Nationality And Borders Act 2022

Part 3: Immigration Offences and Enforcement

Immigration Offences and Penalties

Section 40: Illegal Entry and Similar Offences

390. Overview: This section creates two new criminal offences of arriving in the UK without a valid entry clearance or electronic travel authorisation (ETA) where required, in addition to the existing offence of entering without leave. This section increases the maximum penalty for those returning to the UK in breach of a deportation order from 6 months to 5 years, and for entering without leave or arriving without a valid entry clearance or ETA, or overstaying a grant of leave, from 6 months to 4 years.
391. Background: The offence of knowingly entering the UK without leave is currently set out in section 24(1)(a) of the Immigration Act 1971 ("the 1971 Act"). "Leave" refers to permission, under the 1971 Act, to enter or remain in the UK – such leave may be limited in terms of duration, or indefinite.
392. The concept of "entering the UK without leave" has caused difficulties about precisely what "entering" means in the context of the current section 24(1)(a) of the 1971 Act.
393. "Entry" is defined in section 11(1) of the 1971 Act as meaning disembarking and subsequently leaving the immigration control area. Where a person is detained and taken from the area, or granted immigration bail, they are not deemed to have entered the UK.
394. The offence of knowingly entering the UK without leave dates back to the original version of the 1971 Act. Entering the UK without leave is no longer considered entirely apt given the changes in ways in which people have sought to come to the UK through irregular routes.
395. This section creates two new offences so that it encompasses arrival, as well as entry into the UK. The intention is that these new offences of people arriving in the UK without a required entry clearance (EC) or ETA apply to everyone who requires an EC or ETA on arrival. These offences will cover all asylum claimants who arrive without the necessary EC or ETA. As a matter of law, refugees will be in scope of the offence but decisions on prosecutions remain a matter for the Crown Prosecution Service (CPS) in England and Wales, the Crown Office and Procurator Fiscal Service (COFPS) in Scotland, and the Public Prosecution Service (PPS) in Northern Ireland, who will take into account the public interest test.
396. This will allow prosecutions of individuals who are intercepted in UK territorial seas and brought into the UK who arrive in but don’t technically "enter" the UK.
397. The definition of "immigration law" in section 25(2) of the 1971 Act is consequently amended to encompass arrival in the UK in addition to entry to allow for prosecutions of those who facilitate the arrival or attempted arrival of persons in breach of immigration law.
398. The offence set out in section 24(1)(a) of the 1971 Act also covers knowingly entering the UK in breach of a deportation order. Currently, entering the UK without leave or in breach of a deportation order can carry an unlimited fine and/or a maximum of 6 months’ imprisonment (section 24(1)(a)). The Government’s assessment is that the current maximum term of imprisonment does not provide a sufficient deterrent to those seeking to enter the UK without leave. It is also considered that the current maximum term of imprisonment does not reflect the seriousness of the offence, in particular where there are factors such as where conduct endangers life.
399. This section raises the maximum term of imprisonment to create a stronger deterrent and with the intention of disrupting the activities of organised criminal groups, including those involved in organised immigration crime. Raising the maximum term of imprisonment above 6 months automatically makes the offences triable in the Crown Court or magistrates court, and thereby subject to the same maximum as applies on conviction on indictment for the offence attempted.
400. This section raises the maximum penalty for the offence of overstaying a grant of leave (section 24(1)(a)(b)(i) of the 1971 Act) from 6-months to 4-years. Raising the maximum term of imprisonment above 6 months automatically makes the offences triable in the Crown Court or magistrates court. The longer sentence length will ensure that the police, prosecutors and the courts consider the offence as serious enough to take through the Criminal Justice System. If individuals are given a sentence of 12 months or more it will make them subject to auto-deportation unless an exception applies.
401. Subsections 1 and 2 set out that this section amends the Immigration Act 1971 and inserts new subsections A1 – E1 into section 24, which sets out illegal entry and similar offences. Subsections A1– E1 make it an offence to:
     • Knowingly enter the UK in breach of a deportation order (A1)
     • Knowingly enter the UK without permission to do so (B1)
     • Knowingly remain beyond the time limited by the leave, if having only a limited leave to enter or remain in the UK (C1)
     • Knowingly arrive in the UK without valid entry clearance (D1), otherwise known as a visa (see the Glossary at Annex A for full definition)
     • Knowingly arrive in the UK without a valid electronic travel authorisation (E1).

402. A summary conviction of any of these offences, in England and Wales, will result in up to six months’ imprisonment (moving to 12 months when paragraph 24(2) of Schedule 22 to the Sentencing Act 2020 comes into force), a fine, or both. In Scotland, up to 12 months’ imprisonment, a fine of up to £5,000 (the statutory maximum), or both. In Northern Ireland, up to 6 months’ imprisonment, a fine of up to £5,000 (the statutory maximum), or both.
403. A conviction on indictment for an offence of knowingly entering in breach of a deportation order (A1) will attract a prison sentence of up to 5 years, a fine, or both. A conviction on indictment for an offence under B1, C1, D1 or E1 will attract a prison sentence of up to 4 years, a fine, or both.
404. Subsection 3 removes 24(1)(a), as the offence to enter in breach of a deportation order or without permission is now covered in new subsections A1 and B1, and replaces 14(1)(b)(i) with subsection (C1). This subsection also amends references to the offence under 24(1)(a) for the purpose of extending the time limit for prosecutions provided for by way of section 28(1) of the 1971 Act, substituting it with relevant references to A1, B1, D1 and/or E1. However, it should be noted that by virtue of the offences in new subsections A1 – E1 now being triable either way, there is no time limit for prosecutions and therefore no statutory requirement to extend the time limit as there would be for summary only offences.
405. This subsection also amends subsection 4 and inserts new subsection 5, which provides that, in legal proceedings relating to an offence under D1, a document, such as a vignette, attached to a passport or travel document will be considered evidence of entry clearance if it has been issued by the Secretary of State for the period covering the time of arrival. In both cases (B1 and D1), the burden of proof lies on the defendant to prove that he or she had leave to enter or valid entry clearance as appropriate.
406. Subsection 4 amends section 25 of the 1971 Act, (criminal offence of assisting unlawful immigration) to include arrival in the UK as part of the definition of "immigration law". The meaning of "immigration law" as provided in current section 25(2) means a law which controls non-UK nationals’ entitlement to enter the state, transit across the state, or be in the state. This limits the application of section 25 in practice. As noted regarding the offence of entry without leave, migrants who are intercepted at sea and are brought into an immigration control area may not have "entered" the UK unlawfully and so a person facilitating their journey may not be charged with assisting a breach of immigration law for that offence. This amendment will ensure that the offence of facilitation also applies to those assisting persons to arrive in the UK without a valid entry clearance.
407. Subsections 5 to 9 amend references to section 24 and 24(1)(a) to reflect the revised offences.

Section 41: Assisting unlawful immigration or asylum seeker

408. Overview: This section amends the facilitation offences in sections 25 and 25A of the Immigration Act 1971 ("the 1971 Act"), raising the maximum penalty from 14 years’ to life imprisonment and removing the requirement of facilitation being "for gain" in relation to section 25A.
409. Background: Under section 25 of the 1971 Act, as currently in force, it is an offence to carry out an act (including outside of the UK) to facilitate the commission of a breach (or attempted breach) of immigration law by an individual who is not a UK national. Facilitation may include behaviour linked to recruiting, transporting, transferring, or harbouring. The required mental element is that the person doing the act must know or have reasonable cause for believing that the act facilitates the commission of a breach or attempted breach of immigration law by the individual, and must know or have reasonable cause for believing that the individual is not a UK national.
410. Under current section 25A(1), it is an offence for a person, knowingly and for gain, to facilitate the arrival or entry (or attempted arrival or entry) of an asylum seeker into the UK. Section 25A contains a requirement to prove gain. Gains from facilitation may be cash-in-hand, taken while abroad, or otherwise difficult to link back to facilitation, making this difficult to evidence in some prosecutions.
411. This section removes the requirement to prove gain, broadening the section 25A offence, to allow the Home Office to charge more people for facilitating the arrival of asylum seekers to the UK. It remains the case that this offence does not apply to persons acting on behalf of an organisation which aims to assist asylum seekers and does not charge for its services.
412. Section 25 offences currently attract a prison sentence of up to 14 years. This section increases the penalty to life imprisonment in order to discourage unlawful facilitation of migrants to the UK.
413. Subsection 2 amends subsection (6)(a) of section 25, increasing the maximum custodial penalty for assisting unlawful immigration from 14 years to life imprisonment. By virtue of section 25A(4), the maximum penalty set out here also applies to the other offence of facilitating the arrival or entry of an asylum seeker to the UK.
414. Subsection 3 amends section 25A(1)(a) of the 1971 Act, removing the requirements to demonstrate that facilitation has been for gain.
415. Subsection 4 inserts new sections 25BA and 25BB into the 1971 Act. Section 25BA provides exclusions or defences to the section 25 and 25A offences where a person rescues another person at sea.
416. Section 25BA(1) makes it clear that a person does not commit a facilitation offence if they are acting for, on behalf of or co-ordinated by HM Coastguard (HMCG) or overseas equivalent. This protects organisations such as the Royal National Lifeboat Institute (RNLI), independent lifeboats, and individual seafarers who first contact HMCG or who respond to a mayday relay issued by HMCG or equivalent search and rescue authority.
417. Section 25BA(2) provides a defence for a person to show that the act of facilitation was to assist an individual who is in danger or distress at sea and the assistance is provided between the time of the individual first being in danger or distress and the time when they are taken to a place of safety. However, this is limited by subsection (3) in that the defence does not apply if delivery of the person is to the UK when this is not the nearest place of safety on land and there is no good reason for this. Subsection (3) also sets out that the act of steering a ship does not count as an act of assistance in the case where the steerer is on the same ship as the person being rescued. Subsection (4) sets out in statute that there is a burden on the defence to raise sufficient evidence that they were rescuing a person as set out in subsection (2) to raise an issue in respect of it and if they do so it is then for the prosecution to prove that this was not the case to the standard of beyond reasonable doubt. Subsection (5) provides definitions for the purpose of this section regarding "act of facilitation", "assisted individual", "facilitation offence" and "ship".
418. The intention behind section 25BA is to ensure that suitable protections are in place for the RNLI and other seafarers whose actions are co-ordinated by HMCG but to allow for the investigation and potential prosecution of those acting in the absence of such co-ordination where there is doubt that they are genuinely rescuing people or may otherwise be acting as a "taxi service" to bring migrants to the UK. Good reasons for delivering assisted persons to the UK where this is not the nearest place of safety on land might include weather conditions or a commercial ferry continuing its scheduled route. The statutory defence will not be available to those persons steering these small boats as it is not acceptable that those who are assisting unlawful immigration in this way should be able to easily escape prosecution if they claim that they were doing so as an act of rescue. However, such individuals will still have access to defences available at common law.
419. New section 25BB provides defences for the master of a ship and crew in relation to stowaways. Subsection (1) provides a defence to the master or person acting on the master’s behalf where a stowaway is discovered on board after leaving port and as long as they appropriately notify the authorities as soon as reasonably practicable before they then dock in the UK. It is also a defence under subsection (2) for crew members or passengers to provide humanitarian assistance to the stowaway so long as the presence of the stowaway is reported to the master of the ship as soon as reasonably practicable. Subsection (3) sets out in statute that there is a burden on the defence to raise sufficient evidence with regard to discovering and reporting the presence of the stowaway as set out in subsections (1) and (2) to raise an issue in respect of it and if they do so it is then for the prosecution to prove that this was not the case to the standard of beyond reasonable doubt. Subsection (4) provides a definition of a stowaway for the purpose of section 25BB and subsection (5) sets out when a person ceases to be a stowaway. Subsection (6) applies the same definitions as those in section 25BA.
420. Section 25BA and 25BB ensure there is no conflict with the UK’s international maritime obligations. For stowaways on other modes of transport (i.e. aviation and international rail), investigative and independent prosecutorial discretion will be relied on, on a case-by-case basis, in deciding whether a prosecution is in the public interest, taking into account what security measures are in place to prevent access to potential stowaways.

Section 42: Penalty for failure to secure goods vehicle

421. Overview: This section extends the scope of the civil penalties regime for clandestine entrants to create a new civil penalty that may be issued on persons responsible for goods vehicles that have not been adequately secured, whether or not there is a clandestine present in the vehicle. It also makes amendments to the current regime by requiring those operating vehicles to take measures to secure their vehicles against unauthorised access by clandestine entrants.
422. Background: Part 2 of the Immigration and Asylum Act 1999 ("the 1999 Act") created a civil penalty regime for those responsible for allowing clandestine entrants into the UK. While these provisions have been in place in various forms for over 20 years, a high proportion of drivers and hauliers still fail to properly secure their vehicles, thereby enabling clandestines to enter the UK illegally within these vehicles. In a compliance sampling exercise carried out in March 2021, more than a third of vehicles were found not to have basic security measures in place. When considering how this differs between hard-sided and soft-sided vehicles, 55% of soft-sided vehicles lacked basic security measures.19
423. Until now, the focus of the penalty regime has been on the presence of clandestines.
424. The intention is to create an alternative basis for civil liability to apply in the case of goods vehicles. Accordingly, persons responsible for goods vehicles that have not been adequately secured against unauthorised access, and where that person has not taken the actions specified in regulations in relation to the securing of the vehicle against unauthorised access before or during its journey, can receive a civil penalty, regardless of whether a clandestine is present.
425. The intent is to require drivers and hauliers to check the security of their goods vehicles during or prior to arrival in the UK or presentation at UK immigration control and to alert the relevant authorities (i.e. police in the country concerned) as soon as clandestine entrants are suspected to have entered a vehicle, and not when that driver reaches immigration controls. Drivers will be required to keep and produce documentation when presenting at UK immigration controls, or upon arrival in the UK, to establish that actions have been taken in relation to securing the vehicle against unauthorised access. This will include keeping evidence that ongoing checks have been carried out to identify signs of clandestine entry and to prevent unauthorised entry.
426. The current regime is underpinned by the two statutory codes of practice specified in sections 32A and 33 of the 1999 Act. The Department will retain the requirement for the Secretary of State to issue a Level of Penalty Code of Practice at section 32A, which specifies matters to be considered by the Secretary of State when determining the level of penalty payable for both the existing and new regime. A code of practice will be brought into operation following a public consultation of such persons as the Secretary of State considers appropriate. The Secretary of State will have the option to issue a single Code of Practice or a separate one for each regime. The Prevention of Clandestine Entrant: Code of Practice specified in section 33 will be removed and replaced with regulations specifying what is required of responsible persons to secure their vehicle and the actions required to secure the vehicle against unauthorised access. Regulations will be laid following a public consultation.
427. This section provides for the amendment of the 1999 Act to provide for the imposition of a penalty for a failure to adequately to secure a goods vehicle against unauthorised access and other related matters.

Section 43: Working in United Kingdom Waters: Arrival and Entry

428. Overview: This section clarifies the legal framework for the requirement that individuals working in UK waters need permission to do so. This includes working in the territorial seas and internal waters of the United Kingdom, and it ensures a consistent position with those coming to work on the UK landmass. All foreign nationals require permission to work in UK waters, unless they are covered by an exemption, and the section confirms this position.
429. Background: Under the Immigration Act 1971 ("the 1971 Act") a migrant with permission to enter or stay in the UK for a limited period may be subject to conditions such as restricting their work or occupation in the UK. This also applies to those working in UK waters, but the framework of the 1971 Act can give rise to confusion about the way in which these restrictions operate. This section will clarify the position.
430. Subsection 1 inserts new section 11A and 11B into the 1971 Act.
431. Section 11A provides that a person is an "offshore worker" where they arrive in UK waters for the purpose of working in those waters, and they have not already entered the UK (e.g., by arriving and disembarking on the UK landmass). The provision confirms that an offshore worker "arrives in" the UK when they arrive in UK waters and that they "enter" the UK when they start working in those waters. It confirms that references to "arriving in" or "entering" the UK in the Immigration Acts include those who are covered by this provision and stipulates that where a person temporarily enters non-UK waters in connection with their work, they will not be considered to have left the United Kingdom. The section confirms that crew exercising the right of innocent passage or transit passage in the territorial sea are not affected, and it will not affect crew covered by section 8(1).
432. Section 11B provides a regulation-making power to enable the Secretary of State to make provision to require workers and, if they have one, their sponsor to provide information about the worker’s arrival and entry into, and departure from, the UK.
433. Subsection 2 inserts a Schedule 5, which makes consequential amendments to enforcement provisions.

Section 44: Power to search container unloaded from ship or aircraft

434. Overview: This section provides an immigration officer (IO) with additional powers to search containers for concealed irregular migrants attempting to enter the UK illegally, where those containers are no longer on board a ship, or aircraft, and are not on any vehicle on which they were removed from a ship or aircraft.
435. Background: There is evidence irregular migrants and people smugglers are taking greater risks when attempting to enter the UK illegally, including hiding in containers (as well as freight vehicles) with the intention of avoiding detection and examination by an IO. This method is also used by human traffickers to move vulnerable people into the UK.
436. The Immigration Act 1971 ("the 1971 Act") allows an IO to examine any persons who have arrived in the UK by ship or aircraft for the purposes of determining whether or not any of them is a British citizen, and if not, whether they require permission to be in the UK.
437. The 1971 Act also provides an IO with the power to search any ship or aircraft and anything on board it, or any vehicle taken off a ship or aircraft which has been brought to the UK.
438. There is currently no provision for an IO to conduct a search of a container no longer on a ship or aircraft or found on any vehicle which has been removed from the ship or aircraft for the purposes of the 1971 Act outlined above.
439. This means that if a container has been offloaded (without anything having come to light suggesting the need for a search while still on the ship or aircraft) and the IO then identifies something suspicious or receives information raising suspicion, the IO is not currently able to initiate a search.
440. Subsection 1 states that this section will make changes to the 1971 Act, specifically paragraph 1 of Schedule 2, which gives authority to an IO to inspect ships or aircrafts.
441. Subsection 2 amends the Schedule to give powers to an IO to specifically inspect containers, as well as ships and vehicles.
442. Subsection 3 allows an immigration officer to direct where a container should be delivered for the purpose of carrying out an inspection. The definition of "container" is that of the Customs and Excise Management Act 1979, a "bundle or package and any baggage, box, cask or other receptacle whatsoever ".
443. Subsection 4 creates a general offence under section 26(1) of the 1971 Act for failing without reasonable excuse to comply with a direction from an IO.

Section 45: Maritime Enforcement

444. Overview: This section and accompanying Schedule (Schedule 6) expand current maritime enforcement powers enabling maritime enforcement action to take place outside of UK waters in order to detect, prevent, investigate and prosecute the illegal entry of migrants as well as its facilitation. It includes powers to require migrant vessels to leave UK waters as well as powers intending to support the disembarkation of non-compliant passengers a non-UK Ports.
445. Background: Over the past two years increasing numbers of migrants have been crossing the English Channel in small boats which are dangerously unsuitable for this purpose. At present, migrants crossing in this way are being intercepted by Border Force and then brought to the UK to have their asylum claims processed in accordance with the Immigration Act 1971 ("the 1971 Act").
446. This route which is being exploited by criminal groups who are increasing the size of vessels used to facilitate illegal entry to the UK. This year a new unwanted record was broken when a vessel carrying 88 migrants arrived on the south coast.
447. Persons operating in the maritime field currently have powers to effect maritime enforcement under the 1971 Act, the Modern Slavery Act 2015 and the Policing and Crime Act 2017. Under the Modern Slavery Act 2015, Customs Officers have maritime enforcement powers for the purpose of preventing, detecting or prosecuting an offence of slavery, servitude and forced or compulsory labour or human trafficking. Under the Policing and Crime Act 2017, Law Enforcement officers (which does not include Immigration Officers) also have powers to intercept vessels in UK seas and international waters for the purpose of preventing, detecting or prosecuting a criminal offence. However, these powers cannot be used by Immigration Officers for tackling immigration offences. Under the 1971 Act, Immigration Officers’ maritime enforcement powers focus on the detection, prevention, investigation and prosecution of facilitation offences (facilitating a breach of immigration law or facilitating the arrival or entry of asylum seekers) and can only be used for these purposes in UK waters
448. At present, the enforcement powers which can be exercised by relevant officers do not extend to ships that are in foreign or international waters.
449. This section supplements and expands the current maritime enforcement powers so that relevant persons may divert migrant vessels in international waters away from UK shores. It also provides the ability to take control of the vessel and those on board and return them to a safe country, such as the country from which they embarked or to another location where they have been accepted in order to ensure the relevant offences are prevented and/or detected.
450. By expanding these powers, the Home Office aims to reduce the number of migrants attempting the crossing and preserve life, secure the UK’s borders, and dismantle the serious organised crime gangs who are abusing this route.
451. Additionally, Border Force Immigration Officers currently have limited powers to seize vessels used in the commission of immigration offences and to dispose of such seizures. This section refines these measures to enable a more flexible and efficient approach to disposal of vessels seized in the exercise of these powers. This section therefore also aims to refine powers in this area.

Section 46: Removals: notice requirements

452. Overview: This section is intended to provide a statutory minimum period to enable individuals to access justice prior to their removal. It includes the provision of written notices of intention to remove and departure details.
453. Background: This section makes provision for removing individuals, following a failed departure or an unsuccessful JR relating to their removal, without the need for a further notice period. In addition, a PRN recipient can be removed in certain circumstances, without the need for a notice period.
454. The Secretary of State has a power to remove a person who requires leave to enter or remain in the UK but does not have it from the United Kingdom under section 10 of the Immigration and Asylum Act 1999 (as amended by the Immigration Act 2014). Those subject to removal include: those refused leave to enter; illegal entrants; overstayers, those whose leave has been cancelled following a breach of their conditions of stay or using deception to remain; former refugees who no longer have leave; crew members remaining unlawfully; and deportees.
455. At present, individuals are served a notice, setting out their destination, routing, date, time and airport of their departure (those departing via a charter flight are provided with their destination, routing, and date of departure), but unlike removal directions given to the transport carrier, this is not a statutory requirement.
456. The current Home Office guidance on notice periods can be found in the Judicial Reviews and Injunctions guidance. In some cases, individuals are given a minimum of 72 hours’ notice of their removal, and in some cases a minimum of 5 working days.
457. This section will amend the current policy, increasing the minimum notice period to 5 working days in all cases (with a limited exception for port cases). The purpose of this is to provide a statutory minimum period and standardise the time to access legal advice.
458. Currently, where a person has been given the required notice of removal, but the removal fails or is deferred for certain reasons, a further notice period is not required if the removal can be implemented within 10 days of the failed or deferred removal. This section will place this policy on a statutory basis and increase the timeframe to 21 days, without the need for a fresh notice period.
459. This section provides that a PRN recipient can be removed within 21 days following the PRN cut-off date (if no human rights or protection claim was made) or when the individual’s appeal rights have been exhausted (if a human rights or protection claim was made), without a notice period. This is subject to other existing statutory bars on removal.
460. Where an initial removal is deferred because of a JR relating to the removal and the court decides that the person can be removed, then they can be removed within 21 days of that decision without receiving a fresh notice period.
461. There will be a requirement for a further notice period where the individual is to be removed to a different destination, or there has been a change of route to include a stop, which is not in the UK or a safe country, of which they have not previously been notified.
462. Subsections 2 and 3 amend sections 10(1) and (2) of the 1999 Act, making it clear that individuals and their family members (subject to specified conditions) are liable to removal where the individual requires leave to enter or remain in the UK but does not have it.
463. Subsection 4 inserts that a person liable to removal under this section can only be removed under the authority of the Secretary of State or an immigration officer and in accordance with subsections 10A to 10E.
464. Subsection 6 amends a power for the Secretary of State to make Regulations about the time period during which a family member may be removed and inserts a power to make Regulations about serving removal notices under subsections 10A to 10E.
465. Subsection 7 inserts new subsections 10A to 10E. These subsections are not mutually exclusive. 10A provides that before a person who is liable to removal may be removed, they must be given a written notice of intention to remove setting out the destination of removal and a minimum notice period of 5 working days before that removal can occur. They must also be given a written notice of departure details, setting out the date on which the individual will be removed and the destination of their removal, including any stops on their route. These notices can be given separately or can be combined.
466. If the person is due to be removed to a different destination or via a different route to that previously notified in the notice of intention to remove, then the individual must be given a new notice period of a minimum of 5 working days with the notice of departure details, unless the route is via the UK or a safe third country.
467. The definition of "working day" excludes weekends, national and bank holidays where the person is at the time when they are given the notice of intention to remove.
468. 10B sets out the scenarios where a further notice period is not required when there has been a previous attempt to remove the individual on the date specified in the notice of departure details, but that removal did not go ahead for reasons reasonably beyond the control of the Secretary of State. The individual can be removed (without a fresh notice period), provided they are removed within 21 days starting with the date of removal specified on the first notice of departure details. This provision only applies in cases which notice of removal has previously been served under subsection 10A.
469. 10C caters for the limited exception to 10A, for what is known as a port case. A notice period is not required to be given to an individual who was refused entry upon arrival into the UK; provided they can be removed within 7 days of that refusal decision.
470. 10D provides that a PRN recipient, who did not make a protection or human rights claim before the PRN cut-off date, can be removed within 21 days of the PRN cut-off date without the need for a notice period. Where the PRN recipient does make a protection or human rights claim, they can be removed within 21 days of becoming appeal rights exhausted without the need for a notice period. Note that this is subject to any other statutory bars on removal.
471. Under 10E, where the first removal was deferred because of judicial review proceedings relating to the person’s removal, the person can be removed within 21 days of the court deeming that the individual may be removed, without the need for a further notice period.
472. Subsection 8 amends Schedule 10 to the Immigration Act 2016. This provides that an individual in detention must not be granted bail by the First-tier Tribunal without the consent of the Secretary of State if their removal is due to take place within 21 days of the bail hearing. This is an increase on the current period which is 14 days. The purpose of the increase is to align with the provisions of new subsections 10A to 10E, which would otherwise be undermined if an individual could successfully be granted bail if their removal was set for the period 15-21 days after their failed removal. Aligning the period reduces the chance for individuals to abscond ahead of their removal.

Section 47: Prisoners liable for removal from the United Kingdom

473. Overview: This new section provides further detail on how to treat Foreign National Offenders who return to the UK having been removed under the Early Removal Scheme
474. Background: This section amends the ERS in three ways. First, it extends the period a Foreign National Offender (FNO) can be removed early from their custodial sentence, increasing the early removal window from a maximum of 9 months to 12 months before the earliest point they may be released from custody (either automatically or via Parole Board review). The FNO must still have served half of the requisite custodial period before removal.
475. Second, it allows removal to take place at any point in the sentence after this removal window opens when the FNO is in prison. This will bring into scope for removal under the scheme those FNOs released on license and who are subsequently recalled to custody by the Secretary of State.
476. Third, this section introduces a "stop the clock" provision, which will apply to FNOs removed under ERS. The new provision will, in effect, pause the sentence at the point a person is removed from prison under ERS. If the removed FNO returns to the UK at any point in the future, they would be liable to be detained and returned to custody to serve the balance of their sentence, "ignoring" any days after they were removed from prison. They would be subject to release based on their circumstances at the point of removal, either after serving their requisite custodial period or in accordance with the release provisions that apply to recalled persons. Such release may require a decision of the Parole Board.

Section 48: Matters Relevant to Decisions Relating to Immigration Bail

477. Overview: The Early Removal Scheme helps to remove as many FNOs from England and Wales as early as possible, minimising the chance they may be released into the community before deportation can take place.
478. Background: Determinate sentences are made up of a custodial period, spent in prison, and a licence period, spent in the community. To maintain confidence in the justice system, FNOs will still be required to serve at least half of the requisite custodial period of the sentence in custody before being eligible for removal under the ERS. The new "stop the clock" provision will ensure that any FNO who returns to the UK following removal from custody and deportation will remain liable to serve the remainder of their requisite custodial period in prison – i.e., the sentence is paused at the time of removal from prison, to be resumed should the prisoner return. If at the point of removal under ERS an FNO is in prison having been recalled, if they should then return to the UK, upon their return to custody they would be treated as if they had been recalled to prison and require a new decision of the Parole Board in order to be released before the end of their sentence.
479. Sections 260 and 261 of the Criminal Justice Act 2003 ("the 2003 Act") set out the provisions of the Early Removal Scheme, which is applicable to all determinate sentenced Foreign National Prisoners in custody who are liable to removal from the United Kingdom (UK).
480. Subsections 3 to 8 amend section 260 of the 2003 Act, which sets out the provision for the early removal of prisoners liable to removal from the UK.
481. Subsection 3 sets out the provisions that enable the Secretary of State to remove from prison any prisoner liable to removal from the UK once they have served the minimum pre-removal custodial period, which is the later date out of a) half of the requisite custodial period or b) 12 months before the end of the requisite custodial period. The Secretary of State may remove the prisoner from prison whether or not the Parole Board has directed the prisoner’s release.
482. Subsection 4 makes technical changes to subsection (2C) to ensure the power to remove continues to not apply to terrorist prisoners.
483. Subsection 5 replaces paragraph (4)(b) to provide that a person removed from prison under the section remains liable to be detained in pursuance of their sentence both after removal from prison and in the event of their return to the UK.
484. Subsection 6 makes provision, by way of new subsection (4A), for a person removed from prison under the section to not have any day or part of a day when they are not in prison or otherwise detained in pursuance of their sentence to count towards the sentence. This effectively "pauses" a prisoner’s sentence from the day after their removal from prison until the day before they are returned to custody in pursuance of their sentence. Unless otherwise directed by the Secretary of State, any provision in Chapter 6 of Part 12 of the 2003 Act which requires determination of how many days of their sentence a person has served would not include this period. That includes for the purposes of determining when a person’s case should be referred to the Parole Board. New subsection (4B) further provides that where the Secretary of State has, before their removal from prison, referred a person’s case to the Parole Board and such person is subsequently removed from the UK before the Parole Board has disposed of that person’s case, the reference will lapse upon their removal from the UK. Should the person return to the UK, their case will be determined in accordance with new Schedule 19B to the 2003 Act.
485. Subsection 7 omits subsection (5). Accordingly, for the duration of the "paused" period, the Secretary of State has no duty or power exercisable in relation to the prisoner as if they were in prison.
486. Subsection 8 amends subsection (6), to ensure the Secretary of State retains the power by order to amend the time periods which determine the minimum pre-removal custodial period.
487. Subsection 9 makes provision for the release and other provisions modified by new Schedule 19B to the 2003 Act, to apply to those removed from prison who have been removed from, and then return to, the UK.
488. Subsection 10 provides that where a person is serving concurrent terms (sentences served at the same time), they may not be removed from prison unless and until they are eligible to be removed from prison in accordance with each term they are serving.
489. Subsection 11 inserts Schedule 6 as new Schedule 19B to the 2003 Act.