Immigration Bill (HL Bill 109)

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(a) a chief officer of police for a police area in England and Wales;

(b) the Director General of the National Crime Agency;

(c) a person appointed as an immigration officer under paragraph
1 of Schedule 2 to the Immigration Act 1971;

(d) 5any other person prescribed or of a prescribed description.

(2) The Authority may make a request under subsection (1) only if it
considers that the assistance would facilitate the exercise of any
function by the Authority or any of its officers.

(3) Any of the following persons may request the Authority to provide
10assistance to the person—

(a) a chief officer of police for a police area in England and Wales;

(b) a person appointed as an immigration officer under paragraph
1 of Schedule 2 to the Immigration Act 1971;

(c) any other person prescribed or of a prescribed description.

(4) 15A person may make a request under subsection (3) only if the person
considers that the assistance would facilitate the exercise by the person
of any function.

(5) A request under this section must—

(a) set out what assistance is being requested, and

(b) 20explain how the assistance would facilitate the exercise of the
function.

(6) A person who receives a request under this section must respond to it
in writing within a reasonable period.

(7) Regulations under this section must not make provision which would
25be—

(a) within the legislative competence of the Scottish Parliament if
contained in an Act of that Parliament,

(b) within the legislative competence of the National Assembly for
Wales if contained in an Act of that Assembly, or

(c) 30within the legislative competence of the Northern Ireland
Assembly if contained in an Act of that Assembly made without
the consent of the Secretary of State.”

(3) In section 25 (regulations, rules and orders), in subsection (5)—

(a) omit the “or” at the end of paragraph (a);

(b) 35at the end insert , or

(c) section 22A(1)(d) or (3)(c) (regulations regarding
persons whom the Authority may request to provide
assistance and who may request assistance from
Authority).”

40Labour market enforcement undertakings

14 Power to request LME undertaking

(1) This section applies where an enforcing authority believes that a person has
committed, or is committing, a trigger offence.

(2) An enforcing authority may give a notice to the person—

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(a) identifying the trigger offence which the authority believes has been or
is being committed;

(b) giving the authority’s reasons for the belief;

(c) inviting the person to give the authority a labour market enforcement
5undertaking in the form attached to the notice.

(3) A labour market enforcement undertaking (an “LME undertaking”) is an
undertaking by the person giving it (the “subject”) to comply with any
prohibitions, restrictions and requirements set out in the undertaking (as to
which see section 15).

(4) 10“Trigger offence” means—

(a) an offence under the Employment Agencies Act 1973 other than one
under section 9(4)(b) of that Act;

(b) an offence under the National Minimum Wage Act 1998;

(c) an offence under the Gangmasters (Licensing) Act 2004;

(d) 15any other offence prescribed by regulations made by the Secretary of
State;

(e) an offence of attempting or conspiring to commit an offence mentioned
in paragraphs (a) to (d);

(f) an offence under Part 2 of the Serious Crime Act 2007 in relation to an
20offence so mentioned;

(g) an offence of inciting a person to commit an offence so mentioned;

(h) an offence of aiding, abetting, counselling or procuring the commission
of an offence so mentioned.

(5) “Enforcing authority”—

(a) 25in relation to a trigger offence under the Employment Agencies Act
1973, means the Secretary of State or any authority whose officers are
acting for the purposes of that Act (see section 8A of that Act);

(b) in relation to a trigger offence under the National Minimum Wage Act
1998, means the Secretary of State or any authority whose officers are
30acting for the purposes of that Act (see section 13 of that Act);

(c) in relation to a trigger offence under the Gangmasters (Licensing) Act
2004, means the Secretary of State or any authority whose officers are
acting as enforcement officers for the purposes of that Act (see section
15 of that Act);

(d) 35in relation to an offence which is a trigger offence by virtue of
subsection (4)(d) (including an offence mentioned in subsection (4)(e)
to (h) in connection with such an offence), has the meaning prescribed
in regulations made by the Secretary of State.

(6) In subsection (5), a reference to an offence under an Act includes a reference to
40an offence mentioned in subsection (4)(e) to (h) in connection with such an
offence.

(7) In this section references to the Gangmasters (Licensing) Act 2004 are
references to that Act only so far as it applies in relation to England and Wales
and Scotland.

15 45Measures in LME undertakings

(1) An LME undertaking may include a prohibition, restriction or requirement
(each a “measure”) if, and only if—

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(a) the measure falls within subsection (2) or (3) (or both), and

(b) the enforcing authority considers that the measure is just and
reasonable.

(2) A measure falls within this subsection if it is for the purpose of—

(a) 5preventing or reducing the risk of the subject not complying with any
requirement imposed by or under the relevant enactment, or

(b) bringing to the attention of persons likely to be interested in the
matter—

(i) the existence of the LME undertaking,

(ii) 10the circumstances in which it was given, and

(iii) any action taken (or not taken) by the subject in order to comply
with the undertaking.

(3) A measure falls within this subsection if it is prescribed, or is of a description
prescribed, in regulations made by the Secretary of State.

(4) 15The enforcing authority must not—

(a) invite the subject to give an LME undertaking, or

(b) agree to the form of an undertaking,

unless the authority believes that at least one measure in the undertaking is
necessary for the purpose mentioned in subsection (5).

(5) 20That purpose is preventing or reducing the risk of the subject—

(a) committing a further trigger offence under the relevant enactment, or

(b) continuing to commit the trigger offence.

(6) An LME undertaking must set out how each measure included for the purpose
mentioned in subsection (2)(a) is expected to achieve that purpose.

(7) 25In this section, the “relevant enactment” means the enactment under which the
enforcing authority believes the trigger offence concerned has been or is being
committed.

16 Duration

(1) An LME undertaking has effect from when it is accepted by the enforcing
30authority or from the later time specified in it for this purpose.

(2) An LME undertaking has effect for the period specified in it but the maximum
period for which an undertaking may have effect is 2 years.

(3) The enforcing authority may release the subject from an LME undertaking.

(4) The enforcing authority must release the subject from an LME undertaking if
35at any time during the period for which it has effect the authority believes that
no measure in it is necessary for the purpose mentioned in section 15(5).

(5) If the enforcing authority releases the subject from an LME undertaking it must
take such steps as it considers appropriate to bring that fact to the attention
of—

(a) 40the subject;

(b) any other persons likely to be interested in the matter.

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17 Further provision about giving notice under section 14

(1) A notice may be given under section 14 to a person by—

(a) delivering it to the person,

(b) leaving it at the person’s proper address,

(c) 5sending it by post to the person at that address, or

(d) subject to subsection (6), sending it to the person by electronic means.

(2) A notice to a body corporate may be given to any officer of that body.

(3) A notice to a partnership may be given to any partner.

(4) A notice to an unincorporated association (other than a partnership) may be
10given to any member of the governing body of the association.

(5) For the purposes of this section and of section 7 of the Interpretation Act 1978
(service of documents by post) in its application to this section, the proper
address of a person is the person’s last known address (whether of the person’s
residence or of a place where the person carries on business or is employed)
15and also—

(a) in the case of a body corporate or an officer of the body, the address of
the body’s registered or principal office in the United Kingdom;

(b) in the case of a partnership or a partner, the address of the principal
office of the partnership in the United Kingdom;

(c) 20in the case of an unincorporated association (other than a partnership)
or a member of its governing body, the principal office of the
association in the United Kingdom.

(6) A notice may be sent to a person by electronic means only if—

(a) the person has indicated that notices under section 14 may be given to
25the person by being sent to an electronic address and in an electronic
form specified for that purpose, and

(b) the notice is sent to that address in that form.

(7) A notice sent to a person by electronic means is, unless the contrary is proved,
to be treated as having been given on the working day immediately following
30the day on which it was sent.

(8) In this section—

  • “electronic address” means any number or address used for the purposes
    of sending or receiving documents or information by electronic means;

  • “officer”, in relation to a body corporate, means a director, manager,
    35secretary or other similar officer of the body;

  • “working day” means a day other than a Saturday, a Sunday, Christmas
    Day, Good Friday or a bank holiday under the Banking and Financial
    Dealings Act 1971 in any part of the United Kingdom.

Labour market enforcement orders

18 40Power to make LME order on application

(1) The appropriate court may, on an application by an enforcing authority under
section 19, make a labour market enforcement order against a person if the
court—

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(a) is satisfied, on the balance of probabilities, that the person has
committed, or is committing, a trigger offence, and

(b) considers that it is just and reasonable to make the order.

(2) A labour market enforcement order (an “LME order”) is an order which—

(a) 5prohibits or restricts the person against whom it is made (“the
respondent”) from doing anything set out in the order;

(b) requires the respondent to do anything set out in the order.

See section 21.

(3) In this section “the appropriate court”—

(a) 10where the conduct constituting the trigger offence took or is taking
place primarily in England and Wales, means a magistrates’ court;

(b) where that conduct took or is taking place primarily in Scotland, means
the sheriff;

(c) where that conduct took or is taking place primarily in Northern
15Ireland, means a court of summary jurisdiction.

(4) An application for an LME order under this section is—

(a) in England and Wales, to be made by complaint;

(b) in Northern Ireland, to be made by complaint under Part 8 of the
Magistrates’ Courts (Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I.
2026)).

19 Applications

(1) An enforcing authority may apply for an LME order to be made under section
18 against a person (the “proposed respondent”) if—

(a) the authority has served a notice on the proposed respondent under
25section 14, and

(b) the proposed respondent—

(i) refuses to give an LME undertaking, or

(ii) otherwise fails, before the end of the negotiation period, to give
an LME undertaking in the form attached to the notice or in
30such other form as may be agreed with the enforcing authority.

(2) An enforcing authority may also apply for an LME order if the proposed
respondent—

(a) has given an LME undertaking to the enforcing authority, and

(b) has failed to comply with the undertaking.

(3) 35In subsection (1) “the negotiation period” means—

(a) the period of 14 days beginning with the day after that on which the
notice mentioned in paragraph (a) of that subsection was given, or

(b) such longer period as may be agreed between the enforcing authority
and the proposed respondent.

20 40Power to make LME order on conviction

(1) This section applies where a court deals with a person in respect of a conviction
for a trigger offence.

(2) The court may make an LME order against the person if the court considers it
is just and reasonable to do so.

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(3) An LME order must not be made under this section except—

(a) in addition to a sentence imposed in respect of the offence concerned, or

(b) in addition to an order discharging the person conditionally or, in
Scotland, discharging the person absolutely.

21 5Measures in LME orders

(1) An LME order may include a prohibition, restriction or requirement (each a
“measure”) if, and only if, the measure falls within subsection (2) or (3) (or
both).

(2) A measure falls within this subsection if it is for the purpose of—

(a) 10preventing or reducing the risk of the respondent not complying with
any requirement imposed by or under the relevant enactment, or

(b) bringing to the attention of persons likely to be interested in the
matter—

(i) the existence of the LME order,

(ii) 15the circumstances in which it was made, and

(iii) any action taken (or not taken) by the respondent in order to
comply with the order.

(3) A measure falls within this subsection if it is prescribed, or is of a description
prescribed, in regulations made by the Secretary of State.

(4) 20Where an LME order includes a measure for the purpose mentioned in
subsection (2)(a), the order must set out how the measure is expected to
achieve that purpose.

(5) In this section the “relevant enactment” means the enactment under which the
trigger offence concerned has been or is being committed.

22 25Further provision about LME orders

(1) An LME order has effect for the period specified in it but the maximum period
for which an order may have effect is 2 years.

(2) An LME order may not be made against an individual who is under 18.

(3) If a court makes an LME order, the court may also—

(a) 30release the respondent from any LME undertaking given in relation to
the trigger offence concerned;

(b) discharge any other LME order which is in force against the respondent
and which was made by the court or any other court in the same part of
the United Kingdom as the court.

23 35Variation and discharge

(1) The appropriate court may by order vary or discharge an LME order—

(a) on the application of the respondent;

(b) if the order was made under section 18, on the application of the
enforcing authority who applied for the order;

(c) 40if the order was made under section 20, on the application of the
enforcing authority whose officer conducted the investigation which
resulted in the prosecution of the respondent for the trigger offence.

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(2) In this section “the appropriate court”—

(a) in relation to an LME order made in England and Wales (whether made
under section 18 or 20), means a magistrates’ court;

(b) in relation to such an order made in Scotland, means the sheriff;

(c) 5in relation to such an order made in Northern Ireland, means a court of
summary jurisdiction.

(3) An application for an order under this section is—

(a) if made to a magistrates’ court in England and Wales, to be made by
complaint;

(b) 10if made to a court of summary jurisdiction in Northern Ireland, to be
made by complaint under Part 8 of the Magistrates’ Courts (Northern
Ireland) Order 1981 (S.I. 1981/1675 (N.I. 26)).

24 Appeals

(1) A respondent may appeal against—

(a) 15the making of an LME order under section 18;

(b) the making of, or refusal to make, an order under section 23.

(2) An appeal under subsection (1) is to be made—

(a) where the order was made or refused by a magistrates’ court in
England and Wales, to the Crown Court;

(b) 20where the order was made or refused by the sheriff, to the Sheriff
Appeal Court;

(c) where the order was made or refused by a court of summary
jurisdiction in Northern Ireland, to a county court.

(3) On an appeal under subsection (1) the court hearing the appeal may make such
25orders as may be necessary to give effect to its determination of the appeal, and
may also make such incidental or consequential orders as appear to it to be just
and reasonable.

(4) An LME order that has been varied by virtue of subsection (3) remains an order
of the court that first made it for the purposes of section 23.

(5) 30A respondent may appeal against the making of an LME order under section
20 as if the order were a sentence passed on the respondent for the trigger
offence.

LME undertakings and orders: supplementary

25 Code of practice

(1) 35The Secretary of State must issue a code of practice giving guidance to
enforcing authorities about the exercise of their functions under sections 14 to
23.

(2) The Secretary of State may revise the code from time to time.

(3) The code and any revised code—

(a) 40must not be issued unless a draft has been laid before Parliament, and

(b) comes into force on such day as the Secretary of State appoints by
regulations.

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(4) The Secretary of State must publish the code and any revised code.

(5) An enforcing authority must have regard to the current version of the code in
exercising its functions under sections 14 to 23.

26 Investigative functions

(1) 5An officer acting for the purposes of the Employment Agencies Act 1973—

(a) may also act for the purposes of taking action where it appears that a
person has failed to comply with an LME undertaking or an LME order
where the trigger offence to which the undertaking or order relates is
an offence under that Act, and

(b) 10in doing so, has the same powers and duties as he or she has when
acting for the purposes of that Act.

(2) An officer acting for the purposes of the National Minimum Wage Act 1998—

(a) may also act for the purposes of taking action where it appears that a
person has failed to comply with an LME undertaking or an LME order
15where the trigger offence to which the undertaking or order relates is
an offence under that Act, and

(b) in doing so, has the same powers and duties as he or she has when
acting for the purposes of that Act.

(3) An officer acting as an enforcement officer for the purposes of the Gangmasters
20(Licensing) Act 2004—

(a) may also act for the purposes of taking action where it appears that a
person has failed to comply with an LME undertaking or an LME order
where the trigger offence to which the undertaking or order relates is
an offence under that Act, and

(b) 25in doing so, has the same powers and duties as he or she has when
acting as an enforcement officer for the purposes of that Act.

(4) In this section references to the Gangmasters (Licensing) Act 2004 are
references to that Act only so far as it applies in relation to England and Wales
and Scotland.

27 30Offence

(1) A person against whom an LME order is made commits an offence if the
person, without reasonable excuse, fails to comply with the order.

(2) A person guilty of an offence under this section is liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding
352 years, to a fine or to both;

(b) on summary conviction in England and Wales, to imprisonment for a
term not exceeding 12 months, to a fine or to both;

(c) on summary conviction in Scotland, to imprisonment for a term not
exceeding 12 months, to a fine not exceeding the statutory maximum or
40to both;

(d) on summary conviction in Northern Ireland, to imprisonment for a
term not exceeding 6 months, to a fine not exceeding the statutory
maximum or to both.

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(3) In relation to an offence committed before the commencement of section 154(1)
of the Criminal Justice Act 2003, the reference in subsection (2)(b) to 12 months
is to be read as a reference to 6 months.

28 Offences by bodies corporate

(1) 5If an offence under section 27 committed by a body corporate is proved—

(a) to have been committed with the consent or connivance of an officer of
the body, or

(b) to be attributable to any neglect on the part of such an officer,

the officer, as well as the body corporate, is guilty of the offence and liable to
10be proceeded against and punished accordingly.

(2) In subsection (1) “officer”, in relation to a body corporate, means—

(a) a director, manager, secretary or other similar officer of the body;

(b) a person purporting to act in any such capacity.

(3) If the affairs of a body corporate are managed by its members, subsection (1)
15applies in relation to the acts and defaults of a member in connection with the
member’s functions of management as if the member were a director of the
body corporate.

29 Application to unincorporated associations

(1) In a case falling within subsection (2), an unincorporated association is to be
20treated as a legal person for the purposes of sections 14 to 27.

(2) A case falls within this subsection if it relates to a trigger offence for which it is
possible to bring proceedings against an unincorporated association in the
name of the association.

(3) Proceedings for an offence under section 27 alleged to have been committed by
25an unincorporated association may be brought against the association in the
name of the association.

(4) For the purposes of such proceedings—

(a) rules of court relating to the service of documents have effect as if the
association were a body corporate, and

(b) 30the following provisions apply as they apply in relation to a body
corporate—

(i) section 33 of the Criminal Justice Act 1925 and Schedule 3 to the
Magistrates’ Courts Act 1980;

(ii) sections 70 and 143 of the Criminal Procedure (Scotland) Act
351995;

(iii) section 18 of the Criminal Justice Act (Northern Ireland) 1945 (c.
15 (N.I.)) and Schedule 4 to the Magistrates’ Courts (Northern
Ireland) Order 1981 (S.I. 1981/1675 (N.I. 26)).

(5) A fine imposed on the association on its conviction of an offence is to be paid
40out of the funds of the association.

(6) If an offence under section 27 committed by an unincorporated association is
proved—

(a) to have been committed with the consent or connivance of an officer of
the association, or

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(b) to be attributable to any neglect on the part of such an officer,

the officer, as well as the association, is guilty of the offence and liable to be
proceeded against and punished accordingly.

(7) In subsection (6) “officer”, in relation to any association, means—

(a) 5an officer of the association or a member of its governing body;

(b) a person purporting to act in such a capacity.

30 Application to partnerships

(1) If an offence under section 27 committed by a partner of a partnership which
is not regarded as a legal person is shown—

(a) 10to have been committed with the consent or connivance of another
partner, or

(b) to be attributable to any neglect on the part of another partner,

that other partner, as well as the first-mentioned partner, is guilty of the offence
and liable to be proceeded against and punished accordingly.

(2) 15Proceedings for an offence under section 27 alleged to have been committed by
a partnership which is regarded as a legal person may be brought against the
partnership in the firm name.

(3) For the purposes of such proceedings—

(a) rules of court relating to the service of documents have effect as if the
20partnership were a body corporate, and

(b) the following provisions apply as they apply in relation to a body
corporate—

(i) section 33 of the Criminal Justice Act 1925 and Schedule 3 to the
Magistrates’ Courts Act 1980;

(ii) 25sections 70 and 143 of the Criminal Procedure (Scotland) Act
1995;

(iii) section 18 of the Criminal Justice Act (Northern Ireland) 1945 (c.
15 (N.I.)) and Schedule 4 to the Magistrates’ Courts (Northern
Ireland) Order 1981 (S.I. 1981/1675 (N.I. 26)).

(4) 30A fine imposed on a partnership on its conviction of an offence is to be paid out
of the funds of the partnership.

(5) If an offence under section 27 committed by a partnership is proved—

(a) to have been committed with the consent or connivance of a partner, or

(b) to be attributable to any neglect on the part of a partner,

35the partner, as well as the partnership, is guilty of the offence and liable to be
proceeded against and punished accordingly.

(6) In subsections (1) and (5) “partner” includes a person purporting to act as a
partner.

(7) For the purposes of this section a partnership is, or is not, “regarded as a legal
40person” if it is, or is not, so regarded under the law of the country or territory
under which it was formed.