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Counter-Terrorism and Security Act 2015

Commentary on Sections

Chapter 2: Temporary exclusion from the United Kingdom
Section 2: Temporary exclusion orders

37.Subsection (1) provides for the creation of a “temporary exclusion order” (TEO), which requires the individual on whom it is imposed not to return to the United Kingdom unless their return is in accordance with a permit to return issued by the Secretary of State before the individual began the return, or the return is the result of the individual’s deportation to the United Kingdom.

38.Subsection (2) provides that the Secretary of State may impose a TEO only where five conditions have been met. Subsections (3) to (7) outline those conditions. The Secretary of State must reasonably suspect that the individual is, or has been, involved in terrorism-related activity outside the United Kingdom and must reasonably consider that it is necessary to impose a TEO for purposes connected with protecting the public in the UK from a risk of terrorism. While the TEO is in place, the Secretary of State must keep under review whether the second of these conditions is met.

39.Additionally, the Secretary of State must reasonably consider that the individual is outside the UK when the order is imposed and the individual must have the right of abode in the UK. Section 2(1) of the Immigration Act 1971 provides that British citizens and certain Commonwealth citizens have the right of abode in the UK.

40.The Secretary of State may impose a TEO only if the court has given prior permission or if he or she reasonably considers that the urgency of the case requires an order to be imposed without obtaining such permission.

Section 3: Temporary exclusion orders: prior permission of the court

41.This section makes provision for the role of the court in providing prior permission to the Secretary of State to impose a TEO. It details the function of the court, allows the court to consider the application even if the person is not aware of the proposal to impose a TEO on him or her, and requires the court to apply judicial review principles in determining it. It also introduces Schedule 2.

Schedule 2: Urgent temporary exclusion orders: reference to the court etc

42.This Schedule requires the Secretary of State to refer an urgent T EO to court after imposing it. The Schedule requires the court to apply judicial review principles and gives the court power to quash an urgent TEO.

Section 4: Temporary exclusion orders: supplementary provision

43.Subsections (1) and (2) provide for giving notice of a TEO to the person on whom it has been imposed. There is a duty on the Secretary of State to give notice; including an explanation of how the individual can apply for a permit to return (more detail on permits to return is given in section 5).

44.Subsection (3) outlines that an order only comes into force when notice of its imposition has been given and remains in force for a period of two years, unless it is revoked or otherwise brought to an end earlier.

45.Subsections (4) to (6) outline how revocation of an order will operate. It provides for the Secretary of State to revoke a TEO at any time and states notice of this must be given to the individual, at which point the order will cease to be in force.

46.Subsection (7) makes clear that a TEO remains valid even where an individual has returned to the UK. This is because the order may place some obligations on the individual once they have returned to the country (section 9 provides more detail on this).

47.Subsection (8) allows for a TEO to be imposed even where one has been imposed previously. This covers a situation where the TEO may have expired or been revoked, but the Secretary of State later considers that the relevant conditions are met.

48.Subsections (9) to (11) provide that any British passport held by the individual subject to a TEO is invalidated as soon as the order comes into force, and any passport issued while the TEO remains in force and the individual is outside the United Kingdom is invalid. These provisions only apply in respect of a “British passport” as defined in subsection (11).

Section 5: Permit to return

49.Subsections (1) to (3) specify that an individual subject to a TEO may be given a permit to return which gives them permission to return to the UK. The document may include conditions that the individual is required to comply with in order for the document to be valid.

50.Subsections (4) to (6) specify that a permit to return must state the time at which, or period of time during which, the individual is permitted to arrive on return to the United Kingdom. It must also state the manner in which the person is permitted to return, and the place where the individual is permitted to arrive.

51.Subsections (7) to (8) specify that the Secretary of State can only issue a permit to return in accordance with section 6 or 7 and that it is for the Secretary of State to decide the terms of a permit to return, subject to section 6(3).

Section 6: Issue of permit to return: application by individual

52.Subsections (1) to (4) make clear that there is a duty on the Secretary of State to issue a permit to return to the subject of a TEO within a reasonable period, if the subject applies for one. It also provides that the return time specified in the permit must be within a reasonable period after the application is made. The Secretary of State may refuse to issue a permit to return if the Secretary of State has required the individual to attend an interview and the individual has failed to do so. An application is only valid if it has been made following the right procedure.

53.Subsection (5) outlines the definitions of “application” and “relevant return time” in this section.

Section 7: Issue of permit to return: deportation or urgent situation

54.Subsection (1) provides that that the Secretary of State must issue a travel document if the individual is being deported by another country to the UK, whether or not a request has been made by the individual.

55.Subsection (2) provides that the Secretary of State may issue a permit to return to an individual if the Secretary of State considers that, because of the urgency of the situation, it is expedient to do so even though no application has been made for one and the Secretary of State does not consider that the individual is to be deported to the United Kingdom.

Section 8: Permit to return: supplementary provision

56.Subsection (1) allows for the Secretary of State to vary a permit to return.

57.Subsection (2) provides the conditions under which the Secretary of State may revoke a permit to return.

58.Subsection (3) provides that an application for a permit to return under section 6 does not prevent a subsequent application from being made.

59.Subsection (4) provides that the issuing of a permit to return does not prevent a subsequent permit to return from being issued.

Section 9: Obligations after return to the United Kingdom

60.Subsection (1) allows for the Secretary of State to impose obligations on an individual subject to a TEO when they have returned to the UK. The obligations which the Secretary of State may impose on the individual are outlined at subsection (2). These include obligations to report to a police station and attendance at appointments, under paragraph 10 or 10A of Schedule 1 to the Terrorism Prevention and Investigation Measures Act 2011 (that paragraph 10A is inserted by section 19 of this Act). Attendance at appointments may include de-radicalisation programmes amongst other meetings. The individual may also be required to notify the police of their place of residence and any change of address.

61.Subsection (4) provides that the Secretary of State may vary or revoke any notice given under this section and subsection (5) provides that variation or revocation comes into effect when notice is given to the individual.

62.Subsection (6) provides that the validity of a notice under this section is not affected by travel out of or into the UK and subsection (7) provides that the giving of notice under this section does not prevent any further notice being given to the individual.

Section 10: Offences

63.Subsection (1) provides that it is an offence for an individual subject to a TEO to return to the United Kingdom in contravention of the TEO, without a reasonable excuse.

64.Subsection (2) provides that it is irrelevant for the purposes of this offence whether or not the individual has a passport or similar other identity document.

65.Subsection (3) makes it an offence for an individual subject to a TEO not to comply without a reasonable excuse with obligations imposed by the Secretary of State under section 9.

66.Subsection (4) provides that deemed service of notice (where the relevant notice has not actually been given to an individual) does not prevent an individual from showing that lack of knowledge of the TEO, or of the obligation imposed under section 9, was a reasonable excuse for the purposes of this section.

67.Subsection (5) sets out the maximum penalties for conviction of an individual for the two new offences.

68.Definitions of the terms “relevant notice” and “restriction on return” are provided at subsection (7).

69.Subsection (8) amends subsection (1A) of section 2 of the UK Borders Act 2007 to replace “the individual is subject to a warrant for arrest” with “the individual (a) may be liable to detention by a constable under section 14 of the Criminal Procedure (Scotland) Act 1995 in respect of an offence under section 10(1) of the Counter-Terrorism and Security Act 2015 or (b) is subject to a warrant for arrest”. This means that designated immigration officers in Scotland will have the power to detain any person they think is liable to arrest for the offence of returning to the UK in breach of a TEO. Equivalent provision exists in England, Wales and Northern Ireland.

Section 11: Review of decisions relating to temporary exclusion orders

70.This section makes provision for an individual subject to a TEO to be able to apply to the court for a statutory review of the decision to impose a TEO, and any associated in-country measures, once the individual is back in the United Kingdom. It details which decisions the individual may apply to have reviewed, the principles the court must apply in reviewing the decisions, and the powers it has on review.

Section 12: Temporary exclusion orders: proceedings and appeals against convictions

71.This section introduces Schedule 3 and Schedule 4.

Schedule 3: Temporary exclusion orders: proceedings

72.This Schedule details the provisions that can be made by rules of court in relation to temporary exclusion order proceedings, and the provisions that must be made in relation to disclosure. Paragraphs 8 and 9 provide for the use of advisers appointed by the Lord Chancellor in any Temporary Exclusion Order proceedings or appeal proceedings. Paragraph 10 provides that a special advocate may be appointed to represent the interests of the party if the party and any legal representatives of the party are excluded from the proceedings.

Schedule 4: Temporary exclusion orders: appeals against convictions

73.This Schedule details the appeal proceedings available to an individual where a TEO or associated in-country measure under it is quashed or altered and the individual has already been convicted of an offence under section 10(1) or (3) in connection with the TEO or measure.

Section 13: Regulations: giving of notices, legislation relating to passports

74.Subsections (1) and (2) provide that the Secretary of State may, by regulations, make provision about the giving of notice under sections 4 and 9. Such regulations may make provision about cases in which notice is deemed to have been given.

75.Subsection (3) provides that the Secretary of State may make regulations providing for legislation relating to passports or other identity documents to apply (with or without modifications) to permits to return. Given the close parallels between passports and permits to return, as documents confirming the holder’s identity and confirming the holder’s right to return to the UK, it is appropriate that the Secretary of State has such a power, to enable consistency of treatment between them.

76.Subsections (4) to (5) provides that regulations made under this section are subject to the negative resolution procedure.

Section 14: Chapter 2: interpretation

77.Subsection (2) provides definitions for terms set out in Chapter 2 of Part 1.

78.Subsection (3) makes provision in respect of when an individual is subject to a TEO and when an individual is subject to obligations imposed under section 9.

79.Subsections (4) to (5) define “terrorism-related activity” for the terms of the imposition of a TEO and provide that an individual’s involvement in such activity can have occurred before or after the coming into force of section 2.

80.Subsections (6) and (7) make provision in respect of the terms “return to the United Kingdom” and “deportation”.

Section 15: Chapter 2: consequential amendments

81.This section makes amendments to the Senior Courts Act 1981, the Criminal Justice Act 1988 and the Regulation of Investigatory Powers Act 2000. These amendments are designed to ensure that the court’s role in relation to a temporary exclusion order can be effective.

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