Immigration Bill

Explanatory Notes

Paragraph 28B - penalty notices

333 Sub-paragraph (1) stipulates that the Secretary of State must notify a person in writing if she decides that a person is liable to a penalty.

334 Sub-paragraph (2) stipulates that the penalty notice must be in writing, and include: the reasons for the penalty; the amount; the date of the notice; the payment method; the date by which payment must be made; and information about enforcement.

Paragraph 28C - objections

335 Sub-paragraph (1) provides that the recipient of a penalty notice may object on the ground that they are not liable to the imposition of the penalty, or that the amount of the penalty is too high

336 Sub-paragraphs (2) and (3) provide that the recipient of a penalty notice may object by giving a notice of objection in writing to the Secretary of State, giving reasons for the objection within 28 days from the date specified in the penalty notice.

337 Sub-paragraph (4) allows the Secretary of State to respond to the notice of objection by cancelling, reducing or increasing the penalty, or taking no further action.

338 Sub-paragraph (5) requires the Secretary of State to notify the recipient of the decision, including the amount of any increased or reduced penalty, and give the recipient a new penalty notice if the penalty level is increased.

339 Sub-paragraphs (6) require the Secretary of State to give notice of her decision, including the date on which it was made, before the end of the prescribed period, which may be extended by agreement with the recipient.

Paragraph 28D - appeals

340 Sub-paragraph (1) provides that the recipient may appeal to the court on the ground that the recipient is not liable to the imposition of a penalty, or that the amount of the penalty is too high.

341 Sub-paragraph (2) provides that an appeal can only be brought if the appellant has objected to the notice.

342 Sub-paragraph (3) requires that the appeal must be made within 28 days of the notification of the decision.

343 Sub-paragraph (4) provides for the court to allow the appeal and either cancel or reduce the penalty; or dismiss the appeal.

344 Sub-paragraph (5) requires the appeal to be a re-hearing of the Secretary of State’s decision to impose a penalty and to be determined having regard to: any extant codes of practice under paragraph 28A, and any other matters which the court thinks relevant (which may include matters of which the Secretary of State was unaware).

345 Sub-paragraph (6) allows for a full re-hearing under sub-paragraph 3 irrespective of the Civil Procedure Rules (Part 52), or other rules applying to the court in question, that stipulate that an appeal must be on the basis of a point of law.

346 Sub-paragraph (7) and (8) stipulates that in this section "the court" means: the county court if the appeal relates to a penalty notice for a failure to comply at an airport in England and Wales; the sheriff, if the appeal relates to a penalty for a failure to comply at an airport in Scotland; and a county court in Northern Ireland if the appeal relates to a penalty for a failure to comply at an airport in Northern Ireland.

Paragraph 28E - enforcement

347 Sub-paragraph (1) stipulates that this paragraph applies where a sum is payable to the Secretary of State as a penalty under paragraph 28.

348 Sub-paragraph (2) stipulates that the penalty is recoverable in England and Wales as if it were payable under an order of the county court in England and Wales.

349 Sub-paragraph (3) states that the penalty may be enforced in Scotland in the same manner as an extract registered decree arbitral bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland.

350 Sub-paragraph (4) stipulates that the penalty is recoverable in Northern Ireland as if it were payable under an order of a court in Northern Ireland.

351 Sub-paragraph (5) stipulates that where action is taken for the recovery of a sum payable as a penalty, the penalty is: in relation to England and Wales to be treated for the purposes of section 98 of the Courts Act 2003 as if it were a judgment entered in the county court; and in relation to Northern Ireland to be treated for the purposes of Article 116 of the Judgments Enforcement (Northern Ireland) Order 1981 as if it were a judgment in respect of which an application has been accepted under Article 22 or 23(1) of that Order.

352 Sub-paragraph (6) stipulates that money paid to the Secretary of State as a penalty under section 28 must be paid into the Consolidated Fund.

Paragraph 28F - service of documents

353 Sub-paragraph (1) stipulates that a document served on a person outside the UK as part of the penalty notice, objections or enforcement provisions of this section can be served: in person; by post; by fax; by email; or by any other prescribed manner

354 Sub-paragraph (2) provides for the Secretary of State to make regulations stipulating that a document served as above, and 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.

Paragraph 28G - interpretation of this part of this schedule

355 Sub-paragraph (1) stipulates in this Part of the schedule that: "penalty notice" has the same meaning as in 28B(2); "prescribed" means prescribed by regulations made by the Secretary of State; and "the recipient" has the same meaning as in 28C(1).

Paragraph 28H - regulations under this part of this schedule

356 Sub-paragraphs (1) to (3) stipulate that regulations under this Schedule are to be made by statutory instrument subject to the negative procedure, and may make different provision for different purposes; and may make incidental, supplementary, consequential, transitional, transitory or saving provision.

Schedule 8: Maritime enforcement

357 The maritime powers in the Bill are intended to combat three immigration offences in the territorial waters of the United Kingdom. Those offences are assisting unlawful immigration, assisting an asylum-seeker to arrive in the UK, and assisting entry to the United Kingdom in breach of a deportation or exclusion order ("the facilitation offences"). Prior to the amendments set out in this schedule, immigration officers had no powers to tackle facilitation offences committed beyond UK soil. Therefore immigration officers were powerless to stop ships being used to carry illegal migrants in UK waters until those ships reached port. This schedule changes that.

358 Paragraphs 1 to 4(a) and 4(c) make technical amendments to the facilitation offences to extend their scope to cover attempted facilitation. Paragraphs 1 and 2 extend the offence of facilitating a breach of immigration law by a non-EU citizen, to cover a person who facilitates an attempted breach. Paragraph 3 amends section 25A of the 1971 Act to include facilitating the attempted arrival or entry into the UK by an asylum-seeker. Sub-paragraph 4(a) amends section 25B of the 1971 Act to include facilitating the attempted breach of a deportation order. Sub-paragraph 4(c) amends 25B of the 1971 Act to include facilitating the attempted breach of an exclusion order made on the grounds of public policy, public security or public health.

359 Section 25B(2) of the 1971 Act refers to the Secretary of State personally directing the exclusion of an EU citizen from the United Kingdom for the public good. This part of the offence is out of alignment with the actual power and legal test to make exclusion orders in regulation 19 of the Immigration (European Economic Area) Regulations 2006 ("the 2006 Regulations"). Sub-paragraph 4(b) aligns section 25B(2) with the 2006 Regulations by removing the reference to the Secretary of State personally making these decisions and allowing them to be made by junior ministers or officials of the Secretary of State. Sub-paragraph 4(b) also aligns the reference to the legal test for an exclusion order in the offence with that in Regulation 21 of the 2006 Regulations to ensure it applies to exclusion orders made on the grounds of public policy, public security or public health. Sub-paragraph 4(d) ensures that the section 25B offence does not overlap with the separate existing offence of breaching a temporary exclusion order in section 10 of the Counter-Terrorism and Security Act 2015.

360 Paragraph 5 disapplies the requirement in section 3 of the Territorial Waters Jurisdiction Act 1878 to obtain the consent of the Secretary of State to prosecute the facilitation offences committed in UK territorial waters.

361 Paragraph 6 clarifies that the existing powers of arrest without warrant for the facilitation offences are available in respect of attempted facilitation offences.

New Part 3A to 1971 Act

362 Paragraph 7 of this schedule inserts new Part 3A after Part 3 of the 1971 Act. Part 3A sets out the circumstances in which immigration officers, the police and members of the Armed Services can use the powers to stop, board, divert and detain a ship set out in new Schedule 4A of the 1971 Act (for which, see notes on paragraph 8 below).

363 New section 28M subsections (1) and (2) set out an immigration officer’s, police officer’s and member of the Armed Services’ powers to combat the facilitation offences in the territorial waters adjoining England and Wales. Those powers are principally to stop, board, divert and detain any ship suspected of involvement in a facilitation offence, regardless of the ship’s nationality. Subsection (3) makes clear that the authority of the Secretary of State is required before these powers can be exercised in relation to a foreign ship or ship registered in the Isle of Man, Channel Islands, or a British Overseas Territory. Subsection (4) stipulates that this authority can only be given in respect of a foreign ship where the exercise of the powers would be in accordance with the United Nations Convention on the Law of the Sea.

364 New sections 28N and 28O make equivalent provision to section 28M in respect of the territorial waters adjacent to Scotland and Northern Ireland.

365 Section 28P provides officers with a power to pursue ships suspected of involvement in the facilitation offences sailing between different parts of UK territorial waters (England and Wales, Scotland and Northern Ireland). The power is available where an audible or visible signal has been given for a ship to stop, which has been ignored, and the pursuit has not been interrupted (subsections (7) to (8)). Subsection (9) makes it clear that a change of ship or mode of transport will not interrupt the pursuit. Subsections (1) and (2) enable an immigration officer, English or Welsh police officer or member of the Armed Services to pursue a ship from the territorial waters adjacent to England and Wales into the waters adjacent to Scotland or Northern Ireland. Subsections (3) and (4) and subsections (5) and (6) make equivalent provision for Scotland and Northern Ireland.

366 Subsection (10) ensures that any right an immigration officer, police officer or member of the Armed Services may have to pursue ships into international waters under the common law is unaffected.

367 Section 28Q is self explanatory and defines terms used in Part 3A.

Part 1 of new Schedule 4A to the Immigration Act 1971

368 Paragraph 8 inserts a new Schedule 4A after Schedule 4 of the 1971 Act. Schedule 4A sets out the powers an immigration officer, police officer or member of the Armed Services has to stop, board, divert, detain and search a ship to investigate the facilitation offences. Paragraph 1 is self explanatory and introduces Part 1 of Schedule 4A which governs the powers applicable in UK territorial waters adjacent to England and Wales.

369 Sub-paragraphs 2(1) and (2) provide a power to stop and board a ship, and require the ship to be taken to a port in the United Kingdom, and be detained there. These powers only apply where there are reasonable grounds to suspect that the ship is involved in a facilitation offence. Sub-paragraph 2(3) allows officers to order the ship’s crew to help steer the ship to port. If the ship is to be detained, the immigration or police officer must notify the master of the ship in writing (sub-paragraph 2(4)) and the notice must tell the master that it will be detained until a further notice is served (sub-paragraph 2(5)).

370 Paragraph 3, sub-paragraphs (1) and (2) provides a power to search a ship and any person or object on that ship, where an immigration or police officer has reasonable grounds to suspect that there is evidence on the ship relating to a facilitation offence, or a connected offence. Sub-paragraph 3(3) gives the officer the power to require a person on the ship to give information about themselves or about anything on the ship.

371 Sub-paragraphs (5) and (7) give examples of actions that can be carried out by officers during a search including opening containers, requiring documents and making copies. The power of search can only be used to the extent reasonably required to discover evidence of a facilitation or connected offence and does not authorise the removal of any clothing in public other than an outer coat, jacket or gloves (sub-paragraph (4)). Sub-paragraph (6) ensures that officers may require electronic evidence to be produced in a legible form and in a manner which may be taken away. Sub-paragraph (8) clarifies that the powers are exercisable elsewhere than on the ship which has been boarded.

372 Under paragraph 4, sub-paragraphs (1) and (2) permit officers to arrest any person, without warrant, that they reasonably suspect to have committed a facilitation offence on the ship under investigation. Sub-paragraph (3) also permits an officer to seize and detain any suspected evidence of a facilitation offence other than items of legal privilege. Sub-paragraph (4) clarifies that these powers can be exercised on the ship itself or elsewhere.

373 Under paragraph 5(1) and (2), officers can search a person on the ship for anything which they reasonably believe might be used to cause physical injury, damage to property or endanger the safety of a ship. Sub-paragraph (2) ensures that the powers can only be exercised where the officer has reasonable grounds to believe that such an item is concealed on a person and only to the extent necessary. Officers may also seize and retain such items (sub-paragraph (3)), but must return the items to the person they were taken from, if that person is released from detention (sub-paragraph (4)). This power does not authorise the removal of any clothing in public other than an outer coat, jacket or gloves, but it does authorise the search of a person’s mouth (sub-paragraph (5)).

374 Paragraph 6 provides a power for officers to require any person on the ship to produce a nationality document and, if they reasonably believe that person is concealing documents that may establish that person’s identity, such as a passport or identity card, search that person (sub-paragraphs 1 and 2). The power of search may only be exercised where there are reasonable grounds to believe that such a document is concealed on a person and only to the extent necessary (sub-paragraph (3)).The officer can seize and retain a document relating to a person’s identity for as long as they believe that person will arrive in the United Kingdom, but this does not affect any other power of retention the office may have (sub-paragraphs (4) and (5)). Documents seized and retained by constables or members of the Armed Services must be passed to an immigration officer as soon as possible after the ship has arrived in the United Kingdom (sub-paragraph (6)). The power does not authorise the removal of any clothing in public other than an outer coat, jacket or gloves, or the seizure or retention of any document that the officer reasonably believes is subject to legal privilege (sub-paragraph (7)). Sub-paragraph (8) defines "nationality document" and sub-paragraph (9) clarifies that the power may be used elsewhere than on the ship being boarded.

375 To ensure that relevant officers can perform their powers under this Schedule, paragraph 7 allows them to take another person, or relevant equipment and materials, on board a ship. The assistant may perform functions on behalf of the relevant officer under their supervision.

376 Paragraph 8 confirms that, where necessary, a relevant officer may use reasonable force to perform their functions set out in this Part of the Schedule.

377 Under paragraph 9 a relevant officer must provide evidence of their authority to exercise the powers set out in this Schedule, if requested to do so.

378 In order to carry out their functions, relevant officers require some protection from prosecution. Paragraph 10 protects officers from personal liability in any civil or criminal proceedings for anything done in performance of the functions in this Schedule, provided that a court is satisfied that they acted in good faith and had reasonable grounds for their actions.

379 Paragraph 11 creates two offences where a person does not comply with the investigation. The first (sub-paragraph (1)) makes it an offence where a person intentionally obstructs an officer exercising the powers in this Schedule, or fails to comply with a requirement made by an officer, without reasonable excuse. The second (sub-paragraph (2)) makes it an offence where a person knowingly or recklessly provides false information, or intentionally fails to disclose anything material, where an officer requires information when exercising the powers within this Schedule. Sub-paragraph (3) provides officers with a power of arrest without warrant for either of these offences. Both of these offences are summary only and on conviction the defendant is liable to an unlimited fine or 6 months imprisonment or both (sub-paragraph (4)). Sub-paragraph (5) increases the maximum period of imprisonment to 51 weeks after the commencement of section 281(5) of the Criminal Justice Act 2003.

Part 2 of new Schedule 4A

380 Part 2 of new Schedule 4A makes equivalent provision to Part 1 of Schedule 4A in respect of UK territorial waters adjacent to Scotland.

Part 3 of new Schedule 4A

381 Part 3 of new Schedule 4A makes equivalent provision to Part 1 of Schedule 4A in respect of UK territorial waters adjacent to Northern Ireland.

Schedule 9: Civil registration fees

Part 1: Powers to make regulations for the charging of fees

382 Paragraph 1 inserts new section 71A into the Marriage Act 1949 ("the 1949 Act").

383 Subsection (1) of new section 71A enables fees to be set for a number of specified functions provided in connection with marriages, including under the 1949 Act and the Marriage (Registrar General's Licence) Act 1970, as well as for other marriage services provided by or on behalf of the Registrar General, superintendent registrars and registrars. Existing fees on the face of the 1949 Act are omitted (see paragraphs 9 to 18 of Schedule 9), as those fees may now be prescribed under the new section 71A. The power enables fees to be set for services previously provided without charge, and for any services provided in connection with marriages by the persons specified, including services performed under other enactments. 

384 Subsections (3) and (4) of new section 71A provide that the regulations may require the superintendent registrar or registrar to pass on part of a fee paid to him or her to the Registrar General. In some cases, the Registrar General contributes to services provided by the superintendent registrar and registrar, and this provision enables the costs of that contribution to be recovered. For example, the Registrar General is involved in the verification of divorces obtained overseas, or provides blank certificate stock for use in issuing marriage certificates.

385 Subsection (5) of new section 71A enables the regulations to provide for the reduction, waiver, or refund of part or all of a fee, whether by conferring a discretion or otherwise, so that the regulations, and the person to whom the fee is payable, may respond where requiring payment of the fee would be unduly harsh or otherwise inappropriate.

386 Regulations under this section will be made by the Secretary of State and subject to the negative resolution procedure.

387 Paragraph 2 inserts a new section 38A into the Births and Deaths Registration Act 1953 ("the 1953 Act"). Subsection (1) of new section 38A allows the Minister to make regulations to set fees for birth and death registration services. As for marriages, the fees currently specified on the face of the 1953 Act are omitted (see paragraphs 22 to 28 of Schedule 9) and those fees may instead be prescribed under new section 38A. The power also enables the setting of fees for services which have to date been provided without charge, and, more broadly, for any birth and death registration services (including those performed under other enactments) provided by or on behalf of the Registrar General, superintendent registrars and registrars, or by any other person.

388 Also as for marriage, subsections (3) and (4) of new section 38A enable the regulations to provide for part of the fee that is paid to superintendent registrars and registrars to be passed on by them to the Registrar General, to cover the cost of the Registrar General’s contribution to the particular service.

389 Regulations under this new section will be made by the Minister and will be subject to the negative resolution procedure.

390 Paragraph 3 inserts new section 19B: Fees in respect of provision or copies of records etc. into the Registration Service Act 1953. The Registrar General holds a wide range of records, both modern and historic, and the powers to set fees in respect of those records are complex, widespread and often archaic.

391 Subsection (1) of new section 19B enables the Minister to prescribe fees for the provision of copies or other records of any information held by the Registrar General to ensure that the Registrar General is able to recover the costs of providing such services where no other fee is specified, or where it is more appropriate to specify a fee in a single place, rather than prescribing the same fee under a number of different enactments (for example relating to births, deaths, adoptions, parental orders, marriages, gender recognition and so on).

392 Paragraph 4 amends section 34 of the Civil Partnership Act 2004 (fees) to align the provision for fees in connection with civil partnerships with that made for births, deaths and marriages.

393 Paragraph 5 amends section 9 of the Marriage (Same Sex Couples) Act 2013 (conversion of civil partnership into marriage), to align the provision for fees in connection with conversions of civil partnerships into marriages with that made for births, deaths, marriages and civil partnerships.

Part 2: Consequential and related amendments

394 Paragraphs 6 to 37 make consequential and related amendments to relevant legislation.

Prepared 17th September 2015