118.Section 43(1) amends section 99 of the Immigration and Asylum Act 1999 (“the 1999 Act”) so that local authorities may now also provide accommodation in accordance with arrangements made by the Secretary of State under section 4 of that Act, as well as in accordance with arrangements made under sections 95 and 98. Under subsection (2), which amends section 99(4), they may also incur reasonable expenditure in connection with the preparation of proposals for entering into those arrangements.
119.Subsection (3) amends section 118(1)(b) of the 1999 Act so as to ensure that where accommodation is provided by a housing authority under its housing powers, this accommodation is not granted to a person subject to immigration control unless the tenancy of, or licence to occupy, such accommodation is granted in accordance with arrangements made under sections 4 and 98. This replicates the position in respect of housing authority accommodation provided in accordance with arrangements made under section 95.
120.Subsection (4) makes amendments in relation to housing legislation. Paragraph (a) removes entitlement to protection under the Protection from Eviction Act 1977 from persons accommodated under section 4; they can therefore be required to leave accommodation provided under section 4 without a court order having been obtained. Paragraph (b) removes those accommodated under section 4 from the ordinary creation of a secure tenancy in Northern Ireland, paragraph (d) makes the same provision in relation to England and Wales and subsections (5) and (6) make similar provision in Scotland. Paragraph (c) removes those accommodated under section 4 from Scottish legislation concerning the prohibition of eviction without due process of law. Paragraph (e) provides that the provision of accommodation under section 4 will not give rise to an assured tenancy in Scotland and paragraph (f) makes similar provision in relation to England and Wales. These amendments broadly replicate the changes made to UK housing legislation, which made provisions in relation to accommodation provided under Part VI of the 1999 Act, as contained in Schedule 14 to that Act.
121.Subsection (7) amends section 4 of the 1999 Act by inserting a power enabling the Secretary of State to make regulations which permit him to provide services or facilities as prescribed to those who are provided with accommodation under that section. The regulations, which are subject to the negative resolution procedure, may permit provision to be made by vouchers exchangeable for goods or services, may restrict the value or extent of services or facilities that will be provided but may not permit a person to be provided with money.
122.Section 44 enables the Secretary of State to repeal by order paragraph 7A of Schedule 3 to the Nationality, Immigration and Asylum Act 2002 and certain other provisions of section 9 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 by which paragraph 7A was inserted. The order is subject to the negative resolution procedure.
123.Section 13 of the Asylum & Immigration (Treatment of Claimants, etc.) Act 2004 as originally enacted enabled the Secretary of State to make regulations enabling him to make loans to those recorded as refugees and given indefinite leave to enter or remain in the United Kingdom. Section 45 amends that provision enabling loans to be made to refugees who have been given limited leave to enter or remain as well as such other classes of migrants as the Secretary of State prescribes in the regulations.
Section 46: Inspection of detention facilities
124.Section 46 amends section 5A(5A) of the Prison Act 1952 so as to regularise HM Chief Inspector of Prisons' (HMCIP) existing voluntary oversight of immigration short-term holding facilities (STHFs) and escort arrangements by placing it on a statutory footing. HMCIP's voluntary oversight of STHFs began in April 2004 and of escort arrangements in May 2005. The amendment brings the basis for the oversight of STHFs and escort arrangements in line with the position on immigration removal centres, which were made subject to statutory HMCIP oversight by section 152(5) of the Immigration and Asylum Act 1999.
125.Section 47 creates a new power which enables to an appealable decision to remove a person from the United Kingdom to be made during the period in which he enjoys continuing leave. It provides that, while a person has continuing leave where an appeal can be brought against a decision to refuse to vary, to curtail or to revoke leave, during this period a decision may also be taken to remove him from the UK. By virtue of subsection (6) this. removal decision is included within the list of immigration decision defined in section 82 of the Nationality, Immigration and Asylum Act 2002 and will therefore give rise to a right of appeal to the Asylum and Immigration Tribunal. Subsection (7) provides that an appeal against the new removal decision may be brought in the United Kingdom; this means that where an appeal is lodged against such a decision removal would not take place until the end of the appeal proceedings.. Subsection (8) includes the removal decision in the list of immigration decisions in relation to which the Secretary of State may certify clearly unfounded asylum or human rights claims.
126.Section 48 amends section 10(8) of the Immigration and Asylum Act 1999, so that notification of a decision to remove in accordance with that section invalidates any leave to enter or remain in the United Kingdom which was previously given to the person. Prior to this amendment leave was invalidated only at the point at which removal directions were given under section 10.
127.Under the 1999 Act the giving of removal directions under section 10 could attract an in country right of appeal if the person concerned was appealing under section 65 of that Act on the basis that removal would breach his human rights. Directions would often be given at an early stage in the removal process in order to trigger a right of appeal under section 65. However, as removal directions often had to be cancelled and reset this often gave rise to further rights of appeal against the giving of the second, or subsequent, set of removal directions. This was rectified by section 82 of the Nationality, Immigration and Asylum Act 2002 which provides of a right of appeal against the principal decision to remove by way of directions as opposed to the subsidiary decision to give removal directions. Section 48 makes a corresponding amendment to section 10(8) of the 1999 Act so that the invalidation of leave reverts to the point at which a person is notified of the appealable decision to remove in accordance with section 10, rather than the later decision to give removal directions under that section.
128.Invalidation of the person's leave also has the effect of stopping access to any benefits, financial or otherwise, which may have been conditional on the leave.
129.Section 49 amends the British Nationality Act 1981 in regard to the requirement under that Act to be "of full capacity". The requirement applies where the applicant is seeking to be naturalised, to renounce citizenship or to resume citizenship following a previous renunciation. The effect of the amendment is to confer on the Secretary of State a discretion to waive the requirement to be of full capacity if, in the circumstances of a particular case, he considers it in the applicant's best interests to do so.
130.Section 50 (1) enables the Secretary of State to prescribe, in the immigration rules, forms to be used and procedures to be followed when making an immigration-related application. Subsection (2) enables the Secretary of State to prescribe, by administrative means, what information and documents are required to support an application. The section also allows the Secretary of State to set out in the Immigration Rules consequences for failing to comply with any of the prescribed forms and procedures.
131.Section 51 gives the Secretary of State power to designate, in secondary legislation, any immigration and nationality-related applications and claims, services, processes, advice, and information for which a fee may be charged. The level of fees payable, the consequences of failure to pay a prescribed fee, and any exemptions should be set out in Regulations.
132.Section 52(1) preserves the existing arrangement whereby fees for “consular functions” (as defined in the Consular Relations Act 1968) are set under the powers in the Consular Fees Act 1980.
133.Subsection (2) ensures that any orders already made under section 102 of the Finance (No. 2) Act 1987, with reference to the powers to charge fees for immigration and nationality applications which are repealed in Schedule 2, shall be read as if they referred to the charging powers in section 51.