Immigration Bill (HL Bill 96)

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).””

14 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

15 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

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

16 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 appeal),
10the appeal must be brought from outside the United Kingdom if—

(a) 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), or

(b) paragraph 5(3)(a), 10(3), 15(3) or 19(b) of Schedule 3 to the
15Asylum and Immigration (Treatment of Claimants, etc) Act
2004 (removal of asylum seeker to safe third country) applies.

Otherwise, the appeal must be brought from within the United
Kingdom.

(3) In the case of an appeal under section 82(1)(b) (human rights claim
20appeal) where the claim to which the appeal relates was made while the
appellant was in the United Kingdom, the appeal must be brought from
outside the United Kingdom if—

(a) the claim to which the appeal relates has been certified under
section 94(1) or (7) (claim clearly unfounded or removal to safe
25third country) or section 94B (certification of human rights
claims made by persons liable to deportation), or

(b) paragraph 5(3)(b) or (4), 10(4), 15(4) or 19(c) of Schedule 3 to the
Asylum and Immigration (Treatment of Claimants, etc) Act
2004 (removal of asylum seeker to safe third country) applies.

30Otherwise, the appeal must be brought from within the United
Kingdom.

(4) In the case of an appeal under section 82(1)(b) (human rights claim
appeal) where the claim to which the appeal relates was made while the
appellant was outside the United Kingdom, the appeal must be
35brought from outside the United Kingdom.

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

(a) the appeal must be brought from within the United Kingdom if
the decision to which the appeal relates was made while the
40appellant was in the United Kingdom;

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

(6) If, after an appeal under section 82(1)(a) or (b) has been brought from
45within 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
appeal must be continued from outside the United Kingdom.

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

(8) Where an appellant brings an appeal from within the United Kingdom
but leaves the United Kingdom before the appeal is finally determined,
10the 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
94B.”

(3) After section 94A, insert—

“94B Appeal from within the United Kingdom: certification of human
15rights claims made by persons liable to deportation

(1) This section applies where a human rights claim has been made by a
person (“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) 20section 3(6) of that Act (court recommending deportation
following conviction).

(2) The 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
25which 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
Human 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
30under subsection (2) include (in particular) that P would not, before the
appeals process is exhausted, face a real risk of serious irreversible
harm if removed to the country or territory to which P is proposed to
be removed.”

17 Review of certain deportation decisions by Special Immigration Appeals
35Commission

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

“2E Jurisdiction: review of certain deportation decisions

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

(4) If the Commission decides that the decision should be set aside, it may
5make 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
Secretary of State about the deportation of a person from the United
Kingdom, if and to the extent that—

(a) 10the 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.”

18 Article 8 of the ECHR: public interest considerations

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

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

117A Application of this Part

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

(a) 20breaches 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
Rights Act 1998.

(2) In considering the public interest question, the court or tribunal must
25(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
considerations listed in section 117C.

(3) In subsection (2), “the public interest question” means the question of
30whether 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) The maintenance of effective immigration controls is in the public
interest.

(2) 35It 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,
because persons who can speak English—

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

(b) 40are 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

enter 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.

(4) 5Little 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
Kingdom unlawfully.

(5) 10Little 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) the person has a genuine and subsisting parental relationship
15with 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
criminals

(1) 20The 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
period of imprisonment of four years or more, the public interest
25requires 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) is socially and culturally integrated in the United Kingdom, and

(c) 30there 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
relationship with a qualifying child, and the effect of C’s deportation on
35the 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
above those described in Exceptions 1 and 2.

(7) 40The 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 Interpretation of this Part

(1) 45In this Part—

Immigration BillPage 18

• “Article 8” means Article 8 of the European Convention on
  Human Rights;

• “qualifying child” means a person who is under the age of 18 and
  who—

  (a)

  5is a British citizen, or

  (b)

  has lived in the United Kingdom for a continuous
  period of seven years or more;

• “qualifying partner” means a partner who—

  (a)

  is a British citizen, or

  (b)

  10who is settled in the United Kingdom (within the
  meaning of the Immigration Act 1971 — see section
  33(2A) of that Act).

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

(a) who is not a British citizen,

(b) 15who has been convicted in the United Kingdom of an offence,
and

(c) who—

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

(ii) 20has 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
under—

(a) 25section 5 of the Criminal Procedure (Insanity) Act 1964 (insanity
etc),

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

(c) Article 50A of the Mental Health (Northern Ireland) Order 1986
30(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) do not include a person who has received a suspended sentence
35(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
sentenced to consecutive sentences amounting in aggregate to
40that 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
offenders) for that length of time; and

(d) 45include 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) If 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.”

Part 3 5Access to services etc

CHAPTER 1 Residential tenancies

Key interpretation

19 Residential tenancy agreement

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

(2) 10“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) is not an excluded agreement.

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

(a) 15any 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
premises being “leased”, are to be read accordingly.

(4) For the purposes of subsection (2)(a), an agreement grants a right of occupation
20of 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) In 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
25description 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) remove any description, or

(c) amend any description.

20 30Persons 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
agreement if—

(a) P is not a relevant national, and

(b) 35P 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
have it, or