19.Section 2 creates two new criminal offences. If a person is unable to produce an immigration document at a leave or asylum interview in respect of either himself or a child with whom he claims to be living or travelling then he will commit an offence. A person does not commit the offence if the interview takes place after the person has entered the United Kingdom and within the period of three days beginning with the date of that interview the person provides an immigration document to an immigration officer or to the Secretary of State
20.There are various defences to the charges. In respect of a person’s failure to produce his own document it will be a defence for the him to prove that: (a) he is an EEA national, (b) he is a member of the family of an EEA national and he is exercising a right under the Community Treaties in respect of entry to or residence in the United Kingdom, (c) he has a reasonable excuse for not being in possession of an immigration document, or (d) he travelled to the United Kingdom without, at any stage since he set out on that journey, having possession of an immigration document. It is also a defence for a person 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 United Kingdom.
21.In respect of a person’s failure to produce a document for a child with whom he claims to be living or travelling it will be a defence for him to prove that: (a) the child is an EEA national, (b) the child is a member of the family of an EEA national and that he is exercising a right under Community Treaties in respect of entry to or residence in the United Kingdom, (c) the person has a reasonable excuse for not being in possession of an immigration document in respect of the child, or (d) that he travelled to the United Kingdom 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. It is also a defence for a person 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 United Kingdom.
22.The burden of proving the defence on the balance of probabilities rests with the defendant.
23.A person will not be able to rely on the deliberate destruction or disposal of a document as their excuse for not being in possession of it unless it was done for a reasonable cause or was beyond his control. It will not be reasonable cause, however, if the document was destroyed or disposed of with a view to delaying a claim or increasing its chances of success or on the instructions or advice of a facilitator – unless it would have been unreasonable to expect non-compliance.
24.An immigration officer or a police constable who has a reasonable suspicion that an offence under the section has been committed may arrest the person without a warrant. Immigration officers and police constables also have various other powers of search and entry common to other immigration-type offences.
25.The offences may be tried summarily or on indictment. On summary conviction the maximum penalty is six months imprisonment, a fine up to the statutory maximum or both. On conviction on indictment the maximum penalty is two years imprisonment, a fine or both. When section 154 of the Criminal Justice Act 2003 is commenced the sentence that may be passed on summary conviction will increase to twelve months in England and Wales. It is expected that at the same time a similar amendment will be made in respect of Scotland and Northern Ireland.
