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Immigration BillPage 10

(ii) a statement made by the appellant under section 120.

12 Place from which appeal may be brought or continued

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

(2) 5For section 92 substitute—

92 Place from which an appeal may be brought or continued

(1) This section applies to determine the place from which an appeal under
section 82(1) may be brought or continued.

(2) In the case of an appeal under section 82(1)(a) (protection claim
10appeal)—

(a) the appeal must be brought from within the United Kingdom
unless the claim to which the appeal relates has been certified
under section 94(1) or (7) (claim clearly unfounded or removal
to safe third country);

(b) 15the appeal must be brought from outside the United Kingdom
if the claim to which the appeal relates has been certified under
section 94(1) or (7).

(3) In the case of an appeal under section 82(1)(b) (human rights claim
appeal)—

(a) 20the appeal must be brought from within the United Kingdom if
the claim to which the appeal relates—

(i) was made while the appellant was in the United
Kingdom, and

(ii) has not been certified under section 94(1) or (7) (claim
25clearly unfounded or removal to safe third country) or
section 94B (certification of human rights claims made
by persons liable to deportation);

(b) the appeal must be brought from outside the United Kingdom
if the claim to which the appeal relates—

(i) 30was made while the appellant was outside the United
Kingdom, or

(ii) has been certified under section 94(1) or (7) or section
94B.

(4) In the case of an appeal under section 82(1)(c) (revocation of protection
35status)—

(a) the appeal must be brought from within the United Kingdom if
the decision to which the appeal relates was made while the
appellant was in the United Kingdom;

(b) the appeal must be brought from outside the United Kingdom
40if the decision to which the appeal relates was made while the
appellant was outside the United Kingdom.

(5) If, after an appeal under section 82(1)(a) or (b) has been brought from
within the United Kingdom, the Secretary of State certifies the claim to
which the appeal relates under section 94(1) or (7) or section 94B, the
45appeal must be continued from outside the United Kingdom.

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(6) Where a person brings or continues an appeal under section 82(1)(a)
(refusal of protection claim) from outside the United Kingdom, for the
purposes of considering whether the grounds of appeal are satisfied,
the appeal is to be treated as if the person were not outside the United
5Kingdom.

(7) Where an appellant brings an appeal from within the United Kingdom
but leaves the United Kingdom before the appeal is finally determined,
the appeal is to be treated as abandoned unless the claim to which the
appeal relates has been certified under section 94(1) or (7) or section
1094B.

(3) After section 94A, insert—

94B Appeal from within the United Kingdom: certification of human
rights claims made by persons liable to deportation

(1) This section applies where a human rights claim has been made by a
15person (“P”) who is liable to deportation under—

(a) section 3(5)(a) of the Immigration Act 1971 (Secretary of State
deeming deportation conducive to public good), or

(b) section 3(6) of that Act (court recommending deportation
following conviction).

(2) 20The Secretary of State may certify the claim if the Secretary of State
considers that, despite the appeals process not having been begun or
not having been exhausted, removal of P to the country or territory to
which P is proposed to be removed, pending the outcome of an appeal
in relation to P’s claim, would not be unlawful under section 6 of the
25Human Rights Act 1998 (public authority not to act contrary to Human
Rights Convention).

(3) The grounds upon which the Secretary of State may certify a claim
under subsection (2) include (in particular) that P would not, before the
appeals process is exhausted, face a real risk of serious irreversible
30harm if removed to the country or territory to which P is proposed to
be removed.

13 Review of certain deportation decisions by Special Immigration Appeals
Commission

In the Special Immigration Appeals Commission Act 1997, after section 2D
35insert—

2E Jurisdiction: review of certain deportation decisions

(1) Subsection (2) applies in relation to a relevant deportation decision
which has been certified under section 97 or 97A(1) of the Nationality,
Immigration and Asylum Act 2002 (certification on grounds of national
40security etc).

(2) The person to whom the decision relates may apply to the Special
Immigration Appeals Commission to set aside the decision.

(3) In determining whether the decision should be set aside, the
Commission must apply the principles which would be applied in
45judicial review proceedings.

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(4) If the Commission decides that the decision should be set aside, it may
make any such order, or give any such relief, as may be made or given
in judicial review proceedings.

(5) In this section “relevant deportation decision” means a decision of the
5Secretary of State about the deportation of a person from the United
Kingdom, if and to the extent that—

(a) the decision is not subject to a right of appeal, or

(b) the decision (being subject to a right of appeal) gives rise to
issues which may not be raised on such an appeal.

14 10Article 8 of the ECHR: public interest considerations

After Part 5 of the Nationality, Immigration and Asylum Act 2002 insert—

Part 5A Article 8 of the ECHR: public interest considerations

117A Application of this Part

(1) 15This Part applies where a court or tribunal is required to determine
whether a decision made under the Immigration Acts—

(a) breaches a person’s right to respect for private and family life
under Article 8, and

(b) as a result would be unlawful under section 6 of the Human
20Rights Act 1998.

(2) In considering the public interest question, the court or tribunal must
(in particular) have regard—

(a) in all cases, to the considerations listed in section 117B, and

(b) in cases concerning the deportation of foreign criminals, to the
25considerations listed in section 117C.

(3) In subsection (2), “the public interest question” means the question of
whether an interference with a person’s right to respect for private and
family life is justified under Article 8(2).

117B Article 8: public interest considerations applicable in all cases

(1) 30The maintenance of effective immigration controls is in the public
interest.

(2) It is in the public interest, and in particular in the interests of the
economic well-being of the United Kingdom, that persons who seek to
enter or remain in the United Kingdom are able to speak English,
35because persons who can speak English—

(a) are less of a burden on taxpayers, and

(b) are better able to integrate into society.

(3) It is in the public interest, and in particular in the interests of the
economic well-being of the United Kingdom, that persons who seek to
40enter or remain in the United Kingdom are financially independent,
because such persons—

(a) are not a burden on taxpayers, and

(b) are better able to integrate into society.

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(4) Little weight should be given to—

(a) a private life, or

(b) a relationship formed with a qualifying partner,

that is established by a person at a time when the person is in the United
5Kingdom unlawfully.

(5) Little weight should be given to a private life established by a person at
a time when the person’s immigration status is precarious.

(6) In the case of a person who is not liable to deportation, the public
interest does not require the person’s removal where—

(a) 10the person has a genuine and subsisting parental relationship
with a qualifying child, and

(b) it would not be reasonable to expect the child to leave the
United Kingdom.

117C Article 8: additional considerations in cases involving foreign
15criminals

(1) The deportation of foreign criminals is in the public interest.

(2) The more serious the offence committed by a foreign criminal, the
greater is the public interest in deportation of the criminal.

(3) In the case of a foreign criminal (“C”) who has not been sentenced to a
20period of imprisonment of four years or more, the public interest
requires C’s deportation unless Exception 1 or Exception 2 applies.

(4) Exception 1 applies where C—

(a) has been lawfully resident in the United Kingdom for most of
C’s life,

(b) 25is socially and culturally integrated in the United Kingdom, and

(c) there would be very significant obstacles to C’s integration into
the country to which C is proposed to be deported.

(5) Exception 2 applies where C has a genuine and subsisting relationship
with a qualifying partner, or a genuine and subsisting parental
30relationship with a qualifying child, and the effect of C’s deportation on
the partner or child would be unduly harsh.

(6) In the case of a foreign criminal who has been sentenced to a period of
imprisonment of at least four years, the public interest requires
deportation unless there are very compelling circumstances, over and
35above those described in Exceptions 1 and 2.

(7) The considerations in subsections (1) to (6) are to be taken into account
where a court or tribunal is considering a decision to deport a foreign
criminal only to the extent that the reason for the decision was the
offence or offences for which the criminal has been convicted.

117D 40Interpretation of this Part

(1) In this Part—

(2) In this Part, “foreign criminal” means a person—

(a) 10who is not a British citizen,

(b) who has been convicted in the United Kingdom of an offence,
and

(c) who—

(i) has been sentenced to a period of imprisonment of at
15least 12 months,

(ii) has been convicted of an offence that has caused serious
harm, or

(iii) is a persistent offender.

(3) For the purposes of subsection (2)(b), a person subject to an order
20under—

(a) section 5 of the Criminal Procedure (Insanity) Act 1964 (insanity
etc),

(b) section 57 of the Criminal Procedure (Scotland) Act 1995
(insanity etc), or

(c) 25Article 50A of the Mental Health (Northern Ireland) Order 1986
(insanity etc),

has not been convicted of an offence.

(4) In this Part, references to a person who has been sentenced to a period
of imprisonment of a certain length of time—

(a) 30do not include a person who has received a suspended sentence
(unless a court subsequently orders that the sentence or any
part of it (of whatever length) is to take effect);

(b) do not include a person who has been sentenced to a period of
imprisonment of that length of time only by virtue of being
35sentenced to consecutive sentences amounting in aggregate to
that length of time;

(c) include a person who is sentenced to detention, or ordered or
directed to be detained, in an institution other than a prison
(including, in particular, a hospital or an institution for young
40offenders) for that length of time; and

(d) include a person who is sentenced to imprisonment or
detention, or ordered or directed to be detained, for an
indeterminate period, provided that it may last for at least that
length of time.

(5) 45If any question arises for the purposes of this Part as to whether a
person is a British citizen, it is for the person asserting that fact to prove
it.

Immigration BillPage 15

Part 3 Access to services etc

CHAPTER 1 Residential tenancies

Key interpretation

15 5Residential tenancy agreement

(1) This section applies for the purposes of this Chapter.

(2) “Residential tenancy agreement” means a tenancy which—

(a) grants a right of occupation of premises for residential use,

(b) provides for payment of rent (whether or not a market rent), and

(c) 10is not an excluded agreement.

(3) In subsection (2), “tenancy” includes—

(a) any lease, licence, sub-lease or sub-tenancy, and

(b) an agreement for any of those things,

and in this Chapter references to “landlord” and “tenant”, and references to
15premises being “leased”, are to be read accordingly.

(4) For the purposes of subsection (2)(a), an agreement grants a right of occupation
of premises “for residential use” if, under the agreement, one or more adults
have the right to occupy the premises as their only or main residence (whether
or not the premises may also be used for other purposes).

(5) 20In subsection (2)(b) “rent” includes any sum paid in the nature of rent.

(6) In subsection (2)(c) “excluded agreement” means any agreement of a
description for the time being specified in Schedule 3.

(7) The Secretary of State may by order amend Schedule 3 so as to—

(a) add a new description of excluded agreement,

(b) 25remove any description, or

(c) amend any description.

16 Persons disqualified by immigration status or with limited right to rent

(1) For the purposes of this Chapter, a person (“P”) is disqualified as a result of
their immigration status from occupying premises under a residential tenancy
30agreement if—

(a) P is not a relevant national, and

(b) P does not have a right to rent in relation to the premises.

(2) P does not have a “right to rent” in relation to premises if—

(a) P requires leave to enter or remain in the United Kingdom but does not
35have it, or

(b) P’s leave to enter or remain in the United Kingdom is subject to a
condition preventing P from occupying the premises.

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(3) But P is to be treated as having a right to rent in relation to premises (in spite
of subsection (2)) if the Secretary of State has granted P permission for the
purposes of this Chapter to occupy premises under a residential tenancy
agreement.

(4) 5References in this Chapter to a person with a “limited right to rent” are
references to—

(a) a person who has been granted leave to enter or remain in the United
Kingdom for a limited period, or

(b) a person who—

(i) 10is not a relevant national, and

(ii) 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.

(5) In this section “relevant national” means—

(a) 15a British citizen,

(b) a national of an EEA State other than the United Kingdom, or

(c) a national of Switzerland.

Penalty notices

17 Persons disqualified by immigration status not to be leased premises

(1) 20A landlord must not authorise an adult to occupy premises under a residential
tenancy agreement if the adult is disqualified as a result of their immigration
status.

(2) A landlord is to be taken to “authorise” an adult to occupy premises in the
circumstances mentioned in subsection (1) if (and only if) there is a
25contravention of this section.

(3) There is a contravention of this section in either of the following cases.

(4) The first case is where a residential tenancy agreement is entered into that, at
the time of entry, grants a right to occupy premises to—

(a) a tenant who is disqualified as a result of their immigration status,

(b) 30another adult named in the agreement who is disqualified as a result of
their immigration status, or

(c) another adult not named in the agreement who is disqualified as a
result of their immigration status (subject to subsection (6)).

(5) The second case is where—

(a) 35a residential tenancy agreement is entered into that grants a right to
occupy premises on an adult with a limited right to rent,

(b) the adult later becomes a person disqualified as a result of their
immigration status, and

(c) the adult continues to occupy the premises after becoming disqualified.

(6) 40There is a contravention as a result of subsection (4)(c) only if—

(a) reasonable enquiries were not made of the tenant before entering into
the agreement as to the relevant occupiers, or

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(b) reasonable enquiries were so made and it was, or should have been,
apparent from the enquiries that the adult in question was likely to be
a relevant occupier.

(7) Any term of a residential tenancy agreement that prohibits occupation of
5premises by a person disqualified by their immigration status is to be ignored
for the purposes of determining whether there has been a contravention of this
section if—

(a) the landlord knew when entering into the agreement that the term
would be breached, or

(b) 10the prescribed requirements were not complied with before entering
into the agreement.

(8) It does not matter for the purposes of this section whether or not—

(a) a right of occupation is exercisable on entering into an agreement or
from a later date;

(b) 15a right of occupation is granted unconditionally or on satisfaction of a
condition.

(9) A contravention of this section does not affect the validity or enforceability of
any provision of a residential tenancy agreement by virtue of any rule of law
relating to the validity or enforceability of contracts in circumstances involving
20illegality.

(10) In this Chapter—

18 Penalty notices: landlords

(1) 30If there is a contravention of section 17, the Secretary of State may give the
responsible landlord a notice requiring the payment of a penalty.

(2) The amount of the penalty is such an amount as the Secretary of State considers
appropriate, but the amount must not exceed £3,000.

(3) “Responsible landlord” means—

(a) 35in relation to a pre-grant contravention, the landlord who entered into
the residential tenancy agreement;

(b) in relation to a post-grant contravention, the person who is the landlord
under the agreement at the time of the contravention.

(4) But if there is a superior landlord in relation to the residential tenancy
40agreement who is responsible for the purposes of this section, the “responsible
landlord” means that superior landlord (and references to the landlord in the
following provisions of this Chapter are to be read accordingly).

(5) A superior landlord is “responsible for the purposes of this section” if
arrangements in writing have been made in relation to the residential tenancy
45agreement between the landlord and the superior landlord under which the
superior landlord accepts responsibility for—

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(a) contraventions of section 17 generally, or

(b) contraventions of a particular description and the contravention in
question is of that description.

(6) The Secretary of State may by order amend the amount for the time being
5specified in subsection (2).

19 Excuses available to landlords

(1) This section applies where a landlord is given a notice under section 18
requiring payment of a penalty.

(2) Where the notice is given for a pre-grant contravention, the landlord is excused
10from paying the penalty if the landlord shows that—

(a) the prescribed requirements were complied with before the residential
tenancy agreement was entered into, or

(b) a person acting as the landlord’s agent is responsible for the
contravention (see section 20(2)).

(3) 15The prescribed requirements may be complied with for the purposes of
subsection (2)(a) at any time before the residential tenancy agreement is
entered into.

(4) But where compliance with the prescribed requirements discloses that a
relevant occupier is a person with a limited right to rent, the landlord is
20excused under subsection (2)(a) only if the requirements are complied with in
relation to that occupier within such period as may be prescribed.

(5) The excuse under subsection (2)(a) or (b) is not available if the landlord knew
that entering into the agreement would contravene section 17.

(6) Where the notice is given for a post-grant contravention, the landlord is
25excused from paying the penalty if any of the following applies—

(a) the landlord has notified the Secretary of State of the contravention as
soon as reasonably practicable;

(b) a person acting as the landlord’s agent is responsible for the
contravention;

(c) 30the eligibility period in relation to the limited right occupier whose
occupation caused the contravention has not expired.

(7) For the purposes of subsection (6)(a), the landlord is to be taken to have
notified the Secretary of State of the contravention “as soon as reasonably
practicable” if the landlord—

(a) 35complied with the prescribed requirements in relation to each limited
right occupier at the end of the eligibility period, and

(b) notified the Secretary of State of the contravention without delay on it
first becoming apparent that the contravention had occurred.

(8) Notification under subsection (6)(a) must be in the prescribed form and
40manner.

(9) In this Chapter “limited right occupier”, in relation to a residential tenancy
agreement, means a relevant occupier who had a limited right to rent at the
time when the occupier was first granted a right to occupy the premises under
the agreement.

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20 Penalty notices: agents

(1) Subsection (3) applies where—

(a) a landlord contravenes section 17, and

(b) a person acting as the landlord’s agent (“the agent”) is responsible for
5the contravention.

(2) For the purposes of this Chapter, an agent is responsible for a landlord’s
contravention of section 17 if (and only if)—

(a) the agent acts in the course of a business, and

(b) under arrangements made with the landlord in writing, the agent was
10under an obligation for the purposes of this Chapter to comply with the
prescribed requirements on behalf of the landlord.

(3) The Secretary of State may give the agent a notice requiring the agent to pay a
penalty.

(4) The amount of the penalty is such an amount as the Secretary of State considers
15appropriate, but the amount must not exceed £3,000.

(5) The Secretary of State may by order amend the amount for the time being
specified in subsection (4).

21 Excuses available to agents

(1) This section applies where an agent is given a notice under section 20 requiring
20payment of a penalty.

(2) Where the notice is given for a pre-grant contravention, the agent is excused
from paying the penalty if the agent shows that the prescribed requirements
were complied with before the residential tenancy agreement was entered into.

(3) The prescribed requirements may be complied with for the purposes of
25subsection (2) at any time before the residential tenancy agreement is entered
into.

(4) But where compliance with the prescribed requirements discloses that a
relevant occupier is a person with a limited right to rent, the agent is excused
under subsection (2) only if the requirements are complied with in relation to
30that occupier within such period as may be prescribed.

(5) The excuse under subsection (2) is not available if the agent—

(a) knew that the landlord would contravene section 17 by entering into
the agreement,

(b) had sufficient opportunity to notify the landlord of that fact before the
35landlord entered into the agreement, but

(c) did not do so.

(6) Where the notice is given for a post-grant contravention, the agent is excused
from paying the penalty if either of the following applies—

(a) the agent has notified the Secretary of State and the landlord of the
40contravention as soon as reasonably practicable;

(b) the eligibility period in relation to the limited right occupier whose
occupation caused the contravention has not expired.

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