The Immigration (Isle of Man) Order 2008

Article 15

PART 4 The Immigration and Asylum Act 1999

“Part 1 - Immigration: general

Removal from the Isle of Man

10    Removal of certain persons unlawfully in the Isle of Man

(1) A person who is not a British citizen may be removed from the Isle of Man, in accordance with directions given by an immigration officer, if—

(a) having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave;

(b) he uses deception in seeking (whether successfully or not) leave to remain;

(ba) his indefinite leave to enter or remain has been revoked under section 76(3) of the Nationality, Immigration and Asylum Act 2002 (person ceasing to be refugee); or

(c) directions have been given for the removal, under this section, of a person to whose family he belongs.

(3) Directions for the removal of a person may not be given under subsection (1)(c) unless the Governor has given the person written notice of the intention to remove him.

(4) A notice under subsection (3) may not be given if—

(a) the person whose removal under subsection (1)(a) or (b) is the cause of the proposed directions under subsection (1)(c) has left the Isle of Man, and

(b) more than eight weeks have elapsed since that person’s departure.

(5) If a notice under subsection (3) is sent by first class post to a person’s last known address, that subsection shall be taken to be satisfied at the end of the second day after the day of posting.

(5A) Directions for the removal of a person under subsection (1)(c) cease to have effect if he ceases to belong to the family of the person whose removal under subsection (1)(a) or (b) is the cause of the directions under subsection (1)(c).

(6) Directions under this section—

(a) may be given only to persons falling within a prescribed class;

(b) may impose any requirements of a prescribed kind.

(7) In relation to any such directions, paragraphs 10, 11, 16 to 18, 21 and 22 to 24 of Schedule 2 to the 1971 Act (administrative provisions as to control of entry), apply as they apply in relation to directions given under paragraph 8 of that Schedule.

(8) When a person is notified that a decision has been made to remove him in accordance with this section, the notification invalidates any leave to enter or remain in the Isle of Man previously given to him.

(9) The costs of complying with a direction given under this section (so far as reasonably incurred) must be met by the Governor.

(10) A person shall not be liable to removal from the Isle of Man under this section at a time when section 7(1)(b) of the Immigration Act 1971 (Commonwealth and Irish citizens ordinarily resident in United Kingdom and Islands) would prevent a decision to deport him.

13    Proof of identity of persons to be removed or deported

(1) This section applies if a person—

(a) is to be removed from the Isle of Man to a country of which he is a national or citizen; but

(b) does not have a valid passport or other document establishing his identity and nationality or citizenship and permitting him to travel.

(2) If the country to which the person is to be removed indicates that he will not be admitted to it unless identification data relating to him are provided by the Governor, he may provide them with such data.

(3) In providing identification data, the Governor must not disclose whether the person concerned has made a claim for asylum.

(4) For the purposes of paragraph 4(1) of Schedule 4 to the Data Protection Act 2002 (an Act of Tynwald), the provision under this section of identification data is a transfer of personal data which is necessary for reasons of substantial public interest.

(5) “Identification data” means—

(a) fingerprints taken under section 141; or

(b) data collected in accordance with regulations made under section 144.

(6) “Removed” means removed as a result of directions given under section 10 or under Schedule 2 or 3 to the 1971 Act.

14    Escorts for persons removed from the Isle of Man under directions

(1) Directions for, or requiring arrangements to be made for, the removal of a person from the Isle of Man may include or be amended to include provision for the person who is to be removed to be accompanied by an escort consisting of one or more persons specified in the directions.

(2) The Governor may by regulations make further provision supplementing subsection (1).

(3) The regulations may, in particular, include provision—

(a) requiring the person to whom the directions are given to provide for the return of the escort to the Isle of Man;

(b) requiring him to bear such costs in connection with the escort (including, in particular, remuneration) as may be prescribed;

(c) as to the cases in which the Governor is to bear those costs;

(d) prescribing the kinds of expenditure which are to count in calculating the costs incurred in connection with escorts.

Provision of financial security

16    Security on grant of entry clearance

(1) In such circumstances as may be specified, the Governor may require security to be given, with respect to a person applying for entry clearance, before clearance is given.

(2) In such circumstances as may be specified—

(a) the Governor may accept security with respect to a person who is applying for entry clearance but for whom security is not required; and

(b) in determining whether to give clearance, account may be taken of any security so provided.

(3) “Security” means—

(a) the deposit of a sum of money by the applicant, his agent or any other person, or

(b) the provision by the applicant, his agent or any other person of a financial guarantee of a specified kind,

with a view to securing that the applicant will, if given leave to enter the Isle of Man for a limited period, leave the Isle of Man at the end of that period.

(4) Immigration rules must make provision as to the circumstances in which a security provided under this section—

(a) is to be repaid, released or otherwise cancelled; or

(b) is to be forfeited or otherwise realised by the Governor.

(5) No security provided under this section may be forfeited or otherwise realised unless the person providing it has been given an opportunity, in accordance with immigration rules, to make representations to the Governor.

(6) Immigration rules may, in particular—

(a) fix the maximum amount that may be required, or accepted, by way of security provided under this section;

(b) specify the form and manner in which such a security is to be given or may be accepted;

(c) make provision, where such a security has been forfeited or otherwise realised, for the person providing it to be reimbursed in such circumstances as may be specified;

(d) make different provision for different cases or descriptions of case.

(7) “Specified” means specified by immigration rules.

(8) Any security forfeited or otherwise realised by the Governor under this section must be paid into the General Revenue of the Isle of Man.

17    Provision of further security on extension of leave

(1) This section applies if security has been provided under section 16(1) or (2) with respect to a person who, having entered the Isle of Man (with leave to do so), applies—

(a) to extend his leave to enter the Isle of Man; or

(b) for leave to remain in the Isle of Man for a limited period.

(2) The Governor may refuse the application if security of such kind as the Governor considers appropriate is not provided, or continued, with respect to the applicant.

(3) Immigration rules must make provision as to the circumstances in which a security provided under this section—

(a) is to be repaid, released or otherwise cancelled; or

(b) is to be forfeited or otherwise realised by the Governor.

(4) No security provided under this section may be forfeited or otherwise realised unless the person providing it has been given an opportunity, in accordance with immigration rules, to make representations to the Governor.

(5) Subsection (7) of section 16 applies in relation to this section as it applies in relation to that section.

(6) Any security forfeited or otherwise realised by the Governor under this section must be paid into the General Revenue of the Isle of Man.

Reporting suspicious marriages

24    Duty to report suspicious marriages

(1) Subsection (3) applies if a registrar to whom a notice of marriage has been given under section 20 of the Marriage Act 1984 (an Act of Tynwald) has reasonable grounds for suspecting that the marriage will be a sham marriage.

(2) Subsection (3) also applies if—

(a) a marriage is solemnized in the presence of a registrar of marriages; and

(b) before, during or immediately after solemnization of the marriage, the registrar has reasonable grounds for suspecting that the marriage will be, or is, a sham marriage.

(3) The person concerned must report his suspicion to the Governor without delay and in such form and manner as may be prescribed by regulations.

(4) The regulations are to be made by the Clerk of the Rolls.

(5) “Sham marriage” means a marriage (whether or not void)—

(a) entered into between a person (“A”) who is neither a British citizen nor a national of an EEA State other than the United Kingdom and another person (whether or not such a citizen or such a national); and

(b) entered into by A for the purpose of avoiding the effect of one or more provisions of Isle of Man immigration law or the immigration rules.

Immigration control: facilities and charges

25    Provision of facilities for immigration control at ports

(1) The Department must provide the Governor free of charge with such facilities at a control port as the Governor may direct as being reasonably necessary for, or in connection with, the operation of immigration control there.

(2) Before giving such a direction, the Governor must consult such persons likely to be affected by it as he considers appropriate.

(3) If the Governor gives such a direction, he must send a copy of it to the Department.

(6) “Control port” means a port in which a control area is designated under paragraph 26(3) of Schedule 2 to the 1971 Act.

(6A) “Department” means the Department of Transport.

(7) “Facilities” means accommodation, facilities, equipment and services of a class or description specified in an order made by the Governor.

26    Charges: immigration control

(1) The Governor may, at the request of any person and in consideration of such charges as he may determine, make arrangements—

(a) for the provision at any control port of immigration officers or facilities in addition to those (if any) needed to provide a basic service at the port;

(b) for the provision of immigration officers or facilities for dealing with passengers of a particular description or in particular circumstances.

(2) “Control port” has the same meaning as in section 25.

(3) “Facilities” includes equipment.

(4) “Basic service” has such meaning as may be prescribed.

Part 2 – Carriers’ liability

Clandestine entrants

32    Penalty for carrying clandestine entrants

(1) A person is a clandestine entrant if—

(a) he arrives in the Isle of Man concealed in a vehicle, ship or aircraft,

(b) he passes, or attempts to pass, through immigration control concealed in a vehicle, or

(c) he arrives in the Isle of Man on a ship or aircraft, having embarked—

(i) concealed in a vehicle; and

(ii) at a time when the ship or aircraft was outside the Isle of Man,

and claims, or indicates that he intends to seek, asylum in the Isle of Man or evades, or attempts to evade, immigration control.

(2) The Governor may require a person who is responsible for a clandestine entrant to pay—

(a) a penalty in respect of the clandestine entrant;

(b) a penalty in respect of any person who was concealed with the clandestine entrant in the same transporter.

(2A) In imposing a penalty under subsection (2) the Governor—

(a) must specify an amount which does not exceed the maximum prescribed for the purpose of this paragraph,

(b) may, in respect of a clandestine entrant or a concealed person, impose separate penalties on more than one of the persons responsible for the clandestine entrant, and

(c) may not impose penalties in respect of a clandestine entrant or a concealed person which amount in aggregate to more than the maximum prescribed for the purpose of this paragraph.

(3) A penalty imposed under this section must be paid to the Governor before the end of the prescribed period.

(4) Where a penalty is imposed under subsection (2) on the driver of a vehicle who is an employee of the vehicle’s owner or hirer—

(a) the employee and the employer shall be jointly and severally liable for the penalty imposed on the driver (irrespective of whether a penalty is also imposed on the employer), and

(b) a provision of this Part about notification, objection or appeal shall have effect as if the penalty imposed on the driver were also imposed on the employer (irrespective of whether a penalty is also imposed on the employer in his capacity as the owner or hirer of the vehicle).

(4A) In the case of a detached trailer, subsection (4) shall have effect as if a reference to the driver were a reference to the operator.

(5) In the case of a clandestine entrant to whom subsection (1)(a) applies, each of the following is a responsible person—

(a) if the transporter is a ship or aircraft, the owner and captain;

(b) if it is a vehicle (but not a detached trailer), the owner, hirer and driver of the vehicle;

(c) if it is a detached trailer, the owner, hirer and operator of the trailer.

(6) In the case of a clandestine entrant to whom subsection (1)(b) or (c) applies, each of the following is a responsible person—

(a) if the transporter is a detached trailer, the owner, hirer and operator of the trailer;

(b) if it is not, the owner, hirer and driver of the vehicle.

(6A) Where a person falls within the definition of responsible person in more than one capacity, a separate penalty may be imposed on him under subsection (2) in respect of each capacity.

(7) Subject to any defence provided by section 34, it is immaterial whether a responsible person knew or suspected—

(a) that the clandestine entrant was concealed in the transporter; or

(b) that there were one or more other persons concealed with the clandestine entrant in the same transporter.

(8) Subsection (9) applies if a transporter (“the carried transporter”) is itself being carried in or on another transporter.

(9) If a person is concealed in the carried transporter, the question whether any other person is concealed with that person in the same transporter is to be determined by reference to the carried transporter and not by reference to the transporter in or on which it is carried.

(10) “Immigration control” means Isle of Man immigration control.

32A    Level of penalty: code of practice

(1) Codes of practice issued by the Secretary of State under this section as it has effect in the United Kingdom shall apply in respect of the Isle of Man with the necessary modifications.

(2) The Governor shall have regard to the code (in addition to any other matters he thinks relevant)—

(a) when imposing a penalty under section 32, and

(b) when considering a notice of objection under section 35(4).

33    Prevention of clandestine entrants: code of practice

Codes of practice issued by the Secretary of State under this section as it has effect in the United Kingdom shall apply in respect of the Isle of Man with the necessary modifications.

34    Defences to claim that penalty is due under section 32

(1) A person (“the carrier”) shall not be liable to the imposition of a penalty under section 32(2) if he has a defence under this section.

(2) It is a defence for the carrier to show that he, or an employee of his who was directly responsible for allowing the clandestine entrant to be concealed, was acting under duress.

(3) It is also a defence for the carrier to show that—

(a) he did not know, and had no reasonable grounds for suspecting, that a clandestine entrant was, or might be, concealed in the transporter;

(b) an effective system for preventing the carriage of clandestine entrants was in operation in relation to the transporter; and

(c) on the occasion in question the person or persons responsible for operating that system did so properly.

(4) In determining, for the purposes of this section, whether a particular system is effective, regard is to be had to the code of practice having effect in the Isle of Man by virtue of section 33.

(6) Where a person has a defence under subsection (2) in respect of a clandestine entrant, every other responsible person in respect of the clandestine entrant is also entitled to the benefit of the defence.

35    Procedure

(1) If the Governor decides that a person (“P”) is liable to one or more penalties under section 32, he must notify P of his decision.

(2) A notice under subsection (1) (a “penalty notice”) must—

(a) state the Governor’s reasons for deciding that P is liable to the penalty (or penalties);

(b) state the amount of the penalty (or penalties) to which P is liable;

(c) specify the date before which, and the manner in which, the penalty (or penalties) must be paid; and

(d) include an explanation of the steps—

(i) that P may take if he objects to the penalty;

(ii) that the Governor may take under this Part to recover any unpaid penalty.

(3) Subsection (4) applies where a person to whom a penalty notice is issued objects on the ground that—

(a) he is not liable to the imposition of a penalty, or

(b) the amount of the penalty is too high.

(4) The person may give a notice of objection to the Governor.

(5) A notice of objection must—

(a) be in writing,

(b) give the objector’s reasons, and

(c) be given before the end of such period as may be prescribed.

(6) Where the Governor receives a notice of objection to a penalty in accordance with this section he shall consider it and—

(a) cancel the penalty,

(b) reduce the penalty,

(c) increase the penalty, or

(d) determine to take no action under paragraphs (a) to (c).

(7) Where the Governor considers a notice of objection under subsection (6) he shall—

(a) inform the objector of his decision before the end of such period as may be prescribed or such longer period as he may agree with the objector,

(b) if he increases the penalty, issue a new penalty notice under subsection (1), and

(c) if he reduces the penalty, notify the objector of the reduced amount.

(9) The Governor may by regulations provide, in relation to detached trailers, for a penalty notice which is issued in such manner as may be prescribed to have effect as a penalty notice properly issued to the responsible person or persons concerned under this section.

(10) Any sum payable to the Governor as a penalty under section 32 may be recovered by the Treasury as a debt due to it.

(11) In proceedings for enforcement of a penalty under subsection (10) no question may be raised as to—

(a) liability to the imposition of the penalty, or

(b) its amount.

(12) A document which is to be issued to or served on a person outside the Isle of Man for the purpose of subsection (1) or (7) or in the course of proceedings under subsection (10) may be issued or served—

(a) in person,

(b) by post,

(c) by facsimile transmission, or

(d) in another prescribed manner.

(13) The Governor may by regulations provide that a document issued or served in a manner listed in subsection (12) in accordance with the regulations is to be taken to have been received at a time specified by or determined in accordance with the regulations.

35A    Appeal

(1) A person may appeal to the court against a penalty imposed on him under section 32 on the ground that—

(a) he is not liable to the imposition of a penalty, or

(b) the amount of the penalty is too high.

(2) On an appeal under this section the court may—

(a) allow the appeal and cancel the penalty,

(b) allow the appeal and reduce the penalty, or

(c) dismiss the appeal.

(3) An appeal under this section shall be a re-hearing of the Governor’s decision to impose a penalty and shall be determined having regard to—

(a) any code of practice under section 32A which has effect at the time of the appeal,

(b) the code of practice under section 33 which had effect at the time of the events to which the penalty relates, and

(c) any other matters which the court thinks relevant (which may include matters of which the Governor was unaware).

(4) Subsection (3) has effect despite any provision of the rules of court.

(5) An appeal may be brought by a person under this section against a penalty whether or not—

(a) he has given notice of objection under section 35(4);

(b) the penalty has been increased or reduced under section 35(6).

36    Power to detain vehicles etc in connection with penalties under section 32

(1) If a penalty notice has been issued under section 35, a senior officer may detain any relevant—

(a) vehicle,

(b) small ship,

(c) small aircraft,

until all penalties to which the notice relates, and any expenses reasonably incurred by the Governor in connection with the detention, have been paid.

(2) That power—

(a) may be exercised only if, in the opinion of the senior officer concerned, there is a significant risk that the penalty (or one or more of the penalties) will not be paid before the end of the prescribed period if the transporter is not detained; and

(b) may not be exercised if alternative security which the Governor considers is satisfactory, has been given.

(2A) A vehicle may be detained under subsection (1) only if—

(a) the driver of the vehicle is an employee of its owner or hirer,

(b) the driver of the vehicle is its owner or hirer, or

(c) a penalty notice is issued to the owner or hirer of the vehicle.

(2B) A senior officer may detain a relevant vehicle, small ship or small aircraft pending—

(a) a decision whether to issue a penalty notice,

(b) the issue of a penalty notice, or

(c) a decision whether to detain under subsection (1).

(2C) That power may not be exercised in any case—

(a) for longer than is necessary in the circumstances of the case, or

(b) after the expiry of the period of 24 hours beginning with the conclusion of the first search of the vehicle, ship or aircraft by an immigration officer after it arrived in the Isle of Man.

(3) If a transporter is detained under this section, the owner, consignor or any other person who has an interest in any freight or other thing carried in or on the transporter may remove it, or arrange for it to be removed, at such time and in such way as is reasonable.

(4) The detention of a transporter under this section is lawful even though it is subsequently established that the penalty notice on which the detention was based was ill-founded in respect of all or any of the penalties to which it related.

(5) But subsection (4) does not apply if the Governor was acting unreasonably in issuing the penalty notice.

36A    Detention in default of payment

(1) This section applies where a person to whom a penalty notice has been issued under section 35 fails to pay the penalty before the date specified in accordance with section 35(2)(c).

(2) The Governor may make arrangements for the detention of any vehicle, small ship or small aircraft which the person to whom the penalty notice was issued uses in the course of a business.

(3) A vehicle, ship, aircraft or wagon may be detained under subsection (2) whether or not the person to whom the penalty notice was issued owns it.

(4) But a vehicle may be detained under subsection (2) only if the person to whom the penalty notice was issued—

(a) is the owner or hirer of the vehicle, or

(b) was an employee of the owner or hirer of the vehicle when the penalty notice was issued.

(5) The power under subsection (2) may not be exercised while an appeal against the penalty under section 35A is pending or could be brought (ignoring the possibility of an appeal out of time with permission).

(6) The Governor shall arrange for the release of a vehicle, ship or aircraft detained under this section if the person to whom the penalty notice was issued pays—

(a) the penalty, and

(b) expenses reasonably incurred in connection with the detention.

37    Effect of detention

(1) This section applies if a transporter is detained under section 36(1).

(2) The person to whom the penalty notice was addressed, or the owner or any other person claiming an interest in the transporter, whose interests may be affected by detention of the transporter, may apply to the court for the transporter to be released.

(3) The court may release the transporter if it considers that—

(a) satisfactory security has been tendered in place of the transporter for the payment of the penalty alleged to be due and connected expenses;

(b) there is no significant risk that the penalty (or one or more of the penalties) and any connected expenses will not be paid; or

(c) there is a significant doubt as to whether the penalty is payable and the applicant has a compelling need to have the transporter released.

(3A) The court may also release the transporter on the application of the owner of the transporter under subsection (2) if—

(a) a penalty notice was not issued to the owner or an employee of his, and

(b) the court considers it right to release the transporter.

(3B) In determining whether to release a transporter under subsection (3A) the court shall consider—

(a) the extent of any hardship caused by detention,

(b) the extent (if any) to which the owner is responsible for the matters in respect of which the penalty notice was issued, and

(c) any other matter which appears to the court to be relevant (whether specific to the circumstances of the case or of a general nature).

(4) If the court has not ordered the release of the transporter, the Governor may sell it if the penalty in question and connected expenses are not paid before the end of the period of 84 days beginning with the date on which the detention began.

(5) “Connected expenses” means expenses reasonably incurred by the Governor in connection with the detention.

(5A) The power of sale under subsection (4) may be exercised only when no appeal against the imposition of the penalty is pending or can be brought (ignoring the possibility of an appeal out of time with permission).

(5B) The power of sale under subsection (4) shall lapse if not exercised within a prescribed period.

(6) Schedule 1 applies to the sale of transporters under this section.

(7) This section applies to a transporter detained under section 36A as it applies to a transporter detained under section 36(1); but for that purpose—

(a) the court may release the transporter only if the court considers that the detention was unlawful or under subsection (3A) (and subsection (3) shall not apply), and

(b) the reference in subsection (4) to the period of 84 days shall be taken as a reference to a period prescribed for the purpose of this paragraph.

Passengers without proper documents

40    Charge in respect of passenger without proper documents

(1) This section applies if an individual requiring leave to enter the Isle of Man arrives in the Isle of Man by ship or aircraft and, on being required to do so by an immigration officer, fails to produce—

(a) an immigration document which is in force and which satisfactorily establishes his identity and his nationality or citizenship, and

(b) if the individual requires a visa, a visa of the required kind.

(2) The Governor may charge the owner of the ship or aircraft, in respect of the individual, the sum of £2,000.

(3) The charge shall be payable to the Governor on demand.

(4) No charge shall be payable in respect of any individual who is shown by the owner to have produced the required document or documents to the owner or his employee or agent when embarking on the ship or aircraft for the voyage or flight to the Isle of Man.

(5) For the purpose of subsection (4) an owner shall be entitled to regard a document as—

(a) being what it purports to be unless its falsity is reasonably apparent, and

(b) relating to the individual producing it unless it is reasonably apparent that it does not relate to him.

(6) For the purposes of this section an individual requires a visa if—

(a) under the immigration rules he requires a visa for entry into the Isle of Man,

(9) In this section “immigration document” means—

(a) a passport, and

(b) a document which relates to a national of a country other than the United Kingdom and which is designed to serve the same purpose as a passport.

(10) The Governor may by order substitute a sum for the sum in subsection (2).

40A    Notification and objection

(1) If the Governor decides to charge a person under section 40, the Governor must notify the person of his decision.

(2) A notice under subsection (1) (a “charge notice”) must—

(a) state the Governor’s reasons for deciding to charge the person,

(b) state the amount of the charge,

(c) specify the date before which, and the manner in which, the charge must be paid,

(d) include an explanation of the steps that the person may take if he objects to the charge, and

(e) include an explanation of the steps that the Governor may take under this Part to recover any unpaid charge.

(3) Where a person on whom a charge notice is served objects to the imposition of the charge on him, he may give a notice of objection to the Governor.

(4) A notice of objection must—

(a) be in writing,

(b) give the objector’s reasons, and

(c) be given before the end of such period as may be prescribed.

(5) Where the Governor receives a notice of objection to a charge in accordance with this section, he shall—

(a) consider it, and

(b) determine whether or not to cancel the charge.

(6) Where the Governor considers a notice of objection, he shall inform the objector of his decision before the end of—

(a) such period as may be prescribed, or

(b) such longer period as he may agree with the objector.

(7) Any sum payable to the Governor as a charge under section 40 may be recovered by the Treasury as a debt due to it.

(8) In proceedings for enforcement of a charge under subsection (7) no question may be raised as to the validity of the charge.

(9) Subsections (12) and (13) of section 35 shall have effect for the purpose of this section as they have effect for the purpose of section 35(1), (7) and (10).

40B    Appeal

(1) A person may appeal to the court against a decision to charge him under section 40.

(2) On an appeal under this section the court may—

(a) allow the appeal and cancel the charge, or

(b) dismiss the appeal.

(3) An appeal under this section—

(a) shall be a re-hearing of the Governor’s decision to impose a charge, and

(b) may be determined having regard to matters of which the Governor was unaware.

(4) Subsection (3)(a) has effect despite any provision of the rules of court.

(5) An appeal may be brought by a person under this section against a decision to charge him whether or not he has given notice of objection under section 40A(3).

Interpretation

43    Interpretation of Part 2

In this Part—

“aircraft” includes hovercraft;

“captain” means the master of a ship or commander of an aircraft;

“concealed” includes being concealed in any freight, stores or other thing carried in or on the vehicle, ship or aircraft concerned;

“court” means the High Court;

“detached trailer” means a trailer, semi-trailer, caravan or any other thing which is designed or adapted for towing by a vehicle but which has been detached for transport—

(a)

in or on the vehicle concerned; or

(b)

in the ship or aircraft concerned (whether separately or in or on a vehicle);

“equipment”, in relation to an aircraft, includes—

(a)

any certificate of registration, maintenance or airworthiness of the aircraft;

(b)

any log book relating to the use of the aircraft; and

(c)

any similar document;

“hirer”, in relation to a vehicle, means any person who has hired the vehicle from another person;

“operating weight”, in relation to an aircraft, means the maximum total weight of the aircraft and its contents at which the aircraft may take off anywhere in the world, in the most favourable circumstances, in accordance with the certificate of airworthiness in force in respect of the aircraft;

“owner” includes, in relation to a ship or aircraft, the agent or operator of the ship or aircraft;

in relation to a transporter which is the subject of a hire-purchase agreement, includes the person in possession of it under that agreement;

“penalty notice” has the meaning given in section 35(2);

“senior officer” means an immigration officer not below the rank of chief immigration officer;

“ship” includes every description of vessel used in navigation;

“small aircraft” means an aircraft which has an operating weight of less than 5,700 kilogrammes;

“small ship” means a ship which has a gross tonnage of less than 500 tonnes;

“transporter” means a vehicle, ship or aircraft together with—

(a)

its equipment; and

(b)

any stores for use in connection with its operation.

“vehicle” includes a trailer, semi-trailer, caravan or other thing which is designed or adapted to be towed by another vehicle.

Part 7 – Power to arrest, search and fingerprint

Fingerprinting

141    Fingerprinting

(1) Fingerprints may be taken by an authorised person from a person to whom this section applies.

(2) Fingerprints may be taken under this section only during the relevant period.

(3) Fingerprints may not be taken under this section from a person under the age of sixteen (“the child”) except in the presence of a person of full age who is—

(a) the child’s parent or guardian; or

(b) a person who for the time being takes responsibility for the child.

(4) The person mentioned in subsection (3)(b) may not be an authorised person.

(5) “Authorised person” means—

(a) a constable;

(b) an immigration officer; or

(c) a prison officer.

(7) This section applies to—

(a) any person (“A”) who, on being required to do so by an immigration officer on his arrival in the Isle of Man, fails to produce a valid passport with photograph or some other document satisfactorily establishing his identity and nationality or citizenship;

(b) any person (“B”) who has been refused leave to enter the Isle of Man but has been temporarily admitted under paragraph 21 of Schedule 2 to the 1971 Act if an immigration officer reasonably suspects that B might break any condition imposed on him relating to residence or as to reporting to the police or an immigration officer;

(c) any person (“C”) in respect of whom a relevant immigration decision has been made;

(d) any person (“D”) who has been detained under paragraph 16 of Schedule 2 to the 1971 Act or arrested under paragraph 17 of that Schedule;

(f) any person (“F”) who is a dependant of any of those persons.

(8) “The relevant period” begins—

(a) for A, on his failure to produce the passport or other document;

(b) for B, on the decision to admit him temporarily;

(c) for C, on the service on him of notice of the relevant immigration decision by virtue of section 105 of the Nationality, Immigration and Asylum Act 2002;

(d) for D, on his detention or arrest;

(f) for F, at the same time as for the person whose dependant he is.

(9) “The relevant period” ends on the earliest of the following—

(a) the grant of leave to enter or remain in the Isle of Man;

(b) for A, B, C or D, his removal or deportation from the Isle of Man;

(c) for C—

(i) the time when the relevant immigration decision ceases to have effect, whether as a result of an appeal or otherwise, or

(ii) if a deportation order has been made against him, its revocation or its otherwise ceasing to have effect;

(d) for D, his release if he is no longer liable to be detained under paragraph 16 of Schedule 2 to the 1971 Act;

(f) for F, at the same time as for the person whose dependant he is.

(10) No fingerprints may be taken from A if the immigration officer considers that A has a reasonable excuse for the failure concerned.

(11) No fingerprints may be taken from B unless the decision to take them has been confirmed by a chief immigration officer.

(12) An authorised person may not take fingerprints from a person under the age of sixteen unless his decision to take them has been confirmed—

(a) if he is a constable, by a person designated for the purpose by the chief constable;

(b) if he is a person mentioned in subsection (5)(b), by a chief immigration officer;

(c) if he is a prison officer, by a person designated for the purpose by the governor of the prison;

(13) Neither subsection (3) nor subsection (12) prevents an authorised person from taking fingerprints if he reasonably believes that the person from whom they are to be taken is aged sixteen or over.

(14) For the purposes of subsection (7)(f), a person is a dependant of another person if—

(a) he is that person’s spouse or child under the age of eighteen; and

(b) he does not have a right of abode in the Isle of Man or indefinite leave to enter or remain in the Isle of Man.

(16) “Relevant immigration decision” means a decision of the kind mentioned in section 82(2)(g), (h), (i), (j) or (k) of the Nationality, Immigration and Asylum Act 2002.

142    Attendance for fingerprinting

(1) The Governor may, by notice in writing, require a person to whom section 141 applies to attend at a specified place for fingerprinting.

(2) In the case of a notice given to a person of a kind specified in section 141(7)(a) to (d) or (f) (in so far as it applies to a dependant of a person of a kind specified in section 141(7)(a) to (d)), the notice—

(a) must require him to attend during a specified period of at least seven days beginning with a day not less than seven days after the date given in the notice as its date of issue, and

(b) may require him to attend at a specified time of day or during specified hours.

(3) A constable or immigration officer may arrest without warrant a person who has failed to comply with a requirement imposed on him under this section (unless the requirement has ceased to have effect).

(4) Before a person arrested under subsection (3) is released—

(a) he may be removed to a place where his fingerprints may conveniently be taken; and

(b) his fingerprints may be taken (whether or not he is so removed).

(5) A requirement imposed under subsection (1) ceases to have effect at the end of the relevant period (as defined by section 141).

143    Destruction of fingerprints

(1) If they have not already been destroyed, fingerprints must be destroyed before the end of the specified period beginning with the day on which they were taken.

(2) If a person from whom fingerprints were taken proves that he is—

(a) a British citizen, or

(b) a Commonwealth citizen who has a right of abode in the Isle of Man as a result of section 2(1)(b) of the 1971 Act,

the fingerprints must be destroyed as soon as reasonably practicable.

(9) Fingerprints taken from F (within the meaning of section 141(7)) must be destroyed when fingerprints taken from the person whose dependant he is have to be destroyed.

(10) The obligation to destroy fingerprints under this section applies also to copies of fingerprints.

(11) The Governor must take all reasonably practicable steps to secure—

(a) that data which are held in electronic form and which relate to fingerprints which have to be destroyed as a result of this section are destroyed or erased; or

(b) that access to such data is blocked.

(12) The person to whom the data relate is entitled, on request, to a certificate issued by the Governor to the effect that he has taken the steps required by subsection (11).

(13) A certificate under subsection (12) must be issued within three months of the date of the request for it.

(15) “Specified period” means—

(a) such period as the Governor may specify by order;

(b) if no period is so specified, ten years.

144    Other methods of collecting data about physical characteristics

(1) The Governor may make regulations containing provisions equivalent to sections 141, 142 and 143 in relation to such other methods of collecting data about external physical characteristics as may be prescribed.

(2) In subsection (1) “external physical characteristics” includes, in particular, features of the iris or any other part of the eye.

Codes of practice

145    Codes of practice

(1) An immigration officer exercising any specified power to—

(a) arrest, question, search or take fingerprints from a person,

(b) enter and search premises, or

(c) seize property found on persons or premises,

must have regard to such provisions of a code as may be specified.

(2) Subsection (1) also applies to an authorised person exercising the power to take fingerprints conferred by section 141.

(2A) A person exercising a power under regulations made by virtue of section 144 must have regard to such provisions of a code as may be specified.

(3) Any specified provision of a code may have effect for the purposes of this section subject to such modifications as may be specified.

(4) “Specified” means specified in a direction given by the Governor.

(5) “Authorised person” has the same meaning as in section 141.

(6) “Code” means any code of practice for the time being in force under the Police Powers and Procedures Act 1998 (an Act of Tynwald).

Use of force

146    Use of force

(1) An immigration officer exercising any power conferred on him by the 1971 Act or this Act may, if necessary, use reasonable force.

(2) A person exercising a power under any of the following may if necessary use reasonable force—

(a) section 28CA, 28FA or 28FB of the 1971 Act (business premises: entry to arrest or search),

(b) section 141 or 142 of this Act, and

(c) regulations under section 144 of this Act.

Part 10 – Miscellaneous and supplemental

166    Regulations and orders

(3) Any rules, regulations or orders made under the Immigration Acts may—

(a) contain such incidental, supplemental, consequential and transitional provision as the person making it considers appropriate;

(b) make different provision for different cases or descriptions of case; and

(c) make different provision for different areas.

(4) Rules, regulations and orders made under the Immigration Acts by the Governor, the Council of Ministers, the Deemsters, the Clerk of the Rolls or any Department of the Isle of Man Government shall be laid before Tynwald as soon as practicable after they are made, and if Tynwald at the sitting at which they are laid or at the next following sitting resolves that they shall be annulled, they shall cease to have effect.

167    Interpretation

(1) In this Act—

“the 1971 Act” means the Immigration Act 1971;

“adjudicator” means an adjudicator designated by section 81 of the Nationality, Immigration and Asylum Act 2002;

“country” includes any territory;

“EEA State” means a State which is a Contracting Party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 as it has effect for the time being;

“the Human Rights Convention” means the Convention for the Protection of Human Rights and Fundamental Freedoms, agreed by the Council of Europe at Rome on 4th November 1950 as it has effect for the time being in relation to the Isle of Man;

“prescribed” means prescribed by regulations made by the Governor;

(2) The following expressions have the same meaning as in the 1971 Act—

“certificate of entitlement”;

“entry clearance”;

“illegal entrant”;

“immigration officer”;

“immigration rules”;

“port”;

“United Kingdom passport”;

“work permit”.

168    Expenditure and receipts

(1) There is to be paid out of money provided by Tynwald—

(a) any expenditure incurred by the Governor in consequence of this Act; and

(b) any increase attributable to this Act in the sums so payable by virtue of any other Act.

(2) Sums received under this Act shall be paid into the General Revenue of the Isle of Man.

170    Short title, commencement and extent

(1) This Act may be cited as the Immigration and Asylum Act 1999.

SCHEDULE 1 - Sale of transporters

Leave of court required

1.— (1) The sale of a transporter requires the leave of the court.

(2) The court is not to give its leave except on proof—

(a) that the penalty is or was due;

(b) that the person liable to pay it or any connected expenses has failed to do so; and

(c) that the transporter which the Governor seeks leave to sell is liable to sale.

Notice of proposed sale

2.   Before applying for leave to sell a transporter, the Governor must take such steps as may be prescribed—

(a) for bringing the proposed sale to the notice of persons whose interests may be affected by a decision of the court to grant leave; and

(b) for affording to any such person an opportunity of becoming a party to the proceedings if the Governor applies for leave.

2A.   Where the owner of a transporter is a party to an application for leave to sell it, in determining whether to give leave the court shall consider—

(a) the extent of any hardship likely to be caused by sale,

(b) the extent (if any) to which the owner is responsible for the matters in respect of which the penalty notice was issued, and

(c) any other matter which appears to the court to be relevant (whether specific to the circumstances of the case or of a general nature).

Duty to obtain best price

3.   If leave for sale is given, the Governor must secure that the transporter is sold for the best price that can reasonably be obtained.

Effect of failure to comply with paragraph 2 or 3

4.   Failure to comply with any requirement of paragraph 2 or 3 in respect of any sale—

(a) is actionable against the Governor at the suit of any person suffering loss in consequence of the sale; but

(b) after the sale has taken place, does not affect its validity.

Application of proceeds of sale

5.— (1) Any proceeds of sale arising from a sale under section 37 must be applied—

(a) in making prescribed payments; and

(b) in accordance with such provision as to priority of payments as may be prescribed.

(2) The regulations may, in particular, provide for proceeds of sale to be applied in payment—

(a) of customs or excise duty,

(b) of value added tax,

(c) of expenses incurred by the Governor,

(d) of any penalty which the court has found to be due,

(e) in the case of the sale of an aircraft, of charges due as a result of regulations made under section 73 of the Civil Aviation Act 1982,

(f) of any surplus to or among the person or persons whose interests in the transporter have been divested as a result of the sale,

but not necessarily in that order of priority.”