Nationality and Borders Bill (HL Bill 82)

Nationality and Borders BillPage 80

76 Tribunal charging power in respect of wasted resources

(1)After section 25 of the Tribunals, Courts and Enforcement Act 2007 insert—

25A First-tier Tribunal and Upper Tribunal: charging power in respect of
wasted resources

(1)5If, in respect of proceedings before the First-tier Tribunal or Upper
Tribunal, the Tribunal considers that—

(a)a relevant participant has acted improperly, unreasonably or
negligently, and

(b)as a result, the Tribunal’s resources have been wasted,

10it may charge the participant an amount under this section.

(2)Subsection (1) is subject to Tribunal Procedure Rules.

(3)For the purposes of this section “relevant participant”, in respect of
proceedings, means—

(a)any person exercising a right of audience or right to conduct the
15proceedings on behalf of a party to proceedings,

(b)any employee of such a person, or

(c)where the Secretary of State is a party to proceedings and has
not instructed a person mentioned in paragraph (a) to act on
their behalf in the proceedings, the Secretary of State.

(4)20A person may be found to have acted improperly, unreasonably or
negligently for the purposes of subsection (1) by reason of having failed
to act in a particular way.

(5)The proceeds of amounts charged under this section must be paid into
the Consolidated Fund.”

(2)25In Schedule 5 to that Act (procedure in First-tier Tribunal and Upper Tribunal),
after paragraph 11 insert—

“Charges in respect of wasted resources

11A(1)Rules may make provision for regulating matters relating to the
charging of amounts under section 25A (First-tier Tribunal and
30Upper Tribunal: power to charge in respect of wasted resources).

(2)The provision mentioned in sub-paragraph (1) includes (in
particular) provision prescribing scales of amounts that may be
charged.”

77 Tribunal Procedure Rules to be made in respect of costs orders etc

(1)35Tribunal Procedure Rules must prescribe conduct that, in the absence of
evidence to the contrary, is to be treated as—

(a)improper, unreasonable or negligent for the purposes of—

(i)section 25A(1) of the Tribunals, Courts and Enforcement Act
2007 (charge in respect of wasted resources);

(ii)40section 29(4) of that Act (wasted costs);

(b)an unreasonable act for the purposes of section 29(3A) of that Act
(unreasonable costs orders).

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(2)Tribunal Procedure Rules must make provision to the effect that the Tribunal,
if satisfied that conduct prescribed under subsection (1) has taken place, must
consider whether to impose a charge or make an order in accordance with the
provisions mentioned in that subsection.

(3)5Nothing in Tribunal Procedure Rules may compel the Tribunal to impose a
charge, or make an order, mentioned in subsection (1) in relation to conduct
(whether or not that conduct is prescribed under that subsection).

(4)In this section “the Tribunal” means the Immigration and Asylum Chamber of
the First-Tier Tribunal and of the Upper Tribunal (see Articles 2 and 9 of The
10First-tier Tribunal and Upper Tribunal (Chambers) Order 2010 (S.I. 2010/
2655)).

(5)In this section “conduct” includes acts and omissions.

(6)In section 29 of the Tribunals, Courts and Enforcement Act 2007, after
subsection (3) insert—

(3A)15The relevant Tribunal may, in particular, make an order in respect of
costs in any proceedings mentioned in subsection (1), if it considers that
a party or its legal or other representative has acted unreasonably in
bringing, defending or conducting the proceedings.”

78 Pre-consolidation amendments of immigration legislation

(1)20The Secretary of State may by regulations make such amendments and
modifications of the Acts relating to immigration as in the Secretary of State’s
opinion facilitate, or are otherwise desirable in connection with, the
consolidation of the whole or a substantial part of the Acts relating to
immigration.

(2)25The Acts relating to immigration are—

(a)the Immigration Act 1971;

(b)the Immigration Act 1988;

(c)the Asylum and Immigration Appeals Act 1993;

(d)the Asylum and Immigration Act 1996;

(e)30the Special Immigration Appeals Commission Act 1997;

(f)the Immigration and Asylum Act 1999;

(g)the Nationality, Immigration and Asylum Act 2002;

(h)the Asylum and Immigration (Treatment of Claimants, etc) Act 2004;

(i)the Immigration, Asylum and Nationality Act 2006;

(j)35the UK Borders Act 2007;

(k)Parts 10 and 12 of the Criminal Justice and Immigration Act 2008;

(l)the Borders, Citizenship and Immigration Act 2009;

(m)section 147 of and Schedule 8 to the Anti-Social Behaviour, Crime and
Policing Act 2014;

(n)40the Immigration Act 2014;

(o)the Immigration Act 2016;

(p)Parts 1 and 3 of the Immigration and Social Security Co-ordination (EU
Withdrawal) Act 2020;

(q)this Act, other than Part 1;

(r)45any other provision of an Act relating to immigration, whenever
passed.

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(3)For the purposes of this section, “amend” includes repeal (and similar terms
are to be read accordingly).

(4)Regulations made under this section do not come into force unless an Act is
passed consolidating the whole or a substantial part of the Acts relating to
5immigration.

(5)If such an Act is passed, any regulations made under this section come into
force immediately before the Act comes into force.

(6)Regulations under this section are subject to affirmative resolution procedure.

Part 7 10General

79 Financial provision

The following are to be paid out of money provided by Parliament—

(a)expenditure incurred under or by virtue of this Act by a Minister of the
Crown, and

(b)15any increase attributable to this Act in the sums payable under any
other Act out of money so provided.

80 Transitional and consequential provision

(1)The Secretary of State may by regulations make such transitional, transitory or
saving provision as the Secretary of State considers appropriate in connection
20with the coming into force of any provision of this Act.

(2)The Secretary of State may by regulations make such provision as the Secretary
of State considers appropriate in consequence of this Act.

(3)The provision that may be made by regulations under subsection (2) includes
provision amending, repealing or revoking any enactment.

(4)25“Enactment” includes—

(a)an 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)30an enactment contained in, or in an instrument made under, a Measure
or Act of Senedd Cymru;

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

(5)Regulations under subsection (2) that amend—

(a)35an Act of Parliament,

(b)retained direct principal EU legislation,

(c)an Act of the Scottish Parliament,

(d)a Measure or Act of Senedd Cymru, or

(e)Northern Ireland legislation,

40are subject to affirmative resolution procedure.

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(6)Otherwise, regulations under subsection (2) are subject to negative resolution
procedure.

(7)In section 61(2) of the UK Borders Act 2007 (meaning of “the Immigration
Acts”)—

(a)5omit the “and” at the end of paragraph (k), and

(b)after paragraph (l) insert “, and

(m)the Nationality and Borders Act 2021.”

81 Regulations

(1)A power to make regulations under this Act is exercisable by statutory
10instrument.

(2)Regulations under this Act—

(a)may make different provision for different purposes;

(b)may make transitional, transitory or saving provision;

(c)may make incidental, supplementary or consequential provision.

(3)15Where regulations under this Act are subject to “negative resolution
procedure” the statutory instrument containing the regulations is subject to
annulment in pursuance of a resolution of either House of Parliament.

(4)Where regulations under this Act are subject to “affirmative resolution
procedure” the regulations may not be made unless a draft of the instrument
20containing them has been laid before and approved by a resolution of each
House of Parliament.

(5)Any provision that may be made by regulations under this Act subject to
negative resolution procedure may instead be made by regulations under this
Act subject to affirmative resolution procedure.

(6)25Any provision that may be made by regulations under this Act for which no
Parliamentary procedure is prescribed may instead be made by regulations
subject to negative or affirmative resolution procedure.

82 Extent

(1)This Act extends to England and Wales, Scotland and Northern Ireland, subject
30as follows.

(2)Any amendment, repeal or revocation made by this Act has the same extent
within the United Kingdom as the provision to which it relates.

(3)Part 1 (nationality) also extends to the Channel Islands and the Isle of Man and
the British overseas territories within the meaning of the British Nationality
35Act 1981 (see section 50(1) of that Act).

(4)Her Majesty may by Order in Council provide for any of the provisions of this
Act to extend, with or without modifications, to any of the Channel Islands or
the Isle of Man.

(5)A power under any provision listed in subsection (6) may be exercised so as to
40extend (with or without modification) to any of the Channel Islands or the Isle
of Man any amendment or repeal made by or under this Act of any part of an
Act to which the provision listed in subsection (6) relates.

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(6)Those provisions are—

(a)section 36 of the Immigration Act 1971,

(b)section 15(1) of the Asylum and Immigration Appeals Act 1993,

(c)section 13(5) of the Asylum and Immigration Act 1996,

(d)5section 9(3) of the Special Immigration Appeals Commission Act 1997,

(e)section 170(7) of the Immigration and Asylum Act 1999,

(f)section 163(4) of the Nationality, Immigration and Asylum Act 2002,

(g)section 338 of the Criminal Justice Act 2003,

(h)section 49(3) of the Asylum and Immigration (Treatment of Claimants,
10etc) Act 2004,

(i)section 63(3) of the Immigration, Asylum and Nationality Act 2006,

(j)section 60(4) of the UK Borders Act 2007,

(k)section 57(5) of the Borders, Citizenship and Immigration Act 2009,

(l)section 76(6) of the Immigration Act 2014,

(m)15section 60(6) of the Modern Slavery Act 2015,

(n)section 95(5) of the Immigration Act 2016, and

(o)section 8(2) of the Immigration and Social Security (EU Withdrawal)
Act 2020.

83 Commencement

(1)20Subject to subsections (3) to (5), this Act comes into force on such day as the
Secretary of State appoints by regulations.

(2)Regulations under subsection (1) may appoint different days for different
purposes or areas.

(3)The following provisions come into force on the day on which this Act is
25passed—

(a)section 9(1) and (5) to (7) (effect of failure to give notice of pre-
commencement decision to deprive a person of citizenship);

(b)this Part.

(4)The following provisions come into force on the day on which this Act is
30passed for the purposes of making (and, where required, consulting on)
regulations—

(a)section 13 (requirement to make asylum claim at “designated place”);

(b)section 26 (accelerated detained appeals);

(c)section 41 and Schedule 4 (penalty for failure to secure goods vehicle
35etc);

(d)section 42 (working in United Kingdom waters: arrival and entry);

(e)section 49 (persons subject to immigration control: referral or age
assessment by local authority);

(f)section 51 (regulations about use of scientific methods in age
40assessments);

(g)section 52 (regulations about age assessments);

(h)section 68 (interpretation of Part 5);

(i)section 78 (pre-consolidation amendments of immigration legislation).

(5)The following provisions come into force at the end of the period of two
45months beginning with the day on which this Act is passed—

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(a)section 9(2) to (4) (modifications of duty to give notice of decision to
deprive a person of citizenship);

(b)section 27 (claims certified as clearly unfounded: removal of right of
appeal);

(c)5paragraphs 5 to 19 of Schedule 3, and section 28 so far as it relates to
those paragraphs (removal of asylum seeker to safe third country);

(d)section 29(1), (2) and (4) to (6) (Refugee Convention: general);

(e)sections 30 to 35 and 37 (interpretation of Refugee Convention);

(f)section 38 (interpretation of Part 2);

(g)10section 43 (power to search container);

(h)section 48(1) to (4) (interpretation of Part 4);

(i)sections 69 and 70 (visa penalties);

(j)section 74 (counter-terrorism questioning of detained entrants away
from place of arrival).

84 15Short title

This Act may be cited as the Nationality and Borders Act 2021.

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SCHEDULES

Section 8

Schedule 1 Waiver of requirement of presence in UKetc

Amendments to the British Nationality Act 1981

15The British Nationality Act 1981 is amended as follows.

2In section 4 (acquisition by registration: British overseas territories citizens
etc), in subsection (4)—

(a)before paragraph (a) insert—

(za)treat the person to whom the application relates as
10fulfilling the first requirement specified in subsection
(2)(a) although the person was not in the United
Kingdom at the beginning of the period there
mentioned;”;

(b)in paragraph (a), for “requirement specified in subsection (2)(a) or”
15substitute “second requirement specified in subsection (2)(a) or the
requirement specified in”.

3(1)Schedule 1 (requirements for naturalisation) is amended as follows.

(2)In paragraph 2 (naturalisation as a British citizen under section 6(1): waiver
of requirements in special circumstances)—

(a)20in sub-paragraph (1), before paragraph (a) insert—

(za)treat the applicant as fulfilling the first requirement
specified in paragraph 1(2)(a) although the
applicant was not in the United Kingdom at the
beginning of the period there mentioned;”;

(b)25in that sub-paragraph, in paragraph (a), for “requirement specified in
paragraph 1(2)(a) or” substitute “second requirement specified in
paragraph 1(2)(a) or the requirement specified in”;

(c)omit sub-paragraphs (2) and (3).

(3)In paragraph 6 (naturalisation as a British overseas territories citizen under
30section 18(1): waiver of requirements in special circumstances)—

(a)before paragraph (a) insert—

(za)treat the applicant as fulfilling the first requirement
specified in paragraph 5(2)(a) although the
applicant was not in the relevant territory at the
35beginning of the period there mentioned;”;

(b)in paragraph (a), for “requirement specified in paragraph 5(2)(a) or”
substitute “second requirement specified in paragraph 5(2)(a) or the
requirement specified in”.

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Consequential amendment

4In section 1 of the Citizenship (Armed Forces) Act 2014 (applications for
citizenship by members or former members of armed forces), omit
subsection (3).

Section 22

5Schedule 2 Expedited appeals where priority removal notice served: consequential
amendments

1The Nationality, Immigration and Asylum Act 2002 is amended in
accordance with paragraphs 2 to 6.

210In section 85 (matters to be considered on appeal)—

(a)in subsections (1), (2) and (4), after “the Tribunal” insert “or the
Upper Tribunal”;

(b)in subsection (5)—

(i)after “the Tribunal”, in the first place it appears, insert “or the
15Upper Tribunal”;

(ii)for “the Tribunal”, in the second place it appears, substitute
“the tribunal concerned”.

3In section 86 (determination of appeal), in subsection (2), after “the Tribunal”
insert “or the Upper Tribunal”.

420In section 106 (tribunal procedure rules), in subsections (3) and (4), after “the
Tribunal” insert “or the Upper Tribunal”.

5In section 107 (practice directions)—

(a)before subsection (3) insert—

(2A)Subsection (3) applies to—

(a)25proceedings under section 82 in the Tribunal or
proceedings in the Upper Tribunal arising out of such
proceedings;

(b)proceedings under section 82 in the Upper Tribunal
(see section 82A and section 23 of the Nationality and
30Borders Act 2021).”;

(b)in subsection (3), for the words from “under section 82” to “such
proceedings” substitute “to which this subsection applies”.

6In section 108 (forged document: proceedings in private), in subsection (2),
after “The Tribunal” insert “or the Upper Tribunal”.

735In section 8 of the Asylum and Immigration (Treatment of Claimants, etc)
Act 2004 (claimant’s credibility), in subsection (9A)—

(a)for the words from the beginning to “subsection (7) the” substitute
“In this section a”;

(b)after “acting” insert “—

(a)40”;

(c)at the end insert “, or

(b)in relation to—

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(i)an expedited appeal within the meaning of
section 82A of the Nationality, Immigration
and Asylum Act 2002, or

(ii)an expedited related appeal within the
5meaning of section 23 of the Nationality and
Borders Act 2021 that involves an asylum
claim or a human rights claim.”

Section 28

Schedule 3 Removal of asylum seeker to safe country

10Amendments to section 77 of the Nationality, Immigration and Asylum Act 2002

1In section 77 of the Nationality, Immigration and Asylum Act 2002 (no
removal while claim for asylum pending), after subsection (2) insert—

(2A)This section does not prevent a person being removed to, or being
required to leave to go to, a State falling within subsection (2B).

(2B)15A State falls within this subsection if—

(a)it is a place where a person’s life and liberty are not
threatened by reason of the person’s race, religion,
nationality, membership of a particular social group or
political opinion,

(b)20it is a place from which a person will not be removed
elsewhere other than in accordance with the Refugee
Convention,

(c)it is a place—

(i)to which a person can be removed without their
25Convention rights under Article 3 (no torture or
inhuman or degrading treatment or punishment)
being contravened, and

(ii)from which a person will not be sent to another State
in contravention of the person’s Convention rights,
30and

(d)the person is not a national or citizen of the State.

(2C)For the purposes of this section—

(a)any State to which Part 2 or 3 of Schedule 3 to the Asylum and
Immigration (Treatment of Claimants, etc) Act 2004 for the
35time being applies—

(i)is to be presumed to be a State falling within
subsection (2B)(a) and (b), and

(ii)is, unless the contrary is shown by a person to be the
case in their particular circumstances, to be presumed
40to be a State falling within subsection (2B)(c)(i) and
(ii);

(b)any State to which Part 4 of that Schedule for the time being
applies is to be presumed to be a State falling within
subsection (2B)(a) and (b);

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(c)a reference to anything being done in accordance with the
Refugee Convention is a reference to the thing being done in
accordance with the principles of the Convention, whether or
not by a signatory to it;

(d)5“State” includes any territory outside of the United
Kingdom.”

2In subsection (3) of that section, for “subsection (2)” substitute “this section,
“Convention rights” means the rights identified as Convention rights by
section 1 of the Human Rights Act 1998 (whether or not in relation to a State
10that is a party to the Convention); and”.

Amendments to Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act
2004: introductory

3Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc)
Act 2004 (the “2004 Act”) (removal of asylum seeker to safe country) is
15amended as follows.

Amendments consequential on amendments to section 77 of the 2002 Act

4Omit paragraphs 4, 9, 14 and 18.

Rebuttable presumption of safety of specified countries in relation to Convention rights

5(1)Paragraph 3 (presumptions of safety) is amended as follows.

(2)20In sub-paragraph (1), in the opening words, after “human rights claim”
insert “(the “claimant”)”.

(3)After sub-paragraph (1) insert—

(3)Unless the contrary is shown by the claimant to be the case in their
particular circumstances, a State to which this Part applies is to be
25treated, in so far as relevant to the question mentioned in sub-
paragraph (1), as a place—

(9A)Unless the contrary is shown by the claimant to be the case in their
particular circumstances, a State to which this Part applies is to be
25treated, in so far as relevant to the question mentioned in sub-
paragraph (1), as a place—

(1A)Unless the contrary is shown by the claimant to be the case in their
particular circumstances, a State to which this Part applies is to be
25treated, in so far as relevant to the question mentioned in sub-
paragraph (1), as a place—

(1A)Unless the contrary is shown by the claimant to be the case in their
particular circumstances, a State to which this Part applies is to be
25treated, in so far as relevant to the question mentioned in sub-
paragraph (1), as a place—

(a)to which a person can be removed without their
Convention rights under Article 3 (no torture or inhuman
or degrading treatment or punishment) being
30contravened, and

(b)from which a person will not be sent to another State in
contravention of their Convention rights.”

(4)In sub-paragraph (2), omit paragraph (b) (but not the final “and”).

6In paragraph 5 (in country appeals in cases of removal to safe country)—

(a)35in sub-paragraph (3), omit paragraph (b) (together with the
preceding “or”);

(b)in sub-paragraph (4), in both places they appear, omit the words “to
which this sub-paragraph applies”;

(c)omit sub-paragraph (5).

40Safe countries

7In paragraph 1(1) (definitions), after the definition of “the Refugee