or

(b)before the time for giving notice of such an appeal has expired.

(4)Subsection (5) applies if the Secretary of State intends to remove a person who has made a claim for asylum (“the claimant”) from the United Kingdom to a country which is not—

(a)a member State; or

(b)a country designated under subsection (1)(b).

(5)Nothing in section 15 prevents the claimant’s removal if—

(a)the Secretary of State has certified that, in his opinion, the conditions set out in subsection (7) are fulfilled;

(b)the certificate has not been set aside on an appeal under section 65 or 71; and

(c)the time for giving notice of such an appeal has expired and no such appeal is pending.

(6)For the purposes of subsection (5)(c), an appeal under section 65 is not to be regarded as pending if the Secretary of State has issued a certificate under section 72(2)(a) in relation to the allegation on which it is founded.

(7)The conditions are that—

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

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

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

(8)“Standing arrangements” has the same meaning as in section 11.

13Proof of identity of persons to be removed or deported

(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 [1998 c. 29.] Data 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.

14Escorts for persons removed from the United Kingdom under directions

(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.

15Protection of claimants from removal or deportation

(1)During the period beginning when a person makes a claim for asylum and ending when the Secretary of State gives him notice of the decision on the claim, he may not be removed from, or required to leave, the United Kingdom.

(2)Subsection (1) does not prevent—

(a)directions for his removal being given during that period;

(b)a deportation order being made against him during that period.

(3)But no such direction or order is to have effect during that period.

(4)This section is to be treated as having come into force on 26 July 1993.

Provision of financial security

16Security on grant of entry clearance

(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.

17Provision of further security on extension of leave

(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.

Information

18Passenger information

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.

19Notification of non-EEA arrivals

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

Notification of non-EEA arrivals

27C(1)If a senior officer, or an immigration officer authorised by a senior officer, gives written notice to the owner or agent (“the carrier”) of a ship or aircraft, the carrier must inform a relevant officer of the expected arrival in the United Kingdom of any ship or aircraft—

(a)of which he is the owner or agent; and

(b)which he expects to carry a person who is not an EEA national.

(2)The notice may relate 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.

(3)The notice—

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

(b)continues in force until that date, unless withdrawn earlier by written notice given by a senior officer.

(4)The date may not be later than six months after the notice is given.

(5)The fact that a notice under sub-paragraph (1) has ceased to have effect as a result of sub-paragraph (3) does not prevent the notice from being renewed.

(6)The information must be provided—

(a)in such form and manner as the notice may require; and

(b)before the ship or aircraft concerned departs for the United Kingdom.

(7)If a ship or aircraft travelling to the United Kingdom stops at one or more places before arriving in the United Kingdom, it is to be treated as departing for the United Kingdom when it leaves the last of those places.

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

(9)“Relevant officer” means—

(a)the officer who gave the notice under sub-paragraph (1); or

(b)any immigration officer at the port at which the ship or aircraft concerned is expected to arrive.

(10)“EEA national” means a national of a State which is a Contracting Party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 as it has effect for the time being.

20Supply of information to Secretary of State

(1)This section applies to information held by—

(a)a chief officer of police;

(b)the Director General of the National Criminal Intelligence Service;

(c)the Director General of the National Crime Squad;

(d)the Commissioners of Customs and Excise, or a person providing services to them in connection with the provision of those services;

(e)a person with whom the Secretary of State has made a contract or other arrangements under section 95 or 98 or a sub-contractor of such a person; or

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

(2)The information may be supplied to the Secretary of State for use for immigration purposes.

(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;

(e)such other purposes as may be specified.

(4)“Chief officer of police” means—

(a)the chief officer of police for a police area in England and Wales;

(b)the chief constable of a police force maintained under the [1967 c. 77.] Police (Scotland) Act 1967;

(c)the Chief Constable of the Royal Ulster Constabulary.

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

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

21Supply of information by Secretary of State

(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;

(b)the Director General of the National Criminal Intelligence Service, for use for NCIS purposes;

(c)the Director General of the National Crime Squad, for use for NCS purposes;

(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.

(4)“NCIS purposes” means any of the functions of the National Criminal Intelligence Service mentioned in section 2 of the [1997 c. 50.] Police Act 1997.

(5)“NCS purposes” means any of the functions of the National Crime Squad mentioned in section 48 of that Act.

(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 [1979 c. 2.] Customs 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.

Employment: code of practice

22Restrictions on employment: code of practice

In the [1996 c. 49.] Asylum and Immigration Act 1996, after section 8, insert—

8ACode 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 [1976 c. 74.] Race Relations Act 1976 (“the 1976 Act”); or

(b)in relation to Northern Ireland, discrimination in contravention of Article 6(1) of the [S.I. 1997/869 (N.I. 6).] Race 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.

Monitoring entry clearance

23Monitoring refusals of entry clearance

(1)The Secretary of State must appoint a person to monitor, in such a manner as the Secretary of State may determine, refusals of entry clearance in cases where there is, as a result of section 60(5), no right of appeal.

(2)But the Secretary of State may not appoint a member of his staff.

(3)The monitor must make an annual report on the discharge of his functions to the Secretary of State.

(4)The Secretary of State must lay a copy of any report made to him under subsection (3) before each House of Parliament.

(5)The Secretary of State may pay to the monitor such fees and allowances as he may determine.

Reporting suspicious marriages

24Duty to report suspicious marriages

(1)Subsection (3) applies if—

(a)a superintendent registrar to whom a notice of marriage has been given under section 27 of the [1949 c. 76.] Marriage Act 1949,

(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 [1977 c. 15.] Marriage (Scotland) Act 1977, or

(d)a registrar or deputy registrar to whom notice has been given under section 13 of the [1844 c. 81.] Marriages (Ireland) Act 1844 or section 4 of the [1863 c. 27.] Marriage Law (Ireland) Amendment Act 1863,

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 the Chancellor of the Exchequer;

(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.

(5)“Sham marriage” means a marriage (whether or not void)—

(a)entered into between a person (“A”) who is neither a British citizen nor a national of an EEA State other than the United Kingdom and another person (whether or not such a citizen or such a national); and

(b)entered into by A for the purpose of avoiding the effect of one or more provisions of United Kingdom immigration law or the immigration rules.

Immigration control: facilities and charges

25Provision of facilities for immigration control at ports

(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 by a county court; or

(b)in Scotland, by an order under section 45 of the [1988 c. 36.] Court 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.

26Charges: immigration control

(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.

Charges: travel documents

27Charges: travel documents

(1)The Secretary of State may, with the approval of the Treasury, make regulations prescribing fees to be paid in connection with applications to him for travel documents.

(2)If a fee is prescribed in connection with an application of a particular kind, no such application is to be entertained by the Secretary of State unless the fee has been paid in accordance with the regulations.

(3)In respect of any period before the coming into force of this section, the Secretary of State is to be deemed always to have had power to impose charges in connection with—

(a)applications to him for travel documents; or

(b)the issue by him of travel documents.

(4)“Travel document” does not include a passport.

Offences

28Deception

In the 1971 Act, after section 24, insert—

24ADeception

(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.

29Facilitation of entry

(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)”.

30False statements etc

(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 [1988 c. 14.] Immigration Act 1988;

(c)the [1993 c. 23.] Asylum and Immigration Appeals Act 1993 (apart from section 4 or 5); or

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

31Defences based on Article 31(1) of the Refugee Convention

(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 [1981 c. 45.] Forgery and Counterfeiting Act 1981 (forgery and connected offences);

(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,

(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.

Part IICarriers' Liability

Clandestine entrants

32Penalty for carrying clandestine entrants

(1)A person is a clandestine entrant if—

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

(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.

(2)The person (or persons) responsible for a clandestine entrant is (or are together) liable to—

(a)a penalty of the prescribed amount in respect of the clandestine entrant; and

(b)an additional penalty of that amount in respect of each person who was concealed with the clandestine entrant in the same transporter.

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

(4)Payment of the full amount of a penalty by one or more of the persons responsible for the clandestine entrant discharges the liability of each of the persons responsible for that entrant.

(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 or captain;

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

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

(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 or operator of the trailer;

(b)if it is not, the owner, hirer or driver of the vehicle.

(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.

33Code of practice

(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 both Houses of 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.

34Defences to claim that penalty is due under section 32

(1)This section applies if it is alleged that a person (“the carrier”) is liable to a penalty under section 32.

(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)that on the occasion in question the person or persons responsible for operating that 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)If there are two or more persons responsible for a clandestine entrant, the fact that one or more of them has a defence under subsection (3) does not affect the liability of the others.

(6)But if a person responsible for a clandestine entrant has a defence under subsection (2), the liability of any other person responsible for that entrant is discharged.

35Procedure

(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 must take if he objects to the penalty;

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

(3)Subsection (4) applies if more than one person is responsible for a clandestine entrant.

(4)If a penalty notice is served on one of the responsible persons, the Secretary of State is to be taken to have served the required penalty notice on each of them.

(5)The Secretary of State must nevertheless take reasonable steps, while the penalty remains unpaid, to secure that the penalty notice is actually served on each of those responsible persons.

(6)If a person on whom a penalty notice is served, or who is treated as having had a penalty notice served on him, alleges that he is not liable for one or more, or all, of the penalties specified in the penalty notice, he may give written notice of his allegation to the Secretary of State.

(7)Notice under subsection (6) (“a notice of objection”) must—

(a)give reasons for the allegation; and

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

(8)If a notice of objection is given before the end of the prescribed period, the Secretary of State must consider it and determine whether or not any penalty to which it relates is payable.

(9)The Secretary of State may by regulations provide, in relation to detached trailers, for a penalty notice which is served in such manner as may be prescribed to have effect as a penalty notice properly served on 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.

36Power to detain vehicles etc. in connection with penalties under section 32

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

(a)vehicle,

(b)small ship, or

(c)small aircraft,

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.

(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.

37Effect of detention

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

(2)The person to whom the penalty notice was addressed, or the owner or any other person claiming an interest in 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 and the applicant has a compelling need to have the transporter released.

(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.

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

38Assisting illegal entry and harbouring

(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—

25ADetention 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 [1995 c. 46.] Criminal Procedure (Scotland) Act 1995, discharged or liberated or the trial diet is deserted simpliciter;

(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.

39Rail freight

(1)The Secretary of State may make regulations applying (with or without modification) any provision of this Part for the purpose of enabling penalties to be imposed in respect of a person (“a clandestine entrant”) who—

(a)arrives in the United Kingdom concealed in a rail freight wagon; and

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

(2)The regulations may, in particular, make provision—

(a)enabling additional penalties to be imposed in respect of persons concealed with the clandestine entrant;

(b)as to which person is (or which persons are together) liable to penalties in respect of the clandestine entrant;

(c)for conferring on a senior officer a power to detain any relevant rail freight wagon in prescribed circumstances;

(d)for conferring on the Secretary of State a power to sell in prescribed circumstances a rail freight wagon which has been detained.

(3)Before making any regulations under this section, the Secretary of State must consult, in the way he considers appropriate, persons appearing to him to be likely to be affected by the imposition of penalties under the regulations.

Passengers without proper documents

40Charges in respect of passengers without proper documents

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

(a)a valid passport with photograph or some other document satisfactorily establishing his identity and nationality or citizenship; and

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

(2)The Secretary of State may charge the owner of the ship, aircraft or vehicle or the train operator, in respect of that person, the sum of £2,000 or such other sum as may be prescribed.

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

(4)No charge is payable in respect of any person who is shown by the owner or train operator to have produced the required document or documents to him or his representative when embarking—

(a)on the ship or aircraft for the voyage or flight to the United Kingdom; or

(b)on the vehicle or train for the journey to the United Kingdom.

(5)No charge is payable by a train operator, or by the owner of a road passenger vehicle, in respect of a person (“A”), if he shows that—

(a)neither he nor his representative was permitted, under the law applicable to the place where A embarked on the journey to the United Kingdom, to require A to produce to him when embarking the required document or documents;

(b)he had in place satisfactory arrangements (including, where appropriate, arrangements with other persons) designed to ensure that he did not carry passengers who did not, or might not, have documents of the required kind;

(c)all such steps as were practicable were taken in accordance with the arrangements to establish whether A had the required document or documents; and

(d)all such steps as were practicable were taken in accordance with the arrangements to prevent A’s arrival in the United Kingdom where—

(i)A refused to produce the required document or documents to a person acting in accordance with the arrangements; or

(ii)for other reasons it appeared to that person that A did not, or might not, have the required document or documents.

(6)For the purposes of subsections (4) and (5), a document—

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

(b)is to be regarded as relating to the person producing it unless it is reasonably apparent that it relates to another person.

(7)Subsection (8) applies if—

(a)a person arrives in the United Kingdom in circumstances in which the Secretary of State is entitled to impose on the owner of a road passenger vehicle a charge under this section in respect of that person; and

(b)the vehicle arrived in the United Kingdom in a ship or aircraft.

(8)The Secretary of State may impose a charge in respect of the arrival of the vehicle, or a charge in respect of the arrival of the ship or aircraft, but not in respect of both.

(9)The Secretary of State may by order provide that this section is not to apply in relation to passengers arriving in the United Kingdom on a train who embarked on the journey to the United Kingdom—

(a)in a country specified in the order; or

(b)at places so specified within a country so specified.

(10)The Secretary of State may make an order under subsection (9) only if he is satisfied that there is in force between the United Kingdom and the country concerned an agreement providing for the operation of United Kingdom immigration control in that country or for the checking of passports and visas there.

(11)“Road passenger vehicle” means a vehicle—

(a)which is adapted to carry more than eight passengers and is being used for carrying passengers for hire or reward; or

(b)which is not so adapted but is being used for carrying passengers for hire or reward at separate fares in the course of a business of carrying passengers.

(12)For the purposes of this section a person 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.

(13)“Representative”, in relation to a person, means an employee or agent of his.

41Visas for transit passengers

(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.

42Power to detain vehicles etc. in connection with charges under section 40

(1)A senior officer may, pending payment of any charge imposed under section 40, detain—

(a)the transporter in which the person in respect of whom the charge was imposed was carried; or

(b)any other transporter used (on any route) in the course of providing a service of carriage of passengers by sea, air or land by the person on whom the charge was imposed.

(2)If a transporter is detained under subsection (1) it may continue to be detained pending payment of any connected expenses.

(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 charge alleged to be due and connected expenses;

(b)there is no significant risk that the charge and any connected expenses will not be paid; or

(c)there is a significant doubt as to whether the charge is payable and the applicant has a compelling need to have the transporter released.

(4)If the court has not ordered the release of the transporter, the Secretary of State may sell it if the charge 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)The detention of a transporter under this section is lawful even though it is subsequently established that the imposition of the charge on which the detention was based was ill-founded.

(6)But subsection (5) does not apply if the Secretary of State was acting unreasonably in imposing the charge.

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

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

Interpretation

43Interpretation of Part II

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 or aircraft concerned;

  • “court” means—

    (a)

    in England and Wales, the county court or the High Court;

    (b)

    in Scotland, the sheriff or the Court of Session;

    (c)

    in Northern Ireland, the county court or the High Court;

  • “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;

  • “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; and

    (b)

    in relation to a road passenger vehicle, the operator of the vehicle; and

    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);

  • “rail freight wagon” has such meaning as may be prescribed;

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

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

  • “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 [1987 c. 53.] Channel 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 or aircraft 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.

Part IIIBail

Routine bail hearings

44Bail hearings for detained persons

(1)This section applies if a person is detained under any provision of the 1971 Act.

(2)The Secretary of State must arrange a reference to the court for it to determine whether the detained person should be released on bail.

(3)The duty under this section to arrange a reference does not apply if the detained person—

(a)is also detained otherwise than under a provision of the 1971 Act;

(b)is liable (under section 3(6) of that Act) to deportation as a result of the recommendation of a court; or

(c)has given to the Secretary of State, and has not withdrawn, written notice that he does not wish his case to be referred to a court under this section.

(4)The Secretary of State must secure that a first reference to the court is made—

(a)in the case of a reference to the Commission, in accordance with rules; and

(b)in any other case, no later than the eighth day following that on which the detained person was detained.

(5)If the detained person remains in detention, the Secretary of State must secure that a second reference to the court is made—

(a)in the case of a reference to the Commission, in accordance with rules; and

(b)in any other case, no later than the thirty-sixth day following that on which the detained person was detained.

(6)A reference under subsection (5) may not be heard by the court before the thirty-third day following that on which the detained person was detained.

(7)The court hearing a case referred to it under this section must proceed as if the detained person had made an application to it for bail.

(8)The court must determine the matter—

(a)in the case of a reference to the Commission, in accordance with rules; and

(b)in any other case—

(i)on a first reference, before the tenth day following that on which the person concerned was detained; and

(ii)on a second reference, before the thirty-eighth day following that on which he was detained.

(9)Subsection (8) does not apply if the detained person has been released or has given notice under subsection (3)(c).

(10)If it appears to the Secretary of State that there has been a failure to comply with subsection (4) or (5), he must refer the matter to the court, and the court must deal with the reference, as soon as is reasonably practicable.

(11)If it appears to the Secretary of State that there has been a failure to comply with subsection (8), he must notify the court concerned, and the court must deal with the matter, as soon as is reasonably practicable.

(12)In this Part “court” means—

(a)if the detained person has brought an appeal under the Immigration Acts, the court or other appellate authority dealing with his appeal;

(b)in the case of a detained person to whom section 3(2) of the [1997 c. 68.] Special Immigration Appeals Commission Act 1997 applies (jurisdiction in relation to bail for persons detained on grounds of national security), the Commission; and

(c)in any other case, such magistrates' court as the Secretary of State considers appropriate or, in Scotland, an adjudicator.

(13)Rules made by the Lord Chancellor under section 5 of the Special Immigration Appeals Commission Act 1997 may include provision made for the purposes of this section; and in subsections (4), (5) and (8) “rules” means rules made by virtue of this subsection.

(14)The Secretary of State may by regulations make provision modifying the application of this section in relation to cases where the proceedings on a reference under this section are adjourned to enable medical or other reports to be obtained or for any other reason.

(15)The regulations may, in particular, provide for the requirement for there to be a second reference not to apply in prescribed circumstances.

(16)This section does not affect any other provision under which the detained person may apply for, or be released on, bail.

45Location of bail hearings

(1)The Secretary of State may, in relation to a particular case or class of case, direct that the hearing of a reference under section 44 is to be at a specified place.

(2)The places that may be specified include, in particular—

(a)any place at which a court sits;

(b)any place at which appeals under this Act are heard;

(c)detention centres;

(d)prisons; or

(e)any particular premises or rooms within a place of a kind mentioned in paragraphs (a) to (d).

(3)A direction under subsection (1) has effect notwithstanding any other direction which may be given as to the place in which the court is to sit.

(4)A direction under subsection (1) requires the approval of the Lord Chancellor.

(5)“Specified” means specified in the direction.

46General right to be released on bail

(1)On a reference under section 44, the court must release the detained person on bail unless—

(a)subsection (2), (3) or (4) applies; or

(b)the court has imposed a requirement under section 47(1) which has not been complied with.

(2)The detained person need not be granted bail if the court is satisfied that there are substantial grounds for believing that if released on bail he would—

(a)fail to comply with one or more of the conditions of bail or of any recognizance or bail bond;

(b)commit an offence while on bail which is punishable with imprisonment;

(c)be likely to cause danger to public health; or

(d)alone or with others, be a serious threat to the maintenance of public order.

(3)The detained person need not be granted bail if the court is satisfied that—

(a)he is or has been knowingly involved with others in a concerted attempt by all or some of them to enter the United Kingdom in breach of immigration law;

(b)he is suffering from mental disorder and his continued detention is necessary in his own interests or for the protection of any other person;

(c)he is under the age of 18 and, while arrangements ought to be made for his care in the event of his release from detention, no satisfactory arrangements have been made;

(d)he is required to submit to an examination by an immigration officer under paragraph 2 or 2A of Schedule 2 to the 1971 Act and there is no relevant decision which the officer is in a position to take; or

(e)directions for his removal from the United Kingdom are in force.

(4)The detained person need not be granted bail if the court is satisfied that he is a person to whom section 3(2) of the [1997 c. 68.] Special Immigration Appeals Commission Act 1997 (national security cases) applies.

(5)For the purposes of this section, the question whether an offence is one which is punishable with imprisonment is to be determined without regard to any enactment prohibiting or restricting the imprisonment of young offenders or first offenders.

(6)“Immigration law” means any provision of the Immigration Acts or any similar provision in force in any part of the British Islands.

(7)Each of the following is a relevant decision—

(a)a decision as to whether, and if so how, to exercise the powers conferred by paragraph 21 of Schedule 2 to the 1971 Act;

(b)a decision as to whether to grant the person concerned leave to enter, or remain in, the United Kingdom;

(c)a decision as to whether to cancel his leave to enter the United Kingdom under paragraph 2A(8) of that Schedule.

(8)The Secretary of State may by order amend subsection (2) or (3) by adding to or restricting the circumstances in which the subsection applies.

(9)If bail is granted under this section, the appropriate court may, on an application by or on behalf of the person released, vary any condition on which it was granted.

(10)If bail is granted under this section, the appropriate court may, on an application by or on behalf of the Secretary of State, vary any condition on which it was granted or impose conditions on it.

(11)“Appropriate court” means—

(a)if the person released has brought an appeal under the Immigration Acts, the court or other appellate body dealing with his appeal;

(b)in any other case, the court which released the person concerned on bail.

47Powers exercisable on granting bail

(1)Before releasing a person on bail under section 46, the court may require—

(a)a recognizance or, in Scotland, a bail bond to be entered into; or

(b)security to be given by the person bailed or on his behalf.

(2)The court may impose a requirement under subsection (1) only if it considers that its imposition is necessary to secure compliance with any condition to which bail granted under section 46 will be subject as a result of subsection (3), (4) or (5).

(3)Bail granted under section 46 by the Commission is subject to a condition requiring the person bailed to appear before it at a specified time and place.

(4)Bail granted under section 46 by a court or other appellate authority (other than the Commission) dealing with an appeal by the person bailed is subject to a condition requiring him—

(a)to appear before the court or authority at a time and place specified by it; and

(b)if the appeal is dismissed, withdrawn or abandoned, to appear before an immigration officer at such time and place as may be notified to him in writing by an immigration officer.

(5)In any other case, bail granted under section 46 is subject to a condition requiring the person bailed to appear before an immigration officer—

(a)at a time and place specified by the court; or

(b)at such other time and place as may be notified to him in writing by an immigration officer.

(6)Bail granted under section 46 may be subject to such other conditions as appear to the court to be likely to result in the appearance of the person bailed at the required time and place.

(7)A recognizance taken under this section may be with or without sureties, as the court may determine.

(8)Subsections (9) and (10) apply if, on a reference under section 44, the court has power to release the detained person on bail but is not required to do so by section 46.

(9)The court may, instead of releasing him—

(a)fix the amount of any recognizance, bail bond or security to be taken on his release on bail (including the amount in which any sureties are to be bound); and

(b)settle the terms of any conditions to be imposed on his release on bail.

(10)The person concerned must be released on bail on the recognizance or bond being taken, or the security being given.

(11)A person released on bail under section 46 is to be subject to such restrictions (if any) as to his employment or occupation while he is in the United Kingdom as may from time to time be notified to him in writing by an immigration officer.

(12)Any restriction imposed on a person under subsection (11) has effect for the purposes of this Part as a condition of his bail.

48Forfeiture

(1)If it appears to a court that a mandatory bail condition has been broken, it may—

(a)by order declare the recognizance to be forfeited; and

(b)order any person bound by the recognizance (whether as principal or surety) to pay the sum in which he is bound or such part of that sum, if any, as the court thinks fit.

(2)“Mandatory bail condition” means a condition—

(a)to which bail granted under section 46 is subject as a result of section 47(3), (4) or (5); and

(b)in relation to which the court has taken a recognizance under section 47.

(3)If the court which makes an order under subsection (1) is not a magistrates' court, it must—

(a)specify a magistrates' court which is, for the purposes of collection, enforcement and remission of the sum forfeited, to be treated as the court which ordered the forfeiture; and

(b)as soon as practicable give particulars of the recognizance to—

(i)in England and Wales, the justices' chief executive appointed by the magistrates' court committee whose area includes the petty sessions area, or

(ii)in Northern Ireland, the clerk of petty sessions for the petty sessions district,

  • for which the specified court acts.

(4)Any sum collected as a result of subsection (3)(a) must be paid to the Lord Chancellor.

(5)The Lord Chancellor may, with the approval of the Treasury, make regulations as to the times at which and the manner in which accounts for, and payments of, sums collected as a result of subsection (3)(a) must be made and for the keeping and auditing of accounts in relation to such sums.

(6)If a person fails to comply with any of the conditions of a bail bond taken by a court under section 47, the court may declare the bail to be forfeited.

(7)Any bail forfeited by a court under subsection (6)—

(a)must be transmitted to the sheriff court having jurisdiction in the area where the proceedings took place; and

(b)is to be treated as having been forfeited by that court.

49Forfeiture of securities

(1)If a court is satisfied that a person (“A”) by whom, or on whose behalf, security has been given under section 47 has broken a mandatory bail condition, it may order the security to be forfeited unless it appears that A had reasonable cause for breaking the condition.

(2)The order may provide for the forfeiture to extend to a specified amount which is less than the value of the security.

(3)An order under subsection (1) takes effect, unless previously revoked, at the end of the period of 21 days beginning with the day on which it is made.

(4)Any sum forfeited as a result of this section must be paid to the Lord Chancellor.

(5)Subsection (6) applies if a court which has made an order under subsection (1) is satisfied, on an application made by or on behalf of the person who gave the security, that A did after all have reasonable cause for breaking the condition.

(6)The court may by order—

(a)remit the forfeiture; or

(b)provide for it to extend to a specified amount which is less than the value of the security.

(7)An application under subsection (5)—

(a)may be made before or after the order for forfeiture has taken effect; but

(b)may not be entertained unless the court is satisfied that the Secretary of State was given reasonable notice of the applicant’s intention to make the application.

(8)The Lord Chancellor may, with the approval of the Treasury, make regulations as to the times at which and the manner in which accounts for, and payments of, sums forfeited as a result of this section must be made and for keeping and auditing of accounts in relation to such sums.

(9)“Mandatory bail condition” means a condition—

(a)to which bail granted under section 46 is subject as a result of section 47(3), (4) or (5); and

(b)in relation to which a person has given security under section 47.

50Power of arrest

(1)An immigration officer or constable who has reasonable grounds for believing that a person released on a reference under section 44 has broken or is likely to break any condition on which he was bailed, may arrest him without a warrant.

(2)Subsection (3) applies if a person other than the person bailed (“a third party”)—

(a)has agreed to act as a surety in relation to a recognizance entered into under section 47; or

(b)has given security on behalf of the person bailed under that section.

(3)If an immigration officer or constable is notified in writing by a third party—

(a)of his belief that a person released on a reference under section 44 is likely to break the condition that he must appear at the time and place required; and

(b)of the third party’s wish, for that reason, to be relieved of his obligations as a surety or to have the security given returned to him,

the officer or constable may arrest the person released without a warrant.

(4)Subsection (5) applies if—

(a)a justice of the peace is, by written information on oath, satisfied that there are reasonable grounds for suspecting that a person liable to be arrested under this section is to be found on any premises;

(b)in Scotland, the sheriff or a justice of the peace is by evidence on oath so satisfied; or

(c)in Northern Ireland, a justice of the peace is by written complaint on oath so satisfied.

(5)The justice of the peace or the sheriff may grant a warrant authorising any immigration officer or constable to enter, if need be by reasonable force, the premises named in the warrant for the purpose of searching for and arresting the person concerned.

(6)A person arrested under this section must, if required by a condition on which he was released to appear before an immigration officer within 24 hours after his arrest, be brought before an immigration officer within that period.

(7)A person arrested under this section must, if he was released under section 46 by the Commission, be brought before it within twenty-four hours after his arrest.

(8)Subsection (9) applies if a person has been arrested under this section and—

(a)neither subsection (6) nor subsection (7) applies to him; or

(b)he has been brought before an immigration officer under subsection (6) but has not been released.

(9)The arrested person must be brought before—

(a)a justice of the peace acting for the petty sessions area in which he was arrested;

(b)in Scotland, an adjudicator or, if that is not practicable within 24 hours after his arrest, the sheriff; or

(c)in Northern Ireland, a magistrates' court acting for the county court division in which he was arrested.

(10)If subsection (9) applies, the arrested person must be brought before the person or court concerned—

(a)as soon as is practicable after his arrest; and

(b)if subsection (9)(a) or (c) applies, in any event within 24 hours after his arrest.

(11)Subsections (12) and (13) apply in relation to an arrested person dealt with under subsection (7) or (9).

(12)The court or person dealing with the matter may, if of the opinion that the arrested person has broken or is likely to break any condition on which he was released—

(a)give a direction that the arrested person be detained under the authority of the person by whom he was arrested;

(b)release him on his original bail; or

(c)release him on a new recognizance (with or without sureties) or on new bail.

(13)If not of that opinion, that court or person must release the arrested person on his original bail.

(14)In reckoning any period of 24 hours for the purposes of this section, no account is to be taken of Christmas Day, Good Friday or any Sunday.

Procedure

51Procedure

(1)Any rules made in connection with bail hearings resulting from any provision of, or made under, this Part must include provision requiring the Secretary of State to notify—

(a)the detained person who is the subject of the hearing of a reference under section 44, and

(b)if the Secretary of State is aware that that person will be represented at the hearing (whether or not by an authorised advocate), the person who will be representing him at the hearing,

of the date, place and time of the hearing as soon as is reasonably practicable after the Secretary of State is given that information by the magistrates' court.

(2)If a person has been refused bail—

(a)on a reference under section 44, or

(b)on an application under the 1971 Act, the [1993 c. 23.] Asylum and Immigration Appeals Act 1993 or the [1997 c. 68.] Special Immigration Appeals Commission Act 1997,

he may, on the first subsequent such reference or application, advance any argument as to fact or law.

(3)But on any subsequent such reference or application the court need not hear any argument as to fact or law that that court has heard previously.

(4)A magistrates' court dealing with a reference under section 44 must sit in open court unless—

(a)the detained person has made a claim for asylum and the court considers that there are compelling reasons why it should sit in private; or

(b)the court considers that the interests of the administration of justice require it to sit in private.

(5)Any proceedings before a magistrates' court or the sheriff under this Part may be conducted—

(a)on behalf of the Secretary of State, by a person authorised by him, or

(b)on behalf of the detained person, by a person nominated by him,

even though that person is not an authorised advocate.

(6)“Authorised advocate”—

(a)in relation to England and Wales, has the meaning given by section 119 of the [1990 c. 41.] Courts and Legal Services Act 1990;

(b)in relation to Scotland, means an advocate or solicitor;

(c)in relation to Northern Ireland, means a barrister or solicitor.

(7)“Rules” means rules made by the Lord Chancellor under section 144 of the [1980 c. 43.] Magistrates' Courts Act 1980 or under any corresponding provision having effect in Northern Ireland.

52Use of live television links at bail hearings

(1)On a reference under section 44, the court may, after hearing representations from the parties, direct that the detained person is to be treated as being present in the court if he is able (whether by means of a live television link or otherwise) to see and hear the court and to be seen and heard by it.

(2)If the detained person wishes to make representations under subsection (1) he must do so by using the facilities that will be used if the court decides to give the proposed direction.

(3)If, after hearing representations from the parties, the court decides not to give a direction, it must give its reasons for refusing.

(4)The court may not give a direction unless—

(a)it has been notified by the Secretary of State that facilities are available in the relevant institution which will enable the detained person to see and hear the court and to be seen and heard by it; and

(b)the notice has not been withdrawn.

(5)“Relevant institution” means the institution in which the detained person will be detained at the time of the bail hearing.

Bail hearings under other enactments

53Applications for bail in immigration cases

(1)The Secretary of State may by regulations make new provision in relation to applications for bail by persons detained under the 1971 Act.

(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;

(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 this Act or the [1997 c. 68.] Special Immigration Appeals Commission Act 1997 is heard by the appellate authority hearing that appeal.

(5)When exercising his power under subsection (1), the Secretary of State must have regard to the desirability, in relation to applications for bail by persons detained under the 1971 Act, of making provision similar to that which is made by this Part in relation to references to the court under section 44.

(6)Regulations under this section require the approval of the Lord Chancellor.

(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.

54Extension of right to apply for bail in deportation cases

(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.

Grants

55Grants to voluntary organisations

(1)The Secretary of State may, with the approval of the Treasury, make grants to any voluntary organisation which provides advice or assistance for detained persons in connection with proceedings under this Part.

(2)Grants may be made on such terms, and subject to such conditions, as the Secretary of State may determine.

Part IVAppeals

The appellate authorities

56The Immigration Appeal Tribunal

(1)There is to continue to be an Immigration Appeal Tribunal.

(2)Schedule 2 makes further provision about the Tribunal.

57Adjudicators

(1)There are to be such number of adjudicators for the purposes of this Act as the Lord Chancellor may determine.

(2)The Lord Chancellor must appoint one of the adjudicators as Chief Adjudicator.

(3)Schedule 3 makes further provision about the adjudicators.

Appeals

58General

(1)The right of appeal given by a particular provision of this Part is to be read with any other provision of this Part which restricts or otherwise affects that right.

(2)Part I of Schedule 4 makes provision with respect to the procedure applicable in relation to appeals under this Part.

(3)Part II of Schedule 4 makes provision as to the effect of appeals.

(4)Part III of Schedule 4 makes provision—

(a)with respect to the determination of appeals under this Part; and

(b)for further appeals.

(5)For the purposes of the Immigration Acts, an appeal under this Part is to be treated as pending during the period beginning when notice of appeal is given and ending when the appeal is finally determined, withdrawn or abandoned.

(6)An appeal is not to be treated as finally determined while a further appeal may be brought.

(7)If such a further appeal is brought, the original appeal is not to be treated as finally determined until the further appeal is determined, withdrawn or abandoned.

(8)A pending appeal under this Part is to be treated as abandoned if the appellant leaves the United Kingdom.

(9)A pending appeal under any provision of this Part other than section 69(3) is to be treated as abandoned if the appellant is granted leave to enter or remain in the United Kingdom.

(10)A pending appeal under section 61 is to be treated as abandoned if a deportation order is made against the appellant.

Leave to enter

59Leave to enter the United Kingdom

(1)A person who is refused leave to enter the United Kingdom under any provision of the 1971 Act may appeal to an adjudicator against—

(a)the decision that he requires leave; or

(b)the refusal.

(2)A person who, on an application duly made, is refused a certificate of entitlement or an entry clearance may appeal to an adjudicator against the refusal.

(3)Subsection (4) applies if a person appeals under this section on being refused leave to enter the United Kingdom and—

(a)before he appeals, directions have been given for his removal from the United Kingdom; or

(b)before or after he appeals, the Secretary of State or an immigration officer serves on him notice that any directions which may be given for his removal as a result of the refusal will be for his removal to a country or one of several countries specified in the notice.

(4)The appellant may—

(a)object to the country to which he would be removed in accordance with the directions, or

(b)object to the country specified in the notice (or to one or more of those specified),

and claim that he ought to be removed (if at all) to a different country specified by him.

60Limitations on rights of appeal under section 59

(1)Section 59 does not entitle a person to appeal, on the ground that he has a right of abode in the United Kingdom, against a decision that he requires leave to enter the United Kingdom if he does not hold—

(a)a United Kingdom passport describing him as a British citizen or as a citizen of the United Kingdom and Colonies having the right of abode in the United Kingdom; or

(b)a certificate of entitlement.

(2)Section 59 does not entitle a person to appeal, on the ground that he does not require leave to enter the United Kingdom, against a decision that he does require such leave if he is required by immigration rules or an order under section 8(2) of the 1971 Act to hold a specified document but does not do so.

(3)Section 59 does not entitle a person to appeal against a refusal of leave to enter while he is in the United Kingdom unless, at the time of the refusal, he held a current entry clearance or was a person named in a current work permit.

(4)Subsection (5) applies to a person who seeks to enter the United Kingdom—

(a)as a visitor;

(b)in order to follow a course of study of not more than six months' duration for which he has been accepted;

(c)with the intention of studying but without having been accepted for any course of study; or

(d)as a dependant of a person within paragraph (a), (b) or (c).

(5)That person—

(a)is not entitled to appeal under section 59 against a refusal of an entry clearance unless he is a family visitor; and

(b)is not entitled to appeal against a refusal of leave to enter if he does not hold a current entry clearance at the time of the refusal.

(6)The Secretary of State may by regulations make provision—

(a)requiring a family visitor appealing under section 59 to pay such fee as may be fixed by the regulations;

(b)for such an appeal not to be entertained unless the required fee has been paid by the appellant;

(c)for the repayment of any such fee if the appeal is successful.

(7)Section 59 does not entitle a person to appeal against a refusal of leave to enter, or against a refusal of an entry clearance, if the refusal is on the ground that he or any person whose dependant he is—

(a)does not hold a relevant document required by the immigration rules;

(b)does not satisfy a requirement of the immigration rules as to age or nationality or citizenship; or

(c)seeks entry for a period exceeding that permitted by the immigration rules.

(8)The following are relevant documents—

(a)entry clearances;

(b)passports or other identity documents; and

(c)work permits.

(9)Section 59 does not entitle a person to appeal against a refusal of leave to enter, or against a refusal of an entry clearance, if—

(a)the Secretary of State certifies that directions have been given by the Secretary of State (and not by a person acting under his authority) for the appellant not to be given entry to the United Kingdom on the ground that his exclusion is conducive to the public good; or

(b)the leave to enter, or entry clearance, was refused in compliance with any such directions.

(10)“Family visitor” has such meaning as may be prescribed.

Variation of limited leave to enter or remain

61Variation of limited leave to enter or remain

A person may appeal against a decision to vary, or to refuse to vary, any limited leave to enter or remain in the United Kingdom which he has if, as a result of that decision, he may be required to leave the United Kingdom within 28 days of being notified of the decision.

62Limitations on rights of appeal under section 61

(1)Section 61 does not entitle a person or a person whose dependant he is to appeal against a refusal to vary leave if the refusal is on the ground that—

(a)a relevant document which is required by the immigration rules has not been issued;

(b)the person does not satisfy a requirement of the immigration rules as to age or nationality or citizenship;

(c)the variation would result in the duration of a person’s leave exceeding that permitted by the immigration rules; or

(d)any fee required by or under any enactment has not been paid.

(2)The following are relevant documents—

(a)entry clearances;

(b)passports or other identity documents; and

(c)work permits or equivalent documents issued after entry.

(3)Section 61 does not entitle a person to appeal against a refusal to vary leave if either of the following conditions is satisfied.

(4)The conditions are—

(a)that the Secretary of State has certified that the appellant’s departure from the United Kingdom would be conducive to the public good as being in the interests of national security, the relations between the United Kingdom and any other country or for other reasons of a political nature; or

(b)that the decision questioned by the appeal was taken on that ground by the Secretary of State (and not by a person acting under his authority).

(5)A person is not entitled to appeal under section 61 against—

(a)a variation made by statutory instrument; or

(b)a refusal of the Secretary of State to make a statutory instrument.

Deportation

63Deportation orders

(1)A person may appeal to an adjudicator against—

(a)a decision of the Secretary of State to make a deportation order against him under section 5(1) of the 1971 Act as a result of his liability to deportation under section 3(5) of that Act; or

(b)a refusal by the Secretary of State to revoke a deportation order made against him.

(2)A deportation order is not to be made against a person under section 5(1) of the 1971 Act while an appeal may be brought against the decision to make it.

(3)Subsection (4) applies if—

(a)a person appeals under this section; and

(b)before or after he appeals, the Secretary of State serves on him notice that any directions which may be given for his removal as a result of the deportation order will be for his removal to a country or one of several countries specified in the notice.

(4)The appellant may object to the country specified in the notice (or to one or more of those specified), and claim that he ought to be removed (if at all) to a different country specified by him.

64Limitations on rights of appeal under section 63

(1)Section 63 does not entitle a person to appeal against a decision to make a deportation order against him if the ground of the decision was that his deportation is conducive to the public good as being in the interests of national security or of the relations between the United Kingdom and any other country or for other reasons of a political nature.

(2)Section 63 does not entitle a person to appeal against a refusal to revoke a deportation order, if—

(a)the Secretary of State has certified that the appellant’s exclusion from the United Kingdom would be conducive to the public good; or

(b)revocation was refused on that ground by the Secretary of State (and not by a person acting under his authority).

(3)Section 63 does not entitle a person to appeal against a refusal to revoke a deportation order while he is in the United Kingdom, whether because he has not complied with the requirement to leave or because he has contravened the prohibition on entering.

(4)Subsection (5) applies to—

(a)an appeal against a decision to make a deportation order against a person as belonging to the family of another person; or

(b)an appeal against a refusal to revoke a deportation order so made.

(5)The appellant is not to be allowed, for the purpose of showing that he does not or did not belong to another person’s family, to dispute any statement made with a view to obtaining leave for the appellant to enter or remain in the United Kingdom (including any statement made to obtain an entry clearance).

(6)But subsection (5) does not apply if the appellant shows—

(a)that the statement was not so made by him or by any person acting with his authority; and

(b)that, when he took the benefit of the leave, he did not know any such statement had been made to obtain it or, if he did know, he was under the age of eighteen.

Human rights

65Acts made unlawful by section 6(1) of the Human Rights Act 1998

(1)A person who alleges that an authority has, in taking any decision under the Immigration Acts relating to that person’s entitlement to enter or remain in the United Kingdom, acted in breach of his human rights may appeal to an adjudicator against that decision unless he has grounds for bringing an appeal against the decision under the [1997 c. 68.] Special Immigration Appeals Commission Act 1997.

(2)For the purposes of this Part, an authority acts in breach of a person’s human rights if he acts, or fails to act, in relation to that other person in a way which is made unlawful by section 6(1) of the [1998 c. 42.] Human Rights Act 1998.

(3)Subsections (4) and (5) apply if, in proceedings before an adjudicator or the Immigration Appeal Tribunal on an appeal, a question arises as to whether an authority has, in taking any decision under the Immigration Acts relating to the appellant’s entitlement to enter or remain in the United Kingdom, acted in breach of the appellant’s human rights.

(4)The adjudicator, or the Tribunal, has jurisdiction to consider the question.

(5)If the adjudicator, or the Tribunal, decides that the authority concerned acted in breach of the appellant’s human rights, the appeal may be allowed on that ground.

(6)No appeal may be brought under this section by any person in respect of a decision if—

(a)that decision is already the subject of an appeal brought by him under the Special Immigration Appeals Commission Act 1997; and

(b)the appeal under that Act has not been determined.

(7)“Authority” means—

(a)the Secretary of State;

(b)an immigration officer;

(c)a person responsible for the grant or refusal of entry clearance.

Directions for removal

66Validity of directions for removal

(1)This section applies if directions are given for a person’s removal from the United Kingdom—

(a)on the ground that he is an illegal entrant;

(b)under section 10; or

(c)under the special powers conferred by Schedule 2 to the 1971 Act in relation to members of the crew of a ship or aircraft or persons coming to the United Kingdom to join a ship or aircraft as a member of the crew.

(2)That person may appeal to an adjudicator against the directions on the ground that on the facts of his case there was in law no power to give them on the ground on which they were given.

(3)This section does not entitle a person to appeal while he is in the United Kingdom unless he is appealing under section 65 or 69(5).

(4)If a person appeals under this section against directions given by virtue of a deportation order, he may not dispute the original validity of that order.

Objection to destination

67Removal on objection to destination

(1)This section applies if directions are given under the 1971 Act for a person’s removal from the United Kingdom—

(a)on his being refused leave to enter,

(b)on a deportation order being made against him, or

(c)on his having entered the United Kingdom in breach of a deportation order.

(2)That person may appeal to an adjudicator against the directions on the ground that he ought to be removed (if at all) to a different country specified by him.

68Limitations on rights of appeal under section 67

(1)Section 67 does not entitle a person to appeal against directions given on his being refused leave to enter the United Kingdom unless—

(a)he is also appealing under section 59(1) against the decision that he requires leave to enter; or

(b)he was refused leave at a time when he held a current entry clearance or was a person named in a current work permit.

(2)If a person is entitled to object to a country on an appeal under section 59 or 63 and—

(a)he does not object to it on that appeal, or

(b)his objection to it on that appeal is not sustained,

section 67 does not entitle him to appeal against any directions subsequently given as a result of the refusal or order in question, if their effect will be his removal to that country.

(3)A person who claims that he ought to be removed to a country other than one he has objected to on an appeal under section 59, 63 or 67 must produce evidence, if he is not a national or citizen of that other country, that that country will admit him.

Asylum

69Claims for asylum

(1)A person who is refused leave to enter the United Kingdom under the 1971 Act may appeal against the refusal to an adjudicator on the ground that his removal in consequence of the refusal would be contrary to the Convention.

(2)If, as a result of a decision to vary, or to refuse to vary, a person’s limited leave to enter or remain in the United Kingdom, he may be required to leave the United Kingdom within 28 days of being notified of the decision, he may appeal against the decision to an adjudicator on the ground that such a requirement would be contrary to the Convention.

(3)A person who—

(a)has been refused leave to enter or remain in the United Kingdom on the basis of a claim for asylum made by him, but

(b)has been granted (whether before or after the decision to refuse leave) limited leave to enter or remain,

may, if that limited leave will not expire within 28 days of his being notified of the decision, appeal to an adjudicator against the refusal on the ground that requiring him to leave the United Kingdom after the time limited by that leave would be contrary to the Convention.

(4)If the Secretary of State—

(a)has decided to make a deportation order against a person under section 5(1) of the 1971 Act, or

(b)has refused to revoke such an order,

that person may appeal to an adjudicator against the decision or refusal on the ground that his removal in pursuance of the order would be contrary to the Convention.

(5)If directions are given as mentioned in section 66(1) for the removal of a person from the United Kingdom, he may appeal to an adjudicator on the ground that his removal in pursuance of the directions would be contrary to the Convention.

(6)“Contrary to the Convention” means contrary to the United Kingdom’s obligations under the Refugee Convention.

70Limitations on rights of appeal under section 69

(1)Section 69(1) does not entitle a person to appeal against a refusal of leave to enter if—

(a)the Secretary of State certifies that directions have been given by the Secretary of State (and not by a person acting under his authority) for the appellant not to be given entry to the United Kingdom on the ground that his exclusion is in the interests of national security; or

(b)the leave to enter was refused in compliance with any such directions.

(2)Section 69(2) does not entitle a person to appeal against—

(a)a variation of his leave which reduces its duration, or

(b)a refusal to enlarge or remove the limit on its duration,

if either of the following conditions is satisfied.

(3)The conditions are—

(a)that the Secretary of State has certified that the appellant’s departure from the United Kingdom would be in the interests of national security; or

(b)that the decision questioned by the appeal was taken on that ground by the Secretary of State (and not by a person acting under his authority).

(4)Section 69(3) does not entitle a person to appeal against a refusal mentioned in paragraph (a) of that subsection if—

(a)the reason for the refusal was that he was a person to whom the Refugee Convention did not apply by reason of Article 1(F) of that Convention; and

(b)the Secretary of State has certified that the disclosure of material on which the refusal was based is not in the interests of national security.

(5)Section 69(4)(a) does not entitle a person to appeal against a decision to make a deportation order against him if the ground of the decision was that his deportation is in the interests of national security.

(6)Section 69(4)(b) does not entitle a person to appeal against a refusal to revoke a deportation order, if—

(a)the Secretary of State has certified that the appellant’s exclusion from the United Kingdom would be in the interests of national security; or

(b)if revocation was refused on that ground by the Secretary of State (and not by a person acting under his authority).

(7)A person may not bring an appeal on any of the grounds mentioned in subsections (1) to (5) of section 69—

(a)if, before the time of the refusal, variation, decision or directions (as the case may be) he has not made a claim for asylum;

(b)otherwise than under that section.

(8)A person may not appeal under section 69(4)(b) if he has had the right to appeal under section 69(4)(a) (whether or not he has exercised it).

Removal to safe countries

71Removal of asylum claimants to safe third countries

(1)This section applies if a certificate has been issued under section 11 or 12.

(2)The person in respect of whom the certificate was issued may appeal against it to an adjudicator on the ground that any of the conditions applicable to that certificate was not satisfied when it was issued, or has since ceased to be satisfied.

Miscellaneous

72Miscellaneous limitations on rights of appeal

(1)Unless a certificate issued under section 11 or 12 has been set aside on an appeal under section 65 or 71 or otherwise ceases to have effect, the person in respect of whom the certificate was issued is not entitled to appeal under this Act as respects any matter arising before his removal from the United Kingdom.

(2)A person who has been, or is to be, sent to a member State or to a country designated under section 12(1)(b) is not, while he is in the United Kingdom, entitled to appeal—

(a)under section 65 if the Secretary of State certifies that his allegation that a person acted in breach of his human rights is manifestly unfounded; or

(b)under section 71.

(3)No appeal under this Part may be made in relation to a decision made on an application if—

(a)the application was required to be made in a prescribed form but was not made in that form; or

(b)the applicant was required to take prescribed steps in relation to the application, or to take such steps at a prescribed time or within a prescribed period, but failed to do so.

73Limitation on further appeals

(1)This section applies where a person (“the appellant”) has appealed under the [1997 c. 68.] Special Immigration Appeals Commission Act 1997 or this Act and that appeal (“the original appeal”) has been finally determined.

(2)If the appellant serves a notice of appeal making a claim that a decision of a decision-maker was in breach of the appellant’s human rights, the Secretary of State may certify that in his opinion—

(a)the appellant’s claim—

(i)could reasonably have been included in a statement required from him under section 74 but was not so included, or

(ii)could reasonably have been made in the original appeal but was not so made;

(b)one purpose of such a claim would be to delay the removal from the United Kingdom of the appellant or of any member of his family; and

(c)the appellant had no other legitimate purpose for making the claim.

(3)On the issuing of a certificate by the Secretary of State under subsection (2), the appeal, so far as relating to that claim, is to be treated as finally determined.

(4)Subsection (5) applies if a notice under section 74 was served on the appellant before the determination of his original appeal and the appellant has served a further notice of appeal.

(5)The Secretary of State may certify that grounds contained in the notice of appeal were considered in the original appeal.

(6)On the issuing of a certificate by the Secretary of State under subsection (5), the appeal, so far as relating to those grounds, is to be treated as finally determined.

(7)Subsection (8) applies if, on the application of the appellant, an immigration officer or the Secretary of State makes a decision in relation to the appellant.

(8)The immigration officer or, as the case may be, the Secretary of State may certify that in his opinion—

(a)one purpose of making the application was to delay the removal from the United Kingdom of the appellant or any member of his family; and

(b)the appellant had no other legitimate purpose for making the application.

(9)No appeal may be brought under the [1997 c. 68.] Special Immigration Appeals Commission Act 1997 or this Act against a decision on an application in respect of which a certificate has been issued under subsection (8).

(10)Nothing in section 58(6) affects the operation of subsections (3) and (6).

“One-stop procedure”

74Duty to disclose grounds for appeal etc

(1)This section applies if—

(a)the decision on an application for leave to enter or remain in the United Kingdom is that the application be refused; and

(b)the applicant, while he is in the United Kingdom, is entitled to appeal against the refusal under the Special Immigration Appeals Commission Act 1997 or this Act.

(2)This section also applies if—

(a)as a result of a decision to vary, or to refuse to vary, any limited leave to enter or remain in the United Kingdom which a person has, he may be required to leave the United Kingdom within 28 days of being notified of the decision; and

(b)that person is entitled to appeal against the decision under the Special Immigration Appeals Commission Act 1997 or this Act.

(3)This section also applies if—

(a)the Secretary of State has decided to make a deportation order against a person under section 5(1) of the 1971 Act as a result of his liability to deportation under section 3(5) of that Act; and

(b)that person, while he is in the United Kingdom, is entitled to appeal against that decision under the Special Immigration Appeals Commission Act 1997 or this Act.

(4)The decision-maker must serve on the applicant and on any relevant member of his family a notice requiring the recipient of the notice to state any additional grounds which he has or may have for wishing to enter or remain in the United Kingdom.

(5)“Decision-maker” means the Secretary of State or (as the case may be) an immigration officer.

(6)The statement must be—

(a)in writing; and

(b)served on the Secretary of State before the end of such period as may be prescribed.

(7)A statement required under this section must—

(a)if the person making it wishes to claim asylum, include a claim for asylum; and

(b)if he claims that an act breached his human rights, include notice of that claim.

(8)Regulations may prescribe the persons who, in relation to an applicant, are relevant members of his family.

(9)Regulations may prescribe the procedure to be followed in connection with notices given and statements made in accordance with this section and, in particular, may prescribe the form in which such notices and statements are to be given or made.

75Duty to disclose grounds for entering etc. the United Kingdom

(1)This section applies if a person who—

(a)is an illegal entrant,

(b)is liable to be removed under section 10, or

(c)has arrived in the United Kingdom without—

(i)leave to enter;

(ii)an entry clearance; or

(iii)a current work permit in which he is named,

makes a claim for asylum or a claim that it would be contrary to the United Kingdom’s obligations under the Human Rights Convention for him to be removed from, or required to leave, the United Kingdom.

(2)The person responsible for the determination of the claim must serve on the claimant and on any relevant member of his family a notice requiring the recipient of the notice to state any additional grounds which he has or may have for wishing to enter or remain in the United Kingdom.

(3)The statement must be—

(a)in writing; and

(b)served on the person who is responsible for the determination of the claim before the end of such period as may be prescribed.

(4)Regulations may prescribe the procedure to be followed in connection with notices given and statements made in accordance with this section and, in particular, may prescribe the form in which such notices and statements are to be given or made.

(5)Regulations may prescribe the persons who, in relation to a claimant, are relevant members of his family.

(6)Regulations may provide that, if a claim is determined against the claimant, prescribed provisions of section 73, 76, or 77 are to apply to an appeal against that determination by a person on whom a notice has been served under subsection (2), with such modifications (if any) as may be prescribed.

76Result of failure to comply with section 74

(1)In this section—

(a)“the applicant” means the person on whom a notice has been served under section 74(4);

(b)“notice” means a notice served under that section; and

(c)“statement” means the statement which the notice requires the applicant to make to the Secretary of State.

(2)If the applicant’s statement does not mention a particular ground—

(a)on which he wishes to enter or remain in the United Kingdom, and

(b)of which he is aware at the material time,

he may not rely on that ground in any appeal under the [1997 c. 68.] Special Immigration Appeals Commission Act 1997 or this Part.

(3)Subsection (2) does not apply if—

(a)the ground is a claim for asylum or a claim that an act breached the applicant’s human rights; or

(b)the Secretary of State considers that the applicant had a reasonable excuse for the omission.

(4)Subsection (5) applies if the applicant’s statement does not include a claim for asylum.

(5)If the applicant claims asylum after the end of the period prescribed under section 74(6)(b), no appeal may be made under section 69 if the Secretary of State has certified that in his opinion —

(a)one purpose of making the claim for asylum was to delay the removal from the United Kingdom of the applicant or of any member of his family; and

(b)the applicant had no other legitimate purpose for making the application.

(6)“Member of the family” has such meaning as may be prescribed.

77“One-stop” appeals

(1)This section applies in relation to—

(a)an appeal brought on any of the grounds mentioned in section 69;

(b)any other appeal against a decision—

(i)to refuse an application for leave to enter or remain in the United Kingdom;

(ii)to vary, or to refuse to vary, any limited leave to enter or remain in the United Kingdom, which has the result mentioned in section 74(2)(a); or

(iii)to make a deportation order against a person under section 5(1) of the 1971 Act as a result of his liability to deportation under section 3(5) of that Act.

(2)Subject to section 72(2), the appellant is to be treated as also appealing on any additional grounds—

(a)which he may have for appealing against the refusal, variation, decision or directions in question under any other provision of this Act; and

(b)which he is not prevented (by any provision of section 76) from relying on.

(3)In considering—

(a)any ground mentioned in section 69, or

(b)any question relating to the appellant’s rights under Article 3 of the Human Rights Convention,

the appellate authority may take into account any evidence which it considers to be relevant to the appeal (including evidence about matters arising after the date on which the decision appealed against was taken).

(4)In considering any other ground, the appellate authority may take into account only evidence—

(a)which was available to the Secretary of State at the time when the decision appealed against was taken; or

(b)which relates to relevant facts as at that date.

(5)“Additional grounds”, in relation to an appeal, means any grounds specified in a statement made to the Secretary of State under section 74(4) other than those on which the appeal has been brought.

(6)“Appellate authority” means an adjudicator, the Tribunal or the Special Immigration Appeals Commission.

78Transfer of appellate proceedings

(1)Subsection (3) applies if—

(a)a person who has brought an appeal under this Part has been notified of the Secretary of State’s decision to make a deportation order against him; and

(b)as a result of section 64(1), he is not entitled to appeal against that decision under section 63.

(2)Subsection (3) also applies if—

(a)a person who has brought an appeal under this Part has been notified of the Secretary of State’s decision to refuse to revoke a deportation order made against him; and

(b)as a result of section 64(2), he is not entitled to appeal against that refusal under section 63.

(3)If he appeals against that decision under section 2(1) or 2A of the [1997 c. 68.] Special Immigration Appeals Commission Act 1997, any appeal under this Part is transferred to, and must be heard by, the Commission.

(4)Subsection (5) applies if a person, in a statement required by a notice under section 74 or 75, states an additional ground which relates to a matter which may be the subject of an appeal under section 2(1) or 2A of the Special Immigration Appeals Commission Act 1997.

(5)The appeal under this Part is transferred to, and must be heard by, the Commission.

Appeals without merit

79Penalty on continuing an appeal without merit

(1)If, at any time before it determines an appeal, the Immigration Appeal Tribunal considers that the appeal has no merit it may notify the appellant of its opinion.

(2)A notice under subsection (1) must—

(a)include an explanation of the Tribunal’s powers under this section; and

(b)be made in such form as may be required by rules made under paragraph 3 of Schedule 4.

(3)Subsection (1) does not apply if leave for appeal to the Tribunal was required.

(4)Subsection (5) applies if an appeal which has been continued by the appellant after he has been given a notice under subsection (1) is dismissed.

(5)The Tribunal may impose on the appellant, or on his representative, a penalty of the specified amount.

(6)“Specified” means specified by an order made by the Lord Chancellor.

(7)The Lord Chancellor may by order make such provision as he considers appropriate as to—

(a)the enforcement in England and Wales and Northern Ireland, and

(b)the payment and application,

of penalties imposed under this section.

(8)Such an order may, in particular, make provision similar to that made by sections 129 and 130 of the [1984 c. 28.] County Courts Act 1984.

(9)An order imposing a penalty under subsection (5) may be enforced 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.

EEA nationals

80EEA nationals

(1)The Secretary of State may by regulations make provision for appeals against any immigration decision in relation to—

(a)an EEA national;

(b)a member of the family of an EEA national;

(c)a member of the family of a United Kingdom national who is neither such a national nor an EEA national.

(2)“Immigration decision” means a decision concerning a person’s removal from the United Kingdom or his entitlement—

(a)to be admitted to the United Kingdom;

(b)to reside, or to continue to reside, in the United Kingdom; or

(c)to be issued with, or not to have withdrawn, a residence permit.

(3)The regulations may also make provision for appeals against any decision concerning the matters mentioned in subsection (1) taken in relation to a citizen of any other State on whom any such entitlement has been conferred by an agreement to which the United Kingdom is a party or by which it is bound.

(4)An appeal under the regulations lies to an adjudicator or, in such circumstances as may be prescribed, to the Commission.

(5)The regulations may provide for appeals from the adjudicator or the Commission.

(6)The regulations may prescribe cases, or classes of case, in which a person is not entitled to appeal while he is in the United Kingdom.

(7)The regulations may make provision under which an appellant may be required to state, in such manner as may be prescribed, any grounds he has or may have for wishing to be admitted to, or to remain in, the United Kingdom additional to those on which he is appealing and for the consequences of such a requirement.

(8)The regulations may—

(a)amend sections 2 and 2A of the [1997 c. 68.] Special Immigration Appeals Commission Act 1997 (appellate jurisdiction of the Commission);

(b)amend or revoke the [S.I. 1994/1895] Immigration (European Economic Area) Order 1994.

(9)Part IV has effect subject to any regulations made under this section.

(10)“EEA national” means a person who is, or claims to be, a national of an EEA State (other than the United Kingdom).

(11)“United Kingdom national” means a person who falls to be treated as a national of the United Kingdom for the purposes of the Community Treaties.

(12)If a person claims to be an EEA national, he may not appeal under the regulations unless he produces—

(a)a valid national identity card, or

(b)a valid passport,

issued by an EEA State other than the United Kingdom.

(13)For the purposes of subsection (12), a document—

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

(b)is to be regarded as relating to the person producing it unless it is reasonably apparent that it relates to another person.

(14)The regulations may—

(a)prescribe the persons who, for the purposes of this section, are the members of a person’s family; and

(b)make provision as to the manner in which membership of a person’s family is to be established.

(15)“Residence permit” means any permit or other document issued by the Secretary of State as proof of the holder’s right of residence in the United Kingdom.

Grants

81Grants to voluntary organisations

(1)The Secretary of State may, with the approval of the Treasury, make grants to any voluntary organisation which provides advice or assistance for, or other services for the welfare of, persons who have rights of appeal under this Act.

(2)Grants may be made on such terms, and subject to such conditions, as the Secretary of State may determine.

Part VImmigration Advisers and Immigration Service Providers

Interpretation

82Interpretation of Part V

(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 [1990 c. 41.] Courts and Legal Services Act 1990;

  • “designated professional body” has the meaning given by section 86;

  • “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 [1975 c. 26.] Crown 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;

    (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 Community law;

    (g)

    residence in a Member State in accordance with rights conferred by or under Community law;

    (h)

    removal or deportation from the United Kingdom;

    (i)

    an application for bail under the Immigration Acts or under the [1997 c. 68.] Special 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); and

  • “the Tribunal” means the Immigration Services Tribunal.

(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.

The Immigration Services Commissioner

83The Commissioner

(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 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.

(7)Part II of Schedule 5 makes further provision with respect to the Commissioner.

The general prohibition

84Provision of immigration services

(1)No person may provide immigration advice or immigration services unless he is a qualified person.

(2)A person is a qualified person if—

(a)he is registered with the Commissioner or is employed by, or works under the supervision of, such a person;

(b)he is a member or employee of a body which is a registered person, or works under the supervision of such a member or employee;

(c)he is authorised by a designated professional body to practise as a member of the profession whose members are regulated by that body, or works under the supervision of such a person;

(d)he is registered with, or authorised by, a person in another EEA State responsible for regulating the provision in that EEA State of advice or services corresponding to immigration advice or immigration services or would be required to be so registered or authorised were he not exempt from such a requirement;

(e)he is authorised by a body regulating the legal profession, or any branch of it, in another EEA State to practise as a member of that profession or branch; or

(f)he is employed by a person who falls within paragraph (d) or (e) or works under the supervision of such a person or of an employee of such a person.

(3)If a registered person’s registration has limited effect (by virtue of paragraph 2(2) of Schedule 6), neither paragraph (a) nor (b) of subsection (2) authorises the provision of advice or services falling outside the scope of that registration.

(4)Subsection (1) does not apply to a person who—

(a)is certified by the Commissioner as exempt (“an exempt person”);

(b)is employed by an exempt person;

(c)works under the supervision of an exempt person or an employee of an exempt person; or

(d)who falls within a category of person specified in an order made by the Secretary of State for the purposes of this subsection.

(5)A certificate under subsection (4)(a) may relate only to a specified description of immigration advice or immigration services.

(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.

(7)An exemption given under subsection (4) may be withdrawn by the Commissioner.

85Registration and exemption by the Commissioner

(1)The Commissioner must prepare and maintain a register for the purposes of section 84(2)(a) and (b).

(2)The Commissioner must keep a record of the persons to whom he has issued a certificate of exemption under section 84(4)(a).

(3)Schedule 6 makes further provision with respect to registration.

86Designated professional bodies

(1)“Designated professional body” means—

(a)The Law Society;

(b)The Law Society of Scotland;

(c)The Law Society of Northern Ireland;

(d)The Institute of Legal Executives;

(e)The General Council of the Bar;

(f)The Faculty of Advocates; or

(g)The General Council of the Bar of Northern Ireland.

(2)If the Secretary of State considers that a designated professional body has consistently failed to provide effective regulation of its members in their provision of immigration advice or immigration services, he may by order amend subsection (1) to remove the name of that body.

(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;

(b)consult the Legal Services Ombudsman, if the proposed order would affect a designated professional body in England and Wales;

(c)consult the Scottish Legal Services Ombudsman, if the proposed order would affect a designated professional body in Scotland;

(d)consult the lay observers appointed under Article 42 of the [S.I. 1976/582 (N.I. 12).] Solicitors (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 Lord Chancellor, if it affects a designated professional body in England and Wales or Northern Ireland;

(b)the Scottish Ministers, if it affects a designated professional body in Scotland.

(6)Before deciding whether or not to give his approval under subsection (5)(a), the Lord Chancellor must consult—

(a)the designated judges, if the order affects a designated professional body in England and Wales;

(b)the Lord Chief Justice of Northern Ireland, if it affects a designated professional body in 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 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

(b)report to the Secretary of State if he considers that a designated professional body is failing to provide effective regulation of its members in their provision of immigration advice or immigration services.

(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.

The Immigration Services Tribunal

87The Tribunal

(1)There is to be a tribunal known as the Immigration Services Tribunal (referred to in this Part as “the Tribunal”).

(2)Any person aggrieved by a relevant decision of the Commissioner may appeal to the Tribunal against the decision.

(3)“Relevant decision” means a decision—

(a)to refuse an application for registration made under paragraph 1 of Schedule 6;

(b)to withdraw an exemption given under section 84(4)(a);

(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; or

(f)which is recorded under paragraph 9(1)(a) of Schedule 5.

(4)The Tribunal is also to have the function of hearing disciplinary charges laid by the Commissioner under paragraph 9(1)(e) of Schedule 5.

(5)Schedule 7 makes further provision with respect to the Tribunal and its constitution and functions.

88Appeal upheld by the Tribunal

(1)This section applies if the Tribunal allows an appeal under section 87.

(2)If the 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;

(c)to restore an exemption granted under section 84(4)(a); or

(d)to quash a decision recorded under paragraph 9(1)(a) of Schedule 5 and the record of that decision.

89Disciplinary charge upheld by the Tribunal

(1)This section applies if the Tribunal upholds a disciplinary charge laid by the Commissioner under paragraph 9(1)(e) of Schedule 5 against a person (“the person charged”).

(2)Subsection (3) applies if the person charged is—

(a)a registered person;

(b)a person employed by, or working under the supervision of, a registered person;

(c)a member or employee of a body which is a registered person; or

(d)a person working under the supervision of such a member or employee.

(3)The Tribunal may—

(a)direct the Commissioner to record the charge and the Tribunal’s decision on it for consideration when the registered person next applies for continued registration; or

(b)direct the registered person to apply to the Commissioner for continued registration without delay.

(4)If the person charged is certified by the Commissioner as exempt under section 84(4)(a), the Tribunal may direct the Commissioner to consider whether to withdraw his exemption.

(5)If the person charged is found to have charged unreasonable fees for immigration advice or immigration services, the Tribunal may direct him to repay to the clients concerned such portion of those fees as it may determine.

(6)The 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 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; 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 Tribunal may direct that the person charged or any person employed by him or working under his supervision is to be—

(a)subject to such restrictions on the provision of immigration advice or immigration services as the Tribunal considers appropriate;

(b)suspended from providing immigration advice or immigration services for such period as the 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 Tribunal under subsection (8).

90Orders by disciplinary bodies

(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—

(a)appearing to the Secretary of State to be established for the purpose of hearing disciplinary charges against members of a designated professional body; and

(b)specified in an order made by the Secretary of State.

(3)The Secretary of State must consult the designated professional body 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 works under the supervision of an authorised person.

(5)“Authorised person” means 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.

Enforcement

91Offences

(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 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.

92Enforcement

(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 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.

Miscellaneous

93Information

(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 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 Community 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.

Part VISupport for Asylum-Seekers

Interpretation

94Interpretation of Part VI

(1)In this Part—

  • “adjudicator” has the meaning given in section 102(2);

  • “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 [1994 c. 39.] Local Government etc. (Scotland) Act 1994;

  • “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 [1997 c. 68.] Special 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.

Provision of support

95Persons for whom support may be provided

(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.

(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.

96Ways in which support may be provided

(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)Unless the circumstances of a particular case are exceptional, support provided by the Secretary of State under subsection (1)(a) or (b) or (2) must not be wholly or mainly by way of payments made (by whatever means) to the supported person or to his dependants (if any).

(4)But 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)The Secretary of State may by order repeal subsection (3).

(6)“Specified” means specified in an order made under subsection (4).

97Supplemental

(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—

(a)to such portion of the income support applicable amount provided under section 124 of the [1992 c. 4.] Social Security Contributions and Benefits Act 1992, or

(b)to such portion of any components 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.

98Temporary support

(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.

Support and assistance by local authorities etc.

99Provision of support by local authorities

(1)A local authority may provide support for asylum-seekers and their dependants (if any) in accordance with arrangements made by the Secretary of State under section 95.

(2)Such support may be provided by the local authority—

(a)in one or more of the ways mentioned in section 96(1) and (2);

(b)whether the arrangements in question are made with the authority or with another person.

(3)The Executive may provide support by way of accommodation for asylum-seekers and their dependants (if any) in accordance with arrangements made by the Secretary of State under section 95, whether the arrangements in question are made with the Executive or with another person.

(4)A local authority may incur reasonable expenditure in connection with the preparation of proposals for entering into arrangements under section 95.

(5)The powers conferred on a local authority by this section include power to—

(a)provide services outside their area;

(b)provide services jointly with one or more bodies who are not local authorities;

(c)form a company for the purpose of providing services;

(d)tender for contracts (whether alone or with any other person).

100Local authority and other assistance for Secretary of State

(1)This section applies if the Secretary of State asks—

(a)a local authority,

(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 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 [1996 c. 52.] Housing Act 1996.

(7)“Registered housing association” has the same meaning—

(a)in relation to Scotland, as in the [1985 c. 69.] Housing Associations Act 1985; and

(b)in relation to Northern Ireland, as in Part II of the [S.I. 1992/1725 (N.I. 15).] Housing (Northern Ireland) Order 1992.

101Reception zones

(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 [1988 c. 36.] Court 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 authority in Scotland unless the Scottish Ministers have confirmed to him that the criteria specified in the designation order concerned are in their opinion met in relation to that authority.

(8)Housing accommodation is suitable for the purposes of subsection (2) if it—

(a)is unoccupied;

(b)would be likely to remain unoccupied for the foreseeable future if not made available; and

(c)is appropriate for the accommodation of persons supported under this Part or capable of being made so with minor work.

(9)If housing accommodation for which a direction under this section is, for the time being, in force—

(a)is not appropriate for the accommodation of persons supported under this Part, but

(b)is capable of being made so with minor work,

the direction may require the body to whom it is given to secure that that work is done without delay.

(10)The Secretary of State must make regulations with respect to the general management of any housing accommodation for which a direction under subsection (3) is, for the time being, in force.

(11)Regulations under subsection (10) must include provision—

(a)as to the method to be used in determining the amount of rent or other charges to be payable in relation to the accommodation;

(b)as to the times at which payments of rent or other charges are to be made;

(c)as to the responsibility for maintenance of, and repairs to, the accommodation;

(d)enabling the accommodation to be inspected, in such circumstances as may be prescribed, by the body to which the direction was given;

(e)with respect to the condition in which the accommodation is to be returned when the direction ceases to have effect.

(12)Regulations under subsection (10) may, in particular, include provision—

(a)for the cost, or part of the cost, of minor work required by a direction under this section to be met by the Secretary of State in prescribed circumstances;

(b)as to the maximum amount of expenditure which a body may be required to incur as a result of a direction under this section.

(13)The Secretary of State must by regulations make provision (“the dispute resolution procedure”) for resolving disputes arising in connection with the operation of any regulations made under subsection (10).

(14)Regulations under subsection (13) must include provision—

(a)requiring a dispute to be resolved in accordance with the dispute resolution procedure;

(b)requiring the parties to a dispute to comply with obligations imposed on them by the procedure; and

(c)for the decision of the person resolving a dispute in accordance with the procedure to be final and binding on the parties.

(15)Before—

(a)designating a reception zone in Great Britain,

(b)determining the criteria to be included in the order designating the zone, or

(c)making regulations under subsection (13),

the Secretary of State must consult such local authorities, local authority associations and other persons as he thinks appropriate.

(16)Before—

(a)designating Northern Ireland as a reception zone, or

(b)determining the criteria to be included in the order designating Northern Ireland,

the Secretary of State must consult the Executive and such other persons as he thinks appropriate.

(17)Before making regulations under subsection (10) which extend only to Northern Ireland, the Secretary of State must consult the Executive and such other persons as he thinks appropriate.

(18)Before making any other regulations under subsection (10), the Secretary of State must consult—

(a)such local authorities, local authority associations and other persons as he thinks appropriate; and

(b)if the regulations extend to Northern Ireland, the Executive.

Appeals

102Asylum Support Adjudicators

(1)There are to be adjudicators to hear appeals under this Part.

(2)A person appointed as an adjudicator under this Part is to be known as an Asylum Support Adjudicator (but is referred to in this Part as “an adjudicator”).

(3)Schedule 10 makes further provision with respect to adjudicators.

103Appeals

(1)If, on an application for support under section 95, the Secretary of State decides that the applicant does not qualify for support under that section, the applicant may appeal to an adjudicator.

(2)If the Secretary of State decides to stop providing support for a person under section 95 before that support would otherwise have come to an end, that person may appeal to an adjudicator.

(3)On an appeal under this section, the adjudicator may—

(a)require the Secretary of State to reconsider the matter;

(b)substitute his decision for the decision appealed against; or

(c)dismiss the appeal.

(4)The adjudicator must give his reasons in writing.

(5)The decision of the adjudicator is final.

(6)If an appeal is dismissed, no further application by the appellant for support under section 95 is to be entertained unless the Secretary of State is satisfied that there has been a material change in the circumstances.

(7)The Secretary of State may by regulations provide for decisions as to where support provided under section 95 is to be provided to be appealable to an adjudicator under this Part.

(8)Regulations under subsection (7) may provide for any provision of this section to have effect, in relation to an appeal brought by virtue of the regulations, subject to such modifications as may be prescribed.

(9)The Secretary of State may pay any reasonable travelling expenses incurred by an appellant in connection with attendance at any place for the purposes of an appeal under this section.

104Secretary of State’s rules

(1)The Secretary of State may make rules regulating—

(a)the bringing of appeals under this Part; and

(b)the practice and procedure of the adjudicators.

(2)The rules may, in particular, make provision—

(a)for the period within which an appeal must be brought;

(b)as to the burden of proof on an appeal;

(c)as to the giving and admissibility of evidence;

(d)for summoning witnesses;

(e)for an appeal to be heard in the absence of the appellant;

(f)for determining an appeal without a hearing;

(g)requiring reports of decisions of adjudicators to be published;

(h)conferring such ancillary powers on adjudicators as the Secretary of State considers necessary for the proper discharge of their functions.

(3)In making the rules, the Secretary of State must have regard to the desirability of securing, so far as is reasonably practicable, that appeals are brought and disposed of with the minimum of delay.

Offences

105False representations

(1)A person is guilty of an offence if, with a view to obtaining support for himself or any other person under any provision made by or under this Part, he—

(a)makes a statement or representation which he knows is false in a material particular;

(b)produces or gives to a person exercising functions under this Part, or knowingly causes or allows to be produced or given to such a person, any document or information which he knows is false in a material particular;

(c)fails, without reasonable excuse, to notify a change of circumstances when required to do so in accordance with any provision made by or under this Part; or

(d)without reasonable excuse, knowingly causes another person to fail to notify a change of circumstances which that other person was required to notify in accordance with any provision made by or under this Part.

(2)A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding three months or to a fine not exceeding level 5 on the standard scale, or to both.

106Dishonest representations

(1)A person is guilty of an offence if, with a view to obtaining any benefit or other payment or advantage under this Part for himself or any other person, he dishonestly—

(a)makes a statement or representation which is false in a material particular;

(b)produces or gives to a person exercising functions under this Part, or causes or allows to be produced or given to such a person, any document or information which is false in a material particular;

(c)fails to notify a change of circumstances when required to do so in accordance with any provision made by or under this Part; or

(d)causes another person to fail to notify a change of circumstances which that other person was required to notify in accordance with any provision made by or under this Part.

(2)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 seven years or to a fine, or to both.

(3)In the application of this section to Scotland, in subsection (1) for “dishonestly” substitute “knowingly”.

107Delay or obstruction

(1)A person is guilty of an offence if, without reasonable excuse, he—

(a)intentionally delays or obstructs a person exercising functions conferred by or under this Part; or

(b)refuses or neglects to answer a question, give any information or produce a document when required to do so in accordance with any provision made by or under this Part.

(2)A person guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

108Failure of sponsor to maintain

(1)A person is guilty of an offence if, during any period in respect of which he has given a written undertaking in pursuance of the immigration rules to be responsible for the maintenance and accommodation of another person—

(a)he persistently refuses or neglects, without reasonable excuse, to maintain that person in accordance with the undertaking; and

(b)in consequence of his refusal or neglect, support under any provision made by or under this Part is provided for or in respect of that person.

(2)A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding 3 months or to a fine not exceeding level 4 on the standard scale, or to both.

(3)For the purposes of this section, a person is not to be taken to have refused or neglected to maintain another person by reason only of anything done or omitted in furtherance of a trade dispute.

109Supplemental

(1)If an offence under section 105, 106, 107 or 108 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.

(2)“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.

(3)If the affairs of a body corporate are managed by its members, subsection (1) 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.

(4)If an offence under section 105, 106, 107 or 108 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.

(5)“Partner” includes a person purporting to act as a partner.

Expenditure

110Payments to local authorities

(1)The Secretary of State may from time to time pay to any local authority or Northern Ireland authority such sums as he considers appropriate in respect of expenditure incurred, or to be incurred, by the authority in connection with—

(a)persons who are, or have been, asylum-seekers; and

(b)their dependants.

(2)The Secretary of State may from time to time pay to any—

(a)local authority,

(b)local authority association, or

(c)Northern Ireland authority,

such sums as he considers appropriate in respect of services provided by the authority or association in connection with the discharge of functions under this Part.

(3)The Secretary of State may make payments to any local authority towards the discharge of any liability of supported persons or their dependants in respect of council tax payable to that authority.

(4)The Secretary of State must pay to a body to which a direction under section 101(3) is given such sums as he considers represent the reasonable costs to that body of complying with the direction.

(5)The Secretary of State must pay to a directed body sums determined to be payable in relation to accommodation made available by that body under section 101(3)(a).

(6)The Secretary of State may pay to a directed body sums determined to be payable in relation to accommodation made available by that body under section 101(3)(b).

(7)In subsections (5) and (6)—

  • “determined” means determined in accordance with regulations made by virtue of subsection (11)(a) of section 101, and

  • “directed body” means a body to which a direction under subsection (3) of section 101 is given.

(8)Payments under subsection (1), (2) or (3) may be made on such terms, and subject to such conditions, as the Secretary of State may determine.

(9)“Northern Ireland authority” means—

(a)the Executive; or

(b)a Health and Social Services Board established under Article 16 of the [S.I. 1972/1265 (N.I. 14).] Health and Personal Social Services (Northern Ireland) Order 1972.

111Grants to voluntary organisations

(1)The Secretary of State may make grants of such amounts as he thinks appropriate to voluntary organisations in connection with—

(a)the provision by them of support (of whatever nature) to persons who are, or have been, asylum-seekers and to their dependants; and

(b)connected matters.

(2)Grants may be made on such terms, and subject to such conditions, as the Secretary of State may determine.

112Recovery of expenditure on support: misrepresentation etc

(1)This section applies if, on an application made by the Secretary of State, the court determines that—

(a)a person (“A”) has misrepresented or failed to disclose a material fact (whether fraudulently or otherwise); and

(b)as a consequence of the misrepresentation or failure, support has been provided under section 95 or 98 (whether or not to A).

(2)If the support was provided by the Secretary of State, the court may order A to pay to the Secretary of State an amount representing the monetary value of the support which would not have been provided but for A’s misrepresentation or failure.

(3)If the support was provided by another person (“B”) in accordance with arrangements made with the Secretary of State under section 95 or 98, the court may order A to pay to the Secretary of State an amount representing the payment to B which would not have been made but for A’s misrepresentation or failure.

(4)“Court” means a county court or, in Scotland, the sheriff.

113Recovery of expenditure on support from sponsor

(1)This section applies if—

(a)a person (“the sponsor”) has given a written undertaking in pursuance of the immigration rules to be responsible for the maintenance and accommodation of another person; and

(b)during any period in relation to which the undertaking applies, support under section 95 is provided to or in respect of that other person.

(2)The Secretary of State may make a complaint against the sponsor to a magistrates' court for an order under this section.

(3)The court—

(a)must have regard to all the circumstances (and in particular to the sponsor’s income); and

(b)may order him to pay to the Secretary of State such sum (weekly or otherwise) as it considers appropriate.

(4)But such a sum is not to include any amount attributable otherwise than to support provided under section 95.

(5)In determining—

(a)whether to order any payments to be made in respect of support provided under section 95 for any period before the complaint was made, or

(b)the amount of any such payments,

the court must disregard any amount by which the sponsor’s current income exceeds his income during that period.

(6)An order under this section is enforceable as a magistrates' court maintenance order within the meaning of section 150(1) of the [1980 c. 43.] Magistrates' Courts Act 1980.

(7)In the application of this section to Scotland—

(a)omit subsection (6);

(b)for references to a complaint substitute references to an application; and

(c)for references to a magistrates' court substitute references to the sheriff.

(8)In the application of this section to Northern Ireland, for references to a magistrates' court substitute references to a court of summary jurisdiction and for subsection (6) substitute—

(6)An order under this section is an order to which Article 98(11) of the [S.I. 1981/1675 (N.I. 26).] Magistrates' Courts (Northern Ireland) Order 1981 applies.

114Overpayments

(1)Subsection (2) applies if, as a result of an error on the part of the Secretary of State, support has been provided to a person under section 95 or 98.

(2)The Secretary of State may recover from a person who is, or has been, a supported person an amount representing the monetary value of support provided to him as a result of the error.

(3)An amount recoverable under subsection (2) may be recovered as if it were a debt due to the Secretary of State.

(4)The Secretary of State may by regulations make provision for other methods of recovery, including deductions from support provided under section 95.

Exclusions

115Exclusion from benefits

(1)No person is entitled to income-based jobseeker’s allowance under the [1995 c. 18.] Jobseekers Act 1995 or to—

(a)attendance allowance,

(b)severe disablement allowance,

(c)invalid care allowance,

(d)disability living allowance,

(e)income support,

(f)working families' tax credit,

(g)disabled person’s tax credit,

(h)a social fund payment,

(i)child benefit,

(j)housing benefit, or

(k)council tax benefit,

under the [1992 c. 4.] Social Security Contributions and Benefits Act 1992 while he is a person to whom this section applies.

(2)No person in Northern Ireland is entitled to—

(a)income-based jobseeker’s allowance under the [S.I. 1995/2705 (N.I. 15).] Jobseekers (Northern Ireland) Order 1995, or

(b)any of the benefits mentioned in paragraphs (a) to (j) of subsection (1),

under the [1992 c. 7.] Social Security Contributions and Benefits (Northern Ireland) Act 1992 while he is a person to whom this section applies.

(3)This section applies to a person subject to immigration control unless he falls within such category or description, or satisfies such conditions, as may be prescribed.

(4)Regulations under subsection (3) may provide for a person to be treated for prescribed purposes only as not being a person to whom this section applies.

(5)In relation to the benefits mentioned in subsection (1)(f) or (g), “prescribed” means prescribed by regulations made by the Treasury.

(6)In relation to the matters mentioned in subsection (2) (except so far as it relates to the benefits mentioned in subsection (1)(f) or (g)), “prescribed” means prescribed by regulations made by the Department.

(7)Section 175(3) to (5) of the Social Security Contributions and Benefits Act 1992 (supplemental powers in relation to regulations) applies to regulations made by the Secretary of State or the Treasury under subsection (3) as it applies to regulations made under that Act.

(8)Sections 133(2), 171(2) and 172(4) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 apply to regulations made by the Department under subsection (3) as they apply to regulations made by the Department under that Act.

(9)“A person subject to immigration control” means a person who is not a national of an EEA State and who—

(a)requires leave to enter or remain in the United Kingdom but does not have it;

(b)has leave to enter or remain in the United Kingdom which is subject to a condition that he does not have recourse to public funds;

(c)has leave to enter or remain in the United Kingdom given as a result of a maintenance undertaking; or

(d)has leave to enter or remain in the United Kingdom only as a result of paragraph 17 of Schedule 4.

(10)“Maintenance undertaking”, in relation to any person, means a written undertaking given by another person in pursuance of the immigration rules to be responsible for that person’s maintenance and accommodation.

116Amendment of section 21 of the National Assistance Act 1948

In section 21 of the [1948 c. 29.] National Assistance Act 1948 (duty of local authorities to provide accommodation), after subsection (1), insert—

(1A)A person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies may not be provided with residential accommodation under subsection (1)(a) if his need for care and attention has arisen solely—

(a)because he is destitute; or

(b)because of the physical effects, or anticipated physical effects, of his being destitute.

(1B)Subsections (3) and (5) to (8) of section 95 of the Immigration and Asylum Act 1999, and paragraph 2 of Schedule 8 to that Act, apply for the purposes of subsection (1A) as they apply for the purposes of that section, but for the references in subsections (5) and (7) of that section and in that paragraph to the Secretary of State substitute references to a local authority.

117Other restrictions on assistance: England and Wales

(1)In section 45 of the [1968 c. 46.] Health Services and Public Health Act 1968 (promotion by local authorities of the welfare of old people), after subsection (4), insert—

(4A)No arrangements under this section may be given effect to in relation to a person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies solely—

(a)because he is destitute; or

(b)because of the physical effects, or anticipated physical effects, of his being destitute.

(4B)Subsections (3) and (5) to (8) of section 95 of the Immigration and Asylum Act 1999, and paragraph 2 of Schedule 8 to that Act, apply for the purposes of subsection (4A) as they apply for the purposes of that section, but for the references in subsections (5) and (7) of that section and in that paragraph to the Secretary of State substitute references to a local authority.

(2)In paragraph 2 of Schedule 8 to the [1977 c. 49.] National Health Service Act 1977 (arrangements by local authorities for the prevention of illness and for care and after-care), after sub-paragraph (2), insert—

(2A)No arrangements under this paragraph may be given effect to in relation to a person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies solely—

(a)because he is destitute; or

(b)because of the physical effects, or anticipated physical effects, of his being destitute.

(2B)Subsections (3) and (5) to (8) of section 95 of the Immigration and Asylum Act 1999, and paragraph 2 of Schedule 8 to that Act, apply for the purposes of subsection (2A) as they apply for the purposes of that section, but for the references in subsections (5) and (7) of that section and in that paragraph to the Secretary of State substitute references to a local social services authority.

(3)In section 161 of the [1996 c. 52.] Housing Act 1996 (allocation of housing accommodation only to qualifying persons), after subsection (2), insert—

(2A)Regulations may not be made under subsection (2) so as to include in a prescribed class any person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies.

(4)In section 185 of the 1996 Act (persons from abroad not eligible for housing assistance), after subsection (2), insert—

(2A)Regulations may not be made under subsection (2) so as to include in a prescribed class any person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies.

(5)In the 1996 Act, omit section 186 (asylum-seekers and their dependants).

(6)In section 187(1) of the 1996 Act (provision of information by Secretary of State), in paragraph (a), for “or has become an asylum-seeker, or a dependant of an asylum-seeker” substitute “a person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies”.

118Housing authority accommodation

(1)Each housing authority must secure that, so far as practicable, a tenancy of, or licence to occupy, housing accommodation provided under the accommodation provisions is not granted to a person subject to immigration control unless—

(a)he is of a class specified in an order made by the Secretary of State; or

(b)the tenancy of, or licence to occupy, such accommodation is granted in accordance with arrangements made under section 95.

(2)“Housing authority” means—

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

(b)in relation to Scotland, a local authority within the meaning of the [1987 c. 26.] Housing (Scotland) Act 1987; and

(c)in relation to Northern Ireland, the Executive.

(3)“Accommodation provisions” means—

(a)in relation to England and Wales, Part II of the Housing Act 1985;

(b)in relation to Scotland, Part I of the Housing (Scotland) Act 1987;

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

(4)“Licence to occupy”, in relation to Scotland, means a permission or right to occupy.

(5)“Tenancy”, in relation to England and Wales, has the same meaning as in the [1985 c. 68.] Housing Act 1985.

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

(7)This section does not apply in relation to any allocation of housing to which Part VI of the [1996 c. 52.] Housing Act 1996 (allocation of housing accommodation) applies.

119Homelessness: Scotland and Northern Ireland

(1)A person subject to immigration control—

(a)is not eligible for accommodation or assistance under the homelessness provisions, and

(b)is to be disregarded in determining for the purposes of those provisions, whether another person—

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

(ii)has a priority need for accommodation,

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

(2)An order under subsection (1) may not be made so as to include in a specified class any person to whom section 115 applies.

(3)“The homelessness provisions” means—

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

(b)in relation to Northern Ireland, Part II of the [S.I. 1988/1990 (N.I. 13).] Housing (Northern Ireland) Order 1988.

(4)“Person subject to immigration control” has the same meaning as in section 118.

120Other restrictions on assistance: Scotland

(1)In section 12 of the [1968 c. 49.] Social Work (Scotland) Act 1968 (general social welfare services of local authorities), after subsection (2) insert—

(2A)A person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies is not to receive assistance under subsection (1) of this section (whether by way of residential accommodation or otherwise) if his need for assistance has arisen solely—

(a)because he is destitute; or

(b)because of the physical effects, or anticipated physical effects, of his being destitute.

(2B)Subsections (3) and (5) to (8) of section 95 of the Immigration and Asylum Act 1999, and paragraph 2 of Schedule 8 to that Act, apply for the purposes of subsection (2A) as they apply for the purposes of that section, but for the references in subsections (5) and (7) of that section and in that paragraph to the Secretary of State substitute references to a local authority.

(2)In section 13A of that Act (provision of residential accommodation with nursing), after subsection (3) insert—

(4)No arrangements under subsection (1) above may be given effect to in relation to a person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies solely—

(a)because he is destitute; or

(b)because of the physical effects, or anticipated physical effects, of his being destitute.

(5)Subsections (3) and (5) to (8) of section 95 of the Immigration and Asylum Act 1999, and paragraph 2 of Schedule 8 to that Act, apply for the purposes of subsection (4) above as they apply for the purposes of that section, but for the references in subsections (5) and (7) of that section and in that paragraph to the Secretary of State substitute references to a local authority.

(3)In section 13B of that Act (provision of care and after-care), after subsection (2) insert—

(3)No arrangements under subsection (1) above may be given effect to in relation to a person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies solely—

(a)because he is destitute; or

(b)because of the physical effects, or anticipated physical effects, of his being destitute.

(4)Subsections (3) and (5) to (8) of section 95 of the Immigration and Asylum Act 1999, and paragraph 2 of Schedule 8 to that Act, apply for the purposes of subsection (3) above as they apply for the purposes of that section, but for the references in subsections (5) and (7) of that section and in that paragraph to the Secretary of State substitute references to a local authority.

(4)In section 7 of the [1984 c. 36.] Mental Health (Scotland) Act 1984 (functions of local authorities), after subsection (2) insert—

(3)No arrangements under paragraph (a) or (c) of subsection (1) above may be given effect to in relation to a person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies solely—

(a)because he is destitute; or

(b)because of the physical effects, or anticipated physical effects, of his being destitute.

(4)Subsections (3) and (5) to (8) of section 95 of the Immigration and Asylum Act 1999, and paragraph 2 of Schedule 8 to that Act, apply for the purposes of subsection (3) above as they apply for the purposes of that section, but for the references in subsection (5) and (7) of that section and in that paragraph to the Secretary of State substitute references to a local authority.

(5)In section 8 of that Act (provision of after-care services), after subsection (3) insert—

(4)After care services may not be provided under subsection (1) above in respect of any person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies solely—

(a)because he is destitute; or

(b)because of the physical effects, or anticipated physical effects, of his being destitute.

(5)Subsections (3) and (5) to (8) of section 95 of the Immigration and Asylum Act 1999, and paragraph 2 of Schedule 8 to that Act, apply for the purposes of subsection (4) above as they apply for the purposes of that section, but for the references in subsection (5) and (7) of that section and in that paragraph to the Secretary of State substitute references to a local authority.

(6)In the [1993 c. 23.] Asylum and Immigration Appeals Act 1993, omit sections 4 and 5 and Schedule 1 (provisions relating to housing of asylum-seekers).

121Other restrictions on assistance: Northern Ireland

(1)In Article 7 of the [S.I. 1972/1265 (N.I. 14).] Health and Personal Social Services (Northern Ireland) Order 1972 (prevention of illness, care and after-care), after paragraph (2) insert—

(3)No arrangements made under paragraph (1) may be given effect to in relation to a person to whom section 115 of the Immigration and Asylum Act 1999 applies solely—

(a)because he is destitute; or

(b)because of the physical effects, or anticipated physical effects, of his being destitute.

(3A)Subsections (3) and (5) to (8) of section 95 of the Immigration and Asylum Act 1999, and paragraph 2 of Schedule 8 to that Act, apply for the purposes of paragraph (3) as they apply for the purposes of that section, but for the references in subsections (5) and (7) of that section and in paragraph 2 of that Schedule to the Secretary of State substitute references to the Department.

(2)In Article 15 of that Order (general social welfare), after paragraph (5) insert—

(6)Assistance may not be provided under paragraph (1) in respect of any person to whom section 115 of the Immigration and Asylum Act 1999 applies if his need for assistance has arisen solely—

(a)because he is destitute, or

(b)because of the physical effects, or anticipated physical effects, of his being destitute.

(7)Subsections (3) to (8) of section 95 of the Immigration and Asylum Act 1999, and paragraph 2 of Schedule 8 to that Act, apply for the purposes of paragraph (6) as they apply for the purposes of that section, but for references to the Secretary of State in subsections (5) and (7) of that section and in paragraph 2 of that Schedule substitute references to the Department.

(3)In the Asylum and Immigration Appeals Act 1993, omit sections 4 and 5 and Schedule 1 (provisions relating to housing of asylum-seekers).

122Support for children

(1)In this section “eligible person” means a person who appears to the Secretary of State to be a person for whom support may be provided under section 95.

(2)Subsections (3) and (4) apply if an application for support under section 95 has been made by an eligible person whose household includes a dependant under the age of 18 (“the child”).

(3)If it appears to the Secretary of State that adequate accommodation is not being provided for the child, he must exercise his powers under section 95 by offering, and if his offer is accepted by providing or arranging for the provision of, adequate accommodation for the child as part of the eligible person’s household.

(4)If it appears to the Secretary of State that essential living needs of the child are not being met, he must exercise his powers under section 95 by offering, and if his offer is accepted by providing or arranging for the provision of, essential living needs for the child as part of the eligible person’s household.

(5)No local authority may provide assistance under any of the child welfare provisions in respect of a dependant under the age of 18, or any member of his family, at any time when—

(a)the Secretary of State is complying with this section in relation to him; or

(b)there are reasonable grounds for believing that—

(i)the person concerned is a person for whom support may be provided under section 95; and

(ii)the Secretary of State would be required to comply with this section if that person had made an application under section 95.

(6)“Assistance” means the provision of accommodation or of any essential living needs.

(7)“The child welfare provisions” means—

(a)section 17 of the [1989 c. 41.] Children Act 1989 (local authority support for children and their families);

(b)section 22 of the [1995 c. 36.] Children (Scotland) Act 1995 (equivalent provision for Scotland); and

(c)Article 18 of the [S.I. 1995/775 (N.I. 2).] Children (Northern Ireland) Order 1995 (equivalent provision for Northern Ireland).

(8)Subsection (9) applies if accommodation provided in the discharge of the duty imposed by subsection (3) has been withdrawn.

(9)Only the relevant authority may provide assistance under any of the child welfare provisions in respect of the child concerned.

(10)“Relevant authority” means—

(a)in relation to Northern Ireland, the authority within whose area the withdrawn accommodation was provided;

(b)in any other case, the local authority within whose area the withdrawn accommodation was provided.

(11)In such circumstances as may be prescribed, subsection (5) does not apply.

123Back-dating of benefits where person recorded as refugee

(1)This section applies if—

(a)a person is recorded by the Secretary of State as a refugee within the meaning of the Refugee Convention; and

(b)before the refugee was so recorded, he or his dependant was a person to whom section 115 applied.

(2)Regulations may provide that a person mentioned in subsection (1)(b) may, within a prescribed period, claim the whole, or any prescribed proportion, of any benefit to which he would have been entitled had the refugee been so recorded when he made his claim for asylum.

(3)Subsections (5) and (6) apply if the refugee has resided in the areas of two or more local authorities and he or his dependant makes a claim under the regulations in relation to housing benefit.

(4)Subsections (5) and (6) also apply if the refugee has resided in the areas of two or more local authorities in Great Britain and he or his dependant makes a claim under the regulations in relation to council tax benefit.

(5)The claim must be investigated and determined, and any benefit awarded must be paid or allowed, by such one of those authorities as may be prescribed by the regulations (“the prescribed authority”).

(6)The regulations may make provision requiring a local authority who are not the prescribed authority to supply that authority with such information as they may reasonably require in connection with the exercise of their functions under the regulations.

(7)The regulations may make provision in relation to a person who has received support under this Part or who is a dependant of such a person—

(a)for the determination, or for criteria for the calculation, of the value of that support; and

(b)for the sum which he would be entitled to claim under the regulations to be reduced by the whole, or any prescribed proportion, of that valuation.

(8)The reductions permitted by subsection (7) must not exceed the amount of the valuation.

(9)“Regulations” means—

(a)in relation to jobseeker’s allowance under the [1995 c. 18.] Jobseekers Act 1995, regulations made by the Secretary of State under that Act or the [1992 c. 5.] Social Security Administration Act 1992;

(b)in relation to jobseeker’s allowance under the [S.I. 1995/2705 (N.I. 15).] Jobseekers (Northern Ireland) Order 1995, regulations made by the Department under that Order or the [1992 c. 8.] Social Security Administration (Northern Ireland) Act 1992;

(c)in relation to a benefit under the [1992 c. 4.] Social Security Contributions and Benefits Act 1992, regulations made by the Secretary of State under that Act or the Social Security Administration Act 1992;

(d)in relation to a benefit under the [1992 c. 7.] Social Security Contributions and Benefits (Northern Ireland) Act 1992, regulations made by the Department under that Act or the Social Security Administration (Northern Ireland) Act 1992.

Miscellaneous

124Secretary of State to be corporation sole for purposes of Part VI

(1)For the purpose of exercising his functions under this Part, the Secretary of State is a corporation sole.

(2)Any instrument in connection with the acquisition, management or disposal of property, real or personal, heritable or moveable, by the Secretary of State under this Part may be executed on his behalf by a person authorised by him for that purpose.

(3)Any instrument purporting to have been so executed on behalf of the Secretary of State is to be treated, until the contrary is proved, to have been so executed on his behalf.

125Entry of premises

(1)This section applies in relation to premises in which accommodation has been provided under section 95 or 98 for a supported person.

(2)If, on an application made by a person authorised in writing by the Secretary of State, a justice of the peace is satisfied that there is reason to believe that—

(a)the supported person or any dependants of his for whom the accommodation is provided is not resident in it,

(b)the accommodation is being used for any purpose other than the accommodation of the asylum-seeker or any dependant of his, or

(c)any person other than the supported person and his dependants (if any) is residing in the accommodation,

he may grant a warrant to enter the premises to the person making the application.

(3)A warrant granted under subsection (2) may be executed—

(a)at any reasonable time;

(b)using reasonable force.

(4)In the application of subsection (2) to Scotland, read the reference to a justice of the peace as a reference to the sheriff or a justice of the peace.

126Information from property owners

(1)The power conferred by this section is to be exercised with a view to obtaining information about premises in which accommodation is or has been provided for supported persons.

(2)The Secretary of State may require any person appearing to him—

(a)to have any interest in, or

(b)to be involved in any way in the management or control of,

such premises, or any building which includes such premises, to provide him with such information with respect to the premises and the persons occupying them as he may specify.

(3)A person who is required to provide information under this section must do so in accordance with such requirements as may be prescribed.

(4)Information provided to the Secretary of State under this section may be used by him only in the exercise of his functions under this Part.

127Requirement to supply information about redirection of post

(1)The Secretary of State may require any person conveying postal packets to supply redirection information to the Secretary of State—

(a)for use in the prevention, detection, investigation or prosecution of criminal offences under this Part;

(b)for use in checking the accuracy of information relating to support provided under this Part; or

(c)for any other purpose relating to the provision of support to asylum-seekers.

(2)The information must be supplied in such manner and form, and in accordance with such requirements, as may be prescribed.

(3)The Secretary of State must make payments of such amount as he considers reasonable in respect of the supply of information under this section.

(4)“Postal packet” has the same meaning as in the [1953 c. 36.] Post Office Act 1953.

(5)“Redirection information” means information relating to arrangements made with any person conveying postal packets for the delivery of postal packets to addresses other than those indicated by senders on the packets.

Part VIIPower To Arrest, Search and Fingerprint

Power to arrest

128Arrest without warrant

In the 1971 Act, after section 28, insert—

28AArrest without warrant

(1)A constable or immigration officer may arrest without warrant a person—

(a)who has committed or attempted to commit an offence under section 24 or 24A; or

(b)whom he has reasonable grounds for suspecting has committed or attempted to commit such an offence.

(2)But subsection (1) does not apply in relation to an offence under section 24(1)(d).

(3)An immigration officer may arrest without warrant a person—

(a)who has committed an offence under section 25(1); or

(b)whom he has reasonable grounds for suspecting has committed that offence.

(4)An immigration officer may arrest without warrant a person—

(a)who has committed or attempted to commit an offence under section 25(2); or

(b)whom he has reasonable grounds for suspecting has committed or attempted to commit that offence.

(5)An immigration officer may arrest without warrant a person (“the suspect”) who, or whom he has reasonable grounds for suspecting—

(a)has committed or attempted to commit an offence under section 26(1)(g); or

(b)is committing or attempting to commit that offence.

(6)The power conferred by subsection (5) is exercisable only if either the first or the second condition is satisfied.

(7)The first condition is that it appears to the officer that service of a summons (or, in Scotland, a copy complaint) is impracticable or inappropriate because—

(a)he does not know, and cannot readily discover, the suspect’s name;

(b)he has reasonable grounds for doubting whether a name given by the suspect as his name is his real name;

(c)the suspect has failed to give him a satisfactory address for service; or

(d)he has reasonable grounds for doubting whether an address given by the suspect is a satisfactory address for service.

(8)The second condition is that the officer has reasonable grounds for believing that arrest is necessary to prevent the suspect—

(a)causing physical injury to himself or another person;

(b)suffering physical injury; or

(c)causing loss of or damage to property.

(9)For the purposes of subsection (7), an address is a satisfactory address for service if it appears to the officer—

(a)that the suspect will be at that address for a sufficiently long period for it to be possible to serve him with a summons (or copy complaint); or

(b)that some other person specified by the suspect will accept service of a summons (or copy complaint) for the suspect at that address.

(10)In relation to the exercise of the powers conferred by subsections (3)(b), (4)(b) and (5), it is immaterial that no offence has been committed.

(11)In Scotland the powers conferred by subsections (3), (4) and (5) may also be exercised by a constable.

Power to search and arrest

129Search and arrest by warrant

In the 1971 Act, after section 28A, insert—

28BSearch and arrest by warrant

(1)Subsection (2) applies if a justice of the peace is, by written information on oath, satisfied that there are reasonable grounds for suspecting that a person (“the suspect”) who is liable to be arrested for a relevant offence is to be found on any premises.

(2)The justice may grant a warrant authorising any immigration officer or constable to enter, if need be by force, the premises named in the warrant for the purpose of searching for and arresting the suspect.

(3)Subsection (4) applies if in Scotland the sheriff or a justice of the peace is by evidence on oath satisfied as mentioned in subsection (1).

(4)The sheriff or justice may grant a warrant authorising any immigration officer or constable to enter, if need be by force, the premises named in the warrant for the purpose of searching for and arresting the suspect.

(5)“Relevant offence” means an offence under section 24(1)(a), (b), (c), (d), (e) or (f), section 24A or section 25(2).

130Search and arrest without warrant

In the 1971 Act, after section 28B, insert—

28CSearch and arrest without warrant

(1)An immigration officer may enter and search any premises for the purpose of arresting a person for an offence under section 25(1).

(2)The power may be exercised—

(a)only to the extent that it is reasonably required for that purpose; and

(b)only if the officer has reasonable grounds for believing that the person whom he is seeking is on the premises.

(3)In relation to premises consisting of two or more separate dwellings, the power is limited to entering and searching—

(a)any parts of the premises which the occupiers of any dwelling comprised in the premises use in common with the occupiers of any such other dwelling; and

(b)any such dwelling in which the officer has reasonable grounds for believing that the person whom he is seeking may be.

(4)The power may be exercised only if the officer produces identification showing that he is an immigration officer (whether or not he is asked to do so).

Power to enter and search premises

131Entry and search of premises

In the 1971 Act, after section 28C, insert—

28DEntry and search of premises

(1)If, on an application made by an immigration officer, a justice of the peace is satisfied that there are reasonable grounds for believing that—

(a)a relevant offence has been committed,

(b)there is material on premises specified in the application which is likely to be of substantial value (whether by itself or together with other material) to the investigation of the offence,

(c)the material is likely to be relevant evidence,

(d)the material does not consist of or include items subject to legal privilege, excluded material or special procedure material, and

(e)any of the conditions specified in subsection (2) applies,

he may issue a warrant authorising an immigration officer to enter and search the premises.

(2)The conditions are that—

(a)it is not practicable to communicate with any person entitled to grant entry to the premises;

(b)it is practicable to communicate with a person entitled to grant entry to the premises but it is not practicable to communicate with any person entitled to grant access to the evidence;

(c)entry to the premises will not be granted unless a warrant is produced;

(d)the purpose of a search may be frustrated or seriously prejudiced unless an immigration officer arriving at the premises can secure immediate entry to them.

(3)An immigration officer may seize and retain anything for which a search has been authorised under subsection (1).

(4)“Relevant offence” means an offence under section 24(1)(a), (b), (c), (d), (e) or (f), section 24A or section 25.

(5)In relation to England and Wales, expressions which are given a meaning by the [1984 c. 60.] Police and Criminal Evidence Act 1984 have the same meaning when used in this section.

(6)In relation to Northern Ireland, expressions which are given a meaning by the [S.I. 1989/1341 (N.I. 12).] Police and Criminal Evidence (Northern Ireland) Order 1989 have the same meaning when used in this section.

(7)In the application of subsection (1) to Scotland—

(a)read the reference to a justice of the peace as a reference to the sheriff or a justice of the peace; and

(b)in paragraph (d), omit the reference to excluded material and special procedure material.

132Entry and search of premises following arrest

(1)In the 1971 Act, after section 28D, insert—

28EEntry and search of premises following arrest

(1)This section applies if a person is arrested for an offence under this Part at a place other than a police station.

(2)An immigration officer may enter and search any premises—

(a)in which the person was when arrested, or

(b)in which he was immediately before he was arrested,

for evidence relating to the offence for which the arrest was made (“relevant evidence”).

(3)The power may be exercised—

(a)only if the officer has reasonable grounds for believing that there is relevant evidence on the premises; and

(b)only to the extent that it is reasonably required for the purpose of discovering relevant evidence.

(4)In relation to premises consisting of two or more separate dwellings, the power is limited to entering and searching—

(a)any dwelling in which the arrest took place or in which the arrested person was immediately before his arrest; and

(b)any parts of the premises which the occupier of any such dwelling uses in common with the occupiers of any other dwellings comprised in the premises.

(5)An officer searching premises under subsection (2) may seize and retain anything he finds which he has reasonable grounds for believing is relevant evidence.

(6)Subsection (5) does not apply to items which the officer has reasonable grounds for believing are items subject to legal privilege.

(2)In the 1971 Act, in Schedule 2 after paragraph 25, insert—

Entry and search of premises

25A(1)This paragraph applies if—

(a)a person is arrested under this Schedule; or

(b)a person who was arrested by a constable (other than under this Schedule) is detained by an immigration officer under this Schedule.

(2)An immigration officer may enter and search any premises—

(a)occupied or controlled by the arrested person, or

(b)in which that person was when he was arrested, or immediately before he was arrested,

for relevant documents.

(3)The power may be exercised—

(a)only if the officer has reasonable grounds for believing that there are relevant documents on the premises;

(b)only to the extent that it is reasonably required for the purpose of discovering relevant documents; and

(c)subject to sub-paragraph (4), only if a senior officer has authorised its exercise in writing.

(4)An immigration officer may conduct a search under sub-paragraph (2)—

(a)before taking the arrested person to a place where he is to be detained; and

(b)without obtaining an authorisation under sub-paragraph (3)(c),

if the presence of that person at a place other than one where he is to be detained is necessary to make an effective search for any relevant documents.

(5)An officer who has conducted a search under sub-paragraph (4) must inform a senior officer as soon as is practicable.

(6)The officer authorising a search, or who is informed of one under sub-paragraph (5), must make a record in writing of—

(a)the grounds for the search; and

(b)the nature of the documents that were sought.

(7)An officer searching premises under sub-paragraph (2)—

(a)may seize and retain any documents he finds which he has reasonable grounds for believing are relevant documents; but

(b)may not retain any such document for longer than is necessary in view of the purpose for which the person was arrested.

(8)But sub-paragraph (7)(a) does not apply to documents which the officer has reasonable grounds for believing are items subject to legal privilege.

(9)“Relevant documents” means any documents which might—

(a)establish the arrested person’s identity, nationality or citizenship; or

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

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

133Entry and search of premises following arrest under section 25(1) of the 1971 Act

In the 1971 Act, after section 28E, insert—

28FEntry and search of premises following arrest under section 25(1)

(1)An immigration officer may enter and search any premises occupied or controlled by a person arrested for an offence under section 25(1).

(2)The power may be exercised—

(a)only if the officer has reasonable grounds for suspecting that there is relevant evidence on the premises;

(b)only to the extent that it is reasonably required for the purpose of discovering relevant evidence; and

(c)subject to subsection (3), only if a senior officer has authorised it in writing.

(3)The power may be exercised—

(a)before taking the arrested person to a place where he is to be detained; and

(b)without obtaining an authorisation under subsection (2)(c),

if the presence of that person at a place other than one where he is to be detained is necessary for the effective investigation of the offence.

(4)An officer who has relied on subsection (3) must inform a senior officer as soon as is practicable.

(5)The officer authorising a search, or who is informed of one under subsection (4), must make a record in writing of—

(a)the grounds for the search; and

(b)the nature of the evidence that was sought.

(6)An officer searching premises under this section may seize and retain anything he finds which he has reasonable grounds for suspecting is relevant evidence.

(7)“Relevant evidence” means evidence, other than items subject to legal privilege, that relates to the offence in question.

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

Power to search persons

134Searching arrested persons

(1)In the 1971 Act, after section 28F, insert—

28GSearching arrested persons

(1)This section applies if a person is arrested for an offence under this Part at a place other than a police station.

(2)An immigration officer may search the arrested person if he has reasonable grounds for believing that the arrested person may present a danger to himself or others.

(3)The officer may search the arrested person for—

(a)anything which he might use to assist his escape from lawful custody; or

(b)anything which might be evidence relating to the offence for which he has been arrested.

(4)The power conferred by subsection (3) may be exercised—

(a)only if the officer has reasonable grounds for believing that the arrested person may have concealed on him anything of a kind mentioned in that subsection; and

(b)only to the extent that it is reasonably required for the purpose of discovering any such thing.

(5)A power conferred by this section to search a person is not to be read as authorising an officer to require a person to remove any of his clothing in public other than an outer coat, jacket or glove; but it does authorise the search of a person’s mouth.

(6)An officer searching a person under subsection (2) may seize and retain anything he finds, if he has reasonable grounds for believing that that person might use it to cause physical injury to himself or to another person.

(7)An officer searching a person under subsection (3) may seize and retain anything he finds, if he has reasonable grounds for believing—

(a)that that person might use it to assist his escape from lawful custody; or

(b)that it is evidence which relates to the offence in question.

(8)Subsection (7)(b) does not apply to an item subject to legal privilege.

(2)In the 1971 Act, in Schedule 2 after paragraph 25A, insert—

Searching persons arrested by immigration officers

25B(1)This paragraph applies if a person is arrested under this Schedule.

(2)An immigration officer may search the arrested person if he has reasonable grounds for believing that the arrested person may present a danger to himself or others.

(3)The officer may search the arrested person for—

(a)anything which he might use to assist his escape from lawful custody; or

(b)any document which might—

(i)establish his identity, nationality or citizenship; or

(ii)indicate the place from which he has travelled to the United Kingdom or to which he is proposing to go.

(4)The power conferred by sub-paragraph (3) may be exercised—

(a)only if the officer has reasonable grounds for believing that the arrested person may have concealed on him anything of a kind mentioned in that sub-paragraph; and

(b)only to the extent that it is reasonably required for the purpose of discovering any such thing.

(5)A power conferred by this paragraph to search a person is not to be read as authorising an officer to require a person to remove any of his clothing in public other than an outer coat, jacket or glove; but it does authorise the search of a person’s mouth.

(6)An officer searching a person under sub-paragraph (2) may seize and retain anything he finds, if he has reasonable grounds for believing that the person searched might use it to cause physical injury to himself or to another person.

(7)An officer searching a person under sub-paragraph (3)(a) may seize and retain anything he finds, if he has reasonable grounds for believing that he might use it to assist his escape from lawful custody.

(8)An officer searching a person under sub-paragraph (3)(b) may seize and retain anything he finds, other than an item subject to legal privilege, if he has reasonable grounds for believing that it might be a document falling within that sub-paragraph.

(9)Nothing seized under sub-paragraph (6) or (7) may be retained when the person from whom it was seized—

(a)is no longer in custody, or

(b)is in the custody of a court but has been released on bail.

135Searching persons in police custody

(1)In the 1971 Act, after section 28G, insert—

28HSearching persons in police custody

(1)This section applies if a person—

(a)has been arrested for an offence under this Part; and

(b)is in custody at a police station or in police detention at a place other than a police station.

(2)An immigration officer may, at any time, search the arrested person in order to see whether he has with him anything—

(a)which he might use to—

(i)cause physical injury to himself or others;

(ii)damage property;

(iii)interfere with evidence; or

(iv)assist his escape; or

(b)which the officer has reasonable grounds for believing is evidence relating to the offence in question.

(3)The power may be exercised only to the extent that the custody officer concerned considers it to be necessary for the purpose of discovering anything of a kind mentioned in subsection (2).

(4)An officer searching a person under this section may seize anything he finds, if he has reasonable grounds for believing that—

(a)that person might use it for one or more of the purposes mentioned in subsection (2)(a); or

(b)it is evidence relating to the offence in question.

(5)Anything seized under subsection (4)(a) may be retained by the police.

(6)Anything seized under subsection (4)(b) may be retained by an immigration officer.

(7)The person from whom something is seized must be told the reason for the seizure unless he is—

(a)violent or appears likely to become violent; or

(b)incapable of understanding what is said to him.

(8)An intimate search may not be conducted under this section.

(9)The person carrying out a search under this section must be of the same sex as the person searched.

(10)“Custody officer”—

(a)in relation to England and Wales, has the same meaning as in the [1984 c. 60.] Police and Criminal Evidence Act 1984;

(b)in relation to Scotland, means the officer in charge of a police station; and

(c)in relation to Northern Ireland, has the same meaning as in the [S.I. 1989/1341 (N.I. 12).] Police and Criminal Evidence (Northern Ireland) Order 1989.

(11)“Intimate search”—

(a)in relation to England and Wales, has the meaning given by section 65 of the Act of 1984;

(b)in relation to Scotland, means a search which consists of the physical examination of a person’s body orifices other than the mouth; and

(c)in relation to Northern Ireland, has the same meaning as in the 1989 Order.

(12)“Police detention”—

(a)in relation to England and Wales, has the meaning given by section 118(2) of the 1984 Act; and

(b)in relation to Northern Ireland, has the meaning given by Article 2 of the 1989 Order.

(13)In relation to Scotland, a person is in police detention if—

(a)he has been taken to a police station after being arrested for an offence; or

(b)he is arrested at a police station after attending voluntarily at the station, accompanying a constable to it or being detained under section 14 of the [1995 c. 43.] Criminal Procedure (Scotland) Act 1995,

and is detained there or is detained elsewhere in the charge of a constable, but is not in police detention if he is in court after being charged.

(2)In the 1971 Act, in Schedule 2 after paragraph 25B, insert—

Searching persons in police custody

25C(1)This paragraph applies if a person—

(a)has been arrested under this Schedule; and

(b)is in custody at a police station.

(2)An immigration officer may, at any time, search the arrested person in order to ascertain whether he has with him—

(a)anything which he might use to—

(i)cause physical injury to himself or others;

(ii)damage property;

(iii)interfere with evidence; or

(iv)assist his escape; or

(b)any document which might—

(i)establish his identity, nationality or citizenship; or

(ii)indicate the place from which he has travelled to the United Kingdom or to which he is proposing to go.

(3)The power may be exercised only to the extent that the officer considers it to be necessary for the purpose of discovering anything of a kind mentioned in sub-paragraph (2).

(4)An officer searching a person under this paragraph may seize and retain anything he finds, if he has reasonable grounds for believing that—

(a)that person might use it for one or more of the purposes mentioned in sub-paragraph (2)(a); or

(b)it might be a document falling within sub-paragraph (2)(b).

(5)But the officer may not retain anything seized under sub-paragraph (2)(a)—

(a)for longer than is necessary in view of the purpose for which the search was carried out; or

(b)when the person from whom it was seized is no longer in custody or is in the custody of a court but has been released on bail.

(6)The person from whom something is seized must be told the reason for the seizure unless he is—

(a)violent or appears likely to become violent; or

(b)incapable of understanding what is said to him.

(7)An intimate search may not be conducted under this paragraph.

(8)The person carrying out a search under this paragraph must be of the same sex as the person searched.

(9)“Intimate search” has the same meaning as in section 28H(11).

Seized material: access and copying

136Access and copying

(1)In the 1971 Act, after section 28H, insert—

28ISeized material: access and copying

(1)If a person showing himself—

(a)to be the occupier of the premises on which seized material was seized, or

(b)to have had custody or control of the material immediately before it was seized,

asks the immigration officer who seized the material for a record of what he seized, the officer must provide the record to that person within a reasonable time.

(2)If a relevant person asks an immigration officer for permission to be granted access to seized material, the officer must arrange for him to have access to the material under the supervision—

(a)in the case of seized material within subsection (8)(a), of an immigration officer;

(b)in the case of seized material within subsection (8)(b), of a constable.

(3)An immigration officer may photograph or copy, or have photographed or copied, seized material.

(4)If a relevant person asks an immigration officer for a photograph or copy of seized material, the officer must arrange for—

(a)that person to have access to the material for the purpose of photographing or copying it under the supervision—

(i)in the case of seized material within subsection (8)(a), of an immigration officer;

(ii)in the case of seized material within subsection (8)(b), of a constable; or

(b)the material to be photographed or copied.

(5)A photograph or copy made under subsection (4)(b) must be supplied within a reasonable time.

(6)There is no duty under this section to arrange for access to, or the supply of a photograph or copy of, any material if there are reasonable grounds for believing that to do so would prejudice—

(a)the exercise of any functions in connection with which the material was seized; or

(b)an investigation which is being conducted under this Act, or any criminal proceedings which may be brought as a result.

(7)“Relevant person” means—

(a)a person who had custody or control of seized material immediately before it was seized, or

(b)someone acting on behalf of such a person.

(8)“Seized material” means anything—

(a)seized and retained by an immigration officer, or

(b)seized by an immigration officer and retained by the police,

under this Part.

(2)In the 1971 Act, in Schedule 2 after paragraph 25C, insert—

Access and copying

25D(1)If a person showing himself—

(a)to be the occupier of the premises on which seized material was seized, or

(b)to have had custody or control of the material immediately before it was seized,

asks the immigration officer who seized the material for a record of what he seized, the officer must provide the record to that person within a reasonable time.

(2)If a relevant person asks an immigration officer for permission to be granted access to seized material, the officer must arrange for that person to have access to the material under the supervision of an immigration officer.

(3)An immigration officer may photograph or copy, or have photographed or copied, seized material.

(4)If a relevant person asks an immigration officer for a photograph or copy of seized material, the officer must arrange for—

(a)that person to have access to the material under the supervision of an immigration officer for the purpose of photographing or copying it; or

(b)the material to be photographed or copied.

(5)A photograph or copy made under sub-paragraph (4)(b) must be supplied within a reasonable time.

(6)There is no duty under this paragraph to arrange for access to, or the supply of a photograph or copy of, any material if there are reasonable grounds for believing that to do so would prejudice—

(a)the exercise of any functions in connection with which the material was seized; or

(b)an investigation which is being conducted under this Act, or any criminal proceedings which may be brought as a result.

(7)“Relevant person” means—

(a)a person who had custody or control of seized material immediately before it was seized, or

(b)someone acting on behalf of such a person.

(8)“Seized material” means anything which has been seized and retained under this Schedule.

Search warrants

137Search warrants: safeguards

In the 1971 Act, after section 28I, insert—

28JSearch warrants: safeguards

(1)The entry or search of premises under a warrant is unlawful unless it complies with this section and section 28K.

(2)If an immigration officer applies for a warrant, he must—

(a)state the ground on which he makes the application and the provision of this Act under which the warrant would be issued;

(b)specify the premises which it is desired to enter and search; and

(c)identify, so far as is practicable, the persons or articles to be sought.

(3)In Northern Ireland, an application for a warrant is to be supported by a complaint in writing and substantiated on oath.

(4)Otherwise, an application for a warrant is to be made ex parte and supported by an information in writing or, in Scotland, evidence on oath.

(5)The officer must answer on oath any question that the justice of the peace or sheriff hearing the application asks him.

(6)A warrant shall authorise an entry on one occasion only.

(7)A warrant must specify—

(a)the name of the person applying for it;

(b)the date on which it is issued;

(c)the premises to be searched; and

(d)the provision of this Act under which it is issued.

(8)A warrant must identify, so far as is practicable, the persons or articles to be sought.

(9)Two copies of a warrant must be made.

(10)The copies must be clearly certified as copies.

(11)“Warrant” means a warrant to enter and search premises issued to an immigration officer under this Part or under paragraph 17(2) of Schedule 2.

138Execution of warrants

In the 1971 Act, after section 28J, insert—

28KExecution of warrants

(1)A warrant may be executed by any immigration officer.

(2)A warrant may authorise persons to accompany the officer executing it.

(3)Entry and search under a warrant must be—

(a)within one month from the date of its issue; and

(b)at a reasonable hour, unless it appears to the officer executing it that the purpose of a search might be frustrated.

(4)If the occupier of premises which are to be entered and searched is present at the time when an immigration officer seeks to execute a warrant, the officer must—

(a)identify himself to the occupier and produce identification showing that he is an immigration officer;

(b)show the occupier the warrant; and

(c)supply him with a copy of it.

(5)If—

(a)the occupier is not present, but

(b)some other person who appears to the officer to be in charge of the premises is present,

subsection (4) has effect as if each reference to the occupier were a reference to that other person.

(6)If there is no person present who appears to the officer to be in charge of the premises, the officer must leave a copy of the warrant in a prominent place on the premises.

(7)A search under a warrant may only be a search to the extent required for the purpose for which the warrant was issued.

(8)An officer executing a warrant must make an endorsement on it stating—

(a)whether the persons or articles sought were found; and

(b)whether any articles, other than articles which were sought, were seized.

(9)A warrant which has been executed, or has not been executed within the time authorised for its execution, must be returned—

(a)if issued by a justice of the peace in England and Wales, to the justices' chief executive appointed by the magistrates' court committee whose area includes the petty sessions area for which the justice acts;

(b)if issued by a justice of the peace in Northern Ireland, to the clerk of petty sessions for the petty sessions district in which the premises are situated;

(c)if issued by a justice of the peace in Scotland, to the clerk of the district court for the commission area for which the justice of the peace was appointed;

(d)if issued by the sheriff, to the sheriff clerk.

(10)A warrant returned under subsection (9)(a) must be retained for 12 months by the justices' chief executive.

(11)A warrant issued under subsection (9)(b) or (c) must be retained for 12 months by the clerk.

(12)A warrant returned under subsection (9)(d) must be retained for 12 months by the sheriff clerk.

(13)If during that 12 month period the occupier of the premises to which it relates asks to inspect it, he must be allowed to do so.

(14)“Warrant” means a warrant to enter and search premises issued to an immigration officer under this Part or under paragraph 17(2) of Schedule 2.

139Interpretation

(1)In the 1971 Act, after section 28K, insert—

28LInterpretation of Part III

In this Part, “premises” and “items subject to legal privilege” have the same meaning—

(a)in relation to England and Wales, as in the [1984 c. 60.] Police and Criminal Evidence Act 1984;

(b)in relation to Northern Ireland, as in the [S.I. 1989/1341 (N.I. 12).] Police and Criminal Evidence (Northern Ireland) Order 1989; and

(c)in relation to Scotland, as in section 33 of the [1995 c. 39.] Criminal Law (Consolidation) (Scotland) Act 1995.

(2)In the 1971 Act, in Schedule 2, after paragraph 25D insert—

  • 25E. Section 28L applies for the purposes of this Schedule as it applies for the purposes of Part III.

Detention

140Detention of persons liable to examination or removal

(1)In paragraph 16 of Schedule 2 to the 1971 Act, for sub-paragraph (2) substitute—

(2)If there are reasonable grounds for suspecting that a person is someone in respect of whom directions may be given under any of paragraphs 8 to 10 or 12 to 14, that person may be detained under the authority of an immigration officer pending—

(a)a decision whether or not to give such directions;

(b)his removal in pursuance of such directions.

(2)In paragraph 17(2) of that Schedule (power to grant constable a warrant to search and arrest), for the words from “authorising any constable” to “if need be” substitute “authorising any immigration officer or constable to enter, if need be”.

Fingerprinting

141Fingerprinting

(1)Fingerprints may be taken by an authorised person from a person to whom this section applies.

(2)Fingerprints may be taken under this section only during the relevant period.

(3)Fingerprints may not be taken under this section from a person under the age of sixteen (“the child”) except in the presence of a person of full age who is—

(a)the child’s parent or guardian; or

(b)a person who for the time being takes responsibility for the child.

(4)The person mentioned in subsection (3)(b) may not be—

(a)an officer of the Secretary of State who is not an authorised person;

(b)an authorised person.

(5)“Authorised person” means—

(a)a constable;

(b)an immigration officer;

(c)a prison officer;

(d)an officer of the Secretary of State authorised for the purpose; or

(e)a person who is employed by a contractor in connection with the discharge of the contractor’s duties under a detention centre contract.

(6)In subsection (5)(e) “contractor” and “detention centre contract” have the same meaning as in Part VIII.

(7)This section applies to—

(a)any person (“A”) who, on being required to do so by an immigration officer on his arrival in the United Kingdom, fails to produce a valid passport with photograph or some other document satisfactorily establishing his identity and nationality or citizenship;

(b)any person (“B”) who has been refused leave to enter the United Kingdom but has been temporarily admitted under paragraph 21 of Schedule 2 to the 1971 Act if an immigration officer reasonably suspects that B might break any condition imposed on him relating to residence or as to reporting to the police or an immigration officer;

(c)any person (“C”) in respect of whom—

(i)an immigration officer has given directions under paragraph 9(1) of Schedule 2 to the 1971 Act or under section 10;

(ii)the Secretary of State has given directions under paragraph 10(1) of Schedule 2 to the 1971 Act (but only in a case where it appears to the Secretary of State that the person is a person in respect of whom directions under paragraph 9 of that Schedule might be given); or

(iii)the Secretary of State has given directions under paragraph 1(1) of Schedule 3 to that Act;

(d)any person (“D”) who has been arrested under paragraph 17 of Schedule 2 to the 1971 Act;

(e)any person (“E”) who has made a claim for asylum;

(f)any person (“F”) who is a dependant of any of those persons.

(8)“The relevant period” begins—

(a)for A, on his failure to produce the passport or other document;

(b)for B, on the decision to admit him temporarily;

(c)for C, on the direction being given;

(d)for D, on his arrest;

(e)for E, on the making of his claim for asylum; and

(f)for F, at the same time as for the person whose dependant he is.

(9)“The relevant period” ends on the earliest of the following—

(a)the grant of leave to enter or remain in the United Kingdom;

(b)for A, B, C or D, his removal or deportation from the United Kingdom;

(c)for C, if a deportation order has been made against him, its revocation or otherwise ceasing to have effect;

(d)for D, his release if he is no longer liable to be detained under paragraph 16 of Schedule 2 to the 1971 Act;

(e)for E, the final determination or abandonment of his claim for asylum; and

(f)for F, at the same time as for the person whose dependant he is.

(10)No fingerprints may be taken from A if the immigration officer considers that A has a reasonable excuse for the failure concerned.

(11)No fingerprints may be taken from B unless the decision to take them has been confirmed by a chief immigration officer.

(12)An authorised person may not take fingerprints from a person under the age of sixteen unless his decision to take them has been confirmed—

(a)if he is a constable, by a person designated for the purpose by the chief constable of his police force;

(b)if he is a person mentioned in subsection (5)(b) or (e), by a chief immigration officer;

(c)if he is a prison officer, by a person designated for the purpose by the governor of the prison;

(d)if he is an officer of the Secretary of State, by a person designated for the purpose by the Secretary of State.

(13)Neither subsection (3) nor subsection (12) prevents an authorised person from taking fingerprints if he reasonably believes that the person from whom they are to be taken is aged sixteen or over.

(14)For the purposes of subsection (7)(f), a person is a dependant of another person if—

(a)he is that person’s spouse or child under the age of eighteen; and

(b)he does not have a right of abode in the United Kingdom or indefinite leave to enter or remain in the United Kingdom.

(15)“Claim for asylum” has the same meaning as in Part VI.

142Attendance for fingerprinting

(1)The Secretary of State may, by notice in writing, require a person to whom section 141 applies to attend at a specified place for fingerprinting.

(2)The notice—

(a)must give the person concerned a period of at least seven days within which to attend, beginning not earlier than seven days after the date of the notice; and

(b)may require him to attend at a specified time of day or during specified hours.

(3)A constable or immigration officer may arrest without warrant a person who has failed to comply with a requirement imposed on him under this section (unless the requirement has ceased to have effect).

(4)Before a person arrested under subsection (3) is released—

(a)he may be removed to a place where his fingerprints may conveniently be taken; and

(b)his fingerprints may be taken (whether or not he is so removed).

(5)A requirement imposed under subsection (1) ceases to have effect at the end of the relevant period (as defined by section 141).

143Destruction of fingerprints

(1)If they have not already been destroyed, fingerprints must be destroyed before the end of the specified period beginning with the day on which they were taken.

(2)If a person from whom fingerprints were taken proves that he is—

(a)a British citizen, or

(b)a Commonwealth citizen who has a right of abode in the United Kingdom as a result of section 2(1)(b) of the 1971 Act,

the fingerprints must be destroyed as soon as reasonably practicable.

(3)If a person from whom fingerprints were taken—

(a)in the case of E, is given indefinite leave to enter or remain in the United Kingdom, or

(b)in any other case, is given leave to enter or remain in the United Kingdom,

the fingerprints must be destroyed as soon as reasonably practicable.

(4)Fingerprints taken from B must be destroyed as soon as reasonably practicable after his removal from the United Kingdom.

(5)But subsection (4) does not apply if it appears to the Secretary of State that B has failed to comply with a restriction imposed on him under paragraph 21(2) of Schedule 2 to the 1971 Act.

(6)Fingerprints taken from C must, if the directions cease to have effect, be destroyed as soon as reasonably practicable.

(7)If a deportation order made against C is revoked, any fingerprints taken from him must be destroyed as soon as reasonably practicable.

(8)If D ceases to be liable to be detained under paragraph 16 of Schedule 2 to the 1971 Act, fingerprints taken from him must be destroyed as soon as reasonably practicable.

(9)Fingerprints taken from F must be destroyed when fingerprints taken from the person whose dependant he is have to be destroyed.

(10)The obligation to destroy fingerprints under this section applies also to copies of fingerprints.

(11)The Secretary of State must take all reasonably practicable steps to secure—

(a)that data which are held in electronic form and which relate to fingerprints which have to be destroyed as a result of this section are destroyed or erased; or

(b)that access to such data is blocked.

(12)The person to whom the data relate is entitled, on request, to a certificate issued by the Secretary of State to the effect that he has taken the steps required by subsection (11).

(13)A certificate under subsection (12) must be issued within three months of the date of the request for it.

(14)“Fingerprints” means fingerprints taken under section 141 and references to B, C, D, E and F are to the persons so described in that section.

(15)“Specified period” means—

(a)such period as the Secretary of State may specify by order;

(b)if no period is so specified, ten years.

144Other methods of collecting data about physical characteristics

The Secretary of State may make regulations containing provisions equivalent to sections 141, 142 and 143 in relation to such other methods of collecting data about external physical characteristics as may be prescribed.

Codes of practice

145Codes of practice

(1)An immigration officer exercising any specified power to—

(a)arrest, question, search or take fingerprints from a person,

(b)enter and search premises, or

(c)seize property found on persons or premises,

must have regard to such provisions of a code as may be specified.

(2)Subsection (1) also applies to an authorised person exercising the power to take fingerprints conferred by section 141.

(3)Any specified provision of a code may have effect for the purposes of this section subject to such modifications as may be specified.

(4)“Specified” means specified in a direction given by the Secretary of State.

(5)“Authorised person” has the same meaning as in section 141.

(6)“Code” means—

(a)in relation to England and Wales, any code of practice for the time being in force under the [1984 c. 60.] Police and Criminal Evidence Act 1984;

(b)in relation to Northern Ireland, any code of practice for the time being in force under the [S.I. 1989/1341 (N.I. 12).] Police and Criminal Evidence (Northern Ireland) Order 1989.

(7)This section does not apply to any person exercising powers in Scotland.

Use of force

146Use of force

(1)An immigration officer exercising any power conferred on him by the 1971 Act or this Act may, if necessary, use reasonable force.

(2)Any person exercising a power conferred by section 141 or 142 or regulations under section 144 may, if necessary, use reasonable force.

Part VIIIDetention Centres and Detained Persons

Interpretation

147Interpretation of Part VIII

In this Part—

  • “certificate of authorisation” means a certificate issued by the Secretary of State under section 154;

  • “certified prisoner custody officer” means a prisoner custody officer certified under section 89 of the [1991 c. 53.] Criminal Justice Act 1991, or section 114 of the [1994 c. 33.] Criminal Justice and Public Order Act 1994, to perform custodial duties;

  • “contract monitor” means a person appointed by the Secretary of State under section 149(4);

  • “contracted out detention centre” means a detention centre in relation to which a detention centre contract is in force;

  • “contractor”, in relation to a detention centre which is being run in accordance with a detention centre contract, means the person who has contracted to run it;

  • “custodial functions” means custodial functions at a detention centre;

  • “detained persons” means persons detained or required to be detained under the 1971 Act;

  • “detainee custody officer” means a person in respect of whom a certificate of authorisation is in force;

  • “detention centre” means a place which is used solely for the detention of detained persons but which is not a short-term holding facility, a prison or part of a prison;

  • “detention centre contract” means a contract entered into by the Secretary of State under section 149;

  • “detention centre rules” means rules made by the Secretary of State under section 153;

  • “directly managed detention centre” means a detention centre which is not a contracted out detention centre;

  • “escort arrangements” means arrangements made by the Secretary of State under section 156;

  • “escort functions” means functions under escort arrangements;

  • “escort monitor” means a person appointed under paragraph 1 of Schedule 13;

  • “prisoner custody officer”—

    (a)

    in relation to England and Wales, has the same meaning as in the [1991 c. 53.] Criminal Justice Act 1991;

    (b)

    in relation to Scotland, has the meaning given in section 114(1) of the [1994 c. 33.] Criminal Justice and Public Order Act 1994;

    (c)

    in relation to Northern Ireland, has the meaning given in section 122(1) of that Act of 1994;

  • “short-term holding facility” means a place used solely for the detention of detained persons for a period of not more than seven days or for such other period as may be prescribed.

Detention centres

148Management of detention centres

(1)A manager must be appointed for every detention centre.

(2)In the case of a contracted out detention centre, the person appointed as manager must be a detainee custody officer whose appointment is approved by the Secretary of State.

(3)The manager of a detention centre is to have such functions as are conferred on him by detention centre rules.

(4)The manager of a contracted out detention centre may not—

(a)enquire into a disciplinary charge laid against a detained person;

(b)conduct the hearing of such a charge; or

(c)make, remit or mitigate an award in respect of such a charge.

(5)The manager of a contracted out detention centre may not, except in cases of urgency, order—

(a)the removal of a detained person from association with other detained persons;

(b)the temporary confinement of a detained person in special accommodation; or

(c)the application to a detained person of any other special control or restraint (other than handcuffs).

149Contracting out of certain detention centres

(1)The Secretary of State may enter into a contract with another person for the provision or running (or the provision and running) by him, or (if the contract so provides) for the running by sub-contractors of his, of any detention centre or part of a detention centre.

(2)While a detention centre contract for the running of a detention centre or part of a detention centre is in force—

(a)the detention centre or part is to be run subject to and in accordance with the provisions of or made under this Part; and

(b)in the case of a part, that part and the remaining part are to be treated for the purposes of those provisions as if they were separate detention centres.

(3)If the Secretary of State grants a lease or tenancy of land for the purposes of a detention centre contract, none of the following enactments applies to the lease or tenancy—

(a)Part II of the [1954 c. 56.] Landlord and Tenant Act 1954 (security of tenure);

(b)section 146 of the [1925 c. 20.] Law of Property Act 1925 (restrictions on and relief against forfeiture);

(c)section 19(1), (2) and (3) of the [1927 c. 36] Landlord and Tenant Act 1927 and the [1988 c. 26.] Landlord and Tenant Act 1988 (covenants not to assign etc.);

(d)the [1986 c. 5.] Agricultural Holdings Act 1986;

(e)sections 4 to 7 of the [1985 c. 73.] Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (irritancy clauses);

(f)the [1991 c. 55.] Agricultural Holdings (Scotland) Act 1991;

(g)section 14 of the [1881 c. 41.] Conveyancing Act 1881;

(h)the [1892 c. 13.] Conveyancing and Law of Property Act 1892;

(i)the [S.I. 1996/725 (N.I. 5).] Business Tenancies (Northern Ireland) Order 1996.

(4)The Secretary of State must appoint a contract monitor for every contracted out detention centre.

(5)A person may be appointed as the contract monitor for more than one detention centre.

(6)The contract monitor is to have—

(a)such functions as may be conferred on him by detention centre rules;

(b)the status of a Crown servant.

(7)The contract monitor must—

(a)keep under review, and report to the Secretary of State on, the running of a detention centre for which he is appointed; and

(b)investigate, and report to the Secretary of State on, any allegations made against any person performing custodial functions at that centre.

(8)The contractor, and any sub-contractor of his, must do all that he reasonably can (whether by giving directions to the officers of the detention centre or otherwise) to facilitate the exercise by the contract monitor of his functions.

(9)“Lease or tenancy” includes an underlease, sublease or sub-tenancy.

(10)In relation to a detention centre contract entered into by the Secretary of State before the commencement of this section, this section is to be treated as having been in force at that time.

150Contracted out functions at directly managed detention centres

(1)The Secretary of State may enter into a contract with another person—

(a)for functions at, or connected with, a directly managed detention centre to be performed by detainee custody officers provided by that person; or

(b)for such functions to be performed by certified prisoner custody officers who are provided by that person.

(2)For the purposes of this section “detention centre” includes a short-term holding facility.

151Intervention by Secretary of State

(1)The Secretary of State may exercise the powers conferred by this section if it appears to him that—

(a)the manager of a contracted out detention centre has lost, or is likely to lose, effective control of the centre or of any part of it; or

(b)it is necessary to do so in the interests of preserving the safety of any person, or of preventing serious damage to any property.

(2)The Secretary of State may appoint a person (to be known as the Controller) to act as manager of the detention centre for the period—

(a)beginning with the time specified in the appointment; and

(b)ending with the time specified in the notice of termination under subsection (5).

(3)During that period—

(a)all the functions which would otherwise be exercisable by the manager or the contract monitor are to be exercisable by the Controller;

(b)the contractor and any sub-contractor of his must do all that he reasonably can to facilitate the exercise by the Controller of his functions; and

(c)the staff of the detention centre must comply with any directions given by the Controller in the exercise of his functions.

(4)The Controller is to have the status of a Crown servant.

(5)If the Secretary of State is satisfied that a Controller is no longer needed for a particular detention centre, he must (by giving notice to the Controller) terminate his appointment at a time specified in the notice.

(6)As soon as practicable after making an appointment under this section, the Secretary of State must give notice of the appointment to those entitled to notice.

(7)As soon as practicable after terminating an appointment under this section, the Secretary of State must give a copy of the notice of termination to those entitled to notice.

(8)Those entitled to notice are the contractor, the manager, the contract monitor and the Controller.

152Visiting Committees and inspections

(1)The Secretary of State must appoint a committee (to be known as the Visiting Committee) for each detention centre.

(2)The functions of the Visiting Committee for a detention centre are to be such as may be prescribed by the detention centre rules.

(3)Those rules must include provision—

(a)as to the making of visits to the centre by members of the Visiting Committee;

(b)for the hearing of complaints made by persons detained in the centre;

(c)requiring the making of reports by the Visiting Committee to the Secretary of State.

(4)Every member of the Visiting Committee for a detention centre may at any time enter the centre and have free access to every part of it and to every person detained there.

(5)In section 5A of the [1952 c. 52.] Prison Act 1952 (which deals with the appointment and functions of Her Majesty’s Chief Inspector of Prisons), after subsection (5), insert—

(5A)Subsections (2) to (5) apply to detention centres (as defined by section 147 of the Immigration and Asylum Act 1999 and including any in Scotland) and persons detained in such detention centres as they apply to prisons and prisoners.

153Detention centre rules

(1)The Secretary of State must make rules for the regulation and management of detention centres.

(2)Detention centre rules may, among other things, make provision with respect to the safety, care, activities, discipline and control of detained persons.

Custody and movement of detained persons

154Detainee custody officers

(1)On an application made to him under this section, the Secretary of State may certify that the applicant—

(a)is authorised to perform escort functions; or

(b)is authorised to perform both escort functions and custodial functions.

(2)The Secretary of State may not issue a certificate of authorisation unless he is satisfied that the applicant—

(a)is a fit and proper person to perform the functions to be authorised; and

(b)has received training to such standard as the Secretary of State considers appropriate for the performance of those functions.

(3)A certificate of authorisation continues in force until such date, or the occurrence of such event, as may be specified in the certificate but may be suspended or revoked under paragraph 7 of Schedule 11.

(4)A certificate which authorises the performance of both escort functions and custodial functions may specify one date or event for one of those functions and a different date or event for the other.

(5)If the Secretary of State considers that it is necessary for the functions of detainee custody officers to be conferred on prison officers or prisoner custody officers, he may make arrangements for that purpose.

(6)A prison officer acting under arrangements made under subsection (5) has all the powers, authority, protection and privileges of a constable.

(7)Schedule 11 makes further provision about detainee custody officers.

155Custodial functions and discipline etc. at detention centres

(1)Custodial functions may be discharged at a detention centre only by—

(a)a detainee custody officer authorised, in accordance with section 154(1), to perform such functions; or

(b)a prison officer, or a certified prisoner custody officer, exercising functions in relation to the detention centre—

(i)in accordance with arrangements made under section 154(5); or

(ii)as a result of a contract entered into under section 150(1)(b).

(2)Schedule 12 makes provision with respect to discipline and other matters at detention centres and short-term holding facilities.

156Arrangements for the provision of escorts and custody

(1)The Secretary of State may make arrangements for—

(a)the delivery of detained persons to premises in which they may lawfully be detained;

(b)the delivery of persons from any such premises for the purposes of their removal from the United Kingdom in accordance with directions given under the 1971 Act or this Act;

(c)the custody of detained persons who are temporarily outside such premises;

(d)the custody of detained persons held on the premises of any court.

(2)Escort arrangements may provide for functions under the arrangements to be performed, in such cases as may be determined by or under the arrangements, by detainee custody officers.

(3)“Court” includes—

(a)adjudicators;

(b)the Immigration Appeal Tribunal;

(c)the Commission.

(4)Escort arrangements may include entering into contracts with other persons for the provision by them of—

(a)detainee custody officers; or

(b)prisoner custody officers who are certified under section 89 of the Criminal Justice Act 1991, or section 114 or 122 of the [1994 c. 33.] Criminal Justice and Public Order Act 1994, to perform escort functions.

(5)Schedule 13 makes further provision about escort arrangements.

(6)A person responsible for performing a function of a kind mentioned in subsection (1), in accordance with a transfer direction, complies with the direction if he does all that he reasonably can to secure that the function is performed by a person acting in accordance with escort arrangements.

(7)“Transfer direction” means a transfer direction given under—

(a)section 48 of the [1983 c. 20.] Mental Health Act 1983 or section 71 of the [1984 c. 36.] Mental Health (Scotland) Act 1984 (removal to hospital of, among others, persons detained under the 1971 Act); or

(b)in Northern Ireland, article 54 of the [S.I. 1986/595 (N.I. 4).] Mental Health (Northern Ireland) Order 1986 (provision corresponding to section 48 of the 1983 Act).

157Short-term holding facilities

(1)The Secretary of State may by regulations extend any provision made by or under this Part in relation to detention centres (other than one mentioned in subsection (2)) to short-term holding facilities.

(2)Subsection (1) does not apply to section 150.

(3)The Secretary of State may make rules for the regulation and management of short-term holding facilities.

Miscellaneous

158Wrongful disclosure of information

(1)A person who is or has been employed (whether as a detainee custody officer, prisoner custody officer or otherwise)—

(a)in accordance with escort arrangements,

(b)at a contracted out detention centre, or

(c)to perform contracted out functions at a directly managed detention centre,

is guilty of an offence if he discloses, otherwise than in the course of his duty or as authorised by the Secretary of State, any information which he acquired in the course of his employment and which relates to a particular detained person.

(2)A person guilty of such an offence is liable—

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

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

(3)“Contracted out functions” means functions which, as the result of a contract entered into under section 150, fall to be performed by detainee custody officers or certified prisoner custody officers.

159Power of constable to act outside his jurisdiction

(1)For the purpose of taking a person to or from a detention centre under the order of any authority competent to give the order, a constable may act outside the area of his jurisdiction.

(2)When acting under this section, the constable concerned retains all the powers, authority, protection and privileges of his office.

Part IXRegistrar’s Certificates: Procedure

160Abolition of certificate by licence

(1)In the [1949 c. 76.] Marriage Act 1949, in section 26, omit subsection (2) (marriage under superintendent registrar’s certificate to be by licence issued by the registrar or without licence).

(2)In section 27 of the 1949 Act—

(a)in subsection (1), omit “without licence”;

(b)omit subsection (2);

(c)in subsection (3), in paragraph (a), omit “in the case of a marriage intended to be solemnized without licence,”;

(d)in subsection (3), omit paragraph (b).

(3)Section 32 of the 1949 Act (marriage under certificate by licence) shall cease to have effect.

(4)In section 31 of the 1949 Act (marriage under certificate without licence requiring 21 days' notice)—

(a)in subsection (1), omit “without licence” and for “twenty-one” substitute “15”;

(b)in subsection (2), for “twenty-one” substitute “15”;

(c)in subsection (4), omit “without licence” and for “said period of twenty-one days” substitute “waiting period in relation to each notice of marriage”.

(5)In section 31 of the 1949 Act, after subsection (4) insert—

(4A)“The waiting period”, in relation to a notice of marriage, means—

(a)the period of 15 days, or

(b)such shorter period as may be determined by the Registrar General under subsection (5A) or by a superintendent registrar under any provision of regulations made under subsection (5D),

after the day on which the notice of marriage was entered in the marriage notice book.

(6)In section 31 of the 1949 Act, insert at the end—

(5A)If, on an application made to the Registrar General, he is satisfied that there are compelling reasons for reducing the 15 day period because of the exceptional circumstances of the case, he may reduce that period to such shorter period as he considers appropriate.

(5B)“The 15 day period” means the period of 15 days mentioned in subsections (1) and (2).

(5C)If the Registrar General reduces the 15 day period in a particular case, the reference to 15 days in section 75(3)(a) is to be treated, in relation to that case, as a reference to the reduced period.

(5D)The Registrar General may by regulations make provision with respect to the making, and granting, of applications under subsection (5A).

(5E)The regulations—

(a)may provide for the power conferred by subsection (5A) to be exercised by a superintendent registrar on behalf of the Registrar General in cases falling within a category prescribed in the regulations;

(b)may provide for the making of an appeal to the Registrar General against a decision taken by a superintendent registrar in accordance with regulations made by virtue of paragraph (a);

(c)may make different provision in relation to different cases;

(d)require the approval of the Chancellor of the Exchequer.

(5F)The Chancellor of the Exchequer may by order provide for a fee, of such an amount as may be specified in the order, to be payable on an application under subsection (5A).

(5G)The order may make different provision in relation to different cases.

(5H)The power to make regulations under subsection (5D) or an order under subsection (5F) is exercisable by statutory instrument.

(5I)Any statutory instrument made under subsection (5F) shall be subject to annulment in pursuance of a resolution of either House of Parliament.

161Notice of marriage

(1)In the [1949 c. 76.] Marriage Act 1949, in section 27(1) (persons by whom notice of marriage must be given)—

(a)in paragraph (a), for “either” substitute “each”;

(b)in paragraph (b), for “either” substitute “each” and for “each registration district in which one of them has resided” substitute “the registration district in which he or she has resided”.

(2)In section 27 of the 1949 Act, in subsection (3) (matters to be stated in notice of marriage), for “and place of residence” substitute “, place of residence and nationality”.

(3)In the 1949 Act, in section 26(1) (marriages which may be solemnized on authority of a certificate of a superintendent registrar), for “a certificate” substitute “two certificates”.

(4)In the [1863 c. 27.] Marriage Law (Ireland) Amendment Act 1863, in section 2(3) (matters to be stated in notice of marriage), after “dwelling place” insert “and the nationality”.

162Power to require evidence

(1)In the Marriage Act 1949, after section 28, insert—

28APower to require evidence

(1)A superintendent registrar to whom a notice of marriage is given under section 27, or any other person attesting a declaration accompanying such a notice, may require the person giving the notice to provide him with specified evidence—

(a)relating to that person; or

(b)if the superintendent registrar considers that the circumstances are exceptional, relating to each of the persons to be married.

(2)Such a requirement may be imposed at any time—

(a)on or after the giving of the notice of marriage; but

(b)before the superintendent registrar issues his certificate under section 31.

(3)“Specified evidence”, in relation to a person, means such evidence of that person's—

(a)name and surname,

(b)age,

(c)marital status, and

(d)nationality,

as may be specified in guidance issued by the Registrar General.

(2)In the [1863 c. 27.] Marriage Law (Ireland) Amendment Act 1863, after section 3, insert—

3APower to require evidence

(1)A registrar to whom a notice of marriage mentioned in section 2 is given may require the person giving the notice to provide him with specified evidence relating to each of the persons to be married.

(2)Such a requirement may be imposed at any time—

(a)on or after the giving of the notice of marriage; but

(b)before the registrar issues his certificate.

(3)“Specified evidence”, in relation to a person, means such evidence of that person's—

(a)name and surname,

(b)age,

(c)marital status, and

(d)nationality,

as may be specified in guidance issued by the Registrar General.

163Refusal to issue certificate

(1)In the [1949 c. 76.] Marriage Act 1949, in section 31(2) (issue of marriage certificate), for paragraph (a) substitute—

(a)the superintendent registrar is not satisfied that there is no lawful impediment to the issue of the certificate; or.

(2)In the 1949 Act, after section 31, insert—

31AAppeal on refusal under section 31(2)(a)

(1)If, relying on section 31(2)(a), a superintendent registrar refuses to issue a certificate, the person applying for it may appeal to the Registrar General.

(2)On such an appeal, the Registrar General must—

(a)confirm the refusal; or

(b)direct that a certificate be issued.

(3)If—

(a)relying on section 31(2)(a), a superintendent registrar refuses to issue a certificate as a result of a representation made to him, and

(b)on an appeal against the refusal, the Registrar General declares the representation to have been frivolous and to be such that it ought not to obstruct the issue of a certificate,

the person making the representation is liable for the costs of the proceedings before the Registrar General and for damages recoverable by the applicant for the certificate.

(4)For the purpose of enabling a person to recover any such costs and damages, a copy of the declaration of the Registrar General purporting to be sealed with the seal of the General Register Office is evidence that the Registrar General has declared the representation to have been frivolous and to be such that it ought not to obstruct the issue of a certificate.

(3)In the [1844 c. 81.] Marriages (Ireland) Act 1844, in section 16 (issue of marriage certificate), for “provided that no lawful impediment be shown to the satisfaction of the registrar why such certificate should not issue” substitute “unless the registrar is not satisfied that there is no lawful impediment to the issue of the certificate”.

(4)In the 1844 Act, after section 16, insert—

16AAppeal on refusal under section 16

(1)If the registrar refuses to issue a certificate under section 16 on the ground that he is not satisfied that there is no lawful impediment to the issue of the certificate, the party by whom the notice was given may appeal to the Registrar General.

(2)On such an appeal, the Registrar General must—

(a)confirm the refusal; or

(b)direct that a certificate be issued.

(3)If—

(a)the registrar refuses to issue a certificate under section 16 on the ground specified in subsection (1) as a result of a representation made to him, and

(b)on an appeal against the refusal, the Registrar General declares the representation to have been frivolous and to be such that it ought not to obstruct the issue of a certificate,

the person making the representation is liable for the costs of the proceedings before the Registrar General and for damages recoverable by the applicant for the certificate.

(4)For the purpose of enabling a person to recover any such costs and damages, a copy of the declaration of the Registrar General purporting to be sealed with the seal of the General Register Office is evidence that the Registrar General has declared the representation to have been frivolous and to be such that it ought not to obstruct the issue of a certificate.

Part XMiscellaneous and Supplemental

164Institution of proceedings

In section 3(2) of the [1985 c. 23.] Prosecution of Offences Act 1985 (proceedings which must be conducted by the Director of Public Prosecutions), after paragraph (a) insert—

(aa)to take over the conduct of any criminal proceedings instituted by an immigration officer (as defined for the purposes of the [1971 c. 77.] Immigration Act 1971) acting in his capacity as such an officer;.

165Procedural requirements as to applications

In the 1971 Act, after section 31, insert—

31AProcedural requirements as to applications

(1)If a form is prescribed for a particular kind of application under this Act, any application of that kind must be made in the prescribed form.

(2)If procedural or other steps are prescribed in relation to a particular kind of application under this Act, those steps must be taken in respect of any application of that kind.

(3)“Prescribed” means prescribed in regulations made by the Secretary of State.

(4)The power to make regulations under this section is exercisable by statutory instrument.

(5)Any such statutory instrument shall be subject to annulment in pursuance of a resolution of either House of Parliament.

166Regulations and orders

(1)Any power to make rules, regulations or orders conferred by this Act is exercisable by statutory instrument.

(2)But subsection (1) does not apply in relation to rules made under paragraph 1 of Schedule 5 or immigration rules.

(3)Any statutory instrument made as a result of subsection (1) may—

(a)contain such incidental, supplemental, consequential and transitional provision as the person making it considers appropriate;

(b)make different provision for different cases or descriptions of case; and

(c)make different provision for different areas.

(4)No order is to be made under—

(a)section 20,

(b)section 21,

(c)section 31(10),

(d)section 86(2),

(e)section 96(5),

(f)section 97(3),

(g)section 143(15), or

(h)paragraph 4 of Schedule 5,

unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

(5)No regulations are to be made under—

(a)section 9,

(b)section 46(8);

(c)section 53, or

(d)section 144,

unless a draft of the regulations has been laid before Parliament and approved by a resolution of each House.

(6)Any statutory instrument made under this Act, apart from one made—

(a)under any of the provisions mentioned in subsection (4) or (5), or

(b)under section 24(3) or 170(4) or (7),

shall be subject to annulment by a resolution of either House of Parliament.

167Interpretation

(1)In this Act—

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

  • “adjudicator” (except in Part VI) means an adjudicator appointed under section 57;

  • “Chief Adjudicator” means the person appointed as Chief Adjudicator under section 57(2);

  • “claim for asylum” (except in Parts V and VI and section 141) means a claim that it would be contrary to the United Kingdom’s obligations under the Refugee Convention for the claimant to be removed from, or required to leave, the United Kingdom;

  • “the Commission” means the Special Immigration Appeals Commission;

  • “country” includes any territory;

  • “EEA State” means a State which is a Contracting Party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 as it has effect for the time being;

  • “the Human Rights Convention” means the Convention for the Protection of Human Rights and Fundamental Freedoms, agreed by the Council of Europe at Rome on 4th November 1950 as it has effect for the time being in relation to the United Kingdom;

  • “the Immigration Acts” means—

    (a)

    the 1971 Act;

    (b)

    the [1988 c. 14.] Immigration Act 1988;

    (c)

    the [1993 c. 23.] Asylum and Immigration Appeals Act 1993;

    (d)

    the [1996 c. 49.] Asylum and Immigration Act 1996; and

    (e)

    this Act;

  • “prescribed” means prescribed by regulations made by the Secretary of State;

  • “the Refugee Convention” means the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol to the Convention;

  • “voluntary organisations” means bodies (other than public or local authorities) whose activities are not carried on for profit.

(2)The following expressions have the same meaning as in the 1971 Act—

  • “certificate of entitlement”;

  • “entry clearance”;

  • “illegal entrant”;

  • “immigration officer”;

  • “immigration rules”;

  • “port”;

  • “United Kingdom passport”;

  • “work permit”.

168Expenditure and receipts

(1)There is to be paid out of money provided by Parliament—

(a)any expenditure incurred by the Secretary of State or the Lord Chancellor in consequence of this Act; and

(b)any increase attributable to this Act in the sums so payable by virtue of any other Act.

(2)Sums received by the Secretary of State under section 5, 32, 40, 112 or 113 or by the Lord Chancellor under section 48(4) or 49(4) must be paid into the Consolidated Fund.

169Minor and consequential amendments, transitional provisions and repeals

(1)Schedule 14 makes minor and consequential amendments.

(2)Schedule 15 contains transitional provisions and savings.

(3)The enactments set out in Schedule 16 are repealed.

170Short title, commencement and extent

(1)This Act may be cited as the Immigration and Asylum Act 1999.

(2)Subsections (1) and (2) of section 115 come into force on the day on which the first regulations made under Schedule 8 come into force.

(3)The following provisions come into force on the passing of this Act—

(a)section 4;

(b)section 9;

(c)section 15;

(d)section 27;

(e)section 31;

(f)section 94;

(g)section 95(13);

(h)section 99(4) and (5);

(i)sections 105 to 109;

(j)section 110(1), (2) and (8) (so far as relating to subsections (1) and (2));

(k)section 111;

(l)section 124;

(m)section 140;

(n)section 145;

(o)section 146(1);

(p)sections 166 to 168;

(q)this section;

(r)Schedule 9;

(s)paragraphs 62(2), 73, 78, 79, 81, 82, 87, 88 and 102 of Schedule 14;

(t)paragraphs 2 and 13 of Schedule 15.

(4)The other provisions of this Act, except section 10 and paragraph 12 of Schedule 15 (which come into force in accordance with section 9), come into force on such day as the Secretary of State may by order appoint.

(5)Different days may be appointed for different purposes.

(6)This Act extends to Northern Ireland.

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

SCHEDULES

Sections 37(6) and 42(8).

SCHEDULE 1Sale of Transporters

Leave of court required

1(1)The sale of a transporter requires the leave of the court.

(2)The court is not to give its leave except on proof—

(a)that the penalty or charge is or was due;

(b)that the person liable to pay it or any connected expenses has failed to do so; and

(c)that the transporter which the Secretary of State seeks leave to sell is liable to sale.

Notice of proposed sale

2Before applying for leave to sell a transporter, the Secretary of State must take such steps as may be prescribed—

(a)for bringing the proposed sale to the notice of persons whose interests may be affected by a decision of the court to grant leave; and

(b)for affording to any such person an opportunity of becoming a party to the proceedings if the Secretary of State applies for leave.

Duty to obtain best price

3If leave for sale is given, the Secretary of State must secure that the transporter is sold for the best price that can reasonably be obtained.

Effect of failure to comply with paragraph 2 or 3

4Failure to comply with any requirement of paragraph 2 or 3 in respect of any sale—

(a)is actionable against the Secretary of State at the suit of any person suffering loss in consequence of the sale; but

(b)after the sale has taken place, does not affect its validity.

Application of proceeds of sale

5(1)Any proceeds of sale arising from a sale under section 37 or 42 must be applied—

(a)in making prescribed payments; and

(b)in accordance with such provision as to priority of payments as may be prescribed.

(2)The regulations may, in particular, provide for proceeds of sale to be applied in payment—

(a)of customs or excise duty,

(b)of value added tax,

(c)of expenses incurred by the Secretary of State,

(d)of any penalty or charge which the court has found to be due,

(e)in the case of the sale of an aircraft, of charges due as a result of regulations made under section 73 of the [1982 c. 16.] Civil Aviation Act 1982,

(f)of any surplus to or among the person or persons whose interests in the transporter have been divested as a result of the sale,

but not necessarily in that order of priority.

Section 56(2).

SCHEDULE 2The Immigration Appeal Tribunal

Members

1(1)The members of the Tribunal are to be appointed by the Lord Chancellor.

(2)The Lord Chancellor may appoint such number of legally qualified members and of other members as he considers appropriate.

(3)A person is legally qualified if—

(a)he has a 7 year general qualification, within the meaning of section 71 of the [1990 c. 41.] Courts and Legal Services Act 1990;

(b)he is an advocate or solicitor in Scotland of at least 7 years' standing;

(c)he is a member of the Bar of Northern Ireland or solicitor of the Supreme Court of Northern Ireland of at least 7 years' standing; or

(d)he has such legal and other experience as appears to the Lord Chancellor to make him suited for appointment as a legally qualified member.

President and Deputy President

2(1)The Lord Chancellor must appoint one legally qualified member to be President of the Tribunal and another such member to be Deputy President.

(2)The Deputy President is to have such functions in relation to the Tribunal as the President may assign to him.

(3)If the President is temporarily absent or otherwise unable to act, the Deputy President may act on his behalf.

Term of office

3(1)Each member of the Tribunal—

(a)is to hold and vacate his office in accordance with the terms of his appointment;

(b)is, on ceasing to hold office, eligible for re-appointment;

(c)may resign his office at any time by giving written notice to the Lord Chancellor;

(d)must vacate his office on the day on which he reaches the age of 70.

(2)But sub-paragraph (1)(d) is subject to subsections (4) to (6) of section 26 of the [1993 c. 8.] Judicial Pensions and Retirement Act 1993 (power to authorise continuance in office up to the age of 75).

Remuneration

4The Lord Chancellor must pay to the members such remuneration and allowances as he may determine.

Compensation

5If a person ceases to be a member and it appears to the Lord Chancellor that there are special circumstances which make it right that he should receive compensation, the Lord Chancellor may pay him a sum of such amount as the Lord Chancellor may determine.

Proceedings

6(1)For the purpose of hearing and determining appeals under this Act or any matter preliminary or incidental to such an appeal, the Tribunal must sit at such times and in such place or places as the Lord Chancellor may direct.

(2)The Tribunal may sit in two or more divisions.

(3)The jurisdiction of the Tribunal may be exercised by such number of members as the President may direct.

(4)A direction under sub-paragraph (3) may—

(a)be given in relation to a specified case or category of case;

(b)provide for the jurisdiction to be exercised by a single member;

(c)require the member exercising the jurisdiction, or a specified number of the members exercising the jurisdiction, to be legally qualified;

(d)be varied at any time by a further direction given by the President.

(5)“Specified” means specified in the direction.

Staff

7(1)The Lord Chancellor may appoint such staff for the Tribunal as he may determine.

(2)The remuneration of the Tribunal’s staff is to be defrayed by the Lord Chancellor.

(3)Such expenses of the Tribunal as the Lord Chancellor may determine are to be defrayed by the Lord Chancellor.

Section 57(3).

SCHEDULE 3Adjudicators

Deputy Chief Adjudicator and Regional Adjudicators

1(1)The Lord Chancellor may appoint one of the adjudicators as Deputy Chief Adjudicator.

(2)The Lord Chancellor may appoint as Regional Adjudicators such number of the adjudicators as he may determine.

(3)A person appointed under sub-paragraph (1) or (2) is to have such functions as the Chief Adjudicator may assign to him.

(4)If the Chief Adjudicator is temporarily absent or otherwise unable to act, the Deputy Chief Adjudicator may act on his behalf.

Qualification for appointment

2A person is qualified for appointment as an adjudicator only if—

(a)he has a 7 year general qualification, within the meaning of section 71 of the [1990 c. 41.] Courts and Legal Services Act 1990;

(b)he is an advocate or solicitor in Scotland of at least 7 years' standing;

(c)he is a member of the Bar of Northern Ireland or solicitor of the Supreme Court of Northern Ireland of at least 7 years' standing; or

(d)he has such legal and other experience as appears to the Lord Chancellor to make him suited for appointment as an adjudicator.

Term of office

3(1)Each adjudicator—

(a)is to hold and vacate his office in accordance with the terms of his appointment;

(b)is, on ceasing to hold office, eligible for re-appointment;

(c)may resign his office at any time by giving written notice to the Lord Chancellor;

(d)must vacate his office on the day on which he reaches the age of 70.

(2)But sub-paragraph (1)(d) is subject to subsections (4) to (6) of section 26 of the [1993 c. 8.] Judicial Pensions and Retirement Act 1993 (power to authorise continuance in office up to the age of 75).

Remuneration

4The Lord Chancellor must pay to the adjudicators such remuneration and allowances as he may determine.

Compensation

5If a person ceases to be an adjudicator and it appears to the Lord Chancellor that there are special circumstances which make it right that he should receive compensation, the Lord Chancellor may pay him a sum of such amount as the Lord Chancellor may determine.

Proceedings

6(1)The adjudicators must sit at such times and at such places as the Lord Chancellor may direct.

(2)The Chief Adjudicator—

(a)must allocate duties among the adjudicators; and

(b)is to have such other functions as may be conferred on him by the Lord Chancellor.

(3)The Chief Adjudicator may direct that, in a specified case or category of case, an appeal to an adjudicator is to be heard by such number of adjudicators as may be specified.

(4)“Specified” means specified in the direction.

Staff

7(1)The Lord Chancellor may appoint such staff for the adjudicators as he may determine.

(2)The remuneration of the adjudicators' staff is to be defrayed by the Lord Chancellor.

(3)Such expenses of the adjudicators as the Lord Chancellor may determine are to be defrayed by the Lord Chancellor.

Section 58(2) to (4).

SCHEDULE 4Appeals

Part IProcedure

Notice of appealable matters

1(1)The Secretary of State may by regulations provide—

(a)for written notice to be given to a person of any such decision or action taken in respect of him as is appealable under Part IV (whether or not in his particular case he is entitled to appeal) or would be so appealable but for the ground on which it was taken;

(b)for any such notice to include a statement of the reasons for the decision or action and, where the action is the giving of directions for the removal of the person from the United Kingdom, of the country to which he is to be removed;

(c)for any such notice to be accompanied by a statement containing particulars of the rights of appeal available under Part IV and of the procedure by which those rights may be exercised;

(d)for the form of any such notice or statement and the way in which a notice is to be, or may be, given.

(2)For the purpose of any proceedings under Part IV, a statement included in a notice in accordance with the regulations is conclusive as to the person by whom and the ground on which any decision or action was taken.

Service of notices

2If a notice given under regulations made under paragraph 1 is sent by first class post, addressed to the person to whom the notice is required to be given, it is to be taken to have been received by that person on the second day after the day on which it was posted unless the contrary is proved.

Lord Chancellor’s rules of procedure

3The Lord Chancellor may make rules—

(a)for regulating the exercise of the rights of appeal conferred by Part IV;

(b)for prescribing the practice and procedure to be followed on or in connection with appeals under Part IV, including the mode and burden of proof and admissibility of evidence on such an appeal; and

(c)for other matters preliminary or incidental or arising out of such appeals, including proof of the decisions of the adjudicator or the Immigration Appeal Tribunal.

4(1)The rules may include provision—

(a)enabling appeals to be determined without a hearing;

(b)enabling an adjudicator or the Tribunal to allow or dismiss an appeal without considering its merits—

(i)if there has been a failure by one of the parties to comply with a provision of the rules or with a direction given under the rules: or

(ii)if one of the parties has failed to attend at a hearing;

(c)enabling or requiring an adjudicator or the Tribunal to treat an appeal as abandoned in specified circumstances;

(d)enabling the Tribunal, on an appeal from an adjudicator, to remit the appeal to an adjudicator for determination by him in accordance with any directions of the Tribunal, or for further evidence to be obtained with a view to determination by the Tribunal;

(e)as to the circumstances in which—

(i)a decision of an adjudicator may be set aside by an adjudicator; or

(ii)a decision of the Tribunal may be set aside by the Tribunal;

(f)conferring on adjudicators or the Tribunal such ancillary powers as the Lord Chancellor thinks necessary for the purposes of the exercise of their functions;

(g)as to the procedure to be followed on applications to the Tribunal for leave to appeal under paragraph 23.

(2)The rules must provide that any appellant is to have the right to be legally represented at any hearing of his appeal.

(3)Nothing in this paragraph affects the scope of the power conferred by paragraph 3.

(4)In this Schedule “rules” means rules under this paragraph.

Practice directions

5(1)The President of the Tribunal may give directions as to the practice and procedure to be followed by the Tribunal in relation to appeals and applications to it.

(2)The Chief Adjudicator may give directions as to the practice and procedure to be followed by adjudicators in relation to appeals and applications to them.

Hearings in private

6(1)Sub-paragraph (2) applies if, on an appeal under Part IV, it is alleged—

(a)that a passport or other travel document, certificate of entitlement, entry clearance or work permit (or any part of it or entry in it) on which a party relies is a forgery, and

(b)that the disclosure to that party of any matters relating to the method of detection would be contrary to the public interest.

(2)The adjudicator or Tribunal must arrange—

(a)for the proceedings to take place in the absence of that party and his representatives while the allegation mentioned in sub-paragraph (1)(b) is inquired into by the adjudicator or Tribunal; and

(b)if it appears to the adjudicator or Tribunal that the allegation is made out, for such further period as appears necessary in order to ensure that those matters can be presented to the adjudicator or Tribunal without any disclosure being directly or indirectly made contrary to the public interest.

Leave to appeal

7If, under the rules, leave to appeal to the Tribunal is required in cases in which an adjudicator dismisses an appeal under section 59, the authority having power to grant leave must grant it—

(a)if the appeal was against a decision that the appellant required leave to enter the United Kingdom and the authority is satisfied that at the time of the decision he held a certificate of entitlement; and

(b)if the appeal was against a refusal of leave to enter and the authority is satisfied that—

(i)at the time of the refusal the appellant held an entry clearance; and

(ii)the dismissal of the appeal was not required by paragraph 24.

Offences

8A person who is required under or in accordance with the rules to attend and give evidence or produce documents before an adjudicator or the Tribunal, and fails without reasonable excuse to comply with the requirement is guilty of an offence and liable on summary conviction to a fine not exceeding level three on the standard scale.

Convention cases

9(1)This paragraph applies to an appeal under Part IV of this Act by a person who claims that it would be contrary to the Convention for him to be removed from, or to be required to leave, the United Kingdom, if the Secretary of State has certified that, in his opinion, that claim is one to which—

(a)sub-paragraph (3), (4), (5) or (6) applies; and

(b)sub-paragraph (7) does not apply.

(2)If, on an appeal to which this paragraph applies, the adjudicator agrees that the claim is one to which this paragraph applies, paragraph 22 does not confer on the appellant any right to appeal to the Immigration Appeal Tribunal.

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

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

(b)he produced an invalid passport and failed to inform the officer that it was not valid.

(4)This sub-paragraph applies to a claim under the Refugee Convention if—

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

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

(5)This sub-paragraph applies to a claim under the Human Rights Convention if—

(a)it does not disclose a right under the Convention; or

(b)it does disclose a right under the Convention, but the claim is manifestly unfounded.

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

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

(i)has been refused leave to enter the United Kingdom under the 1971 Act;

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

(iii)has been notified of the Secretary of State’s decision to make a deportation order against him under section 5(1) of the 1971 Act as a result of his liability to deportation; or

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

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

(c)it is frivolous or vexatious.

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

(8)“Contrary to the Convention” means contrary to the United Kingdom’s obligations under the Refugee Convention or the Human Rights Convention.

Part IIEffect of Appeals

Stay on directions for removal

10If a person in the United Kingdom appeals under section 59 or 69(1) on being refused leave to enter, any directions previously given by virtue of the refusal for his removal from the United Kingdom cease to have effect, except in so far as they have already been carried out, and no directions may be so given while the appeal is pending.

11If a person in the United Kingdom appeals under section 66, 67 or 69(5) against any directions given under—

(a)section 10,

(b)Part I of Schedule 2 to the 1971 Act, or

(c)Schedule 3 to that Act,

for his removal from the United Kingdom, those directions except in so far as they have already been carried out, are to have no effect while the appeal is pending.

12But the provisions of Part I of Schedule 2 or, as the case may be, Schedule 3 to the 1971 Act with respect to detention and persons liable to detention apply to a person appealing under section 59, 66, 67 or 69(1) or (5), as if there were in force directions for his removal from the United Kingdom, except that he may not be detained on board a ship or aircraft so as to compel him to leave the United Kingdom while the appeal is pending.

13In calculating the period of two months limited by paragraph 8(2) of Schedule 2 to the 1971 Act for—

(a)the giving of directions under that paragraph for the removal of a person from the United Kingdom, and

(b)the giving of a notice of intention to give such directions,

any period during which there is pending an appeal by him under section 59, 67 or 69(1) of this Act is to be disregarded.

14For the purposes of paragraphs 10 to 12 (but not for purposes of paragraph 13), except in so far as those paragraphs apply to appeals under section 69, where an appeal to an adjudicator is dismissed, an appeal is not to be regarded as pending unless immediately after the dismissal—

(a)the appellant gives notice of appeal against the determination of the adjudicator; or

(b)in a case in which leave to appeal against that determination is required and the adjudicator has power to grant leave, the appellant applies for and obtains the leave of the adjudicator.

15If directions are given under Part I of Schedule 2 or Schedule 3 to the 1971 Act for a person’s removal from the United Kingdom, and directions are also so given for the removal with him of persons belonging to his family, then if any of them appeals under section 59, 63, 66, 67 or 69(1) or (5), the appeal is to have the same effect under paragraphs 10 to 14 in relation to the directions given in respect of each of the others as it has in relation to the directions given in respect of the appellant.

Suspension of variation of limited leave

16A variation is not to take effect while an appeal against the variation is pending under section 61 or 69(2).

Continuation of leave

17(1)While an appeal under section 61 or 69(2) is pending, the leave to which the appeal relates and any conditions subject to which it was granted continue to have effect.

(2)A person may not make an application for a variation of his leave to enter or remain while that leave is treated as continuing to have effect as a result of sub-paragraph (1).

(3)For the purposes of section 61 or 69(2), in calculating whether, as a result of a decision, a person may be required to leave the United Kingdom within 28 days, a continuation of leave under this paragraph is to be disregarded.

Deportation orders

18A deportation order is not to be made against a person under section 5 of the 1971 Act while an appeal duly brought under section 63(1)(a) or 69(4)(a) against the decision to make it is pending.

19In calculating the period of 8 weeks set by section 5(3) of the 1971 Act for making a deportation order against a person as belonging to the family of another person, there is to be disregarded any period during which an appeal under section 63(1)(a) or 69(4)(a) against the decision to make the order is pending.

Appeals under section 65

20(1)A person is not to be required to leave, or be removed from, the United Kingdom if an appeal under section 65 is pending against the decision on which that requirement or removal would otherwise be based.

(2)That does not prevent—

(a)directions for his removal being given during that period;

(b)a deportation order being made against him during that period.

(3)But no such direction or order is to have effect during that period.

Part IIIDetermination of Appeals

Determination of appeals

21(1)On an appeal to him under Part IV, an adjudicator must allow the appeal if he considers—

(a)that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case, or

(b)if the decision or action involved the exercise of a discretion by the Secretary of State or an officer, that the discretion should have been exercised differently,

but otherwise must dismiss the appeal.

(2)Sub-paragraph (1) is subject to paragraph 24 and to any restriction on the grounds of appeal.

(3)For the purposes of sub-paragraph (1), the adjudicator may review any determination of a question of fact on which the decision or action was based.

(4)For the purposes of sub-paragraph (1)(b), no decision or action which is in accordance with the immigration rules is to be treated as having involved the exercise of a discretion by the Secretary of State by reason only of the fact that he has been requested by or on behalf of the appellant to depart, or to authorise an officer to depart, from the rules and has refused to do so.

(5)If an appeal is allowed, the adjudicator—

(a)must give such directions for giving effect to the determination as he thinks are required; and

(b)may also make recommendations with respect to any other action which he considers should be taken in the case under any of the Immigration Acts.

(6)The duty to comply with directions given under this paragraph is subject to paragraph 22.

Appeals to Immigration Appeal Tribunal

22(1)Subject to any requirement of rules made under paragraph 3 as to leave to appeal, any party to an appeal, other than an appeal under section 71, to an adjudicator may, if dissatisfied with his determination, appeal to the Immigration Appeal Tribunal.

(2)The Tribunal may affirm the determination or make any other determination which the adjudicator could have made.

(3)Sub-paragraphs (4) to (6) apply if directions have been given by an adjudicator under paragraph 21.

(4)The directions need not be complied with—

(a)so long as an appeal can be brought against his determination; and

(b)if such an appeal is duly brought, so long as the appeal is pending.

(5)If the Tribunal affirm the adjudicator’s determination allowing the appeal, they may alter or add to his directions and recommendations under paragraph 21 or replace them with their own directions and recommendations.

(6)The provisions of paragraph 21 are to apply accordingly.

(7)If an appeal is dismissed by an adjudicator but allowed by the Tribunal, paragraph 21 applies with the substitution of references to the Tribunal for references to the adjudicator.

Appeals from Immigration Appeal Tribunal

23(1)If the Immigration Appeal Tribunal has made a final determination of an appeal brought under Part IV, any party to the appeal may bring a further appeal to the appropriate appeal court on a question of law material to that determination.

(2)An appeal under this section may be brought only with the leave of the Immigration Appeal Tribunal or, if such leave is refused, of the appropriate appeal court.

(3)“Appropriate appeal court” means—

(a)if the appeal is from the determination of an adjudicator made in Scotland, the Court of Session; and

(b)in any other case, the Court of Appeal.

Appeals which must be dismissed

24(1)An appeal against a refusal of leave to enter the United Kingdom must be dismissed by the adjudicator if he is satisfied that the appellant was at the time of the refusal an illegal entrant.

(2)An appeal against a refusal of an entry clearance must be dismissed by the adjudicator if he is satisfied that a deportation order was at the time of the refusal in force in respect of the appellant.

(3)An appeal under section 66 against directions given as mentioned in subsection (1)(c) of that section must be dismissed by the adjudicator, even though the ground of appeal is made out, if he is satisfied that there was power to give the same directions on the ground that the appellant was an illegal entrant.

Section 83.

SCHEDULE 5The Immigration Services Commissioner

Part IRegulatory Functions

The Commissioner’s rules

1(1)The Commissioner may make rules regulating any aspect of the professional practice, conduct or discipline of—

(a)registered persons, and

(b)those employed by, or working under the supervision of, registered persons,

in connection with the provision of immigration advice or immigration services.

(2)Before making or altering any rules, the Commissioner must consult such persons appearing to him to represent the views of persons engaged in the provision of immigration advice or immigration services as he considers appropriate.

(3)In determining whether a registered person is competent or otherwise fit to provide immigration advice or immigration services, the Commissioner may take into account any breach of the rules by—

(a)that person; and

(b)any person employed by, or working under the supervision of, that person.

(4)The rules may, among other things, make provision requiring the keeping of accounts or the obtaining of indemnity insurance.

2(1)The Commissioner’s rules must be made or altered by an instrument in writing.

(2)Such an instrument must specify that it is made under this Schedule.

(3)Immediately after such an instrument is made, it must be printed and made available to the public.

(4)The Commissioner may charge a reasonable fee for providing a person with a copy of the instrument.

(5)A person is not to be taken to have contravened a rule made by the Commissioner if he shows that at the time of the alleged contravention the instrument containing the rule had not been made available in accordance with this paragraph.

(6)The production of a printed copy of an instrument purporting to be made by the Commissioner on which is endorsed a certificate signed by an officer of the Commissioner authorised by him for that purpose and stating—

(a)that the instrument was made by the Commissioner,

(b)that the copy is a true copy of the instrument, and

(c)that on a specified date the instrument was made available to the public in accordance with this paragraph,

is evidence (or in Scotland sufficient evidence) of the facts stated in the certificate.

(7)A certificate purporting to be signed as mentioned in sub-paragraph (6) is to be treated as having been properly signed unless the contrary is shown.

(8)A person who wishes in any legal proceedings to rely on an instrument containing the Commissioner’s rules may require him to endorse a copy of the instrument with a certificate of the kind mentioned in sub-paragraph (6).

Code of Standards

3(1)The Commissioner must prepare and issue a code setting standards of conduct which those to whom the code applies are expected to meet.

(2)The code is to be known as the Code of Standards but is referred to in this Schedule as “the Code”.

(3)The Code is to apply to any person providing immigration advice or immigration services other than—

(a)a person who is authorised by a designated professional body to practise as a member of the profession whose members are regulated by that body;

(b)a person who works under the supervision of such a person; or

(c)a person mentioned in section 84(6).

(4)It is the duty of any person to whom the Code applies to comply with its provisions in providing immigration advice or immigration services.

(5)If the Commissioner alters the Code, he must re-issue it.

(6)Before issuing the Code or altering it, the Commissioner must consult—

(a)each of the designated professional bodies;

(b)the designated judges;

(c)the Lord President of the Court of Session;

(d)the Lord Chief Justice of Northern Ireland; and

(e)such other persons appearing to him to represent the views of persons engaged in the provision of immigration advice or immigration services as he considers appropriate.

(7)The Commissioner must publish the Code in such form and manner as the Secretary of State may direct.

Extension of scope of the Code

4(1)The Secretary of State may by order provide for the provisions of the Code, or such provisions of the Code as may be specified by the order, to apply to—

(a)persons authorised by any designated professional body to practise as a member of the profession whose members are regulated by that body; and

(b)persons working under the supervision of such persons.

(2)If the Secretary of State is proposing to act under sub-paragraph (1) he must, before doing so, consult—

(a)the Commissioner;

(b)the Legal Services Ombudsman, if the proposed order would affect a designated professional body in England and Wales;

(c)the Scottish Legal Services Ombudsman, if the proposed order would affect a designated professional body in Scotland;

(d)the lay observers appointed under Article 42 of the [S.I. 1976/582 (N.I. 12).] Solicitors (Northern Ireland) Order 1976, if the proposed order would affect a designated professional body in Northern Ireland.

(3)An order under sub-paragraph (1) requires the approval of—

(a)the Lord Chancellor, if it affects a designated professional body in England and Wales or Northern Ireland;

(b)the Scottish Ministers, if it affects a designated professional body in Scotland.

(4)Before deciding whether or not to give his approval under sub-paragraph (3)(a), the Lord Chancellor must consult—

(a)the designated judges, if the order affects a designated professional body in England and Wales;

(b)the Lord Chief Justice of Northern Ireland, if it affects a designated professional body in Northern Ireland.

(5)Before deciding whether or not to give their approval under sub-paragraph (3)(b), the Scottish Ministers must consult the Lord President of the Court of Session.

Investigation of complaints

5(1)The Commissioner must establish a scheme (“the complaints scheme”) for the investigation by him of relevant complaints made to him in accordance with the provisions of the scheme.

(2)Before establishing the scheme or altering it, the Commissioner must consult—

(a)each of the designated professional bodies; and

(b)such other persons appearing to him to represent the views of persons engaged in the provision of immigration advice or immigration services as he considers appropriate.

(3)A complaint is a relevant complaint if it relates to—

(a)the competence or fitness of a person to provide immigration advice or immigration services,

(b)the competence or fitness of a person employed by, or working under the supervision of, a person providing immigration advice or immigration services,

(c)an alleged breach of the Code,

(d)an alleged breach of one or more of the Commissioner’s rules by a person to whom they apply, or

(e)an alleged breach, by a person who falls within paragraph (c), (d), (e) or (f) of section 84(2), of one or more of the rules of the relevant regulatory body,

but not if it relates to a person who is excluded from the application of subsection (1) of section 84 by subsection (6) of that section.

(4)The Commissioner may, on his own initiative, investigate any matter which he would have power to investigate on a complaint made under the complaints scheme.

(5)In investigating any such matter on his own initiative, the Commissioner must proceed as if his investigation were being conducted in response to a complaint made under the scheme.

6(1)The complaints scheme must provide for a person who is the subject of an investigation under the scheme to be given a reasonable opportunity to make representations to the Commissioner.

(2)Any person who is the subject of an investigation under the scheme must—

(a)take such steps as are reasonably required to assist the Commissioner in his investigation; and

(b)comply with any reasonable requirement imposed on him by the Commissioner.

(3)If a person fails to comply with sub-paragraph (2)(a) or with a requirement imposed under sub-paragraph (2)(b) the Commissioner may—

(a)in the case of a registered person, cancel his registration;

(b)in the case of a person certified by the Commissioner as exempt under section 84(4)(a), withdraw his exemption; or

(c)in the case of a person falling within paragraph (c), (d), (e) or (f) of section 84(2), refer the matter to the relevant regulatory body.

Power to enter premises

7(1)This paragraph applies if—

(a)the Commissioner is investigating a complaint under the complaints scheme;

(b)the complaint falls within paragraph 5(3)(a), (b) or (d); and

(c)there are reasonable grounds for believing that particular premises are being used in connection with the provision of immigration advice or immigration services by a registered person.

(2)The Commissioner, or a member of his staff authorised in writing by him, may enter the premises at reasonable hours.

(3)Sub-paragraph (2) does not apply to premises to the extent to which they constitute a private residence.

(4)A person exercising the power given by sub-paragraph (2) (“the investigating officer”) may—

(a)take with him such equipment as appears to him to be necessary;

(b)require any person on the premises—

(i)to produce any document which he considers relates to any matter relevant to the investigation; and

(ii)if the document is produced, to provide an explanation of it;

(c)require any person to state, to the best of his knowledge and belief, where any such document is to be found;

(d)take copies of, or extracts from, any document which is produced;

(e)require any information which is held in a computer and is accessible from the premises and which the investigating officer considers relates to any matter relevant to the investigation, to be produced in a form—

(i)in which it can be taken away; and

(ii)in which it is visible and legible.

(5)Instead of exercising the power under sub-paragraph (2), the Commissioner may require such person as he may determine (“his agent”) to make a report on the provision of immigration advice or immigration services from the premises.

(6)If the Commissioner so determines, his agent may exercise the power conferred by sub-paragraph (2) as if he were a member of the Commissioner’s staff appropriately authorised.

(7)If a registered person fails without reasonable excuse to allow access under sub-paragraph (2) or (6) to any premises under his occupation or control, the Commissioner may cancel his registration.

(8)The Commissioner may also cancel the registration of a registered person who—

(a)without reasonable excuse fails to comply with a requirement imposed on him under sub-paragraph (4);

(b)intentionally delays or obstructs any person exercising functions under this paragraph; or

(c)fails to take reasonable steps to prevent an employee of his from obstructing any person exercising such functions.

Determination of complaints

8(1)On determining a complaint under the complaints scheme, the Commissioner must give his decision in a written statement.

(2)The statement must include the Commissioner’s reasons for his decision.

(3)A copy of the statement must be given by the Commissioner to—

(a)the person who made the complaint; and

(b)the person who is the subject of the complaint.

9(1)On determining a complaint under the complaints scheme, the Commissioner may—

(a)if the person to whom the complaint relates is a registered person or a person employed by, or working under the supervision of, a registered person, record the complaint and the decision on it for consideration when that registered person next applies for his registration to be continued;

(b)if the person to whom the complaint relates is a registered person or a person employed by, or working under the supervision of, a registered person and the Commissioner considers the matter sufficiently serious to require immediate action, require that registered person to apply for continued registration without delay;

(c)if the person to whom the complaint relates falls within paragraph (c), (d), (e) or (f) of section 84(2), refer the complaint and his decision on it to the relevant regulatory body;

(d)if the person to whom the complaint relates is certified by the Commissioner as exempt under section 84(4)(a) or is employed by, or working under the supervision of, such a person, consider whether to withdraw that person’s exemption;

(e)lay before the Tribunal a disciplinary charge against a relevant person.

(2)Sub-paragraph (3) applies if—

(a)the Tribunal is considering a disciplinary charge against a relevant person; and

(b)the Commissioner asks it to exercise its powers under that sub-paragraph.

(3)The Tribunal may give directions (which are to have effect while it is dealing with the charge)—

(a)imposing such restrictions in connection with the provision—

(i)by the relevant person, or

(ii)by any person employed by him or working under his supervision,

of immigration advice or immigration services as the directions may specify; or

(b)prohibiting him, or any person employed by him or working under his supervision, from providing immigration advice or immigration services.

(4)“Relevant person” means a person providing immigration advice or immigration services who is—

(a)a registered person;

(b)a person employed by, or working under the supervision of, a registered person;

(c)a member or employee of a body which is a registered person;

(d)a person working under the supervision of a member or employee of such a body;

(e)a person certified by the Commissioner as exempt under section 84(4)(a);

(f)a person to whom section 84(4)(d) applies; or

(g)a person employed by, or working under the supervision of, a person to whom paragraph (e) or (f) applies.

Complaints referred to designated professional bodies

10(1)This paragraph applies if the Commissioner refers a complaint to a designated professional body under paragraph 9(1)(c).

(2)The Commissioner may give directions setting a timetable to be followed by the designated professional body—

(a)in considering the complaint; and

(b)if appropriate, in taking disciplinary proceedings in connection with the complaint.

(3)In making his annual report to the Secretary of State under paragraph 21, the Commissioner must take into account any failure of a designated professional body to comply (whether wholly or in part) with directions given to it under this paragraph.

(4)Sub-paragraph (5) applies if the Commissioner or the Secretary of State considers that a designated professional body has persistently failed to comply with directions given to it under this paragraph.

(5)The Commissioner must take the failure into account in determining whether to make a report under section 86(9)(b) and the Secretary of State must take it into account in determining whether to make an order under section 86(2).

Part IICommissioner’s Status, Remuneration and Staff etc

Status

11(1)The Commissioner is to be a corporation sole.

(2)The Commissioner and the members of the Commissioner’s staff are not to be regarded as the servants or agents of the Crown or as having any status, privilege or immunity of the Crown.

Period of office

12(1)The Commissioner—

(a)is to hold office for a term of five years; but

(b)may resign at any time by notice in writing given to the Secretary of State.

(2)The Secretary of State may dismiss the Commissioner—

(a)on the ground of incapacity or misconduct; or

(b)if he is satisfied—

(i)that he has been convicted of a criminal offence; or

(ii)that a bankruptcy order has been made against him, or his estate has been sequestrated, or he has made a composition or arrangement with, or granted a trust deed for, his creditors.

(3)The Commissioner is eligible for re-appointment when his term of office ends.

Terms and conditions of appointment

13Subject to the provisions of this Schedule, the Commissioner is to hold office on such terms and conditions as the Secretary of State may determine.

Remuneration, expenses and pensions

14(1)There is to be paid to the Commissioner such remuneration and expenses as the Secretary of State may determine.

(2)The Secretary of State may pay, or provide for the payment of, such pensions, allowances or gratuities to or in respect of the Commissioner as he may determine.

Compensation

15If a person ceases to be the Commissioner, otherwise than when his term of office ends, and it appears to the Secretary of State that there are special circumstances which make it right for him to receive compensation, the Secretary of State may make a payment to him of such amount as the Secretary of State may determine.

Deputy Commissioner

16(1)The Secretary of State must appoint a person to act as Deputy Commissioner.

(2)During any vacancy in the office of Commissioner, or at any time when he is unable to discharge his functions, the Deputy Commissioner may act in his place.

(3)Paragraphs 11(2) and 12 to 15 apply to the Deputy Commissioner as they apply to the Commissioner.

Staff

17(1)Subject to obtaining the approval of the Secretary of State as to numbers and terms and conditions of service, the Commissioner may appoint such staff as he considers appropriate.

(2)Subject to obtaining the approval of the Secretary of State, the Commissioner may pay, or provide for the payment of, such pensions, allowances or gratuities (including by way of compensation for loss of office or employment) to or in respect of his staff as he considers appropriate.

(3)Any functions of the Commissioner may, to the extent authorised by him, be performed by the Deputy Commissioner or any of his staff.

(4)The [1969 c. 57.] Employers' Liability (Compulsory Insurance) Act 1969 is not to require insurance to be effected by the Commissioner.

Expenditure

18The Secretary of State may pay to the Commissioner—

(a)any expenses incurred or to be incurred by the Commissioner in respect of his staff; and

(b)with the approval of the Treasury, such other sums for enabling the Commissioner to perform his functions as the Secretary of State thinks fit.

Receipts

19(1)Subject to any general or specific directions given to him by the Secretary of State, sums received by the Commissioner in the exercise of his functions must be paid to the Secretary of State.

(2)Sums received by the Secretary of State under this paragraph must be paid into the Consolidated Fund.

(3)The approval of the Treasury is required for any direction given under this paragraph.

Accounts and records

20(1)The Commissioner must—

(a)keep proper accounts and proper records in relation to his accounts;

(b)prepare a statement of accounts for each financial year; and

(c)send copies of the statement to the Secretary of State and to the Comptroller and Auditor General on or before the specified date.

(2)The statement of accounts must be in such form as the Secretary of State may, with the approval of the Treasury, direct.

(3)The Comptroller and Auditor General must—

(a)examine, certify and report on each statement received by him under this paragraph; and

(b)lay copies of each statement and of his report before each House of Parliament.

(4)“Financial year” means the period of 12 months beginning with 1st April.

(5)“Specified date” means—

(a)31st August next following the end of the year to which the statement relates; or

(b)such earlier date after the end of that year as the Treasury may direct.

Annual report

21(1)The Commissioner must, as soon as is practicable after the end of each financial year, report to the Secretary of State on the performance of his functions in that year.

(2)The report must, in particular, set out the Commissioner’s opinion as to the extent to which each designated professional body has provided effective regulation of its members in their provision of immigration advice or immigration services.

(3)The Secretary of State must lay a copy of the report before each House of Parliament.

(4)“Financial year” has the same meaning as in paragraph 20.

Proof of instruments

22A document purporting to be an instrument issued by the Commissioner and to be signed by or on behalf of the Commissioner is to be received in evidence and treated as such an instrument unless the contrary is shown.

Disqualification for House of Commons

23In Part III of Schedule 1 to the [1975 c. 24.] House of Commons Disqualification Act 1975 (offices disqualifying for membership), insert at the appropriate place—

The Immigration Services Commissioner

The Deputy Immigration Services Commissioner.

Disqualification for Northern Ireland Assembly

24In Part III of Schedule 1 to the [1975 c. 25.] Northern Ireland Assembly Disqualification Act 1975 (offices disqualifying for membership), insert at the appropriate place—

The Immigration Services Commissioner

The Deputy Immigration Services Commissioner.

The Parliamentary Commissioner Act 1967 (c. 13)

25In Schedule 2 of the Parliamentary Commissioner Act 1967 (departments and authorities subject to investigation) insert, at the appropriate place, “The Immigration Services Commissioner”.

Section 85(3).

SCHEDULE 6Registration

Applications for registration

1(1)An application for registration under section 84(2)(a) or (b) must—

(a)be made to the Commissioner in such form and manner, and

(b)be accompanied by such information and supporting evidence,

as the Commissioner may from time to time determine.

(2)When considering an application for registration, the Commissioner may require the applicant to provide him with such further information or supporting evidence as the Commissioner may reasonably require.

Registration

2(1)If the Commissioner considers that an applicant for registration is competent and otherwise fit to provide immigration advice and immigration services, he must register the applicant.

(2)Registration may be made so as to have effect—

(a)only in relation to a specified field of advice or services;

(b)only in relation to the provision of advice or services to a specified category of person;

(c)only in relation to the provision of advice or services to a member of a specified category of person; or

(d)only in specified circumstances.

Review of qualifications

3(1)At such intervals as the Commissioner may determine, each registered person must submit an application for his registration to be continued.

(2)Different intervals may be fixed by the Commissioner in relation to different registered persons or descriptions of registered person.

(3)An application for continued registration must—

(a)be made to the Commissioner in such form and manner, and

(b)be accompanied by such information and supporting evidence,

as the Commissioner may from time to time determine.

(4)When considering an application for continued registration, the Commissioner may require the applicant to provide him with such further information or supporting evidence as the Commissioner may reasonably require.

(5)If the Commissioner considers that an applicant for continued registration is no longer competent or is otherwise unfit to provide immigration advice or immigration services, he must cancel the applicant’s registration.

(6)Otherwise, the Commissioner must continue the applicant’s registration but may, in doing so, vary the registration—

(a)so as to make it have limited effect in any of the ways mentioned in paragraph 2(2); or

(b)so as to make it have full effect.

(7)If a registered person fails, without reasonable excuse—

(a)to make an application for continued registration as required by sub-paragraph (1) or by a direction given by the Tribunal under section 89(3)(b), or

(b)to provide further information or evidence under sub-paragraph (4),

the Commissioner may cancel the person’s registration as from such date as he may determine.

Disqualification of certain persons

4A person convicted of an offence under section 25 or 26(1)(d) or (g) of the 1971 Act is disqualified for registration under paragraph 2 or for continued registration under paragraph 3.

Fees

5(1)The Secretary of State may by order specify fees for the registration or continued registration of persons on the register.

(2)No application under paragraph 1 or 3 is to be entertained by the Commissioner unless it is accompanied by the specified fee.

Open registers

6(1)The register must be made available for inspection by members of the public in a legible form at reasonable hours.

(2)A copy of the register or of any entry in the register must be provided—

(a)on payment of a reasonable fee;

(b)in written or electronic form; and

(c)in a legible form.

(3)Sub-paragraphs (1) and (2) also apply to—

(a)the record kept by the Commissioner of the persons to whom he has issued a certificate of exemption under section 84(4)(a); and

(b)the record kept by the Commissioner of the persons against whom there is in force a direction given by the Tribunal under section 89(8).

Section 87(5).

SCHEDULE 7The Immigration Services Tribunal

Members

1(1)The Tribunal is to consist of such number of members as the Lord Chancellor may determine.

(2)The members are to be appointed by the Lord Chancellor.

(3)A person may be appointed as a member only if—

(a)he is legally qualified; or

(b)he appears to the Lord Chancellor to have had substantial experience in immigration services or in the law and procedure relating to immigration.

The President

2The Tribunal is to have a President appointed by the Lord Chancellor from among those of its members who are legally qualified.

Terms and conditions of appointment

3(1)Each member is to hold and vacate office in accordance with the terms of his appointment.

(2)A member is eligible for re-appointment when his term of office ends.

(3)A member may resign at any time by notice in writing given to the Lord Chancellor.

(4)The Lord Chancellor may dismiss a member on the ground of incapacity or misconduct.

Remuneration and expenses

4The Lord Chancellor may pay to any member such remuneration and expenses as he may determine.

Proceedings

5The Tribunal is to sit at such times and in such places as the Lord Chancellor may direct.

6(1)The Commissioner is entitled to be represented before the Tribunal, in relation to the hearing of appeals or disciplinary charges, by such persons as he may authorise.

(2)The Commissioner may authorise a person to represent him before the Tribunal in relation to—

(a)specified proceedings; or

(b)all or specified categories of proceedings.

(3)“Specified” means specified by the Commissioner.

Rules of procedure

7(1)The Lord Chancellor may make rules as to the procedure and practice to be followed in relation to the exercise of the Tribunal’s functions.

(2)Before making or altering any such rules, the Lord Chancellor must consult the Scottish Ministers.

(3)Subject to the provisions of this Schedule and the rules, the Tribunal may determine its own procedure.

(4)The rules must make provision for any person appealing to the Tribunal or otherwise subject to its jurisdiction to be entitled to be legally represented.

(5)The rules may, in particular, make provision—

(a)as to the mode and burden of proof and the giving and admissibility of evidence;

(b)for proceedings before the Tribunal to be capable of being determined in the absence of any party to the proceedings if that party has failed, without reasonable excuse, to appear before the Tribunal or has failed to comply with any reasonable directions given by the Tribunal as to the conduct of the proceedings;

(c)with respect to other matters preliminary or incidental to, or arising out of, any matter with respect to which the Tribunal is or may be exercising functions;

(d)as to the period within which an appeal against a decision of the Commissioner can be brought;

(e)authorising such functions of the Tribunal as may be specified in the rules to be exercised by a single member.

Suspending the effect of a relevant decision

8(1)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.

(2)If the appellant applies to the Tribunal under this paragraph, the Tribunal may 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.

(3)Rules under paragraph 7 must include provision requiring the Tribunal to consider applications by the Commissioner for the cancellation or variation of directions given under this paragraph.

Staff

9(1)The Lord Chancellor may appoint such staff for the Tribunal as he considers appropriate.

(2)The Lord Chancellor may pay, or provide for the payment of, such pensions, allowances or gratuities (including by way of compensation for loss of office or employment) to or in respect of the Tribunal’s staff as he considers appropriate.

Expenditure

10The Lord Chancellor may pay such other expenses of the Tribunal as he considers appropriate.

Meaning of “legally qualified”

11A person is legally qualified for the purposes of this Schedule if—

(a)he has a 7 year general qualification, within the meaning of section 71 of the [1990 c. 41.] Courts and Legal Services Act 1990;

(b)he is an advocate or solicitor in Scotland of at least 7 years' standing; or

(c)he is a member of the Bar of Northern Ireland or solicitor of the Supreme Court of Northern Ireland of at least 7 years' standing.

Disqualification for House of Commons

12In Part I of Schedule 1 to the [1975 c. 24.] House of Commons Disqualification Act 1975 (offices disqualifying for membership), insert at the appropriate place—

  • “Member of the Immigration Services Tribunal”.

Disqualification for Northern Ireland Assembly

13In Part I of Schedule 1 to the [1975 c. 25.] Northern Ireland Assembly Disqualification Act 1975 (offices disqualifying for membership), insert at the appropriate place—

  • “Member of the Immigration Services Tribunal”.

Section 95(12).

SCHEDULE 8Provision of Support: Regulations

General regulation-making power

1The Secretary of State may by regulations make such further provision with respect to the powers conferred on him by section 95 as he considers appropriate.

Determining whether a person is destitute

2(1)The regulations may provide, in connection with determining whether a person is destitute, for the Secretary of State to take into account, except in such circumstances (if any) as may be prescribed—

(a)income which the person concerned, or any dependant of his, has or might reasonably be expected to have, and

(b)support which is, or assets of a prescribed kind which are, or might reasonably be expected to be, available to him or to any dependant of his,

otherwise than by way of support provided under section 95.

(2)The regulations may provide that in such circumstances (if any) as may be prescribed, a person is not to be treated as destitute for the purposes of section 95.

Prescribed levels of support

3The regulations may make provision—

(a)as to the circumstances in which the Secretary of State may, as a general rule, be expected to provide support in accordance with prescribed levels or of a prescribed kind;

(b)as to the circumstances in which the Secretary of State may, as a general rule, be expected to provide support otherwise than in accordance with the prescribed levels.

Provision of items and services

4The regulations may make provision for prescribed items or services to be provided or made available to persons receiving support under section 95 for such purposes and in such circumstances as may be prescribed.

Support and assets to be taken into account

5The regulations may make provision requiring the Secretary of State, except in such circumstances (if any) as may be prescribed, to take into account, when deciding the level or kind of support to be provided—

(a)income which the person concerned, or any dependant of his, has or might reasonably be expected to have, and

(b)support which is, or assets of a prescribed kind which are, or might reasonably be expected to be, available to him or to any dependant of his,

otherwise than by way of support provided under section 95.

Valuation of assets

6The regulations may make provision as to the valuation of assets.

Breach of conditions

7The regulations may make provision for the Secretary of State to take into account, when deciding—

(a)whether to provide, or to continue to provide, support under section 95, or

(b)the level or kind of support to be provided,

the extent to which any condition on which support is being, or has previously been, provided has been complied with.

Suspension or discontinuation of support

8(1)The regulations may make provision for the suspension or discontinuance of support under section 95 in prescribed circumstances (including circumstances in which the Secretary of State would otherwise be under a duty to provide support).

(2)The circumstances which may be prescribed include the cessation of residence—

(a)in accommodation provided under section 95; or

(b)at an address notified to the Secretary of State in accordance with the regulations.

Notice to quit

9(1)The regulations may provide that if—

(a)as a result of support provided under section 95, a person has a tenancy or a licence to occupy accommodation,

(b)one or more of the conditions mentioned in sub-paragraph (2) are satisfied, and

(c)he is given such notice to quit as may be prescribed by the regulations,

his tenancy or licence is to be treated as ending with the period specified in that notice, regardless of when it could otherwise be brought to an end.

(2)The conditions are that—

(a)the support provided under section 95 is suspended or discontinued as a result of any provision of a kind mentioned in paragraph 8;

(b)the relevant claim for asylum has been determined;

(c)the supported person has ceased to be destitute;

(d)he is to be moved to other accommodation.

Contributions to support

10The regulations may make provision requiring a supported person to make payments to the Secretary of State, in prescribed circumstances, by way of contributions to the cost of the provision of that support.

Recovery of sums by Secretary of State

11(1)The regulations may provide for the recovery by the Secretary of State of sums representing the whole or part of the monetary value of support provided to a person under section 95 where it appears to the Secretary of State—

(a)that that person had, at the time when he applied for support, assets of any kind in the United Kingdom or elsewhere which were not capable of being realised; but

(b)that those assets have subsequently become, and remain, capable of being realised.

(2)An amount recoverable under regulations made by virtue of sub-paragraph (1) may be recovered—

(a)as if it were a debt due to the Secretary of State; or

(b)by such other method of recovery, including by deduction from support provided under section 95 as may be prescribed.

Procedure

12The regulations may make provision with respect to procedural requirements including, in particular, provision as to—

(a)the procedure to be followed in making an application for support;

(b)the information which must be provided by the applicant;

(c)the circumstances in which an application may not be entertained;

(d)the making of further enquiries by the Secretary of State;

(e)the circumstances in which, and person by whom, a change of circumstances of a prescribed description must be notified to the Secretary of State.

Section 95(13).

SCHEDULE 9Asylum Support: Interim Provisions

1(1)The Secretary of State may by regulations make provision requiring prescribed local authorities or local authorities falling within a prescribed description of authority to provide support, during the interim period, to eligible persons.

(2)“Eligible persons” means—

(a)asylum-seekers, or

(b)their dependants,

who appear to be destitute or to be likely to become destitute within such period as may be prescribed.

(3)For the purposes of sub-paragraph (1), in Northern Ireland, a Health and Social Services Board established under Article 16 of the [S.I. 1972/1265 (N.I. 14).] Health and Personal Social Services (Northern Ireland) Order 1972 is to be treated as a local authority.

2(1)The regulations must provide for the question whether a person is an eligible person to be determined by the local authority concerned.

(2)The regulations may make provision for support to be provided, before the determination of that question, to a person making a claim for support under the regulations by the Secretary of State or such local authority as may be prescribed.

(3)“The local authority concerned” has such meaning as may be prescribed.

3Subsections (3) to (8) of section 95 apply for the purposes of the regulations as they apply for the purposes of that section, but for the references in subsections (5) and (7) to the Secretary of State substitute references to the local authority concerned.

4The regulations may prescribe circumstances in which support for an eligible person—