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Immigration and Asylum Act 1999

Schedule 14: Consequential amendments

38.Paragraph 2(1) of Schedule 2 to the 1971 Act gives an immigration officer the power to examine any person who arrives in the United Kingdom and sets out the purpose for which such an examination is conducted. At present, if it is concluded that a person is a British citizen, the immigration officer takes no further action. If he is not a British citizen, however, he will be examined to determine whether or not he requires permission to enter the United Kingdom. This permission is called leave to enter. If a person qualifies for leave to enter then the immigration officer will go on to decide the length of the leave and any conditions, such as permission to work, which will apply. Finally, if a person does not qualify for leave to enter then the immigration officer may refuse leave to enter.

39.Paragraph 56 of Schedule 14 will enable an immigration officer to examine those who arrive in the United Kingdom to establish whether they already have leave to enter, either because they have a valid visa which has conferred leave to enter, because they have extant leave (leave which is still valid from a previous entry), or because it has otherwise been granted in advance of arrival.

40.Paragraph 57 amends Schedule 2 to the 1971 Act to give an immigration officer a power to examine those persons who arrive in the United Kingdom with extant leave and extends to them the requirement to submit to further examination (and medical examination in circumstances where a person is seeking leave to enter for a period in excess of six months, or where the individual appears to be in ill-health), where necessary. The immigration officer may re-examine a person to ascertain whether there has been a change of circumstances, among other matters, and may cancel leave where it is found that the holder no longer qualifies, or suspend it until the examination is complete.

41.Paragraph 58 amends Schedule 2 to the 1971 Act to give the immigration officer a power to require someone who is being examined under paragraph 2A of that Schedule to provide any information that the immigration officer considers necessary in order to conduct the examination.

42.In addition, the person who is being examined under the provisions of paragraph 2A is required to produce a passport or some other form of identity document. They are also required to declare whether they are carrying any documents which may be specified by the immigration officer, for example, a student may be required to produce a letter confirming enrolment at a college.

43.Paragraph 59 extends the power to require a person to submit to medical examination after leave to enter has been granted to include those persons who arrive in the United Kingdom with extant leave.

Section 3: Continuation of leave pending decision

44.Section 3 replaces the equivalent provisions of the Immigration (Variation of Leave) Order 1976 SI 1976/1572 (as amended). When a person applies for variation of his leave before that leave expires, but it then expires before a decision is taken, the leave is automatically extended to the point at which the appropriate period for appealing a refusal expires. This will protect the immigration status of that person and prevent him from becoming an overstayer. A person will not be able to submit further applications during the leave as extended under this section, although they would be able to vary their original application: this is to ensure that all issues raised are covered by one decision and consequently one appeal.

Section 4: Accommodation for those temporarily admitted or released from detention

45.Section 4 provides a power for the Secretary of State to provide facilities for the accommodation of persons granted temporary admission to the United Kingdom or those given temporary release or bail. It does not itself contain any powers to require residence at such accommodation.

46.Existing powers to impose residence conditions on persons granted temporary admission are contained in Schedule 2 to the 1971 Act. Paragraph 62 of Schedule 14 to this Act provides a power to extend, by regulation, the purposes for which residence conditions may be imposed on persons granted temporary admission. It would permit, for example, conditions to be imposed prohibiting residence in one or more particular areas. This might be necessary to prevent potential public order problems or to relieve extreme pressure on local services and facilities in a particular area. It would also permit a condition to be imposed requiring residence in accommodation provided by the Secretary of State under section 4. This would enable reception facilities to be developed to assist the full and rapid consideration of claims. Regulations made as a result of paragraph 62 of Schedule 14 are subject to draft affirmative procedure.

Section 5:  Charges

47.This section allows fees to be prescribed for the consideration of applications for leave to remain in the United Kingdom, variation of leave to enter or remain, or the fixing of a stamp in a new or replacement passport or travel document which confirms indefinite leave to enter or remain in the United Kingdom. It replaces, and widens the scope of, a power in section 9(1) of the Immigration Act 1988 for charges to be levied in respect of applications for settlement. When a fee is payable in an individual case, the Secretary of State is not required to consider the application until the fee has been paid. The fee will be payable irrespective of whether the application is granted.

48.The fees are to be prescribed by regulations made by the Secretary of State under this section which, read with section 166, allows different fee levels to be set for different types of case. Regulations may also provide for no fees to be payable in prescribed circumstances, but the Act itself provides (in effect) that a fee is not payable by a person who is making a claim for asylum or for protection under Article 3 of the ECHR; who has had such an application granted and seeks further leave to remain or indefinite leave to remain; or who is a dependant of such a person. The definition of the word “dependant” will also be prescribed in regulations. The section does not permit charges for applicants seeking confirmation of their rights under European Community law. Fee levels for applicants who are required to pay a fee will reflect the full cost of processing their application.

Section 6: Members of missions other than diplomatic agents

49.This section is designed to prevent foreign nationals already in the United Kingdom from evading immigration control by taking a job in a diplomatic mission, thus closing a loophole which exists under current legislation. Under section 8(3) of the 1971 Act, a person is exempt from immigration control for so long as he is a member of a diplomatic mission. Section 8(3A) of the 1971 Act (inserted by the Immigration Act 1988) has the effect that foreign nationals already in the United Kingdom who are offered a job in a diplomatic mission remain subject to control as long as they remain in this country. However, if they travel abroad the current wording of section 8(3A) has the result that they become exempt upon their return simply because they have entered as a member of a diplomatic mission. The section is intended to close this loophole by replacing the existing section 8(3A) with a new one which provides an exemption only if the person was resident outside the United Kingdom and was not present in the United Kingdom when offered a post as a member of the mission; and if he has not ceased to be a member of the mission after taking up the post. The former condition is designed to ensure that locally engaged staff cannot benefit from the exemption. The latter condition is designed to ensure that the conditions for exemption are again met in the event of subsequent re-employment as a member of a mission.

Section 7: Persons ceasing to be exempt

50.This section is intended to ensure that certain persons who have been exempt from immigration control but who would otherwise require leave to enter or remain in the United Kingdom do not remain for more than 90 days once they have ceased to be exempt, unless they have leave to do so. Under the Immigration (Exemption from Control) Order 1972, made under section 8(2) of the 1971 Act, certain personnel of international organisations with a branch in the United Kingdom are exempt from immigration control. In addition, under section 8(3) of the 1971 Act a member of a diplomatic mission is exempt from immigration control. In both cases, members of their family forming part of the household are also exempt. This means that, as they are not subject to any of the provisions of the 1971 Act relating to those who are not British citizens, many persons who cease to be exempt do not commit any offence of, for example, remaining beyond their leave, if they fail thereafter to apply for permission to stay here. Section 7 closes this loophole by deeming that limited leave of 90 days has been given from the date that exemption ceases. However, the 90 days of deemed leave will not supersede any leave granted prior to the period of exemption if that leave still has more than 90 days left to run upon cessation of exemption. Those who had been granted indefinite leave (settled status) immediately prior to exemption will have this reinstated.

51.Section 7 does not apply to persons who would not require leave to stay in the United Kingdom at the expiration of their exempt status. EEA nationals and their dependants will therefore be unaffected insofar as they are exercising EC free movement rights in the United Kingdom.

Section 8: Persons excluded from the United Kingdom under international obligations

52.Section 8 inserts a new section 8B into the 1971 Immigration Act, which provides that certain persons can be excluded from the United Kingdom as a result of the United Kingdom’s international obligations under UN Security Council resolutions and EU Council decisions.

53.Subsection (1) provides that an excluded person must be refused leave to enter or remain in the United Kingdom. Subsection (2) provides that a person’s leave to enter or remain in the United Kingdom is cancelled on his becoming an excluded person. Subsection (3) provides that a person who is exempt from immigration control under section 8(1), 8(2) or 8(3) of the 1971 Act by virtue of their employment as the crew member of a ship or aircraft, in a diplomatic mission or an international organisation loses that exempt status on becoming subject to a travel ban.

54.Subsection (4) defines the term “excluded person” as someone who has been named or falls within a category specified under a designated international instrument. Subsection (5) defines the term “designated international instrument” as a resolution of the UN Security Council or an instrument of the Council of the European Union, which requires or recommends that the United Kingdom refuses to admit a person named under such an instrument to the United Kingdom provided that such an instrument has been designated in an order made by the Secretary of State.

55.Subsection (6) provides that certain exceptions to subsections (1) to (3) may be included in the designating order. This would allow, for example, entry to be given to an individual named on a list on asylum or human rights grounds.

Section 9: Treatment of certain overstayers

56.Section 9 enables those foreign nationals who have overstayed their limited leave to enter or remain to apply for leave to remain within a prescribed period before section 10 of the Act comes into force. Any application made within this period will, if refused, attract a right of appeal against deportation, which will be the method of removal if any appeal is unsuccessful. Section 10 and paragraph 12 of Schedule 15 will come into force on the day after the fixed period ends, which should be 2 October 2000, when the Human Rights Act comes into force. Foreign nationals to whom section 10 applies and who have not made an application under the scheme within the fixed period will be liable to administrative removal with no right of appeal before removal.

Section 10: Removal of certain persons unlawfully in the United Kingdom

57.In parallel with the reform of the immigration and asylum appeals system, the White Paper announced that in future, anyone who had been lawfully in the United Kingdom but who no longer had any entitlement to remain would normally be subject to administrative removal rather than deportation. This section provides that those who have failed to observe the conditions attached to their leave, overstayers and those who have obtained leave to remain by deception – ie those currently liable to deportation action under sections 3(5)(a) and 3(5)(aa) of the 1971 Act, and the family members of such people – will be subject to new administrative removal procedures. These procedures will mirror those which currently apply in respect of illegal entrants. Deportation action will continue to apply to cases where the Secretary of State deems the person’s removal to be conducive to the public good and to court recommended cases (sections 3(5)(b) and 3(6) of the 1971 Act) and to the family members of someone deported on those grounds.

58.Subsection (2) makes it clear that an overstayer who has applied for leave to remain under the special arrangements set out in section 9 cannot be removed under the new removal procedures. (If an application is subsequently refused, the person concerned will be subject to deportation proceedings and will have a right of appeal to the Immigration Appellate Authority.) Subsection (3) places a time limit on taking removal action against the family member of someone who is being, or has been, removed similar to that contained in section 5(3) of the 1971 Act.

Section 11: Removal of asylum claimants under standing arrangements with member States

59.This section replaces section 2 of the Asylum and Immigration Act 1996 insofar as it applies to asylum seekers transferred to other Member States under standing EU arrangements for determining responsibility for asylum seekers. These standing arrangements are currently provided for by the Dublin Convention. Article 63 of the Treaty of Amsterdam provides that there should be a new measure in this field within the next five years. This may replace the Dublin Convention.

60.Section 11 is intended to deal with the fact, identified in the White Paper, that many Dublin Convention cases have been subject to unnecessary and lengthy delay as a result of judicial review applications which challenge the safety of the transfer. Like section 2 of the 1996 Act, this new section requires that nothing shall prevent the removal of an applicant provided that the Secretary of State certifies that certain requirements are met. These requirements are that the claimant is not a national of the receiving State and that the receiving State has accepted that it is responsible for considering the asylum claim.

61.Under section 2(2)(b) and 2(2)(c) of the Asylum and Immigration Act 1996, the Secretary of State was required to certify that the following conditions had been satisfied: (i) that the receiving State should be one where the person’s life or liberty would not be threatened by reason of his race, religion, nationality, social group or political opinion; and (ii) that the receiving State should be one from which the person would not be sent to another country otherwise than in accordance with the 1951 Refugee Convention. Given that section 11 replaces section 2 of the 1996 Act insofar as it applies to EU Member States, the Secretary of State will no longer be required to certify as to these two matters where the transfer is to take place under standing EU arrangements.

62.In addition, section 11 requires that removal may not proceed if there is an appeal outstanding in respect of a claim that the transfer would be in breach of the Human Rights Act 1998, or the period within which such an appeal should be lodged has not yet expired. In accordance with section 72, this requirement does not apply where the Secretary of State has certified that such a claim is manifestly unfounded.

Section 12: Removal of asylum claimants in other circumstances

63.This section replaces section 2 of the Asylum and Immigration Act 1996 insofar as it applies to asylum seekers transferred to safe third countries other than in the circumstances provided for in section 11. This section re-creates the effect of section 2 of the 1996 Act in respect of these cases.

64.In addition, section 12 requires that removal may not proceed if there is an appeal outstanding in respect of a claim that the transfer would be in breach of the Human Rights Act 1998, or the period within which such an appeal should be lodged has not yet expired. In accordance with section 72, this requirement does not apply where the Secretary of State has certified that such a claim is manifestly unfounded.

65.Section 15 of this Act replaces, with effect from the passing of this Act, section 6 of the Asylum and Immigration Appeals Act 1993. References to section 6 of the 1993 Act in section 2 of the 1996 Act should therefore be read as references to section 15 of this Act (see paragraph 102 of Schedule 14 and paragraph 2 of Schedule 15).

Section 13: Proof of identity of persons to be removed or deported

66.Many of those individuals awaiting removal from the United Kingdom are not in possession of a travel document, which is needed before removal can proceed. Securing a travel document without proof of identity is difficult in many cases. The purpose of this section is to allow the release of fingerprints to the appropriate national authorities, where necessary, to secure the provision of a travel document. Subsections (1) and (2) provide for the release of fingerprint data to the authorities of other countries where they require such data in circumstances where their nationals are to be removed from the United Kingdom but do not have valid passports or identity documents which permit travel.

67.Subsection (3) protects the confidentiality of an asylum seeker by ensuring that the Secretary of State cannot release information about whether the individual concerned has made an application for asylum.

68.The result of subsection (4) is that, as the release of data under subsection (2) is treated as necessary for reasons of substantial public interest, the eighth principle of Schedule 1 to the Data Protection Act 1998 will not apply. The eighth principle states that the transfer of personal data to countries outside the EEA is forbidden unless the country concerned ensures an adequate level of protection in relation to the processing of that data.

Section 14: Escorts for persons removed from the United Kingdom under directions

69.Where someone is refused leave to enter the United Kingdom, the captain of the ship or aircraft in which he arrived, or the owners or agents of that ship or aircraft, may be directed to remove him, or arrange his removal, from the United Kingdom. Such directions may also be given in respect of an illegal entrant. In such cases, the carrier meets the cost of removing the passenger. Where such directions cannot be given – most usually because the carrier cannot be identified – the Secretary of State may direct the owners or agents of any ship or aircraft to make arrangements for the removal of anyone who is an illegal entrant or who has been refused leave to enter. In these circumstances, the Secretary of State meets the costs of the removal. Removal directions – again at public expense – can also be given in respect of someone who is being deported and will be able to be given under the new powers contained in section 10.

70.It is sometimes necessary for the person being removed to be accompanied by an escort. Section 14 allows such directions to provide for the person being removed to be accompanied by an escort. Subsection (2) allows the Secretary of State to make regulations in respect of such escorts and in particular as to who is to bear the costs.

Section 15: Protection of claimants from removal or deportation

71.Section 15, which came into force on Royal Assent, replaces section 6 of the Asylum and Immigration Appeals Act 1993. Under section 6 of the 1993 Act, a person who had made a claim for asylum could not be removed from, or required to leave, the United Kingdom until he had been notified of the decision on his claim. This will continue to be the case. However, subsection (2) allows removal directions to be given or a deportation order to be made during this period (although they do not take effect until the person concerned has been notified of the decision on his asylum claim).

72.The question of setting removal directions or making a deportation order only arises if it is decided that the person concerned is not a refugee. The effect of the new section is that once the Secretary of State has decided to refuse the application for asylum, removal directions can be given – or a deportation order obtained – and notice of both decisions can be given to the person concerned at the same time thereby, where relevant, triggering a right of appeal. (Where the person concerned is an illegal entrant, it is the removal directions which give rise to the right of appeal to the Immigration Appellate Authority.)

73.This section applies with retrospective effect to any removal directions given or deportation orders made in respect of someone protected from removal since the 1993 Act came into force on 26 July 1993.

Sections 16 and 17: Provision of financial security

74.The powers that sections 16 and 17 will confer will enable the Government to give effect to the proposal in the White Paper to introduce a financial bond scheme for visitors to the United Kingdom. Under the proposed scheme, to be elaborated in immigration rules, if an entry clearance officer considering an application for entry clearance has any doubts about a visitor’s intentions, the visitor may be invited to arrange for a sponsor in the United Kingdom to provide a financial security (eg a bond). The provision or otherwise of a security would be one of the factors the entry clearance officer would be able to take into account when deciding the application. Any security provided would be forfeited if the applicant did not leave the United Kingdom at the end of their visit, except where refugee status or leave on ECHR grounds was granted. A security would be requested only where the application for entry clearance was judged by the entry clearance officer to be borderline. It would not be relevant if the application clearly justified either the grant or refusal of entry clearance.

75.The Government announced in the White Paper that these powers will be used in the first instance to run a pilot scheme to test whether financial securities for visitors are an effective and practical measure. The Government is undertaking a consultation exercise with interested parties on the design of the pilot scheme and will assess the results of the pilot, which will be made public, to see if they justify wider use of the provisions. The scheme referred to above will be put in place by immigration rules under the powers conferred by these sections. It will be possible to extend these powers to those seeking entry to this country or permission to remain in categories other than visitors. However, there are currently no plans to do so.

Section 18: Passenger information

76.Under paragraph 27(2) of Schedule 2 to the 1971 Act, an order has been made by the Secretary of State allowing an immigration officer to require the captain of a ship or aircraft arriving in the United Kingdom to furnish a passenger list showing the names and nationality or citizenship of passengers on board the ship or aircraft. This power has been applied with modifications by order under the Channel Tunnel Act 1987 to through trains and shuttle trains arriving in the United Kingdom.

77.Section 18 supplements this power by inserting a new paragraph 27B into Schedule 2 to the 1971 Act. The new paragraph allows immigration officers to require owners or agents (“carriers”) to disclose certain information relating to passengers who are expected to be carried on their ships or aircraft arriving in and departing from the United Kingdom, or which have arrived in or departed from the United Kingdom. This new power will be capable of being applied by order under the Channel Tunnel Act 1987 to through trains or shuttle trains arriving in or departing from the United Kingdom.

78.The types of information about passengers which can be required will be specified by order subject to the negative resolution procedure (this means that the order is laid before both Houses of Parliament and may be prayed against within 40 days). Carriers will not be required to provide information to which they do not have access but they may, in certain circumstances in the interests of a more flexible administration of immigration control, be required to provide information which they do not currently collect for their own purposes.

Section 19: Notification of non-EEA arrivals

79.This section inserts a new paragraph 27C into Schedule 2 to the 1971 Act. The new paragraph provides an immigration officer not below the rank of chief immigration officer, or an immigration officer authorised by such an officer, with the power to require a carrier to inform a relevant officer of the expected arrival in the United Kingdom of any of his ships or aircraft which the carrier expects to carry a non-EEA national. It is envisaged that this power will normally be used in relation to arrivals at ports where there is no permanent immigration presence to allow resources to be deployed more efficiently.

80.This new power will be capable of being applied by order under the Channel Tunnel Act 1987 to through trains or shuttle trains arriving in the United Kingdom.

Section 20: Supply of information to Secretary of State

81.This section provides for information to be supplied to the Secretary of State by the police, the National Criminal Intelligence Service (NCIS), the National Crime Squad (NCS), HM Customs and Excise (HMCE) and 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. This section is designed to facilitate closer inter-agency co-operation in tackling abuse of the immigration control, racketeering and other immigration-related offences. It will also enable resources to be deployed more effectively. Those who contract with the Secretary of State to provide support for asylum seekers and their families have been specified in the Act in addition to the law enforcement agencies in order to make it clear that they have the power to pass on any information relating to asylum seekers or more generally to immigration control or immigration crime. Information may only be supplied to the Secretary of State under this provision for the specific “immigration purposes” set out in the section.

82.In addition, the Secretary of State is given the power to specify by order further bodies which may supply information to him, and additional immigration purposes for which he may be supplied with information, under the section. This order-making power will be subject to draft affirmative procedure.

Section 21: Supply of information by Secretary of State

83.This section provides for information to be supplied by the Secretary of State to the police, NCIS, NCS and HMCE for the specified purposes set out in subsections (3), (4), (5) and (6) respectively. It will allow disclosure by the Secretary of State of information held in connection with the exercise of functions under immigration legislation.

84.The section also provides the Secretary of State with the power to specify by order further purposes for the supply of information to certain of these agencies, and other bodies to which information may be provided by him for specified purposes. Again, this order-making power will be subject to draft affirmative procedure.

Section 22: Restrictions on employment: code of practice

85.This section is designed to re-emphasise to employers their duty to avoid racial discrimination in their recruitment practices when seeking to establish the statutory defence under section 8 of the Asylum and Immigration Act 1996. It introduces into the 1996 Act a new section 8A which places the Secretary of State under a duty to issue a code of practice aimed at ensuring that employers do not breach the provisions of the Race Relations Act 1976 by making more checks on potential employees than section 8 requires or by targetting checks on racial grounds. Following consultation, the draft code must be laid before Parliament and may be brought into operation by statutory instrument subject to the negative resolution procedure.

86.Subsections (3) and (4) of the new section provide for consultation with those having statutory responsibility for, or specific interest in, guarding against racial discrimination in employment practice.

Section 23: Monitoring refusals of entry clearance

87.This section replaces section 13(3AA) and 13(3AB) of the 1971 Act. Subsections (1) and (2) require the Secretary of State to appoint an independent monitor to review refusals of entry clearance where there is no right of appeal by virtue of section 60(5). The monitor must, in accordance with subsection (3), make an annual report to the Secretary of State and, under subsection (4), the Secretary of State must lay a copy of the report before Parliament.

Section 24: Duty to report suspicious marriages

88.This section places a duty on superintendent registrars and certain others to report to the Home Office marriages which they reasonably suspect as being sham marriages (as defined). At present there is no such obligation. The purpose is to enable the Home Office to obtain early warning of possible suspicious marriages so that they may be investigated. It does not confer power to refuse to marry on grounds of immigration status. Nor does it confer powers on registrars or others to question couples about their immigration status.

89.Subsection (1) places the duty to report, where there are reasonable grounds for suspecting a sham marriage, on those registration officers in England and Wales to whom notice is given or who attest a notice of marriage under the Marriage Act 1949, on district registrars in Scotland to whom notice of marriage or a certificate is submitted under the Marriage (Scotland) Act 1977 and on registrars and deputy registrars in Northern Ireland to whom notice has been given under the Marriages (Ireland) Act 1844 or the Marriage Law (Ireland) Amendment Act 1863.

90.Subsection (2) provides for the duty to apply where a marriage is solemnised in the presence of a registrar of marriages, and in Scotland to authorised registrars, where before, during or immediately after solemnisation of the marriage the registration officer has reasonable grounds for suspecting the marriage is or will be a sham marriage.

91.Subsection (3) establishes the duty to report to the Secretary of State; and requires it to be without delay and in such form and manner as may be set out in regulations.

92.Subsection (4) provides for regulations to be made (a) in relation to England and Wales by the Registrar General for England and Wales (with the approval of the Chancellor); (b) in relation to Scotland by the Secretary of State after consulting the Registrar General of Births, Deaths and Marriages for Scotland; and (c) in relation to Northern Ireland by the Secretary of State, after consulting the Registrar General in Northern Ireland.

93.Subsection (5) defines a sham marriage as a marriage 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 national); and 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.

Section 25: Provision of facilities for immigration control at ports

94.Paragraph 26(3) of Schedule 2 to the Immigration Act 1971 empowers the Secretary of State to designate control areas at any port, and those concerned with the management of a port are implicitly required to provide such control accommodation and immediate support functions without charge. Other facilities, for example, ancillary office accommodation and waiting areas, which are required, and are no less essential, for the operation of the immigration control have been subject to rental and service charges. The purpose of this section is to enable a framework to be established for determining which facilities should be provided free of charge by port operators.

95.Subsection (1) supplements existing legislation by empowering the Secretary of State to make a direction requiring the provision without charge of the accommodation and facilities necessary for, or in connection with, the operation of the immigration control at a control port. This will allow the provision of facilities to be standardised and will also have the effect of removing any competitive advantage from which some operators might currently benefit.

96.Subsection (2) provides for consultation with those likely to be affected before the making of a direction, with subsection (3) requiring the issue of a copy of such a direction to the port manager concerned.

97.Subsections (4) and (5) detail the enforcement provisions and sanctions applicable in the event of non-compliance. They provide that a direction given under these provisions is enforceable by county court injunction, or in Scotland by relevant order. They further provide that persistent failure to comply with a direction may lead to the revocation of designation as a port of entry (designation under section 33(3) of the 1971 Act allows port authorities to land and embark passengers without the prior approval of the Secretary of State); or, in the case of a port not so designated, withdrawal of any approval given by the Secretary of State under paragraph 26(1) of Schedule 2 of the same Act for the embarkation and disembarkation of passengers at that port.

98.Subsections (6) and (7) define the terms “control port” and “facilities” as used in the section. The facilities concerned – to be specified in an order made by the Secretary of State – are to be the subject of consultations with representatives of the industry likely to be affected and officials of the Department of the Environment, Transport and the Regions.

Section 26: Charges: immigration control

99.The provisions of section 9(4) of the Immigration Act 1988, which is repealed by this Act, empowered the Secretary of State to provide, on request and in return for a charge, additional immigration officers, or to provide immigration officers to deal with passengers of a particular description or in particular circumstances. This section clarifies those provisions by introducing the concept of a “basic service”, which will establish the level of service to be provided at public expense, and above which level any services provided will be subject to charge.

100.Subsection (1)(a) provides for the Secretary of State to make arrangements and to impose charges for the provision of immigration officers or facilities at control ports in addition to those (if any) which are needed to provide a “basic service” at that port. It allows for charges to be made where the “basic service” determined for a control port does not include the provision of immigration officers, for example in circumstances where their presence is not normally required for the operation of immigration control at that port.

101.Subsection (1)(b) provides for charges to be made for dealing with passengers of a particular description or in particular circumstances, for example the provision of enhanced services for first class passengers at control ports or services elsewhere.

102.Subsection (2) defines the term “control port”, as given in section 25, as a port in which a control area is designated under paragraph 26 (3) of schedule 2 to the 1971 Act. Subsection (4) defines “basic service” as having such meaning as may be prescribed. The definition of “basic service” to be so prescribed is the subject of consultation with officials of the Department of the Environment, Transport and the Regions and representatives of the industry likely to be affected by these provisions.

Section 27: Charges: travel documents

103.This section allows fees to be prescribed for the consideration of applications for travel documents for refugees, stateless persons and other third country nationals. The section does not cover fees for the issue of national passports. Where a fee is payable in an individual case, the Secretary of State is not required to consider the application until the fee has been paid. The expectation is that all applications will be subject to a fee. A fee will be payable whether or not the application is granted and a document issued.

104.Fees are to be prescribed by regulations made by the Secretary of State under this section which, read with section 166, allows different fee levels to be set for different types of case. Fees in respect of applications for travel documents for refugees and stateless persons are to be set at the same amount as that charged for the issue of a standard British passport, in the light of the United Kingdom’s international obligations under the relevant Conventions. Fees in connection with applications for other types of travel document will reflect the full cost of processing the applications.

105.The issue of a travel document has always been subject to the payment of a fee, but there has not previously been an express power to do so which covered the full range of travel documents. Subsection (3) deems the Secretary of State always to have had the power to charge fees for the consideration of applications for a travel document or for the issue of travel documents. The effect is that legal proceedings for a refund in respect of a fee paid before this section came into force cannot succeed. (However, the Government announced in response to a Parliamentary question on 27 July 1999 a scheme to refund certain persons charged for travel documents provided they apply before 30 November 1999.)

Section 28: Deception

106.The White Paper announced the Government’s intention to extend and strengthen the existing criminal offences directed at those who obtain or seek to obtain leave to enter or remain by deception with the particular aim of dealing with failed asylum seekers whose claims have involved blatant deceit. Section 28 replaces and extends the current deception offence set out in section 24(1)(aa) of the 1971 Act (as inserted by section 4 of the Asylum and Immigration Act 1996). The offence provided for in new section 24A additionally encompasses securing or seeking to secure the avoidance, postponement or revocation of enforcement action by means which include deception. A claim for asylum is technically a claim made by the person that it would be contrary to the Refugee Convention for him to be removed from, or required to leave, the United Kingdom. Amending the existing offence in this way will ensure that it may also apply to those who seek to remain in this country on the basis of an unfounded asylum claim that involves the use of deception.

107.The present deception offence is punishable on summary conviction with a fine of not more than level 5 or with imprisonment for not more than six months, or with both (section 24(1) of the 1971 Act). Subsection (3) of new section 24A increases the maximum penalty for the extended offence which on conviction on indictment will be two years’ imprisonment or a fine, or both.

Section 29: Facilitation of entry

108.Under section 25(1) of the 1971 Act, it is an offence knowingly to facilitate the entry of illegal entrants, knowingly to facilitate for gain the entry of asylum claimants and knowingly to facilitate the obtaining of leave to remain by deception. Section 29 amends section 25 of the 1971 Act in the following ways.

109.Subsection (2) increases the maximum custodial sentence that can be imposed following a conviction on indictment from seven years to ten years’ imprisonment. This follows comments by the Court of Appeal earlier this year suggesting that an increase was necessary to allow flexibility when sentencing people convicted of a single act of facilitation relating to the entry of a number of people.

110.Under section 25(1) of the 1971 Act, as amended by the Asylum and Immigration Act 1996, it is an offence to facilitate the entry of an asylum claimant. Section 25(1A) of the 1971 Act makes further provisions in relation to this offence which are replicated in subsection (3) of this clause. However, subsection (3) also extends the definition of asylum claimant to include someone who intends to seek protection under the ECHR. Currently, the offence under section 25(1) does not apply to the actions of those who are employed by bona fide refugee organisations. Subsection (3) extends this so that the offence does not apply to the actions of those who are employed by any bona fide organisation whose purposes include providing assistance to people in the position of the asylum claimant in question.

111.Under section 25(5) of the 1971 Act, actions committed by a British citizen (or a British Dependent Territories citizen, British Overseas citizen, British subject or British protected person) outside the United Kingdom in order to facilitate the entry of an illegal entrant are an offence under United Kingdom law. Subsection (4) extends this to such actions committed in order to facilitate the entry of an asylum claimant where this is done for gain. (Facilitating the entry of an asylum claimant is not an offence if it is done otherwise than for gain or by someone in the course of their employment by a bona fide organisation whose purpose it is to assist persons in the position of the asylum claimant.)

Section 30: False statements etc

112.Section 26(1)(c) of the 1971 Act provides that a person is guilty of an offence if, on examination under Schedule 2 to that Act or otherwise, he makes or causes to be made to an immigration officer, or other person lawfully acting in the execution of that Act, a return, statement or representation which he knows to be false or does not believe to be true. This section extends this provision so that it covers such statements or representations made to a person acting in the execution of certain other immigration legislation. It will remain a summary offence punishable with a fine of not more than level 5 on the standard scale or with imprisonment for not more than six months, or with both.

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

113.Section 31 creates a defence against charges for certain offences (specified in subsections (3) and (4)) where the person concerned is a refugee and can show that he presented himself to the authorities in the United Kingdom without delay, claimed asylum as soon as reasonably practicable after his arrival in the United Kingdom and showed good cause for his illegal entry or presence. This defence, which is modelled on Article 31(1) of the Refugee Convention, does not apply if the refugee stopped in a third country outside the United Kingdom unless he can show that he could not reasonably have been expected to be given protection under the Convention in that country. It does not apply either in respect of any offences committed after the person concerned has made a claim for asylum. The defence is only available to someone who is a refugee within the meaning of the Convention and where the Secretary of State has refused to grant a claim for asylum that person is taken not to be a refugee unless he can show that he is, eg by means of other legal proceedings, including an appeal to the Immigration Appellate Authority.

114.The defence is intended to supplement the administrative arrangements introduced in mid-1999 which are intended to identify at an early stage those cases where Article 31(1) may be relevant. In addition, because the provision applies retrospectively, any refugee who has been convicted of a specified offence before the Act comes into force and who had not argued a defence based on Article 31(1) during those proceedings, can apply to the relevant Criminal Cases Review Commission with a view to the case being referred to the Court of Appeal or High Court of Justiciary on the grounds that he would have had a defence under this section if it had been in force at the time.

115.The Secretary of State may add to the list of offences to which this defence can apply.

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