Immigration Bill (HL Bill 98)

A

BILL

[AS AMENDED ON REPORT]

TO

Make provision about immigration law; to limit, or otherwise make provision
about, access to services, facilities and employment by reference to
immigration status; to make provision about marriage and civil partnership
involving certain foreign nationals; and for connected purposes.

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—

Part 1 Removal and other powers

Removal

1 Removal of persons unlawfully in the United Kingdom

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

10 Removal of persons unlawfully in the United Kingdom

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

(2) Where a person (“P”) is liable to be or has been removed from the
United Kingdom under subsection (1), a member of P’s family who
meets the following three conditions may also be removed from the
United Kingdom under the authority of the Secretary of State or an
15immigration officer, provided that the Secretary of State or
immigration officer has given the family member written notice of the
intention to remove him or her.

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(3) The first condition is that the family member is—

(a) P’s partner,

(b) P’s child, or a child living in the same household as P in
circumstances where P has care of the child,

(c) 5in a case where P is a child, P’s parent, or

(d) an adult dependent relative of P.

(4) The second condition is that—

(a) in a case where the family member has leave to enter or remain
in the United Kingdom, that leave was granted on the basis of
10his or her family life with P;

(b) in a case where the family member does not have leave to enter
or remain in the United Kingdom, in the opinion of the
Secretary of State or immigration officer the family member—

(i) would not, on making an application for such leave, be
15granted leave in his or her own right, but

(ii) would be granted leave on the basis of his or her family
life with P, if P had leave to enter or remain.

(5) The third condition is that the family member is neither a British
citizen, nor is he or she entitled to enter or remain in the United
20Kingdom by virtue of an enforceable EU right or of any provision made
under section 2(2) of the European Communities Act 1972.

(6) A notice given to a family member under subsection (2) invalidates any
leave to enter or remain in the United Kingdom previously given to the
family member.

(7) 25For the purposes of removing a person from the United Kingdom
under subsection (1) or (2), the Secretary of State or an immigration
officer may give any such direction for the removal of the person as
may be given under paragraphs 8 to 10 of Schedule 2 to the 1971 Act.

(8) But subsection (7) does not apply where a deportation order is in force
30against a person (and any directions for such a person’s removal must
be given under Schedule 3 to the 1971 Act).

(9) The following paragraphs of Schedule 2 to the 1971 Act apply in
relation to directions under subsection (7) (and the persons subject to
those directions) as they apply in relation to directions under
35paragraphs 8 to 10 of Schedule 2 (and the persons subject to those
directions)—

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

(b) paragraph 16(2) to (4) (detention of person where reasonable
grounds for suspecting removal directions may be given or
40pending removal in pursuance of directions);

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

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

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

(f) 45paragraph 18B (detention of unaccompanied children);

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

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

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(i) paragraphs 22 to 25 (bail);

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

(10) The Secretary of State may by regulations make further provision about
the removal of family members under this section or any other
5provision of the Immigration Acts, and in particular about—

(a) the time period during which a family member may be
removed under subsection (2);

(b) the service of a notice under subsection (2).

(11) In this section “child means a person who is under the age of 18.

2 10Restriction on removal of children and their parents etc

After section 78 of the Nationality, Immigration and Asylum Act 2002, insert—

78A Restriction on removal of children and their parents etc

(1) This section applies in a case where—

(a) a child is to be removed from or required to leave the United
15Kingdom, and

(b) an individual who—

(i) is a parent of the child or has care of the child, and

(ii) is living in a household in the United Kingdom with the
child,

20is also to be removed from or required to leave the United
Kingdom (a “relevant parent or carer”).

(2) During the period of 28 days beginning with the day on which the
relevant appeal rights are exhausted—

(a) the child may not be removed from or required to leave the
25United Kingdom; and

(b) a relevant parent or carer may not be removed from or required
to leave the United Kingdom if, as a result, no relevant parent
or carer would remain in the United Kingdom.

(3) The relevant appeal rights are exhausted at the time when—

(a) 30neither the child, nor any relevant parent or carer, could bring
an appeal under section 82 (ignoring any possibility of an
appeal out of time with permission), and

(b) no appeal brought by the child, or by any relevant parent or
carer, is pending within the meaning of section 104.

(4) 35Nothing in this section prevents any of the following during the period
of 28 days mentioned in subsection (2)—

(a) the giving of a direction for the removal of a person from the
United Kingdom,

(b) the making of a deportation order in respect of a person, or

(c) 40the taking of any other interim or preparatory action.

(5) In this section—

  • “child” means a person who is aged under 18;

  • references to a person being removed from or required to leave the
    United Kingdom are to the person being removed or required

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    to leave in accordance with a provision of the Immigration
    Acts.

3 Independent Family Returns Panel

Before section 55 of the Borders, Citizenship and Immigration Act 2009,
5insert—

54A Independent Family Returns Panel

(1) The Independent Family Returns Panel is established.

(2) The Secretary of State must consult the Independent Family Returns
Panel—

(a) 10in each family returns case, on how best to safeguard and
promote the welfare of the children of the family, and

(b) in each case where the Secretary of State proposes to detain a
family in pre-departure accommodation, on the suitability of so
doing, having particular regard to the need to safeguard and
15promote the welfare of the children of the family.

(3) A family returns case is a case where—

(a) a child who is living in the United Kingdom is to be removed
from or required to leave the United Kingdom, and

(b) an individual who—

(i) 20is a parent of the child or has care of the child, and

(ii) is living in a household in the United Kingdom with the
child,

is also to be removed from or required to leave the United
Kingdom.

(4) 25The Secretary of State may by regulations make provision about—

(a) additional functions of the Independent Family Returns Panel,

(b) its status and constitution,

(c) the appointment of its members,

(d) the payment of remuneration and allowances to its members,
30and

(e) any other matters in connection with its establishment and
operation.

(5) Regulations under this section must be made by statutory instrument.

(6) An instrument containing regulations under this section is subject to
35annulment in pursuance of a resolution of either House of Parliament.

(7) In this section—

  • “child” means a person who is under the age of 18;

  • “pre-departure accommodation” has the same meaning as in Part
    8 of the Immigration and Asylum Act 1999;

  • 40references to a person being removed from or required to leave the
    United Kingdom are to the person being removed or required
    to leave in accordance with a provision of the Immigration
    Acts.

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Powers of immigration officers

4 Enforcement powers

Schedule 1 (enforcement powers) has effect.

Detention and bail

5 5Restrictions on detention of unaccompanied children

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

(2) In paragraph 16, after paragraph (2) insert—

(2A) But the detention of an unaccompanied child under sub-paragraph
10(2) is subject to paragraph 18B.

(3) In paragraph 18, after sub-paragraph (1) insert—

(1A) But the detention of an unaccompanied child under paragraph 16(2)
is subject to paragraph 18B.

(4) After paragraph 18A (as inserted by paragraph 2 of Schedule 1) insert—

18B (1) 15Where a person detained under paragraph 16(2) is an
unaccompanied child, the only place where the child may be
detained is a short-term holding facility, except where—

(a) the child is being transferred to or from a short-term holding
facility, or

(b) 20sub-paragraph (3) of paragraph 18 applies.

(2) An unaccompanied child may be detained under paragraph 16(2) in
a short-term holding facility for a maximum period of 24 hours, and
only for so long as the following two conditions are met.

(3) The first condition is that—

(a) 25directions are in force that require the child to be removed
from the short-term holding facility within the relevant 24
hour period, or

(b) a decision on whether or not to give directions is likely to
result in such directions.

(4) 30The second condition is that the immigration officer under whose
authority the child is being detained reasonably believes that the
child will be removed from the short-term holding facility within the
relevant 24 hour period in accordance with those directions.

(5) An unaccompanied child detained under paragraph 16(2) who has
35been removed from a short-term holding facility and detained
elsewhere may be detained again in a short-term holding facility but
only if, and for as long as, the relevant 24 hour period has not ended.

(6) An unaccompanied child who has been released following detention
under paragraph 16(2) may be detained again in a short-term
40holding facility in accordance with this paragraph.

(7) In this paragraph—

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  • “relevant 24 hour period”, in relation to the detention of a child
    in a short-term holding facility, means the period of 24 hours
    starting when the child was detained (or, in a case falling
    within sub-paragraph (5), first detained) in a short-term
    5holding facility;

  • “short-term holding facility” has the same meaning as in Part 8
    of the Immigration and Asylum Act 1999;

  • “unaccompanied child” means a person—

    (a)

    who is under the age of 18, and

    (b)

    10who is not accompanied (whilst in detention) by his
    or her parent or another individual who has care of
    him or her.

6 Pre-departure accommodation for families

(1) Part 8 of the Immigration and Asylum Act 1999 (removal centres and detained
15persons) is amended as follows.

(2) In section 147 (interpretation)—

(a) after the definition of “custodial functions” insert—

  • “detained children” means detained persons who are
    under the age of 18;;

(b) 20after the definition of “escort monitor” insert—

  • “pre-departure accommodation” means a place used
    solely for the detention of detained children and their
    families for a period of—

    (a)

    not more than 72 hours, or

    (b)

    25not more than seven days in cases where the
    longer period of detention is authorised
    personally by a Minister of the Crown (within
    the meaning of the Ministers of the Crown Act
    1975);;

(c) 30in the definition of “removal centre”, after “facility,” insert “pre-
departure accommodation,”;

(d) in the definition of “short-term holding facility”, at the end insert—

  • but which is not pre-departure accommodation.

(3) In section 155 (custodial functions and discipline), in subsection (2), at the end
35insert “and in pre-departure accommodation”.

(4) After section 157 insert—

157A Pre-departure accommodation

(1) The following provisions of this Part apply to pre-departure
accommodation as they apply to removal centres—

(a) 40section 149 (contracting out of certain removal centres);

(b) section 150 (contracting out functions at directly managed
removal centres);

(c) section 151 (intervention by Secretary of State).

(2) In the application of those provisions to pre-departure
45accommodation—

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(a) references to a removal centre contract are to be read as a
contract made under section 149(1) for the provision or running
of pre-departure accommodation;

(b) references to a contracted out removal centre are to be read as
5references to pre-departure accommodation in relation to
which a contract under section 149(1) is in force;

(c) references to a directly managed removal centre are to be read
as references to pre-departure accommodation in relation to
which there is no contract under section 149(1) in force;

(d) 10references to removal centre rules are to be read as references to
rules made under subsection (4).

(3) The Secretary of State may by regulations extend to pre-departure
accommodation any other provision made by or under this Part in
relation to removal centres.

(4) 15The Secretary of State may make rules for the regulation and
management of pre-departure accommodation.

7 Immigration bail: repeat applications and effect of removal directions

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

(2) 20In paragraph 22 (bail) at the end insert—

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

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

(b) 25the directions require the person to be removed from the
United Kingdom within the period of 14 days starting with
the date of the decision on whether the person should be
released on bail.

(3) In paragraph 25—

(a) 30the existing paragraph is re-numbered as sub-paragraph (1);

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

(c) after that sub-paragraph insert—

(2) Tribunal Procedure Rules must secure that, where the First-
tier Tribunal has decided not to release a person on bail under
35paragraph 22, the Tribunal is required to dismiss without a
hearing any further application by the person for release on
bail (whether under paragraph 22 or otherwise) that is made
during the period of 28 days starting with the date of the
Tribunal’s decision, unless the person demonstrates to the
40Tribunal that there has been a material change in
circumstances.

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

(5) In paragraph 30 (restrictions on grant of bail pending appeal), in sub-
45paragraph (1)—

(a) after “if” insert “— (a)”;

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

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

(6) After paragraph 33, insert—

33A (1) Tribunal Procedure Rules must make provision with respect to
applications to the First-tier Tribunal under paragraphs 29 to 33 and
10matters arising out of such applications.

(2) Tribunal Procedure Rules must secure that, where the First-tier
Tribunal has decided not to release a person on bail under paragraph
29, the Tribunal is required to dismiss without a hearing any further
application by the person for release on bail (whether under
15paragraph 29 or otherwise) that is made during the period of 28 days
starting with the date of the Tribunal’s decision, unless the person
demonstrates to the Tribunal that there has been a material change in
circumstances.

Biometrics

8 20Provision of biometric information with immigration applications

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

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

(d) 25a transit visa (within the meaning of section 41 of the
Immigration and Asylum Act 1999), or

(e) a document issued as evidence that a person who is not a
national of an EEA state or Switzerland is entitled to enter or
remain in the United Kingdom by virtue of an enforceable EU
30right or of any provision made under section 2(2) of the
European Communities Act 1972.

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

(fa) provide for biometric information to be recorded on any
document issued as a result of the application in relation to
35which the information was provided;.

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

  • “document” includes a card or sticker and any other method of
    recording information (whether in writing or by the use of
    electronic or other technology or by a combination of
    40methods),.

9 Identifying persons liable to detention

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

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10 Provision of biometric information with citizenship applications

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

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

(bza) 5requiring an application for registration or naturalisation of a
person as a British citizen to be accompanied by biometric
information, or enabling an authorised person to require an
individual to whom such an application relates to provide
biometric information;.

(3) 10After subsection (1) insert—

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

(1ZB) Section 126(4) to (7) of that Act applies to regulations under subsection
15(1)(bza) as it applies to regulations under section 126(1) of that Act.

(1ZC) Section 8 of the UK Borders Act 2007 (power to make regulations about
use and retention of biometric information) applies to biometric
information provided in accordance with regulations under subsection
(1)(bza) as it applies to biometric information provided in accordance
20with regulations under section 5(1) of that Act.

(1ZD) But (despite section 8(5)(b) of that Act) regulations made by virtue of
subsection (1ZC) may provide for photographs of a person who is
registered or naturalised as a British citizen to be retained until the
person is issued with a United Kingdom passport describing the person
25as a British citizen.

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

11 Biometric immigration documents

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

(2A) 30If the regulations require a biometric immigration document to be used
in connection with an application or claim, they may require or permit
the application or claim to be disregarded or refused if that requirement
is not complied with.

12 Meaning of “biometric information”

(1) 35Section 15 of the UK Borders Act 2007 (biometric immigration documents:
interpretation) is amended as follows.

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

(3) After subsection (1) insert—

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

(a) 40information about a person’s external physical characteristics
(including in particular fingerprints and features of the iris),
and