20.Under the current provisions of the 1971 Act, anyone who is not a British citizen, or a national of a Member State of the European Union ( EU) (and other nationals of the European Economic Area (EEA)) exercising their European free movement rights, needs to be granted leave to enter or leave to remain (permission to stay) in order lawfully to enter into, or remain in, the United Kingdom (unless exempt). At present, leave to enter has to be given in writing by an immigration officer at a port of entry or, in cases where the individual is already in the country, leave to remain has to be given by the Secretary of State, in practice by Immigration and Nationality Directorate (IND) caseworkers acting on his behalf.
21.In addition, once a person requiring leave departs from the Common Travel Area (CTA – an area of free movement which comprises the United Kingdom, the Republic of Ireland, the Channel Islands and the Isle of Man), any leave that they may have been granted lapses. If such an individual wishes to come back to the United Kingdom then they have to be granted fresh leave to enter by an immigration officer on their return.
22.At present under section 4(1) of the 1971 Act a person can only be notified of the conditions and time limits attached to their stay by way of a written notice. This normally takes the form of a stamp in their passport. The effect of the powers conferred under sections 1 and 2 is that, while an individual will still need to obtain either leave to enter the United Kingdom or leave to remain in the United Kingdom, this leave need not necessarily be granted in writing and, in the case of leave to enter, may be granted in advance of arrival. By providing for a more flexible legislative framework, the sections provide the scope for existing procedures to be revised and updated and will also allow technological developments to be utilised in the future.
23.Section 1 introduces a new section 3A into the 1971 Act. Subsection (1) of the new section enables the Secretary of State by order to make additional provision about the giving, refusing, or varying of leave to enter the United Kingdom. The order is to be made by statutory instrument subject to affirmative resolution procedure. This means that a draft of the order has to be laid before Parliament, debated and approved by both Houses before it is made. Taking a power to make secondary legislation will enable the Secretary of State to respond to future developments, in particular technological changes.
24.Subsection (2) of the new section sets out what may in particular be contained in an order under subsection (1). Subsection (2)(a) enables provision to be made allowing individuals to be granted or refused leave to enter before their arrival in the United Kingdom. It is envisaged that this power might be used, for example, for applications made at British Embassies or High Commissions overseas. A person with advance leave would be able to pass through the control without further detailed examination by an immigration officer on arrival.
25.Subsection (2)(b) will allow the Secretary of State to specify the form or manner in which leave to enter will be granted, refused or varied. It is anticipated that technological developments will allow other ways of granting leave in the future that do not rely on the traditional passport endorsement, for example, smart card technology which could be used to give and record leave.
26.Subsection (2)(c) will allow the Secretary of State to impose conditions with respect to leave given by reason an order under subsection (1) of the new section. It may be necessary, for example, if leave is given in a particular form, to specify conditions which are to be treated as applying to that leave by operation of law, such as a requirement to report to the police, or not to take employment.
27.Subsection (2)(d) would allow an individual to leave the United Kingdom and then re-enter it using his continuing leave to enter (for the duration of its validity), without having to obtain fresh leave to enter from the immigration officer.
28.At present, many passengers arriving at United Kingdom sea and airports have a visa or an entry clearance in their passport that has been issued (following completion of an interview with the holder) by an entry clearance officer working at a British Embassy or High Commission abroad. Each holder of a visa or an entry clearance is then re-interviewed by an immigration officer on arrival and given a stamp in their passport giving them leave to enter the United Kingdom. This re-examination at the ports takes time and in many cases is unnecessary. Subsection (3) will allow an order to be laid before Parliament which will provide that in certain specified circumstances the issue of a visa (or another form of entry clearance) will also confer leave to enter on the holder.
29.Subsection (4) enables an order under subsection (3) to make provision about the number of times the clearance is to have such effect as leave to enter; and the conditions which are to be taken to apply to the conferred leave. Subsection (4)(b) enables the order to provide that such an entry clearance can be varied, either by the Secretary of State or an immigration officer, so that the entry clearance no longer has the effect of leave to enter.
30.Subsection (5) provides that only the conditions which can be imposed under section 3 of the 1971 Act, as amended by paragraph 1(1) of Schedule 2 to the Asylum and Immigration Act 1996, can be applied to visas that are acting as leave to enter. Among these conditions are:
a condition restricting an individual’s employment or occupation in the United Kingdom;
a condition requiring an individual to maintain and accommodate himself and his dependants without recourse to public funds; and
a condition requiring him to register with the police.
31.Under section 4(1) of the 1971 Act the power to grant or refuse leave to enter the United Kingdom can only be exercised by an immigration officer; the power to give or refuse leave to remain, or to vary an individual’s leave to enter or remain, can only be exercised by the Secretary of State. Subsection (7) enables the Secretary of State, in circumstances to be set out in an order, also to grant or refuse leave to enter. The aim is to enable IND’s procedures (particularly in asylum cases) to be more efficient, to minimise duplication of effort and to give greater operational flexibility. For example, under the current system one person, a caseworking officer in IND, takes the decision whether to grant or refuse asylum and another, the immigration officer at a port, then has to take a separate decision to grant or refuse leave to enter. It is envisaged that under this new power a single caseworking officer would be able to take both decisions.
32.Subsection (8) provides that when an order is made under subsection (7) above, certain paragraphs in Part I of Schedule 2 to the 1971 Act can be applied in order to give the Secretary of State related powers, for example, to examine an individual to determine whether he required leave to enter the United Kingdom.
33.Section 2 introduces a new section 3B into the 1971 Act. It is designed to allow greater flexibility in the way in which foreign nationals (ie non-British and non- EU/EEA nationals) are given or refused leave to remain.
34.Subsection (1) gives the Secretary of State the power by order to make further provision with respect to the grant or refusal or varying of leave to remain. The power is designed to enable the use in future of new technology to grant, refuse or vary such leave.
35.There are a variety of categories in the Immigration Rules under which people can apply for leave to remain. Where someone has been granted leave as, for example, a visitor and then applies to stay as a student, the length of their leave and the conditions attached to it would have to be changed to enable the individual to stay here as a student. That is, their leave would have to be varied.
36.Under subsection (2), the order may specify the form or manner in which leave to remain may be granted, refused or varied. Paragraph (b) allows the Secretary of State to deem conditions to be attached to leave to remain which has been granted in a particular way under the order. For example, a requirement to report to the police or not to take employment may be imposed.
37.Under the current system, any leave that has been granted to an individual lapses if he leaves the CTA (see paragraph 21 above and section 3(4) of the 1971 Act). Subsection (2)(c) (with subsection (3)) will allow the order to provide that the individual may leave the United Kingdom and then re-enter the United Kingdom, using his continuing permission to stay (for the duration of its validity), without having to obtain a new visa or fresh leave to enter from the immigration officer.