Immigration Bill (HC Bill 110)

Part 1 Removal and other powers

Removal directions

1 Removal of persons unlawfully in the United Kingdom

5For section 10 of the Immigration and Asylum Act 1999, substitute—

“10 Removal of persons unlawfully in the United Kingdom

(1) A person may be removed from the United Kingdom under the
authority of the Secretary of State or an immigration officer if the
person requires leave to enter or remain in the United Kingdom but
10does not have it.

(2) Where a person is liable to be or has been removed from the United
Kingdom under subsection (1), a member of the person’s family may
also be removed from the United Kingdom under the authority of the
Secretary of State or an immigration officer.

(3) 15For the purposes of removing a person from the United Kingdom
under subsection (1) or (2), the Secretary of State or an immigration
officer may give any such direction for the removal of the person as
may be given under paragraphs 8 to 10 of Schedule 2 to the 1971 Act.

(4) But subsection (3) does not apply where a deportation order is in force
against a person (and any directions for such a person’s removal must
be given under Schedule 3 to the 1971 Act).

(5) The following paragraphs of Schedule 2 to the 1971 Act apply in
5relation to directions under subsection (3) (and the persons subject to
those directions) as they apply in relation to directions under
paragraphs 8 to 10 of Schedule 2 (and the persons subject to those
directions)—

(a) paragraph 11 (placing of person on board ship or aircraft);

(b) 10paragraph 16(2) to (4) (detention of person where reasonable
grounds for suspecting removal directions may be given or
pending removal in pursuance of directions);

(c) paragraph 17 (arrest of person liable to be detained and search
of premises for person liable to arrest);

(d) 15paragraph 18 (supplementary provisions on detention);

(e) paragraph 18A (search of detained person);

(f) paragraphs 19 and 20 (payment of expenses of custody etc);

(g) paragraph 21 (temporary admission to UK of person liable to
detention);

(h) 20paragraphs 22 to 25 (bail);

(i) paragraphs 25A to 25E (searches etc).

(6) The Secretary of State may by regulations make further provision about
the removal of family members under this section or any other
provision of the Immigration Acts, and in particular about—

(a) 25when a person is considered to be a family member;

(b) the time period during which a family member may be
removed;

(c) whether a family member to be removed is to be given notice,
and, if so—

(i) 30the effect that being given notice has on the person’s
leave, and

(ii) how notice is to be served.”

Powers of immigration officers

2 Enforcement powers

35Schedule 1 (enforcement powers) has effect.

Bail

3 Immigration bail: repeat applications and effect of removal directions

(1) Schedule 2 to the Immigration Act 1971 (administrative provisions as to control
on entry etc) is amended as follows.

(2) 40In paragraph 22 (bail) at the end insert—

“(4) A person must not be released on bail in accordance with this
paragraph without the consent of the Secretary of State if—

(a) directions for the removal of the person from the United
Kingdom are for the time being in force, and

(b) the directions require the person to be removed from the
United Kingdom within the period of 14 days starting with
5the date of the decision on whether the person should be
released on bail.”

(3) In paragraph 25—

(a) the existing paragraph is re-numbered as sub-paragraph (1);

(b) in that sub-paragraph, for “may” substitute “must”;

(c) 10after that sub-paragraph insert—

“(2) Tribunal Procedure Rules must secure that, where the First-
tier Tribunal has decided not to release a person on bail under
paragraph 22, the Tribunal is required to dismiss without a
hearing any further application by the person for release on
15bail (whether under paragraph 22 or otherwise) that is made
during the period of 28 days starting with the date of the
Tribunal’s decision, unless the person demonstrates to the
Tribunal that there has been a material change in
circumstances.”

(4) 20In paragraph 29 (grant of bail pending appeal), in sub-paragraph (1), at the end
insert “(and paragraph 22 does not apply)”.

(5) In paragraph 30 (restrictions on grant of bail pending appeal), in sub-
paragraph (1)—

(a) after “if” insert “— (a)”;

(b) 25for “or the power to give such directions is for the time being
exercisable” substitute “and

(b) the directions require the person to be removed from
the United Kingdom within the period of 14 days
starting with the date of the decision on whether the
30person should be released on bail.”

(6) After paragraph 33, insert—

“33A (1) Tribunal Procedure Rules must make provision with respect to
applications to the First-tier Tribunal under paragraphs 29 to 33 and
matters arising out of such applications.

(2) 35Tribunal Procedure Rules must secure that, where the First-tier
Tribunal has decided not to release a person on bail under paragraph
29, the Tribunal is required to dismiss without a hearing any further
application by the person for release on bail (whether under
paragraph 29 or otherwise) that is made during the period of 28 days
40starting with the date of the Tribunal’s decision, unless the person
demonstrates to the Tribunal that there has been a material change in
circumstances.”

Biometrics

4 Provision of biometric information with immigration applications

(1) Section 126 of the Nationality, Immigration and Asylum Act 2002 (power to
require provision of physical data with certain immigration applications) is
5amended as follows.

(2) In subsection (2), after paragraph (c) insert—

“(d) a transit visa (within the meaning of section 41 of the
Immigration and Asylum Act 1999), or

(e) a document issued as evidence that a person who is not a
10national of an EEA state or Switzerland is entitled to enter or
remain in the United Kingdom by virtue of an enforceable EU
right or of any provision made under section 2(2) of the
European Communities Act 1972.”

(3) In subsection (4), after paragraph (f) insert—

“(fa) 15provide for biometric information to be recorded on any
document issued as a result of the application in relation to
which the information was provided;”.

(4) In subsection (9), after the definition of “code” insert—

• ““document” includes a card or sticker and any other method of
  20recording information (whether in writing or by the use of
  electronic or other technology or by a combination of
  methods),”.

5 Identifying persons liable to detention

In paragraph 18(2) of Schedule 2 to the Immigration Act 1971 (power to take
25steps for identifying persons detained under paragraph 16 of that Schedule)
after “detained” insert “or liable to be detained”.

6 Provision of biometric information with citizenship applications

(1) Section 41 of the British Nationality Act 1981 (regulations for giving effect to
the Act) is amended as follows.

(2) 30In subsection (1), after paragraph (b) insert—

“(bza) requiring an application for registration or naturalisation of a
person as a British citizen to be accompanied by biometric
information, or enabling an authorised person to require an
individual to whom such an application relates to provide
35biometric information;”.

(3) After subsection (1) insert—

“(1ZA) In subsection (1)(bza) “authorised person” and “biometric information”
have the same meaning as in section 126 of the Nationality,
Immigration and Asylum Act 2002.

(1ZB) 40Section 126(4) to (7) of that Act applies to regulations under subsection
(1)(bza) as it applies to regulations under section 126(1) of that Act.

(1ZC) Section 8 of the UK Borders Act 2007 (power to make regulations about
use and retention of biometric information) applies to biometric
information provided in accordance with regulations under subsection
(1)(bza) as it applies to biometric information provided in accordance
5with regulations under section 5(1) of that Act.

(1ZD) But (despite section 8(5)(b) of that Act) regulations made by virtue of
subsection (1ZC) may provide for photographs of a person who is
registered or naturalised as a British citizen to be retained until the
person is issued with a United Kingdom passport describing the person
10as a British citizen.”

(4) In subsection (8)(b) for “(1)(bc)” substitute “(1)(bza), (bc)”.

7 Biometric immigration documents

After section 7(2) of the UK Borders Act 2007 (effect of failure to comply with
regulations about biometric immigration documents) insert—

“(2A) 15If the regulations require a biometric immigration document to be used
in connection with an application or claim, they may require or permit
the application or claim to be disregarded or refused if that requirement
is not complied with.”

8 Meaning of “biometric information”

(1) 20Section 15 of the UK Borders Act 2007 (biometric immigration documents:
interpretation) is amended as follows.

(2) In subsection (1), omit paragraphs (b) and (c).

(3) After subsection (1) insert—

“(1A) For the purposes of section 5 “biometric information” means—

(a) 25information about a person’s external physical characteristics
(including in particular fingerprints and features of the iris),
and

(b) any other information about a person’s physical characteristics
specified in an order made by the Secretary of State.

(1B) 30An order under subsection (1A)(b)—

(a) may specify only information that can be obtained or recorded
by an external examination of a person;

(b) must not specify information about a person’s DNA.

(1C) Section 6(6) applies to an order under subsection (1A)(b) as it applies to
35regulations under section 5(1).”

(4) Schedule 2 (which amends other enactments) has effect.

9 Safeguards for children

(1) Schedule 2 to the Immigration Act 1971 (entry control) is amended as follows.

(2) In paragraph 4 (power to take biometric information on examination), after

sub-paragraph (6) (as inserted by paragraph 1(3) of Schedule 2) insert—

“(7) A person (“P”) who is under 16 may not be required to provide
biometric information under sub-paragraph (5) unless—

(a) the decision to require P to provide the information has been
5confirmed by a chief immigration officer, and

(b) the information is provided in the presence of a person of full
age who is—

(i) P’s parent or guardian, or

(ii) a person who for the time being takes responsibility
10for P.

(8) The person mentioned in sub-paragraph (7)(b)(ii) may not be—

(a) a person who is entitled to require the provision of
information under sub-paragraph (5) (an “authorised
person”), or

(b) 15an officer of the Secretary of State who is not such a person.

(9) Sub-paragraph (7) does not prevent an authorised person requiring
the provision of biometric information by a person the authorised
person reasonably believes to be 16 or over.”

(3) In paragraph 18 (power to take biometric information from detained persons),
20after sub-paragraph (2A) insert—

ERROR:This is very likely an error in markup in the FM document. Amendments generally should not occur nested in this manner [Paragraph 4(7) to (9) applies to sub-paragraph (2) as it applies to paragraph 4(5).\xd3 ]

“(2B) Paragraph 4(7) to (9) applies to sub-paragraph (2) as it applies to
paragraph 4(5).””

10 Use and retention of biometric information

(1) For section 8 of the UK Borders Act 2007 substitute—

“8 25Use and retention of biometric information

(1) The Secretary of State must by regulations make provision about the
use and retention by the Secretary of State of biometric information
provided in accordance with regulations under section 5(1).

(2) The regulations must provide that biometric information may be
30retained only if the Secretary of State thinks that it is necessary to retain
it for use in connection with—

(a) the exercise of a function by virtue of the Immigration Acts, or

(b) the exercise of a function in relation to nationality.

(3) The regulations may include provision permitting biometric
35information retained by virtue of subsection (2) also to be used—

(a) in connection with the prevention, investigation or prosecution
of an offence,

(b) for a purpose which appears to the Secretary of State to be
required in order to protect national security,

(c) 40in connection with identifying persons who have died, or are
suffering from illness or injury,

(d) for the purpose of ascertaining whether a person has acted
unlawfully, or has obtained or sought anything to which the
person is not legally entitled, and

(e) for such other purposes (whether in accordance with functions
under an enactment or otherwise) as the regulations may
specify.

(4) The regulations must include provision about the destruction of
5biometric information.

(5) In particular the regulations must require the Secretary of State to take
all reasonable steps to ensure that biometric information is destroyed if
the Secretary of State—

(a) no longer thinks that it is necessary to retain the information for
10use as mentioned in subsection (2), or

(b) is satisfied that the person to whom the information relates is a
British citizen, or a Commonwealth citizen who has a right of
abode in the United Kingdom as a result of section 2(1)(b) of the
Immigration Act 1971.

(6) 15The regulations must also—

(a) require that any requirement to destroy biometric information
by virtue of the regulations also applies to copies of the
information, and

(b) require the Secretary of State to take all reasonable steps to
20ensure—

(i) that data held in electronic form which relates to
biometric information which has to be destroyed by
virtue of the regulations is destroyed or erased, or

(ii) that access to such data is blocked.

(7) 25But a requirement to destroy biometric information or data is not to
apply if and in so far as the information or data is retained in
accordance with and for the purposes of another power.

(8) The regulations must include provision—

(a) entitling a person whose biometric information has to be
30destroyed by virtue of the regulations, on request, to a
certificate issued by the Secretary of State to the effect that the
Secretary of State has taken the steps required by virtue of
subsection (6)(b), and

(b) requiring such a certificate to be issued within the period of 3
35months beginning with the date on which the request for it is
received by the Secretary of State.

(9) Section 6(6) applies to regulations under this section as it applies to
regulations under section 5(1).”

(2) In the Immigration and Asylum Act 1999, after section 144 insert—

“144A 40 Use and retention of fingerprints etc.

(1) Section 8 of the UK Borders Act 2007 (power to make regulations about
use and retention of biometric information) applies to—

(a) fingerprints taken by virtue of section 141, and

(b) biometric information taken by virtue of regulations under
45section 144,

as it applies to biometric information provided in accordance with
regulations under section 5(1) of that Act.

(2) Regulations made by virtue of subsection (1)(a) must require
fingerprints taken from a person (“F”) by virtue of section 141(7)(f) to
be destroyed when fingerprints taken from the person whose
dependant F is are destroyed.

(3) 5Regulations made by virtue of subsection (1)(b) must make equivalent
provision in relation to biometric information taken by virtue of any
provision of regulations under section 144 which is equivalent to
section 141(7)(f).”

(3) In section 126 of the Nationality, Immigration and Asylum Act 2002 (power to
10require provision of physical data with certain immigration applications), after
subsection (8) insert—

“(8A) Section 8 of the UK Borders Act 2007 (power to make regulations about
use and retention of biometric information) applies to biometric
information provided in accordance with regulations under subsection
15(1) as it applies to biometric information provided in accordance with
regulations under section 5(1) of that Act.”

Part 2 Appeals etc

11 Right of appeal to First-tier Tribunal

(1) 20Part 5 of the Nationality, Immigration and Asylum Act 2002 (immigration and
asylum appeals) is amended as follows.

(2) For section 82 substitute—

“82 Right of appeal to the Tribunal

(1) A person (“P”) may appeal to the Tribunal where—

(a) 25the Secretary of State has decided to refuse a protection claim
made by P,

(b) the Secretary of State has decided to refuse a human rights claim
made by P, or

(c) the Secretary of State has decided to revoke P’s protection
30status.

(2) For the purposes of this Part—

(a) a “protection claim” is a claim made by a person (“P”) that
removal of P from the United Kingdom—

(i) would breach the United Kingdom’s obligations under
35the Refugee Convention, or

(ii) would breach the United Kingdom’s obligations in
relation to persons eligible for a grant of humanitarian
protection;

(b) P’s protection claim is refused if the Secretary of State makes
40one or more of the following decisions—

(i) that removal of P from the United Kingdom would not
breach the United Kingdom’s obligations under the
Refugee Convention;

(ii) that removal of P from the United Kingdom would not
breach the United Kingdom’s obligations in relation to
persons eligible for a grant of humanitarian protection;

(c) a person has “protection status” if the person has been granted
5leave to enter or remain in the United Kingdom as a refugee or
as a person eligible for a grant of humanitarian protection;

(d) “humanitarian protection” is to be construed in accordance with
the immigration rules;

(e) “refugee” has the same meaning as in the Refugee Convention.

(3) 10The right of appeal under subsection (1) is subject to the exceptions and
limitations specified in this Part.”

(3) Sections 83 and 83A (appeal rights in respect of asylum claims) are repealed.

(4) For section 84 substitute—

“84 Grounds of appeal

(1) 15An appeal under section 82(1)(a) (refusal of protection claim) must be
brought on one or more of the following grounds—

(a) that removal of the appellant from the United Kingdom would
breach the United Kingdom’s obligations under the Refugee
Convention;

(b) 20that removal of the appellant from the United Kingdom would
breach the United Kingdom’s obligations in relation to persons
eligible for a grant of humanitarian protection;

(c) that removal of the appellant from the United Kingdom would
be unlawful under section 6 of the Human Rights Act 1998
25(public authority not to act contrary to Human Rights
Convention).

(2) An appeal under section 82(1)(b) (refusal of human rights claim) must
be brought on the ground that the decision is unlawful under section 6
of the Human Rights Act 1998.

(3) 30An appeal under section 82(1)(c) (revocation of protection status) must
be brought on one or more of the following grounds—

(a) that the decision to revoke the appellant’s protection status
breaches the United Kingdom’s obligations under the Refugee
Convention;

(b) 35that the decision to revoke the appellant’s protection status
breaches the United Kingdom’s obligations in relation to
persons eligible for a grant of humanitarian protection.”

(5) In section 85 (matters to be considered), for subsection (5) substitute—

“(5) But the Tribunal must not consider a new matter unless the Secretary of
40State has given the Tribunal consent to do so.

(6) A matter is a “new matter” if—

(a) it constitutes a ground of appeal of a kind listed in section 84 or
any reason that the appellant has for wishing to enter or remain
in the United Kingdom, and

(b) 45the Secretary of State has not previously considered the matter
in the context of—

(i) the decision mentioned in section 82(1), or