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Immigration Act 2014

Commentary on Sections

Part 1: Removal and other powers

Section 1: Removal of persons unlawfully in the United Kingdom

38.This section replaces section 10 of the 1999 Act and provides a power for the Secretary of State or an immigration officer to authorise the removal of a person who requires leave to enter or remain in the UK but does not have it (subsection (1)) or their family members (subsection (2)).

39.Subsections (3), (4) and (5) define the conditions to be met for a family member to be removed under subsection (2). Subsection (6) provides for any leave to enter or remain in the UK that a family member has to be invalidated by the service of a notice under subsection (2).

40.Subsection (7) allows the Secretary of State or an immigration officer to give directions for the removal of those persons described in subsections (1) and (2). Removal directions may be given to the captains or owners or agents of ships or aircraft to remove a person or to make arrangements for removal to the country or territory as specified in paragraphs 8 to 10 of Schedule 2 to the 1971 Act. However under subsection (8) persons being deported will continue to be removed under Schedule 3 to the 1971 Act.

41.Subsection (9) lists relevant paragraphs of Schedule 2 to the 1971 Act which will also apply to persons subject to removal under this section. This includes provision for arrest, detention, bail and searches for removal documents.

42.Subsection (10) provides a power for the Secretary of State to make regulations about the time period during which a family member may be removed under subsection (2) and the service of a notice under subsection (2).

43.Subsection (11) defines a child for the purpose of this section.

Section 2: Restriction on removal of children and their parents etc

44.This section inserts a new section 78A into the 2002 Act to restrict the removal of children and their parent or carer unless certain conditions are met. Subsection (1) describes what constitutes a case of this type. Subsection (2) prohibits a child and their relevant parent or carer from being removed or required to leave the UK during a period of 28 days from when the relevant appeal rights are exhausted. Subsection (3) defines when the relevant appeals rights will be considered to be exhausted. Subsection (4) describes the actions that may nevertheless be taken during the 28 day period. Subsection (5) defines the meaning of “child” and the meaning of “being removed from or required to leave” used in this section.

Section 3: Independent Family Returns Panel

45.This section inserts a new section 54A into the Borders, Citizenship and Immigration Act 2009. Subsection (1) establishes the Independent Family Returns Panel as a statutory body. It currently exists as a non-statutory body.

46.Subsection (2) requires the Secretary of State to consult the Independent Family Returns Panel in every family returns case, on how best to safeguard and promote the welfare of the children of the family, and in each case where detention in pre-departure accommodation is proposed. Subsection (3) defines a “family returns case” as one where a child who is living in the UK is to be removed or required to leave and an individual who is the parent or carer of the child and is living in a household with the child is also being removed from or required to leave the UK.

47.Subsections (4), (5) and (6) provide for the Secretary of State to make provision by regulations about various matters connected with the Independent Family Returns Panel by statutory instrument. Subsection (7) defines “child,” “pre-departure accommodation” and “being removed from or required to leave” used in this section.

Section 4: Enforcement Powers

48.This section gives effect to Schedule 1.

Schedule 1: Enforcement Powers

49.Paragraph 1 inserts into paragraph 18(3) of Schedule 2 to the 1971 Act a power for an immigration officer to escort a person detained under paragraph 16. Paragraph 18(3) already allows any person acting under the authority of an immigration officer to escort a person so detained.

50.Paragraph 2(1) inserts a new paragraph 18A into Schedule 2 to the 1971 Act, giving immigration officers a power to search a person detained under paragraph 16 for anything which the person might use to cause physical injury to themselves or others or which they might use to escape from legal custody. It sets out the grounds which must exist before the power can be exercised, the extent of the search and sets out what may be seized and retained as a result of the search and for how long such items may be retained.

51.Paragraphs 2(2) to 2(5) make amendments corresponding to those in sub-paragraph (1) to other enactments which reference the powers that are available to immigration officers in respect of persons detained under paragraph 16 of Schedule 2 to the 1971 Act to ensure that the new paragraph 18A applies.

52.Paragraph 3 amends paragraph 25A of Schedule 2 to the 1971 Act by making the power to enter and search premises for relevant documents available in respect of persons who are arrested other than under that Schedule and detained under paragraph 16 of Schedule 2, whether or not the arrest was carried out by a constable. It further inserts new sub-paragraphs (6A) and (6B) into paragraph 25A so that a warrant may be obtained to enter and search premises belonging to a third party (other than the arrested person) where there are reasonable grounds to believe that relevant documents may be found there. Paragraph 3(4) removes the power to retain relevant documents for so long as necessary in connection with the purpose for which the person was arrested and paragraph 3(5) inserts a new sub-paragraph (8A) so that the power to retain relevant documents is aligned with the retention powers in section 17 of the 2004 Act and section 46(3) of the 2007 Act.

53.Paragraph 4 amends sections 28J(11) and 28K(14) of the 1971 Act so that those provisions, which are concerned with the execution and safeguards in respect of warrants, also apply to the new power to obtain a warrant under paragraph 25A(6A) of Schedule 2 to the 1971 Act.

54.Paragraph 5 amends section 146 of the 1999 Act to provide for immigration officers to use reasonable force when it is necessary in the exercise of a power conferred on them by the Immigration Acts. This clarifies that the power is not limited to the exercise of powers under the 1971 Act and the 1999 Act.

Section 5: Restrictions on detention of unaccompanied children

55.Subsections (1), (2) and (3) amend Schedule 2 to the 1971 Act to restrict the detention of an unaccompanied child under Schedule 2.

56.Subsection (4) inserts a new paragraph 18B after paragraph 18A of Schedule 2 to the 1971 Act to define the circumstances when detention may occur. Paragraph 18B sub-paragraph (1) restricts an unaccompanied child’s detention under paragraph 16(2) to a short-term holding facility, except where the child is being transferred to or from a short-term holding facility, or paragraph 18(3) applies, which is when a child is held while being taken to and from a place where their attendance is required for the purposes of the operation of the 1971 Act. This may include, for example, an Embassy or High Commission, to ascertain their nationality or admissibility to a country other than the UK. Sub-paragraph (2) restricts detention to a maximum period of 24 hours and only for so long as the conditions in sub-paragraphs (3) and (4) are met. Sub-paragraphs (5) and (6) limit the circumstances under which an unaccompanied child detained under paragraph 16(2) may be detained again, either following their removal from a short-term holding facility and their detention elsewhere or following their release from detention under paragraph 16(2). Sub-paragraph (7) defines the meaning of “relevant 24 hour period,” “short-term holding facility” and “unaccompanied child” used in this section.

Section 6: Pre-departure accommodation for families

57.Subsections (1), (2) and (3) amend Part 8 of the 1999 Act to define “detained children” as detained persons under the age of 18 and “pre-departure accommodation” as a place used solely for the detention of detained children and their families for a period of not more than 72 hours, or not more than seven days in cases where the longer period is authorised personally by a Minister of the Crown. They make clear that a short-term holding facility is not pre-departure accommodation.

58.Subsection (4) inserts new section 157A into Part 8 of the 1999 Act. Subsections (1) and (2) of new section 157A apply certain provisions of Part 8 to pre-departure accommodation as they apply to removal centres. Subsection (3) provides for the Secretary of State to extend by regulations any other provision made by or under Part 8 in relation to removal centres and subsection (4) provides for the Secretary of State to make rules for the regulation and management of pre-departure accommodation.

Section 7: Immigration bail: repeat applications and effect of removal directions

59.Subsection (2) inserts new paragraph 22(4) into Schedule 2 to the 1971 Act, which provides that the Secretary of State’s consent is required to release a person on bail where removal directions are in force and the removal is due to take place within 14 days of the date of the decision to grant or refuse bail. The Government has published a statement of intent setting out how this provision will be used.(17)

60.Subsection (3) provides that the Tribunal Procedure Rules(18) must provide that where a person has already made an unsuccessful bail application to the Tribunal under paragraph 25 of Schedule 2 and another application is made within 28 days, the Tribunal must dismiss it without a further hearing unless the applicant demonstrates that there has been a material change in circumstances. The Tribunal Procedure Committee recently consulted(19) on whether to make rules to limit repeat bail applications and published draft procedure rules(20). The effect of the change in the Act is to make it mandatory that the procedure rules include this provision rather than at the Committee’s discretion.

61.Subsection (4) amends paragraph 29 of Schedule 2 to clarify that when a person has an appeal pending under Part 5 of the 2002 Act they must apply for bail under paragraph 29, and not under paragraph 22.

62.Subsections (5) and (6) make equivalent amendments to those made by subsections (2) and (3) in respect of bail applications under paragraph 29 of Schedule 2 (i.e. applications made by a person who has an appeal pending). So subsection (5) amends paragraph 30 to state that where removal directions have been set for a date within 14 days of the decision to release on bail, a person may not be released on immigration bail by the Tribunal without the consent of the Secretary of State.

63.Subsection (6) provides that the Tribunal Procedure Rules must state that where a person has already made an unsuccessful bail application to the Tribunal under paragraph 29 and another application is made within 28 days, the Tribunal must dismiss it without a further hearing unless the applicant demonstrates that there has been a material change in circumstances.

Section 8: Provision of biometric information with immigration applications

64.This section amends section 126 of the 2002 Act to make provision for the Secretary of State to make regulations requiring foreign nationals applying for Direct Airside Transit Visas (DATVs), pursuant to section 41 of the 1999 Act, to provide their biometric information as part of their application. The Secretary of State may also make regulations requiring non-EEA family members of EEA nationals, and other non-EEA nationals who are able to enter or remain in the UK under an enforceable EU right to provide biometric information when they are applying for a document as evidence of their right to enter or remain in the UK, such as an EU residence card.

65.Subsection (3) adds a new paragraph to subsection (4) of section 126, which provides for biometric information submitted as part of an application to be recorded on any document issued as a consequence of that application.

66.Subsection (4) defines what is meant by a “document” for these purposes.

Section 9: Identifying persons liable to detention

67.Currently, if an immigration officer wants to check a person’s biometrics, usually fingerprints, to confirm their identity the person must first give their consent, unless they are either still subject to an immigration examination or have been arrested or detained in which case statutory powers exist which allow for their biometrics to be required. This section amends paragraph 18(2) of Schedule 2 to the 1971 Act to include persons who are liable to be detained, as well as those who have already been detained, as being persons in respect of whom necessary steps can be taken for the purposes of identification, such as fingerprinting and photographing. This power to check biometrics is limited to the purpose of verifying identity as part of an immigration investigation and any biometrics are to be destroyed as soon as that purpose has been fulfilled.

Section 10: Provision of biometric information with citizenship applications

68.This section enables regulations made under section 41 of the 1981 Act to make provision for biometric information to be required when a person applies to become a British citizen.

69.Subsection (3) makes amendments to section 41 of the 1981 Act, so that the references to “authorised person” and “biometric information” have the same definitions as those contained in section 126 of the 2002 Act. It provides that the safeguards in relation to taking biometric information from children under the age of 16, which are set out in the 1999 Act, apply equally to regulations made under the 1981 Act. It also provides an exception to the requirement, contained in section 8(5)(b) of the 2007 Act, that biometric information be destroyed as soon as reasonably practicable once a person becomes a British citizen to enable photographs submitted as part of a citizenship application to be retained until that person is issued with their first British passport.

Section 11: Biometric immigration documents

70.This section inserts a new subsection (2A) into section 7 of the 2007 Act to enable the Secretary of State to require an application or claim to be disregarded or refused where a person has failed to comply with a requirement of regulations made under section 5 of the 2007 Act, where those regulations have required a biometric immigration document to be used in connection with that application or claim.

Section 12: Meaning of “biometric information”

71.This section amends section 15 of the 2007 Act to define biometric information for the purposes of that provision as information about a person’s external physical characteristics, such as fingerprints and features of a person’s eye. Where the meaning of biometric information is to encompass information beyond external features, the Secretary of State is to specify the physical characteristics in an order. However, it cannot include information about a person’s DNA. The order is subject to the affirmative resolution procedure.

72.Subsection (4) gives effect to Schedule 2 (meaning of biometric information), which makes corresponding amendments to other enactments providing for powers to require the provision of biometric information.

Section 13: Safeguards for children

73.This section amends paragraphs 4 and 18 of Schedule 2 to the 1971 Act to ensure that persons aged under 16 are not required to provide biometric information under that Schedule, unless the requirement is authorised by a chief immigration officer, and the information is provided in the presence of an adult who is a parent or guardian or someone who takes responsibility for the child at the time.

Section 14: Use and retention of biometric information

74.Subsection (1) substitutes a new section 8 of the 2007 Act.

75.New section 8(1) requires the Secretary of State to make provision about the use and retention of biometric information provided pursuant to regulations made under section 5 of the 2007 Act.

76.New section 8(2) provides that the regulations must provide that biometric information is retained only if it necessary to retain it for use in connection with the exercise of functions in relation to immigration or nationality.

77.New section 8(3) provides that the regulations may include provision permitting the use of retained biometric information for non-immigration purposes, such as the prevention of crime and disorder or the protection of national security.

78.New sections 8(4), 8(5) and 8(6) provide that the regulations must include provision about the destruction of biometric information and must require the Secretary of State to take all reasonable steps to ensure that information is destroyed if its retention is no longer necessary for an immigration or nationality purpose and in all cases where the Secretary of State is satisfied that a person is a British citizen or a Commonwealth citizen with the right of abode. The requirement to destroy biometric information extends to copies, whether held electronically or otherwise.

79.New section 8(7) allows biometric information which would otherwise be required to be destroyed to be retained if it is retained in accordance with another power.

80.New section 8(8) provides for persons whose biometric information has been destroyed by virtue of the regulations to obtain a certificate confirming this on request from the Secretary of State.

81.New section 8(9) provides that section 6(6) of the 2007 Act applies to this section as it does for regulations made under section 5(1) of the 2007 Act, which means the regulations are subject to the affirmative resolution procedure.

82.Subsections (2) and (3) make corresponding amendments, so that regulations made under section 8 of the 2007 Act must also include provision for the use and retention of biometric information provided under sections 141 and 144 of the 1999 Act and section 126 of the 2002 Act.

83.The Government has published a statement of intent explaining its plans for the use and retention of biometric data taken pursuant to immigration powers.(21)

Part 2: Appeals etc

Section 15: Right of appeal to First-tier Tribunal

84.Part 5 of the 2002 Act makes provision for statutory appeals to the Immigration and Asylum Chamber of the Tribunal. This section amends the decisions in respect of which an appeal lies to the Tribunal and the grounds that can be raised on appeal.

85.Subsection (2) substitutes a new section 82 of the 2002 Act. The new section 82 provides that a right of appeal to the Tribunal will arise where the Secretary of State has decided to refuse a protection claim, or a human rights claim, or to revoke previously granted protection status. A protection claim is defined as a claim that removal of the person from the UK would breach the UK’s obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 (“the Refugee Convention”) or in relation to those who are eligible for a grant of humanitarian protection. Protection status is defined as the grant of leave to an individual as a refugee or a person eligible for humanitarian protection. This right of appeal is subject to the exceptions and limitations set out in Part 5 of the 2002 Act (such as the place from which an appeal must be brought).

86.Section 3C of the 1971 Act provides for the extension of leave until an application is decided and any appeal against the refusal of that application is determined where the application in question was made while the individual had leave and that leave expires without the application having been decided. Section 3D of the 1971 Act provides for the extension of leave until any appeal is determined where a person’s leave is varied so that no leave remains or is revoked.

87.Where an application is refused and there is not a right of appeal, the applicant may be able to apply for an administrative review. The Immigration Rules will set out when an applicant may seek an administrative review. In Schedule 9, Part 4 extends the effect of sections 3C and 3D where an administrative review can be sought or is pending. The question of whether an administrative review is pending will be determined in accordance with the Immigration Rules. The Government has published a statement of intent on how administrative review will operate.(22)

88.Subsection (3) repeals sections 83 and 83A of the 2002 Act. Section 83 provides for an appeal right to arise where asylum has been refused but other leave to enter or remain in the UK of at least 12 months’ duration has been granted. Section 83A provides for an appeal right to arise following revocation of refugee status where, following that revocation, the individual concerned has limited leave to remain in the UK. Sections 83 and 83A are no longer necessary because the changes to section 82 in subsection (2) provide for a right of appeal against the refusal or revocation of asylum or humanitarian protection.

89.Subsection (4) substitutes section 84 of the 2002 Act with a new provision specifying the grounds on which an appeal can be brought under section 82. Where an appeal is brought against the refusal of a protection claim, the appeal must be brought on one or more of the following grounds: that removal would breach the UK’s obligations under the Refugee Convention, removal would breach the UK’s obligations to those eligible for a grant of humanitarian protection, or removal would be unlawful under section 6 of the Human Rights Act 1998. An appeal against the refusal of a human rights claim may only be brought on the ground that the decision is unlawful under section 6 of the Human Rights Act 1998. An appeal against the revocation of refugee status or humanitarian protection may only be brought on the grounds that removal would breach the UK’s obligations under the Refugee Convention or the UK’s obligations to those eligible for a grant of humanitarian protection.

90.Subsection (5) substitutes a new section 85(5) of the 2002 Act which provides that the Tribunal may not consider a new matter unless the Secretary of State has given the Tribunal consent to do so. “New matter” is defined in new section 85(6) as being a ground of appeal within section 84 that the Secretary of State has not previously considered in the context of a decision under section 82(1) or a statement made under section 120 of the 2002 Act. This is to prevent appellants from raising new grounds before the Tribunal before the Secretary of State has had a chance to consider them.

91.Part 4 of Schedule 9 also substitutes a new section 120 of the 2002 Act. The new section 120(2) allows the Secretary of State or an immigration officer to serve a notice on a person who has made a protection or human rights claim, or who has made an application for leave to enter or remain, or who may be removed or deported. Once served with such a notice, the person must provide a statement to the Secretary of State of their reasons and grounds for being permitted to enter or remain in the UK or grounds as to why removal from the UK should not take place. This is the same duty as arose under the previous version of this section. The new version of this section also provides that where an individual requires but does not have leave to enter or remain in the UK or has leave only as a result of it having been extended under section 3C or 3D of the 1971 Act (as amended by Schedule 9 to this Act), this duty is an ongoing duty to raise any such grounds as soon as reasonably practicable. The scope of the duty to raise grounds is restricted to grounds that will, if refused, result in a right of appeal, e.g. protection or human rights grounds.

Section 16: Report by Chief Inspector on administrative review

92.The Immigration Rules will set out when an applicant may be able to seek an administrative review where an application is refused. Subsection (1) requires the Secretary of State to commission a report from the Chief Inspector on administrative review within a period of 12 months from when section 15 comes into force, addressing in particular the effectiveness of administrative review in identifying and correcting case working errors and the independence of persons conducting the administrative review. Subsections (2) and (3) require the Chief Inspector to send the report to the Secretary of State and the Secretary of State to lay a copy before Parliament. Subsection (4) defines “administrative review,” “case working error,” “Chief Inspector” and “immigration rules” used in this section.

Section 17: Place from which appeal may be brought or continued

93.Subsection (2) substitutes section 92 of the 2002 Act. This section governs which appeals can be brought or continued while the appellant remains in the UK. The Secretary of State has various powers of certification in relation to protection claims and human rights claims, and if a claim is certified, then an appeal in relation to it may not be brought or continued from within the UK. So, for example, the Secretary of State may certify a protection or human rights claim under section 94(1) of the 2002 Act if the claim is clearly unfounded, or under section 94(7) if the person is to be removed to a third country where there is no reason to believe that their human rights will be breached. The Act provides an additional power of certification in new section 94B in relation to human rights claims made by persons liable to deportation. Under the existing law, a person is also prevented by Schedule 3 to the 2004 Act from bringing an asylum or human rights appeal from within the UK in certain circumstances where it is proposed to remove him or her to a safe third country. This regime is unchanged by the Act, but is referenced in new section 92.

94.In the case of a human rights claim made outside the UK, any appeal in relation to it must be brought from outside the UK. As for appeals against the revocation of protection status, these must be brought from outside the UK if the decision was made while the person was outside the UK.

95.Subsection (6) of new section 92 provides that where a protection claim appeal is brought or continued from outside the UK, for the purposes of considering whether the grounds of appeal are satisfied, the appeal will be treated as if the person were not outside the UK. This is necessary because the grounds are that the person’s removal breaches the Refugee Convention or the UK’s obligations in relation to persons eligible for a grant of humanitarian protection.

96.Subsection (7) of new section 92 provides that where an appellant brings an appeal from within the UK but leaves the UK before that appeal is finally determined, the appeal is treated as abandoned unless the claim to which the appeal relates has been certified (meaning that the appellant has to continue the appeal from outside the UK).

97.Part 4 of Schedule 9 amends the definition of “human rights claim” for the purposes of appeal rights as contained in section 113 of the 2002 Act. The definition is amended to include a claim that refusal of entry to the UK would be a breach of section 6 of the Human Rights Act 1998. This change makes it clear that there is a right of appeal against the refusal of a human rights claim made outside the UK.

98.Subsection (3) inserts a new section 94B into Part 5, which creates a new certification power for the Secretary of State in relation to a human rights claim made by a person liable to deportation where the Secretary of State considers that the temporary removal of the appellant pending the outcome of an appeal would not breach the UK’s human rights obligations. When considering whether removal of the appellant while an appeal is pending would breach the UK’s human rights obligations, the Secretary of State can, for example, consider that the appellant would not face a real risk of serious irreversible harm as a consequence. Where a claim is certified under this provision, an appeal may only be brought or continued from outside the UK. Deportation orders are used to remove from the UK foreign criminals and others whose presence in the UK is non-conducive to the public good. This provision will not apply to overstayers and illegal entrants who are subject to administrative removal under section 1 of this Act.

Section 18: Review of certain deportation decisions by Special Immigration Appeals Commission

99.Section 18 inserts a new section 2E into the Special Immigration Appeals Commission Act 1997. This allows the Special Immigration Appeals Commission (“SIAC”) to review a decision which has been certified under section 97 or 97A(1) of the 2002 Act (certification on grounds of national security etc) in cases where there is no right of appeal in respect of the decision. In cases where there is a right of appeal, the appeal would go to SIAC under section 2 of the SIAC Act 1997. This new provision is necessary because the changes to section 82 of the 2002 Act mean that in future there may be some cases where there is no right of appeal against a decision that has been certified under section 97 or 97A, and judicial review will be the only remedy. It is more appropriate for judicial reviews in national security cases to be conducted by SIAC.

Section 19: Article 8 of the ECHR: public interest considerations

100.This section inserts a new Part 5A into the 2002 Act which makes provision for public interest consideration under Article 8 of the ECHR.

101.In new section 117A, subsection (1) provides that Part 5A applies when a court or tribunal is required to determine whether a decision under the Immigration Acts breaches a person’s right to respect for private and family life under Article 8 ECHR and as a result would be unlawful under section 6 of the Human Rights Act 1998.

102.Subsection (2) provides that, in considering the public interest question, the court or tribunal must, in particular, have regard to the considerations listed in new section 117B and, in cases concerning the deportation of foreign criminals, must also have regard to the considerations listed in new section 117C.

103.Subsection (3) defines the public interest question as meaning the question of whether an interference with a person’s right to respect for private and family life is justified under Article 8(2) of the ECHR.

104.New section 117B lists the public interest considerations which are applicable in all cases.

105.New section 117C lists the additional public interest considerations applicable in cases involving foreign criminals.

106.New section 117D provides for the definition of terms used in Part 5A.

Part 3: Access to Services etc

Chapter 1: Residential tenancies
Section 20: Residential tenancy agreement

107.This section identifies the type of arrangements to which the restriction on letting applies.

108.Subsections (2), (3) and (4) provide that all arrangements where a person is permitted to occupy a property as their only or main residence in return for the payment of rent are residential tenancy agreements, unless the arrangement falls into one of the exclusions set out in Schedule 3. Accommodation for which no rent is paid, such as convents or monasteries, does not fall within this definition, and so is not subject to the restriction on letting, nor is accommodation which is not used by a person as their only or main home. So, for example, holiday accommodation will not ordinarily be captured, as for most people it will not provide their only or main home, but if somebody chooses to live in a hotel, the arrangements for that person will be captured. Subsection (2) and subsection (3) also identify the range of agreements that will be considered to be a “residential tenancy agreement” for the purposes of the Chapter and who the landlord will be in the various cases. The effect is that where a landlord (L1) grants a tenancy to a tenant (T1) who then grants a licence to a lodger (T2), L1 will be the landlord in respect of T1 and T1 will be the landlord in respect of T2.

109.Certain occupancy agreements are excluded from the scheme and the landlord will be exempt from the requirement to conduct checks. These are listed in Schedule 3.

110.Subsection (7) creates a power to amend Schedule 3, in case further categories of agreement need to be excluded from these provisions, or some should be brought within the scope of the restriction. The order is subject to the affirmative resolution procedure (see section 74(2)).

Schedule 3: Excluded residential tenancy agreements

111.Paragraphs 1 and 2 exclude agreements which grant a right of occupation in social housing, where the landlord or a local authority is already subject to an obligation to check the immigration status of prospective occupants, or the tenant has an existing tenancy and is seeking to exchange their home for an alternative tenancy.

112.Paragraph 3 excludes agreements which grant a right of occupation in a care home.

113.Paragraph 4 excludes agreements which grant a right of occupation in a hospital or hospice. In most cases, a hospital or hospice will not provide an individual’s only or main residence, nor will the occupant be expected to pay rent. However, in some circumstances it may be that a hospital or hospice does provide the patient’s only or main residence and they may be expected to make a contribution towards their board, such that the arrangement would fall within the definition of a residential tenancy agreement as set out in section 20.  This paragraph excludes this type of accommodation.

114.Paragraph 5 excludes agreements which grant a right of occupation in any circumstances where the accommodation is arranged by a relevant National Health Service body which is acting in response to a statutory duty owed to an individual. In some circumstances, continuing health care provision may include the provision of accommodation.

115.Paragraph 6 excludes agreements which grant a right of occupation in a hostel or refuge. Hostels and refuges which are managed by social landlords, voluntary organisations or charities, or which are not operated on a commercial basis and whose operating costs are provided either wholly or in part by a government department or agency or a local authority are exempt. A hostel is defined as a building, or part of a building which is used to provide residential accommodation otherwise than in separate and self contained premises and board or facilities for food preparation, for persons generally or a class of persons, for example people who are street homeless. A refuge means a building which is used wholly or mainly to provide accommodation for persons who are seeking protection from abuse, such as a refuge for those who have fled domestic abuse or the victims of trafficking.

116.Paragraph 7 excludes agreements which grant a right of occupation in any circumstances where the accommodation is arranged by a local authority which is acting in response to a statutory duty owed to an individual, or is exercising a relevant power with the intention of providing accommodation to a person who is homeless or is threatened with homelessness. This provision ensures that where a local authority is subject to a statutory duty to provide assistance to an individual, it is not prevented from fulfilling its obligations and that where a local authority considers it appropriate to exercise a power to provide assistance to an individual for the relevant purpose, they are able to do so.

117.Paragraph 8 excludes agreements which grant a right of occupation that is provided to an individual by virtue of any of the specified provisions of the 1999 Act. The specified provisions empower the Secretary of State to provide accommodation for certain asylum seekers, failed asylum seekers and persons who have been granted temporary admission to the UK under paragraph 21 of Schedule 2 to the 1971 Act, or temporary release under that paragraph. The persons who qualify for this support will fall within the definition of a disqualified person in section 21. The provision ensures that the Secretary of State is not frustrated from exercising the specified statutory powers. It also allows the Secretary of State to secure accommodation to be used for this purpose.

118.Paragraph 9 excludes agreements to which the Mobile Homes Act 1983 applies.

119.Paragraph 10 excludes agreements that grant a right of occupation in accommodation that is provided by an employer to an employee, or by a body providing training to an individual in connection with that training. This avoids duplication of the checks the landlord must conduct before offering employment or a place on a course of study.

120.Paragraph 11 excludes agreements that grant a right of occupation in a building which is used wholly or mainly for the accommodation of students and is either a hall of residence or is a building owned or managed by a higher educational institution or a body established for charitable purposes only. All halls of residence are therefore exempt, as is any accommodation provided for students directly by a higher educational institution. This avoids duplication of checks which will already be undertaken by the educational institution before offering a student a place on a course of study.

121.Paragraph 12 excludes residential tenancy agreements where a student has been nominated to occupy it by an educational institution. Such a nomination could take a variety of forms but will require communication between the institute and the landlord regarding the student who will take up occupation under the residential tenancy agreement.

122.Paragraph 13 provides an exclusion for leases where the lease agreement grants a right of occupation for a term of seven years or more. This type of arrangement is more akin to one of home ownership than a traditional landlord tenant arrangement.

123.Sub-paragraph 3 provides that such an agreement does not grant a right of occupation for a term of seven years or more if the agreement can be terminated at the option of a party before the end of seven years from the commencement of the term. This is an anti-avoidance measure to ensure that leases are not agreed on the basis that they purport to be for a term of seven years or more when the parties intend to terminate them sooner. A lease containing a break clause will include an option to terminate and will not therefore benefit from the exemption. A lease which contains a forfeiture or right of re-entry for the landlord will benefit from the exemption.

124.Paragraph 14 defines terms used in Schedule 3.

Section 21: Persons disqualified by immigration status or with limited right to rent

125.This section sets out those persons who may not occupy privately rented property as their only or main home as a result of their immigration status; these are “disqualified persons.” It also sets out those persons who have a “limited right to rent property” because of their immigration status. In general, those who entered the UK unlawfully, or have overstayed their leave to enter or remain in the UK, will be disqualified and those persons who have a limited right to enter or remain in the UK have a limited right to rent.

126.Subsection (1) sets out those persons who are disqualified from occupying property. It makes it clear that relevant nationals, namely British citizens, EEA nationals and Swiss nationals, have the right to rent property, as they are all relevant nationals as defined in subsection (5). A person is disqualified from occupying property under a residential tenancy agreement (they do not have a “right to rent”) if they are a person who needs leave to enter or remain to be lawfully in the UK but does not have leave (subsection (2)) or their leave is subject to a condition that would prevent them from taking up occupation at the premises. A person whose leave to enter or remain in the UK is invalid, has ceased to have effect (whether by reason of curtailment, revocation, cancellation, passage of time or otherwise) will not have leave to enter or remain in the UK and so will not have a right to rent. A person who has leave subject to a condition that they reside at a specific address, which is not the address of the premises which are the subject of the agreement, will not have a right to rent that property.

127.Subsection (3) gives the Secretary of State the discretion to grant a person the right to rent even though they would otherwise be disqualified as a result of their immigration status.

128.Subsection (4) defines the persons who have a “limited right to rent”. These are persons who have been granted leave to enter or remain in the UK for a limited period of time, those persons who do not require leave to enter or remain as the qualifying family members of EEA nationals, or persons who enjoy a right to reside in the UK which derives from the EU Treaties.

Section 22: Persons disqualified by immigration status not to be leased premises

129.This section provides that a landlord must not allow an adult to occupy property under a residential tenancy agreement if they are a disqualified person.

130.Subsection (2) provides that the restriction in subsection (1) will only be contravened where the circumstances set out at subsection (4) or subsection (5) apply.

131.Subsections (4) and (5) set out the two different circumstances in which a contravention of this restriction may occur. In the first scenario a landlord enters into an agreement which allows a disqualified person to occupy the property. In the second scenario, while at the time the landlord enters into the agreement the person who will occupy the premises has the right to rent, that right comes to an end while they remain in the property.

132.Subsection (6), read in conjunction with subsection (4) makes it clear that a person does not have to be named in a tenancy agreement for these provisions to apply. A landlord is expected to make reasonable enquiries regarding the persons who will take up residence under an arrangement before entering into an agreement and even if the individual is not specifically named in any written agreement, the landlord will be responsible for them if they have authorised their occupation or should have been aware of their occupation, from the making of reasonable enquiries.

133.Subsection (7) is an anti-avoidance provision. A landlord cannot attempt to avoid liability for a penalty by relying on a provision in a residential tenancy agreement which states that a disqualified person is not permitted to occupy the premises if they subsequently enter into a side agreement which allows a disqualified person to take up residence without undertaking the required checks or if they otherwise waive a breach of such a provision.

134.Subsection (9) confirms that the restriction set out in the section is not intended to affect the validity or enforceability of any provisions of a residential tenancy agreement. A breach of the restriction will not impact on a landlord or tenant’s ability to enforce any provision in the agreement that they have entered into.

Section 23: Penalty notices: landlords

135.This section sets out the penalty for landlords who allow disqualified persons to take up residence in a property as their only or main home.

136.Subsections (1) and (2) empower the Secretary of State to impose a penalty of up to £3,000 on a landlord for each disqualified adult that they allow to occupy property.

137.Subsection (3) determines which landlord is responsible for a penalty. Where liability for a penalty arises because the landlord entered into the agreement which allowed occupation by a disqualified person, then the landlord who entered that agreement will always be responsible. This is to stop landlords who sell property with sitting tenants from passing the burden of a penalty onto the new owner who had no involvement in selecting or checking the occupants.

138.Where liability for a penalty arises because a person was allowed to occupy premises at a time that they had a right to rent, but that person has subsequently become a disqualified person who remains in occupation, the landlord at the time of the contravention will be responsible. This means that where a landlord acquires the freehold of a property with sitting tenants, they will take on responsibility for ensuring that any checks are undertaken in respect of occupants who have a limited right to rent at the required intervals and taking the prescribed steps should those occupants subsequently become disqualified persons.

139.Subsections (4) and (5) make provision regarding the transfer of responsibility from an immediate to the superior landlord. Subsection (5) allows a landlord to pass responsibility for a breach to a superior landlord, where the superior landlord is willing to accept that responsibility. To take the example of a landlord (L1) who grants a tenancy to a tenant (T1) who then grants a licence to a lodger (T2), if T2 is a disqualified person, T1 will be the responsible landlord, unless L1 and T1 have agreed between them in writing that L1 will accept responsibility for T2 for the purposes of this scheme. L1 and T1 may determine the extent to which L1 will accept responsibility; for instance, L1 could agree to undertake responsibility only for specifically named occupants, or only for pre-grant, and not post-grant, contraventions. Subsection (4) provides that where such an agreement has been made between the landlords regarding the transfer of responsibility, the superior landlord will be the responsible landlord for the purposes of the scheme, and references in the Chapter to the landlord should be read as referring to the superior landlord.

140.Subsection (6) enables the Secretary of State to amend by order the amount of the penalty referred to in subsection (2). This order is subject to the affirmative resolution procedure (see section 74(2)).

Section 24: Excuses available to landlords

141.This section sets out the statutory excuses available to landlords to avoid a penalty for renting to someone who is disqualified. A landlord can establish an excuse if he carries out checks according to the prescribed requirements and the carrying out of those requirements did not show that the prospective occupant was disqualified. A landlord, including a superior landlord who accepts responsibility on behalf of an immediate landlord under section 23(5), also has an excuse if he arranges for an agent to do the checks for him (subsection (2)).

142.Subsections (3) and (4) set out the duration before a tenancy commences within which the checks must be carried out. In the case of those with permanent status in the UK, the checks may be carried out at any time before the tenancy is entered into. For those subject to immigration control and/or who have a limited right to rent the checks must be carried out within a set period prior to the commencement of the tenancy. This period will be specified by order. This is to prevent a perverse scenario whereby checks reveal a person’s leave will expire prior to the commencement of the tenancy but a landlord is nevertheless able to rent to them because they had valid leave at the time the check was carried out.

143.Subsection (6) sets out that if an occupant’s leave expires during a tenancy the landlord can establish an excuse by carrying out repeat checks at the specified intervals, (or arranging for an agent to do so), and by then telling the Secretary of State that a disqualified person is in their property if the repeat check identifies that the person’s limited right to rent is no longer valid. They must make this report as soon as reasonably practicable after making the repeat check.

144.Subsection (7) sets out how a landlord can be said to have notified the Secretary of State “as soon as reasonably practicable.”

145.Subsection (8) requires notification to the Secretary of State to be made in the prescribed form and manner. This will be specified by order.

146.Subsection (9) defines “limited right occupier” to mean an occupier who had a limited right to rent when first granted a right to occupy the premises.

Section 25: Penalty notices: agents

147.This section sets out the circumstances where an agent contracted by a landlord to carry out checks on an occupant’s right to rent can be held liable for any breach of the restriction on renting to disqualified persons. An agent may be liable where they act in the course of a business, so for instance letting agents who make status checks on tenants (subsection (2)); the landlord cannot simply pass the checking burden on by asking a friend to carry out the checks for them. The agreement with the agent must be made in writing.

148.Subsections (3) and (4) empower the Secretary of State to impose a penalty of up to £3,000 on an agent for each disqualified adult that is allowed to occupy property.

149.Subsection (5) provides for the maximum amount of the penalty specified in subsection (4) to be varied by order. This order is subject to the affirmative resolution procedure (see section 74(2)).

Section 26: Excuses available to agents

150.This section sets out the statutory excuses available to agents where they are engaged to check an occupant’s right to rent, but a disqualified person is allowed to occupy a property. The agent has an excuse either where they can demonstrate that they carried out relevant checks, but the checks did not reveal that a person was disqualified (subsection (2)), or where they informed the landlord that the occupant was disqualified before the tenancy began (subsection (5)). In the latter eventuality the specific arrangements set out in the agency agreement may determine which relevant landlord the agent must report to. If the agent has been instructed by a superior landlord who has accepted responsibility for compliance with the scheme under section 23(5), they may be instructed to make report to the immediate landlord as well as the superior landlord in order to ensure that a residential tenancy agreement which breaches the prohibition in section 21 is not granted.

151.Subsections (3) and (4) set out the duration before a tenancy commences within which the checks must be carried out, applying the same rules as in section 24.

152.Under subsection (6), in the case of an occupant who became disqualified during the tenancy, the agent has an excuse if they have carried out repeat checks in respect of the individual at the specified intervals, and informed the Secretary of State that a disqualified person is in the property if the repeat check identifies that the person’s limited right to rent is no longer valid. They must make this report as soon as reasonably practicable after making the repeat check.

153.Subsection (7) sets out how an agent can be said to have notified the Secretary of State “as soon as reasonably practicable.”

154.Subsection (8) requires notification to the Secretary of State to be made in the prescribed form and manner. This will be specified by order.

Section 27: Eligibility period

155.This section sets out the times at which a landlord or agent must undertake repeat checks of those persons with a limited right to rent if they are to rely on the excuses provided for in sections 24 or 26. A landlord letting to someone who has limited leave in the UK should check that they have not become disqualified from renting either before their leave is due to expire, or one year after the tenancy begins, whichever is the longer period. To take some practical examples, if a landlord grants an agreement allowing use of a room to a visitor who has six months’ leave to remain in July 2015, the landlord will not need to undertake a repeat status check until July 2016 to maintain a statutory excuse against a penalty. If, at the same time, the landlord rents a property to a student with four years’ leave, he need not undertake a repeat status check until July 2019. Where the occupant has indefinite leave to remain, the landlord will not need to undertake a repeat check; while their biometric residence permit may need to be renewed within a period of 10 years, the landlord can rely on the fact that the leave they have been granted is indefinite and no further check is required.

Section 28: Penalty notices: general

156.This section provides for the issuing of a penalty notice by the Secretary of State to a landlord or agent. Subsection (1) provides that as a matter of law, the Secretary of State does not have to establish whether the landlord or agent can establish an excuse before serving a penalty notice. The reference to landlord will include a superior landlord who has accepted responsibility for compliance with the scheme under section 23(5), following the glossing provision at section 23(4). Subsection (3) provides that a separate penalty notice can be given for each disqualified adult occupying the premises.

157.Subsection (2) sets out what a notice should contain. The notice must say why the Secretary of State thinks the landlord or agent is liable and give details of how large the penalty is, how it should be paid and give a deadline for payment that is more than four weeks away. The notice must also say how the landlord or agent can go about lodging an objection to the penalty. A notice cannot be given if a year or more has passed since a disqualified person occupied a property, unless a new notice is being issued under section 29(6) following consideration of an objection made by a landlord or agent and the original notice was given within that 1 year period (subsection (5)).

158.Subsection (4) provides that where a penalty notice is given to two or more persons who jointly constitute the landlord or agent, then those persons are liable for the penalty on a joint and several basis.

Section 29: Objection

159.This section establishes the process by which a landlord or agent may object to a penalty they have been given by the Secretary of State for renting property for use by a disqualified person and by which the Secretary of State must consider objections.

160.Subsections (1) and (2) provide that a landlord or agent may object to his liability to the imposition of a penalty and to the amount. He may also object on the basis that he is not the liable party, is excused payment because he has complied with the requirements set out in section 24 for landlords, or section 26 for agents, or that the penalty given is too high in the circumstances.

161.Subsection (3) sets out that an objection must be made in writing to the Secretary of State within a timeframe that will be set out in an order and must give the reasons.

162.The Secretary of State must consider the objection, with regard to the Code of Practice issued under section 32; and may decide to cancel the penalty, change the amount which must be paid as a result of the objection either by reducing or increasing it, or take no action and leave the penalty notice as it stands. The Secretary of State must notify the agent or landlord of the decision within a set period that will be set out by order (subsections (4), (5) and (6)).

Section 30: Appeals

163.This section sets out the right of appeal where the landlord or agent wishes to challenge the Secretary of State’s decision on their objection to a penalty, and ensures a right of appeal should the Secretary of State fail to respond to an objection within the required timeframe.

164.Subsection (1) provides that a landlord or agent on whom a penalty is served may appeal to a court on the grounds that he or she is not liable to the penalty, the amount is too high, or he or she is excused payment having complied with the specified requirements.

165.Subsection (2) covers the actions that may be taken by the court.

166.Subsection (3) sets out the nature of the appeal and the matters to which the court must have regard in determining the case. This may include matters of which the Secretary of State was unaware.

167.Subsection (5) requires that a landlord or agent must already have made an objection under section 29 before an appeal may be brought.

168.Subsections (6) to (9) provide for the time limits within which an appeal must be brought.

Section 31: Enforcement

169.This section provides that a penalty due to the Secretary of State may be recovered as though it were due under an order of a court. This means that the Secretary of State may take action to recover money owed under a penalty notice without first issuing a substantive claim with a court. Instead the debt may be registered with the court, and enforcement action pursued without further order.

Section 32: General matters

170.This section imposes a requirement on the Secretary of State to issue a code of practice in relation to the residential tenancy provisions. The code of practice must set out:

  • the criteria to be applied in deciding whether to impose a penalty and the amount of that penalty;

  • guidance regarding when a person will be considered to be using premises as their ‘only or main residence’ for the purposes of these provisions, with particular emphasis on holiday lets and lets made in connection with business travel;

  • details of the steps landlords (including superior landlords who accept responsibility for compliance with the scheme under section 23(5), following the glossing provision at section 23(4)), and agents will reasonably be expected to take to determine who will be occupying the premises under the terms of a residential tenancy agreement.

171.Subsection (5) requires that the code of practice is reviewed from time to time.

172.Subsection (6) requires that the code of practice, and any revisions that are made to it, may not be issued unless a draft has been laid before Parliament and comes into force by order of the Secretary of State.

173.The Government has published a draft code of practice.(23)

Section 33: Discrimination

174.This section requires the Secretary of State to issue a code of practice to landlords and agents specifying how to avoid contravening the Equality Act 2010 or the Race Relations (Northern Ireland) Order 1997 while avoiding liability for a civil penalty. The Secretary of State must review that code of practice from time to time and any revisions that are made to it must be laid before Parliament.

175.Subsections (3) and (4) provide that before issuing the code of practice, the Secretary of State must consult with the Commission for Equality and Human Rights, the Equality Commission for Northern Ireland and persons representing the interests of landlords and tenants as considered appropriate before issuing or reissuing the code. A draft code must be laid before Parliament following consultation and consideration of representations made under subsection (4)(b), with or without modifications to reflect the representations, and will come into force by order of the Secretary of State. A breach of this code will not make a person liable to civil or criminal proceedings, but may be taken into account by a court or tribunal (subsection (6)).

176.The Government has published a prototype code of practice on discrimination.(24)

Section 34: Orders

177.This section elaborates on the Secretary of State’s order-making powers under this Chapter and in particular sets out the types of action which the Secretary of State may prescribe that must be carried out by landlords and agents to enable them to establish a statutory excuse against a penalty.

178.Subsection (2) makes provision so that any draft statutory instrument made under or in connection with this Chapter which would be a hybrid instrument for the purposes of the standing orders of either House of Parliament will proceed as if it were not a hybrid instrument. This could arise, for example, if an instrument were laid under section 20(7) that made provision which would apply in respect of one geographical area alone. In that situation, the instrument would be treated as though it were not a hybrid instrument for the purposes of the standing orders of either House of Parliament and so would not be subject to any special procedure for hybrid instruments.

Section 35: Transitional provision

179.Subsections (1) and (2) provide that landlords who allowed people to occupy their premises before these provisions come into force do not need to make checks regarding the immigration status of those occupants. Any new arrangements made between landlords and tenants where they were previously parties to another agreement and the tenant has enjoyed a continuing right of occupation of the premises will also not be subject to the restrictions.

180.Subsection (3) enables the Secretary of State to appoint the commencement day for the purposes of this section by order, and allows different days to be appointed for different purposes or areas. The section is subject to the general commencement powers set out in section 75(3) and so will be brought into force by an order made under the procedure specified for that provision.  But as the new regime under the Chapter may be commenced at different times in relation to different areas, it follows that different commencement days may also be required for different areas for the purposes of the transitional provisions under this section. This provision provides the flexibility to appoint those different commencement days.

181.Implementation of the provisions in Chapter 1 of Part 3 relating to residential tenancies will be rolled out on a phased geographical basis across the United Kingdom. Commencement of the initial implementation will be by order which is not subject to any parliamentary procedure. Section 74(7) provides that any subsequent order made under section 75(3) bringing into force those provisions is subject to the negative resolution procedure.

Section 36: Crown Application

182.This section provides that the restrictions on letting apply to residential tenancy agreements made in respect of premises which are on Crown lands, except where the Crown is itself the responsible landlord. If property on Crown land is let out to a tenant who is not a Crown body, the tenant will be bound by the scheme should they sub-let the property.

Section 37: Interpretation

183.This section sets out the definitions given to terms within these provisions.

184.Subsection (6) enables the Secretary of State to prescribe situations which will or will not be treated as entering into a residential tenancy agreement and circumstances where a person will or will not be considered to be occupying premises as their only or main residence for the purposes of these provisions. This will allow the Secretary of State to make provision in relation to a range of different circumstances that may occur in relation to a residential tenancy agreement – for example, the variation and renewal of agreements. The power will enable the Secretary of State to specify how such matters are to be dealt with for the purposes of these provisions. The power will also allow the Secretary of State to put in place anti-avoidance measures should this prove necessary in relation to the premises which should be considered to be a person’s only or main residence, for instance by ensuring that illegal migrants are not able to escape the provisions by claiming that their only or main residence is overseas. The order is subject to the negative resolution procedure (see section 74).

Chapter 2: Other Services etc.National Health Service
Section 38: Immigration health charge

185.This section provides the Secretary of State with a power, by order, to require certain migrants to pay an immigration health charge. Affected migrants would be required to pay the charge when applying for leave to enter or remain in the UK or when applying for entry clearance. The order may include provision about the amount, method of payment and consequences of non-payment of the charge and for exemptions from the charge. The order may also provide for a reduction, waiver or refund of all or part of the charge. In specifying the amount of the charge, the Secretary of State must have regard to the range of health services likely to be available free of charge for persons who have paid the charge.

186.Subsection (5) provides that any funds collected under this power must be paid to either the Consolidated Fund or applied as specified in the order. The order is subject to the affirmative resolution procedure (see section 74(2)).

Section 39: Related provision: charges for health services

187.Persons who are ordinarily resident in the UK are not chargeable for health services under the legislation specified in section 39(2). Section 39 states that for the purpose of the charging provisions those who require leave to enter or remain and do not have it and those who have limited leave to enter or remain are not to be treated as ordinarily resident, so ensuring they can potentially be charged for health services throughout the UK.

188.Subsection (2) sets out the specific health service charging provisions in each of the constituent parts of the UK in respect of which the definition of not ordinarily resident in subsection (1) applies.

Bank accounts
Section 40: Prohibition on opening current accounts for disqualified persons

189.Subsection (1) provides that a bank or building society must not open a current account for a person who falls within subsection (2) unless one of two conditions has been satisfied.

190.The first condition is that the bank or building society has carried out a “status check” in respect of the applicant, that is a check in relation to their immigration status, and this has indicated the person is not a “disqualified person” for whom an account should not be opened. The second condition is that the bank or building society has been unable to carry out a status check because of circumstances that cannot reasonably be regarded as within its control. This might occur, for example, if it were unable to perform a check because of operational difficulties being encountered by the checking service for an extended period.

191.Subsection (2) sets out the persons who may be disqualified from opening a bank account. A person may be disqualified from opening a current account if they are physically present in the UK and require leave to enter or remain in the UK but do not have it.

192.Subsection (3) defines what constitutes a “status check” and a “disqualified person” for the purposes of these provisions. A status check means a check with a specified anti-fraud organisation or a specified data-matching authority. A disqualified person is a person who falls within subsection (2) and in respect of whom the Secretary of State considers a current account should not be opened. The Secretary of State therefore has discretion as to who should be barred from opening current accounts. This is because there will be some individuals who face legitimate barriers which prevent them from leaving the UK, even though they do not have leave. The Secretary of State may enable these persons to open a current account. Subsection (3) provides that the prohibition on opening an account for a disqualified person extends to instances where the disqualified person is applying for a joint account, an account to which that person is to be a signatory or a named beneficiary, and also to instances where the disqualified person is to be added to an existing account as an account holder, signatory or named beneficiary.

193.Subsection (4) provides that an anti-fraud organisation specified for the purposes of subsection (3)(a) must be an anti-fraud organisation within the meaning set out in section 68 of the Serious Crime Act 2007 and that a data-matching authority specified must be a person or body conducting data matching exercises within the meaning of Schedule 9 to the Local Audit and Accountability Act 2014, under or by virtue of that or any other Act. The Government has published a statement of intent that CIFAS will be the organisation specified to be the data-matching authority for the purposes of this section.(25)

194.Subsection (5) has the effect that where a bank or building society is unable to carry out a status check because it has not paid a reasonable fee for the status check to be carried out when required to do so, and it opens an account for a disqualified person, it will breach the prohibition on opening current accounts for disqualified persons.

195.Subsection (6) provides that where a bank or building society refuses to open a current account in accordance with the requirements of this section, the bank or building society must tell the person of the reason for refusal, if it can do so lawfully. The duty to inform the person of the reason for refusal is to enable the person, if relevant, to contact the immigration authorities if they consider that they are not, or should not be, disqualified from opening an account. However, the duty to inform is subject to any other provision that would prevent a bank or building society from communicating information to the person. For instance, if informing the person would amount to an offence under section 333A of the Proceeds of Crime Act 2002 (tipping off: regulated sector), the bank or building society could not tell them.

Section 41: Regulation by Financial Conduct Authority

196.Subsection (1) provides that the Treasury may make regulations to enable the Financial Conduct Authority (FCA) to make arrangements for monitoring and enforcing compliance with the prohibition imposed on banks and building societies by section 40. The regulations are subject to the affirmative resolution procedure (see section 74(2)).

197.The regulations may make provisions for the FCA to be given free access to the information held by the anti-fraud organisation or data-matching authority specified for the purposes of section 40 which is accessed by banks and building societies (subsection (2)(a)). Such access may be necessary to ensure effective regulation and enforcement by the FCA. Subsection (2)(b) provides any regulations may correspond to any provisions of the Financial Services and Markets Act 2000, in particular those listed in subsection (3), with or without modification.

198.Subsection (3) sets out specific matters that the regulations may cover in order to ensure the FCA can take such steps as necessary to put in place appropriate arrangements to combat and deter breaches of the obligations under section 40 by banks and building societies. The reference to “criminal offences” at subsection (3)(a) will, for example, enable the regulations to make it an offence for banks and building societies to mislead the FCA.

Section 42: “Bank” and “building society”

199.This section defines what is meant in these provisions by the terms “bank” and “building society”.

200.Subsection (1) provides that for the purposes of these provisions, a “bank” is an “authorised deposit-taker” that has its head office or a branch in the UK. This is subject to the exclusions set out at subsection (4).

201.Subsection (2) defines an “authorised deposit-taker,” consistent with the relevant provisions of the Financial Services and Markets Act 2000, while subsection (3) provides that this definition does not include bodies that have permission to accept deposits only for the purposes of or in the course of another form of activity (for example insurance companies).

202.Subsection (5) defines a building society for the purposes of these provisions.

Section 43: Power to amend

203.In subsection (1), paragraph (a) provides that the Treasury may, by order, amend sections 40 to 42 to alter the categories of financial institutions to which those sections apply. This is an anti-avoidance measure, in case in future it becomes necessary to extend the prohibition set out in section 40 to institutions such as credit unions.

204.Paragraphs (b), (c) and (d) of subsection (1) allow the Treasury, by order, to amend section 40 to make the prohibition apply to different kinds of accounts (including other financial products by means of which a payment can be made), beyond or instead of current accounts, to define such categories of accounts and to further define accounts operated or to be operated by or for a person or body of a description that will be specified in the order. This is largely an anti-avoidance measure, in case in future it becomes necessary to alter the ambit of the prohibition to cover financial products other than current accounts (for example savings accounts, or to clarify the types of accounts that are covered).

205.Subsection (2) provides that such an order may amend sections 40 to 42 to confer order making powers upon the Treasury itself so that, for example, details of persons or bodies to whose accounts the prohibition in section 40(1) will not apply can be specified in secondary legislation.

206.Orders under this section are subject to the affirmative resolution procedure (see section 74(2)).

Work
Section 44: Appeals against penalty notices

207.This section amends section 17 of the 2006 Act. It substitutes for subsections (4) and (5) new subsections (4A) to (4E). The effect is to require an employer to exercise their right to object to a penalty notice for a breach of the illegal working provisions in that Act to the Secretary of State before they appeal to the civil court against the penalty.

Section 45: Recovery of sums payable under penalty notices

208.This section amends section 18 of the 2006 Act. It substitutes subsections (1) and (2) with new subsections (1) to (1D). The effect is to allow the Secretary of State to enforce a penalty as if it were a debt due under a court order. The amendment will allow an outstanding penalty to be registered with the civil court, after which enforcement action may be commenced immediately. It will eliminate the need for the Secretary of State to first make an application to the court for a substantive order for payment.

209.Currently the penalty ‘may be recovered by the Secretary of State as a debt due to him.’ This requires the issue of a substantive claim which gives the employer the opportunity to raise a defence before the matter is determined and judgment is given. At this point in proceedings, the Secretary of State can seek to rely on subsection (2) of section 18 which states that in proceedings for the enforcement of a penalty, no question may be raised regarding liability to the penalty, application of an excuse in section 15(3) or the amount of the penalty. The amendment will remove the need for these proceedings entirely and allow the Secretary of State to register the penalty with the court and then move to enforcement proceedings.

210.Subsection (1D) provides that where action is taken under this section for the recovery of a sum payable as a penalty, the penalty is to be treated as if it were a judgment entered in the county court in England and Wales for the purposes of section 98 of the Courts Act 2003, and as a judgment in Northern Ireland in respect of which an application for enforcement has been entered for the purposes of Article 116 of the Judgments Enforcement (Northern Ireland) Order 1981. This will allow penalty notices where enforcement action is taken to be entered on the registers of judgments in England and Wales and in Northern Ireland as though a substantive order for the sum payable had been made by a court in those jurisdictions.

Driving licences
Section 46: Grant of driving licences: residence requirement

211.Section 97 of the Road Traffic Act 1988 (“the 1988 Act”) and Article 13 of the Road Traffic (Northern Ireland) Order 1981(26) (“the 1981 Order”) set out the circumstances in which the Secretary of State and Department of the Environment must grant Great Britain and Northern Ireland driving licences respectively.

212.Subsection (1) amends section 97(1) of the 1988 Act to provide that one of the conditions for the grant of a driving licence is that the person must meet the relevant residence requirement.

213.Subsection (2) inserts new section 97A after section 97 of the 1988 Act to define the residence requirement and provides, in particular, that a person will not meet this requirement where they require leave to enter or remain in the UK but do not have it.

214.Subsections (3) and (4) make corresponding provision to the 1981 Order in respect of the grant of driving licences in Northern Ireland.

Section 47: Revocation of driving licences on grounds of immigration status

215.Subsection (1) inserts into section 99 of the 1988 Act a power to revoke a driving licence where it appears to the Secretary of State that a licence holder is not lawfully resident in the UK (defined as where a person requires leave to enter or remain in the UK but does not have it). Provision is also made for persons who fail to surrender a driving licence that has been revoked on grounds of immigration status, without reasonable excuse, to be guilty of a criminal offence.

216.Subsection (2) makes provision for a person who is aggrieved by the Secretary of State’s decision to revoke their driving licence on the grounds that they were not lawfully resident in the UK to appeal to a magistrates’ court or, in Scotland, to the sheriff within whose jurisdiction he resides. In any appeal against the revocation of a driving licence, the court or sheriff is not entitled to entertain any questions as to whether the appellant should be, or should have been, granted leave to enter or remain in the UK or whether the appellant has been granted leave to enter or remain after the date that the Secretary of State served a revocation notice.

217.Subsections (3) and (4) make corresponding provision to the 1981 Order in relation to the revocation of driving licences in Northern Ireland.

Part 4: Marriage and Civil Partnership

Chapter 1: Referral and Investigation of Proposed Marriages and Civil Partnerships
Section 48: Decision whether to investigate

218.Subsection (1) provides that the section applies if a superintendent registrar refers a proposed marriage to the Secretary of State under section 28H of the Marriage Act 1949 (“the 1949 Act”), or a registration authority refers a proposed civil partnership to the Secretary of State under section 12A of the Civil Partnership Act 2004. Sections 28H and 12A are inserted by Schedule 4 to the Act.

219.Subsection (2) requires the Secretary of State to decide whether to investigate whether a proposed marriage or civil partnership referred to the Secretary of State is a sham, as defined by section 55. (That definition refers to sections 24 and 24A of the 1999 Act, which are amended by section 56.)

220.Subsection (3) prevents the Secretary of State from conducting an investigation unless the conditions set out in subsection (4) (Condition A) and subsection (5) (Condition B) are met.

221.Subsection (4) provides that Condition A is met if the Secretary of State is satisfied that one or both parties to the proposed marriage or civil partnership is not an exempt person, as defined by section 49.

222.Subsection (5) provides that Condition B is met if the Secretary of State has reasonable grounds for suspecting the proposed marriage or civil partnership is a sham.

223.Subsection (6) requires that, in deciding whether to conduct an investigation, the Secretary of State has regard to any guidance published by the Secretary of State for that purpose.

224.Subsection (7) requires the Secretary of State to give notice of the decision whether to conduct an investigation to both parties to the proposed marriage and to the superintendent registrar who referred it.

225.Subsection (8) requires the Secretary of State to give notice of the decision whether to conduct an investigation to both parties to the proposed civil partnership and to the registration authority who referred it and, if different, the registration authority responsible for issuing the civil partnership schedule.

226.Subsection (9) requires the Secretary of State to make and give notice of the decision whether to conduct an investigation within the 28-day period for giving notice of marriage following civil preliminaries for which section 31 of the 1949 Act (as amended by paragraph 10 of Schedule 4) will provide, or within the 28-day period for giving notice of civil partnership for which section 11 of the Civil Partnership Act 2004 (as amended by paragraph 22 of Schedule 4) will provide.

Section 49: Exempt persons

227.Subsection (1) provides for three categories of persons who are exempt from the referral and investigation scheme: subsection (1)(a) a relevant national as defined in section 55 (British citizen, EEA national or Swiss national); subsection (1)(b) on the basis of having the appropriate immigration status, as defined in subsection (2); and subsection (1)(c) on the basis that the person holds a relevant visa, as defined in regulations made under subsection (4).

228.Subsection (2) provides that a person has the appropriate immigration status if they fall into one of three categories: a non-EEA national with an EU law right of permanent residence in the UK; a person exempt from immigration control as defined in regulations made under subsection (3); or a person who has settled status in the UK, as defined in section 33(2A) of the 1971 Act.

229.Subsection (3) provides for the question whether a person is exempt from immigration control (and therefore an exempt person under subsections (1)(b) and (2)(b)) to be determined in accordance with regulations made by the Secretary of State.

230.Subsection (4) provides for regulations to be made by the Secretary of State specifying what kinds of visa or other authorisation constitute a relevant visa for the purpose of being an exempt person under subsection (1)(c).

231.Subsection (5) limits the types of visa or other authorisation which may be specified in the regulations in subsection (4) to those which are granted for the purpose of enabling a person to enter or remain in the UK to marry or form a civil partnership.

Section 50: Conduct of investigation

232.Subsection (1) requires that any investigation of whether a proposed marriage or civil partnership is a sham must be conducted in accordance with any regulations made by the Secretary of State for that purpose.

233.Subsection (2) requires that in any investigation of whether a proposed marriage or civil partnership is a sham, regard must be had to any guidance published by the Secretary of State for that purpose.

234.Subsection (3) provides that, where the Secretary of State decides to investigate whether a proposed marriage or civil partnership is a sham, the relevant parties are required to comply with any requirements specified in regulations if notified by the Secretary of State that they must do so.

235.Subsection (4) provides that the Secretary of State must decide as part of the investigation whether both of the parties to the proposed marriage or civil partnership have complied with the investigation (“the compliance question”).

236.Subsection (5) provides that the compliance question is to be decided in accordance with any regulations made by the Secretary of State for that purpose. The first regulations made under this subsection and subsection (1) are subject to the affirmative resolution procedure (see section 74(2)).

237.Subsection (6) provides that the compliance question is to be decided with regard to any guidance published by the Secretary of State for that purpose.

238.Subsection (7) requires the Secretary of State to decide the compliance question and give notice of the decision to both parties to the proposed marriage or civil partnership, and to the superintendent registrar or the registration authority who referred it to the Secretary of State, and if different, the registration authority responsible for issuing the civil partnership schedule, within a 70 day period.

239.Subsection (8) requires the Secretary of State to give reasons for reaching a decision that one or both of the relevant parties to the proposed marriage or civil partnership have not complied with the investigation.

240.Subsection (9) provides that regulations made under this section may in particular deal with: (a) the circumstances in which a relevant party, as defined in subsection (11), is to be taken to have failed to comply with a relevant requirement, as also defined in subsection (11); and (b) the consequences of a relevant party’s failure to comply with a relevant requirement.

241.Subsection (10) allows the compliance question to be decided by reference to a relevant party’s compliance with one or more relevant requirements.

242.Subsection (11) defines particular terms used in this section.

Section 51: Investigations: supplementary

243.Subsection (1) provides that a notice given by the Secretary of State under section 48 that the Secretary of State has decided to investigate whether a proposed marriage or civil partnership is a sham must include notice that the compliance question must be decided within a period of 70 days from the date on which the couple gave notice; notice of the date on which that period will end; notice that the couple may be required to comply with requirements imposed as part of the investigation; and information prescribed under subsection (3) about the investigation.

244.Subsection (2) allows a notice given under section 48 to include such other information as the Secretary of State considers appropriate.

245.Subsection (3) contains an enabling power for the Secretary of State to prescribe in regulations what information must be included in the section 48 notice and provides that this may include information about the conduct of an investigation; the requirements with which the parties to the proposed marriage or civil partnership must comply; the consequences of failing to comply with those or any other requirements; the possible outcomes of the investigation; and the consequences of those outcomes.

246.Subsection (4) allows the Secretary of State, by regulations, to specify requirements relating to the investigation which may be imposed on the parties to a proposed marriage or civil partnership in accordance with section 50(3). The first regulations made under this subsection and subsection (3) are subject to the affirmative resolution procedure (see section 74(2)).

247.Subsection (5) enables regulations made by the Secretary of State under subsection (4) to specify in particular, a requirement on an individual(s) to make contact in a particular way within a particular time period (including by telephone); a requirement for the couple to be present at a particular place at a particular time; to be visited at home; to be interviewed; and to provide information, photographs and evidence.

248.Subsection (6) provides that the Secretary of State’s powers in relation to marriages or civil partnership suspected to be a sham (including any powers of investigation) remain unaffected by the referral and investigation scheme.

249.Subsection (7) defines particular terms used in section 50 and in this section.

Section 52: Referral of proposed marriages and civil partnerships in England and Wales

250.This section gives effect to Schedule 4, which makes further provision for the referral to the Secretary of State of proposed marriages and civil partnerships in England and Wales.

Schedule 4: Referral of proposed marriages and civil partnerships in England and Wales
Part 1: Marriage
Introduction

251.Paragraph 1 provides that the 1949 Act is amended in accordance with Part 1 of Schedule 4.

Supply of additional information and evidence

252.Paragraph 2 amends section 27 of the 1949 Act to require a person giving notice of marriage to give their date of birth.

253.Paragraph 3 inserts a new section 27ZA (entry of particulars in notice book: compliance with requirements) to instruct a superintendent registrar not to enter particulars relating to a marriage where various requirements imposed under the 1949 Act or the 2004 Act (including, in particular, requirements inserted into those Acts by this Act) have not been complied with.

254.Paragraph 4 inserts a new section 27E (additional information if party not relevant national) into the 1949 Act. Section 27E does not apply to a proposed marriage under section 39A of the 1949 Act (marriage of former civil partners one of whom has changed sex). Where applicable, section 27E requires that, if either or both parties giving notice are not relevant nationals (British citizens, EEA nationals or Swiss nationals) they must declare that (i) they have the appropriate immigration status under section 49(2) (and, if so, what that is); (ii) they have a relevant visa under section 49(4) (and, if so, what that is); or (iii) they have neither the appropriate immigration status nor a relevant visa. Where either or both parties do not have the appropriate immigration status or a relevant visa, it also provides that the notice may be accompanied by a statement of their immigration position in the UK.

255.The new section 27E also requires that, where one or both parties has a relevant visa, both parties must provide specified photographs of themselves.

256.The new section 27E also requires that where one or both parties declare that they have neither the appropriate immigration status nor a relevant visa, both parties must provide specified photographs of themselves; their usual address; if their usual address is outside the UK, an address in the UK at which they can be contacted by post; and, information about any other names previously used, and any aliases previously or currently used.

257.Paragraph 5 amends section 28 of the 1949 Act to require the parties to declare that the information and evidence provided with the notice is true.

258.Paragraph 6 amends section 28A (power to require evidence) of the 1949 Act and paragraph 7 inserts new section 28B (provision of evidence), section 28C (additional evidence if party not relevant national), section 28D (change of usual address or UK contact address), section 28E (rejection of false information or evidence), section 28F (amendment of notice and evidence provisions) and section 28G (specified evidence).

259.The new section 28B (provision of evidence) requires that a notice of marriage under section 27 of the 1949 Act must be accompanied by evidence, specified in regulations made under the new section 28G, of the person’s name and surname, date of birth, place of residence and nationality. Section 28B(2) requires a person giving notice of marriage to provide evidence of whether he or she has previously been married or formed a civil partnership and, if so, as to the ending of the marriage or civil partnership.

260.The new section 28C (additional evidence if party not relevant national) requires that, where either party is not a relevant national (British citizen, EEA national or Swiss national) a notice of marriage under section 27 of the 1949 Act must be accompanied by evidence, specified in regulations made under the new section 28G, that they have the appropriate immigration status under section 49(2) or a relevant visa under section 49(4), if either is the case. Where the notice is not accompanied by this evidence, it requires that the notice be accompanied by specified photographs of both parties; their usual address and specified evidence of this; if their usual address is outside the UK, an address in the UK at which they can be contacted by post; and information about any other names previously used, and any aliases previously or currently used.

261.The new section 28D (change of usual address or UK contact address) requires that, once notice has been given, any change of usual address or UK contact address (where such an address has been provided), must be notified by the couple to the Secretary of State, according to regulations subject to the negative resolution procedure.

262.The new section 28E (rejection of false information or evidence) provides that a superintendent registrar may reject any information, photograph or evidence provided in giving notice under section 27 of the 1949 Act, in particular where they have reasonable grounds for suspecting that the information, photograph or evidence is false. If any information, photograph or evidence is rejected, the superintendent registrar may proceed as if it had not been provided.

263.The new section 28F (amendment of notice and evidence provisions) provides that, subject to consultation with the Registrar General, the Secretary of State may, by order subject to the affirmative procedure, amend the information or evidence required to give notice of marriage under section 27 of the 1949 Act and make consequential amendments, including to primary legislation.

264.The new section 28G (specified evidence) provides for the Registrar General to make regulations, with the approval of the Secretary of State, about specified evidence for the purposes of section 8, 16 or 28B. Section 28G also provides that, subject to consultation with the Registrar General, the Secretary of State may make regulations, subject to the negative resolution procedure, about specified evidence for the purposes of new section 28C. The regulations under this section may make provision for example for the kind of evidence to be supplied, the form in which it is to be supplied, and the manner in which it is to be supplied.

Referral to Secretary of State

265.Paragraph 8 inserts a new section 28H (referral of proposed marriage to Secretary of State) in the 1949 Act. This requires the superintendent registrar, when notice of marriage is given under section 27 of the 1949 Act, to decide whether both parties to the proposed marriage are exempt persons under section 49(1) (unless the marriage is one to which section 39A of the 1949 Act applies because it is a marriage between former civil partners, one of whom has changed sex). Where the superintendent registrar decides that one or both of the parties is not an exempt person, the registrar must refer the proposed marriage to the Secretary of State. The registrar must also refer the marriage if one or both of the parties is not a British citizen, EEA national or Swiss national and evidence required under new section 28C(2) or (3) has not been provided. They must do so in accordance with regulations about the form, manner and timing of the referral (and the information to be included with it) made by the Secretary of State (after consulting the Registrar General), subject to the negative resolution procedure. The superintendent registrar must also notify the parties that the proposed marriage must be referred to the Secretary of State, what this means and of any requirements in regulations under new section 28D about notifying the Secretary of State of any change in usual or UK contact address.

266.Paragraph 9 inserts Schedule 3A (modifications if proposed marriage referred under section 28H) before Schedule 4 to the 1949 Act. This provides that the duty placed on the superintendent registrar under section 31(2) of the 1949 Act to issue a certificate for marriage does not apply unless and until one of five events occurs. Event 1 occurs where the Secretary of State has given the superintendent registrar notice under section 48(7) of a decision not to investigate; event 2 occurs where the statutory 28 day period has ended and the Secretary of State has not given the superintendent registrar notice under section 48(7); event 3 occurs where the Secretary of State has given the superintendent registrar notice under section 50(7) that the parties to the referred marriage have complied with the investigation; event 4 occurs where the 70 day period has ended and the Secretary of State has not given the superintendent registrar notice under section 50(7); and event 5 occurs if the Secretary of State gives the superintendent registrar notice that the duty under section 31(2) of the 1949 Act applies.

267.Paragraph 9 also extends the notice period to 70 days if the Secretary of State gives the superintendent registrar notice under section 48(7) of a decision to investigate whether a referred marriage is a sham. Where a proposed marriage is referred to the Secretary of State, the statutory notice period (whether 28 or 70 days) can be shortened by the Secretary of State in exceptional circumstances, in which case the Secretary of State must notify the applicant and the superintendent registrar of the reduced period, enabling the superintendent registrar to issue a certificate in respect of the referred marriage under section 31(2) of the 1949 Act.

Notice period

268.Paragraph 10 amends the notice period in section 31 of the 1949 Act (marriage under certificate without licence) from 15 days to 28 days. Paragraph 10 also requires, for a proposed marriage referred to the Secretary of State under new section 28H, any application for a reduction in the notice period to be submitted to the Secretary of State and for the decision to be made by the Secretary of State and notified to the applicant and the superintendent registrar, in accordance with regulations made by the Secretary of State after consultation with the Registrar General.

Marriage referred to Secretary of State: issue of certificates

269.Paragraph 11 inserts a new section 31ZA (notice of marriage: false information or evidence) in the 1949 Act.

270.The new section 31ZA provides that, where notice of marriage has been given under section 27 of the 1949 Act, the superintendent registrar may refuse to issue the certificate where they have reasonable grounds for suspecting that an incorrect decision was made because false information or evidence was provided.

Certificates

271.Paragraph 12 amends section 35 (marriage in registration district in which neither party resides) of the 1949 Act, to allow non-EEA nationals to marry in any Anglican place of worship that Church preliminaries would have allowed, notwithstanding that such couples must now complete civil rather than Church preliminaries.

One party resident in Scotland

272.Paragraph 13 provides that where one party is resident in England and the other party is resident in Scotland notice may be given in accordance with section 27 and the other provisions of the 1949 Act.

Proof of certain matters not necessary to validity of marriages

273.Paragraph 14 amends section 48 (proof of certain matters not necessary to validity of marriages) of the 1949 Act to include any of the five events listed in paragraph 2(2) to (6) of Schedule 3A (modification if proposed marriage referred under section 28H) to the 1949 Act.

Regulations etc

274.Paragraph 15 provides that regulations or orders made under the 1949 Act may make provision for different cases.

Offences

275.Paragraph 16 amends the relevant period in section 75 of the 1949 Act (offences relating to solemnization of marriages) from 15 days to 28 days.

Relevant nationals

276.Paragraph 17 amends section 78 (interpretation of the 1949 Act) to add relevant definitions.

Part 2: Civil Partnership
Introduction

277.Paragraph 18 provides that the Civil Partnership Act 2004 is amended as follows.

Supply of additional information and evidence

278.Paragraph 19 amends section 8 of the Civil Partnership Act 2004 to include in the declaration to be included with the notice of proposed civil partnership a statement that the proposed civil partner believes that all the information in the notice and the information and evidence supplied with it are true.

279.Paragraph 20 inserts a new section 8A (additional information if party not relevant national) into the Civil Partnership Act 2004. Section 8A does not apply to a proposed civil partnership under Schedule 3 to the Civil Partnership Act 2004 (civil partnership between former spouses one of whom has changed sex). Where applicable, section 8A requires that, if either or both parties giving notice of a proposed civil partnership are not relevant nationals (British citizens, EEA nationals or Swiss nationals), they must declare that (i) they have the appropriate immigration status under section 49(2) (and, if so, what that is); (ii) they have a relevant visa under section 49(4) (and, if so, what that is); or (iii) they have neither the appropriate immigration status nor a relevant visa. Where either or both parties do not have the appropriate immigration status or a relevant visa, it also provides for the notice to be accompanied by a statement of their immigration position in the UK.

280.The new section 8A also requires that, where one or both parties has a relevant visa, both parties must provide specified photographs of themselves.

281.The new section 8A also requires, that where one or both parties declare that they have neither the appropriate immigration status nor a relevant visa, both parties must provide specified photographs of themselves; their usual address; if their usual address is outside the UK, an address in the UK at which they can be contacted by post; and information about any other names previously used, and any aliases previously or currently used.

282.Paragraph 21 substitutes for section 9 (evidence) of the Civil Partnership Act 2004 a new section 9, new section 9A (additional evidence if party not relevant national), new section 9B (change of usual address or UK contact address), new section 9C (rejection of false information or evidence), new section 9D (amendment of notice and evidence provisions), new section 9E (specified evidence) and new section 9F (recording of information in the register: compliance with requirements).

283.The new section 9 (evidence) requires that a notice of proposed civil partnership under section 8 must be accompanied by evidence, specified in regulations made under the new section 9E, of the person’s name and surname, date of birth, place of residence, nationality and whether the person has previously formed a civil partnership or been married and, if so, as to the ending of the civil partnership or marriage.

284.The new section 9A (additional evidence if party not relevant national) requires that, where either or both parties are not relevant nationals (British citizens, EEA nationals or Swiss nationals), a notice of proposed civil partnership under section 8 must be accompanied by evidence, specified in regulations made under the new section 9E, that they have the appropriate immigration status under section 49(2) or a relevant visa under section 49(4), if either is the case. Where the notice is not accompanied by this evidence, it requires the notice to be accompanied by specified photographs of both parties; their usual address and specified evidence of this; if their usual address is outside the UK, an address in the UK at which they can be contacted by post; and information about any other names previously used, and any aliases previously or currently used.

285.The new section 9B (change of usual address or UK contact address) requires that, once notice has been given, any change of usual address or UK contact address (where such an address has been provided), must be notified by the couple to the Secretary of State, according to regulations.

286.The new section 9C (rejection of false information or evidence) provides that a registration authority may reject any information, photograph or evidence provided in giving notice under section 8 where they have reasonable grounds for suspecting that the information, photograph or evidence is false. If any information, photograph or evidence is rejected, the registration authority may proceed as if it had not been provided.

287.The new section 9D (amendment of notice and evidence provisions) provides that, subject to consultation with the Registrar General, the Secretary of State may by order amend the information or evidence required to give notice of civil partnership under section 8.

288.The new section 9E (specified evidence) provides for the Registrar General to make regulations, with the approval of the Secretary of State, about specified evidence for the purpose of section 9. It also provides that, subject to consultation with the Registrar General, the Secretary of State may make regulations about specified evidence for the purposes of new section 9A. The regulations under this section may make provision for example for the kind of evidence to be supplied, the form in which it is to be supplied, and the manner in which it is to be supplied.

289.The new section 9F (recording of information in the register: compliance with requirements) instructs a registration authority not to enter information relating to a proposed civil partnership where various requirements imposed under the Civil Partnership Act 2004 (including, in particular, requirements inserted into that Act by this Act) have not been complied with.

Notice period

290.Paragraph 22 increases the notice period in section 11 of the Civil Partnership Act 2004 (meaning of the “waiting period”) from 15 days to 28 days.

291.Paragraph 23 requires, for a proposed civil partnership referred to the Secretary of State under section 12A, any application for a reduction in the notice period to be submitted to the Secretary of State and for the decision to be made by the Secretary of State and notified to the applicant and the registration authority, in accordance with regulations made by the Secretary of State after consultation with the Registrar General.

Referral to Secretary of State

292.Paragraph 24 inserts a new section 12A (referral of proposed civil partnership to Secretary of State) into the Civil Partnership Act 2004. This requires the registration authority, when notice of proposed civil partnership is given under section 8, to decide whether both parties to the proposed civil partnership are exempt persons under section 49(1) (unless the civil partnership is one to which Schedule 3 to the Civil Partnership Act 2004 applies because it is between former spouses, one of whom has changed sex). Where the registration authority decides that one or both of the parties is not an exempt person, they must refer the proposed civil partnership to the Secretary of State. The registration authority must also refer the proposed civil partnership if one or both of the parties is not a British citizen, EEA national or Swiss national and evidence required under new section 9A(2) or (3) has not been provided. They must do so in accordance with regulations about the form, manner and timing of the referral (and the information to be included with it) made by the Secretary of State (after consulting the Registrar General). The registration authority must also notify the parties that the proposed civil partnership must be referred to the Secretary of State, what this means and how they must notify the Secretary of State of any change in usual or UK contact address.

293.Paragraph 25 inserts Schedule 3A (modifications if proposed civil partnership referred under section 12A) after Schedule 3 to the Civil Partnership Act 2004. This provides that the duty under section 14(1) on a registration authority to issue a civil partnership schedule does not apply unless and until one of five events occurs. Event 1 occurs where the Secretary of State has given the registration authority notice under section 48(8) of a decision not to investigate; event 2 occurs where the statutory 28 day period has ended and the Secretary of State has not given the registration authority notice under section 48(8); event 3 occurs where the Secretary of State has given the registration authority notice under section 50(7) that the parties to the referred civil partnership have complied with the investigation; event 4 occurs where the 70 day period has ended and the Secretary of State has not given the registration authority notice under section 50(7); and event 5 occurs if the Secretary of State gives the registration authority notice that the duty under section 14(1) of the Civil Partnership Act 2004 applies.

294.Paragraph 25 also extends the notice period to 70 days if the Secretary of State gives the registration authority notice under section 48(8) of a decision to investigate a referred civil partnership as a sham. Where a proposed civil partnership is referred to the Secretary of State, the statutory notice period (whether 28 or 70 days) can be shortened by the Secretary of State in exceptional circumstances, in which case the Secretary of State must notify the applicant and the registration authority of the reduced period, enabling the registration authority to issue a certificate in respect of the referred civil partnership under section 14(1) of the Civil Partnership Act 2004.

Civil partnership referred to Secretary of State: issue of civil partnership schedule

295.Paragraph 26 inserts a new section 14A (notice of proposed civil partnership: false information or evidence) in the Civil Partnership Act 2004.

296.The new section 14A provides that, where notice of a proposed civil partnership has been given under section 8, the registration authority may refuse to issue the civil partnership schedule where there are reasonable grounds for suspecting that an incorrect decision was made because false information or evidence was provided.

Relevant nationals

297.Paragraph 27 amends section 30 of the Civil Partnership Act 2004 to insert a new section 30A (relevant nationals) which defines relevant national.

Regulations and orders

298.Paragraph 28 amends section 36 of the Civil Partnership Act 2004 to provide for regulations and orders concerning civil partnerships made under the new provisions inserted by this Act to be made by the Secretary of State in consultation with the Registrar General and subject to the relevant affirmative or negative resolution procedure.

Proof of certain matters not necessary to validity of civil partnership

299.Paragraph 29 amends section 52 (proof of certain matters not necessary to validity of civil partnership) of the Civil Partnership Act 2004 to include any of the five events listed in paragraph 2(2) to (6) of Schedule 3A (modification if proposed civil partnership referred under section 12A) of the Civil Partnership Act 2004.

Section 53: Extension of scheme to Scotland and Northern Ireland

300.Subsection (1) provides an order-making power to make such provision as the Secretary of State considers appropriate to extend the referral and investigation scheme to proposed marriages and civil partnerships in Scotland and Northern Ireland. The order is subject to the affirmative resolution procedure (see section 74(2)).

301.Subsection (2) provides that an order under this section can make provision having a similar effect to that made by section 58 (requirement as to giving notice of marriage or civil partnership), Schedule 4 (which contains amendments to the 1949 Act and Civil Partnership Act 2004 relating to referrals under the scheme), or Parts 1, 2 and 4 of Schedule 6 (disclosure of information for immigration purposes); can confer functions on any person; and can amend, repeal or revoke any enactment.

302.Subsection (3) provides that an order under this section can impose on registration officials and registration authorities in Scotland and Northern Ireland a duty of referral to the Secretary of State under the scheme.

303.Subsection (4) provides that an order under this section may not impose a duty or confer a function on Scottish Ministers or the Northern Ireland Executive.

304.Subsection (5) defines particular terms used in this section.

Section 54: Supplementary provision

305.Subsection (1) provides that the section applies if the referral and investigation scheme is extended by an order under section 53.

306.Subsection (2) provides for administrative regulations to be made by the Secretary of State in relation to the application of the scheme for a) proposed marriages and civil partnerships in Scotland and b) proposed marriages and civil partnerships in Northern Ireland, in so far as the scheme is extended to Scotland and Northern Ireland.

307.Subsection (3) defines administrative regulations as those made under Schedule 5 (sham marriages and civil partnership: administrative regulations).

308.Subsection (4) provides an order-making power for the Secretary of State to make provision about a) the information or b) the evidence that must or may be given in relation to proposed marriages or civil partnerships under the law of Scotland or Northern Ireland, in cases where one or both of the parties is not a relevant national. The order is subject to the affirmative resolution procedure (see section 74(2)).

309.Subsection (5) provides that an order under subsection (4) may amend, repeal or revoke any enactment.

310.Subsection (6) provides an order-making power for the Secretary of State to specify ‘other immigration purposes’ for which information may be disclosed in the event that an extension order makes provision for the disclosure of information for immigration purposes. The order is subject to the affirmative resolution procedure (see section 74(2)).

311.Subsection (7) requires the Secretary of State to consult the Registrar General for Scotland and Registrar General for Northern Ireland before making any regulations or an order under this section.

312.Subsection (8) applies the definitions in section 53 to expressions used in this section and in Schedule 5 (sham marriage and civil partnership: administrative regulations).

Schedule 5: Sham Marriage and Civil Partnership: Administrative Regulations
Introduction

313.Paragraph 1 provides that the Schedule sets out the kinds of regulations which can be made by the Secretary of State under section 54. It also includes definitions used in this Schedule.

Notices

314.Paragraph 2 provides for the Secretary of State to make regulations about the giving of relevant notices and when a relevant notice is presumed to have been received.

Evidence

315.Paragraph 3 provides for the Secretary of State to make regulations about the supply of evidence in accordance with a relevant evidence provision. The regulations under this section may make provision for example for the kind of evidence to be supplied, the form in which it is to be supplied, and the manner in which it is to be supplied.

Change of address

316.Paragraph 4 provides for the Secretary of State to make regulations about any change of usual address; UK contact address and any change of UK contact address (where such an address has been provided); and evidence of any address notified. Regulations under this section may also impose a requirement on a person and make provision for the rejection of information or evidence if there are reasonable grounds to suspect it is false.

Referral

317.Paragraph 5 provides for the Secretary of State to make regulations requiring a person who has a duty to refer a marriage or civil partnership notice to comply with certain requirements, in particular relating to the form, manner or timing of the referral and information, photographs or evidence to be included with the referral. Paragraph 5 also provides for regulations to be made about the information to be provided to the parties about the effects of the referral and of any requirements under regulations made under paragraph 4.

Applications for shortening of waiting period

318.Paragraph 6 provides for the Secretary of State to make regulations about the making and granting of applications for the shortening of a waiting period in cases where a proposed Scottish or Northern Ireland marriage or civil partnership is referred to the Secretary of State.

Chapter 2: Sham Marriage and Civil Partnership
Section 55: Meaning of “sham marriage” and “sham civil partnership”

319.This section amends the 1999 Act.

320.Subsection (2) substitutes a new section 24(5) in the 1999 Act, which contains a new definition of “sham marriage.” This is a marriage in which either or both of the parties is not a relevant national (British citizen, EEA national or Swiss national); there is no genuine relationship between the parties; and either or both of the parties is entering into the marriage to avoid the effect of UK immigration law (which is defined to include the regulations concerning the free movement rights of EEA nationals) or the Immigration Rules.

321.Subsection (3) substitutes a new section 24A(5) in the 1999 Act, which contains a new definition of “sham civil partnership” in similar terms to that of “sham marriage” contained in the new section 24(5).

Section 56: Duty to report suspicious marriages and civil partnerships

322.This section amends the 1999 Act.

323.Subsection (2) amends section 24 of the 1999 Act so that the duty conferred on registration officials to report suspected sham marriages to the Secretary of State applies in respect of information received in advance of a person giving notice of marriage.

324.Subsection (3) amends section 24A of the 1999 Act so that the duty conferred on an authorised person within the meaning of the Civil Partnership Act 2004 to report suspected sham civil partnerships to the Secretary of State applies in respect of information received in advance of a person giving notice of civil partnership.

Chapter 3: Other Provisions
Persons not relevant nationals etc: marriage on superintendent registrar’s certificates
Section 57: Solemnization of marriage according to rites of Church of England

325.This section amends the 1949 Act.

326.Subsection (2) amends section 5 of the 1949 Act so that, where a couple wish to get married in the Anglican Church and one or both of them is not a relevant national (British citizen, EEA national or Swiss national), the banns process and the common licence process will not be available. In order to get married in the Anglican Church, they will have to obtain superintendent registrar’s certificates (subject to the referral and investigation scheme where applicable), unless the provisions for the Archbishop of Canterbury’s Special Licence or for Anglican preliminaries on board one of HM ships at sea apply.

327.Subsections (3) and (4) amend sections 8 and 16 of the 1949 Act so that, where a couple wish to get married in the Anglican Church following the publication of banns, or following the issue of a common licence, they will have to provide the minister (in the case of banns), or the person granting the common licence, with specified evidence that they are British citizens, EEA nationals or Swiss nationals.

Section 58: Requirement as to giving of notice of marriage or civil partnership

328.Subsection (1) provides that section 19 of the 2004 Act (procedure for marriage in England and Wales) is amended in accordance with subsection (2) and subsection (3).

329.Subsection (2) substitutes for section 19(1) of the 2004 Act new subsections 19(1), (1A) and (1B). These provide that the requirement in section 19 to give notice of marriage at a designated register office applies to both parties to a proposed marriage where either of them is not a British citizen, EEA national or Swiss national, unless that non-EEA national is exempt from immigration control (and the notice of marriage is accompanied by specified evidence of this).

330.Subsection (3) defines particular terms used in the amended section 19.

331.Subsection (4) provides that Schedule 23 to the Civil Partnership Act 2004 (immigration control and formation of civil partnerships) is amended in accordance with subsections (5) to (9).

332.Subsection (5) and (6), together with the consequential amendments in subsections (7), (8) and (9), provide that the requirement in Part 1 of Schedule 23 to give notice of civil partnership at a designated register office applies to both parties to a proposed civil partnership where either of them is not a British citizen, EEA national or Swiss national or exempt from immigration control (and the notice of civil partnership is accompanied by specified evidence of this).

Section 59: Information

333.This section gives effect to Schedule 6 (information).

Schedule 6: Information
Part 1: Disclosure of information etc where proposed marriage or civil partnership referred to Secretary of State

334.Paragraph 1(1) provides that the paragraph applies if a superintendent registrar refers a proposed marriage to the Secretary of State under section 28H of the 1949 Act, or a registration authority refers a proposed civil partnership to the Secretary of State under section 12A of the Civil Partnership Act 2004.

335.Paragraph 1(2) allows the Secretary of State to disclose relevant information, including supplying a document containing relevant information, to a registration official.

336.Paragraph 1(3) defines the meaning of “relevant information” to include the fact that a proposed marriage or civil partnership has been referred; the names of the parties to the proposed marriage or civil partnership; any information included with the referral in accordance with regulations under section 28H of the 1949 Act or section 12A of the Civil Partnership Act 2004; the address of any party notified to the Secretary of State in accordance with the regulations; details of any immigration enforcement action taken by the Secretary of State in respect of a party to the proposed marriage or civil partnership; and details of any immigration decision taken by reference to the marriage or civil partnership.

Part 2: Disclosure of information etc for immigration purposes etc
Disclosures by registration officials

337.Paragraph 2(1) allows a registration official to disclose any information or supply any document held to the Secretary of State or to another registration official for a purpose defined in sub-paragraph (2).

338.Paragraph 2(2) provides for information to be disclosed for (a) immigration purposes and (b) purposes connected to the referral of proposed marriage and civil partnership notices.

339.Paragraph 2(3) defines “immigration purposes” for the purpose of this paragraph.

340.Paragraph 3 allows a registration official to disclose to another registration official that a suspicion about a marriage or civil partnership has been reported to the Secretary of State under section 24 or 24A of the 1999 Act and the content of that report.

Disclosures by the Secretary of State

341.Paragraph 4(1) allows the Secretary of State to disclose any information or supply any document to a registration official for a specified verification purpose defined in sub-paragraph (2).

342.Paragraph 4(2) defines specified “verification purposes” used in this paragraph, including the verification of information provided by a person giving notice of marriage or civil partnership; and the verification of the immigration status, and any suspected or actual involvement in immigration offences, of people who contact the registration service in connection with the exercise of a registration function.

343.Paragraph 4(3) defines “relevant official” in this paragraph.

Part 3: Disclosure of information etc for prevention of crime etc

344.Paragraph 5(1) allows a registration official to disclose any information or supply any information to an eligible person or another registration official in England and Wales for the purpose of crime-fighting.

345.Paragraph 5(2) provides for information to be disclosed for crime-fighting purposes if the conditions set out in sub-paragraphs (3) (Condition A) and (4) (Condition B) are met.

346.Paragraph 5(3) provides that Condition A is met if the registration official has reasonable grounds for suspecting that a criminal offence has been, is being, or will be committed.

347.Paragraph 5(4) provides that Condition B is met if the registration official discloses the information or supplies the document for the purpose of verification of information supplied to another registration official or assisting in the prosecution, investigation, detection or prevention of a criminal offence.

348.Paragraph 5(5) defines “eligible person” in this paragraph.

Part 4: General Provisions
Limitations on powers

349.Paragraph 6 limits powers under this Schedule and provides that this Schedule does not authorise (a) a disclosure in contravention of the Data Protection Act 1998 of personal data not exempt from those provisions or (b) a disclosure prohibited by Part 1 of the Regulation of Investigatory Powers Act 2000.

No breach of confidentiality etc

350.Paragraph 7 provides for disclosure of information authorised by this Schedule not to breach obligations of confidence or restrictions on the disclosure of information.

Retention, copying and disposal of documents

351.Paragraph 8 permits a person who is supplied with a document under this Schedule to retain it, copy it or dispose of it in an appropriate manner.

Saving for existing powers

352.Paragraph 9 provides for no limit to be made on any other power to disclose information or supply documents.

Meaning of “registration official”

353.Paragraph 10 defines “registration official.”

Section 60: Regulations about evidence

354.Subsection (1) provides a power for the Secretary of State to make regulations about evidence relevant to the determination, for the purposes of Part 4, of whether a person is a relevant national under section 49(1), whether a person has the appropriate immigration status under section 49(2), and whether a person has a relevant visa under section 49(4).

355.Subsection (2) contains a non-exhaustive list of the types of provision that may be included in the regulations. This includes for example provision about the kind of evidence which is to be supplied, the form in which evidence is to be supplied, and the manner in which evidence is to be supplied.

356.Subsection (3) requires the Secretary of State to consult the Registrar General before making any regulations under this section.

357.Subsection (4) provides that in this section evidence includes a photograph or other image.

Section 61: Notices

358.Subsection (1) provides a power for the Secretary of State to make regulations about the giving of notices under Part 4 and under the amendments made to the 1949 Act and the Civil Partnership Act 2004.

359.Subsection (2) provides that such regulations may in particular make provision about the circumstances in which notice is to be presumed to have been received by the person to whom it is given.

360.Subsection (3) requires the Secretary of State to consult the Registrar General before making any regulations under this section.

Section 62: Interpretation of this Part

361.Subsection (1) defines particular expressions used in Part 4.

362.Subsections (2) to (5) make provision about the interpretation of terms in Part 4.

Part 5: Oversight

Office of the Immigration Services Commissioner

Section 63: Immigration advisers and immigration service providers

363.This section provides that Schedule 7 has effect.

Schedule 7: Immigration advisers and immigration service providers

364.Paragraph 1 explains that this Schedule makes amendments to Part 5 of the 1999 Act, which provides for the regulation of immigration advisers and immigration services providers, including, in particular, the establishment of the Immigration Services Commissioner (“the Commissioner”).

365.Paragraph 2 concerns the Commissioner’s power to exempt immigration advisers from registration.

366.Paragraphs 2(1) and 2(2) have the effect of removing the Commissioner’s general power to exempt immigration advisers and service providers from the requirement to be registered and the consequential requirement to pay a fee to the Commissioner. The Commissioner currently uses this power to exempt advisers that do not charge for their services.

367.Paragraph 3 concerns the waiver of fees for registration. It amends paragraph 5 of Schedule 6 to the 1999 Act to provide a new power for the Secretary of State to require or authorise the Commissioner to waive all or part of a registration fee in particular cases. The Government plans to use this power to require the Commissioner to waive the registration fee in relation to advisers who do not charge for their services.

368.Paragraph 4 introduces a new duty on the Commissioner to cancel registration in certain circumstances (see paragraph 4(4)).

369.Paragraph 4(1) provides that where such cancellation is on the grounds that an adviser is no longer competent or is otherwise unfit, such a decision is appealable to the Tribunal under section 87(3) of the 1999 Act.

370.Paragraph 4(2) provides that the Commissioner’s powers to determine complaints under paragraph 9(1)(a) of Schedule 5 to the 1999 Act are subject to the new duty to cancel the registration of a person the Commissioner considers to be no longer competent or otherwise unfit.

371.Paragraph 4(3) makes some changes to the Commissioner’s power under paragraph 3 of Schedule 6 to the 1999 Act (to require registered advisers to apply for their registration to be continued) that are consequential on the new cancellation power.

372.Paragraph 4(4) inserts a new paragraph 4A into Schedule 6 to the 1999 Act. This requires the Commissioner to cancel a person’s registration in the following circumstances: where the person asks for their registration to be cancelled; where the person concerned dies; where the organisation concerned is dissolved or wound up; where the person is convicted of certain immigration offences where The Tribunal directs the Commissioner to cancel a person’s registration; and where the Commissioner considers that the person is no longer competent or is otherwise unfit to provide immigration advice and services.

373.Paragraph 5 concerns the suspension of registration in certain circumstances.

374.Paragraphs 5(1) and (2) make changes to sections 84(3) and 87(4) of the 1999 Act that are consequential on paragraph 5(3) below.

375.Paragraph 5(3) inserts a new paragraph 4B into Schedule 6 to the 1999 Act. This provides that the Tribunal may, on an application made to it by the Commissioner, suspend a person’s registration where the person is charged with the following: an offence involving dishonesty or deception; an indictable offence; or certain immigration offences. Under the new paragraph, the suspension will have effect until one of the following has occurred: the person is acquitted, the charge is withdrawn, the proceedings are discontinued or an order is made for the charge to lie on the file. Where the person is convicted, the suspension will continue to have effect until the Commissioner has cancelled the person’s registration (in the cases where she is required so to do so) or decided whether or not to cancel it (where she needs to exercise judgement about whether they competent or fit). Persons suspended will, for the period of their suspension, not be treated as registered persons for the purposes of section 84 of the 1999 Act. The new paragraph also requires the Commissioner to record the suspension in the Commissioner’s register of advisers and organisations and remove such records where applicable.

376.Paragraph 6 inserts a new paragraph 4A after paragraph 4 of Schedule 5 of the 1999 Act. The purpose of this is to put beyond doubt that the Commissioner’s powers include inspection of the activities of and business of registered persons.

377.Paragraph 7(1) amends section 89(2) of the 1999 Act to provide that the Tribunal may uphold a charge laid against an adviser who was registered at the time of an alleged breach of the code of practice or rules, but whose registration has since been cancelled.

378.Paragraphs 7(2) to (5) make amendments to paragraphs 5(3) and 9 of Schedule 5 of the 1999 Act to provide that the Commissioner may investigate and determine complaints against an organisation that was registered at the time of an alleged breach of the code of practice or rules, but whose registration has since been cancelled.

379.Paragraph 8 concerns the Commissioner’s powers of entry.

380.Paragraph 8(1) omits the current paragraph 7 of Schedule 5 to the 1999 Act which sets out the existing power of entry in relation to complaints.

381.Paragraph 8(2) inserts a new paragraph 10A into that Schedule. This paragraph provides a modified framework for the Commissioner’s power of entry in relation to non-criminal matters. The modifications are as follows: firstly, the power may only be given effect if the Commissioner obtains a warrant from a magistrate or, in Scotland, a sheriff. Secondly, the magistrate or sheriff may grant the warrant in relation to the exercise of any of the Commissioner’s functions, not just the investigation of complaints. This means that it can be used for inspection purposes. Thirdly, a warrant may be granted in relation to private residences where they are being used or have been used to provide immigration advice or services. Fourthly, the power may be used to investigate complaints against an organisation that has had its registration cancelled. Fifthly, the sanction available to the Commissioner in relation to a person who fails without reasonable excuse to allow access to the premises is the cancellation of the person’s registration. In other respects, the Commissioner’s power of entry will remain substantially the same.

Section 64: Police Ombudsman for Northern Ireland

382.PONI was established under Part VII of the Police (Northern Ireland) Act 1998. This section inserts new sections 60ZB and 60ZC into that Act enabling the remit of PONI to be expanded to provide for the oversight of certain persons exercising specified enforcement functions in relation to immigration, asylum and customs matters in the Home Office.

383.New section 60ZB(1) provides that the Secretary of State and PONI may enter into an agreement for the establishment of oversight and complaints procedures similar to those that apply in respect of the Police Service of Northern Ireland.

384.Subsection (2) provides a reserve power for the Secretary of State to establish oversight and complaints procedures by statutory instrument in the event that the Secretary of State and PONI are unable to reach an agreement.

385.Subsection (3) lists the persons who could be subject to PONI’s oversight.

386.Subsection (4) provides a non-exhaustive list of the functions, which might be specified as “enforcement functions” in an agreement or order under subsection (1) and (2) of section 60ZB, including powers of entry, powers to search persons or property, powers to seize or detain property, powers of arrest and detention and powers of examination.

387.Subsection (5) defines the meaning of “specified” and subsection (6) defines “immigration officer.”

388.New section 60ZC(1) provides that the Secretary of State must approve any variation or termination to the agreement.

389.Subsection (2) provides that the Secretary of State must consult with PONI and must consult with such other persons as she thinks appropriate before making any order under subsection (2) of section 60ZB.

390.Subsection (3) provides that an agreement or order under section 60ZB(1) or (2) may include provision for the Secretary of State to make payments to or in respect of the Ombudsman.

391.Subsection (4) provides that any agreement or order under section 60ZB(1) or (2) relates only to the exercise of enforcement functions wholly or partly in Northern Ireland.

392.Subsection (5) provides that any agreement or order under section 60ZB(1) or (2) only relates to matters arising on or after the day on which the agreement or order is made.

393.Subsection (6) provides that the agreement or order made under section 60ZB(1) or (2) may not confer functions on PONI in relation to the exercise by any person of a function conferred on him by or under Part 8 of the 1999 Act, which relates to arrangements made in relation to detainee custody officers responsible for the exercise of escort and custodial functions over persons detained under paragraph 16 of Schedule 2 to the 1971 Act.

Part 6: Miscellaneous

Section 65: Persons unable to acquire citizenship: natural father not married to mother

394.This section inserts new sections 4E to 4J into the 1981 Act to provide for registration as a British citizen for persons born before 1 July 2006 to a British father, where their parents were unmarried at the time of their birth. In particular, they provide an entitlement to be registered for those who would have become British automatically had their parents been married at the time of their birth and for those who would currently have an entitlement to registration but for the fact that their parents were not married at the time of their birth.

395.Section 4E stipulates the general conditions to be met for the purposes of sections 4E to 4I.

396.Section 4F entitles a person to be registered as a British citizen if the person meets the general conditions in 4E and would be entitled to be registered as a British citizen under the specified registration provisions of the 1981 Act had the person’s mother been married to the person’s natural father at the time of his or her birth. Section 4F subsection (4) provides a power for the Secretary of State to waive the need for any or all of the parental consents to be given if the relevant registration provision is section 3(5) of the 1981 Act.

397.Section 4G entitles a person to be registered as a British citizen if the person meets the general conditions in 4E and if, at any time after commencement of the 1981 Act, the person would automatically have become a British citizen at birth under the 1981 Act or the British Nationality (Falkland Islands) Act 1983, had the person’s mother been married to the person’s natural father at the time of the person’s birth. Section 4G(5) provides a power for the Secretary of State to waive the need for any or all of the consents required under subsection (3) as read with subsection (4) to be waived in a particular case.

398.Section 4H entitles a person to be registered as a British citizen if the person meets the general conditions in 4E, was a citizen of the United Kingdom and Colonies immediately before commencement of the 1981 Act and would automatically have become a British citizen under the 1981 Act had the person’s mother been married to the person’s natural father at the time of the person’s birth.

399.Section 4I entitles a person to be registered as a British citizen if the person meets the general conditions in 4E, is an eligible former British national or non-British national and would have automatically become a British citizen under the 1981 Act had the person’s mother been married to the person’s natural father at the time of the person’s birth.

400.Section 4J contains supplementary provisions, in particular to stipulate that a person’s “natural father” is someone who satisfies the requirements as to proof of paternity prescribed in regulations under section 50(9B) of the 1981 Act.

Section 66: Deprivation of citizenship: conduct seriously prejudicial to the interests of the UK

401.At present, the Secretary of State can deprive a person of their citizenship under section 40 of the 1981 Act. This can be done where either the individual has acquired it using fraud, false representation or concealment of a material fact (section 40(3)); or where the Secretary of State is satisfied that doing so is ‘conducive to the public good’ (section 40(2)) and the person would not be left stateless as a result (section 40(4)).

402.Subsection (1) amends section 40 and inserts new subsection (4A) to create a sub-category of cases which enables the Secretary of State to deprive, by order, a person of their British citizenship status - regardless of whether or not it will render them stateless - where the individual has (i) acquired citizenship as a result of naturalisation and (ii) conducted themselves in a manner seriously prejudicial to the vital interests of the UK (and so for this reason it is conducive to the public good to deprive that person). The order requires the Secretary of State to have reasonable grounds to believe that the person is able, under the law of a country or territory outside the UK, to become a national of such a country or territory.

403.Subsection (2) provides that the Secretary of State may take into account the manner in which a person conducted him or herself before this section came into force when deciding to make an order under subsection (2) of section 40 of the 1981 Act.

404.Subsection (3) inserts section 40B into the 1981 Act to require the Secretary of State to arrange a review of the use of the power in section 40(4A) after an initial one year period and each subsequent three year period. The Secretary of State must lay the report of the outcome of the review before each House of Parliament.

405.The purpose of this provision is to qualify the existing provisions on deprivation so that in the most serious cases - such as those involving national security, terrorism, espionage or taking up arms against British or allied forces – individuals can still be deprived of their citizenship, where this has been acquired by means of naturalisation, without regard to whether or not it will render them stateless, provided that the Home Secretary has reasonable grounds to believe they are able to become a national of another country or territory.

406.This provision is intended to be more closely aligned with the 1961 UN Convention on the Reduction of Statelessness, which allowed states to declare on ratifying the Convention that they retain the right to deprive a person and render them stateless in specific circumstances. The UK ratified the Convention on 29 March 1966 and explicitly retained the right to deprive where the person either “ i) has, in regard of an express prohibition of Her Britannic Majesty, rendered or continued to render services to, or received or continued to receive emoluments from, another State, or ii) has conducted himself in a manner seriously prejudicial to the vital interests of Her Britannic Majesty.”

Section 67: Embarkation checks

407.This section provides that Schedule 8 (embarkation checks) has effect.

Schedule 8: Embarkation checks

Part 1: Functions Exercisable by Designated Persons
Examinations by designated person

408.Paragraph 2 of this Schedule allows for powers of examination exercisable by an immigration officer to be exercised by a designated person.

409.Paragraphs 2(1) and (2) amend paragraph 3 of Schedule 2 to the 1971 Act to allow a “designated person” to exercise the power of examination in relation to any person who is embarking or seeking to embark in the UK.

410.Paragraph 2(3) replaces sub-paragraph (1A) of paragraph 3 of Schedule 2 so that, whether the initial examination is undertaken by an immigration officer or designated person, a person so examined may be required by notice in writing given by an immigration officer, to submit to further examination.

Information and Documents

411.Paragraph 3 of this Schedule amends paragraph 4 of Schedule 2 to the 1971 Act to enable a designated person to require information and documents relevant to an examination.

412.Paragraph 3(2) amends paragraph 4(1) of Schedule 2 so that a passenger examined under paragraph 3(1) is under a duty to provide the immigration officer or the designated person with all such information in his possession as that person may require for the purpose of either his, or any other person’s, functions under that paragraph. So, a designated person can require such information as may be necessary to allow an immigration officer to locate the passenger in order to give him written notice that he is required to submit to further examination.

413.Paragraph 3(3) amends paragraph 4(2) of Schedule 2 to require a person examined under paragraph 3, if so required by an immigration officer or a designated person, to produce a specified document or to declare whether they are carrying or have carried a document of a type which the immigration officer or designated person consider relevant for the purposes of the examination.

414.Paragraph 3(4) amends paragraph 4(3) of Schedule 2 to confirm that an immigration officer can exercise the power of search set out in that paragraph, even if they did not commence the examination or require the person to produce documents under paragraph 4(2)(b).

415.Paragraph 3(5) amends paragraph 4(4) of Schedule 2 to confirm that any immigration officer may exercise the power to examine and detain a passport or other document, even if they did not commence the examination. Where a passport or other document is produced or found in accordance with this paragraph, an immigration officer may examine it and detain it.

416.Paragraph 3(6) inserts new sub-paragraphs (4A) and (4B) into paragraph 4 of Schedule 2. New sub-paragraph (4A) provides the power for a “designated person” to be able to examine and detain a passport or other document produced during the examination. Where this power is exercised, the designated person must deliver the passport or document to an immigration officer as soon as reasonably practicable. The new sub-paragraph (4B) provides for an immigration officer to treat a document delivered to him under this paragraph as though he had found the document himself under sub-paragraph (4)(a), (b) or (c).

417.Paragraph 3(7) amends paragraph 4(5) of Schedule 2 so that a passenger examined under paragraph 3 may be required to provide biometric information (in particular, fingerprints or features of the iris or any other part of the eye) to either an immigration officer or a designated person, where this is necessary to determine whether a passport or other document relates to that person.

Embarkation cards

418.Paragraph 4 of this Schedule amends paragraph 5 of Schedule 2 to the 1971 Act to enable the Secretary of State to make provision by order to require passengers embarking in the UK to produce embarkation cards to a designated person.

Designations

419.Paragraph 5 of this Schedule inserts new paragraph 5A in Schedule 2 to the 1971 Act to make provision in relation to designated persons.

420.New paragraph 5A(2) of Schedule 2 to the 1971 Act provides that a designation will be subject to such limitations as may be specified in the designation.

421.New paragraph 5A(3) sets out that a limitation under paragraph (5A)(2) may in particular relate to the functions that are exercised by that designated person.

422.New paragraph 5A(4) provides that a designation may be permanent or for a specified period and may in either case be withdrawn or varied.

423.New paragraph 5A(5) provides that the power to designate, or to withdraw or vary a designation, is exercised by the Secretary of State giving notice to the person in question.

424.New paragraph 5A(6) provides that the Secretary of State may designate a person under this paragraph only if satisfied that the person is capable of effectively carrying out the functions that are exercisable by virtue of the designation, has received adequate training in respect of the exercise of those functions, and is otherwise a suitable person to exercise those functions.

Directions to carriers and operators of ports

425.Paragraph 6 inserts new paragraph 5B in Schedule 2 to the 1971 Act to enable the Secretary of State to direct carriers and port operators to make specified arrangements for the exercise of functions by designated persons.

426.New paragraph 5B(1) makes provision for the Secretary of State to direct carriers or port operators to make arrangements for “designated persons” to exercise a specified function in relation to persons of a specified description. So a carrier or port operator may be required to make arrangements for designated persons to exercise the power of examination in respect of embarking passengers travelling on a specified route, or from a specified port.

427.New paragraph 5B(2) provides that such a direction must specify the port where, and the date (or dates) and time (or times) when a function is to be exercised under the arrangements.

428.New paragraph 5B(3) requires a direction under this paragraph to be given in writing.

429.New paragraph 5B(4) provides that a direction given under this paragraph may specify a description of persons by reference to destination, route, date and time of travel to which it applies.

430.New paragraph 5B(5) defines “function” and “specified” in directions under this paragraph.

Part 2: Other Provision
Offences

431.Paragraph 7 amends section 27 of the 1971 Act to provide that a failure by a carrier or port operator to comply with a direction issued under new paragraph (5B) of Schedule 2 without reasonable excuse will be an offence under that section.

Section 68: Fees

432.Subsection (1) provides for the Secretary of State to charge fees for the exercise of functions in connection with immigration and nationality. The term “functions” includes, but is not limited to, the specified functions listed in section 51 of the 2006 Act (applications, claims, services and processes). Use of the term simplifies the legislation, ensuring that there is no longer a need to decide which category a particular activity falls into. Functions can be delivered overseas, at the border or within the UK. They can be delivered by the Secretary of State, her officers, agents, commercial partners or any person acting on her behalf.

433.Subsections (2) to (7) provide that the existing legislative structure consisting of a power contained in primary legislation and exercised by way of a fees order and fees regulations is maintained. Chargeable functions will be set out in a fees order; and fee amounts set out in fees regulations (subsections (7) and (8)) which will be subject to the negative resolution procedure. A fees order made under section 68 is subject to the affirmative resolution procedure (see section 74).

434.Subsection (4) provides that the fees order must also specify the way that fees will be set. Fees must be charged either as a fixed amount; calculated using an hourly rate; as a combination of these; or by way of another factor.

435.Subsection (5) provides that the order must also specify the maximum amount that may be charged in respect of the fixed element of the fee. A minimum level of fixed fee may also be specified for particular functions.

436.Subsection (6) provides that where fees are set by reference to an hourly rate or other factor (subsection (4)(b)) the fees order must specify how the fee or fee part is to be calculated. Consistent with subsection (5), a maximum rate or other factor must be specified and a minimum rate or other factor may be specified for particular fees.

437.Subsection (7) confirms that fees for all functions will be set out in fees regulations. Where the fee is set as a fixed amount, this amount will be set out in regulations (most immigration and visa fees are set in this way). Where the fee is to be calculated by reference to an hourly rate or other factor, or where it comprises more than one element, the amounts and rates will be set out in regulations.

438.Subsection (8) provides that the fee amounts and rates set out in fees regulations must not exceed the maxima or be less than any minima set out in a fees order. Consistent with existing powers in the 2004 and 2006 Acts, it also provides that the fee for the exercise of a function may exceed the cost of exercising that function.

439.Subsection (9) consolidates the matters that may already be taken into account when setting certain fees – administrative costs, benefits and the costs of other functions – and extends these to include international comparisons (fees set by other countries for similar functions), the promotion of economic growth and mutual or reciprocal arrangements with other countries. It also ensures that these matters may be considered in relation to fees for all relevant functions. Costs may include the costs of the Secretary of State or any other person performing a function (for example a commercial provider exercising functions pursuant to a contract with the department). Subsection (9) ensures that those who use the immigration and nationality system continue to pay their fair share towards its continued running and that fees and any future fee changes can be targeted to promote economic growth, including reducing fees in some categories or offering fast-track services for visitors and economically valuable migrants.

440.Subsection (9)(c) confirms that fees can be set to take account of the cost of exercising any function in connection with immigration or nationality. This ensures that individual fees may be set at a level that reflects the cost of operating the immigration system, by applying cross-subsidy powers to the full range of functions rather than, as at present, being limited to specific chargeable functions.

441.Subsections (9)(d) to (f) provide that fees can be set with regard to economic and international considerations. For example, application fees may be set at a level to attract tourists or economically valuable migrants to the UK. Premium service fees may be set at a level to ensure that premium services may be made available to commercially important people, and those the UK considers will support international trade and economic growth.

442.Subsection (10) ensures that powers in relation to exceptions, discretion etc. are carried forward from section 51 of the 2006 Act.

443.Subsection (12) confirms the definition of ‘costs’, including those of commercial providers exercising immigration functions, and states that it applies to this section as well as sections 69 and 70.

444.Subsection (13) ensures that it is possible to charge a different amount for the same function in different circumstances, for example where the Government wants to offer a concession to encourage applications in a particular route or for a particular group to promote economic growth. This applies to any function specified in this section and section 70.

Section 69: Fees orders and fees regulations: supplemental

445.This section sets out supplemental provisions which clarify the way that the powers in section 68 may be exercised and how fees paid may be applied.

Section 70: Power to charge fees for attendance services in particular cases

446.Subsection (1) confirms that section 70 only applies when a person carries out a function in connection with immigration or nationality at a location outside of the United Kingdom, at an agreed time and place at the request of a customer. Attendance services are optional and bespoke services, which are provided in addition to other chargeable services.

447.Subsection (2) states that the ‘attendance service’ defined in subsection (1) does not include the exercise of other chargeable functions, for which fees must be set out in the fees order and fees regulations.

448.Subsection (4) provides that the customer may be charged a fee for the ‘attendance service’ in order to ensure that the costs of providing the service are recovered.

Section 71: Duty regarding the welfare of children

449.This section confirms that this Act does not limit any duty imposed on the Secretary of State or any other person by section 55 of the Borders, Citizenship and Immigration Act 2009 (duty regarding the welfare of children).

Part 7: Final provisions

450.This Part makes financial provision and a power by order to make transitional and consequential provision. It also gives effect to Schedule 9 (transitional and consequential provision). It also makes provision for commencement by order and about the extent of the Act.

Section 74: Orders and regulations

451.This section sets out the parliamentary procedure in respect of various order- and regulation-making powers provided for in the Act.

17

Immigration Bill Statement of Intent: Bail – effect on removal directions, https://www.gov.uk/government/publications/immigration-bill-part-1-removal.

18

The Asylum and Immigration Tribunal (Procedure) Rules 2005 (as amended), SI 2005/230Back [2]

20

Draft Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2013 http://www.justice.gov.uk/downloads/about/moj/advisory-groups/draft-tpc-iac-rules2013.pdfBack [4]

21

Immigration Bill Statement of Intent – Use and retention of biometric information, https://www.gov.uk/government/publications/immigration-bill-part-1-removal.

22

Immigration Bill Statement of Intent – administrative review in lieu of appeals, https://www.gov.uk/government/publications/immigration-bill-part-2-appeals.

23

Code of Practice: Civil Penalties for landlords and their agents, published 31 October 2013, https://www.gov.uk/government/publications/immigration-bill-part-3-access-to-services.

24

Prototype Anti-Discrimination Code, published 31 October 2013, https://www.gov.uk/government/publications/immigration-bill-part-3-access-to-services.

26

S.I. 1981/154 (N.I. 1)Back [10]

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