Immigration Bill (HL Bill 109)

(2) The 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
53(6) of the Immigration Act 1971,

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

(c) to whom a notice has been given in accordance with regulations under
section 105 of the Nationality, Immigration and Asylum Act 2002
10(notice of decision) of a decision to make a deportation order against
that person, or

(d) 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 54 “relevant officer” means a detainee custody
15officer, 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) 20A 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,

(b) 25to 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) to seize and retain any such documents so obtained.

(7) 30The 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
facility, prison or young offender institution;

(d) 35any 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) another person detained as mentioned in subsection (1) or (2), or

(b) 40a 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) A relevant officer must pass a relevant nationality document seized and
45retained 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
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.

(13) If 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) 10arrange 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
the document, dispose of the document in such manner as the Secretary
of State thinks appropriate.

(14) 15A 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) if it was not found in the possession of a person, the location in which
it was found.

(15) 20In this section and section 54—

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

  (a)

  is being worn wholly or partly on the trunk, and

  (b)

  is being so worn either next to the skin or next to an article of
  25underwear;

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

• “nationality document” means a document which might—

  (a)

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

  (b)

  30indicate 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 54 a nationality document is
“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) 35In this section the following expressions have the same meaning as in Part 8 of
the Immigration and Asylum Act 1999 (see section 147)—

• “detained person”;

• “detainee custody officer”;

• “prisoner custody officer”;

• 40“removal centre”;

• “short-term holding facility”.

54 Seizure of nationality documents by detainee custody officers etc

(1) A 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
45by section 53.

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

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

(b) 5if 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
Secretary of State has reasonable grounds to believe that—

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

(b) 10the 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) If the Secretary of State does not give consent under subsection (2), the
Secretary of State must—

(a) 15direct 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
the document, direct the relevant officer to dispose of the document in
such manner as the Secretary of State may direct.

(5) 20A 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) if it was not found in the possession of a person, the location in which
it was found.

(6) 25The 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
the United Kingdom in accordance with a provision of the Immigration
30Acts, 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) arrange for the document to be returned in accordance with subsection
35(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.

55 Amendments relating to sections 53 and 54

(1) 40Schedule 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) at the end of paragraph (c) insert “or

(d) performing functions under section 53 of the
Immigration Act 2016 (search for nationality
documents),”.

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

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

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

(d) performing functions under section 53 of the
Immigration Act 2016 (search for nationality
10documents),”.

(4) After paragraph 8 insert—

“9 A reference in paragraph 4(d) or 5(d) to a detainee custody officer
performing functions under section 53 of the Immigration Act 2016
includes a reference to a prison officer or prisoner custody officer
15performing such functions.”

56 Amendments to search warrant provisions

Schedule 8 (amendments to search warrant provisions) has effect.

57 Supply of information to Secretary of State

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

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

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

“(a) a public authority, or

(b) 25any specified person, for purposes specified in relation to that
person.”

(4) In 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) 30After subsection (1A) insert—

“(1B) This section does not apply to—

(a) information 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
35acting on behalf of the Crown Prosecution Service,

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

(6) After subsection (2A) insert—

“(2B) Subsection (2A)(a) does not affect any other power of the Secretary of
40State to retain a document or article.”

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

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

(8) After subsection (3) insert—

“(3A) 5“Public authority” means a person with functions of a public nature but
does not include—

(a) Her Majesty’s Revenue and Customs,

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

(c) 10the Scottish Parliament or a person exercising functions in
connection with proceedings in the Scottish Parliament,

(d) the 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
15in connection with proceedings in that Assembly.”

(9) Omit subsection (4).

(10) After 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
20disclosure of information (however imposed).”

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

“20A Duty 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
25of a person listed in Schedule A1.

(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
30provision 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
35person 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) 40the 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) Subsection (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) 5The Secretary of State may retain a nationality document supplied
under 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) 10retention of the document may facilitate the removal.

(9) Subsection (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
15appropriate.

(11) Nothing 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
20add, modify or remove a reference to a person or description of person.

(13) Regulations 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) 25the Scottish Parliament or a person exercising functions in
connection with proceedings in the Scottish Parliament,

(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
30in connection with proceedings in that Assembly.

(14) In 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
35United Kingdom or to which a person is proposing to go.”

(12) In 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
40A1 so as to—

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

(13) Before Schedule 1 to the Immigration and Asylum Act 1999 insert the Schedule
A1 set out in Schedule 9.

58 Detention etc. by immigration officers in Scotland

(1) 10The Criminal Law (Consolidation) (Scotland) Act 1995 is amended as follows.

(2) In section 24A (extension of period of detention under section 24) for
subsection (7) insert—

“(7) In this section and section 24B, “custody review officer” means—

(a) an officer who—

(i) 15is of a rank at least equivalent to that of police inspector,
and

(ii) has not been involved in the investigation in connection
with which the person is detained, or

(b) in relation to the detention of a person under section 24 by an
20immigration officer, a constable—

(i) of the rank of inspector or above, and

(ii) who has not been involved in the investigation in
connection with which the person is detained.”

(3) In section 26A(2) (power of arrest of authorised immigration officers) omit “or
25immigration enforcement offence”.

(4) Section 26B(1) (interpretation of Part 3) is amended as follows.

(5) In the definition of “immigration offence”—

(a) after “means” insert “— (a)”, and

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

(b) 30(insofar as it is not an offence within paragraph (a)) an
offence under the Immigration Acts or in relation to
which a power of arrest is conferred on an immigration
officer by the Immigration Acts;”.

(6) Omit the definition of “immigration enforcement offence”.

59 35Powers to take fingerprints etc. from dependants

(1) Section 141 of the Immigration and Asylum Act 1999 (powers to take
fingerprints from certain persons and their dependants) is amended as follows.

(2) In subsection (7) for paragraph (f) substitute—

“(f) any person (“F”) who is—

(i) 40a member of the family of a person within any of
paragraphs (a), (b) or (ca) to (e), or

(ii) a dependant of a person within paragraph (c)(i).”

(3) In subsection (8)(f) after “person” insert “of whose family he is a member or”.

(4) In subsection (9)(f) after “person” insert “of whose family he is a member or”.

(5) After subsection (13) insert—

“(13A) For the purposes of subsection (7)(f)(i), a person is a member of the
5family of another person (“P”) if—

(a) the person is—

(i) P’s partner,

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

(iii) 10in a case where P is a child, P’s parent, or

(iv) an adult dependant relative of P, and

(b) the person does not have a right of abode in the United
Kingdom or indefinite leave to enter or remain in the United
Kingdom.

(13B) 15In subsection (13A) “child” means a person who is under the age of 18.”

(6) In subsection (14) for “(7)(f)” substitute “(7)(f)(ii)”.”

(7) Section 142 of the Immigration and Asylum Act 1999 (attendance for
fingerprinting) is amended as follows.

(8) In subsection (2) for “a dependant of” substitute “a member of the family of, or
20a dependant of,”.

(9) In subsection (2A) for “a dependant of” substitute “a member of the family of”.

(10) Until the commencement of the repeal of section 143 of the Immigration and
Asylum Act 1999 (destruction of fingerprints) by paragraph 17(2) of Schedule
9 to the Immigration Act 2014, subsection (9) of that section has effect as if after
25“the person” there were inserted “of whose family he is a member or”.

(11) In section 144A(2) (application of regulations about use and retention of
fingerprints etc to dependants) after “the person” insert “of whose family F is
a member or”.

60 Immigration detention: time limit and judicial oversight

(1) 30Subject to the provisions of this section, a person may not be detained under
any of the relevant powers—

(a) for a period longer than 28 days; or

(b) for periods of longer than 28 days in aggregate.

(2) The First-tier Tribunal may—

(a) 35extend a period of detention; or

(b) further extend a period of detention,

for such a period as is determined, on application made by the Secretary of
State, on the basis that the exceptional circumstances of the case require
extended detention.

(3) 40The First-tier Tribunal has the power to review an extended period of
detention without requiring the Secretary of State to make a new application.

(4) This section does not apply to a person who—

(a) has been sentenced to a term of imprisonment for a term of 12 months
or longer; or

(b) the Secretary of State has determined shall be deported.

(5) Rules of procedure for the purposes of this section may be made by the Lord
5Chancellor.

(6) In this section—

• “First-tier Tribunal” means—

  (a)

  in the case of an appeal against a decision on an asylum
  application which has not been determined, the chamber of the
  10First-tier Tribunal dealing with the appeal; or

  (b)

  in any other case, such chamber of the First-tier Tribunal as the
  Secretary of State considers appropriate;

• “relevant powers” means powers to detain pursuant to—

  (a)

  paragraph 16(1), (1A) or (2) of Schedule 2 to the Immigration
  15Act 1971,

  (b)

  paragraph 2(1), (2) or (3) of Schedule 3 to that Act,

  (c)

  section 62 of the Nationality, Immigration and Asylum Act
  2002, and

  (d)

  section 36(1) of the UK Borders Act 2007.

(7) 20In the case of a person to whom section 3(2) of the Special Immigration Appeals
Commission Act 1997 applies (detention on grounds of national security), the
Commission established under that Act shall be substituted for the First-tier
Tribunal.

61 Interpretation of Part

(1) 25In this Part “immigration officer” means a person appointed by the Secretary
of 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—

(a) 30in 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) in relation to Scotland, as in section 412 of the Proceeds of Crime Act
352002.

Detention and bail

62 Guidance on detention of vulnerable persons

(1) The Secretary of State must issue guidance specifying matters to be taken into
account by a person to whom the guidance is addressed in determining—

(a) 40whether a person (“P”) would be particularly vulnerable to harm if P
were to be detained or to remain in detention, and

(b) if P is identified as being particularly vulnerable to harm in those
circumstances, whether P should be detained or remain in detention.

(2) In subsection (1) “detained” means detained under—

(a) the Immigration Act 1971,

(b) section 62 of the Nationality, Immigration and Asylum Act 2002, or

(c) section 36 of the UK Borders Act 2007,

and “detention” is to be construed accordingly.

(3) 5A person to whom guidance under this section is addressed must take the
guidance into account.

(4) Before issuing guidance under this section the Secretary of State must lay a
draft of the guidance before Parliament.

(5) Guidance under this section comes into force in accordance with regulations
10made by the Secretary of State.

(6) The Secretary of State may from time to time review guidance under this
section and may revise and re-issue it.

(7) References in this section to guidance under this section include revised
guidance.

63 15Immigration bail

(1) Schedule 10 (immigration bail) has effect.

(2) In that Schedule—

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

(b) Part 2 contains amendments to other Acts.

(3) 20A 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
detained 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
25Immigration Act 1971 includes that paragraph as applied by any other
provision of the Immigration Acts.

(5) The 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
30paragraphs 22 and 29 of Schedule 2 to the Immigration Act 1971 by paragraph
19 of Schedule 10.

Power to cancel leave

64 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
35variation decision) after subsection (3) insert—

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

(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
40successfully or not).”