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Nationality, Immigration and Asylum Act 2002

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E+W+S+N.I.

Nationality, Immigration and Asylum Act 2002

2002 CHAPTER 41

An Act to make provision about nationality, immigration and asylum; to create offences in connection with international traffic in prostitution; to make provision about international projects connected with migration; and for connected purposes.

[7th November 2002] F1

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

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Amendments (Textual)

F1Act: for the words "solicitor of the Supreme Court of Northern Ireland" wherever they occur there is substituted (prosp.) the words "solicitor of the Court of Judicature of Northern Ireland" by virtue of Constitutional Reform Act 2005 (c. 4), ss. 59, 148(1), Sch. 11 para. 5 [Editorial Note: this amendment will be carried through into the text of the Act at the same time as any other effects on the Act for the year in which the relevant commencement order (or first such order) is made]

Act: for the words "solicitors of the Supreme Court of Northern Ireland" wherever they occur there is substituted (prosp.) the words "solicitors of the Court of Judicature of Northern Ireland" by virtue of Constitutional Reform Act 2005 (c. 4), ss. 59, 148(1), Sch. 11 para. 5 [Editorial Note: this amendment will be carried through into the text of the Act at the same time as any other effects on the Act for the year in which the relevant commencement order (or first such order) is made]

Act: for the words "solicitor of the Supreme Court of Judicature of Northern Ireland" wherever they occur there is substituted (prosp.) the words "solicitor of the Court of Judicature of Northern Ireland" by virtue of Constitutional Reform Act 2005 (c. 4), ss. 59, 148(1), Sch. 11 para. 5 [Editorial Note: this amendment will be carried through into the text of the Act at the same time as any other effects on the Act for the year in which the relevant commencement order (or first such order) is made]

Act: for the words "solicitors of the Supreme Court of Judicature of Northern Ireland" wherever they occur there is substituted (prosp.) the words "solicitors of the Court of Judicature of Northern Ireland" by virtue of Constitutional Reform Act 2005 (c. 4), ss. 59, 148(1), Sch. 11 para. 5 [Editorial Note: this amendment will be carried through into the text of the Act at the same time as any other effects on the Act for the year in which the relevant commencement order (or first such order) is made]

Part 1 E+W+S+N.I.Nationality

1 Naturalisation: knowledge of language and societyE+W+S+N.I.

(1)The following shall be inserted after the word “and” after paragraph 1(1)(c) of Schedule 1 to the British Nationality Act 1981 (c. 61) (requirements for naturalisation)—

(ca)that he has sufficient knowledge about life in the United Kingdom; and.

(2)In paragraph 2(e) of that Schedule (waiver)—

(a)for “the requirement specified in paragraph 1(1)(c)” there shall be substituted “ either or both of the requirements specified in paragraph 1(1)(c) and (ca) ”, and

(b)for “expect him to fulfil it” there shall be substituted “ expect him to fulfil that requirement or those requirements ”.

(3)The following shall be inserted after section 41(1)(b) of that Act (regulations)—

(ba)for determining whether a person has sufficient knowledge of a language for the purpose of an application for naturalisation;

(bb)for determining whether a person has sufficient knowledge about life in the United Kingdom for the purpose of an application for naturalisation;.

(4)The following shall be inserted after section 41(1) of that Act—

(1A)Regulations under subsection (1)(ba) or (bb) may, in particular—

(a)make provision by reference to possession of a specified qualification;

(b)make provision by reference to possession of a qualification of a specified kind;

(c)make provision by reference to attendance on a specified course;

(d)make provision by reference to attendance on a course of a specified kind;

(e)make provision by reference to a specified level of achievement;

(f)enable a person designated by the Secretary of State to determine sufficiency of knowledge in specified circumstances;

(g)enable the Secretary of State to accept a qualification of a specified kind as evidence of sufficient knowledge of a language.

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Commencement Information

I1S. 1 wholly in force at 1.11.2005; s. 1 not in force at Royal Assent see s. 162(2); s. 1(3)(4) in force at 6.7.2004 by S.I. 2004/1707, art. 2; s. 1(1)(2) in force at 1.11.2005 by S.I. 2005/2782, art. 3(1) (subject to art. 3(2))

2 Naturalisation: spouse of citizenE+W+S+N.I.

(1)Paragraphs 3 and 4 of Schedule 1 to the British Nationality Act 1981 (c. 61) (requirements for naturalisation as British citizen: spouse of citizen) shall be amended as follows—

(a)in paragraph 3(e) for “requirement specified in paragraph 1(1)(b)” substitute “ requirements specified in paragraph 1(1)(b), (c) and (ca) ”, and

(b)in paragraph 4(c) omit“and (e)”.

(2)Paragraphs 7 and 8 of that Schedule (requirements for naturalisation as British overseas territories citizen: spouse of citizen) shall be amended as follows—

(a)in paragraph 7(e) for “requirement specified in paragraph 5(1)(b)” substitute “ requirements specified in paragraph 5(1)(b) and (c) ”, and

(b)in paragraph 8(c) omit“and (e)”.

3 Citizenship ceremony, oath and pledgeE+W+S+N.I.

Schedule 1 (which makes provision about citizenship ceremonies, oaths and pledges) shall have effect.

4 Deprivation of citizenshipE+W+S+N.I.

(1)The following shall be substituted for section 40 of the British Nationality Act 1981 (deprivation of citizenship)—

40 Deprivation of citizenship

(1)In this section a reference to a person’s “citizenship status” is a reference to his status as—

(a)a British citizen,

(b)a British overseas territories citizen,

(c)a British Overseas citizen,

(d)a British National (Overseas),

(e)a British protected person, or

(f)a British subject.

(2)The Secretary of State may by order deprive a person of a citizenship status if the Secretary of State is satisfied that the person has done anything seriously prejudicial to the vital interests of—

(a)the United Kingdom, or

(b)a British overseas territory.

(3)The Secretary of State may by order deprive a person of a citizenship status which results from his registration or naturalisation if the Secretary of State is satisfied that the registration or naturalisation was obtained by means of—

(a)fraud,

(b)false representation, or

(c)concealment of a material fact.

(4)The Secretary of State may not make an order under subsection (2) if he is satisfied that the order would make a person stateless.

(5)Before making an order under this section in respect of a person the Secretary of State must give the person written notice specifying—

(a)that the Secretary of State has decided to make an order,

(b)the reasons for the order, and

(c)the person’s right of appeal under section 40A(1) or under section 2B of the Special Immigration Appeals Commission Act 1997 (c. 68).

(6)Where a person acquired a citizenship status by the operation of a law which applied to him because of his registration or naturalisation under an enactment having effect before commencement, the Secretary of State may by order deprive the person of the citizenship status if the Secretary of State is satisfied that the registration or naturalisation was obtained by means of—

(a)fraud,

(b)false representation, or

(c)concealment of a material fact.

40A Deprivation of citizenship: appeal

(1)A person who is given notice under section 40(5) of a decision to make an order in respect of him under section 40 may appeal against the decision to an adjudicator appointed under section 81 of the Nationality, Immigration and Asylum Act 2002 (immigration appeal).

(2)Subsection (1) shall not apply to a decision if the Secretary of State certifies that it was taken wholly or partly in reliance on information which in his opinion should not be made public—

(a)in the interests of national security,

(b)in the interests of the relationship between the United Kingdom and another country, or

(c)otherwise in the public interest.

(3)A party to an appeal to an adjudicator under subsection (1) may, with the permission of the Immigration Appeal Tribunal, appeal to the Tribunal against the adjudicator’s determination on a point of law.

(4)A party to an appeal to the Immigration Appeal Tribunal under subsection (3) may bring a further appeal on a point of law—

(a)where the decision of the adjudicator was made in Scotland, to the Court of Session, or

(b)in any other case, to the Court of Appeal.

(5)An appeal under subsection (4) may be brought only with the permission of—

(a)the Tribunal, or

(b)if the Tribunal refuses permission, the court referred to in subsection (4)(a) or (b).

(6)An order under section 40 may not be made in respect of a person while an appeal under this section or section 2B of the Special Immigration Appeals Commission Act 1997 (c. 68)—

(a)has been instituted and has not yet been finally determined, withdrawn or abandoned, or

(b)could be brought (ignoring any possibility of an appeal out of time with permission).

(7)Rules under section 106 of the Nationality, Immigration and Asylum Act 2002 (immigration appeal: rules) may make provision about an appeal under this section.

(8)Directions under section 107 of that Act (practice directions) may make provision about an appeal under this section.

(2)The following shall be inserted before section 3 of the Special Immigration Appeals Commission Act 1997 (jurisdiction: bail)—

A person may appeal to the Special Immigration Appeals Commission against a decision to make an order under section 40 of the British Nationality Act 1981 (c. 61) (deprivation of citizenship) if he is not entitled to appeal under section 40A(1) of that Act because of a certificate under section 40A(2).

(3)In section 5(1)(a) and (b) and (2) of that Act (procedure) after “section 2” there shall be inserted “ or 2B ”.

(4)In exercising a power under section 40 of the British Nationality Act 1981 after the commencement of subsection (1) above the Secretary of State may have regard to anything which—

(a)occurred before commencement, and

(b)he could have relied on (whether on its own or with other matters) in making an order under section 40 before commencement.

5 Resumption of citizenshipE+W+S+N.I.

In the following provisions of the British Nationality Act 1981 (c. 61) the words “, if a woman,” shall cease to have effect—

(a)section 10(1) and (2)(registration as British citizen following renunciation of citizenship), and

(b)section 22(1) and (2)(registration as British overseas territories citizen following renunciation of citizenship).

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Commencement Information

I2S. 5 in force at Royal Assent with effect in accordance with s. 162(3)

6 Nationality decision: discriminationE+W+S+N.I.

(1)Section 19D of the Race Relations Act 1976 (c. 74) (discrimination by public authority: permitted cases) shall be amended as follows.

(2)In subsection (1) for “immigration and nationality functions” substitute “ immigration functions ”.

(3)For subsections (4) and (5) substitute—

(4)In subsection (1) “immigration functions” means functions exercisable by virtue of any of the enactments mentioned in subsection (5).

(5)Those enactments are—

(a)the Immigration Acts (within the meaning of section 158 of the Nationality, Immigration and Asylum Act 2002) excluding sections 28A to 28K of the Immigration Act 1971 (c. 77) so far as they relate to offences under Part III of that Act;

(b)the Special Immigration Appeals Commission Act 1997 (c. 68);

(c)provision made under section 2(2) of the European Communities Act 1972 (c. 68) which relates to immigration or asylum; and

(d)any provision of Community law which relates to immigration or asylum.

(4)Section 19E of the Race Relations Act 1976 (monitoring of use of section 19D) shall be amended as follows—

(a)in subsection (3)(a) for “immigration and nationality functions” substitute “ immigration functions ”, and

(b)omit subsection (7).

(5)In section 71A of that Act (general statutory duty: special cases)—

(a)in subsection (1) the words “(within the meaning of section 19D(1))” shall be omitted, and

(b)the following shall be inserted after subsection (1)—

(1A)In subsection (1) “immigration and nationality functions” means functions exercisable by virtue of—

(a)the Immigration Acts (within the meaning of section 158 of the Nationality, Immigration and Asylum Act 2002) excluding sections 28A to 28K of the Immigration Act 1971 so far as they relate to offences under Part III of that Act;

(b)the British Nationality Act 1981;

(c)the British Nationality (Falkland Islands) Act 1983 (c. 6);

(d)the British Nationality (Hong Kong) Act 1990 (c. 34);

(e)the Hong Kong (War Wives and Widows) Act 1996 (c. 41);

(f)the British Nationality (Hong Kong) Act 1997 (c. 20);

(g)the Special Immigration Appeals Commission Act 1997 (c. 68);

(h)provision made under section 2(2) of the European Communities Act 1972 (c. 68) which relates to the subject matter of an enactment within any of paragraphs (a) to (g); or

(i)any provision of Community law which relates to the subject matter of an enactment within any of those paragraphs.

7 Nationality decision: reasons and reviewE+W+S+N.I.

(1)Section 44(2) and (3) of the British Nationality Act 1981 (c. 61) (no requirement to give reasons for discretionary decision, and no right of appeal) shall cease to have effect.

(2)Section 1(5) of the British Nationality (Hong Kong) Act 1990 (c. 34) (no requirement to give reasons for discretionary decision, and no right of appeal) shall cease to have effect.

8 Citizenship: registrationE+W+S+N.I.

In paragraph 3(1)(b) of Schedule 2 to the British Nationality Act 1981 (application by person born in United Kingdom or overseas territory for registration as citizen: age requirement) the words “had attained the age of ten but” shall cease to have effect.

9 Legitimacy of childE+W+S+N.I.

(1)The following shall be substituted for section 50(9) of the British Nationality Act 1981 (interpretation: child)—

(9)For the purposes of this Act a child’s mother is the woman who gives birth to the child.

(9A)For the purposes of this Act a child’s father is—

(a)the husband, at the time of the child’s birth, of the woman who gives birth to the child, or

(b)where a person is treated as the father of the child under section 28 of the Human Fertilisation and Embryology Act 1990 (c. 37) (father), that person, or

(c)where neither paragraph (a) nor paragraph (b) applies, any person who satisfies prescribed requirements as to proof of paternity.

(9B)In subsection (9A)(c) “prescribed” means prescribed by regulations of the Secretary of State; and the regulations—

(a)may confer a function (which may be a discretionary function) on the Secretary of State or another person,

(b)may make provision which applies generally or only in specified circumstances,

(c)may make different provision for different circumstances,

(d)must be made by statutory instrument, and

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

(9C)The expressions “parent”, “child” and “descended” shall be construed in accordance with subsections (9) and (9A).

(2)In section 3(6) of that Act (registration of minor as British citizen)—

(a)after paragraph (a) insert “ and ”,

(b)the word “and” after paragraph (b) shall cease to have effect, and

(c)paragraph (c) (illegitimate child) shall cease to have effect.

(3)In section 17(6) of that Act (registration of minor as British overseas territories citizen)—

(a)after paragraph (a) insert “ and ”,

(b)the word“and” after paragraph (b) shall cease to have effect, and

(c)paragraph (c)(illegitimate child) shall cease to have effect.

(4)Section 47 of that Act (legitimated children) shall cease to have effect.

(5)In Schedule 2 to that Act (persons otherwise stateless)—

(a)in paragraph 1(1)(b) (person born in United Kingdom), the words “he is born legitimate and” shall cease to have effect, and

(b)in paragraph 2(1)(b) (person born in British overseas territory), the words “he is born legitimate and” shall cease to have effect.

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Commencement Information

I3S. 9 wholly in force at 1.7.2006; S. 9 not in force at Royal Assent see s. 162; s. 9 in force at 5.6.2006 for specified purposes and in force at 1.7.2006 so far as not already in force by S.I. 2006/1498, art. 2

10 Right of abode: certificate of entitlementE+W+S+N.I.

(1)The Secretary of State may by regulations make provision for the issue to a person of a certificate that he has the right of abode in the United Kingdom.

(2)The regulations may, in particular—

(a)specify to whom an application must be made;

(b)specify the place (which may be outside the United Kingdom) to which an application must be sent;

(c)provide that an application must be [F2accompanied by specified information;]

(d)provide that an application must be accompanied by specified documents;

(e)F3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(f)specify the consequences of failure to comply with a requirement under any of paragraphs [F4(a) to (d)] above;

(g)provide for a certificate to cease to have effect after a period of time specified in or determined in accordance with the regulations;

(h)make provision about the revocation of a certificate.

(3)The regulations may—

(a)make provision which applies generally or only in specified cases or circumstances;

(b)make different provision for different purposes;

(c)include consequential, incidental or transitional provision.

(4)The regulations—

(a)must be made by statutory instrument, and

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

(5)The Immigration Act 1971 (c. 77) shall be amended as follows—

(a)in section 3(9)(b) (proof of entitlement to right of abode) the words “issued by or on behalf of the Government of the United Kingdom certifying that he has such a right of abode” shall cease to have effect, and

(b)in section 33(1) for the definition of “certificate of entitlement” substitute—

certificate of entitlement” means a certificate under section 10 of the Nationality, Immigration and Asylum Act 2002 that a person has the right of abode in the United Kingdom;.

(6)Regulations under this section may, in particular, include provision saving, with or without modification, the effect of a certificate which—

(a)is issued before the regulations come into force, and

(b)is a certificate of entitlement for the purposes of sections 3(9) and 33(1) of the Immigration Act 1971 as those sections have effect before the commencement of subsection (5) above.

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Amendments (Textual)

F3S. 10(2)(e) ceases to have effect (2.4.2007) and repealed (2.4.2007) by Immigration, Asylum and Nationality Act 2006 (c. 13), ss. 52, 61, 62, Sch. 2 para. 4(a), Sch. 3; S.I. 2007/1109, arts. 4, 5, Sch. (subject to art. 6)

F4Words in s. 10(2)(f) substituted (2.4.2007) by Immigration, Asylum and Nationality Act 2006 (c. 13) ss. 52, 62, {Sch. 2 para. 4(b)}; S.I. 2007/1109, art. 4

Commencement Information

I4S.10 partly in force; s.10(1)-(4)(6) in force at Royal Assent see s. 162(2); s. 10(5)(b) in force at 21.12.2006 by S.I. 2006/3144, art. 2

11 Unlawful presence in United KingdomE+W+S+N.I.

(1)This section applies for the construction of a reference to being in the United Kingdom “in breach of the immigration laws” in section 4(2) or (4) or 50(5) of, or Schedule 1 to, the British Nationality Act 1981 (c. 61).

(2)A person is in the United Kingdom in breach of the immigration laws if (and only if) he—

(a)is in the United Kingdom,

(b)does not have the right of abode in the United Kingdom within the meaning of section 2 of the Immigration Act 1971,

(c)does not have leave to enter or remain in the United Kingdom (whether or not he previously had leave),

(d)is not a qualified person within the meaning of the Immigration (European Economic Area) Regulations 2000 (S.I. 2000/2326) (person entitled to reside in United Kingdom without leave) (whether or not he was previously a qualified person),

(e)is not a family member of a qualified person within the meaning of those regulations (whether or not he was previously a family member of a qualified person),

(f)is not entitled to enter and remain in the United Kingdom by virtue of section 8(1) of the Immigration Act 1971 (crew) (whether or not he was previously entitled), and

(g)does not have the benefit of an exemption under section 8(2) to (4) of that Act (diplomats, soldiers and other special cases) (whether or not he previously had the benefit of an exemption).

(3)Section 11(1) of the Immigration Act 1971 (person deemed not to be in United Kingdom before disembarkation, while in controlled area or while under immigration control) shall apply for the purposes of this section as it applies for the purposes of that Act.

(4)This section shall be treated as always having had effect except in relation to a person who on the commencement of this section is, or has been at any time since he last entered the United Kingdom—

(a)a qualified person within the meaning of the regulations referred to in subsection (2)(d), or

(b)a family member of a qualified person within the meaning of those regulations.

(5)This section is without prejudice to the generality of—

(a)a reference to being in a place outside the United Kingdom in breach of immigration laws, and

(b)a reference in a provision other than one specified in subsection (1) to being in the United Kingdom in breach of immigration laws.

12 British citizenship: registration of certain persons without other citizenshipE+W+S+N.I.

(1)The following shall be inserted after section 4A of the British Nationality Act 1981 (c. 61) (registration as British citizen)—

4B Acquisition by registration: certain persons without other citizenship

(1)This section applies to a person who has the status of—

(a)British Overseas citizen,

(b)British subject under this Act, or

(c)British protected person.

(2)A person to whom this section applies shall be entitled to be registered as a British citizen if—

(a)he applies for registration under this section,

(b)the Secretary of State is satisfied that the person does not have, apart from the status mentioned in subsection (1), any citizenship or nationality, and

(c)the Secretary of State is satisfied that the person has not after 4th July 2002 renounced, voluntarily relinquished or lost through action or inaction any citizenship or nationality.

(2)In section 14(1) of that Act (meaning of British citizen “by descent”), in paragraph (d) for “section 5” there shall be substituted “ section 4B or 5 ”.

13 British citizenship: registration of certain persons born between 1961 and 1983E+W+S+N.I.

(1)The following shall be inserted after section 4B of the British Nationality Act 1981 (registration as British citizen)—

4C Acquisition by registration: certain persons born between 1961 and 1983

(1)A person is entitled to be registered as a British citizen if—

(a)he applies for registration under this section, and

(b)he satisfies each of the following conditions.

(2)The first condition is that the applicant was born after 7th February 1961 and before 1st January 1983.

(3)The second condition is that the applicant would at some time before 1st January 1983 have become a citizen of the United Kingdom and Colonies by virtue of section 5 of the British Nationality Act 1948 (c. 56) if that section had provided for citizenship by descent from a mother in the same terms as it provided for citizenship by descent from a father.

(4)The third condition is that immediately before 1st January 1983 the applicant would have had the right of abode in the United Kingdom by virtue of section 2 of the Immigration Act 1971 (c. 77) had he become a citizen of the United Kingdom and Colonies as described in subsection (3) above.

(2)In section 14(1) of that Act (meaning of British citizen “by descent”), in paragraph (d) after the words “section 4B” (as substituted by section 12(2) of this Act) there shall be inserted “ , 4C ”.

14 Hong KongE+W+S+N.I.

A person may not be registered as a British overseas territories citizen under a provision of the British Nationality Act 1981 (c. 61) by virtue of a connection with Hong Kong.

15 Repeal of spent provisionsE+W+S+N.I.

Schedule 2 (which repeals spent provisions) shall have effect.

Part 2 E+W+S+N.I.Accommodation Centres

EstablishmentE+W+S+N.I.

16 Establishment of centresE+W+S+N.I.

(1)The Secretary of State may arrange for the provision of premises for the accommodation of persons in accordance with this Part.

(2)A set of premises provided under this section is referred to in this Act as an “accommodation centre”.

(3)The Secretary of State may arrange for—

(a)the provision of facilities at or near an accommodation centre for sittings of adjudicators appointed for the purpose of Part 5 in accordance with a determination F5. . . under paragraph 2 of Schedule 4;

(b)the provision of facilities at an accommodation centre for the taking of steps in connection with the determination of claims for asylum (within the meaning of section 18(3)).

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Amendments (Textual)

Use of centresE+W+S+N.I.

Prospective

17 Support for destitute asylum-seekerE+W+S+N.I.

(1)The Secretary of State may arrange for the provision of accommodation for a person in an accommodation centre if—

(a)the person is an asylum-seeker or the dependant of an asylum-seeker, and

(b)the Secretary of State thinks that the person is destitute or is likely to become destitute within a prescribed period.

(2)The Secretary of State may make regulations about procedure to be followed in respect of the provision of accommodation under this section.

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

(a)specifying procedure to be followed in applying for accommodation in an accommodation centre;

(b)providing for an application to be combined with an application under or in respect of another enactment;

(c)requiring an applicant to provide information;

(d)specifying circumstances in which an application may not be considered (which provision may, in particular, provide for an application not to be considered where the Secretary of State is not satisfied that the information provided is complete or accurate or that the applicant is co-operating with enquiries under paragraph (e));

(e)about the making of enquiries by the Secretary of State;

(f)requiring a person to notify the Secretary of State of a change in circumstances.

(4)Sections 18 to 20 define the following expressions for the purpose of this Part—

(a)asylum-seeker,

(b)dependant, and

(c)destitute.

18 Asylum-seeker: definitionE+W+S+N.I.

(1)For the purposes of this Part a person is an “asylum-seeker” if—

(a)he is at least 18 years old,

(b)he is in the United Kingdom,

(c)a claim for asylum has been made by him at a place designated by the Secretary of State,

(d)the Secretary of State has recorded the claim, and

(e)the claim has not been determined.

(2)A person shall continue to be treated as an asylum-seeker despite subsection (1)(e) while—

(a)his household includes a dependent child who is under 18, and

(b)he does not have leave to enter or remain in the United Kingdom.

(3)A claim for asylum is a claim by a person that to remove him from or require him to leave the United Kingdom would be contrary to the United Kingdom’s obligations under—

(a)the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and its Protocol, or

(b)Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms agreed by the Council of Europe at Rome on 4th November 1950.

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Commencement Information

I5S. 18 partly in force; s. 18 not in force at Royal Assent see s. 162(2); s. 18 in force for certain purposes at 8.1.2003 and for further certain purposes at 10.2.2003 by S.I. 2003/1, art. 2, Sch.

Prospective

19 Destitution: definitionE+W+S+N.I.

(1)Where a person has dependants, he and his dependants are destitute for the purpose of this Part if they do not have and cannot obtain both—

(a)adequate accommodation, and

(b)food and other essential items.

(2)Where a person does not have dependants, he is destitute for the purpose of this Part if he does not have and cannot obtain both—

(a)adequate accommodation, and

(b)food and other essential items.

(3)In determining whether accommodation is adequate for the purposes of subsection (1) or (2) the Secretary of State must have regard to any matter prescribed for the purposes of this subsection.

(4)In determining whether accommodation is adequate for the purposes of subsection (1) or (2) the Secretary of State may not have regard to—

(a)whether a person has an enforceable right to occupy accommodation,

(b)whether a person shares all or part of accommodation,

(c)whether accommodation is temporary or permanent,

(d)the location of accommodation, or

(e)any other matter prescribed for the purposes of this subsection.

(5)The Secretary of State may by regulations specify items which are or are not to be treated as essential items for the purposes of subsections (1) and (2).

(6)The Secretary of State may by regulations—

(a)provide that a person is not to be treated as destitute for the purposes of this Part in specified circumstances;

(b)enable or require the Secretary of State in deciding whether a person is destitute to have regard to income which he or a dependant of his might reasonably be expected to have;

(c)enable or require the Secretary of State in deciding whether a person is destitute to have regard to support which is or might reasonably be expected to be available to the person or a dependant of his;

(d)enable or require the Secretary of State in deciding whether a person is destitute to have regard to assets of a prescribed kind which he or a dependant of his has or might reasonably be expected to have;

(e)make provision as to the valuation of assets.

Prospective

20 Dependant: definitionE+W+S+N.I.

For the purposes of this Part a person is a “dependant” of an asylum-seeker if (and only if) that person—

(a)is in the United Kingdom, and

(b)is within a prescribed class.

Prospective

21 Sections 17 to 20: supplementaryE+W+S+N.I.

(1)This section applies for the purposes of sections 17 to 20.

(2)The Secretary of State may inquire into and decide a person’s age.

(3)A claim for asylum shall be treated as determined at the end of such period as may be prescribed beginning with—

(a)the date on which the Secretary of State notifies the claimant of his decision on the claim, or

(b)if the claimant appeals against the Secretary of State’s decision, the date on which the appeal is disposed of.

(4)A notice under subsection (3)(a)—

(a)must be in writing, and

(b)if sent by first class post to the claimant’s last known address or to the claimant’s representative, shall be treated as being received by the claimant on the second day after the day of posting.

(5)An appeal is disposed of when it is no longer pending for the purpose of—

(a)Part 5 of this Act, or

(b)the Special Immigration Appeals Commission Act 1997 (c. 68).

Prospective

22 Immigration and Asylum Act 1999, s. 95E+W+S+N.I.

The Secretary of State may provide support under section 95 of the Immigration and Asylum Act 1999 (c. 33) (destitute asylum-seeker) by arranging for the provision of accommodation in an accommodation centre.

Prospective

23 Person subject to United Kingdom entrance controlE+W+S+N.I.

(1)A residence restriction may include a requirement to reside at an accommodation centre.

(2)In subsection (1) “residence restriction” means a restriction imposed under—

(a)paragraph 21 of Schedule 2 to the Immigration Act 1971 (c. 77) (temporary admission or release from detention), or

(b)paragraph 2(5) of Schedule 3 to that Act (control pending deportation).

(3)Where a person is required to reside in an accommodation centre by virtue of subsection (1) the Secretary of State must arrange for the provision of accommodation for the person in an accommodation centre.

(4)But if the person is required to leave an accommodation centre by virtue of section 26 or 30 he shall be treated as having broken the residence restriction referred to in subsection (1).

(5)The Secretary of State may provide support under section 4 of the Immigration and Asylum Act 1999 (persons subject to entrance control) (including that section as amended by section 49 of this Act) by arranging for the provision of accommodation in an accommodation centre.

Prospective

24 Provisional assistanceE+W+S+N.I.

(1)If the Secretary of State thinks that a person may be eligible for the provision of accommodation in an accommodation centre under section 17, he may arrange for the provision for the person, pending a decision about eligibility, of—

(a)accommodation in an accommodation centre, or

(b)other support or assistance (of any kind).

(2)Section 99 of the Immigration and Asylum Act 1999 (c. 33) (provision of support by local authority) shall have effect in relation to the provision of support for persons under subsection (1) above as it has effect in relation to the provision of support for asylum-seekers under sections 95 and 98 of that Act.

Prospective

25 Length of stayE+W+S+N.I.

(1)The Secretary of State may not arrange for the provision of accommodation for a person in an accommodation centre if he has been a resident of an accommodation centre for a continuous period of six months.

(2)But—

(a)subsection (1) may be disapplied in respect of a person, generally or to a specified extent, by agreement between the Secretary of State and the person, and

(b)if the Secretary of State thinks it appropriate in relation to a person because of the circumstances of his case, the Secretary of State may direct that subsection (1) shall have effect in relation to the person as if the period specified in that subsection were the period of nine months.

(3)Section 51 is subject to this section.

(4)The Secretary of State may by order amend subsection (1) or (2)(b) so as to substitute a shorter period for a period specified.

Prospective

26 Withdrawal of supportE+W+S+N.I.

(1)The Secretary of State may stop providing support for a person under section 17 or 24 if—

(a)the Secretary of State suspects that the person or a dependant of his has committed an offence by virtue of section 35, or

(b)the person or a dependant of his has failed to comply with directions of the Secretary of State as to the time or manner of travel to accommodation provided under section 17 or 24.

(2)The Secretary of State may by regulations specify other circumstances in which he may stop providing support for a person under section 17 or 24.

(3)In determining whether or not to provide a person with support or assistance under section 17 or 24 of this Act or section 4, 95 or 98 of the Immigration and Asylum Act 1999 (asylum-seeker) the Secretary of State may take into account the fact that—

(a)he has withdrawn support from the person by virtue of this section or section 30(4) or (5), or

(b)circumstances exist which would have enabled the Secretary of State to withdraw support from the person by virtue of this section had he been receiving support.

(4)This section is without prejudice to section 103 of the Immigration and Asylum Act 1999 (c. 33) (appeal against refusal to support).

Prospective

Operation of centresE+W+S+N.I.

27 Resident of centreE+W+S+N.I.

A reference in this Part to a resident of an accommodation centre is a reference to a person for whom accommodation in the centre is provided—

(a)under section 17,

(b)by virtue of section 22,

(c)by virtue of section 23, or

(d)under section 24.

28 Manager of centreE+W+S+N.I.

A reference in this Part to the manager of an accommodation centre is a reference to a person who agrees with the Secretary of State to be wholly or partly responsible for the management of the centre.

29 FacilitiesE+W+S+N.I.

(1)The Secretary of State may arrange for the following to be provided to a resident of an accommodation centre—

(a)food and other essential items;

(b)money;

(c)assistance with transport for the purpose of proceedings under the Immigration Acts or in connection with a claim for asylum;

(d)transport to and from the centre;

(e)assistance with expenses incurred in connection with carrying out voluntary work or other activities;

(f)education and training;

(g)facilities relating to health;

(h)facilities for religious observance;

(i)anything which the Secretary of State thinks ought to be provided for the purpose of providing a resident with proper occupation and for the purpose of maintaining good order;

(j)anything which the Secretary of State thinks ought to be provided for a person because of his exceptional circumstances.

(2)The Secretary of State may make regulations specifying the amount or maximum amount of money to be provided under subsection (1)(b).

(3)The Secretary of State may arrange for the provision of facilities in an accommodation centre for the use of a person in providing legal advice to a resident of the centre.

(4)The Secretary of State shall take reasonable steps to ensure that a resident of an accommodation centre has an opportunity to obtain legal advice before any appointment made by an immigration officer or an official of the Secretary of State for the purpose of obtaining information from the resident to be used in determining his claim for asylum.

(5)The Secretary of State may by order amend subsection (1) so as to add a reference to facilities which may be provided.

30 Conditions of residenceE+W+S+N.I.

(1)The Secretary of State may make regulations about conditions to be observed by residents of an accommodation centre.

(2)Regulations under subsection (1) may, in particular, enable a condition to be imposed in accordance with the regulations by—

(a)the Secretary of State, or

(b)the manager of an accommodation centre.

(3)A condition imposed by virtue of this section may, in particular—

(a)require a person not to be absent from the centre during specified hours without the permission of the Secretary of State or the manager;

(b)require a person to report to an immigration officer or the Secretary of State.

(4)If a resident of an accommodation centre breaches a condition imposed by virtue of this section, the Secretary of State may—

(a)require the resident and any dependant of his to leave the centre;

(b)authorise the manager of the centre to require the resident and any dependant of his to leave the centre.

(5)If a dependant of a resident of an accommodation centre breaches a condition imposed by virtue of this section, the Secretary of State may—

(a)require the resident and any dependant of his to leave the centre;

(b)authorise the manager of the centre to require the resident and any dependant of his to leave the centre.

(6)Regulations under this section must include provision for ensuring that a person subject to a condition is notified of the condition in writing.

(7)A condition imposed by virtue of this section is in addition to any restriction imposed under paragraph 21 of Schedule 2 to the Immigration Act 1971 (c. 77) (control of entry to United Kingdom) or under paragraph 2(5) of Schedule 3 to that Act (control pending deportation).

(8)A reference in this Part to a condition of residence is a reference to a condition imposed by virtue of this section.

31 Financial contribution by residentE+W+S+N.I.

(1)A condition of residence may, in particular, require a resident of an accommodation centre to make payments to—

(a)the Secretary of State, or

(b)the manager of the centre.

(2)The Secretary of State may make regulations enabling him to recover sums representing the whole or part of the value of accommodation and other facilities provided to a resident of an accommodation centre if—

(a)accommodation is provided for the resident in response to an application by him for support,

(b)when the application was made the applicant had assets which were not capable of being realised, and

(c)the assets have become realisable.

(3)In subsection (2) “assets” includes assets outside the United Kingdom.

(4)An amount recoverable by virtue of regulations made under subsection (2) may be recovered—

(a)as a debt due to the Secretary of State;

(b)by another prescribed method (which may include the imposition or variation of a residence condition).

32 TenureE+W+S+N.I.

(1)A resident of an accommodation centre shall not be treated as acquiring a tenancy of or other interest in any part of the centre (whether by virtue of an agreement between the resident and another person or otherwise).

(2)Subsection (3) applies where—

(a)the Secretary of State decides to stop arranging for the provision of accommodation in an accommodation centre for a resident of the centre, or

(b)a resident of an accommodation centre is required to leave the centre in accordance with section 30.

(3)Where this subsection applies—

(a)the Secretary of State or the manager of the centre may recover possession of the premises occupied by the resident, and

(b)the right under paragraph (a) shall be enforceable in accordance with procedure prescribed by regulations made by the Secretary of State.

(4)Any licence which a resident of an accommodation centre has to occupy premises in the centre shall be an excluded licence for the purposes of the Protection from Eviction Act 1977 (c. 43).

(5)The following shall be inserted after section 3A(7A) of the Protection from Eviction Act 1977 (disapplication of section 3: Part VI of Immigration and Asylum Act 1999 (c. 33))—

(7B)Section 32 of the Nationality, Immigration and Asylum Act 2002 (accommodation centre: tenure) provides for a resident’s licence to occupy an accommodation centre to be an excluded licence.

(6)The following shall be inserted after section 23A(5A) of the Rent (Scotland) Act 1984 (c. 58) (excluded tenancies and occupancy rights)—

(5B)Nothing in section 23 of this Act applies to a resident’s occupancy of an accommodation centre provided under section 16 or 24(1)(b) of the Nationality, Immigration and Asylum Act 2002 (“resident” being construed in accordance with section 27 of that Act).

(7)In this section a reference to an accommodation centre includes a reference to premises in which accommodation is provided under section 24(1)(b).

33 Advisory GroupsE+W+S+N.I.

(1)The Secretary of State shall appoint a group (to be known as an Accommodation Centre Advisory Group) for each accommodation centre.

(2)The Secretary of State may by regulations—

(a)confer functions on Advisory Groups;

(b)make provision about the constitution and proceedings of Advisory Groups.

(3)Regulations under subsection (2)(a) must, in particular, provide for members of an accommodation centre’s Advisory Group—

(a)to visit the centre;

(b)to hear complaints made by residents of the centre;

(c)to report to the Secretary of State.

(4)The manager of an accommodation centre must permit a member of the centre’s Advisory Group on request—

(a)to visit the centre at any time;

(b)to visit any resident of the centre at any time, provided that the resident consents.

(5)A member of an Advisory Group shall hold and vacate office in accordance with the terms of his appointment (which may include provision about retirement, resignation or dismissal).

(6)The Secretary of State may—

(a)defray expenses of members of an Advisory Group;

(b)make facilities available to members of an Advisory Group.

Prospective

GeneralE+W+S+N.I.

34 The Monitor of Accommodation CentresE+W+S+N.I.

[F6(1)The Secretary of State shall appoint a person as Monitor of Accommodation Centres.

(2)The Monitor shall monitor the operation of this Part of this Act and shall, in particular, consider—

(a)the quality and effectiveness of accommodation and other facilities provided in accommodation centres,

(b)the nature and enforcement of conditions of residence,

(c)the treatment of residents, and

(d)whether, in the case of any accommodation centre, its location prevents a need of its residents from being met.

(3)In exercising his functions the Monitor shall consult—

(a)the Secretary of State, and

(b)such other persons as he considers appropriate.

(4)The Monitor shall report to the Secretary of State about the matters considered by the Monitor in the course of the exercise of his functions—

(a)at least once in each calendar year, and

(b)on such occasions as the Secretary of State may request.

(5)Where the Secretary of State receives a report under subsection (4)(a) he shall lay a copy before Parliament as soon as is reasonably practicable.

(6)The Monitor shall hold and vacate office in accordance with the terms of his appointment (which may include provision about retirement, resignation or dismissal).

(7)The Secretary of State may—

(a)pay fees and allowances to the Monitor;

(b)defray expenses of the Monitor;

(c)make staff and other facilities available to the Monitor.

(8)The Secretary of State may appoint more than one person to act jointly as Monitor (in which case they shall divide or share functions in accordance with the terms of their appointment and, subject to that, by agreement between them).

(9)A person who is employed within a government department may not be appointed as Monitor of Accommodation Centres.]

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Amendments (Textual)

34 The Monitor of Accommodation CentresE+W+S+N.I.

(1)The Secretary of State shall appoint a person as Monitor of Accommodation Centres.

(2)The Monitor shall monitor the operation of this Part of this Act and shall, in particular, consider—

(a)the quality and effectiveness of accommodation and other facilities provided in accommodation centres,

(b)the nature and enforcement of conditions of residence,

(c)the treatment of residents, and

(d)whether, in the case of any accommodation centre, its location prevents a need of its residents from being met.

(3)In exercising his functions the Monitor shall consult—

(a)the Secretary of State, and

(b)such other persons as he considers appropriate.

(4)The Monitor shall report to the Secretary of State about the matters considered by the Monitor in the course of the exercise of his functions—

(a)at least once in each calendar year, and

(b)on such occasions as the Secretary of State may request.

(5)Where the Secretary of State receives a report under subsection (4)(a) he shall lay a copy before Parliament as soon as is reasonably practicable.

(6)The Monitor shall hold and vacate office in accordance with the terms of his appointment (which may include provision about retirement, resignation or dismissal).

(7)The Secretary of State may—

(a)pay fees and allowances to the Monitor;

(b)defray expenses of the Monitor;

(c)make staff and other facilities available to the Monitor.

(8)The Secretary of State may appoint more than one person to act jointly as Monitor (in which case they shall divide or share functions in accordance with the terms of their appointment and, subject to that, by agreement between them).

(9)A person who is employed within a government department may not be appointed as Monitor of Accommodation Centres.

35 Ancillary provisionsE+W+S+N.I.

(1)The following provisions of the Immigration and Asylum Act 1999 (c. 33) shall apply for the purposes of this Part as they apply for the purposes of Part VI of that Act (support for asylum-seeker)—

(a)section 105 (false representation),

(b)section 106 (dishonest representation),

(c)section 107 (delay or obstruction),

(d)section 108 (failure of sponsor to maintain),

(e)section 109 (offence committed by body),

(f)section 112 (recovery of expenditure),

(g)section 113 (recovery of expenditure from sponsor),

(h)section 124 (corporation sole), and

(i)section 127 (redirection of post).

(2)In the application of section 112 a reference to something done under section 95 or 98 of that Act shall be treated as a reference to something done under section 17 or 24 of this Act.

(3)In the application of section 113 a reference to section 95 of that Act shall be treated as a reference to section 17 of this Act.

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Commencement Information

I6S. 35 partly in force; s. 35(1)(h) in force at Royal Assent see s. 162(2)

36 Education: generalE+W+S+N.I.

(1)For the purposes of section 13 of the Education Act 1996 (c. 56) (general responsibility of local education authority) a resident of an accommodation centre shall not be treated as part of the population of a local education authority’s area.

(2)A child who is a resident of an accommodation centre may not be admitted to a maintained school or a maintained nursery (subject to section 37).

(3)But subsection (2) does not prevent a child’s admission to a school which is—

(a)a community special school or a foundation special school, and

(b)named in a statement in respect of the child under section 324 of the Education Act 1996 (c. 56) (special educational needs).

(4)In subsections (2) and (3)—

(a)maintained school” means a maintained school within the meaning of section 20(7) of the School Standards and Framework Act 1998 (c. 31) (definition), and

(b)maintained nursery” means a facility for nursery education, within the meaning of section 117 of that Act, provided by a local education authority.

(5)The following shall not apply in relation to a child who is a resident of an accommodation centre (subject to section 37)—

(a)section 86(1) and (2) of the School Standards and Framework Act 1998 (parental preference),

(b)section 94 of that Act (appeal),

(c)section 19 of the Education Act 1996 (education out of school),

(d)section 316(2) and (3) of that Act (child with special educational needs to be educated in mainstream school), and

(e)paragraphs 3 and 8 of Schedule 27 to that Act (special education needs: making of statement: parental preference).

(6)The power of the Special Educational Needs Tribunal under section 326(3) of the Education Act 1996 (appeal against content of statement) is subject to subsection (2) above.

(7)A person exercising a function under this Act or the Education Act 1996 shall (subject to section 37) secure that a child who is a resident of an accommodation centre and who has special educational needs shall be educated by way of facilities provided under section 29(1)(f) of this Act unless that is incompatible with—

(a)his receiving the special educational provision which his learning difficulty calls for,

(b)the provision of efficient education for other children who are residents of the centre, or

(c)the efficient use of resources.

(8)A person may rely on subsection (7)(b) only where there is no action—

(a)which could reasonably be taken by that person or by another person who exercises functions, or could exercise functions, in respect of the accommodation centre concerned, and

(b)as a result of which subsection (7)(b) would not apply.

(9)An accommodation centre is not a school within the meaning of section 4 of the Education Act 1996 (definition); but—

(a)[F7Part 1 of the Education Act 2005 (school inspections)] shall apply to educational facilities provided at an accommodation centre as if the centre were a school (for which purpose a reference to the appropriate authority shall be taken as a reference to the person (or persons) responsible for the provision of education at the accommodation centre),

(b)section 329A of the Education Act 1996 (review or assessment of educational needs at request of responsible body) shall have effect as if—

(i)an accommodation centre were a relevant school for the purposes of that section,

(ii)a child for whom education is provided at an accommodation centre under section 29(1)(f) were a registered pupil at the centre, and

(iii)a reference in section 329A to the responsible body in relation to an accommodation centre were a reference to any person providing education at the centre under section 29(1)(f), and

(c)section 140 of the Learning and Skills Act 2000 (c. 21) (learning difficulties: assessment of post-16 needs) shall have effect as if an accommodation centre were a school.

(10)Subsections (1), (2) and (5) shall not apply in relation to an accommodation centre if education is not provided for children who are residents of the centre under section 29(1)(f).

(11)An expression used in this section and in the Education Act 1996 (c. 56) shall have the same meaning in this section as in that Act.

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

Amendments (Textual)

F7Words in s. 36(9)(a) substituted (1.9.2005 for E. and otherwise prosp.) by Education Act 2005 (c. 18), ss. 61, 125, Sch. 9 para. 30; S.I. 2005/2034, art. 4

37 Education: special casesE+W+S+N.I.

(1)This section applies to a child if a person who provides education to residents of an accommodation centre recommends in writing to the local education authority for the area in which the centre is that this section should apply to the child on the grounds that his special circumstances call for provision that can only or best be arranged by the authority.

(2)A local education authority may—

(a)arrange for the provision of education for a child to whom this section applies;

(b)disapply a provision of section 36 in respect of a child to whom this section applies.

(3)In determining whether to exercise a power under subsection (2) in respect of a child a local education authority shall have regard to any relevant guidance issued by the Secretary of State.

(4)The governing body of a maintained school shall comply with a requirement of the local education authority to admit to the school a child to whom this section applies.

(5)Subsection (4) shall not apply where compliance with a requirement would prejudice measures taken for the purpose of complying with a duty arising under section 1(6) of the School Standards and Framework Act 1998 (c. 31) (limit on infant class size).

(6)A local education authority may not impose a requirement under subsection (4) in respect of a school unless the authority has consulted the school in accordance with regulations made by the Secretary of State.

(7)In the case of a maintained school for which the local education authority are the admission authority, the authority may not arrange for the admission of a child to whom this section applies unless the authority has notified the school in accordance with regulations made by the Secretary of State.

(8)In this section—

(a)maintained school” means a maintained school within the meaning of section 20(7) of the School Standards and Framework Act 1998 (definition), and

(b)an expression which is also used in the Education Act 1996 (c. 56) shall have the same meaning as it has in that Act.

38 Local authorityE+W+S+N.I.

(1)A local authority may in accordance with arrangements made by the Secretary of State—

(a)assist in arranging for the provision of an accommodation centre;

(b)make premises available for an accommodation centre;

(c)provide services in connection with an accommodation centre.

(2)In particular, a local authority may—

(a)incur reasonable expenditure;

(b)provide services outside its area;

(c)provide services jointly with another body;

(d)form a company;

(e)tender for or enter into a contract;

(f)do anything (including anything listed in paragraphs (a) to (e)) for a preparatory purpose.

(3)In this section “local authority” means—

(a)a local authority within the meaning of section 94 of the Immigration and Asylum Act 1999 (c. 33), and

(b)a Northern Ireland authority within the meaning of section 110 of that Act and an Education and Library Board established under Article 3 of the Education and Libraries (Northern Ireland) Order 1986 (S.I. 1986/ 594 (N.I. 3)).

39“Prescribed”: orders and regulationsE+W+S+N.I.

(1)In this Part “prescribed” means prescribed by the Secretary of State by order or regulations.

(2)An order or regulations under this Part may—

(a)make provision which applies generally or only in specified cases or circumstances (which may be determined wholly or partly by reference to location);

(b)make different provision for different cases or circumstances;

(c)include consequential, transitional or incidental provision.

(3)An order or regulations under this Part must be made by statutory instrument.

(4)An order or regulations under any of the following provisions of this Part shall be subject to annulment in pursuance of a resolution of either House of Parliament—

(a)section 17,

(b)section 19,

(c)section 20,

(d)section 21,

(e)section 26,

(f)section 29,

(g)section 31,

(h)section 32,

(i)section 33,

(j)section 37,

(k)section 40, and

(l)section 41.

(5)An order under section 25 or regulations under section 30 may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.

40 ScotlandE+W+S+N.I.

(1)The Secretary of State may not make arrangements under section 16 for the provision of premises in Scotland unless he has consulted the Scottish Ministers.

(2)The Secretary of State may by order make provision in relation to the education of residents of accommodation centres in Scotland.

(3)An order under subsection (2) may, in particular—

(a)apply, disapply or modify the effect of an enactment (which may include a provision made by or under an Act of the Scottish Parliament);

(b)make provision having an effect similar to the effect of a provision of section 36 or 37.

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Commencement Information

I7S. 40(1) partly in force; s. 40(1) in force at Royal Assent see s. 162(2)

41 Northern IrelandE+W+S+N.I.

(1)The Secretary of State may not make arrangements under section 16 for the provision of premises in Northern Ireland unless he has consulted the First Minister and the deputy First Minister.

(2)The Secretary of State may by order make provision in relation to the education of residents of accommodation centres in Northern Ireland.

(3)An order under subsection (2) may, in particular—

(a)apply, disapply or modify the effect of an enactment (which may include a provision made by or under Northern Ireland legislation);

(b)make provision having an effect similar to the effect of a provision of section 36 or 37.

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

Commencement Information

I8S. 41(1) partly in force; s. 41(1) in force at Royal Assent see s. 162(2)

42 WalesE+W+S+N.I.

The Secretary of State may not make arrangements under section 16 for the provision of premises in Wales unless he has consulted the National Assembly for Wales.

Part 3 E+W+S+N.I.Other Support and Assistance

43 Asylum-seeker: form of supportE+W+S+N.I.

(1)The Secretary of State may make an order restricting the application of section 96(1)(b) of the Immigration and Asylum Act 1999 (c. 33) (support for asylum-seeker: essential living needs)—

(a)in all circumstances, to cases in which support is being provided under section 96(1)(a) (accommodation), or

(b)in specified circumstances only, to cases in which support is being provided under section 96(1)(a).

(2)An order under subsection (1)(b) may, in particular, make provision by reference to—

(a)location;

(b)the date of an application.

(3)An order under subsection (1) may include transitional provision.

(4)An order under subsection (1)—

(a)must be made by statutory instrument, and

(b)may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.

Prospective

44 Destitute asylum-seekerE+W+S+N.I.

(1)Section 94 of the Immigration and Asylum Act 1999 (c. 33) (support for destitute asylum-seeker) shall be amended as follows.

(2)In subsection (1) for the definition of “asylum-seeker” substitute—

asylum-seeker” means a person—

(a)who is at least 18 years old,

(b)who is in the United Kingdom,

(c)who has made a claim for asylum at a place designated by the Secretary of State,

(d)whose claim has been recorded by the Secretary of State, and

(e)whose claim has not been determined;.

(3)In subsection (1) for the definition of “dependant” substitute—

dependant” in relation to an asylum-seeker or a supported person means a person who—

(a)is in the United Kingdom, and

(b)is within a prescribed class;.

(4)For subsection (3) substitute—

(3)A claim for asylum shall be treated as determined for the purposes of subsection (1) at the end of such period as may be prescribed beginning with—

(a)the date on which the Secretary of State notifies the claimant of his decision on the claim, or

(b)if the claimant appeals against the Secretary of State’s decision, the date on which the appeal is disposed of.

(3A)A person shall continue to be treated as an asylum-seeker despite paragraph (e) of the definition of “asylum-seeker” in subsection (1) while—

(a)his household includes a dependant child who is under 18, and

(b)he does not have leave to enter or remain in the United Kingdom.

(5)Omit subsections (5) and (6).

(6)The following shall be substituted for section 95(2) to (8) of the Immigration and Asylum Act 1999 (c. 33) (support for destitute asylum-seeker: interpretation)—

(2)Where a person has dependants, he and his dependants are destitute for the purpose of this section if they do not have and cannot obtain both—

(a)adequate accommodation, and

(b)food and other essential items.

(3)Where a person does not have dependants, he is destitute for the purpose of this section if he does not have and cannot obtain both—

(a)adequate accommodation, and

(b)food and other essential items.

(4)In determining whether accommodation is adequate for the purposes of subsection (2) or (3) the Secretary of State must have regard to any matter prescribed for the purposes of this subsection.

(5)In determining whether accommodation is adequate for the purposes of subsection (2) or (3) the Secretary of State may not have regard to—

(a)whether a person has an enforceable right to occupy accommodation,

(b)whether a person shares all or part of accommodation,

(c)whether accommodation is temporary or permanent,

(d)the location of accommodation, or

(e)any other matter prescribed for the purposes of this subsection.

(6)The Secretary of State may by regulations specify items which are or are not to be treated as essential items for the purposes of subsections (2) and (3).

(7)The Secretary of State may by regulations—

(a)provide that a person is not to be treated as destitute for the purposes of this Part in specified circumstances;

(b)enable or require the Secretary of State in deciding whether a person is destitute to have regard to income which he or a dependant of his might reasonably be expected to have;

(c)enable or require the Secretary of State in deciding whether a person is destitute to have regard to support which is or might reasonably be expected to be available to the person or a dependant of his;

(d)enable or require the Secretary of State in deciding whether a person is destitute to have regard to assets of a prescribed kind which he or a dependant of his has or might reasonably be expected to have;

(e)make provision as to the valuation of assets.

Prospective

45 Section 44: supplementalE+W+S+N.I.

(1)The following shall be substituted for section 96(1)(b) of the Immigration and Asylum Act 1999 (ways of providing support)—

(b)by providing the supported person and his dependants (if any) with food and other essential items;.

(2)In section 97 of the Immigration and Asylum Act 1999 (c. 33) (support: supplemental)—

(a)in subsection (4) for “essential living needs” there shall be substituted “ food and other essential items ”,

(b)in subsection (5) for “essential living needs” there shall be substituted “ food and other essential items ”, and

(c)in subsection (6) for “living needs” there shall be substituted “ items ”.

(3)Paragraphs 2 and 6 of Schedule 8 to the Immigration and Asylum Act 1999 (support: regulations) shall cease to have effect.

(4)In paragraph 3 of Schedule 9 to the Immigration and Asylum Act 1999 (support: interim provision)—

(a)for “Subsections (3) to (8) of section 95” substitute “ Subsections (2) to (6) of section 95 ”, and

(b)for “subsections (5) and (7)” substitute “ subsections (4) and (5) ”.

(5)The following shall be substituted for section 21(1B) of the National Assistance Act 1948 (c. 29) (duty of local authority to provide accommodation: exclusion of destitute asylum-seeker: interpretation)—

(1B)Section 95(2) to (7) of that Act shall apply for the purposes of subsection (1A) above; and for that purpose a reference to the Secretary of State in section 95(4) or (5) shall be treated as a reference to a local authority.

(6)The following shall be substituted for section 45(4B) of the Health Services and Public Health Act 1968 (c. 46) (local authority promotion of welfare of elderly: exclusion of destitute asylum-seeker: interpretation)—

(4B)Section 95(2) to (7) of that Act shall apply for the purposes of subsection (4A) above; and for that purpose a reference to the Secretary of State in section 95(4) or (5) shall be treated as a reference to a local authority.

(7)The following shall be substituted for paragraph 2(2B) of Schedule 8 to the National Health Service Act 1977 (c. 49) (local authority arrangements for prevention and care: exclusion of asylum-seeker: interpretation)—

(2B)Section 95(2) to (7) of that Act shall apply for the purposes of sub-paragraph (2A) above; and for that purpose a reference to the Secretary of State in section 95(4) or (5) shall be treated as a reference to a local social services authority.

45 Section 44: supplementalE+W+S+N.I.

(1)The following shall be substituted for section 96(1)(b) of the Immigration and Asylum Act 1999 (ways of providing support)—

(b)by providing the supported person and his dependants (if any) with food and other essential items;.

(2)In section 97 of the Immigration and Asylum Act 1999 (c. 33) (support: supplemental)—

(a)in subsection (4) for “essential living needs” there shall be substituted “ food and other essential items ”,

(b)in subsection (5) for “essential living needs” there shall be substituted “ food and other essential items ”, and

(c)in subsection (6) for “living needs” there shall be substituted “ items ”.

(3)Paragraphs 2 and 6 of Schedule 8 to the Immigration and Asylum Act 1999 (support: regulations) shall cease to have effect.

(4)In paragraph 3 of Schedule 9 to the Immigration and Asylum Act 1999 (support: interim provision)—

(a)for “Subsections (3) to (8) of section 95” substitute “ Subsections (2) to (6) of section 95 ”, and

(b)for “subsections (5) and (7)” substitute “ subsections (4) and (5) ”.

(5)The following shall be substituted for section 21(1B) of the National Assistance Act 1948 (c. 29) (duty of local authority to provide accommodation: exclusion of destitute asylum-seeker: interpretation)—

(1B)Section 95(2) to (7) of that Act shall apply for the purposes of subsection (1A) above; and for that purpose a reference to the Secretary of State in section 95(4) or (5) shall be treated as a reference to a local authority.

(6)The following shall be substituted for section 45(4B) of the Health Services and Public Health Act 1968 (c. 46) (local authority promotion of welfare of elderly: exclusion of destitute asylum-seeker: interpretation)—

(4B)Section 95(2) to (7) of that Act shall apply for the purposes of subsection (4A) above; and for that purpose a reference to the Secretary of State in section 95(4) or (5) shall be treated as a reference to a local authority.

(7)

[F167The following shall be substituted for paragraph 2(2B) of Schedule 8 to the National Health Service Act 1977 (c. 49) (local authority arrangements for prevention and care: exclusion of asylum-seeker: interpretation)—

(2B)Section 95(2) to (7) of that Act shall apply for the purposes of sub-paragraph (2A) above; and for that purpose a reference to the Secretary of State in section 95(4) or (5) shall be treated as a reference to a local social services authority.]

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Amendments (Textual)

Prospective

46 Section 44: supplemental: Scotland and Northern IrelandE+W+S+N.I.

(1)The following shall be substituted for section 12(2B) of the Social Work (Scotland) Act 1968 (c. 49)(general social welfare services of local authorities – exclusion of destitute asylum seeker: interpretation)—

(2B)Section 95(2) to (7) of that Act shall apply for the purposes of subsection (2A) of this section; and for that purpose a reference to the Secretary of State in section 95(4) or (5) shall be treated as a reference to a local authority.

(2)The following shall be substituted for section 13A(5) of that Act (provision of residential accommodation with nursing – exclusion of destitute asylum seeker: interpretation)—

(5)Section 95(2) to (7) of that Act shall apply for the purposes of subsection (4) of this section; and for that purpose a reference to the Secretary of State in section 95(4) or (5) shall be treated as a reference to a local authority.

(3)The following shall be substituted for section 13B(4) of that Act (provision of care and after-care – exclusion of destitute asylum seeker: interpretation)—

(4)Section 95(2) to (7) of that Act shall apply for the purposes of subsection (3) of this section; and for that purpose a reference to the Secretary of State in section 95(4) or (5) shall be treated as a reference to a local authority.

[F8(4)The following shall be substituted for article 14(2) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (Consequential Provisions) Order 2005 (mental health services provided by local authorities)–

(2)Section 95(2) to (7) of the Immigration and Asylum Act 1999 shall apply for the purposes of paragraph (1); and for that purpose a reference to the Secretary of State in section 95(4) or (5) shall be treated as a reference to a local authority..]

(6)The following shall be substituted for Article 7(3A) of the Health and Personal Social Services (Northern Ireland) Order 1972 (S.I. 1972/1265 (N.I. 14)) (prevention of illness, care and after-care: exclusion of asylum-seeker: interpretation)—

(3A)Section 95(2) to (7) of that Act shall apply for the purpose of paragraph (3); and for that purpose a reference to the Secretary of State in section 95(4) or (5) shall be treated as a reference to the Department.

(7)The following shall be substituted for Article 15(7) of that Order (general social welfare: exclusion of destitute asylum-seeker: interpretation)—

(7)Section 95(2) to (7) of that Act shall apply for the purpose of paragraph (6); and for that purpose a reference to the Secretary of State in section 95(4) or (5) shall be treated as a reference to the Department.

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Amendments (Textual)

Prospective

47 Asylum-seeker: family with childrenE+W+S+N.I.

The following shall be substituted for section 122 of the Immigration and Asylum Act 1999 (c. 33) (destitute asylum-seeker with child: duty to support)—

122 Family with children

(1)This section applies where a person (“the asylum-seeker”) applies for support under section 95 of this Act or section 17 of the Nationality, Immigration and Asylum Act 2002 (accommodation centres) if—

(a)the Secretary of State thinks that the asylum-seeker is eligible for support under either or both of those sections, and

(b)the asylum-seeker’s household includes a dependant child who is under 18.

(2)The Secretary of State must offer the provision of support for the child, as part of the asylum-seeker’s household, under one of the sections mentioned in subsection (1).

(3)A local authority (or, in Northern Ireland, an authority) may not provide assistance for a child if—

(a)the Secretary of State is providing support for the child in accordance with an offer under subsection (2),

(b)an offer by the Secretary of State under subsection (2) remains open in respect of the child, or

(c)the Secretary of State has agreed that he would make an offer in respect of the child under subsection (2) if an application were made as described in subsection (1).

(4)In subsection (3) “assistance” means assistance under—

(a)section 17 of the Children Act 1989 (c. 41) (local authority support),

(b)section 22 of the Children (Scotland) Act 1995 (c. 36) (similar provision for Scotland), or

(c)Article 18 of the Children (Northern Ireland) Order 1995 (S.I. 1995/775 (N.I. 2)) (similar provision for Northern Ireland).

(5)The Secretary of State may by order disapply subsection (3) in specified circumstances.

(6)Where subsection (3) ceases to apply to a child because the Secretary of State stops providing support, no local authority may provide assistance for the child except the authority for the area within which the support was provided.

48 Young asylum-seekerE+W+S+N.I.

The following provisions of the Immigration and Asylum Act 1999 (c. 33) shall have effect as if the definition of asylum-seeker in section 94(1) of that Act did not exclude persons who are under 18—

(a)section 110 (local authority expenditure on asylum-seekers), and

(b)section 111 (grants to voluntary organisations).

49 Failed asylum-seekerE+W+S+N.I.

(1)The following shall be added at the end of section 4 of the Immigration and Asylum Act 1999 (accommodation for person on temporary admission or release)—

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

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

(b)his claim for asylum was rejected.

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

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

(a)asylum-seeker,

(b)claim for asylum, and

(c)dependant.

(2)The present section 4 of the Immigration and Asylum Act 1999 (c. 33) becomes subsection (1) (and its heading becomes “ Accommodation ”).

50 Conditions of supportE+W+S+N.I.

(1)The following shall be inserted after section 95(9) of the Immigration and Asylum Act 1999 (support for asylum-seeker: condition)—

(9A)A condition imposed under subsection (9) may, in particular, relate to—

(a)any matter relating to the use of the support provided, or

(b)compliance with a restriction imposed under paragraph 21 of Schedule 2 to the 1971 Act (temporary admission or release from detention) or paragraph 2 or 5 of Schedule 3 to that Act (restriction pending deportation).

(2)The following shall be inserted after paragraph 6 of Schedule 9 to that Act (asylum-seeker: interim support)—

6AThe regulations may, in particular, require support to be provided subject to a condition of compliance with any restriction imposed under paragraph 21 of Schedule 2 to the 1971 Act (temporary admission or release from detention) or paragraph 2 or 5 of Schedule 3 to that Act (restriction pending deportation).

Prospective

51 Choice of form of supportE+W+S+N.I.

(1)The Secretary of State may refuse to provide support for a person under a provision specified in subsection (2) on the grounds that an offer has been made to the person of support under another provision specified in that subsection.

(2)The provisions are—

(a)sections 17 and 24 of this Act,

(b)section 4 of the Immigration and Asylum Act 1999 (accommodation for person temporarily admitted or released from detention), and

(c)sections 95 and 98 of that Act (support for destitute asylum-seeker).

(3)In deciding under which of the provisions listed in subsection (2) to offer support to a person the Secretary of State may—

(a)have regard to administrative or other matters which do not concern the person’s personal circumstances;

(b)regard one of those matters as conclusive;

(c)apply different criteria to different persons for administrative reasons (which may include the importance of testing the operation of a particular provision).

52 Back-dating of benefit for refugeeE+W+S+N.I.

F9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

Prospective

53 Asylum-seeker: appeal against refusal to supportE+W+S+N.I.

The following shall be substituted for section 103 of the Immigration and Asylum Act 1999 (asylum support appeal)—

103 Appeals: general

(1)This section applies where a person has applied for support under—

(a)section 95,

(b)section 17 of the Nationality, Immigration and Asylum Act 2002, or

(c)both.

(2)The person may appeal to an adjudicator against a decision that the person is not qualified to receive the support for which he has applied.

(3)The person may also appeal to an adjudicator against a decision to stop providing support under a provision mentioned in subsection (1).

(4)But subsection (3) does not apply—

(a)to a decision to stop providing support under one of the provisions mentioned in subsection (1) if it is to be replaced immediately by support under the other provision, or

(b)to a decision taken on the ground that the person is no longer an asylum-seeker or the dependant of an asylum-seeker.

(5)On an appeal under this section an adjudicator may—

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

(b)substitute his decision for the decision against which the appeal is brought;

(c)dismiss the appeal.

(6)An adjudicator must give his reasons in writing.

(7)If an appeal under this section is dismissed the Secretary of State shall not consider any further application by the appellant for support under a provision mentioned in subsection (1)(a) or (b) unless the Secretary of State thinks there has been a material change in circumstances.

(8)An appeal under this section may not be brought or continued by a person who is outside the United Kingdom.

103A Appeals: location of support under section 95

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

(2)Regulations under this section may provide for a provision of section 103 to have effect in relation to an appeal under the regulations with specified modifications.

103B Appeals: travelling expenses

The Secretary of State may pay reasonable travelling expenses incurred by an appellant in connection with attendance for the purposes of an appeal under or by virtue of section 103 or 103A.

54 Withholding and withdrawal of supportE+W+S+N.I.

Schedule 3 (which makes provision for support to be withheld or withdrawn in certain circumstances) shall have effect.

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Commencement Information

I9S. 54 wholly in force at 8.1.2003; s. 54 not in force at Royal Assent see s. 162(2); s. 54 in force at 8.12.2002 for certain purposes and at 8.1.2003 so far as not already in force by S.I. 2002/2811, art. 2, Sch.

55 Late claim for asylum: refusal of supportE+W+S+N.I.

(1)The Secretary of State may not provide or arrange for the provision of support to a person under a provision mentioned in subsection (2) if—

(a)the person makes a claim for asylum which is recorded by the Secretary of State, and

(b)the Secretary of State is not satisfied that the claim was made as soon as reasonably practicable after the person’s arrival in the United Kingdom.

(2)The provisions are—

(a)sections 4, 95 and 98 of the Immigration and Asylum Act 1999 (c. 33) (support for asylum-seeker, &c.), and

(b)sections 17 and 24 of this Act (accommodation centre).

(3)An authority may not provide or arrange for the provision of support to a person under a provision mentioned in subsection (4) if—

(a)the person has made a claim for asylum, and

(b)the Secretary of State is not satisfied that the claim was made as soon as reasonably practicable after the person’s arrival in the United Kingdom.

(4)The provisions are—

(a)section 29(1)(b) of the Housing (Scotland) Act 1987 (c. 26) (accommodation pending review),

(b)section 188(3) or 204(4) of the Housing Act 1996 (c. 52) (accommodation pending review or appeal), and

(c)section 2 of the Local Government Act 2000 (c. 22) (promotion of well-being).

(5)This section shall not prevent—

(a)the exercise of a power by the Secretary of State to the extent necessary for the purpose of avoiding a breach of a person’s Convention rights (within the meaning of the Human Rights Act 1998 (c. 42)),

(b)the provision of support under section 95 of the Immigration and Asylum Act 1999 (c. 33) or section 17 of this Act in accordance with section 122 of that Act (children), or

(c)the provision of support under section 98 of the Immigration and Asylum Act 1999 or section 24 of this Act (provisional support) to a person under the age of 18 and the household of which he forms part.

(6)An authority which proposes to provide or arrange for the provision of support to a person under a provision mentioned in subsection (4)—

(a)must inform the Secretary of State if the authority believes that the person has made a claim for asylum,

(b)must act in accordance with any guidance issued by the Secretary of State to determine whether subsection (3) applies, and

(c)shall not be prohibited from providing or arranging for the provision of support if the authority has complied with paragraph (a) and (b) and concluded that subsection (3) does not apply.

(7)The Secretary of State may by order—

(a)add, remove or amend an entry in the list in subsection (4);

(b)provide for subsection (3) not to have effect in specified cases or circumstances.

(8)An order under subsection (7)—

(a)may include transitional, consequential or incidental provision,

(b)must be made by statutory instrument, and

(c)may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.

(9)For the purposes of this section “claim for asylum” has the same meaning as in section 18.

(10)A decision of the Secretary of State that this section prevents him from providing or arranging for the provision of support to a person is not a decision that the person does not qualify for support for the purpose of section 103 of the Immigration and Asylum Act 1999 (appeals).

(11)This section does not prevent a person’s compliance with a residence restriction imposed in reliance on section 70 (induction).

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Modifications etc. (not altering text)

56 Provision of support by local authorityE+W+S+N.I.

(1)Section 99 of the Immigration and Asylum Act 1999 (provision of support by local authority) shall be amended as follows.

(2)In subsection (1)—

(a)after “local authority” insert “ or Northern Ireland authority ”, and

(b)at the end add “ or 98 ”.

(3)For subsections (2) and (3) substitute—

(2)Support may be provided by an authority in accordance with arrangements made with the authority or with another person.

(3)Support may be provided by an authority in accordance with arrangements made under section 95 only in one or more of the ways mentioned in section 96(1) and (2).

(4)In subsection (4)—

(a)for “A local authority” substitute “ An authority ”, and

(b)at the end add “ or 98 ”.

(5)In subsection (5)—

(a)for “a local authority” substitute “ an authority ”, and

(b)in paragraph (b) for “bodies who are not local authorities” substitute “ other bodies ”.

57 Application for support: false or incomplete informationE+W+S+N.I.

At the end of paragraph 12(c) of Schedule 8 to the Immigration and Asylum Act 1999 (c. 33) (asylum-seeker support: procedure: disregarding of application) there shall be inserted “ (which may, in particular, provide for an application not to be entertained where the Secretary of State is not satisfied that the information provided is complete or accurate or that the applicant is co-operating with enquiries under paragraph (d)) ”.

58 Voluntary departure from United KingdomE+W+S+N.I.

(1)A person is a “voluntary leaver” for the purposes of this section if—

(a)he is not a British citizen or an EEA national,

(b)he leaves the United Kingdom for a place where he hopes to take up permanent residence (his “new place of residence”), and

(c)the Secretary of State thinks that it is in the person’s interest to leave the United Kingdom and that the person wishes to leave.

(2)The Secretary of State may make arrangements to—

(a)assist voluntary leavers;

(b)assist individuals to decide whether to become voluntary leavers.

(3)The Secretary of State may, in particular, make payments (whether to voluntary leavers or to organisations providing services for them) which relate to—

(a)travelling and other expenses incurred by or on behalf of a voluntary leaver, or a member of his family or household, in leaving the United Kingdom;

(b)expenses incurred by or on behalf of a voluntary leaver, or a member of his family or household, on or shortly after arrival in his new place of residence;

(c)the provision of services designed to assist a voluntary leaver, or a member of his family or household, to settle in his new place of residence;

(d)expenses in connection with a journey undertaken by a person (with or without his family or household) to prepare for, or to assess the possibility of, his becoming a voluntary leaver.

(4)In subsection (1)(a) “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 from time to time).

(5)The following provisions of the Immigration Act 1971 (c. 77) shall cease to have effect—

(a)section 29 (contributions to expenses of persons returning abroad), and

(b)section 31(d) (expenses).

59 International projectsE+W+S+N.I.

(1)The Secretary of State may participate in a project which is designed to—

(a)reduce migration,

(b)assist or ensure the return of migrants,

(c)facilitate co-operation between States in matters relating to migration,

(d)conduct or consider research about migration, or

(e)arrange or assist the settlement of migrants (whether in the United Kingdom or elsewhere).

(2)In particular, the Secretary of State may—

(a)provide financial support to an international organisation which arranges or participates in a project of a kind described in subsection (1);

(b)provide financial support to an organisation in the United Kingdom or another country which arranges or participates in a project of that kind;

(c)provide or arrange for the provision of financial or other assistance to a migrant who participates in a project of that kind;

(d)participate in financial or other arrangements which are agreed between Her Majesty’s Government and the government of one or more other countries and which are or form part of a project of that kind.

(3)In this section—

(a)migrant” means a person who leaves the country where he lives hoping to settle in another country (whether or not he is a refugee within the meaning of any international Convention), and

(b)migration” shall be construed accordingly.

(4)Subsection (1) does not—

(a)confer a power to remove a person from the United Kingdom, or

(b)affect a person’s right to enter or remain in the United Kingdom.

60 Northern Ireland authoritiesE+W+S+N.I.

(1)In section 110(9) of the Immigration and Asylum Act 1999 (c. 33) (support: payment to local authority: Northern Ireland authority) after paragraph (b) there shall be added— ; or

(c)a Health and Social Services trust established under the Health and Personal Social Services (Northern Ireland) Order 1991 (S.I. 1991/194 (N.I. 1).

(2)In section 94(1) of that Act (support: interpretation) after the definition of “local authority” there shall be inserted—

Northern Ireland authority” has the meaning given by section 110(9).

61 Repeal of spent provisionsE+W+S+N.I.

The following provisions of the Immigration and Asylum Act 1999 shall cease to have effect—

(a)section 96(4) to (6)(which relate to a provision about support for asylum-seekers which has been repealed by order), and

(b)section 166(4)(e)(order under section 96(5): procedure).

Part 4 E+W+S+N.I.Detention and Removal

DetentionE+W+S+N.I.

62 Detention by Secretary of StateE+W+S+N.I.

(1)A person may be detained under the authority of the Secretary of State pending—

(a)a decision by the Secretary of State whether to give directions in respect of the person under paragraph 10, 10A or 14 of Schedule 2 to the Immigration Act 1971 (c. 77) (control of entry: removal), or

(b)removal of the person from the United Kingdom in pursuance of directions given by the Secretary of State under any of those paragraphs.

(2)Where the Secretary of State is empowered under section 3A of that Act (powers of Secretary of State) to examine a person or to give or refuse a person leave to enter the United Kingdom, the person may be detained under the authority of the Secretary of State pending—

(a)the person’s examination by the Secretary of State,

(b)the Secretary of State’s decision to give or refuse the person leave to enter,

(c)a decision by the Secretary of State whether to give directions in respect of the person under paragraph 8 or 9 of Schedule 2 to that Act (removal), or

(d)removal of the person in pursuance of directions given by the Secretary of State under either of those paragraphs.

(3)A provision of Schedule 2 to that Act about a person who is detained or liable to detention under that Schedule shall apply to a person who is detained or liable to detention under this section: and for that purpose—

(a)a reference to paragraph 16 of that Schedule shall be taken to include a reference to this section,

(b)a reference in paragraph 21 of that Schedule to an immigration officer shall be taken to include a reference to the Secretary of State, and

(c)a reference to detention under that Schedule or under a provision or Part of that Schedule shall be taken to include a reference to detention under this section.

(4)In the case of a restriction imposed under paragraph 21 of that Schedule by virtue of this section—

(a)a restriction imposed by an immigration officer may be varied by the Secretary of State, and

(b)a restriction imposed by the Secretary of State may be varied by an immigration officer.

(5)In subsection (1) the reference to paragraph 10 of that Schedule includes a reference to that paragraph as applied by virtue of section 10 of the Immigration and Asylum Act 1999 (c. 33) (persons unlawfully in United Kingdom: removal).

(6)Subsection (5) is without prejudice to the generality of section 159.

(7)A power under this section which is exercisable pending a decision of a particular kind by the Secretary of State is exercisable where the Secretary of State has reasonable grounds to suspect that he may make a decision of that kind.

(8)At the end of section 11(1) of the Immigration Act 1971 (c. 77) (person not deemed to have entered United Kingdom while detained, &c.) there shall be inserted “ or section 62 of the Nationality, Immigration and Asylum Act 2002 ”.

(9)In section 24(1)(e) of the Immigration Act 1971 (offence: failure to comply with restriction) for “or to an immigration officer” there shall be substituted “ , to an immigration officer or to the Secretary of State ”.

(10)In the Mental Health Act 1983 (c. 20)—

(a)at the end of section 48(2)(d) (detained persons susceptible to transfer for mental treatment: immigration) there shall be added “ or under section 62 of the Nationality, Immigration and Asylum Act 2002 (detention by Secretary of State) ”, and

(b)in the heading of section 53 (supplemental provision) the reference to the Immigration Act 1971 becomes a reference to the Immigration Acts.

(11)In the Mental Health (Scotland) Act 1984 (c. 36)—

(a)at the end of section 71(2)(c) (detained persons who may be transferred to hospital for mental treatment) there shall be added “ or under section 62 of the Nationality, Immigration and Asylum Act 2002 (detention by the Secretary of State) ”, and

(b)at the end of section 74(1)(b) (further provision about such persons) there shall be added “ or under section 62 of the Nationality, Immigration and Asylum Act 2002 (detention by the Secretary of State) ”.

(12)In the Mental Health (Northern Ireland) Order 1986 (S.I. 1986/595 (N.I. 4))—

(a)at the end of Article 54(2)(d) (detained persons susceptible to transfer for mental treatment: immigration) there shall be added “ or under section 62 of the Nationality, Immigration and Asylum Act 2002 (detention by Secretary of State) ”, and

(b)in the heading of Article 59 (supplemental provision) the reference to the Immigration Act 1971 becomes a reference to the Immigration Acts.

(13)Section 53 of the Immigration and Asylum Act 1999 (c. 33) (bail) shall be amended as follows—

(a)at the end of subsection (1) add “ or under section 62 of the Nationality, Immigration and Asylum Act 2002 ”, and

(b)at the end of subsection (3)(a) add “ or under section 62 of the Nationality, Immigration and Asylum Act 2002 ”.

(14)In section 147 of that Act (detention centres: interpretation) at the end of the definition of “detained persons” there shall be inserted “ or under section 62 of the Nationality, Immigration and Asylum Act 2002 (detention by Secretary of State); ”.

(15)F10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(16)F10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

63 Control of entry to United Kingdom, &c.: use of forceE+W+S+N.I.

In paragraph 17(2) of Schedule 2 to the Immigration Act 1971 (c. 77) (control of entry, &c.: person liable to detention: use of force) for “if need be by force” there shall be substituted “ if need be by reasonable force ”.

64 EscortsE+W+S+N.I.

The following shall be added after paragraph 17(2) of Schedule 2 to the Immigration Act 1971 (detention for examination or removal: right to enter premises)—

(3)Sub-paragraph (4) applies where an immigration officer or constable—

(a)enters premises in reliance on a warrant under sub-paragraph (2), and

(b)detains a person on the premises.

(4)A detainee custody officer may enter the premises, if need be by reasonable force, for the purpose of carrying out a search.

(5)In sub-paragraph (4)—

  • detainee custody officer” means a person in respect of whom a certificate of authorisation is in force under section 154 of the Immigration and Asylum Act 1999 (c. 33) (detained persons: escort and custody), and

  • search” means a search under paragraph 2(1)(a) of Schedule 13 to that Act (escort arrangements: power to search detained person).

65 Detention centres: custodial functionsE+W+S+N.I.

(1)The following shall be substituted for section 154(5) of the Immigration and Asylum Act 1999 (power to confer functions of detainee custody officers on prison officers and prisoner custody officers)—

(5)The Secretary of State may confer functions of detainee custody officers on prison officers or prisoner custody officers.

(2)The following shall be added at the end of Schedule 11 to that Act (detainee custody officers)—

Prison officers and prisoner custody officers

8A reference in this Schedule to a detainee custody officer includes a reference to a prison officer or prisoner custody officer exercising custodial functions.

(3)The following shall be added at the end of Schedule 12 to that Act (discipline at detention centre)—

Prison officers and prisoner custody officers

9A reference in this Schedule to a detainee custody officer includes a reference to a prison officer or prisoner custody officer exercising custodial functions.

66 Detention centres: change of nameE+W+S+N.I.

(1)In section 147 of the Immigration and Asylum Act 1999 (c. 33) (Part VIII: interpretation)—

(a)the definition of “detention centre” shall cease to have effect, and

(b)the following shall be inserted after the definition of “prisoner custody officer”—

removal 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;.

(2)In the provisions listed in subsection (3) (and any relevant headings)—

(a)for the words “detention centre” there shall be substituted the words “ removal centre ”, and

(b)for the words “detention centres” there shall be substituted the words “ removal centres ”.

(3)The provisions are—

(a)in section 147 of the Immigration and Asylum Act 1999 (Part VIII: interpretation), the definitions of “contracted out detention centre”, “contractor”, “custodial functions”, “detention centre contract”, “detention centre rules”, and “directly managed detention centre”,

(b)section 148 of that Act (management of centre),

(c)sections 149 and 150 of that Act (contracting out),

(d)section 151 of that Act (intervention by Secretary of State),

(e)section 152 of that Act (visiting committee),

(f)section 153 of that Act (rules),

(g)section 155 of that Act (custodial functions),

(h)section 157 of that Act (short-term holding facility),

(i)section 158 of that Act (disclosure of information),

(j)section 159 of that Act (power of constable),

(k)Schedule 11 to that Act (detainee custody officer),

(l)Schedule 12 to that Act (procedure at detention centre),

(m)Schedule 13 to that Act (escort),

(n)section 141(5)(e) and (6) of that Act (fingerprinting),

(o)section 5A(5A) of the Prison Act 1952 (c. 52) (Chief Inspector of Prisons), and

(p)paragraph 13 of Schedule 4A to the Water Industry Act 1991 (c. 56) (disconnection).

(4)A reference in an enactment or instrument to a detention centre within the meaning of Part VIII of the Immigration and Asylum Act 1999 (c. 33) shall be construed as a reference to a removal centre within the meaning of that Part.

67 Construction of reference to person liable to detentionE+W+S+N.I.

(1)This section applies to the construction of a provision which—

(a)does not confer power to detain a person, but

(b)refers (in any terms) to a person who is liable to detention under a provision of the Immigration Acts.

(2)The reference shall be taken to include a person if the only reason why he cannot be detained under the provision is that—

(a)he cannot presently be removed from the United Kingdom, because of a legal impediment connected with the United Kingdom’s obligations under an international agreement,

(b)practical difficulties are impeding or delaying the making of arrangements for his removal from the United Kingdom, or

(c)practical difficulties, or demands on administrative resources, are impeding or delaying the taking of a decision in respect of him.

(3)This section shall be treated as always having had effect.

Temporary releaseE+W+S+N.I.

68 BailE+W+S+N.I.

(1)This section applies in a case where an immigration officer not below the rank of chief immigration officer has sole or shared power to release a person on bail in accordance with—

(a)a provision of Schedule 2 to the Immigration Act 1971 (c. 77) (control of entry) (including a provision of that Schedule applied by a provision of that Act or by another enactment), or

(b)section 9A of the Asylum and Immigration Appeals Act 1993 (c. 23) (pending appeal from Immigration Appeal Tribunal).

(2)In respect of an application for release on bail which is instituted after the expiry of the period of eight days beginning with the day on which detention commences, the power to release on bail—

(a)shall be exercisable by the Secretary of State (as well as by any person with whom the immigration officer’s power is shared under the provision referred to in subsection (1)), and

(b)shall not be exercisable by an immigration officer (except where he acts on behalf of the Secretary of State).

(3)In relation to the exercise by the Secretary of State of a power to release a person on bail by virtue of subsection (2), a reference to an immigration officer shall be construed as a reference to the Secretary of State.

(4)The Secretary of State may by order amend or replace subsection (2) so as to make different provision for the circumstances in which the power to release on bail may be exercised by the Secretary of State and not by an immigration officer.

(5)An order under subsection (4)—

(a)may include consequential or transitional provision,

(b)must be made by statutory instrument, and

(c)may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.

(6)The following provisions of Part III of the Immigration and Asylum Act 1999 (c. 33) (Bail) shall cease to have effect—

(a)sections 44 to 52 (routine bail hearings),

(b)section 53(5) (bail under regulations to match bail under Part III), and

(c)section 55 (grants to advisory organisations).

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Commencement Information

I10S. 68 wholly in force at 1.4.2003; s. 68 not in force at Royal Assent see s. 162(2); s. 68(6) in force at 10.2.2003 by S.I. 2003/1, art. 2, Sch. ; s. 68(1)-(5) in force at 1.4.2003 by S.I. 2003/754, art. 2, Sch. 1

69 Reporting restriction: travel expensesE+W+S+N.I.

(1)The Secretary of State may make a payment to a person in respect of travelling expenses which the person has incurred or will incur for the purpose of complying with a reporting restriction.

(2)In subsection (1) “reporting restriction” means a restriction which—

(a)requires a person to report to the police, an immigration officer or the Secretary of State, and

(b)is imposed under a provision listed in subsection (3).

(3)Those provisions are—

(a)paragraph 21 of Schedule 2 to the Immigration Act 1971 (c. 77) (temporary admission or release from detention),

(b)paragraph 29 of that Schedule (bail), and

(c)paragraph 2 or 5 of Schedule 3 to that Act (pending deportation).

70 InductionE+W+S+N.I.

(1)A residence restriction may be imposed on an asylum-seeker or a dependant of an asylum-seeker without regard to his personal circumstances if—

(a)it requires him to reside at a specified location for a period not exceeding 14 days, and

(b)the person imposing the residence restriction believes that a programme of induction will be made available to the asylum-seeker at or near the specified location.

(2)In subsection (1) “residence restriction” means a restriction imposed under—

(a)paragraph 21 of Schedule 2 to the Immigration Act 1971 (temporary admission or release from detention), or

(b)paragraph 2(5) of Schedule 3 to that Act (control pending deportation).

(3)In this section—

  • asylum-seeker” has the meaning given by section 18 of this Act but disregarding section 18(1)(a),

  • dependant of an asylum-seeker” means a person who appears to the Secretary of State to be making a claim or application in respect of residence in the United Kingdom by virtue of being a dependant of an asylum-seeker, and

  • programme of induction” means education about the nature of the asylum process.

(4)Regulations under subsection (3)—

(a)may make different provision for different circumstances,

(b)must be made by statutory instrument, and

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

(5)Subsection (6) applies where the Secretary of State arranges for the provision of a programme of induction (whether or not he also provides other facilities to persons attending the programme and whether or not all the persons attending the programme are subject to residence restrictions).

(6)A local authority may arrange for or participate in the provision of the programme or other facilities.

(7)In particular, a local authority may—

(a)incur reasonable expenditure;

(b)provide services outside its area;

(c)provide services jointly with another body;

(d)form a company;

(e)tender for or enter into a contract;

(f)do anything (including anything listed in paragraphs (a) to (e)) for a preparatory purpose.

(8)In this section “local authority” means—

(a)a local authority within the meaning of section 94 of the Immigration and Asylum Act 1999 (c. 33), and

(b)a Northern Ireland authority within the meaning of section 110 of that Act.

71 Asylum-seeker: residence, &c. restrictionE+W+S+N.I.

(1)This section applies to—

(a)a person who makes a claim for asylum at a time when he has leave to enter or remain in the United Kingdom, and

(b)a dependant of a person within paragraph (a).

(2)The Secretary of State or an immigration officer may impose on a person to whom this section applies any restriction which may be imposed under paragraph 21 of Schedule 2 to the Immigration Act 1971 (c. 77) (control of entry: residence, reporting and occupation restrictions) on a person liable to detention under paragraph 16 of that Schedule.

(3)Where a restriction is imposed on a person under subsection (2)—

(a)the restriction shall be treated for all purposes as a restriction imposed under paragraph 21 of that Schedule, and

(b)if the person fails to comply with the restriction he shall be liable to detention under paragraph 16 of that Schedule.

(4)A restriction imposed on a person under this section shall cease to have effect if he ceases to be an asylum-seeker or the dependant of an asylum-seeker.

(5)In this section—

  • asylum-seeker” has the same meaning as in section 70,

  • claim for asylum” has the same meaning as in section 18, and

  • dependant” means a person who appears to the Secretary of State to be making a claim or application in respect of residence in the United Kingdom by virtue of being a dependant of another person.

(6)Regulations under subsection (5)—

(a)may make different provision for different circumstances,

(b)must be made by statutory instrument, and

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

RemovalE+W+S+N.I.

72 Serious criminalE+W+S+N.I.

(1)This section applies for the purpose of the construction and application of Article 33(2) of the Refugee Convention (exclusion from protection).

(2)A person shall be presumed to have been convicted by a final judgment of a particularly serious crime and to constitute a danger to the community of the United Kingdom if he is—

(a)convicted in the United Kingdom of an offence, and

(b)sentenced to a period of imprisonment of at least two years.

(3)A person shall be presumed to have been convicted by a final judgment of a particularly serious crime and to constitute a danger to the community of the United Kingdom if—

(a)he is convicted outside the United Kingdom of an offence,

(b)he is sentenced to a period of imprisonment of at least two years, and

(c)he could have been sentenced to a period of imprisonment of at least two years had his conviction been a conviction in the United Kingdom of a similar offence.

(4)A person shall be presumed to have been convicted by a final judgment of a particularly serious crime and to constitute a danger to the community of the United Kingdom if—

(a)he is convicted of an offence specified by order of the Secretary of State, or

(b)he is convicted outside the United Kingdom of an offence and the Secretary of State certifies that in his opinion the offence is similar to an offence specified by order under paragraph (a).

(5)An order under subsection (4)—

(a)must be made by statutory instrument, and

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

(6)A presumption under subsection (2), (3) or (4) that a person constitutes a danger to the community is rebuttable by that person.

(7)A presumption under subsection (2), (3) or (4) does not apply while an appeal against conviction or sentence—

(a)is pending, or

(b)could be brought (disregarding the possibility of appeal out of time with leave).

(8)Section 34(1) of the Anti-terrorism, Crime and Security Act 2001 (c. 24) (no need to consider gravity of fear or threat of persecution) applies for the purpose of considering whether a presumption mentioned in subsection (6) has been rebutted as it applies for the purpose of considering whether Article 33(2) of the Refugee Convention applies.

(9)Subsection (10) applies where—

(a)a person appeals under section 82, 83 [F11, 83A] or 101 of this Act or under section 2 of the Special Immigration Appeals Commission Act 1997 (c. 68) wholly or partly on the ground that to remove him from or to require him to leave the United Kingdom would breach the United Kingdom’s obligations under the Refugee Convention, and

(b)the Secretary of State issues a certificate that presumptions under subsection (2), (3) or (4) apply to the person (subject to rebuttal).

(10)The F12. . . Tribunal or Commission hearing the appeal—

(a)must begin substantive deliberation on the appeal by considering the certificate, and

(b)if in agreement that presumptions under subsection (2), (3) or (4) apply (having given the appellant an opportunity for rebuttal) must dismiss the appeal in so far as it relies on the ground specified in subsection (9)(a).

(11)For the purposes of this section—

(a)the Refugee Convention” means the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and its Protocol, and

(b)a reference to a person who is sentenced to a period of imprisonment of at least two years—

(i)does not include a reference to a person who receives a suspended sentence (unless at least two years of the sentence are not suspended),

(ii)includes a reference to a person who is sentenced to detention, or ordered or directed to be detained, in an institution other than a prison (including, in particular, a hospital or an institution for young offenders), and

(iii)includes a reference to a person who is sentenced to imprisonment or detention, or ordered or directed to be detained, for an indeterminate period (provided that it may last for two years).

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Amendments (Textual)

F11Words in s. 72(9) inserted (31.8.2006) by Immigration, Asylum and Nationality Act 2006 (c. 13), ss. 14, 62, Sch. 1 para. 2; S.I. 2006/2226, art. 3, Sch. 1 (subject to transitional provisions in art. 4)

Modifications etc. (not altering text)

C2S. 72(10)(a) restricted (31.8.2006) by Immigration, Asylum and Nationality Act 2006 (c. 13), ss. 55(3)(5), 62; S.I. 2006/2226, art. 3, Sch. 1 (subject to transitional provisions in art. 4)

Commencement Information

I11S. 72 wholly in force at 1.4.2003; s. 72 not in force at Royal Assent see s. 162(2); s. 72(1)-(8)(11) in force at 10.2.2003 by S.I. 2003/1, art. 2, Sch.; s. 72(9)(10) in force at 1.4.2003 by S.I. 2003/754, art. 2, Sch. 1

73 FamilyE+W+S+N.I.

(1)The following shall be inserted after paragraph 10 of Schedule 2 to the Immigration Act 1971 (c. 77) (control of entry: removal)—

10AWhere directions are given in respect of a person under any of paragraphs 8 to 10 above, directions to the same effect may be given under that paragraph in respect of a member of the person’s family.

(2)Section 10 of the Immigration and Asylum Act 1999 (c. 33) (removal of person unlawfully in United Kingdom) shall be amended as follows.

(3)In subsection (1)(c) omit—

(a)“(“the first directions”)”, and

(b)“(“the other person”)”.

(4)The following shall be substituted for subsections (3) to (5) (removal of family)—

(3)Directions for the removal of a person may not be given under subsection (1)(c) unless the Secretary of State has given the person written notice of the intention to remove him.

(4)A notice under subsection (3) may not be given if—

(a)the person whose removal under subsection (1)(a) or (b) is the cause of the proposed directions under subsection (1)(c) has left the United Kingdom, and

(b)more than eight weeks have elapsed since that person’s departure.

(5)If a notice under subsection (3) is sent by first class post to a person’s last known address, that subsection shall be taken to be satisfied at the end of the second day after the day of posting.

(5A)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 person whose removal under subsection (1)(a) or (b) is the cause of the directions under subsection (1)(c).

(5)In paragraph 16(2) of Schedule 2 to the Immigration Act 1971 (c. 77) (control of entry, &c.: detention) for the words “8 to 10” there shall be substituted “ 8 to 10A ”.

74 DeceptionE+W+S+N.I.

In section 10(1) of the Immigration and Asylum Act 1999 (c. 33) (removal) the following shall be substituted for paragraph (b)—

(b)he uses deception in seeking (whether successfully or not) leave to remain;.

75 Exemption from deportationE+W+S+N.I.

(1)Section 7 of the Immigration Act 1971 (existing residents exempt from deportation) shall be amended as follows.

(2)Subsection (1)(a) (which is redundant) shall cease to have effect.

(3)The following shall be substituted for subsection (1)(b)—

(b)shall not be liable to deportation under section 3(5) if at the time of the Secretary of State’s decision he had for the last five years been ordinarily resident in the United Kingdom and Islands;.

(4)The following shall be added at the end of section 10 of the Immigration and Asylum Act 1999 (removal)—

(10)A person shall not be liable to removal from the United Kingdom under this section at a time when section 7(1)(b) of the Immigration Act 1971 (Commonwealth and Irish citizens ordinarily resident in United Kingdom) would prevent a decision to deport him.

76 Revocation of leave to enter or remainE+W+S+N.I.

(1)The Secretary of State may revoke a person’s indefinite leave to enter or remain in the United Kingdom if the person—

(a)is liable to deportation, but

(b)cannot be deported for legal reasons.

(2)The Secretary of State may revoke a person’s indefinite leave to enter or remain in the United Kingdom if—

(a)the leave was obtained by deception,

(b)the person would be liable to removal because of the deception, but

(c)the person cannot be removed for legal or practical reasons.

(3)The Secretary of State may revoke a person’s indefinite leave to enter or remain in the United Kingdom if the person, or someone of whom he is a dependant, ceases to be a refugee as a result of—

(a)voluntarily availing himself of the protection of his country of nationality,

(b)voluntarily re-acquiring a lost nationality,

(c)acquiring the nationality of a country other than the United Kingdom and availing himself of its protection, or

(d)voluntarily establishing himself in a country in respect of which he was a refugee.

(4)In this section—

  • indefinite leave” has the meaning given by section 33(1) of the Immigration Act 1971 (c. 77) (interpretation),

  • liable to deportation” has the meaning given by section 3(5) and (6) of that Act (deportation),

  • refugee” has the meaning given by the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and its Protocol, and

  • removed” means removed from the United Kingdom under—

    (a)

    paragraph 9 or 10 of Schedule 2 to the Immigration Act 1971 (control of entry: directions for removal), or

    (b)

    section 10(1)(b) of the Immigration and Asylum Act 1999 (c. 33) (removal of persons unlawfully in United Kingdom: deception).

(5)A power under subsection (1) or (2) to revoke leave may be exercised—

(a)in respect of leave granted before this section comes into force;

(b)in reliance on anything done before this section comes into force.

(6)A power under subsection (3) to revoke leave may be exercised—

(a)in respect of leave granted before this section comes into force, but

(b)only in reliance on action taken after this section comes into force.

(7)In section 10(1) of the Immigration and Asylum Act 1999 (removal of persons unlawfully in United Kingdom) after paragraph (b) (and before the word “or”) there shall be inserted—

(ba)his indefinite leave to enter or remain has been revoked under section 76(3) of the Nationality, Immigration and Asylum Act 2002 (person ceasing to be refugee);.

77 No removal while claim for asylum pendingE+W+S+N.I.

(1)While a person’s claim for asylum is pending he may not be—

(a)removed from the United Kingdom in accordance with a provision of the Immigration Acts, or

(b)required to leave the United Kingdom in accordance with a provision of the Immigration Acts.

(2)In this section—

(a)claim for asylum” means a claim by a person that it would be contrary to the United Kingdom’s obligations under the Refugee Convention to remove him from or require him to leave the United Kingdom, and

(b)a person’s claim is pending until he is given notice of the Secretary of State’s decision on it.

(3)In subsection (2) “the Refugee Convention” means the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and its Protocol.

(4)Nothing in this section shall prevent any of the following while a claim for asylum is pending—

(a)the giving of a direction for the claimant’s removal from the United Kingdom,

(b)the making of a deportation order in respect of the claimant, or

(c)the taking of any other interim or preparatory action.

(5)Section 15 of the Immigration and Asylum Act 1999 (c. 33) (protection from removal or deportation) shall cease to have effect.

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Modifications etc. (not altering text)

C3S. 77 excluded (prosp) by 1999 c. 33, s. 11(2) (as substituted (prosp.) by 2002 c. 41, ss. 80, 162(2) (with s. 159))

S. 77 extended (14.3.2003) by The Nationality Immigration and Asylum Act 2002 (Commencement No. 4) Order 2003 (S.I. 2003/754), art. 3, Sch. 2 para. 1(2) (with transitional provisions in arts. 3, 4, Sch. 2 (as amended by S.I. 2003/1040, S.I. 2003/1339 and S.I. 2003/2993))

S. 77 restricted (1.10.2004) by Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (c. 19), ss. 33, 48(1)-(3), Sch. 3 paras. {4}, {9}, {14}, {18}; S.I. 2004/2523, art. 2, Sch. (with art. 3)

78 No removal while appeal pendingE+W+S+N.I.

(1)While a person’s appeal under section 82(1) is pending he may not be—

(a)removed from the United Kingdom in accordance with a provision of the Immigration Acts, or

(b)required to leave the United Kingdom in accordance with a provision of the Immigration Acts.

(2)In this section “pending” has the meaning given by section 104.

(3)Nothing in this section shall prevent any of the following while an appeal is pending—

(a)the giving of a direction for the appellant’s removal from the United Kingdom,

(b)the making of a deportation order in respect of the appellant (subject to section 79), or

(c)the taking of any other interim or preparatory action.

(4)This section applies only to an appeal brought while the appellant is in the United Kingdom in accordance with section 92.

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Modifications etc. (not altering text)

C4S. 78 applied (with modifications) (prosp.) by 1997 c. 68, s. 2(2)(b) (as substituted (prosp.) by 2002 c. 41, ss. 114, 162(2), Sch. 7 para. 20 (with s. 159))

S. 78 extended (14.3.2003) by The Nationality Immigration and Asylum Act 2002 (Commencement No. 4) Order 2003 (S.I. 2003/754), art. 3, Sch. 2 para. 1(3) (with transitional provisions in arts. 3, 4, Sch. 2 (as amended by S.I. 2003/1040, S.I. 2003/1339 and S.I. 2003/2993))

79 Deportation order: appealE+W+S+N.I.

(1)A deportation order may not be made in respect of a person while an appeal under section 82(1) against the decision to make the order—

(a)could be brought (ignoring any possibility of an appeal out of time with permission), or

(b)is pending.

(2)In this section “pending” has the meaning given by section 104.

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Modifications etc. (not altering text)

C5S. 79 applied (with modifications) (prosp.) by 1997 c. 68, s. 2(2)(c) (as substituted (prosp.) by 2002 c. 41, ss. 114, 162(2), Sch. 7 para. 20 (with s. 159))

S. 79 extended (14.3.2003) by The Nationality Immigration and Asylum Act 2002 (Commencement No. 4) Order 2003 (S.I. 2003/754), art. 3, Sch. 2 para. 1(4) (with transitional provisions in arts. 3, 4, Sch. 2 (as amended by S.I. 2003/1040, S.I. 2003/1339 and S.I. 2003/2993))

80 Removal of asylum-seeker to third countryE+W+S+N.I.

F13. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

Part 5 E+W+S+N.I.Immigration and Asylum Appeals

[F14Appeal to Tribunal]E+W+S+N.I.

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Amendments (Textual)

F14S. 81 and preceding cross-heading substituted (4.4.2005) by virtue of Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (c. 19), ss. 26(1), 48(1)-(3) (with transitional provisions in Sch. 2); S.I. 2005/565, art. 2 (with savings in arts. 3-9)

[F1581The Asylum and Immigration TribunalE+W+S+N.I.

(1)There shall be a tribunal to be known as the Asylum and Immigration Tribunal.

(2)Schedule 4 (which makes provision about the Tribunal) shall have effect.

(3)A reference in this Part to the Tribunal is a reference to the Asylum and Immigration Tribunal.]

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Amendments (Textual)

F15S. 81 and preceding cross-heading substituted (4.4.2005) by virtue of Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (c. 19), ss. 26(1), 48(1)-(3) (with transitional provisions in Sch. 2); S.I. 2005/565, art. 2 (with savings in arts. 3-9)

82 Right of appeal: generalE+W+S+N.I.

(1)Where an immigration decision is made in respect of a person he may appeal [F16to the Tribunal] .

(2)In this Part “immigration decision” means—

(a)refusal of leave to enter the United Kingdom,

(b)refusal of entry clearance,

(c)refusal of a certificate of entitlement under section 10 of this Act,

(d)refusal to vary a person’s leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain,

(e)variation of a person’s leave to enter or remain in the United Kingdom if when the variation takes effect the person has no leave to enter or remain,

(f)revocation under section 76 of this Act of indefinite leave to enter or remain in the United Kingdom,

(g)a decision that a person is to be removed from the United Kingdom by way of directions under [F17section 10(1)(a), (b), (ba) or (c)] of the Immigration and Asylum Act 1999 (c. 33) (removal of person unlawfully in United Kingdom),

(h)a decision that an illegal entrant is to be removed from the United Kingdom by way of directions under paragraphs 8 to 10 of Schedule 2 to the Immigration Act 1971 (c. 77) (control of entry: removal),

(i)a decision that a person is to be removed from the United Kingdom by way of directions given by virtue of paragraph 10A of that Schedule (family),

[F18(ia)a decision that a person is to be removed from the United Kingdom by way of directions under paragraph 12(2) of Schedule 2 to the Immigration Act 1971 (c. 77) (seamen and aircrews),]

[F19(ib)a decision to make an order under section 2A of that Act (deprivation of right of abode),]

(j)a decision to make a deportation order under section 5(1) of that Act, and

(k)refusal to revoke a deportation order under section 5(2) of that Act.

(3)F20. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)The right of appeal under subsection (1) is subject to the exceptions and limitations specified in this Part.

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Amendments (Textual)

F16Words in s. 82(1) substituted (4.4.2005) by Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (c. 19), ss. 26(2), 48(1)-(3) (with transitional provisions in Sch. 2); S.I. 2005/565, art. 2 (with savings in arts. 3-9)

F17Words in s. 82(2)(g) substituted (31.8.2006) by Immigration, Asylum and Nationality Act 2006 (c. 13), ss. 2, 62; S.I. 2006/2226, art. 3, Sch. 1 (subject to transitional provisions in art. 4)

F20S. 82(3) repealed (31.8.2006) by Immigration, Asylum and Nationality Act 2006 (c. 13), ss. 11(6), 61, 62, Sch. 3; S.I. 2006/2226, art. 3, Sch. 1 (subject to transitional provisions in art. 4)

Modifications etc. (not altering text)

C6Ss. 82-99 restricted (14.3.2003) by The Nationality, Immigration and Asylum Act 2002 (Commencement No. 4) Order 2003 (S.I. 2003/754), arts. 3, 4 (with transitional provisions in arts. 3, 4, Sch. 2 (as amended by S.I. 2003/1040, S.I. 2003/1339 and S.I. 2003/2993))

83 Appeal: asylum claimE+W+S+N.I.

(1)This section applies where a person has made an asylum claim and—

(a)his claim has been rejected by the Secretary of State, but

(b)he has been granted leave to enter or remain in the United Kingdom for a period exceeding one year (or for periods exceeding one year in aggregate).

(2)The person may appeal [F21to the Tribunal] against the rejection of his asylum claim.

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Amendments (Textual)

F21Words in s. 83(2) substituted (4.4.2005) by Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (c. 19), ss. 26(3), 48(1)-(3) (with transitional provisions in Sch. 2); S.I. 2005/565, art. 2 (with savings in arts. 3-9)

Modifications etc. (not altering text)

[F2283AAppeal: variation of limited leaveE+W+S+N.I.

(1)This section applies where—

(a)a person has made an asylum claim,

(b)he was granted limited leave to enter or remain in the United Kingdom as a refugee within the meaning of the Refugee Convention,

(c)a decision is made that he is not a refugee, and

(d)following the decision specified in paragraph (c) he has limited leave to enter or remain in the United Kingdom otherwise than as a refugee.

(2)The person may appeal to the Tribunal against the decision to curtail or to refuse to extend his limited leave.]

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Amendments (Textual)

F22S. 83A inserted (31.8.2006) by Immigration, Asylum and Nationality Act 2006 (c. 13), ss. 1, 62; S.I. 2006/2226, art. 3, Sch. 1 (subject to transitional provisions in art. 4)

84 Grounds of appealE+W+S+N.I.

(1)An appeal under section 82(1) against an immigration decision must be brought on one or more of the following grounds—

(a)that the decision is not in accordance with immigration rules;

(b)that the decision is unlawful by virtue of section 19B of the Race Relations Act 1976 (c. 74) (discrimination by public authorities) [F23or Article 20A of the Race Relations (Northern Ireland) Order 1997] ;

(c)that the decision is unlawful under section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant’s Convention rights;

(d)that the appellant is an EEA national or a member of the family of an EEA national and the decision breaches the appellant’s rights under the Community Treaties in respect of entry to or residence in the United Kingdom;

(e)that the decision is otherwise not in accordance with the law;

(f)that the person taking the decision should have exercised differently a discretion conferred by immigration rules;

(g)that removal of the appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdom’s obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant’s Convention rights.

(2)In subsection (1)(d) “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 from time to time).

(3)An appeal under section 83 must be brought on the grounds that removal of the appellant from the United Kingdom would breach the United Kingdom’s obligations under the Refugee Convention.

[F24(4)An appeal under section 83A must be brought on the grounds that removal of the appellant from the United Kingdom would breach the United Kingdom's obligations under the Refugee Convention.]

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Amendments (Textual)

F23Words after "1976" inserted (N.I.) (19.7.2003) by virtue of the Race Relations Order (Amendment) Regulations (Northern Ireland) 2003 (S.R. 2003/341), reg. 60

F24S. 84(4) added (31.8.2006) by Immigration, Asylum and Nationality Act 2006 (c. 13), ss. 3, 62; S.I. 2006/2226, art. 3, Sch. 1 (subject to transitional provisions in art. 4)

Modifications etc. (not altering text)

C11S. 84 applied (with modifications) (prosp.) by 1997 c. 68, s. 2(2)(e) (as substituted (prosp.) by 2002 c. 41, ss. 114, 162(2), Sch. 7 para. 20 (with s. 159))

Ss. 82-99 restricted (14.3.2003) by The Nationality, Immigration and Asylum Act 2002 (Commencement No. 4) Order 2003 (S.I. 2003/754), arts. 3, 4 (with transitional provisions in arts. 3, 4, Sch. 2 (as amended by S.I. 2003/1040, S.I. 2003/1339 and S.I. 2003/2993))

C12S. 84(1)(2) applied in part (1.4.2003) by S.I. 2000/2326, Sch. 2 (as substituted by The Immigration (European Economic Area) (Amendment) Regulations 2003 (S.I. 2003/549), reg. 2(10) (with transitional provisions in reg. 3))

85 Matters to be consideredE+W+S+N.I.

(1)An appeal under section 82(1) against a decision shall be treated by [F25the Tribunal] as including an appeal against any decision in respect of which the appellant has a right of appeal under section 82(1).

(2)If an appellant under section 82(1) makes a statement under section 120, [F25the Tribunal] shall consider any matter raised in the statement which constitutes a ground of appeal of a kind listed in section 84(1) against the decision appealed against.

(3)Subsection (2) applies to a statement made under section 120 whether the statement was made before or after the appeal was commenced.

(4)On an appeal under section 82(1) [F26, 83(2) or 83A(2)] against a decision [F27the Tribunal] may consider evidence about any matter which [F28it] thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision.

(5)But in relation to an appeal under section 82(1) against refusal of entry clearance or refusal of a certificate of entitlement under section 10—

(a)subsection (4) shall not apply, and

(b)[F25the Tribunal] may consider only the circumstances appertaining at the time of the decision to refuse.

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Amendments (Textual)

F26Words in s. 85(4) substituted (31.8.2006) by Immigration, Asylum and Nationality Act 2006 (c. 13), ss. 14, 62, Sch. 1 para. 3; S.I. 2006/2226, art. 3, Sch. 1 (subject to transitional provisions in art. 4)

Modifications etc. (not altering text)

C14S. 85 applied (with modifications) (prosp.) by 1997 c. 68, s. 2(2)(f) (as substituted (prosp.) by 2002 c. 41, ss. 114, 162(2), Sch. 7 para. 20 (with s. 159))

Ss. 82-99 restricted (14.3.2003) by The Nationality, Immigration and Asylum Act 2002 (Commencement No. 4) Order 2003 (S.I. 2003/754), arts. 3, 4 (with transitional provisions in arts. 3, 4, Sch. 2 (as amended by S.I. 2003/1040, S.I. 2003/1339 and S.I. 2003/2993))

Ss. 85-87 applied (1.4.2003) by S.I. 2000/2326, Sch. 2 (as substituted by The Immigration (European Economic Area) (Amendment) Regulations 2003 (S.I. 2003/549), reg. 2(10) (with transitional provisions in reg. 3))

C15S. 85(4) applied (with modifications) (prosp.) by 1997 c. 68, s. 2(3)(a) (as substituted (prosp.) by 2002 c. 41, ss. 114, 162(2), Sch. 7 para. 20 (with s. 159))

Prospective

[F2985AMatters to be considered: new evidence: exceptionsE+W+S+N.I.

(1)This section sets out the exceptions mentioned in section 85(5).

(2)Exception 1 is that in relation to an appeal under section 82(1) against an immigration decision of a kind specified in section 82(2)(b) or (c) the Tribunal may consider only the circumstances appertaining at the time of the decision.

(3)Exception 2 applies to an appeal under section 82(1) if—

(a)the appeal is against an immigration decision of a kind specified in section 82(2)(a) or (d),

(b)the immigration decision concerned an application of a kind identified in immigration rules as requiring to be considered under a “Points Based System”, and

(c)the appeal relies wholly or partly on grounds specified in section 84(1)(a), (e) or (f).

(4)Where Exception 2 applies the Tribunal may consider evidence adduced by the appellant only if it—

(a)was submitted in support of, and at the time of making, the application to which the immigration decision related,

(b)relates to the appeal in so far as it relies on grounds other than those specified in subsection (3)(c),

(c)is adduced to prove that a document is genuine or valid, or

(d)is adduced in connection with the Secretary of State's reliance on a discretion under immigration rules, or compliance with a requirement of immigration rules, to refuse an application on grounds not related to the acquisition of “points” under the “Points Based System”.]

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Amendments (Textual)

86 Determination of appealE+W+S+N.I.

(1)This section applies on an appeal under section 82(1) [F30, 83 or 83A.]

(2)[F31The Tribunal] must determine—

(a)any matter raised as a ground of appeal (whether or not by virtue of section 85(1)), and

(b)any matter which section 85 requires [F32it] to consider.

(3)[F31The Tribunal] must allow the appeal in so far as [F33it] thinks that—

(a)a decision against which the appeal is brought or is treated as being brought was not in accordance with the law (including immigration rules), or

(b)a discretion exercised in making a decision against which the appeal is brought or is treated as being brought should have been exercised differently.

(4)For the purposes of subsection (3) a decision that a person should be removed from the United Kingdom under a provision shall not be regarded as unlawful if it could have been lawfully made by reference to removal under another provision.

(5)In so far as subsection (3) does not apply, [F31the Tribunal] shall dismiss the appeal.

(6)Refusal to depart from or to authorise departure from immigration rules is not the exercise of a discretion for the purposes of subsection (3)(b).

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Amendments (Textual)

F30Words in s. 86(1) substituted (31.8.2006) by Immigration, Asylum and Nationality Act 2006 (c. 13), ss. 14, 62, Sch. 1 para. 4; S.I. 2006/2226, art. 3, Sch. 1 (subject to transitional provisions in art. 4)

Modifications etc. (not altering text)

C16S. 86 applied (with modifications) (prosp.) by 1997 c. 68, s. 2(2)(g)(3)(b) (as substituted (prosp.) by 2002 c. 41, ss. 114, 162(2), Sch. 7 para. 20 (with s. 159))

Ss. 82-99 restricted (14.3.2003) by The Nationality, Immigration and Asylum Act 2002 (Commencement No. 4) Order 2003 (S.I. 2003/754), arts. 3, 4 (with transitional provisions in arts. 3, 4, Sch. 2 (as amended by S.I. 2003/1040, S.I. 2003/1339 and S.I. 2003/2993))

Ss. 85-87 applied (1.4.2003) by S.I. 2000/2326, Sch. 2 (as substituted by The Immigration (European Economic Area) (Amendment) Regulations 2003 (S.I. 2003/549), reg. 2(10) (with transitional provisions in reg. 3))

87 Successful appeal: directionE+W+S+N.I.

(1)If [F34the Tribunal] allows an appeal under section 82 [F35, 83 or 83A][F36it] may give a direction for the purpose of giving effect to [F37its] decision.

(2)A person responsible for making an immigration decision shall act in accordance with any relevant direction under subsection (1).

[F38(3)But a direction under this section shall not have effect while—

(a)an application under section 103A(1) (other than an application out of time with permission) could be made or is awaiting determination,

(b)reconsideration of an appeal has been ordered under section 103A(1) and has not been completed,

(c)an appeal has been remitted to the Tribunal and is awaiting determination,

(d)an application under section 103B or 103E for permission to appeal (other than an application out of time with permission) could be made or is awaiting determination,

(e)an appeal under section 103B or 103E is awaiting determination, or

(f)a reference under section 103C is awaiting determination.]

(4)A direction under subsection (1) shall be treated [F39as part of the Tribunal’s decision on the appeal for the purposes of section 103A] .

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Amendments (Textual)

F35Words in s. 87(1) substituted (31.8.2006) by Immigration, Asylum and Nationality Act 2006 (c. 13), ss. 14, 62, Sch. 1 para. 5; S.I. 2006/2226, art. 3, Sch. 1 (subject to transitional provisions in art. 4)

Modifications etc. (not altering text)

C17S. 87 applied (with modifications) (prosp.) by 1997 c. 68, s. 2(2)(h)(3)(c) (as substituted (prosp.) by 2002 c. 41, ss. 114, 162(2), Sch. 7 para. 20 (with s. 159))

Ss. 82-99 restricted (14.3.2003) by The Nationality, Immigration and Asylum Act 2002 (Commencement No. 4) Order 2003 (S.I. 2003/754), arts. 3, 4 (with transitional provisions in arts. 3, 4, Sch. 2 (as amended by S.I. 2003/1040, S.I. 2003/1339 and S.I. 2003/2993))

Ss. 85-87 applied (1.4.2003) by S.I. 2000/2326, Sch. 2 (as substituted by The Immigration (European Economic Area) (Amendment) Regulations 2003 (S.I. 2003/549), reg. 2(10) (with transitional provisions in reg. 3))

Exceptions and limitationsE+W+S+N.I.

88 IneligibilityE+W+S+N.I.

(1)This section applies to an immigration decision of a kind referred to in section 82(2)(a), (b), (d) or (e).

(2)A person may not appeal under section 82(1) against an immigration decision which is taken on the grounds that he or a person of whom he is a dependant—

(a)does not satisfy a requirement as to age, nationality or citizenship specified in immigration rules,

(b)does not have an immigration document of a particular kind (or any immigration document),

[F40(ba)has failed to supply a medical report or a medical certificate in accordance with a requirement of immigration rules,]

(c)is seeking to be in the United Kingdom for a period greater than that permitted in his case by immigration rules, or

(d)is seeking to enter or remain in the United Kingdom for a purpose other than one for which entry or remaining is permitted in accordance with immigration rules.

(3)In subsection (2)(b) “immigration document” means—

(a)entry clearance,

(b)a passport,

(c)a work permit or other immigration employment document within the meaning of section 122, and

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

(4)Subsection (2) does not prevent the bringing of an appeal on any or all of the grounds referred to in section 84(1)(b), (c) and (g).

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Amendments (Textual)

F40S. 88(2)(ba) inserted (31.8.2006) by Immigration, Asylum and Nationality Act 2006 (c. 16), ss. 5, 62; S.I. 2006/2226, art. 3, Sch. 1 (subject to transitional provisions in art. 4)

Modifications etc. (not altering text)

C18Ss. 82-99 restricted (14.3.2003) by The Nationality, Immigration and Asylum Act 2002 (Commencement No. 4) Order 2003 (S.I. 2003/754), arts. 3, 4 (with transitional provisions in arts. 3, 4, Sch. 2 (as amended by S.I. 2003/1040, S.I. 2003/1339 and S.I. 2003/2993))

[F4188AIneligibility: entry clearanceE+W+S+N.I.

(1)A person may not appeal under section 82(1) against refusal of entry clearance if the decision to refuse is taken on grounds which—

(a)relate to a provision of immigration rules, and

(b)are specified for the purpose of this section by order of the Secretary of State.

(2)Subsection (1)—

(a)does not prevent the bringing of an appeal on either or both of the grounds referred to in section 84(1)(b) and (c), and

(b)is without prejudice to the effect of section 88 in relation to an appeal under section 82(1) against refusal of entry clearance.]

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Amendments (Textual)

[F4289Refusal of leave to enterE+W+S+N.I.

(1)A person may not appeal under section 82(1) against refusal of leave to enter the United Kingdom unless—

(a)on his arrival in the United Kingdom he had entry clearance, and

(b)the purpose of entry specified in the entry clearance is the same as that specified in his application for leave to enter.

(2)Subsection (1) does not prevent the bringing of an appeal on any or all of the grounds referred to in section 84(1)(b), (c) and (g).]

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Amendments (Textual)

F42S. 89 substituted (31.8.2006) by Immigration, Asylum and Nationality Act 2006 (c. 13), ss. 6, 62; S.I. 2006/2226, art 3, Sch. 1 (subject to transitional provisions in art. 4)

Modifications etc. (not altering text)

C19Ss. 82-99 restricted (14.3.2003) by The Nationality, Immigration and Asylum Act 2002 (Commencement No. 4) Order 2003 (S.I. 2003/754), arts. 3, 4 (with transitional provisions in arts. 3, 4, Sch. 2 (as amended by S.I. 2003/1040, S.I. 2003/1339 and S.I. 2003/2993))

F4390 Non-family visitorE+W+S+N.I.

(1)A person who applies for entry clearance for the purpose of entering the United Kingdom as a visitor may appeal under section 82(1) against refusal of entry clearance only if the application was made for the purpose of visiting a member of the applicant’s family.

(2)In subsection (1) the reference to a member of the applicant’s family shall be construed in accordance with regulations.

(3)Regulations under subsection (2) may, in particular, make provision wholly or partly by reference to the duration of two individuals’ residence together.

(4)Subsection (1) does not prevent the bringing of an appeal on either or both of the grounds referred to in section 84(1)(b) and (c).

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Amendments (Textual)

F43S. 88A substituted (prosp.) for ss. 88A, 90, 91 by Immigration, Asylum and Nationality Act 2006 (c. 13), ss. 4(1), 62

Modifications etc. (not altering text)

C20Ss. 82-99 restricted (14.3.2003) by The Nationality, Immigration and Asylum Act 2002 (Commencement No. 4) Order 2003 (S.I. 2003/754), arts. 3, 4 (with transitional provisions in arts. 3, 4, Sch. 2 (as amended by S.I. 2003/1040, S.I. 2003/1339 and S.I. 2003/2993))

F4491 StudentE+W+S+N.I.

(1)A person may not appeal under section 82(1) against refusal of entry clearance if he seeks it—

(a)in order to follow a course of study for which he has been accepted and which will not last more than six months,

(b)in order to study but without having been accepted for a course, or

(c)as the dependant of a person seeking entry clearance for a purpose described in paragraph (a) or (b).

(2)Subsection (1) does not prevent the bringing of an appeal on either or both of the grounds referred to in section 84(1)(b) and (c).

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Amendments (Textual)

F44S. 88A substituted (prosp.) for ss. 88A, 90, 91 by Immigration, Asylum and Nationality Act 2006 (c. 13), ss. 4(1), 62

Modifications etc. (not altering text)

C21Ss. 82-99 restricted (14.3.2003) by The Nationality, Immigration and Asylum Act 2002 (Commencement No. 4) Order 2003 (S.I. 2003/754), arts. 3, 4 (with transitional provisions in arts. 3, 4, Sch. 2 (as amended by S.I. 2003/1040, S.I. 2003/1339 and S.I. 2003/2993))

92 Appeal from within United Kingdom: generalE+W+S+N.I.

(1)A person may not appeal under section 82(1) while he is in the United Kingdom unless his appeal is of a kind to which this section applies.

(2)This section applies to an appeal against an immigration decision of a kind specified in section 82(2)(c), (d), (e), (f) and (j).

[F45(3)This section also applies to an appeal against refusal of leave to enter the United Kingdom if—

(a)at the time of the refusal the appellant is in the United Kingdom, and

(b)on his arrival in the United Kingdom the appellant had entry clearance.

(3A)But this section does not apply by virtue of subsection (3) if subsection (3B) or (3C) applies to the refusal of leave to enter.

(3B)This subsection applies to a refusal of leave to enter which is a deemed refusal under paragraph 2A(9) of Schedule 2 to the Immigration Act 1971 (c. 77) resulting from cancellation of leave to enter by an immigration officer—

(a)under paragraph 2A(8) of that Schedule, and

(b)on the grounds specified in paragraph 2A(2A) of that Schedule.

(3C)This subsection applies to a refusal of leave to enter which specifies that the grounds for refusal are that the leave is sought for a purpose other than that specified in the entry clearance.

(3D)This section also applies to an appeal against refusal of leave to enter the United Kingdom if at the time of the refusal the appellant—

(a)is in the United Kingdom,

(b)has a work permit, and

(c)is any of the following (within the meaning of the British Nationality Act 1981 (c. 61))—

(i)a British overseas territories citizen,

(ii)a British Overseas citizen,

(iii)a British National (Overseas),

(iv)a British protected person, or

(v)a British subject.]

(4)This section also applies to an appeal against an immigration decision if the appellant—

(a)has made an asylum claim, or a human rights claim, while in the United Kingdom, or

(b)is an EEA national or a member of the family of an EEA national and makes a claim to the Secretary of State that the decision breaches the appellant’s rights under the Community Treaties in respect of entry to or residence in the United Kingdom.

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Amendments (Textual)

Modifications etc. (not altering text)

C22Ss. 82-99 restricted (14.3.2003) by The Nationality, Immigration and Asylum Act 2002 (Commencement No. 4) Order 2003 (S.I. 2003/754), arts. 3, 4 (with transitional provisions in arts. 3, 4, Sch. 2 (as amended by S.I. 2003/1040, S.I. 2003/1339 and S.I. 2003/2993))

93 Appeal from within United Kingdom: “third country” removalE+W+S+N.I.

F46. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

Modifications etc. (not altering text)

C23Ss. 82-99 restricted (14.3.2003) by The Nationality, Immigration and Asylum Act 2002 (Commencement No. 4) Order 2003 (S.I. 2003/754), arts. 3, 4 (with transitional provisions in arts. 3, 4, Sch. 2 (as amended by S.I. 2003/1040, S.I. 2003/1339 and S.I. 2003/2993))

94 Appeal from within United Kingdom: unfounded human rights or asylum claimE+W+S+N.I.

(1)This section applies to an appeal under section 82(1) where the appellant has made an asylum claim or a human rights claim (or both).

[F47(1A)A person may not bring an appeal against an immigration decision of a kind specified in section 82(2)(c), (d) or (e) in reliance on section 92(2) if the Secretary of State certifies that the claim or claims mentioned in subsection (1) above is or are clearly unfounded.]

(2)A person may not bring an appeal to which this section applies [F48in reliance on section 92(4)(a)] if the Secretary of State certifies that the claim or claims mentioned in subsection (1) is or are clearly unfounded.

(3)If the Secretary of State is satisfied that an asylum claimant or human rights claimant is entitled to reside in a State listed in subsection (4) he shall certify the claim under subsection (2) unless satisfied that it is not clearly unfounded.

(4)Those States are—

(a)F49. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)F49. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)F49. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d)F49. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e)F49. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(f)F49. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(g)F49. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(h)F49. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(i)F49. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(j)F49. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F50(k)the Republic of Albania,

(l)F51. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(m)F52. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(n)Jamaica,

(o)Macedonia,

(p)the Republic of Moldova, and

(q)F51. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

[F53(r)F54. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(s)Bolivia,

(t)Brazil,

(u)Ecuador,

(v)F55. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(w)South Africa, and

(x)Ukraine.]

[F56(y)India.]

[F57(z)Mongolia,

(aa)Ghana (in respect of men),

(bb)Nigeria (in respect of men).]

[F58(cc)Bosnia-Herzegovina,

(dd)Gambia (in respect of men),

(ee)Kenya (in respect of men),

(ff)Liberia (in respect of men),

(gg)Malawi (in respect of men),

(hh)Mali (in respect of men),

(ii)Mauritius,

(jj)Montenegro,

(kk)Peru,

(ll)Serbia,

(mm)Sierra Leone (in respect of men).]

(5)The Secretary of State may by order add a State, or part of a State, to the list in subsection (4) if satisfied that—

(a)there is in general in that State or part no serious risk of persecution of persons entitled to reside in that State or part, and

(b)removal to that State or part of persons entitled to reside there will not in general contravene the United Kingdom’s obligations under the Human Rights Convention.

[F59(5A)If the Secretary of State is satisfied that the statements in subsection (5) (a) and (b) are true of a State or part of a State in relation to a description of person, an order under subsection (5) may add the State or part to the list in subsection (4) in respect of that description of person.

(5B)Where a State or part of a State is added to the list in subsection (4) in respect of a description of person, subsection (3) shall have effect in relation to a claimant only if the Secretary of State is satisfied that he is within that description (as well as being satisfied that he is entitled to reside in the State or part).

(5C)A description for the purposes of subsection (5A) may refer to—

(a)gender,

(b)language,

(c)race,

(d)religion,

(e)nationality,

(f)membership of a social or other group,

(g)political opinion, or

(h)any other attribute or circumstance that the Secretary of State thinks appropriate.

[F60(5D)In deciding whether the statements in subsection (5) (a) and (b) are true of a State or part of a State, the Secretary of State –

(a)shall have regard to all the circumstances of the State or part (including its laws and how they are applied), and

(b)shall have regard to information from any appropriate source (including other member States and international organisations).]]

[F61(6)The Secretary of State may by order amend the list in subsection (4) so as to omit a State or part added under subsection (5); and the omission may be—

(a)general, or

(b)effected so that the State or part remains listed in respect of a description of person.]

[F62(6A)Subsection (3) shall not apply in relation to an asylum claimant or human rights claimant who—

(a)is the subject of a certificate under section 2 or 70 of the Extradition Act 2003 (c. 41),

(b)is in custody pursuant to arrest under section 5 of that Act,

(c)is the subject of a provisional warrant under section 73 of that Act,

(d)is the subject of an authority to proceed under section 7 of the Extradition Act 1989 (c. 33) or an order under paragraph 4(2) of Schedule 1 to that Act, or

(e)is the subject of a provisional warrant under section 8 of that Act or of a warrant under paragraph 5(1)(b) of Schedule 1 to that Act.]

(7)A person may not bring an appeal to which this section applies in reliance on section 92(4) if the Secretary of State certifies that—

(a)it is proposed to remove the person to a country of which he is not a national or citizen, and

(b)there is no reason to believe that the person’s rights under the Human Rights Convention will be breached in that country.

(8)In determining whether a person in relation to whom a certificate has been issued under subsection (7) may be removed from the United Kingdom, the country specified in the certificate 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.

(9)Where a person in relation to whom a certificate is issued under this section subsequently brings an appeal under section 82(1) while outside the United Kingdom, the appeal shall be considered as if he had not been removed from the United Kingdom.

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Amendments (Textual)

Modifications etc. (not altering text)

C24Ss. 82-99 restricted (14.3.2003) by The Nationality, Immigration and Asylum Act 2002 (Commencement No. 4) Order 2003 (S.I. 2003/754), arts. 3, 4 (with transitional provisions in arts. 3, 4, Sch. 2 (as amended by S.I. 2003/1040, S.I. 2003/1339 and S.I. 2003/2993))

Commencement Information

I12S. 94 wholly in force at 1.4.2003; s. 94 not in force at Royal Assent see s. 162(2); s. 94(5) in force for certain purposes at 10.2.2003 by S.I. 2003/249, art. 2, Sch.; s. 94 in force at 1.4.2003 insofar as not already in force by virtue of S.I. 2003/754, art. 2, Sch. 1

[F6394AEuropean Common List of Safe Countries of OriginE+W+S+N.I.

(1)The Secretary of State shall by order prescribe a list of States to be known as the “European Common List of Safe Countries of Origin”.

(2)Subsections (3) and (4) apply where a person makes an asylum claim or a human rights claim (or both) and that person is –

(a)a national of a State which is listed in the European Common List of Safe Countries of Origin, or

(b)a Stateless person who was formerly habitually resident in such a State.

(3)The Secretary of State shall consider the claim or claims mentioned in subsection (2) to be unfounded unless satisfied that there are serious grounds for considering that the State in question is not safe in the particular circumstances of the person mentioned in that subsection.

(4)The Secretary of State shall also certify the claim or claims mentioned in subsection (2) under section 94(2) unless satisfied that the claim or claims is or are not clearly unfounded.

(5)An order under subsection (1) –

(a)may be made only if the Secretary of State thinks it necessary for the purpose of complying with the United Kingdom's obligations under Community law,

(b)may include transitional, consequential or incidental provision,

(c)shall be made by statutory instrument, and

(d)shall be subject to annulment in pursuance of a resolution of either House of Parliament.]

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Amendments (Textual)

95 Appeal from outside United Kingdom: removalE+W+S+N.I.

A person who is outside the United Kingdom may not appeal under section 82(1) on the ground specified in section 84(1)(g) (except in a case to which section 94(9) applies).

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Modifications etc. (not altering text)

C25Ss. 82-99 restricted (14.3.2003) by The Nationality, Immigration and Asylum Act 2002 (Commencement No. 4) Order 2003 (S.I. 2003/754), arts. 3, 4 (with transitional provisions in arts. 3, 4, Sch. 2 (as amended by S.I. 2003/1040, S.I. 2003/1339 and S.I. 2003/2993))

96 Earlier right of appealE+W+S+N.I.

[F64(1)An appeal under section 82(1) against an immigration decision (“the new decision”) in respect of a person may not be brought if the Secretary of State or an immigration officer certifies—

(a)that the person was notified of a right of appeal under that section against another immigration decision (“the old decision”) (whether or not an appeal was brought and whether or not any appeal brought has been determined),

(b)that the claim or application to which the new decision relates relies on a matter that could have been raised in an appeal against the old decision, and

(c)that, in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that matter not having been raised in an appeal against the old decision.

(2)An appeal under section 82(1) against an immigration decision (“the new decision”) in respect of a person may not be brought if the Secretary of State or an immigration officer certifies—

(a)that the person received a notice under section 120 by virtue of an application other than that to which the new decision relates or by virtue of a decision other than the new decision,

(b)that the new decision relates to an application or claim which relies on a matter that should have been, but has not been, raised in a statement made in response to that notice, and

(c)that, in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that matter not having been raised in a statement made in response to that notice.]

(4)In subsection (1) “notified” means notified in accordance with regulations under section 105.

(5)[F65Subsections (1) and (2) apply to prevent] a person’s right of appeal whether or not he has been outside the United Kingdom since an earlier right of appeal arose or since a requirement under section 120 was imposed.

(6)In this section a reference to an appeal under section 82(1) includes a reference to an appeal under section 2 of the Special Immigration Appeals Commission Act 1997 (c. 68) which is or could be brought by reference to an appeal under section 82(1).

[F66(7)A certificate under subsection (1) or (2) shall have no effect in relation to an appeal instituted before the certificate is issued.]

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Amendments (Textual)

Modifications etc. (not altering text)

C26S. 96 applied (with modifications) (prosp.) by 1997 c. 68, s. 2(2)(i) (as substituted (prosp.) by 2002 c. 41, ss. 114, 162(2), Sch. 7 para. 20 (with s. 159))

Ss. 82-99 restricted (14.3.2003) by The Nationality, Immigration and Asylum Act 2002 (Commencement No. 4) Order 2003 (S.I. 2003/754), art. 3, 4 (with transitional provisions in arts. 3, 4, Sch. 2 (as amended by S.I. 2003/1040 and S.I. 2003/1339))

97 National security, &c.E+W+S+N.I.

(1)An appeal under section 82(1) [F67, 83(2) or 83A(2)] against a decision in respect of a person may not be brought or continued if the Secretary of State certifies that the decision is or was taken—

(a)by the Secretary of State wholly or partly on a ground listed in subsection (2), or

(b)in accordance with a direction of the Secretary of State which identifies the person to whom the decision relates and which is given wholly or partly on a ground listed in subsection (2).

(2)The grounds mentioned in subsection (1) are that the person’s exclusion or removal from the United Kingdom is—

(a)in the interests of national security, or

(b)in the interests of the relationship between the United Kingdom and another country.

(3)An appeal under section 82(1) [F68, 83(2) or 83A(2)] against a decision may not be brought or continued if the Secretary of State certifies that the decision is or was taken wholly or partly in reliance on information which in his opinion should not be made public—

(a)in the interests of national security,

(b)in the interests of the relationship between the United Kingdom and another country, or

(c)otherwise in the public interest.

(4)In subsections (1)(a) and (b) and (3) a reference to the Secretary of State is to the Secretary of State acting in person.

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Amendments (Textual)

F67Words in s. 97(1)(3) substituted (31.8.2006) by Immigration, Asylum and Nationality Act 2006 (c. 13), ss. 14, 62, Sch. 1 para. 6; S.I. 2006/2226, art. 3, Sch. 1 (subject to transitional provisions in art. 4)

F68Words in s. 97(1)(3) substituted (31.8.2006) by Immigration, Asylum and Nationality Act 2006 (c. 13), ss. 14, 62, Sch. 1 para. 6; S.I. 2006/2226, art. 3, Sch. 1 (subject to transitional provisions in art. 4)

Modifications etc. (not altering text)

C29Ss. 82-99 restricted (14.3.2003) by The Nationality, Immigration and Asylum Act 2002 (Commencement No. 4) Order 2003 (S.I. 2003/754), arts. 3, 4 (with transitional provisions in arts. 3, 4, Sch. 2 (as amended by S.I. 2003/1040, S.I. 2003/1339 and S.I. 2003/2993))

[F6997ANational security: deportationE+W+S+N.I.

(1)This section applies where the Secretary of State certifies that the decision to make a deportation order in respect of a person was taken on the grounds that his removal from the United Kingdom would be in the interests of national security.

(2)Where this section applies—

(a)section 79 shall not apply,

(b)the Secretary of State shall be taken to have certified the decision to make the deportation order under section 97, and

(c)for the purposes of section 2(5) of the Special Immigration Appeals Commission Act 1997 (c. 68) (appeals from within United Kingdom) it shall be assumed that section 92 of this Act—

(i)would not apply to an appeal against the decision to make the deportation order by virtue of section 92(2) to (3D),

(ii)would not apply to an appeal against that decision by virtue of section 92(4)(a) in respect of an asylum claim, and

(iii)would be capable of applying to an appeal against that decision by virtue of section 92(4)(a) in respect of a human rights claim unless the Secretary of State certifies that the removal of the person from the United Kingdom would not breach the United Kingdom's obligations under the Human Rights Convention.

(3)A person in respect of whom a certificate is issued under subsection (2)(c)(iii) may appeal to the Special Immigration Appeals Commission against the issue of the certificate; and for that purpose the Special Immigration Appeals Commission Act 1997 shall apply as to an appeal against an immigration decision to which section 92 of this Act applies.

(4)The Secretary of State may repeal this section by order.]

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Amendments (Textual)

F69S. 97A inserted (31.8.2006) by Immigration, Asylum and Nationality Act 2006 (c. 13), ss. 7(1), 62; S.I. 2006/2226, art. 3, Sch. 1 (subject to transitional provisions in art. 4)

98 Other grounds of public goodE+W+S+N.I.

(1)This section applies to an immigration decision of a kind referred to in section 82(2)(a) or (b).

(2)An appeal under section 82(1) against an immigration decision may not be brought or continued if the Secretary of State certifies that the decision is or was taken—

(a)by the Secretary of State wholly or partly on the ground that the exclusion or removal from the United Kingdom of the person to whom the decision relates is conducive to the public good, or

(b)in accordance with a direction of the Secretary of State which identifies the person to whom the decision relates and which is given wholly or partly on that ground.

(3)In subsection (2)(a) and (b) a reference to the Secretary of State is to the Secretary of State acting in person.

(4)Subsection (2) does not prevent the bringing of an appeal on either or both of the grounds referred to in section 84(1)(b) and (c).

(5)Subsection (2) does not prevent the bringing of an appeal against an immigration decision of the kind referred to in section 82(2)(a) on the grounds referred to in section 84(1)(g).

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Modifications etc. (not altering text)

C30Ss. 82-99 restricted (14.3.2003) by The Nationality, Immigration and Asylum Act 2002 (Commencement No. 4) Order 2003 (S.I. 2003/754), arts. 3, 4 (with transitional provisions in arts. 3, 4, Sch. 2 (as amended by S.I. 2003/1040, S.I. 2003/1339 and S.I. 2003/2993))

99 Sections 96 to 98: appeal in progressE+W+S+N.I.

(1)This section applies where a certificate is issued under section 96(1) or (2), 97 or 98 in respect of a pending appeal.

(2)The appeal shall lapse.

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Modifications etc. (not altering text)

C31Ss. 82-99 restricted (14.3.2003) by The Nationality, Immigration and Asylum Act 2002 (Commencement No. 4) Order 2003 (S.I. 2003/754), arts. 3, 4 (with transitional provisions in arts. 3, 4, Sch. 2 (as amended by S.I. 2003/1040, S.I. 2003/1339 and S.I. 2003/2993))

Appeal from adjudicatorE+W+S+N.I.

100 Immigration Appeal TribunalE+W+S+N.I.

[F70(1)There shall continue to be an Immigration Appeal Tribunal.

(2)Schedule 5 (which makes provision about the Tribunal) shall have effect.]

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Amendments (Textual)

101 Appeal to TribunalE+W+S+N.I.

[F71(1)A party to an appeal to an adjudicator under section 82 or 83 may, with the permission of the Immigration Appeal Tribunal, appeal to the Tribunal against the adjudicator’s determination on a point of law.

(2)A party to an application to the Tribunal for permission to appeal under subsection (1) may apply to the High Court or, in Scotland, to the Court of Session for a review of the Tribunal’s decision on the ground that the Tribunal made an error of law.

(3)Where an application is made under subsection (2)—

(a)it shall be determined by a single judge by reference only to written submissions,

(b)the judge may affirm or reverse the Tribunal’s decision,

(c)the judge’s decision shall be final, and

(d)if, in an application to the High Court, the judge thinks the application had no merit he shall issue a certificate under this paragraph (which shall be dealt with in accordance with Civil Procedure Rules).

(4)The Lord Chancellor may by order repeal subsections (2) and (3).]

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Amendments (Textual)

Modifications etc. (not altering text)

C32Ss. 101-103 applied (1.4.2003) by S.I. 2000/2326, Sch. 2 (as substituted by The Immigration (European Economic Area) (Amendment) Regulations 2003 (S.I. 2003/549), reg. 2(10) (with transitional provisions in reg. 3))

Ss. 101-103 restricted (14.3.2003) by The Nationality, Immigration and Asylum Act 2002 (Commencement No. 4) Order 2003 (S.I. 2003/754), arts. 3, 4 (with transitional provisions in arts. 3, 4, Sch. 2 (as amended by S.I. 2003/1040, S.I. 2003/1339 and S.I. 2003/2993))

102 DecisionE+W+S+N.I.

[F72(1)On an appeal under section 101 the Immigration Appeal Tribunal may—

(a)affirm the adjudicator’s decision;

(b)make any decision which the adjudicator could have made;

(c)remit the appeal to an adjudicator;

(d)affirm a direction given by the adjudicator under section 87;

(e)vary a direction given by the adjudicator under that section;

(f)give any direction which the adjudicator could have given under that section.

(2)In reaching their decision on an appeal under section 101 the Tribunal may consider evidence about any matter which they think relevant to the adjudicator’s decision, including evidence which concerns a matter arising after the adjudicator’s decision.

(3)But where the appeal under section 82 was against refusal of entry clearance or refusal of a certificate of entitlement—

(a)subsection (2) shall not apply, and

(b)the Tribunal may consider only the circumstances appertaining at the time of the decision to refuse.

(4)In remitting an appeal to an adjudicator under subsection (1)(c) the Tribunal may, in particular—

(a)require the adjudicator to determine the appeal in accordance with directions of the Tribunal;

(b)require the adjudicator to take additional evidence with a view to the appeal being determined by the Tribunal.]

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Amendments (Textual)

Modifications etc. (not altering text)

103 Appeal from TribunalE+W+S+N.I.

[F73(1)Where the Immigration Appeal Tribunal determines an appeal under section 101 a party to the appeal may bring a further appeal on a point of law—

(a)where the original decision of the adjudicator was made in Scotland, to the Court of Session, or

(b)in any other case, to the Court of Appeal.

(2)An appeal under this section may be brought only with the permission of—

(a)the Tribunal, or

(b)if the Tribunal refuses permission, the court referred to in subsection (1)(a) or (b).

(3)The remittal of an appeal to an adjudicator under section 102(1)(c) is not a determination of the appeal for the purposes of subsection (1) above.]

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Amendments (Textual)

Modifications etc. (not altering text)

ProcedureE+W+S+N.I.

[F74103AReview of Tribunal’s decisionE+W+S+N.I.

(1)A party to an appeal under section 82 [F75, 83 or 83A] may apply to the appropriate court, on the grounds that the Tribunal made an error of law, for an order requiring the Tribunal to reconsider its decision on the appeal.

(2)The appropriate court may make an order under subsection (1)—

(a)only if it thinks that the Tribunal may have made an error of law, and

(b)only once in relation to an appeal.

(3)An application under subsection (1) must be made—

(a)in the case of an application by the appellant made while he is in the United Kingdom, within the period of 5 days beginning with the date on which he is treated, in accordance with rules under section 106, as receiving notice of the Tribunal’s decision,

(b)in the case of an application by the appellant made while he is outside the United Kingdom, within the period of 28 days beginning with the date on which he is treated, in accordance with rules under section 106, as receiving notice of the Tribunal’s decision, and

(c)in the case of an application brought by a party to the appeal other than the appellant, within the period of 5 days beginning with the date on which he is treated, in accordance with rules under section 106, as receiving notice of the Tribunal’s decision.

(4)But—

(a)rules of court may specify days to be disregarded in applying subsection (3)(a), (b) or (c), and

(b)the appropriate court may permit an application under subsection (1) to be made outside the period specified in subsection (3) where it thinks that the application could not reasonably practicably have been made within that period.

(5)An application under subsection (1) shall be determined by reference only to—

(a)written submissions of the applicant, and

(b)where rules of court permit, other written submissions.

(6)A decision of the appropriate court on an application under subsection (1) shall be final.

(7)In this section a reference to the Tribunal’s decision on an appeal does not include a reference to—

(a)a procedural, ancillary or preliminary decision, or

(b)a decision following remittal under section 103B, 103C or 103E.

(8)This section does not apply to a decision of the Tribunal where its jurisdiction is exercised by three or more legally qualified members.

(9)In this section “the appropriate court” means—

(a)in relation to an appeal decided in England or Wales, the High Court,

(b)in relation to an appeal decided in Scotland, the Court of Session, and

(c)in relation to an appeal decided in Northern Ireland, the High Court in Northern Ireland.

(10)An application under subsection (1) to the Court of Session shall be to the Outer House.]

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Amendments (Textual)

F75Words in s. 103A(1) substituted (31.8.2006) by Immigration, Asylum and Nationality Act 2006 (c. 13), ss. 14, 62, Sch. 1 para. 7; S.I. 2006/2226, art. 3, Sch. 1 (subject to transitional provisions in art. 4)

[F76103BAppeal from Tribunal following reconsiderationE+W+S+N.I.

(1)Where an appeal to the Tribunal has been reconsidered, a party to the appeal may bring a further appeal on a point of law to the appropriate appellate court.

(2)In subsection (1) the reference to reconsideration is to reconsideration pursuant to—

(a)an order under section 103A(1), or

(b)remittal to the Tribunal under this section or under section 103C or 103E.

(3)An appeal under subsection (1) may be brought only with the permission of—

(a)the Tribunal, or

(b)if the Tribunal refuses permission, the appropriate appellate court.

(4)On an appeal under subsection (1) the appropriate appellate court may—

(a)affirm the Tribunal’s decision;

(b)make any decision which the Tribunal could have made;

(c)remit the case to the Tribunal;

(d)affirm a direction under section 87;

(e)vary a direction under section 87;

(f)give a direction which the Tribunal could have given under section 87.

(5)In this section “the appropriate appellate court” means—

(a)in relation to an appeal decided in England or Wales, the Court of Appeal,

(b)in relation to an appeal decided in Scotland, the Court of Session, and

(c)in relation to an appeal decided in Northern Ireland, the Court of Appeal in Northern Ireland.

(6)An appeal under subsection (1) to the Court of Session shall be to the Inner House.]

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Amendments (Textual)

[F77103CAppeal from Tribunal instead of reconsiderationE+W+S+N.I.

(1)On an application under section 103A in respect of an appeal the appropriate court, if it thinks the appeal raises a question of law of such importance that it should be decided by the appropriate appellate court, may refer the appeal to that court.

(2)On a reference under subsection (1) the appropriate appellate court may—

(a)affirm the Tribunal’s decision;

(b)make any decision which the Tribunal could have made;

(c)remit the case to the Tribunal;

(d)affirm a direction under section 87;

(e)vary a direction under section 87;

(f)give a direction which the Tribunal could have given under section 87;

(g)restore the application under section 103A to the appropriate court.

(3)In this section—

  • the appropriate court” has the same meaning as in section 103A, and

  • the appropriate appellate court” has the same meaning as in section 103B.

(4)A reference under subsection (1) to the Court of Session shall be to the Inner House.]

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Amendments (Textual)

[F78103DReconsideration: legal aidE+W+S+N.I.

(1)On the application of an appellant under section 103A, the appropriate court may order that the appellant’s costs in respect of the application under section 103A shall be paid out of the Community Legal Service Fund established under section 5 of the Access to Justice Act 1999 (c. 22).

(2)Subsection (3) applies [F79where an order for reconsideration is made]

(a)under section 103A(1), and

(b)on the application of the appellant.

[F80(3)The Tribunal may order payment out of that Fund of the appellant's costs—

(a)in respect of the application for reconsideration;

(b)in respect of preparation for reconsideration;

(c)in respect of the reconsideration.]

(4)The Secretary of State may make regulations about the exercise of the powers in subsections (1) and (3).

(5)Regulations under subsection (4) may, in particular, make provision—

(a)specifying or providing for the determination of the amount of payments;

(b)about the persons to whom the payments are to be made;

(c)restricting the exercise of the power (whether by reference to the prospects of success in respect of the appeal at the time when the application for reconsideration was made, the fact that a reference has been made under section 103C(1), the circumstances of the appellant, the nature of the appellant’s legal representatives, or otherwise).

(6)Regulations under subsection (4) may make provision—

(a)conferring a function on the Legal Services Commission;

(b)modifying a duty or power of the Legal Services Commission in respect of compliance with orders under subsection (3);

(c)applying (with or without modifications), modifying or disapplying a provision of, or of anything done under, an enactment relating to the funding of legal services.

(7)Before making regulations under subsection (4) the Secretary of State shall consult such persons as he thinks appropriate.

(8)This section has effect only in relation to an appeal decided in—

(a)England,

(b)Wales, or

(c)Northern Ireland.

(9)In relation to an appeal decided in Northern Ireland this section shall have effect—

(a)as if a reference to the Community Legal Service Fund were to the fund established under paragraph 4(2)(a) of Schedule 3 to the Access to Justice (Northern Ireland) Order 2003 (S.I. 2003/ 435 (N.I. 10)), and

(b)with any other necessary modifications.]

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Amendments (Textual)

F78S. 103D inserted (4.4.2005 for E.W.S and 30.4.2007 for N.I.) by Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (c. 19), ss. 26(6), 48(1)-(3) (with transitional provisions in Sch. 2); S.I. 2005/565, art. 2 (with savings in arts. 3-9); S.I. 2007/845, art. 2

[F81103EAppeal from Tribunal sitting as panelE+W+S+N.I.

(1)This section applies to a decision of the Tribunal on an appeal under section 82 [F82, 83 or 83A] where its jurisdiction is exercised by three or more legally qualified members.

(2)A party to the appeal may bring a further appeal on a point of law to the appropriate appellate court.

(3)An appeal under subsection (2) may be brought only with the permission of—

(a)the Tribunal, or

(b)if the Tribunal refuses permission, the appropriate appellate court.

(4)On an appeal under subsection (2) the appropriate appellate court may—

(a)affirm the Tribunal’s decision;

(b)make any decision which the Tribunal could have made;

(c)remit the case to the Tribunal;

(d)affirm a direction under section 87;

(e)vary a direction under section 87;

(f)give a direction which the Tribunal could have given under section 87.

(5)In this section “the appropriate appellate court” means—

(a)in relation to an appeal decided in England or Wales, the Court of Appeal,

(b)in relation to an appeal decided in Scotland, the Court of Session, and

(c)in relation to an appeal decided in Northern Ireland, the Court of Appeal in Northern Ireland.

(6)A further appeal under subsection (2) to the Court of Session shall be to the Inner House.

(7)In this section a reference to the Tribunal’s decision on an appeal does not include a reference to—

(a)a procedural, ancillary or preliminary decision, or

(b)a decision following remittal under section 103B or 103C.]

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Amendments (Textual)

F82Words in s. 103E(1) substituted (31.8.2006) by Immigration, Asylum and Nationality Act 2006 (c. 13), ss. 14, 62, Sch. 1 para. 8; S.I. 2006/2226, art. 3, Sch. 1 (subject to transitional provisions in art. 4)

104 Pending appealE+W+S+N.I.

(1)An appeal under section 82(1) is pending during the period—

(a)beginning when it is instituted, and

(b)ending when it is finally determined, withdrawn or abandoned (or when it lapses under section 99).

[F83(2)An appeal under section 82(1) is not finally determined for the purposes of subsection (1)(b) while —

(a)an application under section 103A(1) (other than an application out of time with permission) could be made or is awaiting determination,

(b)reconsideration of an appeal has been ordered under section 103A(1) and has not been completed,

(c)an appeal has been remitted to the Tribunal and is awaiting determination,

(d)an application under section 103B or 103E for permission to appeal (other than an application out of time with permission) could be made or is awaiting determination,

(e)an appeal under section 103B or 103E is awaiting determination, or

(f)a reference under section 103C is awaiting determination.]

(3)F84. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F85(4)An appeal under section 82(1) brought by a person while he is in the United Kingdom shall be treated as abandoned if the appellant leaves the United Kingdom.

(4A)An appeal under section 82(1) brought by a person while he is in the United Kingdom shall be treated as abandoned if the appellant is granted leave to enter or remain in the United Kingdom (subject to subsections (4B) and (4C)).

(4B)Subsection (4A) shall not apply to an appeal in so far as it is brought on the ground relating to the Refugee Convention specified in section 84(1)(g) where the appellant—

(a)is granted leave to enter or remain in the United Kingdom for a period exceeding 12 months, and

(b)gives notice, in accordance with any relevant procedural rules (which may include provision about timing), that he wishes to pursue the appeal in so far as it is brought on that ground.

(4C)Subsection (4A) shall not apply to an appeal in so far as it is brought on the ground specified in section 84(1)(b) where the appellant gives notice, in accordance with any relevant procedural rules (which may include provision about timing), that he wishes to pursue the appeal in so far as it is brought on that ground.]

(5)An appeal under section 82(2)(a), (c), (d), (e) or (f) shall be treated as finally determined if a deportation order is made against the appellant.

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Amendments (Textual)

Modifications etc. (not altering text)

C37S. 104 applied (with modifications) (prosp.) by 1997 c. 68, s. 2(2)(j) (as substituted (prosp.) by 2002 c. 41, ss. 114, 162(2), Sch. 7 para. 20 (with s. 159))

105 Notice of immigration decisionE+W+S+N.I.

(1)The Secretary of State may make regulations requiring a person to be given written notice where an immigration decision is taken in respect of him.

(2)The regulations may, in particular, provide that a notice under subsection (1) of a decision against which the person is entitled to appeal under section 82(1) must state—

(a)that there is a right of appeal under that section, and

(b)how and when that right may be exercised.

(3)The regulations may make provision (which may include presumptions) about service.

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Modifications etc. (not altering text)

C38S. 105 applied (with modifications) (prosp.) by 1997 c. 68, s. 2(2)(k) (as substituted (prosp.) by 2002 c. 41, ss. 114, 162(2), Sch. 7 para. 20 (with s. 159))

106 RulesE+W+S+N.I.

(1)The Lord Chancellor may make rules—

(a)regulating the exercise of the right of appeal under section 82 [F86[F87, 83 or 83A] or by virtue of section 109] ;

(b)prescribing procedure to be followed in connection with proceedings under section 82 [F88[F89, 83 or 83A] or by virtue of section 109] .

[F90(1A)In making rules under subsection (1) the Lord Chancellor shall aim to ensure—

(a)that the rules are designed to ensure that proceedings before the Tribunal are handled as fairly, quickly and efficiently as possible, and

(b)that the rules where appropriate confer on members of the Tribunal responsibility for ensuring that proceedings before the Tribunal are handled as fairly, quickly and efficiently as possible.]

(2)In particular, rules under subsection (1)—

(a)must entitle an appellant to be legally represented at any hearing of his appeal;

(b)may enable or require an appeal to be determined without a hearing;

(c)may enable or require an appeal to be dismissed without substantive consideration where practice or procedure has not been complied with;

(d)may enable or require [F91the Tribunal] to treat an appeal as abandoned in specified circumstances;

(e)may enable or require F92. . . the Tribunal to determine an appeal in the absence of parties in specified circumstances;

(f)may enable or require F92. . . the Tribunal to determine an appeal by reference only to written submissions in specified circumstances;

(g)may make provision about the adjournment of an appeal by [F93the Tribunal](which may include provision prohibiting [F93the Tribunal] from adjourning except in specified circumstances);

(h)may make provision about the treatment of adjourned appeals by [F94the Tribunal](which may include provision requiring [F94the Tribunal] to determine an appeal within a specified period);

(i)may make provision about the use of electronic communication in the course of or in connection with a hearing;

(j)F95. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(k)F95. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(l)may enable the Tribunal to set aside a decision of the Tribunal;

(m)must make provision about the consolidation of appeals F96. . . ;

(n)may make provision (which may include presumptions) about service;

(o)may confer ancillary powers on F97. . . the Tribunal;

(p)may confer a discretion on F98. . . the Tribunal;

(q)may require F99. . . the Tribunal to give notice of a determination to a specified person;

(r)may require or enable notice of a determination to be given on behalf of F100. . . the Tribunal;

(s)may make provision about the grant of bail by F101. . . the Tribunal (which may, in particular, include provision which applies or is similar to any enactment).

[F102(t)may make provision about the number of members exercising the Tribunal’s jurisdiction;

(u)may make provision about the allocation of proceedings among members of the Tribunal (which may include provision for transfer);

(v)may make provision about reconsideration of a decision pursuant to an order under section 103A(1) (which may, in particular, include provision about the action that may be taken on reconsideration and about the matters and evidence to which the Tribunal may have regard);

(w)shall provide that a party to an appeal is to be treated as having received notice of the Tribunal’s decision, unless the contrary is shown, at such time as may be specified in, or determined in accordance with, the rules;

(x)may make provision about proceedings under paragraph 30 of Schedule 2 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (transitional filter of applications for reconsideration from High Court to Tribunal) (and may, in particular, make provision of a kind that may be made by rules of court under section 103A(5)(b));

(y)may make provision about the form and content of decisions of the Tribunal.]

(3)Rules under subsection (1)—

(a)may enable F103. . . the Tribunal to make an award of costs or expenses,

(b)may make provision (which may include provision conferring discretion on a court) for the taxation or assessment of costs or expenses,

(c)may make provision about interest on an award of costs or expenses (which may include provision conferring a discretion or providing for interest to be calculated in accordance with provision made by the rules),

(d)may enable F104. . . the Tribunal to disallow all or part of a representative’s costs or expenses,

(e)may enable F105. . . the Tribunal to require a representative to pay specified costs or expenses, and

[F106(f)may enable the Tribunal to certify that an appeal had no merit (and shall make provision for the consequences of the issue of a certificate).]

(4)A person commits an offence if without reasonable excuse he fails to comply with a requirement imposed in accordance with rules under subsection (1) to attend before F107. . . the Tribunal—

(a)to give evidence, or

(b)to produce a document.

(5)A person who is guilty of an offence under subsection (4) shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.

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

Amendments (Textual)

F87Words in s. 106(1)(a)(b) substituted (31.8.2006) by Immigration, Asylum and Nationality Act 2006 (c. 13), ss. 14, 62, Sch. 1 para. 9; S.I. 2006/2226, art. 3, Sch. 1 (subject to transitional provisions in art. 4)

F89Words in s. 106(1)(a)(b) substituted (31.8.2006) by Immigration, Asylum and Nationality Act 2006 (c. 13), ss. 14, 62, Sch. 1 para. 9; S.I. 2006/2226, art. 3, Sch. 1 (subject to transitional provisions in art. 4)

Modifications etc. (not altering text)

C39S. 106 extended (prosp.) by 1981 c. 61, s. 40A(7) (as substituted (prosp.) by 2002 c. 41, ss. 4(1), 162(2) (with s. 159))

107 Practice directionsE+W+S+N.I.

(1)The President of [F108the Tribunal] may give directions as to the practice to be followed by the Tribunal.

(2)F109. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F110(3)A practice direction may, in particular, require the Tribunal to treat a specified decision of the Tribunal as authoritative in respect of a particular matter.]

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

Amendments (Textual)

Modifications etc. (not altering text)

C40S. 107 extended (prosp.) by 1981 c. 61, s. 40A(8) (as substituted (prosp.) by 2002 c. 41, ss. 4(1), 162(2) (with s. 159))

108 Forged document: proceedings in privateE+W+S+N.I.

(1)This section applies where it is alleged—

(a)that a document relied on by a party to an appeal under section 82 [F111, 83 or 83A] is a forgery, and

(b)that disclosure to that party of a matter relating to the detection of the forgery would be contrary to the public interest.

(2)[F112The Tribunal]

(a)must investigate the allegation in private, and

(b)may proceed in private so far as necessary to prevent disclosure of the matter referred to in subsection (1)(b).

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

Amendments (Textual)

F111Words in s. 108(1)(a) substituted (31.8.2006) by Immigration, Asylum and Nationality Act 2006 (c. 13), ss. 14, 62, Sch. 1 para. 10; S.I. 2006/2226, art. 3, Sch. 1 (with transitional provisions in art. 4)

GeneralE+W+S+N.I.

109 European Union and European Economic AreaE+W+S+N.I.

(1)Regulations may provide for, or make provision about, an appeal against an immigration decision taken in respect of a person who has or claims to have a right under any of the Community Treaties.

(2)The regulations may—

(a)apply a provision of this Act or the Special Immigration Appeals Commission Act 1997 (c. 68) with or without modification;

(b)make provision similar to a provision made by or under this Act or that Act;

(c)disapply or modify the effect of a provision of this Act or that Act.

(3)In subsection (1) “immigration decision” means a decision about—

(a)a person’s entitlement to enter or remain in the United Kingdom, or

(b)removal of a person from the United Kingdom.

110 GrantsE+W+S+N.I.

[F113(1)The Secretary of State may make a grant to a voluntary organisation which provides—

(a)advice or assistance to persons who have a right of appeal under this Part;

(b)other services for the welfare of those persons.

(2)A grant under this section may be subject to terms or conditions (which may include conditions as to repayment).]

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

Amendments (Textual)

F113S. 110 ceases to have effect (16.6.2006) and it is repealed (prosp.) by Immigration, Asylum and Nationality Act 2006 (c. 13) {ss. 10}, 61, 62, {Sch. 3}; S.I. 2006/1497, art. 3, Sch.

Modifications etc. (not altering text)

C42S. 110 applied (with modifications) (prosp.) by 1997 c. 68, s. 2(2)(l)(3)(d) (as substituted (prosp.) by 2002 c. 41, ss. 114, 162(2), Sch. 7 para. 20 (with s. 159))

C43S. 110 extended (prosp.) by 2001 c. 24, s. 27(10) (as substituted (prosp.) by 2002 c. 41, ss. 114, 162(2), Sch. 7 para. 30 (with s. 159))

111 Monitor of certification of claims as unfoundedE+W+S+N.I.

(1)The Secretary of State shall appoint a person to monitor the use of the powers under sections 94(2) and 115(1).

(2)The person appointed under this section shall make a report to the Secretary of State—

(a)once in each calendar year, and

(b)on such occasions as the Secretary of State may request.

(3)Where the Secretary of State receives a report under subsection (2)(a) he shall lay a copy before Parliament as soon as is reasonably practicable.

(4)The person appointed under this section shall hold and vacate office in accordance with the terms of his appointment (which may include provision about retirement, resignation or dismissal).

(5)The Secretary of State may—

(a)pay fees and allowances to the person appointed under this section;

(b)defray expenses of the person appointed under this section.

(6)A person who is employed within a government department may not be appointed under this section.

112 Regulations, &c.E+W+S+N.I.

(1)Regulations under this Part shall be made by the Secretary of State.

(2)Regulations and rules under this Part [F114, other than regulations under section 103D(4),]

(a)must be made by statutory instrument, and

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

(3)Regulations and rules under this Part—

(a)may make provision which applies generally or only in a specified case or in specified circumstances,

(b)may make different provision for different cases or circumstances,

(c)may include consequential, transitional or incidental provision, and

(d)may include savings.

[F115(3A)An order under section 88A—

(a)must be made by statutory instrument,

(b)may not be made unless a draft has been laid before and approved by resolution of each House of Parliament, and

(c)may include transitional provision.]

(4)An order under section 94(5) or 115(8)—

(a)must be made by statutory instrument,

(b)may not be made unless a draft has been laid before and approved by resolution of each House of Parliament, and

(c)may include transitional provision.

(5)An order under section [F11694(6) or (6B)] or 115(9)—

(a)must be made by statutory instrument,

(b)shall be subject to annulment in pursuance of a resolution of either House of Parliament, and

(c)may include transitional provision.

[F117(5A)If an instrument makes provision under section 94(5) and 94(6)—

(a)subsection (4)(b) above shall apply, and

(b)subsection (5)(b) above shall not apply.]

[F118(5B)An order under section 97A(4)—

(a)must be made by statutory instrument,

(b)shall be subject to annulment in pursuance of a resolution of either House of Parliament, and

(c)may include transitional provision.]

[F119(6)Regulations under section 103D(4)—

(a)must be made by statutory instrument, and

(b)shall not be made unless a draft has been laid before and approved by resolution of each House of Parliament.

(7)An order under paragraph 4 of Schedule 4—

(a)may include consequential or incidental provision (which may include provision amending, or providing for the construction of, a reference in an enactment, instrument or other document to a member of the Asylum and Immigration Tribunal),

(b)must be made by statutory instrument, and

(c)shall be subject to annulment in pursuance of a resolution of either House of Parliament.]

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

Amendments (Textual)

F116Words in s.112(5) substituted (31.8.2006) by Immigration, Asylum and Nationality Act 2006 (c. 13), ss. 14, 62, Sch. 1 para. 11; S.I. 2006/2226, art. 3, Sch. 1 (subject to transitional provisions in art. 4)

F118S. 112(5B) inserted (31.8.2006) by Immigration, Asylum and Nationality Act 2006 (c. 13), ss. 7(2), 62; S.I. 2006/2226, art. 3, Sch. 1 (subject to transitional provisions in art. 4)

113 InterpretationE+W+S+N.I.

(1)In this Part, unless a contrary intention appears—

  • asylum claim” means a claim made by a person to the Secretary of State at a place designated by the Secretary of State that to remove the person from or require him to leave the United Kingdom would breach the United Kingdom’s obligations under the Refugee Convention,

  • entry clearance” has the meaning given by section 33(1) of the Immigration Act 1971 (c. 77) (interpretation),

  • human rights claim” means a claim made by a person to the Secretary of State at a place designated by the Secretary of State that to remove the person from or require him to leave the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to Convention) as being incompatible with his Convention rights,

  • the Human Rights Convention” has the same meaning as “the Convention” in the Human Rights Act 1998 and “Convention rights” shall be construed in accordance with section 1 of that Act,

  • illegal entrant” has the meaning given by section 33(1) of the Immigration Act 1971,

  • immigration rules” means rules under section 1(4) of that Act (general immigration rules),

  • prescribed” means prescribed by regulations,

  • the Refugee Convention” means the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and its Protocol,

  • visitor” means a visitor in accordance with immigration rules, and

  • work permit” has the meaning given by section 33(1) of the Immigration Act 1971 (c. 77) (interpretation).

(2)A reference to varying leave to enter or remain in the United Kingdom does not include a reference to adding, varying or revoking a condition of leave.

114 RepealE+W+S+N.I.

(1)Part IV of the Immigration and Asylum Act 1999 (c. 33) (appeals) shall cease to have effect.

(2)Schedule 6 (which makes transitional provision in connection with the repeal of Part IV of that Act and its replacement by this Part) shall have effect.

(3)Schedule 7 (consequential amendments) shall have effect.

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

Commencement Information

I13S. 114 wholly in force at 1.4.2003; s. 114 not in force at Royal Assent see s. 162(2); s. 114(3) in force at 10.2.2003 by S.I. 2003/1, art. 2, Sch.; s. 114(1)(2) in force at 1.4.2003 by S.I. 2003/754, art. 2, Sch. 1

115 Appeal from within United Kingdom: unfounded human rights or asylum claim: transitional provisionE+W+S+N.I.

(1)A person may not bring an appeal under section 65 or 69 of the Immigration and Asylum Act 1999 (human rights and asylum) while in the United Kingdom if—

(a)the Secretary of State certifies that the appeal relates to a human rights claim or an asylum claim which is clearly unfounded, and

(b)the person does not have another right of appeal while in the United Kingdom under Part IV of that Act.

(2)A person while in the United Kingdom may not bring an appeal under section 69 of that Act, or raise a question which relates to the Human Rights Convention under section 77 of that Act, if the Secretary of State certifies that—

(a)it is proposed to remove the person to a country of which he is not a national or citizen, and

(b)there is no reason to believe that the person’s rights under the Human Rights Convention will be breached in that country.

(3)A person while in the United Kingdom may not bring an appeal under section 65 of that Act (human rights) if the Secretary of State certifies that—

(a)it is proposed to remove the person to a country of which he is not a national or citizen, and

(b)there is no reason to believe that the person’s rights under the Human Rights Convention will be breached in that country.

(4)In determining whether a person in relation to whom a certificate has been issued under subsection (2) or (3) may be removed from the United Kingdom, the country specified in the certificate 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.

(5)Where a person in relation to whom a certificate is issued under this section subsequently brings an appeal or raises a question under section 65, 69 or 77 of that Act while outside the United Kingdom, the appeal or question shall be considered as if he had not been removed from the United Kingdom.

(6)If the Secretary of State is satisfied that a person who makes a human rights claim or an asylum claim is entitled to reside in a State listed in subsection (7), he shall issue a certificate under subsection (1) unless satisfied that the claim is not clearly unfounded.

(7)Those States are—

(a)the Republic of Cyprus,

(b)the Czech Republic,

(c)the Republic of Estonia,

(d)the Republic of Hungary,

(e)the Republic of Latvia,

(f)the Republic of Lithuania,

(g)the Republic of Malta,

(h)the Republic of Poland,

(i)the Slovak Republic, and

(j)the Republic of Slovenia.

[F120(k)the Republic of Albania,

(l)Bulgaria,

(m)Serbia and Montenegro,

(n)Jamaica,

(o)Macedonia,

(p)the Republic of Moldova, and

(q)Romania.]

(8)The Secretary of State may by order add a State, or part of a State, to the list in subsection (7) if satisfied that—

(a)there is in general in that State or part no serious risk of persecution of persons entitled to reside in that State or part, and

(b)removal to that State or part of persons entitled to reside there will not in general contravene the United Kingdom’s obligations under the Human Rights Convention.

(9)The Secretary of State may by order remove from the list in subsection (7) a State or part added under subsection (8).

(10)In this section “asylum claim” and “human rights claim” have the meanings given by section 113 but—

(a)a reference to a claim in that section shall be treated as including a reference to an allegation, and

(b)a reference in that section to making a claim at a place designated by the Secretary of State shall be ignored.

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

Amendments (Textual)

Modifications etc. (not altering text)

C44S. 115 extended (14.3.2003) by The Nationality, Immigration and Asylum Act 2002 (Commencement No. 4) Order 2003 (S.I. 2003/754), art. 3, Sch. 2 para. 1(5) (with transitional provisions in arts. 3, 4, Sch. 2 (as amended by S.I. 2003/1040, S.I. 2003/1339 and S.I. 2003/2993))

S. 115 continued (14.3.2003) by The Nationality, Immigration and Asylum Act 2002 (Commencement No. 4) Order 2003 (S.I. 2003/754), art. 4(1) (with transitional provisions in arts. 3, 4, Sch. 2 (as amended by S.I. 2003/1040, S.I. 2003/1339 and S.I. 2003/2993))

116 Special Immigration Appeals Commission: Community Legal ServiceE+W+S+N.I.

In paragraph 2(1) of Schedule 2 to the Access to Justice Act 1999 (c. 22) (Community Legal Service: courts and tribunals in which advocacy may be funded) the following shall be inserted after paragraph (h) (and before the word “or” which appears immediately after that paragraph)—

(ha)the Special Immigration Appeals Commission,.

117 Northern Ireland appeals: legal aidE+W+S+N.I.

(1)In Part 1 of Schedule 1 to the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981 (S.I. 1981/228 (N.I. 8)) (proceedings for which legal aid may be given under Part II of that Order) the following shall be inserted after paragraph 6—

6AProceedings before an adjudicator appointed for the purposes of Part 5 of the Nationality, Immigration and Asylum Act 2002, the Immigration Appeal Tribunal or the Special Immigration Appeals Commission.

(2)The amendment made by subsection (1) is without prejudice to the power to make regulations under Article 10(2) of the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981 amending or revoking the provision inserted by that subsection.

Part 6 E+W+S+N.I.Immigration Procedure

ApplicationsE+W+S+N.I.

118 Leave pending decision on variation applicationE+W+S+N.I.

The following shall be substituted for section 3C of the Immigration Act 1971 (c. 77) (continuation of leave to enter or remain pending decision on application for variation)—

3C Continuation of leave pending variation 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 for variation of the leave,

(b)the application for variation is made before the leave expires, and

(c)the leave expires without the application for variation having been decided.

(2)The leave is extended by virtue of this section during any period when—

(a)the application for variation is neither decided nor withdrawn,

(b)an appeal under section 82(1) of the Nationality, Asylum and Immigration Act 2002 could be brought against the decision on the application for variation (ignoring any possibility of an appeal out of time with permission), or

(c)an appeal under that section against that decision is pending (within the meaning of section 104 of that Act).

(3)Leave extended by virtue of this section shall lapse if the applicant leaves the United Kingdom.

(4)A person may not make an application for variation of his leave to enter or remain in the United Kingdom while that leave is extended by virtue of this section.

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

(6)In this section a reference to an application being decided is a reference to notice of the decision being given in accordance with regulations under section 105 of that Act (notice of immigration decision).

119 Deemed leave on cancellation of noticeE+W+S+N.I.

In paragraph 6(3) of Schedule 2 to the Immigration Act 1971 (c. 77) (deemed leave on cancellation of notice of refusal) after “and the immigration officer does not at the same time give him indefinite or limited leave to enter” there shall be inserted “ or require him to submit to further examination ”.

120 Requirement to state additional grounds for applicationE+W+S+N.I.

(1)This section applies to a person if—

(a)he has made an application to enter or remain in the United Kingdom, or

(b)an immigration decision within the meaning of section 82 has been taken or may be taken in respect of him.

(2)The Secretary of State or an immigration officer may by notice in writing require the person to state—

(a)his reasons for wishing to enter or remain in the United Kingdom,

(b)any grounds on which he should be permitted to enter or remain in the United Kingdom, and

(c)any grounds on which he should not be removed from or required to leave the United Kingdom.

(3)A statement under subsection (2) need not repeat reasons or grounds set out in—

(a)the application mentioned in subsection (1)(a), or

(b)an application to which the immigration decision mentioned in subsection (1)(b) relates.

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Modifications etc. (not altering text)

121 Compliance with procedureE+W+S+N.I.

The following shall be inserted after section 31A(3) of the Immigration Act 1971 (procedural requirements for application)—

(3A)Regulations under this section may provide that a failure to comply with a specified requirement of the regulations—

(a)invalidates an application,

(b)does not invalidate an application, or

(c)invalidates an application in specified circumstances (which may be described wholly or partly by reference to action by the applicant, the Secretary of State, an immigration officer or another person).

Work permitE+W+S+N.I.

122 Fee for work permit, &c.E+W+S+N.I.

[F121(1)The Secretary of State may by regulations require an application for an immigration employment document to be accompanied by a fee prescribed in the regulations.

(2)In subsection (1) “immigration employment document” means—

(a)a work permit, and

(b)any other document which relates to employment and is issued for a purpose of immigration rules or in connection with leave to enter or remain in the United Kingdom.

(3)Regulations under subsection (1)—

(a)may make provision which applies generally or only in specified cases or circumstances (or except in specified cases or circumstances), and

(b)may make different provision for different cases or circumstances.

(4)In particular, regulations by virtue of subsection (3)(a) which create an exception may make provision by reference to an arrangement with the Secretary of State under which a payment is made in respect of—

(a)a specified number or class of applications, or

(b)a specified period of time.

(5)Regulations under subsection (1)—

(a)must be made by statutory instrument, and

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

(6)In this section—

  • immigration rules” has the meaning given by section 33(1) of the Immigration Act 1971 (c. 77) (interpretation), and

  • work permit” has the meaning given by that section.]

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

Amendments (Textual)

F121S. 122 ceases to have effect (2.4.2007) and repealed (2.4.2007) by Immigration, Asylum and Nationality Act 2006 (c. 13), ss. 52, 61, 62, Sch. 2 para. 5, Sch. 3; S.I. 2007/1109, art. 5, Sch. (subject to saving in entry in Sch.)

123 Advice about work permit, &c.E+W+S+N.I.

(1)Section 82 of the Immigration and Asylum Act 1999 (c. 33) (immigration advice and services: interpretation) shall be amended as follows.

(2)In the definition of “relevant matters” in subsection (1), after paragraph (b) there shall be inserted—

(ba)an application for an immigration employment document;.

(3)At the end of the section add—

(3)In the definition of “relevant matters” in subsection (1) “immigration employment document” means—

(a)a work permit (within the meaning of section 33(1) of the Immigration Act 1971 (interpretation)), and

(b)any other document which relates to employment and is issued for a purpose of immigration rules or in connection with leave to enter or remain in the United Kingdom.

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

Commencement Information

I14S. 123 wholly in force at 1.4.2004; s. 123 not in force at Royal Assent see s. 162; s. 123 in force at 1.4.2004 by S.I. 2003/754, art. 2, Sch. 1 (as amended by S.I. 2003/1339 and S.I. 2003/2993)

Prospective

Authority-to-carry schemeE+W+S+N.I.

124 Authority to carryE+W+S+N.I.

(1)Regulations made by the Secretary of State may authorise him to require a person (a “carrier”) to pay a penalty if the carrier brings a passenger to the United Kingdom and—

(a)the carrier was required by an authority-to-carry scheme to seek authority under the scheme to carry the passenger, and

(b)the carrier did not seek authority before the journey to the United Kingdom commenced or was refused authority under the scheme.

(2)An “authority-to-carry scheme” is a scheme operated by the Secretary of State which requires carriers to seek authority to bring passengers to the United Kingdom.

(3)An authority-to-carry scheme must specify—

(a)the class of carrier to which it applies (which may be defined by reference to a method of transport or otherwise), and

(b)the class of passenger to which it applies (which may be defined by reference to nationality, the possession of specified documents or otherwise).

(4)The Secretary of State may operate different authority-to-carry schemes for different purposes.

(5)Where the Secretary of State makes regulations under subsection (1) he must—

(a)identify in the regulations the authority-to-carry scheme to which they refer, and

(b)lay the authority-to-carry scheme before Parliament.

(6)Regulations under subsection (1) may, in particular—

(a)apply or make provision similar to a provision of sections 40 to 43 of and Schedule 1 to the Immigration and Asylum Act 1999 (c. 33) (charge for passenger without document);

(b)do anything which may be done under a provision of any of those sections;

(c)amend any of those sections.

(7)Regulations by virtue of subsection (6)(a) may, in particular—

(a)apply a provision with modification;

(b)apply a provision which confers power to make legislation.

(8)The grant or refusal of authority under an authority-to-carry scheme shall not be taken to determine whether a person is entitled or permitted to enter the United Kingdom.

(9)Regulations under this section—

(a)must be made by statutory instrument, and

(b)may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.

Evasion of procedureE+W+S+N.I.

125 Carriers’ liabilityE+W+S+N.I.

Schedule 8 (which amends Part II of the Immigration and Asylum Act 1999 (carriers’ liability)) shall have effect.

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

Commencement Information

I15S. 125 partly in force; s. 125 not in force at Royal Assent see s. 162(2); s. 125 in force at 14.11.2002 and 8.12.2002 for certain purposes by S.I. 2002/2811, art. 2, Sch.

Provision of information by travellerE+W+S+N.I.

126 Physical data: compulsory provisionE+W+S+N.I.

(1)The Secretary of State may by regulations—

(a)require an immigration application to be accompanied by specified information about external physical characteristics of the applicant;

(b)enable an authorised person to require an individual who makes an immigration application to provide information about his external physical characteristics;

(c)enable an authorised person to require an entrant to provide information about his external physical characteristics.

(2)In subsection (1) “immigration application” means an application for—

(a)entry clearance,

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

(c)variation of leave to enter or remain in the United Kingdom.

(3)Regulations under subsection (1) may not—

(a)impose a requirement in respect of a person to whom section 141 of the Immigration and Asylum Act 1999 (c. 33) (fingerprinting) applies, during the relevant period within the meaning of that section, or

(b)enable a requirement to be imposed in respect of a person to whom that section applies, during the relevant period within the meaning of that section.

(4)Regulations under subsection (1) may, in particular—

(a)require, or enable an authorised person to require, the provision of information in a specified form;

(b)require an individual to submit, or enable an authorised person to require an individual to submit, to a specified process by means of which information is obtained or recorded;

(c)make provision about the effect of failure to provide information or to submit to a process (which may, in particular, include provision for an application to be disregarded or dismissed if a requirement is not satisfied);

(d)confer a function (which may include the exercise of a discretion) on an authorised person;

(e)require an authorised person to have regard to a code (with or without modification);

(f)require an authorised person to have regard to such provisions of a code (with or without modification) as may be specified by direction of the Secretary of State;

(g)make provision about the use and retention of information provided (which may include provision permitting the use of information for specified purposes which do not relate to immigration);

(h)make provision which applies generally or only in specified cases or circumstances;

(i)make different provision for different cases or circumstances.

(5)Regulations under subsection (1) must—

(a)include provision about the destruction of information obtained or recorded by virtue of the regulations,

(b)require the destruction of information at the end of the period of ten years beginning with the day on which it is obtained or recorded in a case for which destruction at the end of another period is not required by or in accordance with the regulations, and

(c)include provision similar to section 143(2) and (10) to (13) of the Immigration and Asylum Act 1999 (c. 33) (fingerprints: destruction of copies and electronic data).

(6)In so far as regulations under subsection (1) require an individual under the age of 16 to submit to a process, the regulations must make provision similar to section 141(3) to (5) and (13) of the Immigration and Asylum Act 1999 (fingerprints: children).

(7)In so far as regulations under subsection (1) enable an authorised person to require an individual under the age of 16 to submit to a process, the regulations must make provision similar to section 141(3) to (5), (12) and (13) of that Act (fingerprints: children).

(8)Regulations under subsection (1)—

(a)must be made by statutory instrument, and

(b)shall not be made unless a draft of the regulations has been laid before and approved by resolution of each House of Parliament.

(9)In this section—

  • authorised person” has the meaning given by section 141(5) of the Immigration and Asylum Act 1999 (authority to take fingerprints),

  • code” has the meaning given by section 145(6) of that Act (code of practice),

  • entrant” has the meaning given by section 33(1) of the Immigration Act 1971 (c. 77) (interpretation),

  • entry clearance” has the meaning given by section 33(1) of that Act, and

  • external physical characteristics” includes, in particular, features of the iris or any other part of the eye.

127 Physical data: voluntary provisionE+W+S+N.I.

(1)The Secretary of State may operate a scheme under which an individual may supply, or submit to the obtaining or recording of, information about his external physical characteristics to be used (wholly or partly) in connection with entry to the United Kingdom.

(2)In particular, the Secretary of State may—

(a)require an authorised person to use information supplied under a scheme;

(b)make provision about the collection, use and retention of information supplied under a scheme (which may include provision requiring an authorised person to have regard to a code);

(c)charge for participation in a scheme.

(3)In this section the following expressions have the same meaning as in section 126—

(a)authorised person”,

(b)code”, and

(c)external physical characteristics”.

128 Data collection under Immigration and Asylum Act 1999E+W+S+N.I.

(1)The following shall be added at the end of section 144 of the Immigration and Asylum Act 1999 (c. 33) (collection of data about external physical characteristics) (which becomes subsection (1))—

(2)In subsection (1) “external physical characteristics” includes, in particular, features of the iris or any other part of the eye.

(2)The following shall be inserted after section 145(2) of that Act (codes of practice)—

(2A)A person exercising a power under regulations made by virtue of section 144 must have regard to such provisions of a code as may be specified.

Disclosure of information by public authorityE+W+S+N.I.

129 Local authorityE+W+S+N.I.

(1)The Secretary of State may require a local authority to supply information for the purpose of establishing where a person is if the Secretary of State reasonably suspects that—

(a)the person has committed an offence under section 24(1)(a), (b), (c), (e) or (f), 24A(1) or 26(1)(c) or (d) of the Immigration Act 1971 (c. 77) (illegal entry, deception, &c.), and

(b)the person is or has been resident in the local authority’s area.

(2)A local authority shall comply with a requirement under this section.

(3)In the application of this section to England and Wales “local authority” means—

(a)a county council,

(b)a county borough council,

(c)a district council,

(d)a London borough council,

(e)the Common Council of the City of London, and

(f)the Council of the Isles of Scilly.

(4)In the application of this section to Scotland “local authority” means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 (c. 39).

(5)In the application of this section to Northern Ireland—

(a)a reference to a local authority shall be taken as a reference to the Northern Ireland Housing Executive, and

(b)the reference to a local authority’s area shall be taken as a reference to Northern Ireland.

130 Inland RevenueE+W+S+N.I.

(1)The Commissioners of Inland Revenue may supply the Secretary of State with information for the purpose of establishing where a person is if the Secretary of State reasonably suspects—

(a)that the person does not have leave to enter or remain in the United Kingdom, and

(b)that the person does not have permission to work in accordance with secti