Counter-Terrorism and Security Bill (HC Bill 142)

Counter-Terrorism and Security BillPage 30

(4) An immigration officer or customs official to whom a direction is given
under paragraph 2(9) must tell the person to whom the travel document in
question relates that—

(a) the person is suspected of intending to leave Great Britain or (as the
5case may be) the United Kingdom for the purpose of involvement in
terrorism-related activity outside the United Kingdom, and

(b) a constable is therefore entitled under this Schedule to retain the
document while the matter is considered by a senior police officer.

This does not apply if the immigration officer or customs official expects the
10application for authorisation to be dealt with immediately.

(5) If an application for authorisation is granted—

(a) the travel document must be passed to a constable if it is not already
in the possession of a constable, and

(b) paragraph 5 applies.

(6) 15If an application for authorisation is refused, the travel document must be
returned to the person as soon as possible.

(7) A senior police officer may grant an application for authorisation only if
satisfied that there are reasonable grounds for the suspicion referred to in
paragraph 2(1) or (2).

(8) 20An authorisation need not be in writing.

(9) Sub-paragraphs (1)(b) and (6) are subject to paragraph 7 and to any power
or provision not in this Schedule under which the document may be
lawfully retained or otherwise dealt with.

Retention or return of documents seized

5 (1) 25Where authorisation is given under paragraph 4 for a travel document
relating to a person to be retained, it may continue to be retained—

(a) while the Secretary of State considers whether to cancel the person’s
passport,

(b) while consideration is given to charging the person with an offence,

(c) 30while consideration is given to making the person subject to any
order or measure to be made or imposed by a court, or by the
Secretary of State, for purposes connected with protecting members
of the public from a risk of terrorism, or

(d) while steps are taken to carry out any of the actions mentioned in
35paragraphs (a) to (c).

(2) But a travel document may not be retained under this Schedule after the end
of the period of 14 days beginning with the day after the document was
taken (“the 14-day period”), unless that period is extended under paragraph
8 or 11(3).

(3) 40The travel document must be returned to the person as soon as possible—

(a) once the 14-day period (or the 14-day period as extended under
paragraph 8 or 11(3)) expires;

(b) once the power in sub-paragraph (1) ceases to apply, if that happens
earlier.

Counter-Terrorism and Security BillPage 31

This is subject to paragraph 7 and to any power or provision not in this
Schedule under which the document may be lawfully retained or otherwise
dealt with.

(4) The constable to whom a travel document is passed under paragraph 2(9) or
54(5)(a), or who is in possession of it when authorisation is given under
paragraph 4, must explain to the person the effect of sub-paragraphs (1) to
(3).

(5) The constable must also tell the person, if he or she has not been told already
under paragraph 2(8) or 4(3) or (4), that the person is suspected of intending
10to leave Great Britain or (as the case may be) the United Kingdom for the
purpose of involvement in terrorism-related activity outside the United
Kingdom.

Review of retention of travel documents

6 (1) This paragraph applies where—

(a) 15authorisation is given under paragraph 4 for a travel document
relating to a person to be retained, and

(b) the document is still being retained by a constable at the end of the
period of 72 hours beginning when the document was taken from the
person (“the 72-hour period”).

(2) 20A police officer who is—

(a) of at least the rank of chief superintendent, and

(b) of at least as high a rank as the senior police officer who gave the
authorisation,

must carry out a review of whether the decision to give authorisation was
25flawed.

(3) The reviewing officer must—

(a) begin carrying out the review within the 72-hour period,

(b) complete the review as soon as possible, and

(c) communicate the findings of the review in writing to the relevant
30chief constable.

(4) The relevant chief constable must consider those findings and take whatever
action seems appropriate.

(5) If a power under paragraph 2 was exercised in relation to the travel
document by an immigration officer or customs official designated under
35paragraph 17, the reviewing officer must also communicate the findings of
the review in writing to the Secretary of State.

(6) In this paragraph—

  • “reviewing officer” means the officer carrying out a review under this
    paragraph;

  • 40“relevant chief constable” means—

    (a)

    (except where paragraph (b) or (c) applies) the chief officer of
    police under whose direction and control is the constable
    retaining the document;

    (b)

    the chief constable of the Police Service of Scotland, if the
    45constable retaining the document is under that chief
    constable’s direction and control;

    Counter-Terrorism and Security BillPage 32

    (c)

    the chief constable of the Police Service of Northern Ireland,
    if the constable retaining the document is under that chief
    constable’s direction and control.

Detention of document for criminal proceedings etc

7 (1) 5A requirement under paragraph 4 or 5 to return a travel document in the
possession of a constable or qualified officer does not apply while the
constable or officer has power to detain it under sub-paragraph (2).

(2) The constable or qualified officer may detain the document—

(a) while the constable or officer believes that it may be needed for use
10as evidence in criminal proceedings, or

(b) while the constable or officer believes that it may be needed in
connection with a decision by the Secretary of State whether to make
a deportation order under the Immigration Act 1971.

Extension of 14-day period by judicial authority

8 (1) 15A senior police officer may apply to a judicial authority for an extension of
the 14-day period.

(2) An application must be made before the end of the 14-day period.

(3) An application may be heard only if reasonable efforts have been made to
give to the person to whom the application relates a notice stating—

(a) 20the time when the application was made;

(b) the time and place at which it is to be heard.

(4) On an application—

(a) the judicial authority must grant an extension if satisfied that the
relevant persons have been acting diligently and expeditiously in
25relation to the matters and steps referred to in sub-paragraph (5);

(b) otherwise, the judicial authority must refuse to grant an extension.

(5) In sub-paragraph (4) “the relevant persons” means—

(a) the persons responsible for considering whichever of the matters
referred to in paragraph 5(1)(a) to (c) are under consideration, and

(b) 30the persons responsible for taking whichever of the steps referred to
in paragraph 5(1)(d) are being taken or are intended to be taken.

(6) An extension must be for a further period ending no later than the end of the
30-day period.

(7) “The 30-day period” means the period of 30 days beginning with the day
35after the document in question was taken.

9 (1) The person to whom an application under paragraph 8 relates—

(a) must be given an opportunity to make oral or written
representations to the judicial authority about the application;

(b) subject to sub-paragraph (3), is entitled to be legally represented at
40the hearing.

(2) A judicial authority must adjourn the hearing of an application to enable the
person to whom the application relates to obtain legal representation where
the person—

Counter-Terrorism and Security BillPage 33

(a) is not legally represented,

(b) is entitled to be legally represented, and

(c) wishes to be legally represented.

(3) A judicial authority may exclude any of the following persons from any part
5of the hearing—

(a) the person to whom the application relates;

(b) anyone representing that person.

10 (1) A person who has made an application under paragraph 8 may apply to the
judicial authority for an order that specified information upon which he or
10she intends to rely be withheld from—

(a) the person to whom the application relates, and

(b) anyone representing that person.

(2) A judicial authority may make an order under sub-paragraph (1) in relation
to specified information only if satisfied that there are reasonable grounds
15for believing that if the information was disclosed—

(a) evidence of an offence under any of the provisions mentioned in
section 40(1)(a) of the Terrorism Act 2000 would be interfered with
or harmed,

(b) the recovery of property obtained as a result of an offence under any
20of those provisions would be hindered,

(c) the recovery of property in respect of which a forfeiture order could
be made under section 23 or 23A of that Act would be hindered,

(d) the apprehension, prosecution or conviction of a person who is
suspected of being a terrorist would be made more difficult as a
25result of the person being alerted,

(e) the prevention of an act of terrorism would be made more difficult as
a result of a person being alerted,

(f) the gathering of information about the commission, preparation or
instigation of an act of terrorism would be interfered with,

(g) 30a person would be interfered with or physically injured, or

(h) national security would be put at risk.

(3) The judicial authority must direct that the following be excluded from the
hearing of an application under this paragraph—

(a) the person to whom the application under paragraph 8 relates;

(b) 35anyone representing that person.

11 (1) A judicial authority may adjourn the hearing of an application under
paragraph 8 only if the hearing is adjourned to a date before the expiry of the
14-day period.

(2) Sub-paragraph (1) does not apply to an adjournment under paragraph 9(2).

(3) 40If an application is adjourned under paragraph 9(2) to a date after the expiry
of 14-day period, the judicial authority must extend the period until that
date.

12 (1) If an extension is granted under paragraph 8 for a period ending before the
end of the 30-day period, one further application may be made under that
45paragraph.

Counter-Terrorism and Security BillPage 34

(2) Paragraphs 8 to 11 apply to a further application as if references to the 14-
day period were references to that period as previously extended.

Restriction on repeated use of powers

13 (1) Where—

(a) 5a power under paragraph 4 or 5 to retain a document relating to a
person is exercised, and

(b) powers under this Schedule have been exercised in the same
person’s case on two or more occasions in the previous 6 months,

this Schedule has effect with the following modifications.

(2) 10References to 14 days (in paragraph 5(2) and elsewhere) are to be read as
references to 5 days.

(3) Paragraph 8 has effect as if the following were substituted for sub-paragraph
(4)

(4) On an application, the judicial authority must grant an extension
15if satisfied that—

(a) the relevant persons have been acting diligently and
expeditiously in relation to the matters and steps referred
to in sub-paragraph (5), and

(b) there are exceptional circumstances justifying the further
20use of powers under this Schedule in relation to the same
person.

Otherwise, the judicial authority must refuse to grant an
extension.

Persons unable to leave the United Kingdom

14 (1) 25This paragraph applies where a person’s travel documents are retained
under this Schedule with the result that, for the period during which they
are so retained (“the relevant period”), the person is unable to leave the
United Kingdom.

(2) The Secretary of State may make whatever arrangements he or she thinks
30appropriate in relation to the person—

(a) during the relevant period;

(b) on the relevant period coming to an end.

(3) If at any time during the relevant period the person does not have leave to
enter or remain in the United Kingdom, the person’s presence in the United
35Kingdom at that time is nevertheless not unlawful for the purposes of the
Immigration Act 1971.

Offences

15 (1) A person who is required under paragraph 2(5)(a) to hand over all travel
documents in the person’s possession commits an offence if he or she fails
40without reasonable excuse to do so.

(2) A person who intentionally obstructs, or seeks to frustrate, a search under
paragraph 2 commits an offence.

Counter-Terrorism and Security BillPage 35

(3) A person guilty of an offence under this paragraph is liable on summary
conviction—

(a) to imprisonment for a term not exceeding 6 months, or

(b) to a fine, which in Scotland or Northern Ireland may not exceed level
55 on the standard scale,

or to both.

16 A qualified officer exercising a power under paragraph 2 has the same
powers of arrest without warrant as a constable in relation to an offence
under paragraph 15.

10Accredited immigration officers and customs officials

17 (1) For the purposes of this paragraph, a qualified officer is an “accredited”
immigration officer or customs official if designated as such by the Secretary
of State.

(2) Sub-paragraphs (1), (2) and (3)(a) of paragraph 2 apply to an accredited
15immigration officer or customs official as they apply to a constable.

(3) In paragraph 2(3)(b) and (4) “qualified officer” does not include an
accredited immigration officer or customs official.

(4) In paragraphs 2(9) and 3 “immigration officer or customs official” does not
include an accredited immigration officer or customs official.

(5) 20Paragraph 4(1) has effect, in relation to a travel document that is in the
possession of an accredited immigration officer or customs official as a result
of the exercise of a power under paragraph 2 by that officer or official, as if
the reference to the relevant constable were a reference to that officer or
official.

25Code of practice

18 (1) The Secretary of State must issue a code of practice with regard to the
exercise of functions under this Schedule.

(2) The code of practice must in particular deal with the following matters—

(a) the procedure for making designations under paragraphs 1(4) and
3017;

(b) training to be undertaken by persons who are to exercise powers
under this Schedule;

(c) the exercise by constables, immigration officers and customs officials
of functions conferred on them by virtue of this Schedule;

(d) 35information to be given to a person in whose case a power under this
Schedule is exercised;

(e) how and when that information is to be given;

(f) reviews under paragraph 6.

(3) A constable, immigration officer or customs official must perform functions
40conferred on him or her by virtue of this Schedule in accordance with any
relevant provision included in the code by virtue of sub-paragraph (2)(c) to
(e).

Counter-Terrorism and Security BillPage 36

(4) The failure by a constable, immigration officer or customs official to observe
any such provision does not of itself make him or her liable to criminal or
civil proceedings.

(5) The code of practice—

(a) 5is admissible in evidence in criminal and civil proceedings;

(b) is to be taken into account by a court or tribunal in any case in which
it appears to the court or tribunal to be relevant.

19 (1) Before issuing the code of practice the Secretary of State must—

(a) publish it in draft,

(b) 10consider any representations made about the draft, and

(c) if the Secretary of State thinks it appropriate, modify the draft in the
light of any representations made.

(2) The Secretary of State must lay a draft of the code before Parliament.

(3) Anything done before the day on which this Act is passed is as valid as if
15done on or after that day for the purposes of sub-paragraphs (1) and (2).

(4) Once the code has been laid in draft before Parliament the Secretary of State
may bring it into operation by regulations made by statutory instrument.

(5) The first regulations under sub-paragraph (4) cease to have effect at the end
of the period of 40 days beginning with the day on which the Secretary of
20State makes the regulations, unless a resolution approving the regulations is
passed by each House of Parliament during that period.

(6) A statutory instrument containing any subsequent regulations under sub-
paragraph (4) may not be made unless a draft of the instrument has been laid
before each House of Parliament and approved by a resolution of each
25House.

(7) If regulations cease to have effect under sub-paragraph (5)

(a) the code of practice to which the regulations relate also ceases to
have effect, but

(b) that does not affect anything previously done, or the power to make
30new regulations or to issue a new code.

(8) For the purposes of sub-paragraph (5), the period of 40 days is to be
computed in accordance with section 7(1) of the Statutory Instruments Act
1946.

20 (1) The Secretary of State may revise the code of practice and issue the revised
35code.

(2) Paragraph 19 has effect in relation to the issue of a revised code as it has
effect in relation to the first issue of the code.

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Section 20

SCHEDULE 2 Aviation, maritime and rail security

Part 1 Passenger, crew and service information

5Amendments of the Immigration Act 1971

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

(2) In paragraph 27 (requirement to provide passenger lists etc), in sub-
paragraph (5), after paragraph (b) insert—

(ba) 10may require a responsible person to be able to receive, in a
specified form and manner, communications sent by the
Secretary of State or an immigration officer relating to the
information,.

(3) In paragraph 27B (passenger information or service information), after sub-
15paragraph (8) insert—

(8A) The officer may require a carrier to be able to receive
communications from the officer in such form and manner as the
Secretary of State may direct.

(4) After paragraph 27B insert—

27BA (1) 20 The Secretary of State may make regulations requiring
responsible persons in respect of ships or aircraft—

(a) which have arrived, or are expected to arrive, in the United
Kingdom, or

(b) which have left, or are expected to leave, the United
25Kingdom,

to supply information to the Secretary of State or an immigration
officer.

(2) The following information may be required under sub-paragraph
(1)—

(a) 30information about the persons on board;

(b) information about the voyage or flight.

(3) The regulations must—

(a) specify or describe the classes of ships or aircraft to which
they apply;

(b) 35specify the information required to be supplied;

(c) specify the time by which the information must be
supplied;

(d) specify the form and manner in which the information
must be supplied.

(4) 40The regulations may require responsible persons to be able to
receive, in a specified form and manner, communications sent by
the Secretary of State or an immigration officer relating to the
information.

Counter-Terrorism and Security BillPage 38

(5) For the purposes of this paragraph, the following are responsible
persons in respect of a ship or aircraft—

(a) the owner or agent, and

(b) the captain.

(6) 5Regulations under this paragraph may make different provision
for different purposes, and in particular may make different
provision for different types of carrier, journey or person on
board.

(7) The power to make regulations under this paragraph is
10exercisable by statutory instrument; but no regulations under this
paragraph are to be made unless a draft of the regulations has
been laid before Parliament and approved by a resolution of each
House.

27BB (1) The Secretary of State may make regulations imposing penalties
15for failure to comply with—

(a) an order under paragraph 27(2) (order requiring passenger
list or particulars of member of crew),

(b) any request or requirement under paragraph 27B
(passenger and service information), or

(c) 20regulations under paragraph 27BA (passenger, crew and
service information).

(2) Regulations under sub-paragraph (1) may in particular make
provision—

(a) about how a penalty is to be calculated;

(b) 25about the procedure for imposing a penalty;

(c) about the enforcement of penalties;

(d) allowing for an appeal against a decision to impose a
penalty;

and the regulations may make different provision for different
30purposes.

(3) Provision in the regulations about the procedure for imposing a
penalty must provide for a person to be given an opportunity to
object to a proposed penalty in the circumstances set out in the
regulations.

(4) 35The regulations must provide that no penalty may be imposed on
a person for failure to comply with an order under paragraph
27(2), a request or requirement under paragraph 27B or
regulations under paragraph 27BA where—

(a) proceedings have been instituted against the person under
40section 27 in respect of the same failure; or

(b) the failure consists of a failure to provide information that
the person has also been required to provide under section
32 or 32A of the Immigration, Asylum and Nationality Act
2006 and—

(i) 45a penalty has been imposed on the person in
respect of a failure to provide that information by
virtue of regulations made under section 32B of
that Act, or

Counter-Terrorism and Security BillPage 39

(ii) proceedings have been instituted against the
person under section 34 of that Act in respect of a
failure to provide that information; or

(c) the failure consists of a failure to provide information that
5the person has also been required to provide under an
authority-to-carry scheme made under section 18 of the
Counter-Terrorism and Security Act 2014 and a penalty
has been imposed on the person in respect of a failure to
provide that information by virtue of regulations made
10under section 19 of that Act.

(5) Any penalty paid by virtue of this paragraph must be paid into the
Consolidated Fund.

(6) The power to make regulations under this paragraph is
exercisable by statutory instrument; but no regulations under this
15paragraph are to be made unless a draft of the regulations has
been laid before Parliament and approved by a resolution of each
House.

(5) Omit paragraph 27C (notification of non-EEA arrivals).

2 In section 27 of that Act (offences by persons connected with ships or aircraft
20or with ports)—

(a) the existing provision becomes subsection (1);

(b) at the end insert—

(2) Proceedings may not be instituted against a person under
subsection (1)(a)(i) or (1)(b)(iv) for a failure to provide
25information or otherwise to comply with a requirement
imposed under paragraph 27, 27B or 27BA of Schedule 2
where—

(a) the person has paid a penalty in respect of the same
failure, or a failure to provide the same information,
30by virtue of regulations made under—

(i) paragraph 27BB of Schedule 2,

(ii) section 32B of the Immigration, Asylum and
Nationality Act 2006, or

(iii) section 19 of the Counter-Terrorism and
35Security Act 2014 (penalty for breach of
authority-to-carry scheme); or

(b) proceedings have been instituted against the person
under section 34 of the Immigration, Asylum and
Nationality Act 2006 in respect of a failure to provide
40the same information.

Amendments consequential upon paragraph 1

3 Omit section 19 of the Immigration and Asylum Act 1999.

4 In Schedule 7 to the Terrorism Act 2000 (port and border controls), in
paragraph 17 (provision of passenger information), in sub-paragraph (6), for
45“or 27B” substitute “, 27B or 27BA”.