Immigration Bill (HL Bill 79)

Immigration BillPage 30

(5) The person may inform the immigration officer that the person will not accept
the item only if—

(a) the person does not think the item or information contained in it has
been obtained in consequence of the commission of, or is evidence in
5relation to, an offence,

(b) the person does not have functions in relation to the investigation of the
relevant offence, or

(c) the person thinks that it would be more appropriate for the relevant
offence to be investigated by another person with such functions.

(6) 10If the person informs the immigration officer that the person will accept the
item, the immigration officer must give it to the person as soon as is reasonably
practicable.

(7) Once the item has been given as mentioned in subsection (6), any provision of
an enactment which applies to items seized or taken away by the person
15applies to the item as if it had been seized or taken away by the person for the
purposes of the investigation of the relevant offence.

(8) If the person informs the immigration officer that the person will not accept the
item because subsection (5)(a) applies, the immigration officer must, as soon as
is reasonably practicable, return the item in accordance with subsection (10).

(9) 20If the person informs the immigration officer that the person will not accept the
item because subsection (5)(b) or (c) applies, the immigration officer must, as
soon as is reasonably practicable—

(a) notify the exercise of a power mentioned in subsection (1) in relation to
the item to another person (if any) who the immigration officer thinks
25has functions in relation to the investigation of the relevant offence, or

(b) if there is no such person, return the item in accordance with subsection
(10).

(10) An item which must be returned in accordance with this subsection must be
returned—

(a) 30to the person from whom it was seized, or

(b) if there is no such person, to the place from which it was seized or taken
away.

(11) Where an item to which this section applies or information contained in such
an item has been obtained in consequence of the commission of, or is evidence
35in relation to, more than one offence, references in this section to the relevant
offence are to any of those offences.

(12) A function conferred or imposed by this section on an immigration officer may
be exercised by any other immigration officer.

(13) In this section “enactment” includes—

(a) 40an enactment contained in subordinate legislation within the meaning
of the Interpretation Act 1978,

(b) an enactment contained in, or in an instrument made under, an Act of
the Scottish Parliament,

(c) an enactment contained, or in an instrument made under, a Measure or
45Act of the National Assembly for Wales, and

(d) an enactment contained in, or in an instrument made under, Northern
Ireland legislation.

Immigration BillPage 31

24 Retention of things seized under Part 3 of the Immigration Act 1971

After section 28H of the Immigration Act 1971 insert—

28ZI Retention of seized material

(1) This section applies to anything seized by an immigration officer under
5this Part for the purposes of the investigation of an offence or on the
basis that it may be evidence relating to an offence.

(2) Anything seized as mentioned in subsection (1) may be retained so long
as is necessary in all the circumstances and in particular—

(a) may be retained, except as provided for by subsection (3)

(i) 10for use as evidence at a trial for an offence, or

(ii) for forensic examination or for investigation in
connection with an offence, and

(b) may be retained in order to establish its lawful owner, where
there are reasonable grounds for believing that it has been
15obtained in consequence of the commission of an offence.

(3) Nothing may be retained for a purpose mentioned in subsection (2)(a)
if a photograph or copy would be sufficient for that purpose.”

25 Search for nationality documents by detainee custody officers etc

(1) The Secretary of State may direct a detainee custody officer, prison officer or
20prisoner custody officer to exercise any of the powers in subsection (6) in
relation to—

(a) a detained person who is detained in a removal centre, prison or young
offender institution, or

(b) a person who is detained in a short-term holding facility.

(2) 25The Secretary of State may direct a prison officer or prisoner custody officer to
exercise any of the powers in subsection (6) in relation to a person detained in
a prison or young offender institution—

(a) who has been recommended for deportation by a court under section
3(6) of the Immigration Act 1971,

(b) 30in respect of whom the Secretary of State has made, or intends to make,
a deportation order under section 5(1) of that Act, or

(c) in respect of whom the Secretary of State must make, or has made, a
deportation order under section 32(5) of the UK Borders Act 2007.

(3) In this section and section 26 “relevant officer” means a detainee custody
35officer, prison officer or prisoner custody officer.

(4) The Secretary of State may give a direction in relation to a person detained as
mentioned in subsection (1) or (2) only if the Secretary of State has reasonable
grounds to believe a relevant nationality document will be found if a power in
subsection (6) is exercised in relation to the person.

(5) 40A relevant officer to whom a direction is given under subsection (1) or (2) must
(if able to do so) comply with it.

(6) The powers referred to in subsections (1), (2) and (4) are—

(a) to require the person to hand over to the relevant officer all relevant
nationality documents in his or her possession,

Immigration BillPage 32

(b) to search for such documents and to take possession of any that the
relevant officer finds,

(c) to inspect any relevant nationality documents obtained in the course of
the exercise of a power in paragraph (a) or (b), and

(d) 5to seize and retain any such documents so obtained.

(7) The power in subsection (6)(b) is a power to search any of the following—

(a) the person;

(b) anything the person has with him or her;

(c) the person’s accommodation in the removal centre, short-term holding
10facility, prison or young offender institution;

(d) any item of the person’s property in the removal centre, short-term
holding facility, prison or young offender institution.

(8) A full search may be carried out under subsection (7)(a); but such a search may
not be carried out in the presence of—

(a) 15another person detained as mentioned in subsection (1) or (2), or

(b) a person of the opposite sex.

(9) An intimate search may not be carried out under subsection (7)(a).

(10) A relevant officer may if necessary use reasonable force for the purposes of
exercising a power in subsection (6)(a) or (b).

(11) 20A relevant officer must pass a relevant nationality document seized and
retained under subsection (6)(d) to the Secretary of State as soon as is
reasonably practicable.

(12) The Secretary of State may retain a relevant nationality document which comes
into the Secretary of State’s possession under subsection (11) while the
25Secretary of State suspects that—

(a) a person to whom the document relates may be liable to removal from
the United Kingdom in accordance with a provision of the Immigration
Acts, and

(b) retention of the document may facilitate the removal.

(13) 30If subsection (12) does not apply to a document which comes into the Secretary
of State’s possession under this section, the Secretary of State may—

(a) arrange for the document to be returned in accordance with subsection
(14), or

(b) if the Secretary of State thinks that it would not be appropriate to return
35the document, dispose of the document in such manner as the Secretary
of State thinks appropriate.

(14) A document which is required to be returned in accordance with this
subsection must be returned to—

(a) the person who was previously in possession of it, or

(b) 40if it was not found in the possession of a person, the location in which
it was found.

(15) In this section and section 26—

  • “full search” means a search which involves the removal of an item of
    clothing which—

    (a)

    45is being worn wholly or partly on the trunk, and

    Immigration BillPage 33

    (b)

    is being so worn either next to the skin or next to an article of
    underwear;

  • “intimate search” means a search which consists of a physical examination
    of a person’s body orifices other than the mouth;

  • 5“nationality document” means a document which might—

    (a)

    establish a person’s identity, nationality or citizenship, or

    (b)

    indicate the place from which a person has travelled to the
    United Kingdom or to which a person is proposing to go.

(16) For the purposes of this section and section 26 a nationality document is
10“relevant” if it relates to a person who is liable to removal from the United
Kingdom in accordance with a provision of the Immigration Acts.

(17) In this section the following expressions have the same meaning as in Part 7 of
the Immigration and Asylum Act 1999 (see section 147)—

  • “detained person”;

  • 15“detainee custody officer”;

  • “prisoner custody officer”;

  • “removal centre”;

  • “short-term holding facility”.

26 Seizure of nationality documents by detainee custody officers etc

(1) 20A relevant officer may seize a nationality document which the relevant officer
finds in the course of the exercise of a power to search other than one conferred
by section 25.

(2) Where a relevant officer seizes a nationality document under subsection (1),
the relevant officer—

(a) 25must seek the consent of the Secretary of State to retain the document,
and

(b) if the relevant officer obtains the Secretary of State’s consent, must pass
the document to the Secretary of State as soon as is practicable.

(3) The Secretary of State may give consent under subsection (2) only if the
30Secretary of State has reasonable grounds to believe that—

(a) the document is a relevant nationality document, and

(b) the document may facilitate the removal of the person to whom it
relates from the United Kingdom in accordance with a provision of the
Immigration Acts.

(4) 35If the Secretary of State does not give consent under subsection (2), the
Secretary of State must—

(a) direct the relevant officer to return the document as mentioned in
subsection (5), or

(b) if the Secretary of State thinks that it would not be appropriate to return
40the document, direct the relevant officer to dispose of the document in
such manner as the Secretary of State may direct.

(5) A document which is required to be returned in accordance with this
subsection must be returned to—

(a) the person who was previously in possession of it, or

(b) 45if it was not found in the possession of a person, the location in which
it was found.

Immigration BillPage 34

(6) The Secretary of State may retain a relevant nationality document which comes
into the Secretary of State’s possession under this section while the Secretary
of State suspects that—

(a) a person to whom the document relates may be liable to removal from
5the United Kingdom in accordance with a provision of the Immigration
Acts, and

(b) retention of the document may facilitate the removal.

(7) If subsection (6) does not apply to a document which comes into the Secretary
of State’s possession under this section, the Secretary of State may—

(a) 10arrange for the document to be returned in accordance with subsection
(5), or

(b) if the Secretary of State thinks that it would not be appropriate to return
the document, dispose of the document in such manner as the Secretary
of State thinks appropriate.

27 15Amendments relating to sections 25 and 26

(1) Schedule 11 to the Immigration and Asylum Act 1999 (detainee custody
officers) is amended as follows.

(2) In paragraph 4 (offence of assaulting detainee custody officer)—

(a) omit the “or” at the end of paragraph (b), and

(b) 20at the end of paragraph (c) insert or

(d) performing functions under section 25 of the
Immigration Act 2016 (search for nationality
documents),”.

(3) In paragraph 5 (offence of obstructing detainee custody officer)—

(a) 25omit the “or” at the end of paragraph (b), and

(b) at the end of paragraph (c) insert or

(d) performing functions under section 25 of the
Immigration Act 2016 (search for nationality
documents),”.

(4) 30After paragraph 8 insert—

9 A reference in paragraph 4(d) or 5(d) to a detainee custody officer
performing functions under section 25 of the Immigration Act 2016
includes a reference to a prison officer or prisoner custody officer
performing such functions.”

28 35Amendments to search warrant provisions

Schedule 5 (amendments to search warrant provisions) has effect.

29 Supply of information to Secretary of State

(1) Section 20 of the Immigration and Asylum Act 1999 (supply of information to
Secretary of State) is amended in accordance with subsections (2) to (10).

(2) 40For the heading substitute “Power to supply information etc to Secretary of
State”.

Immigration BillPage 35

(3) In subsection (1) for paragraphs (a) to (f) substitute—

(a) a public authority, or

(b) any specified person, for purposes specified in relation to that
person.”

(4) 5In subsection (1A) in each of paragraphs (a) and (b) for “a person listed in
subsection (1) or someone acting on his behalf” substitute “a public authority
or someone acting on behalf of a public authority”.

(5) After subsection (1A) insert—

(1B) This section does not apply to—

(a) 10information which is held by the Crown Prosecution Service, or

(b) a document or article which comes into the possession of, or is
discovered by, the Crown Prosecution Service, or someone
acting on behalf of the Crown Prosecution Service,

if section 40 of the UK Borders Act 2007 applies to the information,
15document or article.”

(6) After subsection (2A) insert—

(2B) Subsection (2A)(a) does not affect any other power of the Secretary of
State to retain a document or article.”

(7) In subsection (3) after paragraph (d) insert—

(da) 20anything else that is done in connection with the exercise of a
function under any of the Immigration Acts;”.

(8) After subsection (3) insert—

(3A) “Public authority” means a person with functions of a public nature but
does not include—

(a) 25Her Majesty’s Revenue and Customs,

(b) either House of Parliament or a person exercising functions in
connection with proceedings in Parliament,

(c) the Scottish Parliament or a person exercising functions in
connection with proceedings in the Scottish Parliament,

(d) 30the National Assembly for Wales or a person exercising
functions in connection with proceedings in that Assembly, or

(e) the Northern Ireland Assembly or a person exercising functions
in connection with proceedings in that Assembly.”

(9) Omit subsection (4).

(10) 35After subsection (6) insert—

(7) Nothing in this section authorises information, a document or an article
to be supplied if to do so would contravene a restriction on the
disclosure of information (however imposed).”

(11) After section 20 of the Immigration and Asylum Act 1999 insert—

20A 40Duty to supply nationality documents to Secretary of State

(1) This section applies to a nationality document which the Secretary of
State has reasonable grounds for believing is lawfully in the possession
of a person listed in Schedule A1.

Immigration BillPage 36

(2) The Secretary of State may direct the person to supply the document to
the Secretary of State if the Secretary of State suspects that—

(a) a person to whom the document relates may be liable to
removal from the United Kingdom in accordance with a
5provision of the Immigration Acts, and

(b) the document may facilitate the removal.

(3) A person to whom a direction is given must, as soon as is practicable,
supply the document to the Secretary of State.

(4) If the document was originally created in hard copy form and the
10person possesses the original document, it must be supplied to the
Secretary of State unless it is required by the person for the
performance of any of the person’s functions.

(5) If the original document is required by the person for the performance
of any of the person’s functions—

(a) 15the person must, as soon as is practicable, supply a copy of the
document to the Secretary of State, and

(b) if subsequently the person no longer requires the original
document, the person must supply it to the Secretary of State as
soon as is practicable after it is no longer required.

(6) 20Subsection (5)(b) does not apply if the Secretary of State notifies the
person that the original document is no longer required.

(7) If subsection (5) applies the person may make a copy of the original
document before supplying it to the Secretary of State.

(8) The Secretary of State may retain a nationality document supplied
25under this section while the Secretary of State suspects that—

(a) a person to whom the document relates may be liable to
removal from the United Kingdom in accordance with a
provision of the Immigration Acts, and

(b) retention of the document may facilitate the removal.

(9) 30Subsection (8) does not affect any other power of the Secretary of State
to retain a document.

(10) The Secretary of State may dispose of a nationality document supplied
under this section in such manner as the Secretary of State thinks
appropriate.

(11) 35Nothing in this section authorises or requires a document to be
supplied if to do so would contravene a restriction on the disclosure of
information (however imposed).

(12) The Secretary of State may by regulations amend Schedule A1 so as to
add, modify or remove a reference to a person or description of person.

(13) 40Regulations under subsection (12) may not amend Schedule A1 so as to
apply this section to—

(a) either House of Parliament or a person exercising functions in
connection with proceedings in Parliament,

(b) the Scottish Parliament or a person exercising functions in
45connection with proceedings in the Scottish Parliament,

Immigration BillPage 37

(c) the National Assembly for Wales or a person exercising
functions in connection with proceedings in that Assembly, or

(d) the Northern Ireland Assembly or a person exercising functions
in connection with proceedings in that Assembly.

(14) 5In this section “nationality document” means a document which
might—

(a) establish a person’s identity, nationality or citizenship, or

(b) indicate the place from which a person has travelled to the
United Kingdom or to which a person is proposing to go.”

(12) 10In section 166 of the Immigration and Asylum Act 1999 (regulations and
orders)—

(a) after subsection (5) insert—

(5A) No regulations under section 20A(12) which amend Schedule
A1 so as to—

(a) 15add a reference to a person or description of person, or

(b) modify a reference to a person or description of person
otherwise than in consequence of a change of name or
transfer of functions,

are to be made unless a draft of the regulations has been laid
20before Parliament and approved by a resolution of each
House.”, and

(b) in subsection (6), before the “or” at the end of paragraph (a) insert—

(ab) under section 20A(12) and which falls within subsection
(5A),”.

(13) 25Before Schedule 1 to the Immigration and Asylum Act 1999 insert the Schedule
A1 set out in Schedule 6.

30 Detention etc. by immigration officers in Scotland

(1) Section 26B(1) of the Criminal Law (Consolidation) (Scotland) Act 1995
(interpretation of Part 3) is amended as follows.

(2) 30In the definition of “immigration offence”—

(a) after “means” insert “— (a)”, and

(b) at the end of paragraph (a) insert , or

(b) (insofar as it is not an offence within paragraph (a)) an
offence under the Immigration Acts or in relation to
35which a power of arrest is conferred on an immigration
officer by the Immigration Acts;”.

(3) In the definition of “immigration enforcement offence”, omit paragraph (a).

31 Interpretation of Part

(1) In this Part “immigration officer” means a person appointed by the Secretary
40of State as an immigration officer under paragraph 1 of Schedule 2 to the
Immigration Act 1971.

(2) In this Part “premises” and “item subject to legal privilege” have the same
meaning—

Immigration BillPage 38

(a) in relation to England and Wales, as in the Police and Criminal
Evidence Act 1984;

(b) in relation to Northern Ireland, as in the Police and Criminal Evidence
(Northern Ireland) Order 1989 (SI 1989/1341 (NI 12)SI 1989/1341 (NI 12));

(c) 5in relation to Scotland, as in section 412 of the Proceeds of Crime Act
2002.

Immigration bail

32 Immigration bail

(1) Schedule 7 (immigration bail) has effect.

(2) 10In that Schedule—

(a) Part 1 contains the main provisions about immigration bail, and

(b) Part 2 contains amendments to other Acts.

(3) A person may be released and remain on bail under paragraph 22 or 29 of
Schedule 2 to the Immigration Act 1971 even if the person can no longer be
15detained under a provision of the Immigration Acts to which that paragraph
applies, if the person is liable to detention under such a provision.

(4) The reference in subsection (3) to paragraph 22 or 29 of Schedule 2 to the
Immigration Act 1971 includes that paragraph as applied by any other
provision of the Immigration Acts.

(5) 20The amendment made by subsection (3) is to be treated as always having had
effect.

(6) Subsections (3) to (5) are repealed on the coming into force of the repeal of
paragraphs 22 and 29 of Schedule 2 to the Immigration Act 1971 by paragraph
16 of Schedule 7.

25Power to cancel leave

33 Power to cancel leave extended under section 3C of the Immigration Act 1971

(1) In section 3C of the Immigration Act 1971 (continuation of leave pending
variation decision) after subsection (3) insert—

(3A) Leave extended by virtue of this section may be cancelled if the
30applicant—

(a) has failed to comply with a condition attached to the leave, or

(b) has used or uses deception in seeking leave to remain (whether
successfully or not).”

(2) In section 4(1) of that Act (persons by whom and means by which powers are
35to be exercised) after “conditions)” insert “or to cancel any leave under section
3C(3A)”.

Immigration BillPage 39

Part 4 Appeals

34 Appeals within the United Kingdom: certification of human rights claims

(1) Section 94B of the Nationality, Immigration and Asylum Act 2002 (appeals
5from within the United Kingdom: certification of human rights claims made by
persons liable to deportation) is amended in accordance with subsections (2) to
(5).

(2) In the heading omit “made by persons liable to deportation”.

(3) In subsection (1) omit the words from “who is liable” to the end of paragraph
10(b).

(4) In subsection (2) for the words from “removal” to “removed” substitute
“refusing P entry to, removing P from or requiring P to leave the United
Kingdom”.

(5) In subsection (3) for the words from “removed” in the first place it appears to
15“removed” in the second place it appears substitute “refused entry to, removed
from or required to leave the United Kingdom”.

(6) In section 92(3)(a) of that Act (cases where human rights claim appeal must be
brought from outside the United Kingdom) omit “made by persons liable to
deportation”.

35 20Continuation of leave: repeals

(1) In the Immigration Act 1971 omit section 3D (continuation of leave following
revocation).

(2) In section 2(2)(a) of the Special Immigration Appeals Commission Act 1997
(jurisdiction: appeals) omit “or 3D”.

(3) 25In section 120(4)(b) of the Nationality, Immigration and Asylum Act 2002
(requirement to state additional grounds for application etc) omit “or 3D”.

(4) In consequence of the repeals made by this section, the following are
repealed—

(a) paragraph 14(b)(i) of Schedule 1 to the Immigration, Asylum and
30Nationality Act 2006, and

(b) paragraph 22 of Schedule 9 to the Immigration Act 2014.

(5) The repeals made by this section do not apply in relation to a person (“P”)
where—

(a) P’s leave was extended by virtue of section 3D of the Immigration Act
351971 immediately before 6 April 2015, and

(b) immediately before the coming into force of this section an appeal by P
against the variation or revocation of P’s leave to enter or remain in the
United Kingdom was pending within the meaning of section 104 of the
Nationality, Immigration and Asylum Act 2002.