Nationality And Borders Act 2022

Part 6: Miscellaneous

Section 70: Visa penalty provision: general

661. Overview: This section sets out the general provisions on the application of visa penalties where the Secretary of State has specified a country under section 71 or 72. A country may be specified where it: presents a risk to international peace and security, or its actions lead or are likely to lead to armed conflict or a breach of humanitarian law; or is not cooperating on the return of its nationals who do not have a legal right to be in the UK.
662. This section creates a power to impose the following types of visa penalty in relation to applications for entry clearance:
     • Requiring that visas are not granted before the end of a specific period (thereby slowing down the visa application process for relevant applicants);
     • Suspending the power to grant entry clearance to applicants;
     • Requiring the application to be treated as invalid for the purposes of the immigration rules;
     • Requiring the applicant to pay a surcharge of £190 in connection with the making of a visa application (which is separate from, and in addition to, existing visa fees and other amounts payable pursuant to the application).

663. This section provides that the powers to impose visa penalties on countries can be exercised under the immigration rules.
664. Background: The Government has a number of levers at its disposal to respond to certain actions of foreign governments by applying pressure which may disadvantage that state’s citizens through our visa system. This measure provides for increased levers at the punitive end of the spectrum available either in relation to a country specified under section 71 (countries which are taking certain prescribed hostile actions) or under section 72 (countries which do not cooperate on the matter of returning their nationals who have no right to be in the UK).
665. The four types of penalty have been designed to create a nuanced and flexible tool which provides an escalatory ladder to move up or down according to the specific situation.
666. Exercising the power through the immigration rules will allow the Government sufficient flexibility to impose and revoke penalties in response to changes in specific situations.
667. This section creates a new power to make visa penalty provisions as the Secretary of State considers appropriate against specific countries. This section does not amend or repeal existing legislation.
668. Subsection 1 allows visa penalty provisions to be made under the immigration rules in relation to a country specified under section 71 (a country which, in the opinion of the Secretary of State, is taking certain prescribed hostile actions) or section 72 (countries which do not cooperate on the matter of returning their nationals who have no right to be in the UK).
669. Subsection 2 sets out types of visa penalty provision that may be made in relation to an application for entry clearance made by a person as a national or citizen of a country specified under section 71 or section 72. They are:
     • Requiring that entry clearance must not be granted before the end of a specified period;
     • Suspending the power to grant entry clearance pursuant to such an application;
     • Requiring an application to be treated as invalid for the purposes of the immigration rules;
     • Requiring the applicant to pay a surcharge of £190 in connection with the making of such an application, in addition to any fee or other cost (such as the immigration health surcharge) that is payable.

670. Subsection 3 allows the Secretary of State to vary the amount payable pursuant to subsection (2)(d).
671. Subsection 4 requires the Secretary of State to give the government of any country on which visa penalties may be imposed reasonable notice of the proposal to do so. The period that can be considered reasonable notice will vary depending upon the specific context in which penalties are applied.
672. Subsection 5 requires that the immigration rules set out that visa penalty provision does not apply in relation to any application made before the day on which the provision comes into force.
673. Subsection 6 sets out how the powers to make immigration rules in relation to visa penalty provisions may be used, including to provide for exceptions or exemptions to the application of visa penalties.
674. Subsection 7 sets out that the amount payable under subsection (2)(d) may be increased by statutory instrument subject to the affirmative procedure and decreased by statutory instrument subject to the negative resolution procedure.
675. Subsection 8 sets out that income generated by virtue of subsection (2)(d) must be paid into the Consolidated Fund.
676. Subsection 9 sets out definitions of the terms "country", "entry clearance", "immigration rules" and "specified" used in this section.

Section 71: Visa penalties for countries posing risk to international peace and security etc.

677. Overview: The visa penalties outlined in section 70 may be imposed on a country where, in the opinion of the Secretary of State, the government of the country has taken action that present a risk to international peace and security, or whose actions lead or are likely to lead to armed conflict or a breach of humanitarian law.
678. In determining whether to apply visa penalties, the Secretary of State must take into account:
     • The extent of the action taken;
     • The likelihood of further action being taken;
     • The reasons for the action being taken; and
     • Any other matters the Secretary of State considers appropriate.

679. Background: Disadvantaging a state’s citizens through our visa system is intended to generate domestic dissatisfaction with that state’s actions and result in pressure to change its behaviour. These measures could be in isolation or form part of a wider package of measures by the UK Government to influence the behaviour of a foreign government.
680. This section enables the Secretary of State to specify a country for the purpose of applying visa penalties under section 70. This section does not amend or repeal existing legislation.
681. Subsection 1 allows a country to be specified under this section if, in the opinion of the Secretary of State, the government of that country has taken action that gives, or is likely to give, rise to a threat to international peace and security; results, or is likely to result, in armed conflict; gives, or is likely to give, rise to a breach of international humanitarian law.
682. Subsection 2 sets out the factors the Secretary of State must take into account when determining whether to specify a country under this section.
683. Subsection 3 sets out definitions of the terms "action", and cross-refers to the definitions of "country" and "specified" in section 70.

Section 72: Removals from the UK: visa penalties for uncooperative countries

684. Overview: The visa penalties outlined in section 70 may be imposed on a country which, in the opinion of the Secretary of State, does not cooperate with the UK in relation to the return of its nationals who not have a legal right to be in the UK. The section sets out that the Secretary of State must take account of the following criteria when forming an opinion on whether a country is cooperating in relation to the return of its nationals:
     • Any arrangements (whether formal or informal) entered into by the government of the relevant country with the UK with a view to facilitating returns;
     • The extent to which the government of the country is promptly taking steps to facilitate returns;
     • Such other matters as the Secretary of State considers appropriate.

685. In determining whether to apply visa penalties, the Secretary of State must take into account:
     • The length of time for which the country has been uncooperative;
     • The extent of the lack of cooperation (such as severity of the non-cooperation, proportion of nationals or citizens of that country that the Secretary of State has been unable to return);
     • The reasons for the lack of cooperation; and
     • Any other matters the Secretary of State considers appropriate.

686. Background: Where individuals do not have a legal right to be in the UK, the Home Office may seek to remove them, usually to their country of nationality. The UK expects cooperation by a country in receiving back its nationals (for example, by assisting with issuing travel documents if required and giving permission for flights to land) where a person has no right to be in the UK. The majority of countries cooperate with the UK on the matter of returns ; however, a small number of countries do not cooperate.
687. This section enables the Secretary of State to specify a country for the purpose of applying visa penalties under section 70. This section does not amend or repeal existing legislation.
688. Subsection 1 allows a country to be specified under this section if, in the opinion of the Secretary of State, the government of that country is not cooperating with the UK in relation to the return of its nationals or citizens who are in the UK with no legal right to be and, as a result of that lack of cooperation, there are nationals or citizens of the country that the Secretary of State has been unable to return, whether or not others have been returned.
689. Subsection 2 sets out the factors the Secretary of State must take into account when forming an opinion as to whether a country is cooperating with returns.
690. Subsection 3 sets out the factors the Secretary of State must take into account when determining whether to specify a country for visa penalties under this section.
691. Subsection 4 cross-refers to the definitions of the terms "country" and "specified" in section 70, and sets out definitions for "facilitating returns", used in this section.

Section 73: Visa penalties under section 71: review and revocation

692. Overview: This section creates a duty to review visa penalty provisions made pursuant to section 71, and a duty to revoke visa penalty provisions as soon as practicable if the Secretary of State concludes penalties are no longer necessary or expedient in connection with the promotion of international peace and security, the resolution or prevention of armed conflict, or the promotion of compliance with international humanitarian law.
693. Background: For policy background, see explanatory notes for section 71.
694. This section creates a duty on the Secretary of State to review and, if necessary, revoke any visa penalty provisions. This section does not amend or repeal existing legislation.
695. Subsection 1 establishes that this provision applies where any visa penalty provision is in force in relation to a specified country pursuant to section 71.
696. Subsection 2 requires the Secretary of State to review the actions of the country in question and, in light of that review, whether it is appropriate to amend the visa penalty provision, before the end of a set period.
697. Subsection 3 requires that visa penalties must be revoked as soon as practicable if the Secretary of State concludes penalties are no longer necessary or expedient in connection with the promotion of international peace and security, the resolution or prevention of armed conflict, or the promotion of compliance with international humanitarian law.
698. Subsection 4 sets the period relevant for this section at 2 months beginning with the date on which the visa penalty provision came into force and each subsequent period of 2 months.
699. Subsection 5 cross-refers to the definition of the term "visa penalty provision" in section 70.

Section 74: Visa penalties under section 72: review and revocation

700. Overview: This section creates a duty to review visa penalty provisions made pursuant to section 72, and a duty to revoke visa penalty provisions if the relevant country is no longer considered uncooperative on the matter of returning its nationals who do not have a legal right to be in the UK.
701. Background: For policy background, see explanatory notes for section 72.
702. This section creates a new duty to review and, if necessary, revoke visa penalty provisions. This section does not amend or repeal existing legislation.
703. Subsection 1 establishes that this provision applies where any visa penalty provision is in force in relation to a specified uncooperative country pursuant to section 72.
704. Subsection 2 requires the Secretary of State to review whether the country in question should continue to be specified as uncooperative and, in light of that review, whether it is appropriate to amend the visa penalty provision, before the end of a set period.
705. Subsection 3 requires that visa penalties must be revoked as soon as practicable if the Secretary of State is no longer of the opinion that the specified country is uncooperative .
706. Subsection 4 sets the period relevant for this section at 2 months beginning with the date on which the visa penalty provision came into force and each subsequent period of 2 months.
707. Subsection 5 cross-refers to the definition of "visa penalty provision" in section 70, and sets out the definition of the term "cooperation with returns" used in this section.

Section 75: Electronic Travel Authorisations (ETAs)

708. Overview: This section enables the Secretary of State to require individuals who do not need a visa, entry clearance or other specified immigration status to obtain permission to travel, in the form of an Electronic Travel Authorisation, in advance of their journey to the UK. This section will also build on existing legislation to incentivise carriers to check passengers are in possession of an Electronic Travel Authorisation, where so required, or risk a civil penalty.
709. Background: The UK Government is committed to strengthening the security of the UK border by ensuring that everyone wishing to travel to the UK (except British and Irish citizens) has permission to do so in advance of travel. This section will provide for the creation of an Electronic Travel Authorisation scheme to close the current gap in advance permissions and enhance the Government’s ability to screen people in advance of arrival and prevent the travel of those who pose a threat to the UK.
710. The type of permission a person has will depend on their individual circumstances. For those coming or returning to the UK, having been granted leave to enter or remain, their permission to travel to the UK will be their immigration status as evidenced by an entry clearance, biometric residence document or other physical document or digital status. These individuals will not be expected to obtain an Electronic Travel Authorisation.
711. The requirement to obtain an Electronic Travel Authorisation will also not apply to British and Irish citizens, who do not require leave to enter or remain in the UK. Their permission to travel will be their nationality, demonstrated by their passports
712. At present, non-visa nationals (including EEA citizens) coming to the UK for up to six months as visitors (and in limited other categories) can travel to the UK solely on the basis of their nationality, evidenced by their passport or other travel document. This information is sent to the Government by the majority of carriers as Advance Passenger Information shortly before the individual embarks on their journey. This means that UK border control and law enforcement authorities have less information and time to assess the risk posed by most non-visa nationals in advance of their arrival in the UK.
713. This section will provide for the creation of an Electronic Travel Authorisation scheme, requiring individuals who do not need a visa, entry clearance or other specified immigration status to obtain a valid Electronic Travel Authorisation before travelling to the UK. The intention is to close the current gap in advance permissions and enhance the Government’s ability to screen arrivals and prevent the travel of those who pose a threat to the UK. There will be no right of appeal against a decision to refuse an Electronic Travel Authorisation. Those who are considered unsuitable for an Electronic Travel Authorisation may apply for a visit visa if they still wish to travel to the UK.
714. To protect the integrity and security of the Common Travel Area, this section also provides for the Secretary of State to make regulations to recognise an Electronic Travel Authorisation issued by a Crown Dependency and allows the Secretary of State to administer the Electronic Travel Authorisation scheme on behalf of a Crown Dependency, if requested to do so. As now, those arriving in the UK via the Common Travel Area must continue to enter in line with the UK’s immigration framework including the Electronic Travel Authorisation (ETA) requirement.
715. Subsection (2) inserts a new section 11C and 11D into Part 1 of the Immigration Act 1971,
716. Subsection (3) makes consequential amendments to section 24A of the Immigration Act 1971.
717. Subsection (4) makes consequential amendments to section 33 of the Immigration Act 1971.
718. Subsection (5) makes consequential amendments to section 82 of the Immigration and Asylum Act 1999.
719. Subsection (6) makes consequential amendments to section 126 of the Nationality, Immigration and Asylum Act 2002.

Section 76: Liability of Carriers

720. Overview: This section builds on the existing carriers liability scheme by incentivising carriers to check that a traveller holds an ETA or another form of permission, such as a visa or an immigration status in digital form, prior to boarding or risk a civil penalty.
721. Background: At present, carriers are incentivised to check for the presence of a valid "immigration document" which satisfactorily establishes identity and nationality or citizenship, and, if the person requires a visa, a visa of the required kind. To enforce the ETA scheme and the wider requirement that everyone (except British and Irish citizens) has permission to travel to the UK, carriers will need to check and confirm an individual’s permission to travel prior to carriage. This section incentivises carriers to check that all passengers have the appropriate permission, including to check with the Home Office where that permission may only be held in digital form, or risk a penalty.
722. The section also provides a statutory excuse against the imposition of a penalty, to cater for circumstances where it has not been possible for the carrier to check for the presence of an ETA or another form of permission through no fault of their own.
723. Section 76 amends section 40 of the Immigration and Asylum Act 1999.

Section 77: Special Immigration Appeals Commission

724. Overview: This section relates to immigration decisions in respect of a person’s entitlement to enter, reside or remain in the UK, or to their removal from the UK, and allows the Secretary of State to decide that any legal challenge brought against such decisions will be heard in the Special Immigration Appeals Commission (SIAC), rather than the Upper Tribunal of the Immigration and Asylum Chamber or the High Court, where satisfied that the decision is based on information that should not be disclosed in the public interest.
725. Background: The intention is to close the "SIAC gap" via this amendment to the Special Immigration Appeals Commission Act 1997 to allow immigration decisions to be made and defended on the basis of sensitive material that should not be disclosed in (a) the interests of national security; (b) the interests of the relationship between the UK and another country; (c) the public interest generally, but without giving individuals rights of appeal which they otherwise would not be entitled to. The purpose of the amendment to the legislation is to ensure that any immigration decision that may be challenged by way of an application for judicial review (JR) can be certified to ensure any legal challenge is heard by the Special Immigration Appeals Commission in the same way that any decision that can be challenged by appeal can be certified.
726. SIAC is an independent judicial tribunal that can hear immigration appeals where the decision is based on sensitive information, for example where information has been provided by the Security Services. However, some types of immigration-related decisions relying on sensitive information that needs to be protected have no right of appeal, and can only be challenged by judicial review-and so cannot be heard in SIAC. This is known as the "SIAC Gap".
727. There is some limited mitigation in that while most immigration related JRs are heard by the Upper Tribunal (Immigration and Asylum Chamber), legal challenges to decisions that are based on national security information can still be heard in a closed session in the High Court, upon the instruction of the Lord Chief Justice. This is called a Closed Material Procedure (CMP). This mitigation is limited: firstly, a detailed application from the Secretary of State must be filed and considered and a declaration made by the court permitting an application for a CMP (whereas closed material can always be used in SIAC cases); and secondly, under a CMP "sensitive material" covers only that which would be damaging to the interests of national security and so it cannot be utilised for cases concerning serious organised crime or sensitive international relations material or cases that rely upon historic security information. This section amends the following legislation:
     • Sections 2, 6A and 7 of the Special Immigration Appeals Commission Act 1997.
     • Section 115(8) of the Equality Act 2010.

728. The amendment seeks to reinstate the position as it was before the introduction of the Points Based System in 2008, a position that has previously been agreed by Parliament.

Section 78: Counterterrorism questioning of detained entrants away from place of arrival

729. Overview: This section amends Schedule 7 to the Terrorism Act 2000 in order to enable Counter-Terrorism Police Officers to conduct examinations away from port locations where individuals have arrived in the UK by sea within the previous 5 days and have been arrested or detained under the Immigration Acts.
730. Background: Paragraph 2 of Schedule 7 grants Counter-Terrorism Police Officers the power to examine individuals for the purpose of determining their involvement in the commission, preparation, or instigation of acts of terrorism. At present, individuals can only be examined under Schedule 7 if they are physically within a port or border area, and their presence there is connected to entering or leaving the UK.
731. Subsection 1 amends Schedule 7 by including within the scope of the power migrants who have been arrested or detained under the Immigration Act, provided the officer believes the individual arrived in the UK by sea and has been in the UK no more than 5 days since the date of their arrival.

Section 79: References to Justices of the Peace in relation to Northern Ireland

732. Overview: This section will ensure that references to "justice of the peace" in the context of obtaining entry and search warrants in immigration legislation, as regards Northern Ireland, are treated as references to "lay magistrates".
733. Background: On 1 April 2005 the functions at that date of justices of the peace in Northern Ireland were largely transferred to lay magistrates by section 10 of the Justice (Northern Ireland) Act 2002. The effect of paragraph 6(a) of Schedule 4 to that Act is that references to justices of the peace are to be read as, or as including, references to a lay magistrate. However, that only applies in relation to the pre-1 April 2005 functions transferred by section 10 of the 2002 Act. There are some functions of justices of the peace which were conferred after 1 April 2005, so that provision does not apply. The section makes it clear that references to justices of the peace in relation to those later conferred functions are to be treated as references to lay magistrates. Four of the provisions in question are the power to enter and search premises for the purpose of detaining a vehicle relating to a person who is not lawfully resident in the UK under section 24E of the Immigration Act 1971, the power to enter and search premises for relevant identity documents under paragraph 25A of Schedule 2 to the 1971 Act, the power to search premises for things relevant to the functions of the Immigration Services Commissioner under paragraph 10A of Schedule 5 to the Immigration and Asylum Act 1999 and the power to enter and search for nationality documents of a person arrested for a criminal offence under section 45 of the UK Borders Act 2007.
734. No new powers to apply for a warrant are created.

Section 80: Tribunal charging power in respect of wasted resources

735. Overview: This section amends section 29 of the Tribunals, Courts and Enforcement Act 2007 (TCEA) providing a new power for the First-tier and Upper-Tier Tribunals to order a party to pay a charge in respect of wasted or unnecessary tribunal costs incurred due to a party’s unreasonable actions.
736. Background: Failure to comply with tribunal directions by legal representatives can disrupt or prevent the proper preparation of an appeal, and lead to cases being adjourned at a late stage.
737. This can lead to the parties incurring additional unnecessary costs. Allocated tribunal time can also be wasted, leading to delays in determining appeals, adding to backlogs of outstanding appeals, and delaying justice for those with genuine claims while valuable judicial resources are wasted.
738. At present the power in Section 29 of the TCEA which gives Tribunals power to make costs orders is limited to the legal costs of the parties.
739. Subsection 1 inserts new section 25A into the TCEA which provides that when a relevant participant has acted "improperly, unreasonably or negligently" and as a result, the Tribunal’s resources have been wasted, then the First-tier or Upper Tribunal may charge the participant.
740. A charge may be made against a relevant participant in proceedings, which will include legal and other representatives of the parties, and also the Secretary of State (where they have not instructed a legal representative). The amounts charged under this section must be paid into the Consolidated Fund.
741. The power is subject to Tribunal Procedure Rules and amendment is also made to Schedule 5 to the TCEA to specify that rules made by the Tribunal Procedure Committee may include rules under this power.

Section 81: Tribunal Procedure Rules to be made in respect of costs orders etc.

742. Overview: This section imposes a duty on the Tribunal Procedure Committee to introduce procedure rules in the First-tier and Upper Tribunal Immigration and Asylum Chamber which ensure that judicial consideration will be given to the making of a charge or cost order where specified events have happened.
743. Background: The Tribunal Procedure Rules will specify that there is a rebuttable presumption that certain conduct is to be treated as unreasonable and triggers the consideration of a costs order. It will be for the representative to demonstrate why the conduct is not unreasonable and why a charge or cost order should not be made in such circumstances.
744. Improper, unreasonable or negligent behaviour on the part of legal and other representatives in the Immigration and Asylum Chamber can disrupt or prevent the proper preparation and progress of an appeal. This can lead to increased and unnecessary costs being incurred by the parties and is an inefficient use of tribunal resources.
745. Under powers provided in the Tribunals, Courts and Enforcement Act 2007 (TCEA) and as amended by section 76 and this section, the tribunal has powers to make a wasted resources charge, or a wasted costs or unreasonable costs order.
746. Wasted Costs Orders (WCOs) allow the tribunal to order legal costs incurred by one party to be paid by a legal or other representative where it finds that those were unnecessary costs which arose as a result of "improper, unreasonable or negligent behaviour" of the representative. A litigant can seek a WCO against the legal representative of any party including the litigant’s own representative. In addition, the tribunal can make a WCO on its own motion.
747. In addition, an unreasonable costs order may be made where a party or their legal or other representative has acted "unreasonably in bringing, defending or conducting proceedings". An unreasonable costs order may be made against a party to the appeal, including the Secretary of State for the Home Department.
748. Subsection 1 imposes a duty on the Tribunal Procedure Committee to introduce procedural rules which specify conduct which in the absence of explanation or evidence to the contrary will be treated as unreasonable, improper or negligent for the purposes of the provisions of the TCEA powers to impose Wasted Costs Orders, Unreasonable Costs Orders and a Wasted Resources Charge.
749. Subsection 2 provides that procedural rules will require that, where satisfied the prescribed conduct has taken place, the Tribunal will consider the making of a wasted costs order, an unreasonable costs order or a wasted tribunal charge, but subsection 3 makes clear that the Tribunal retains absolute discretion as to whether to make such an order.
750. Subsections 4 and 5 define terms used in this section.
751. Subsection 6 amends the TCEA to allow the tribunal to make a costs order where a party to proceedings, or their legal representative, acts unreasonably in bringing or conducting proceedings. Procedural rules in many of the chambers of the tribunal already contain provision for unreasonable costs orders in such circumstances.

Section 82: Pre-consolidation amendments of immigration legislation

752. Overview: This section gives the Secretary of State power by regulation to amend immigration legislation in order to make pre-consolidation changes to facilitate a consolidation Act.
753. Background: The Windrush Lessons Learned Review (WLLR), published on 19 July 2018, said that it is widely accepted that immigration and nationality law is very complex.
754. WLLR Recommendation 21 is: "Reduce the complexity of immigration and nationality law, immigration rules and guidance – Building on the Law Commission’s review of the Immigration Rules the Home Secretary should request that the Law Commission extend the remit of its simplification programme to include work to consolidate statute law. This will make sure the law is much more accessible for the public, enforcement officers, caseworkers, advisers, judges and Home Office policy makers ".
755. At least 16 Acts have been passed that wholly or partly concern immigration or nationality since 1971. This makes it difficult for applicants, legal advisers and caseworkers to navigate the system. This provision relates to the consolidation of immigration laws.
756. Subsection 1 gives the Secretary of State power by regulations to amend or modify previous Acts which relate to immigration where to do so would facilitate, or be desirable in connection with, the consolidation of immigration laws.
757. Subsection 2 sets out the existing Acts to which this would apply, and includes immigration provisions in any other Acts, whenever passed.
758. Subsection 3 provides that "amend" includes repeal (and similar terms are to be read accordingly).
759. Subsections 4 and 5 set out that the powers are conditional on the passing of a future Act which will consolidate all or a large proportion of the Acts relating to immigration. Any regulations made under this section will come into effect immediately before that Act comes into effect.
760. Subsection 6 stipulates that statutory instrument must be the means by which any regulations are made under this section, and that the regulations are subject to the affirmative resolution procedure.