The Immigration (Isle of Man) Order 2008

Article 19

PART 6 The Asylum and Immigration (Treatment of Claimants, etc.) Act 2004

“Offences

2    Entering Isle of Man without passport, &c

(1) A person commits an offence if at a leave or asylum interview he does not have with him an immigration document which—

(a) is in force, and

(b) satisfactorily establishes his identity and nationality or citizenship.

(2) A person commits an offence if at a leave or asylum interview he does not have with him, in respect of any dependent child with whom he claims to be travelling or living, an immigration document which—

(a) is in force, and

(b) satisfactorily establishes the child’s identity and nationality or citizenship.

(3) But a person does not commit an offence under subsection (1) or (2) if—

(a) the interview referred to in that subsection takes place after the person has entered the Isle of Man, and

(b) within the period of three days beginning with the date of the interview the person provides to an immigration officer or to the Governor a document of the kind referred to in that subsection.

(4) It is a defence for a person charged with an offence under subsection (1)—

(a) to prove that he is an EEA national,

(b) to prove that he is a member of the family of an EEA national and that he is exercising a right under the Community Treaties in respect of entry to or residence in the Isle of Man,

(c) to prove that he has a reasonable excuse for not being in possession of a document of the kind specified in subsection (1),

(d) to produce a false immigration document and to prove that he used that document as an immigration document for all purposes in connection with his journey to the Isle of Man, or

(e) to prove that he travelled to the Isle of Man without, at any stage since he set out on the journey, having possession of an immigration document.

(5) It is a defence for a person charged with an offence under subsection (2) in respect of a child—

(a) to prove that the child is an EEA national,

(b) to prove that the child is a member of the family of an EEA national and that the child is exercising a right under the Community Treaties in respect of entry to or residence in the Isle of Man,

(c) to prove that the person has a reasonable excuse for not being in possession of a document of the kind specified in subsection (2),

(d) to produce a false immigration document and to prove that it was used as an immigration document for all purposes in connection with the child’s journey to the Isle of Man, or

(e) to prove that he travelled to the Isle of Man with the child without, at any stage since he set out on the journey, having possession of an immigration document in respect of the child.

(6) Where the charge for an offence under subsection (1) or (2) relates to an interview which takes place after the defendant has entered the Isle of Man—

(a) subsections (4)(c) and (5)(c) shall not apply, but

(b) it is a defence for the defendant to prove that he has a reasonable excuse for not providing a document in accordance with subsection (3).

(7) For the purposes of subsections (4) to (6)—

(a) the fact that a document was deliberately destroyed or disposed of is not a reasonable excuse for not being in possession of it or for not providing it in accordance with subsection (3), unless it is shown that the destruction or disposal was—

(i) for a reasonable cause, or

(ii) beyond the control of the person charged with the offence, and

(b) in paragraph (a)(i) “reasonable cause” does not include the purpose of—

(i) delaying the handling or resolution of a claim or application or the taking of a decision,

(ii) increasing the chances of success of a claim or application, or

(iii) complying with instructions or advice given by a person who offers advice about, or facilitates, immigration into the Isle of Man, unless in the circumstances of the case it is unreasonable to expect non-compliance with the instructions or advice.

(8) A person shall be presumed for the purposes of this section not to have a document with him if he fails to produce it to an immigration officer on request.

(9) A person guilty of an offence under this section shall be liable—

(a) on conviction on information, to custody for a term not exceeding two years, to a fine or to both, or

(b) on summary conviction, to custody for a term not exceeding six months, to a fine not exceeding the statutory maximum or to both.

(10) If a constable or immigration officer reasonably suspects that a person has committed an offence under this section he may arrest the person without warrant.

(11) An offence under this section shall be treated as—

(a) a relevant offence for the purposes of sections 28B and 28D of the Immigration Act 1971 (search, entry and arrest), and

(b) an offence under Part 3 of that Act (criminal proceedings) for the purposes of sections 28(4), 28E, 28G and 28H (search after arrest, &c) of that Act.

(12) In this section—

“EEA national” means a national of a State which is a contracting party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 (as it has effect from time to time),

“immigration document” means—

(a)

a passport, and

(b)

a document which relates to a national of a State other than the United Kingdom and which is designed to serve the same purpose as a passport, and

“leave or asylum interview” means an interview with an immigration officer at which a person—

(a)

seeks leave to enter or remain in the Isle of Man, or

(b)

claims that to remove him from or require him to leave the Isle of Man would breach the United Kingdom’s obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 2001 (an Act of Tynwald) as being incompatible with his Convention rights.

(13) For the purposes of this section—

(a) a document which purports to be, or is designed to look like, an immigration document, is a false immigration document, and

(b) an immigration document is a false immigration document if and in so far as it is used—

(i) outside the period for which it is expressed to be valid,

(ii) contrary to provision for its use made by the person issuing it, or

(iii) by or in respect of a person other than the person to or for whom it was issued.

(14) Section 11 of the Immigration Act 1971 shall have effect for the purpose of the construction of a reference in this section to entering the Isle of Man.

4    Trafficking people for exploitation

(1) A person commits an offence if he arranges or facilitates the arrival in the Isle of Man of an individual (the “passenger”) and—

(a) he intends to exploit the passenger in the Isle of Man or elsewhere, or

(b) he believes that another person is likely to exploit the passenger in the Isle of Man or elsewhere.

(2) A person commits an offence if he arranges or facilitates travel within the Isle of Man by an individual (the “passenger”) in respect of whom he believes that an offence under subsection (1) may have been committed and—

(a) he intends to exploit the passenger in the Isle of Man or elsewhere, or

(b) he believes that another person is likely to exploit the passenger in the Isle of Man or elsewhere.

(3) A person commits an offence if he arranges or facilitates the departure from the Isle of Man of an individual (the “passenger”) and—

(a) he intends to exploit the passenger outside the Isle of Man, or

(b) he believes that another person is likely to exploit the passenger outside the Isle of Man.

(4) For the purposes of this section a person is exploited if (and only if)—

(a) he is the victim of behaviour that contravenes Article 4 of the Human Rights Convention (slavery and forced labour),

(b) he is encouraged, required or expected to do anything as a result of which he or another person would commit an offence under the Human Organ Transplants Act 1993 (an Act of Tynwald),

(c) he is subjected to force, threats or deception designed to induce him—

(i) to provide services of any kind,

(ii) to provide another person with benefits of any kind, or

(iii) to enable another person to acquire benefits of any kind, or

(d) he is requested or induced to undertake any activity, having been chosen as the subject of the request or inducement on the grounds that—

(i) he is mentally or physically ill or disabled, he is young or he has a family relationship with a person, and

(ii) a person without the illness, disability, youth or family relationship would be likely to refuse the request or resist the inducement.

(5) A person guilty of an offence under this section shall be liable—

(a) on conviction on information, to custody for a term not exceeding 14 years, to a fine or to both, or

(b) on summary conviction, to custody for a term not exceeding six months, to a fine not exceeding the statutory maximum or to both.

5    Section 4: supplemental

(1) Subsections (1) to (3) of section 4 apply to anything done—

(a) in the Isle of Man,

(b) outside the Isle of Man by an individual to whom subsection (2) below applies, or

(c) outside the Isle of Man by a body incorporated under the law of the Isle of Man.

(2) This subsection applies to—

(a) a British citizen,

(b) a British overseas territories citizen,

(c) a British National (Overseas),

(d) a British Overseas citizen,

(e) a person who is a British subject under the British Nationality Act 1981, and

(f) a British protected person within the meaning of that Act.

(3) In section 4(4)(a) “the Human Rights Convention” means the Convention for the Protection of Human Rights and Fundamental Freedoms agreed by the Council of Europe at Rome on 4th November 1950.

(4) Sections 25C and 25D of the Immigration Act 1971 (forfeiture or detention of vehicle, &c) shall apply in relation to an offence under section 4 of this Act as they apply in relation to an offence under section 25 of that Act.

Enforcement powers

14    Immigration officer: power of arrest

(1) Where an immigration officer in the course of exercising a function under the Immigration Acts forms a reasonable suspicion that a person has committed or attempted to commit an offence listed in subsection (2), he may arrest the person without warrant.

(2) Those offences are—

(a) the offence of conspiracy under section 330 of the Criminal Code 1872 (an Act of Tynwald) (in relation to conspiracy to defraud),

(c) an offence under section 70 of the Criminal Code 1872 (an Act of Tynwald) (bigamy),

(d) an offence under section 3 or 4 of the Perjury Act 1952 (an Act of Tynwald) (false statements),

(e) an offence under section 7 of that Act (aiding, abetting &c.) if it relates to an offence under section 3 or 4 of that Act,

(g) an offence under any of the following provisions of the Theft Act 1981 (an Act of Tynwald)—

(i) section 1 (theft),

(ii) section 14 (obtaining property by deception),

(iii) section 15 (obtaining pecuniary advantage by deception),

(iv) section 16 (obtaining services by deception),

(v) section 19 (false accounting),

(vi) section 24 (handling stolen goods),

(m) an offence under any of the following provisions of the Forgery Act 1952 (an Act of Tynwald)—

(i) section 3 (forgery of certain documents with intent to defraud or deceive),

(ii) section 6 (uttering),

(p) an offence under section 4 of this Act.

(3) The following provisions of the Immigration Act 1971 shall have effect for the purpose of making, or in connection with, an arrest under this section as they have effect for the purpose of making, or in connection with, arrests for offences under that Act—

(a) section 28C (entry and search before arrest),

(b) sections 28E and 28F (entry and search after arrest),

(c) sections 28G and 28H (search of arrested person), and

(d) section 28I (seized material).

17    Retention of documents

Where a document comes into the possession of the Governor or an immigration officer in the course of the exercise of an immigration function, the Governor or an immigration officer may retain the document while he suspects that—

(a) a person to whom the document relates may be liable to removal from the Isle of Man in accordance with a provision of the Immigration Acts, and

(b) retention of the document may facilitate the removal.

Procedure for marriage

19    Procedure for marriage

(1) This section applies to a marriage—

(a) which is to be solemnised on the authority of certificates issued by a registrar under Part 3 of the Marriage Act 1984 (an Act of Tynwald), and

(b) a party to which is subject to immigration control.

(2) In relation to a marriage to which this section applies, the notices under section 20 of the Marriage Act 1984 (an Act of Tynwald) shall be delivered to the registrar or registrars in person by the two parties to the marriage.

(3) The registrar shall not enter in the marriage notice book notice of a marriage to which this section applies unless satisfied, by the provision of specified evidence, that the party subject to immigration control—

(a) has an entry clearance granted expressly for the purpose of enabling him to marry in the Isle of Man,

(b) has the written permission of the Governor to marry in the Isle of Man, or

(c) falls within a class specified for the purpose of this paragraph by regulations made by the Governor.

(4) For the purposes of this section—

(a) a person is subject to immigration control if—

(i) he is not an EEA national, and

(ii) under the Immigration Act 1971 he requires leave to enter or remain in the Isle of Man (whether or not leave has been given),

(b) “EEA national” means a national of a State which is a contracting party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 (as it has effect from time to time),

(c) “entry clearance” has the meaning given by section 33(1) of the Immigration Act 1971, and

(d) “specified evidence” means such evidence as may be specified in guidance issued by the Chief Registrar.

20    Procedure for marriage: supplemental

(1) The Marriage Act 1984 (an Act of Tynwald) shall have effect in relation to a marriage to which section 19 applies—

(a) subject to that section, and

(b) with any necessary consequential modification.

(2) In particular section 21(1)(b) of that Act (declaration: residence) shall have effect as if it required a declaration that—

(i) the notice of marriage is given in compliance with section 19(2) above, and

(ii) the party subject to immigration control satisfies section 19(3)(a), (b) or (c).

(3) Regulations of the Governor under section 19(3)(c) may make transitional provision.

(5) An expression used in section 19 or this section and in Part 3 of the Marriage Act 1984 (an Act of Tynwald) has the same meaning in section 19 or this section as in that Part.

25    Application for permission under section 19(3)(b)

(1) The Governor may make regulations which—

(a) require a person seeking permission under section 19(3)(b) to make an application in writing, or

(b) specify the information to be contained in, or provided with, the application, and how and to whom the fee in respect of that application is to be paid.

(2) In such regulations, the reference to the fee to be paid shall be taken to be a reference to the fee to be paid in connection with such an application payable by virtue of an order made under section 51(1) of the Immigration, Asylum and Nationality Act 2006.

Removal and detention

35    Deportation or removal: co-operation

(1) The Governor may require a person to take specified action if the Governor thinks that—

(a) the action will or may enable a travel document to be obtained by or for the person, and

(b) possession of the travel document will facilitate the person’s deportation or removal from the Isle of Man.

(2) In particular, the Governor may require a person to—

(a) provide information or documents to the Governor or to any other person;

(b) obtain information or documents;

(c) provide fingerprints, submit to the taking of a photograph or provide information, or submit to a process for the recording of information, about external physical characteristics (including, in particular, features of the iris or any other part of the eye);

(d) make, or consent to or co-operate with the making of, an application to a person acting for the government of a State other than the United Kingdom;

(e) co-operate with a process designed to enable determination of an application;

(f) complete a form accurately and completely;

(g) attend an interview and answer questions accurately and completely;

(h) make an appointment.

(3) A person commits an offence if he fails without reasonable excuse to comply with a requirement of the Governor under subsection (1).

(4) A person guilty of an offence under subsection (3) shall be liable—

(a) on conviction on information, to custody for a term not exceeding two years, to a fine or to both, or

(b) on summary conviction, to custody for a term not exceeding six months, to a fine not exceeding the statutory maximum or to both.

(5) If a constable or immigration officer reasonably suspects that a person has committed an offence under subsection (3) he may arrest the person without warrant.

(6) An offence under subsection (3) shall be treated as—

(a) a relevant offence for the purposes of sections 28B and 28D of the Immigration Act 1971 (search, entry and arrest), and

(b) an offence under Part 3 of that Act (criminal proceedings) for the purposes of sections 28(4), 28E, 28G and 28H (search after arrest, &c.) of that Act.

(7) In subsection (1)—

“travel document” means a passport or other document which is issued by or for Her Majesty’s Government or the government of another State and which enables or facilitates travel from the Isle of Man to another State, and

“removal from the Isle of Man” means removal under—

(a)

Schedule 2 to the Immigration Act 1971 (control on entry) (including a provision of that Schedule as applied by another provision of the Immigration Acts), or

(b)

section 10 of the Immigration and Asylum Act 1999 (removal of person unlawfully in Isle of Man).

36    Electronic monitoring

(1) In this section—

(a) “residence restriction” means a restriction as to residence imposed under—

(i) paragraph 21 of Schedule 2 to the Immigration Act 1971 (control on entry) (including that paragraph as applied by another provision of the Immigration Acts), or

(ii) Schedule 3 to that Act (deportation),

(b) “reporting restriction” means a requirement to report to a specified person imposed under any of those provisions,

(c) “employment restriction” means a restriction as to employment or occupation imposed under any of those provisions, and

(d) “immigration bail” means—

(i) release under a provision of the Immigration Acts on entry into a recognizance,

(ii) bail granted in accordance with a provision of the Immigration Acts by a court, a justice of the peace, the Governor or an immigration officer (but not by a police officer).

(2) Where a residence restriction is imposed on an adult—

(a) he may be required to co-operate with electronic monitoring, and

(b) failure to comply with a requirement under paragraph (a) shall be treated for all purposes of the Immigration Acts as failure to observe the residence restriction.

(3) Where a reporting restriction could be imposed on an adult—

(a) he may instead be required to co-operate with electronic monitoring, and

(b) the requirement shall be treated for all purposes of the Immigration Acts as a reporting restriction.

(4) Immigration bail may be granted to an adult subject to a requirement that he co-operate with electronic monitoring; and the requirement may (but need not) be imposed as a condition of a recognizance.

(5) In this section a reference to requiring an adult to co-operate with electronic monitoring is a reference to requiring him to co-operate with such arrangements as the person imposing the requirement may specify for detecting and recording by electronic means the location of the adult, or his presence in or absence from a location—

(a) at specified times,

(b) during specified periods of time, or

(c) throughout the currency of the arrangements.

(6) In particular, arrangements for the electronic monitoring of an adult—

(a) may require him to wear a device;

(b) may require him to make specified use of a device;

(c) may prohibit him from causing or permitting damage of or interference with a device;

(d) may prohibit him from taking or permitting action that would or might prevent the effective operation of a device;

(e) may require him to communicate in a specified manner and at specified times or during specified periods of time;

(f) may involve the performance of functions by persons other than the person imposing the requirement to co-operate with electronic monitoring (and those functions may relate to any aspect or condition of a residence restriction, of a reporting restriction, of an employment restriction, of a requirement under this section or of immigration bail).

(7) In this section “adult” means an individual who is at least 18 years old.

(8) The Governor—

(a) may make rules about arrangements for electronic monitoring for the purposes of this section, and

(b) when he thinks that satisfactory arrangements for electronic monitoring are available in respect of an area, shall notify persons likely to be in a position to exercise power under this section in respect of the area.

(9) Rules under subsection (8)(a) may, in particular, require that arrangements for electronic monitoring impose on a person of a specified description responsibility for specified aspects of the operation of the arrangements.

(10) A requirement to co-operate with electronic monitoring—

(a) shall comply with rules under subsection (8)(a), and

(b) may not be imposed in respect of an adult who is or is expected to be in an area unless the person imposing the requirement has received a notification from the Governor under subsection (8)(b) in respect of that area.

(11) Rules under subsection (8)(a)—

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

(b) may make provision generally or only in relation to specified cases, circumstances or areas.

Fees

42    Amount of fees

(1) In prescribing a fee under section 51 of the Immigration, Asylum and Nationality Act 2006 (fees) in connection with a matter specified in subsection (2) the Governor may prescribe an amount which is intended to—

(a) exceed the administrative costs of determining the application or undertaking the process, and

(b) reflect benefits that the Governor thinks are likely to accrue to the person who makes the application, to whom the application relates or by or for whom the process is undertaken, if the application is successful or the process is completed.

(2) Those matters are—

(a) anything done under, by virtue of or in connection with a provision of the British Nationality Act 1981 or of the former nationality Acts (within the meaning given by section 50(1) of that Act),

(b) an application for leave to remain in the Isle of Man,

(c) an application for the variation of leave to enter, or remain in, the Isle of Man,

(d) section 10 of the Nationality, Immigration and Asylum Act 2002 (right of abode: certificate of entitlement),

(e) a work permit, and

(f) any other document which relates to employment and is issued for a purpose of immigration rules or in connection with leave to enter or remain in the Isle of Man.

(4) Where an instrument prescribes a fee in reliance on this section it may include provision for the refund, where an application is unsuccessful or a process is not completed, of that part of the fee which is intended to reflect the matters specified in subsection (1)(b).

(5) Provision included by virtue of subsection (4)—

(a) may determine, or provide for the determination of, the amount to be refunded;

(b) may confer a discretion on the Governor or another person (whether in relation to determining the amount of a refund or in relation to determining whether a refund should be made).

(6) An instrument may not be made in reliance on this section unless the Governor has consulted with such persons as appear to him to be appropriate.

(6A) In relation to an application for or relating to a work permit, the references in this section to the Governor shall be construed as references to the Department of Trade and Industry.

General

45    Interpretation: immigration officer

In this Act “immigration officer” means a person appointed by the Governor as an immigration officer under paragraph 1 of Schedule 2 to the Immigration Act 1971.

50    Short title

This Act may be cited as the Asylum and Immigration (Treatment of Claimants, etc) Act 2004.”