Nationality and Borders Bill (HL Bill 82)

Part 5 continued    

• (a)

  advice on the national referral mechanism, or

  (b)

  other civil legal services in connection with accessing
  that mechanism,

  provided to an individual before a reasonable grounds
  5decision has been made in relation to that individual;

• ”competent authority” (in relation to the national referral
  mechanism) means a person who is a competent authority of
  the United Kingdom for the purposes of the Council of
  Europe Convention on Action against Trafficking in Human
  10Beings (done at Warsaw on 16 May 2005);

• “national referral mechanism” means the national framework
  (known as the National Referral Mechanism) for identifying
  and referring potential victims of modern slavery and
  ensuring they receive appropriate support;

• 15“reasonable grounds decision” and “conclusive grounds
  decision” have the same meaning as in Part 5 (modern
  slavery) of the Nationality and Borders Act 2021 (see section
  68 of that Act).”

(7)Any amendment made by this section describing add-on services that may be
20provided to an individual where the Director of Legal Aid Casework has made
a relevant determination does not apply to a determination made before the
amendment comes into force.

66 Civil legal services under section 10 of LASPO: add-on services in relation to
national referral mechanism

25In section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act
2012 (civil legal services in exceptional cases), after subsection (3) insert—

“(3A)Civil legal services provided in relation to referral into the national
referral mechanism are to be available to an individual in a case where
subsection (2) is satisfied in relation to the individual and to services of
30a kind to which subsection (3B) applies.

(3B)This subsection applies to services in relation to a claim by the
individual made to the Secretary of State that to remove the individual
from, or to require the person to leave, the United Kingdom would be
unlawful under section 6 of the Human Rights Act 1998.

(3C)35The services described in subsection (3A) do not include—

(a)the services listed in Part 2 of Schedule 1;

(b)advocacy;

(c)attendance at an interview conducted by the competent
authority under the national referral mechanism for the
40purposes of a reasonable grounds decision.

(3D)In subsection (3A) “civil legal services in relation to referral into the
national referral mechanism” means—

(a)advice on the national referral mechanism, or

(b)other civil legal services in connection with accessing that
45mechanism,

provided before a reasonable grounds decision has been made in
relation to the individual to whom the services are provided.

(3E)In subsections (3C) and (3D)—

• “competent authority” and “national referral mechanism” have
  the same meaning as in Schedule 1 (see paragraph 8 of Part 4 of
  that Schedule);

• 5 “reasonable grounds decision” has the same meaning as in Part 5
  of the Nationality and Borders Act 2021 (see section 68 of that
  Act).”

67 Disapplication of retained EU law deriving from Trafficking Directive

(1)Section 4 of the European Union (Withdrawal) Act 2018 (saving for rights etc
10under section 2(1) of the European Communities Act 1972) ceases to apply to
rights, powers, liabilities, obligations, restrictions, remedies and procedures
derived from the Trafficking Directive so far as their continued existence
would otherwise be incompatible with provision made by or under this Act.

(2)“The Trafficking Directive” means Council Directive 2011/36/EU of the
15European Parliament and of the Council of 5 April 2011 on preventing and
combating trafficking in human beings and protecting its victims.

68 Part 5: interpretation

(1)In this Part—

• “competent authority” means a person who is a competent authority of
  20the United Kingdom for the purposes of the Trafficking Convention;

• “conclusive grounds decision” means a decision by a competent authority
  as to whether a person is a victim of slavery or human trafficking;

• “positive reasonable grounds decision” has the meaning given by section
  60(1);

• 25“reasonable grounds decision” means a decision by a competent authority
  as to whether there are reasonable grounds to believe that a person is a
  victim of slavery or human trafficking;

• the “Trafficking Convention” means the Council of Europe Convention
  on Action against Trafficking in Human Beings (done at Warsaw on 16
  30May 2005);

• “victim of slavery” and “victim of human trafficking” have the meanings
  given in regulations made by the Secretary of State.

(2)Regulations under subsection (1) are subject to affirmative resolution
procedure.

35Part 6 Miscellaneous

69 Removals from the UK: visa penalties for uncooperative countries

(1)The immigration rules may make such visa penalty provision as the Secretary
of State considers appropriate in relation to a specified country.

(2)40A country may be specified for the purposes of this section if, in the opinion of
the Secretary of State—

(a)the government of the country is not cooperating in relation to the
return to the country from the United Kingdom of any of its nationals

or citizens who require leave to enter or remain in the United Kingdom
but do not have it, and

(b)as a result, there are nationals or citizens of the country that the
Secretary of State has been unable to return to the country, whether or
5not others have been returned.

(3)In forming an opinion as to whether a country is cooperating in relation to
returns, the Secretary of State must take the following into account—

(a)any arrangements (whether formal or informal) entered into by the
government of the country with the United Kingdom government or
10the Secretary of State with a view to facilitating returns;

(b)the extent to which the government of the country is—

(i)taking the steps that are in practice necessary or expedient in
relation to facilitating returns, and

(ii)doing so promptly;

(c)15such other matters as the Secretary of State considers appropriate.

(4)In determining whether to specify a country for the purposes of this section,
the Secretary of State must take the following into account—

(a)the length of time for which the government of the country has not been
cooperating in relation to returns;

(b)20the extent of the lack of cooperation;

(c)the reasons for the lack of cooperation;

(d)such other matters as the Secretary of State considers appropriate.

(5)“Visa penalty provision” is provision that does one or more of the following in
relation to applications for entry clearance made by persons as nationals or
25citizens of a specified country—

(a)requires that entry clearance must not be granted pursuant to such an
application before the end of a specified period;

(b)suspends the power to grant entry clearance pursuant to such an
application;

(c)30requires such an application to be treated as invalid for the purposes of
the immigration rules;

(d)requires the applicant to pay £190 in connection with the making of
such an application, in addition to any fee or other amount payable
pursuant to any other enactment.

(6)35The Secretary of State may by regulations substitute a different amount for the
amount for the time being specified in subsection (5)(d).

(7)Before making visa penalty provision in relation to a specified country, the
Secretary of State must give the government of that country reasonable notice
of the proposal to do so.

(8)40The immigration rules must secure that visa penalty provision does not apply
in relation to an application made before the day on which the provision comes
into force.

(9)Visa penalty provision may—

(a)make different provision for different purposes;

(b)45provide for exceptions or exemptions, whether by conferring a
discretion or otherwise;

(c)include incidental, supplementary, transitional, transitory or saving
provision.

(10)Regulations under subsection (6)—

(a)are subject to affirmative resolution procedure if they increase the
amount for the time being specified in subsection (5)(d);

(b)are subject to negative resolution procedure if they decrease that
5amount.

(11)Sums received by virtue of subsection (5)(d) must be paid into the
Consolidated Fund.

(12)In this section—

• “cooperating in relation to returns” means cooperating as mentioned in
  10subsection (2)(a);

• “country” includes any territory outside the United Kingdom;

• “entry clearance” has the same meaning as in the Immigration Act 1971
  (see section 33(1) of that Act);

• “facilitating returns” means facilitating the return of nationals or citizens
  15to a country as mentioned in subsection (2)(a);

• “immigration rules” means rules under section 3(2) of the Immigration
  Act 1971;

• “specified” means specified in the immigration rules.

70 Visa penalties: review and revocation

(1)20This section applies where any visa penalty provision is in force in relation to
a specified country.

(2)The Secretary of State must, before the end of each relevant period—

(a)review the extent to which the country’s cooperation in relation to
returns has improved, and

(b)25in light of that review, determine whether it is appropriate to amend
the visa penalty provision.

(3)If at any time the Secretary of State is no longer of the opinion mentioned in
section 69(2), the Secretary of State must as soon as practicable revoke the visa
penalty provision.

(4)30Each of the following is a relevant period—

(a)the period of 2 months beginning with the day on which the visa
penalty provision came into force;

(b)each subsequent period of 2 months.

(5)In this section—

(a)35“specified country” and “visa penalty provision” have the same
meanings as in section 69;

(b)“cooperation in relation to returns” means cooperation as mentioned in
subsection (2)(a) of that section.

71 Electronic travel authorisations

(1)40The Immigration Act 1971 is amended in accordance with subsections (2) to (4).

(2)After Part 1 insert—

“PART 1A

Electronic travel authorisations

11C Electronic travel authorisations

(1)5In this Act, “an ETA” means an authorisation in electronic form to
travel to the United Kingdom.

(2)Immigration rules may require an individual of a description specified
in the rules not to travel to the United Kingdom from any place
(including a place in the common travel area), whether with a view to
10entering the United Kingdom or to passing through it without entering,
unless the individual has an ETA that is valid for the individual’s
journey to the United Kingdom.

(3)The rules may not impose this requirement on an individual if—

(a)the individual is a British citizen, or

(b)15the individual would, on arrival in the United Kingdom, be
entitled to enter without leave.

(4)In relation to an individual travelling to the United Kingdom on a local
journey from a place in the common travel area, subsection (3)(b)
applies only if the individual would also be entitled to enter without
20leave if the journey were instead from a place outside the common
travel area.

(5)The rules may impose the requirement mentioned in subsection (2) on
an individual who—

(a)travels to the United Kingdom on a local journey from a place
25in any of the Islands, and

(b)has leave to enter or remain in that island,

only if it appears to the Secretary of State necessary to do so by reason
of differences between the immigration laws of the United Kingdom
and that island.

(6)30The rules must—

(a)provide for the form or manner in which an application for an
ETA may be made, granted or refused;

(b)specify the conditions (if any) which must be met before an
application for an ETA may be granted;

(c)35specify the grounds on which an application for an ETA must or
may be refused;

(d)specify the criteria to be applied in determining—

(i)the period for which an ETA is valid;

(ii)the number of journeys to the United Kingdom during
40that period for which it is valid (which may be
unlimited);

(e)require an ETA to include provision setting out the matters
mentioned in paragraph (d)(i) and (ii);

(f)provide for the form or manner in which an ETA may be varied
45or cancelled;

(g)specify the grounds on which an ETA must or may be varied or
cancelled.

(7)The rules may also—

(a)provide for exceptions to the requirement described in
5subsection (2), and

(b)make other provision relating to ETAs.

(8)Rules made by virtue of this section may make different provision for
different cases or descriptions of case.

11D Electronic travel authorisations and the Islands

(1)10The Secretary of State may by regulations make provision about the
effects in the United Kingdom of the grant or refusal under the law of
any of the Islands of an authorisation in electronic form to travel to that
island.

(2)Regulations under subsection (1) may in particular make provision
15about—

(a)the recognition in the United Kingdom of an authorisation
granted as mentioned in subsection (1);

(b)the conditions or limitations that are to apply in the United
Kingdom to such an authorisation;

(c)20the effects in the United Kingdom of such an authorisation
being varied or cancelled under the law of any of the Islands;

(d)the circumstances in which the Secretary of State or an
immigration officer may vary or cancel such an authorisation
(so far as it applies in the United Kingdom).

(3)25The Secretary of State may, where requested to do so by any of the
Islands, carry out functions on behalf of that island in relation to the
granting of authorisations in electronic form to travel to that island.

(4)Regulations under subsection (1)—

(a)may make provision modifying the effect of any provision of, or
30made under, this Act or any other enactment (whenever passed
or made);

(b)may make different provision for different purposes;

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

(d)may make incidental, supplementary or consequential
35provision.

(5)Regulations under subsection (1) are to be made by statutory
instrument.

(6)A statutory instrument containing regulations under subsection (1) is
subject to annulment in pursuance of a resolution of either House of
40Parliament.”

(3)In section 24A (deception), in subsection (1)(a)—

(a)after “obtain” insert “— (i)”;

(b)after “Kingdom” insert “, or

(ii)an ETA”.

(4)In section 33 (interpretation), in subsection (1), at the appropriate place insert—

• ““an ETA” has the meaning given by section 11C;”.

(5)In section 82 of the Immigration and Asylum Act 1999 (interpretation of Part 5,
which relates to immigration advisers and immigration service providers), in
5subsection (1), in the definition of “relevant matters”, after paragraph (a)
insert—

“(aa)an application for an ETA (within the meaning of section 11C of
the Immigration Act 1971 (electronic travel authorisations));”.

(6)In section 126 of the Nationality, Immigration and Asylum Act 2002
10(compulsory provision of physical data), in subsection (2), before paragraph (a)
insert—

“(za)an ETA (within the meaning of section 11C of the Immigration
Act 1971 (electronic travel authorisations)),”.

72 Liability of carriers

(1)15Section 40 of the Immigration and Asylum Act 1999 (liability of carriers in
respect of passengers) is amended in accordance with subsections (2) to (8).

(2)For subsection (1) substitute—

“(1)The Secretary of State may charge the owner of a ship or aircraft the
sum of £2,000 where—

(a)20an individual who would not, on arrival in the United
Kingdom, be entitled to enter without leave arrives by
travelling on the ship or aircraft, and

(b)at least one of the Cases set out in subsections (1A) to (1C)
applies.

(1A)25Case 1 is where, on being required to do so by an immigration officer,
the individual fails to produce an immigration document which is valid
and which satisfactorily establishes the individual’s identity and the
individual’s nationality or citizenship.

(1B)Case 2 is where—

(a)30the individual requires an entry clearance,

(b)an entry clearance in electronic form of the required kind has
not been granted, and

(c)if required to do so by an immigration officer, the individual
fails to produce an entry clearance in documentary form of the
35required kind.

(1C)Case 3 is where—

(a)the individual was required not to travel to the United
Kingdom unless the individual had an authorisation in
electronic form (“an ETA”) under immigration rules made by
40virtue of section 11C of the Immigration Act 1971 that was valid
for the individual’s journey to the United Kingdom, and

(b)the individual did not have such an ETA.”

(3)Omit subsection (2).

(4)In subsection (4), for the words from “No charge” to “documents” substitute
45“No charge shall be payable on the basis that Case 1 applies in respect of any

individual if the owner provides evidence that the individual produced an
immigration document of the kind mentioned in subsection (1A)”.

(5)After subsection (4) insert—

“(4A)No charge shall be payable on the basis that Case 2 applies in respect of
5any individual if the owner provides evidence that—

(a)the individual produced an entry clearance in documentary
form of the required kind to the owner or an employee or agent
of the owner when embarking on the ship or aircraft for the
voyage or flight to the United Kingdom,

(b)10the owner or an employee or agent of the owner reasonably
believed, on the basis of information provided by the Secretary
of State in respect of the individual, that the individual did not
require an entry clearance of the kind in question,

(c)the owner or an employee or agent of the owner reasonably
15believed, on the basis of information provided by the Secretary
of State, that an entry clearance in electronic form of the
required kind had been granted, or

(d)the owner or an employee or agent of the owner was unable to
establish whether an entry clearance in electronic form of the
20required kind had been granted in respect of the individual and
had a reasonable excuse for being unable to do so.

(4B)No charge shall be payable on the basis that Case 3 applies in respect of
any individual if the owner provides evidence that the owner or an
employee or agent of the owner—

(a)25reasonably believed, on the basis of information provided by
the Secretary of State in respect of the individual, that the
individual was not required to have an ETA that was valid for
the individual’s journey to the United Kingdom,

(b)reasonably believed, on the basis of information provided by
30the Secretary of State, that the individual had such an ETA, or

(b)was unable to establish whether the individual had such an
ETA and had a reasonable excuse for being unable to do so.”

(6)In subsection (5), for “subsection (4)” substitute “subsection (4) or (4A)(a)”.

(7)In subsection (6), for “a visa”, in the first two places it occurs, substitute “an
35entry clearance”.

(8)In subsection (10), for “subsection (2)” substitute “subsection (1)”.

(9)In consequence of the amendments made by this section—

(a)for the heading of section 40 of the Immigration and Asylum Act 1999
substitute “Charge in respect of individual without proper documents
40or authorisation”;

(b)for the italic heading before section 40 of that Act substitute
“Individuals without proper documents or authorisation”.

73 Special Immigration Appeals Commission

(1)The Special Immigration Appeals Commission Act 1997 is amended in
45accordance with subsections (2) to (4).

(2)After section 2E insert—

“2F Jurisdiction: review of certain immigration decisions

(1)Subsection (2) applies in relation to any decision of the Secretary of
State which—

(a)5relates to a person’s entitlement to enter, reside in or remain in
the United Kingdom, or to a person’s removal from the United
Kingdom,

(b)is not subject—

(i)to a right of appeal, or

(ii)10to a right under a provision other than subsection (2) to
apply to the Special Immigration Appeals Commission
for the decision to be set aside, and

(c)is certified by the Secretary of State acting in person as a
decision that was made wholly or partly in reliance on
15information which, in the opinion of the Secretary of State,
should not be made public—

(i)in the interests of national security,

(ii)in the interests of the relationship between the United
Kingdom and another country, or

(iii)20otherwise in the public interest.

(2)The person to whom the decision relates may apply to the Special
Immigration Appeals Commission to set aside the decision.

(3)In determining whether the decision should be set aside, the
Commission must apply the principles which would be applied in
25judicial review proceedings.

(4)If the Commission decides that the decision should be set aside, it may
make any such order, or give any such relief, as may be made or given
in judicial review proceedings.”

(3)In section 6A (procedure in relation to jurisdiction under sections 2C to 2E)—

(a)30in the heading, for “2E” substitute “2F”,

(b)in subsection (1), for “or 2E” substitute “, 2E or 2F”,

(c)in subsection (2)(a), for “or 2E” substitute “, 2E or 2F”, and

(d)in subsection (2)(b), for “or (as the case may be) 2E(2)” substitute “, 2E(2)
or (as the case may be) 2F (2)”.

(4)35In section 7 (appeals from the Commission), in subsection (1A), for “or 2E”
substitute “, 2E or 2F”.

(5)If subsection (4) comes into force before the day on which paragraph 26(5) of
Schedule 9 to the Immigration Act 2014 comes into force, until that day
subsection (4) has effect as if, in section 7(1A), for “or 2D” it substituted “, 2D
40or 2F”.

(6)In section 115(8) of the Equality Act 2010 (immigration cases), for “section 2D
and 2E” substitute “section 2D, 2E or 2F”.”

74 Counter-terrorism questioning of detained entrants away from place of
arrival

(1)Schedule 7 to the Terrorism Act 2000 (port and border controls) is amended as
follows.

(2)5In paragraph 1(2) (definitions), in the definition of “ship”, after “hovercraft”
insert “and any floating vessel or structure”.

(3)In paragraph 2 (power to question person about involvement in terrorism in
port or border area or on ship or aircraft), after sub-paragraph (3) insert—

“(3A)This paragraph also applies to a person if—

(a)10the person is—

(i)being detained under a provision of the Immigration
Acts, or

(ii)in custody having been arrested under paragraph
17(1) of Schedule 2 to the Immigration Act 1971,

(b)15the period of 5 days beginning with the day after the day on
which the person was apprehended has not yet expired, and

(c)the examining officer believes that—

(i)the person arrived in the United Kingdom by sea
from a place outside the United Kingdom, and

(ii)20the person was apprehended within 24 hours of the
person’s arrival on land.

(3B)For the purposes of sub-paragraph (3A)(b) and (c), a person is
“apprehended”—

(a)in a case within sub-paragraph (3A)(a)(i) where the person is
25arrested (and not released) before being detained as
mentioned in that provision, when the person is arrested;

(b)in any other case within sub-paragraph (3A)(a)(i), when the
person is first detained as mentioned in that provision;

(c)in a case within sub-paragraph (3A)(a)(ii), when the person is
30arrested as mentioned in that provision.”

75 References to justices of the peace in relation to Northern Ireland

(1)In section 33(1) of the Immigration Act 1971 (interpretation) at the appropriate
place insert—

• ““justice of the peace”, in relation to Northern Ireland, means lay
  35magistrate;”.

(2)In section 167(1) of the Immigration and Asylum Act 1999 (interpretation) at
the appropriate place insert—

• ““justice of the peace”, in relation to Northern Ireland, means lay
  magistrate;”.

(3)40In section 45 of the UK Borders Act 2007 (search for evidence of nationality:
other premises), after subsection (5) insert—

“(6)In the application of this section to Northern Ireland a reference to a
justice of the peace is to be treated as a reference to a lay magistrate.”