The UK Border Agency (Complaints and Misconduct) Regulations 2009

Interpretation

2.—(1) In these Regulations—

“2002 Act” means the Police Reform Act 2002(1);

“2008 Regulations” means the Independent Police Complaints Commission (Immigration and Asylum Enforcement Functions) Regulations 2008(2);

“2009 Act” means the Borders, Citizenship and Immigration Act 2009;

“chief officer” has the meaning given in section 29 (interpretation of Part 2) of the 2002 Act;

“complainant” shall be construed in accordance with paragraph (4);

“complaint” has the meaning given by regulation 8 (complaints, matters and persons to which these Regulations apply);

“conduct” includes acts, omissions and statements (whether actual, alleged or inferred);

“conduct matter” has the meaning given by regulation 8;

“customs revenue official” means a person designated as a customs revenue official under section 11 (designation of customs revenue officials) of the 2009 Act(3);

“death or serious injury matter” means a “DSI matter” and has the meaning given by regulation 8;

“Director of Border Revenue” has the meaning given by section 6 (the Director of Border Revenue) of the 2009 Act;

“disciplinary proceedings” means any proceedings or management process during which the conduct of a relevant officer, relevant official of the Secretary of State or official exercising customs revenue functions is considered in order to determine whether a sanction or punitive measure should be imposed against that person in relation to that conduct;

“document” means anything in which information of any description is recorded;

“immigration decision” has the meaning given in section 82(2) (right of appeal: general) of the Nationality, Immigration and Asylum Act 2002(4);

“IPCC” means the Independent Police Complaints Commission and has the meaning given by section 9(1) (the Independent Police Complaints Commission) of the 2002 Act;

“official exercising customs revenue functions” means a customs revenue official or an official of the Secretary of State otherwise exercising customs revenue functions within the meaning of section 7 (customs revenue functions of the Director) of the 2009 Act;

“the person complained against”, in relation to a complaint, means the person whose conduct is the subject-matter of the complaint;

“the person investigating”, in relation to a complaint, recordable conduct matter or DSI matter, means the person appointed or designated to investigate that complaint or matter or part of that complaint or matter;

“recordable conduct matter” means—

(a)

a conduct matter that is required to be recorded by the relevant appropriate authority under regulation 17 (conduct matters arising in civil proceedings) or 18 (recording etc. of conduct matters in other cases), or has been so recorded; or

(b)

any matter brought to the attention of the relevant appropriate authority under regulation 13 (initial handling and recording of complaints);

“relevant appropriate authority”—

(a)

in relation to any complaint, conduct matter, DSI matter or investigation under Part 5 of these Regulations relating to the conduct of

(i)

a relevant officer; or

(ii)

a relevant official of the Secretary of State

means the Secretary of State; and

(b)

in relation to any complaint, conduct matter, DSI matter or investigation under Part 5 of these Regulations relating to the conduct of an official exercising customs revenue functions means the Director of Border Revenue.

“relevant officer” means an immigration officer exercising specified enforcement functions;

“relevant official of the Secretary of State” means—

(i)

an official of the Secretary of State exercising specified enforcement functions in relation to immigration or asylum; or

(ii)

an official of the Secretary of State exercising general customs functions within the meaning of Part 1 of the 2009 Act.

“serious injury” means a fracture, a deep cut, a deep laceration or an injury causing damage to an internal organ or the impairment of any bodily function, or as defined in IPCC guidance;

“specified enforcement functions” means—

(a)

powers of entry;

(b)

powers to search persons and property;

(c)

powers to seize or detain property;

(d)

powers to arrest persons;

(e)

powers to detain persons;

(f)

powers to examine persons or otherwise obtain information (including powers to take fingerprints or to acquire other personal data); and

(g)

powers in connection with the removal of persons from the United Kingdom.

The following shall not be regarded as an enforcement function—

(i) the making of an immigration decision;

(ii) the making of any decision to grant or refuse asylum; or

(iii) the giving of any direction to remove persons from the United Kingdom;

References to “specified enforcement functions” include their exercise in connection with any authorisation granted under Part 2 (surveillance and covert human intelligence sources) of the Regulation of Investigatory Powers Act 2000(5); and

“UKBA” means the UK Border Agency.

(2) In these Regulations “the relevant officer”, “the relevant official of the Secretary of State” and “official exercising customs revenue functions”, in relation to a DSI matter, means the relevant officer, relevant official of the Secretary of State and official exercising customs revenue functions:

(a) who arrested the person who has died or suffered serious injury,

(b) in whose custody that person was at the time of the death or serious injury, or

(c) with whom that person had the contact in question;

and where there is more than one such officer it means, subject to paragraph (3), the one who so dealt with that person last before the death or serious injury occurred.

(3) Where it cannot be determined which of two or more officers dealt with a person last before a death or serious injury occurred, the relevant officer, relevant official of the Secretary of State, or official exercising customs revenue functions is the most senior of them.

(4) In these Regulations, references to “the complainant” in relation to anything which is or purports to be a complaint, are references to a person referred to in regulation 8(1), except in relation to complaints made by a person referred to in regulation 8(1)(d) where the complainant will be the person on whose behalf the complaint or purported complaint was made.

(5) For the purposes of these Regulations, a person is adversely affected if that person suffers any form of loss or damage, distress or inconvenience, if that person is put in danger or if that person is otherwise unduly put at risk of being adversely affected.

(6) References in these Regulations to the investigation of any complaint or matter by the relevant appropriate authority on its own behalf, under the supervision of the IPCC, under the management of the IPCC or by the IPCC itself shall be construed as references to its investigation in accordance with regulations 37 (investigations by the relevant appropriate authority on its own behalf), 39 (investigations supervised by the IPCC), 40 (investigations by a police force under the management or under the supervision of the IPCC), 41 (investigations managed by the IPCC) or, as the case may be, 42 (investigations by the IPCC itself).

(1)

2002 c. 30. The 2002 Act has been amended by a number of enactments.

(2)

S.I. 2008/212.

(3)

2009 (c. 11).

(4)

2002 c 41. Section 82(2) has been amended by sections 26(2) and 31 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (c.19); sections 2, 11(6), 47(6), 57(2) and 61 of, and Schedule 3 to, the Immigration, Asylum and Nationality Act 2006 (c.13); and section 35(1) and (3) of the UK Borders Act 2007 (c. 30).

(5)

2000 c.23.