Statutory Instruments
IMMIGRATION
Made
8th May 2003
Coming into force
5th June 2003
At the Court at Buckingham Palace, the 8th day of May 2003
Present,
The Queen’s Most Excellent Majesty in Council
1.—(1) This Order may be cited as the Immigration and Asylum Act 1999 (Jersey) Order 2003 and shall come into force on 5th June 2003.
(2) In this Order—
“the 1971 Act” means the Immigration Act 1971, and
“Jersey” means the Bailiwick of Jersey.
(3) For the purposes of construing provisions of the 1971 Act as part of the law of Jersey, any reference to an enactment which extends to Jersey shall be construed as a reference to that enactment as it has effect in Jersey.
2. The provisions of the Immigration and Asylum Act 1999 which are specified in the left-hand column of the Schedule to this Order shall extend to Jersey subject to the modifications specified in relation to those provisions in the right-hand column of that Schedule, being such modifications as appear to Her Majesty to be appropriate.
3. The Immigration (Jersey) Order 1993(3) shall be varied as follows—
(a)at the end of article 4(1), insert “and section 20(2) of the Interpretation Act 1978 shall apply for the interpretation of this Order as it applies for the interpretation of an Act of Parliament.”;
(b)for the modification of “Committee” made by paragraph 18(a)(i) of Schedule 1 to that Order, substitute—
““Committee” means the Home Affairs Committee of the States”.
A. K. Galloway
Clerk of the Privy Council
Article 2
| Provisions extended | Modifications |
|---|---|
| Section 1 (leave to enter) (inserting section 3A into the 1971 Act) | In the inserted section 3A, (a) at each place where “United Kingdom” appears, substitute “Bailiwick of Jersey”; (b) in subsection (1), for “Secretary of State may by order make further provision” substitute “Lieutenant Governor may give directions”; (c) in subsection (2), for “an order” substitute “directions”; (d) in subsection (3) for “Secretary of State may by order provide” substitute “Lieutenant Governor may give directions”; (e) in subsection (4), for “An order” substitute “Directions” and for “Secretary of State” substitute “Lieutenant Governor”; (f) in subsection (6), for “an order made” substitute “directions given”; (g) in subsection (7), for “Secretary of State” substitute “Lieutenant Governor” and for “an order made” substitute “directions given”; (h) in subsection (8), for “An order” substitute “Directions”, for “the order” (both places) substitute “the directions” and for “Secretary of State” (both places) substitute “Lieutenant Governor”; (i) in subsection (10), for “An order” substitute “Directions” and for “Secretary of State” substitute “Lieutenant Governor”; (j) in subsection (11), for “order made” substitute “directions given”; (k) omit subsections (12) and (13). |
| Section 2 (leave to remain) (inserting section 3B into the 1971 Act) | In the inserted section 3B, (a) in subsection (1), for “Secretary of State may by order make further provision” substitute “Lieutenant Governor may give directions” and for “United Kingdom” substitute “Bailiwick of Jersey”; (b) in subsection (2) for “An order” substitute “Directions” and for “United Kingdom” substitute “Bailiwick of Jersey”; (c) in subsection (3), for “An order” substitute “Directions” and for “Secretary of State” substitute “Lieutenant Governor”; (d) in subsection (4), for “order made” substitute “directions given”; (e) omit subsections (5) and (6). |
| Section 5 (charges) | In subsection (1), for the words from “Secretary of State” to “prescribing” substitute “Committee may by order prescribe” and in subsection (1)(a) and (b), for “United Kingdom” (both places) substitute “Bailiwick of Jersey”. In subsection (2), omit the words “by the Secretary of State” and for “regulations” substitute “order”. In subsection (3)(b), for “regulations” substitute “order”. In subsection (4), for the words from “the Secretary of State” to the end, substitute “that part of the application must be entertained”. In subsection (5), for “United Kingdom” substitute “Bailiwick of Jersey”. In subsection (6), for the words from “subsection (1)” to “Part VI” substitute “subsection (15) of section 141”. |
| Section 6 (members of missions other than diplomatic agents) | For section 6, substitute the following— “6. In the 1971 Act, in section 8 (exceptions for certain categories of person)(4)— (a)in subsection (3), for the words “Diplomatic Privileges Act 1964” substitute “Privileges and Immunities (Diplomatic, Consular, etc) (Jersey) Law 1998” and omit the words “by that Act”; (b)for subsection (3A) (Members of Diplomatic Missions), substitute— “(3A) For the purposes of subsection (3) a member of a mission other than a diplomatic agent (as defined by the 1998 Law) is not to count as a member of a mission unless— (a)he was resident outside the Bailiwick of Jersey, and was not in the Bailiwick of Jersey, when he was offered a post as such a member; and (b)he has not ceased to be such a member after having taken up the post.”.” |
| Section 7 (persons ceasing to be exempt) (inserting section 8A into the 1971 Act) | In the inserted sections 8A(2) and (3), for “United Kingdom” (in each place) substitute “Bailiwick of Jersey”. |
| Section 8 (persons excluded from the United Kingdom under international obligations) (inserting section 8B into the 1971 Act) | In the inserted section 8B, (a) in subsections (1) and (2), for “United Kingdom” (each place) substitute “Bailiwick of Jersey”; (b) in subsection (5), for “Secretary of State” substitute “Committee”; and (c) omit subsections (7) and (8). |
| Section 10 (removal of certain persons unlawfully in the United Kingdom) | At each place where “United Kingdom” appears, substitute “Bailiwick of Jersey”. Omit subsection (2). In subsections (3) and (4) (both places), for “Secretary of State” substitute “Lieutenant Governor”. In subsection (7), for “21 and 22 to 24”, substitute “and 21”. In subsection (9), for “Secretary of State” substitute “Committee”. |
| Section 13 (proof of identity of persons to be removed or deported) | In subsection (1)(a), for “United Kingdom” substitute “Bailiwick of Jersey”. In subsections (2) and (3), for “Secretary of State” (both places) substitute “Lieutenant Governor”. Omit subsection (4). |
| Section 14 (escorts for persons removed from the United Kingdom under directions) | At each place where “United Kingdom” appears, substitute “Bailiwick of Jersey”. In subsection (2), for “Secretary of State may by regulations” substitute “Committee may by order”. In subsection (3), for “The regulations” substitute “Such order”. In subsection (3)(c), for “Secretary of State”, substitute “Committee”. |
| Section 15 (protection of claimants from removal or deportation) | In subsection (1), for “Secretary of State” substitute “Lieutenant Governor” and for “United Kingdom” substitute “Bailiwick of Jersey”. Omit subsection (4). |
| Section 18 (passenger information) (inserting paragraph 27B into Schedule 2 to the 1971 Act) | In the inserted paragraph 27B, (a) at each place where “United Kingdom” appears, substitute “Bailiwick of Jersey”; (b) in sub-paragraph (8)(a), for “Secretary of State” substitute “Lieutenant Governor”; (c) in sub-paragraph (9), after “specified” insert “by the Lieutenant Governor”; (d) omit sub-paragraphs (10) and (11). |
| Section 19 (notification of non-EEA arrivals) (inserting paragraph 27C into Schedule 2 to the 1971 Act) | At each place where “United Kingdom” appears in the inserted paragraph 27C, substitute “Bailiwick of Jersey”. |
| Section 25 (immigration control: facilities and charges) | At each place where “Secretary of State” appears, substitute “Committee”. Omit subsections (2), (3), (4) and (5). |
| Section 26 (charges: immigration control) | In subsection (1) for “Secretary of State” substitute “Committee” and for “he” substitute “it”. |
| Section 28 (deception) (inserting section 24A into the 1971 Act) | In the inserted section 24A, (a) at each place where “United Kingdom” appears, substitute “Bailiwick of Jersey”; (b) for subsection (3) substitute— “(3) A person guilty of an offence under this section is liable on conviction to imprisonment for a term not exceeding two years or to a fine, or to both”; (c) omit subsection (4). |
| Section 29 (facilitation of entry) (amending section 25 of the 1971 Act)(5) | In the inserted section 25(1D), after “obligations” insert “in respect of the Bailiwick of Jersey” and for “United Kingdom” at the second place where those words appear, substitute “Bailiwick of Jersey”. |
| Section 30 (false statements etc) (amending section 26 of the 1971 Act)(6) | In subsection (3), omit the inserted section 26(3)(c) and in the inserted section 26(3)(d), omit the words “(apart from Part VI)”. |
| Section 31 (defences based on Article 31(1) of the Refugee Convention) | At each place where “United Kingdom” appears, substitute “Bailiwick of Jersey”. For subsections (3) and (4) substitute— “(3) The offences to which this section applies are those— (a)of fraud, (b)of uttering a forged document, (c)under section 24A of the 1971 Act (deception), or (d)under section 26(1)(d) of the 1971 Act (falsification of documents), and any attempt to commit any of those offences.”. In subsection (7), for “Secretary of State” substitute “Lieutenant Governor”. Omit subsections (8) and (9). For subsections (10) and (11), substitute— “(10) The States may by Regulations amend subsection (3) by adding offences to those for the time being listed there.”. |
| Section 32 (penalty for carrying clandestine entrants) | At each place where “United Kingdom” appears, substitute “Bailiwick of Jersey”. In subsection (3), for “Secretary of State” substitute “Committee”. |
| Section 33 (code of practice) | At each place where “Secretary of State” appears, substitute “Committee”. For subsection (2) substitute— “(2) Before issuing the code, the Committee must consult such persons as it considers appropriate.”. Omit subsections (3) and (4). In subsection (6), for “Subsections (2) and (4) also apply” substitute “Subsection (2) also applies”. |
| Section 34 (defences to claim that penalty is due under section 32) | In subsection (4), for “Secretary of State” substitute “Committee”. |
| Section 35 (procedure) | At each place where “Secretary of State” appears, substitute “Committee”. In subsection (9), for “regulations” substitute “order”. In subsection (10), for “him” substitute “it”. |
| Section 36 (power to detain vehicles etc. in connection with penalties under section 32) | At each place where “Secretary of State” appears, substitute “Committee”. |
| Section 37 (effect of detention) | At each place where “court” appears, substitute “Royal Court”. In subsections (4) and (5), for “Secretary of State” substitute “Committee”. |
| Section 38 (assisting illegal entry and harbouring) (amending section 25 and inserting section 25A into the 1971 Act) | In the inserted section 25A— (a) at each place where “constable” appears, substitute “police officer”; (b) omit subsection (5); (c) for subsection (6) substitute— “(6) “Court” means— (a)if the arrested person, has not been charged, the Magistrate’s Court; (b)if he has been charged, but proceedings for the offence have not begun to be heard, the Magistrate’s Court; (c)if he has been charged and proceedings for the offence are being heard, the court hearing the proceedings.”. |
| Section 40 (charges in respect of passengers without proper documents) | At each place where “United Kingdom” appears, substitute “Bailiwick of Jersey”. In subsection (1), for “road passenger vehicle or train” substitute “or road passenger vehicle”. In subsection (2), for “Secretary of State” substitute “Committee”, and omit “or the train operator”. In subsection (3), for “Secretary of State” substitute “Committee”. In subsection (4), omit “or train operator” and in subsection (4)(b) omit “or train”. In subsection (5), omit “by a train operator, or”. In subsections (7)(a) and (8), for “Secretary of State” substitute “Committee” (both places). Omit subsections (9), (10) and (12). |
| Section 42 (power to detain vehicles etc. in connection with charges under section 40) | At each place where “court” appears, substitute “Royal Court”. In subsection (1)(b), for “sea, air or land” substitute “sea or air”. In subsections (4), (6) and (7), for “Secretary of State” (each place), substitute “Committee”. |
| Section 43 (Interpretation of Part II) | Omit the entries relating to “court”, “rail freight wagon”, “train” and “train operator”. |
| Section 128 (arrest without warrant) (inserting section 28A into the 1971 Act) | In the inserted section 28A, (a) in subsection (1), for “constable” substitute “police officer”; (b) in subsections (3), (4) and (5), after “immigration officer” insert “or police officer”; (c) in subsection (7), omit “(or, in Scotland, a copy complaint)”; (d) omit subsection (11). |
| Section 129 (search and arrest by warrant) (inserting section 28B into the 1971 Act) | In the inserted section 28B, (a) in subsection (1) for “a justice of the peace” substitute “the Bailiff”; (b) in subsection (2), for “justice” substitute “Bailiff” and for “constable” substitute “police officer”; (c) omit subsections (3) and (4). |
| Section 130 (search and arrest without warrant) (inserting section 28C into the 1971 Act) | In the inserted subsections (1) and (4), after “immigration officer” (both places), insert “or police officer”; |
| Section 131 (entry and search of premises) (inserting section 28D into the 1971 Act) | In the inserted section 28D(1), (a) for “immigration officer, a justice of the peace” substitute “immigration officer or a police officer, the Bailiff”; (b) in paragraph (d), omit the words “excluded material or special procedure material,”; and (c) for “immigration officer to enter” substitute “immigration officer or a police officer to enter”. Omit the inserted subsections (5), (6) and (7). |
| Section 132 (entry and search of premises following arrest) (inserting section 28E and paragraph 25A of Schedule 2 into the 1971 Act) | In subsection (2), in the inserted paragraph 25A of Schedule 2 to the 1971 Act, (a) in paragraph 25A(1)(b), for “constable” substitute “police officer”; and (b) in paragraph 25A(9)(b), for “United Kingdom” substitute “Bailiwick of Jersey”. |
| Section 133 (entry and search of premises following arrest under section 25(1) of the 1971 Act) (inserting section 28F into the 1971 Act) | |
| Section 134 (searching arrested persons) (inserting into the 1971 Act section 28G and paragraph 25B of Schedule 2) | In subsection (2), in the inserted paragraph 25B(3)(b)(ii) of Schedule 2 to the 1971 Act, for “United Kingdom” substitute “Bailiwick of Jersey”. |
| Section 135 (searching persons in police custody) (inserting section 28H and paragraph 25C of Schedule 2 into the 1971 Act) | In subsection (1), (a) for the inserted section 28H(10) substitute— “(10) “Custody officer” means the officer in charge of a police station.”; (b) for the inserted section 28H(11) substitute— “(11) “Intimate search” means a search which consists of the physical examination of a person’s body orifices other than the mouth.”; (c) for the inserted sections 28H(12) and (13) substitute— “(12) A person is in police detention if— (a)he has been taken to a police station after being arrested for an offence or after being arrested under Article 13 of the Prevention of Terrorism (Jersey) Law 1996, or under paragraph 6 of the Fifth Schedule to that Law by an examining officer who is a police officer, or (b)he is arrested at a police station after attending voluntarily at the station or accompanying a police officer to it, and is detained there or is detained elsewhere in the charge of a police officer, but is not in police detention if he is in court after being charged.”. In subsection (2), in the inserted paragraph 25C(2)(b)(ii), for “United Kingdom” substitute “Bailiwick of Jersey”. |
| Section 136 (access and copying) (inserting section 28I and paragraph 25D of Schedule 2 into the 1971 Act) | In section 28I(2)(b) and (4)(a)(ii), for “constable” (both places), substitute “police officer”. |
| Section 137 (search warrants: safeguards) (inserting section 28J into the 1971 Act) | In the inserted section 28J, (a) for subsections (3) and (4) substitute— “(3) An application for a warrant is to be made ex parte and supported by an information in writing.”; and (b) in the inserted 28J(5), for “justice of the peace or sheriff” substitute “Bailiff when”. |
| Section 138 (execution of warrants) (inserting section 28K into the 1971 Act) | In the inserted section 28K, (a) in subsection (9), for the words after “returned” to the end, substitute “to the Bailiff’s Secretary”; (b) in subsection (10), for “subsection (9)(a)” substitute “subsection (9)”; and for “justices' chief executive” substitute “Bailiff’s Secretary”; and (c) omit subsections (11) and (12). |
| Section 139 (interpretation) (inserting into the 1971 Act section 28L and paragraph 25E of Schedule 2) | For the inserted 28L, substitute— “28L.—(1) In this Part, “premises” includes any place and, in particular, includes— (a)any vehicle, vessel, aircraft or hovercraft; and (b)any tent or movable structure. (2) In this Part, subject to subsection (3) below, “items subject to legal privilege” means— (a)communications between a professional legal adviser and his client or any person representing his client made in connection with the giving of legal advice to the client; (b)communications between a professional legal adviser and his client or any person representing his client or between such an adviser or his client or any such representative and any other person made in connection with or in contemplation of legal proceedings and for the purposes of such proceedings; and (c)items enclosed with or referred to in such communications and made— (i)in connection with the giving of legal advice; or (ii)in connection with or in contemplation of legal proceeding and for the purposes of such proceedings, when they are in the possession of a person who is entitled to possession of them. (3) Items held with the intention of furthering a criminal purpose are not items subject to legal privilege.”. |
| Section 140 (detention of persons liable to examination or removal) | In subsection (2), at each place where “constable” appears, substitute “police officer”. |
| Section 141 (fingerprinting) | In subsection (4), for “Secretary of State” substitute “Committee”. In subsection (5), for “constable” substitute “police officer”, for “Secretary of State” substitute “Committee” and omit subsection (5)(e). Omit subsection (6). In subsection (7), at each place where “United Kingdom” appears, substitute “Bailiwick of Jersey”, and at each place where “Secretary of State” appears, substitute “Lieutenant Governor”. In subsection (9), for “United Kingdom” (both places), substitute “Bailiwick of Jersey”. In subsection (12), (a) in paragraph (a), for “constable” substitute “police officer”, and for “chief constable of his police force” substitute “the Chief Officer of the States of Jersey Police Force”; (b) in paragraph (d), for “Secretary of State” (both places), substitute “Committee”. In subsection (14)(b), for “United Kingdom” (both places), substitute “Bailiwick of Jersery”. For subsection (15), substitute— “(15) “Claim for asylum” means a claim that it would be contrary to the United Kingdom’s obligations in respect of the Bailiwick of Jersey under the Refugee Convention or under Article 3 of the Human Rights Convention for the claimant to be removed from, or required to leave, the Bailiwick of Jersey.”. |
| Section 142 (attendance for fingerprinting) | In subsection (1), for “Secretary of State” substitute “Lieutenant Governor”. In subsection (3), for “constable” substitute “police officer”. |
| Section 143 (destruction of fingerprints) | At each place where “United Kingdom” appears, substitute “Bailiwick of Jersey”. In subsections (5), (11) and (12), for “Secretary of State” (each place), substitute “Lieutenant Governor”. In subsection (15), for “Secretary of State may specify by order” substitute “Lieutenant Governor may specify”. |
| Section 144 (other methods of collecting data about physical characteristics) | For “Secretary of State may make regulations” substitute “Lieutenant Governor may give directions”. |
| Section 146 (use of force) | In subsection (2), for “regulations” substitute “directions”. |
| Section 166 (regulations and orders) | Omit subsections (1) and (2). In subsection (3), for the words “statutory instrument made as a result of subsection (1)” substitute “order made under this Act”. For subsections (4), (5) and (6) substitute— “(4) The Subordinate Legislation (Jersey) Law 1960, as amended, shall apply to orders made by the Committee under this Act as though this Act were an enactment within the meaning of that Law.”. |
| Section 167 (interpretation) | In subsection (1), (a) at the end of the entry relating to the “1971 Act”, insert “as extended to the Bailiwick of Jersey by the Immigration (Jersey) Order 1993, the Asylum and Immigration Act 1996 (Jersey) Order 1998 and the Immigration and Asylum Act 1999 (Jersey) Order 2003”; (b) omit the entries relating to “adjudicator”, “Chief Adjudicator”, “the Commission” and “voluntary organisations”; (c) for the entry relating to “claim for asylum”, substitute—
(d) in the entry relating to “the Human Rights Convention” for “United Kingdom” substitute “Bailiwick of Jersey”; (e) in the entry relating to “the Immigration Acts”, omit paragraph (c); (f) for the definition of “prescribed” substitute— ““prescribed” means prescribed by order made by the Committee;”; (g) insert at the appropriate place in alphabetical order the following entries— ““Attorney General” means Her Majesty’s Attorney General for Jersey;”; and ““Committee” means the Home Affairs Committee of the States of Jersey;”. In subsection (2), omit the reference to “immigration rules”. |
| Section 169 (minor, consequential amendments etc) | |
| Section 170 (short title, etc) | For subsections (2) to (7), substitute— “(2) This Act shall come into force on 5th June 2003.”. |
| Schedule 1 (Sale of Transporters) | In paragraph 1, for “court” (both places), substitute “Royal Court”. For the references to “Secretary of State” in paragraphs 1(2)(c), 2, 3, 4, and 5(2)(c) (each place), substitute “Committee”. In paragraph 5(1) omit “37 or”. In paragraph 5(2), for “The regulations” substitute “An order”. Omit paragraphs 5(2)(b) and (e). |
| Schedule 14 (Consequential Amendments), paragraphs 43 to 46, 50 to 52, 54, 56 to 62, 64, 68, 83, 85, 86 , 108, 109 and 114. | In paragraph 44(2), in the substituted section 3(5) of the Immigration Act 1971,(7) for “United Kingdom” substitute “Bailiwick of Jersey” and for “Secretary of State” substitute “Lieutenant Governor”. Omit sub-paragraphs (3) and (4)(b) of paragraph 54. In paragraph 56, for “United Kingdom” substitute “Bailiwick of Jersey”. In paragraph 57, in the inserted paragraph 2A of Schedule 2 to the 1971 Act, (a) in paragraph 2A(1), for “United Kingdom” substitute “Bailiwick of Jersey”; and (b) in paragraph 2A(9), omit “and Part IV of the Immigration and Asylum Act 1999”. In paragraph 59, in the substituted paragraph 7 of Schedule 2 to the 1971 Act, for “United Kingdom” (each place), substitute “Bailiwick of Jersey”. In paragraph 62, amending paragraph 21 of Schedule 2 to the 1971 Act, (a) in the inserted sub-paragraph (2A), for “may be prescribed by regulations made by the Secretary of State” substitute “the Lieutenant Governor may direct”; (b) in the inserted sub-paragraph (2B), for “regulations” substitute “directions” and omit (2B)(b); (c) in the inserted sub-paragraph (2C), for “regulations” substitute “directions”; (d) for the inserted sub-paragraphs (2D) and (2E), substitute— “(2D) The power to give directions conferred by this paragraph includes a power to make different provision for different cases.”. In paragraph 64, (a) in the inserted paragraph 26(1A) of Schedule 2 to the 1971 Act, for “Secretary of State may by order prescribe” substitute “Lieutenant Governor may direct”; and (b) omit sub-paragraph (4). For paragraph 114, amending Schedule 2 to the Asylum and Immigration Act 1996, substitute— “(14) In Schedule 2, omit sub-paragraph (2) of paragraph 1.”. |
| Schedule 15 (Transitional Provisions and Savings), paragraph 1. | In sub-paragraphs (1) and (2) of paragraph 1, for “An order made” (both places), substitute “Directions given”. |
| Schedule 16 (Repeals) | The following entries only— (a) in the entry relating to the 1971 Act, the words— “In section 24, subsections (1)(aa) and (2). Section 25(3). In Schedule 2, in paragraph 21(4)(a) “under paragraph 2 above”, in paragraph 26(1) “and have not been given leave””; (b) the entry relating to the Immigration (Carriers' Liability) Act 1987(8); (c) the references to sections 8 and 9 in the entry relating to the Immigration Act 1988(9); (d) the references to sections 4, 7 and to paragraph 1(2) of Schedule 2 in the entry relating to the Asylum and Immigration Act 1996. |
(This note is not part of the Order)
This Order extends to Jersey, with modifications, provisions in Parts I (Immigration: General), II (Carriers' Liability) and VII (Power to arrest, search and fingerprint) of the Immigration and Asylum Act 1999, and related consequential amendments and repeals. It also varies the Immigration (Jersey) Order 1993 that consolidated the extension of previous legislation on immigration to Jersey.
1971 c. 77. The 1971 Act was extended to Jersey by the Immigration (Jersey) Order 1993 (S.I. 1993/1797).
S.I. 1993/1797.
Section 8 of the 1971 Act was amended by the British Nationality Act 1981, section 39(4) and (6) and Schedule 4, paragraphs 2 and 5 (c. 61), and by the Immigration Act 1988, section 4 (c. 14).
Section 25 was amended by the British Nationality Act 1981, section 39(6) and Schedule 4 paragraph 6, and by the Asylum and Immigration Act 1996, section 5 (c. 49).
Section 26 was amended by the British Nationality Act 1981, section 39(6) and Schedule 4 paragraph 3(1).
Section 3 was amended by the British Nationality Act 1981, section 39(3) and (6) and Schedule 4 paragraphs 2 and 4, the Immigration Act 1988 sections 3(1) and 10 and the Schedule paragraph 1, and by the Asylum and Immigration Act 1996, section 12(1) and Schedule 2 paragraph 1.