22 July 2004
198.Section 42 gives the Secretary of State the power, when setting a fee under existing powers in respect of certain immigration and nationality applications, to do so at a level which exceeds the administrative cost of determining or processing an application and which reflects the benefits likely to accrue to the person making that application or for whose benefit the application is made. This power may only be exercised with the consent of the Treasury.
199.Subsection (2) sets out the existing fee-setting powers in respect of which this power is available. It states that the new power is available when the Secretary of State prescribes a fee under section 41(2) of the British Nationality Act 1981 (fees for nationality applications); section 5(1)(a) and (b) of the Immigration and Asylum Act 1999 (fee for an application for leave to remain or variation of leave to enter or remain, where that application is not asylum-based) and sections 10 and 122 of the Nationality, Immigration and Asylum Act 2002 (fees for an application for a certificate of entitlement to the right of abode and an immigration employment document, respectively).
200.Subsection (3) provides a similar power where an Order in Council under section 1 of the Consular Fees Act 1980 prescribes a fee in relation to an application for the issue of a certificate of entitlement to the right of abode in the United Kingdom. The power can be exercised in this limited circumstance without the need for Treasury consent.
201.Subsection (4) provides that, where a fee is set in exercise of the power in this section, the instrument that prescribes that fee may provide that the part of the fee that exceeds the cost of determining an application or undertaking a process may be refunded if the application is unsuccessful or a process is not completed. Subsection (5) provides a discretionary power to the Secretary of State or another person to determine whether in making provision under subsection (4) a refund should be made and the amount which should be refunded.
202.Subsection (6) provides that, prior to the introduction of a fee in exercise of this power, the Secretary of State must consult those persons who he thinks it appropriate to consult. Subsection (7) provides that an instrument made in exercise of the new power shall be subject to the affirmative resolution procedure.
203.Subsection (8) is a technical provision. It ensures that the existing power under section 102 of the Finance (No.2) Act 1987 - to specify matters and functions to be taken into account when setting a fee - is not prejudiced by the operation of section 42. It does not introduce a new power, but ensures that section 42 can be operated concurrently with the existing section 102 provision.