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House of Commons		 Session 1998-99
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Immigration And Asylum Bill

 

These notes refer to the Immigration and Asylum Bill
as introduced in the House of Commons on 9th February 1999 [Bill 42]

Immigration And Asylum Bill

EXPLANATORY NOTES

INTRODUCTION

1.     These explanatory notes relate to the Immigration and Asylum Bill as introduced in the House of Commons on 9 February 1999. They have been prepared by the Home Office in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.

2.     The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. Where a clause or part of a clause does not seem to require any explanation or comment, none is given.

BACKGROUND

3.     The Government's White Paper Fairer, Faster And Firmer - A Modern Approach To Immigration And Asylum published on 27 July 1998 provides the background to the Bill. The White Paper (to which all later references in these Explanatory Notes to "the White Paper" refer, unless otherwise stated) set out a range of proposals to modernise and integrate the immigration and asylum system. The overall aim of the planned reforms is to develop a more flexible and streamlined system of immigration control capable of providing an improved quality of service to British citizens and those who qualify to enter or remain in the United Kingdom, as well as strengthening the necessary controls on those who do not. The deadline for comments on the White Paper was 30 October 1998. 334 responses were received.

4.     Before the publication of the White Paper, separate consultation took place on two specific issues. On 22 January 1998 the Government issued a consultation document on the control of unscrupulous immigration advisers. Over 300 copies of the document were distributed and 53 responses made. On 13 July 1998 the Government issued a consultation document on the reform of the immigration and asylum appeals system. Over 700 copies of the document were distributed. The deadline for comments was 12 October and 61 responses were submitted. The White Paper covered both these issues.

SUMMARY

5.     The Bill includes provisions which touch on all areas of the immigration and asylum system. There are provisions which address the conditions which will apply to persons before they come to the United Kingdom; provisions which will affect the way in which persons are dealt with at ports when arriving in the United Kingdom; and provisions which will affect how they are dealt with once they are here. The Bill contains provisions which are intended to contribute to genuine persons being dealt with more quickly and, on the other hand, provisions for combating illegal immigration and strengthening powers to deal with other persons not entitled to enter or remain in the country. The Bill contains new support arrangements for asylum seekers in genuine need and includes other safeguards in the form of the regulation of immigration advisers and new provisions for the grant of bail to persons detained under immigration legislation. The Bill also clarifies or strengthens some existing powers and offences.

Provisions applying to persons before arrival

6.     Under present legislation, persons refused an entry clearance as a visitor have no right of appeal against that decision. Among the provisions in the Bill which apply to persons before they come to the United Kingdom is one for a streamlined right of appeal for visitors who are refused an entry clearance to visit a family member in the United Kingdom.

7.     The Bill also includes a provision for applicants for an entry clearance to be required to provide, or arrange for the provision of, a financial security (eg a bond) to be provided before entry clearance is given as a means of testing that the applicant will, if admitted to the United Kingdom, leave at the end of the proposed stay. Secondary immigration rules will specify the circumstances in which a financial security will be required, the maximum amount and the circumstances in which the financial security may be re-paid or forfeited. A pilot scheme will be run to test the merits of such a scheme before consideration is given to its wider introduction.

Provisions applying to persons before arrival

8.     The Bill provides for greater flexibility in the way permission to enter the United Kingdom may be granted : currently it has to be given in writing at a port of entry. It will allow the form and manner in which permission to enter is given to be specified by order. Also, the Secretary of State may stipulate that a visa or other entry clearance may be treated as leave to enter. This will mean holders will be able to pass through the port control with only a quick check on identity and on the rightful ownership of the travel document and entry clearance. The power will enable other changes to be made in future, for example to exploit new technology, to speed the clearance of passengers through the controls, and to facilitate the more efficient use of resources.

9.     There are other provisions in the Bill relating to the operation of controls at ports of entry. These include :

  • provision to extend the present power to require information from carriers about their passengers and a new power to require advance notification by carriers of the arrival of passengers who are not nationals of the European Economic Area;

  • provision to create "statutory gateways" to allow information to be exchanged for specified purposes between the Immigration Service, police and HM Customs and Excise. The Bill will enable further purposes to be specified and additional gateways with other agencies to be established in future by order;

  • strengthening existing carriers' liability legislation to facilitate the collection of any charges incurred by carriers by bringing inadequately documented passengers to the United Kingdom.

Immigration and asylum appeals

10.     The White Paper set out details of the multiplicity of appeal rights under the current system and the delays that this engenders. The Bill includes provisions to reform the immigration and asylum appeals system to address these issues. The current system, under which avenues of appeal can be pursued one after the other, will be replaced by a comprehensive one-stop right of appeal for those who were lawfully present or held a valid entry clearance when they applied for leave to enter or remain.

11.     The Bill provides that for those applicants who are lawfully present or holding a valid entry clearance or work permit when they make their claim the comprehensive one-stop appeal will address all factors in a case which appellants will be expected to set out with the grounds of appeal. In most cases, those who are in the United Kingdom unlawfully (ie overstayers and illegal entrants), will have no right of appeal and will be subject to administrative removal rather than deportation. But where a person who is in the United Kingdom unlawfully makes a claim to stay on asylum or ECHR grounds they will have a right of appeal confined to asylum and ECHR issues only.

Support for asylum seekers

12.     The White Paper set out the different claims asylum seekers currently are able to make on the benefits system and on local authorities depending on when they make their claim for asylum. The White Paper also describes the burden that has fallen on certain local authorities.

13.     The Bill will create new support arrangements for asylum seekers. It will:

  • remove from the main benefits system those subject to immigration control in certain respects, including those whose only status here is as an asylum seeker. Unaccompanied children seeking asylum will continue to be dealt with under current arrangements;

  • create a new safety net for asylum seekers in genuine need. The scheme will be funded and administered nationally by the Home Office, thus lifting the current burden on local authorities;

  • provide accommodation with no choice about location. Other support will generally be provided in kind (eg vouchers or directly) rather than by cash payments;

  • create a system for the review of decisions to refuse or to withdraw support.

Other provisions applying to persons after arrival

14.     The Bill contains other provisions affecting persons after they have entered the United Kingdom. These include :

  • a provision specifying which members of diplomatic missions are exempt from immigration control; and giving leave to remain to certain people who cease to be so exempt;

  • a provision for a code of practice on the measures that employers are to take in order to avoid unlawful discrimination when making checks under Section 8 of the Asylum and Immigration Act 1996 to establish that applicants for employment are entitled to work in the United Kingdom;

  • a provision for a power to set out in regulations the fees to be paid for processing applications for extensions of stay, changes in conditions of stay and the entry of duplicate stamps in new passports.

Immigration advisers and immigration service providers

15.     The Bill sets out provisions for the regulation of immigration advisers. They provide for the appointment of an Immigration Services Commissioner to administer this. Only persons who register with the Commissioner, are persons authorised by the various legal professional bodies, (such as the Law Society or Bar Council), or fall into certain other categories, will be able to give immigration advice or provide immigration services. The Bill sets out the criteria for the appointment of the Commissioner, his deputy and staff and their funding. It makes provision for an Immigration Services Tribunal before which the Commissioner may lay disciplinary charges and to which aggrieved persons may appeal against certain findings of the Commissioner. It also creates an offence for giving immigration advice or providing immigration services when not permitted to do so; and gives the courts power to restrain unauthorised persons from giving immigration advice or providing immigration services.

Clandestine entrants

16.     The Bill contains provisions for a new power to impose a civil penalty on persons responsible for the transport of clandestine entrants to the United Kingdom. The new civil penalty is additional to and separate from existing carriers' liability legislation which the Bill is strengthening. The civil penalty will apply to all vehicles, ships, or aircraft bringing clandestine entrants to the United Kingdom. The Bill provides the power to detain vehicles, ships or aircraft until all charges for the carriage of illegal entrants have been paid. The Bill enables the Secretary of State to issue a code of practice setting out the procedures that should be followed by transporters such as road hauliers and ferry companies to prevent their vehicles being used for the purpose of clandestine entry.

Marriage abuse

17.     The Bill contains procedural measures to increase the effectiveness of existing provisions in the Immigration Rules to prevent the abuse of the immigration system by those who are prepared to enter into marriage simply as a means to obtain settlement in the United Kingdom. Registrars will be given the power to request evidence of name, age, marital status and nationality from couples. This will be underpinned by a power for the registrar to refuse to give authority for the marriage where the registrar is not satisfied that a person is free, legally, to contract the marriage. The existing procedure under which a superintendent registrar may authorise a marriage by a certificate with a licence is to be abolished. At the same time, the existing notice period for a superintendent registrar to issue a certificate without a licence is to be reduced from 21 days to 15 days. In addition, notice will need to be given personally by each party before the superintendent registrar in the registration district where they reside, and the notice will have to state their nationality. A duty is also to be placed on registrars to report to the Home Office those marriages suspected of having been arranged solely for the purpose of evading immigration controls.

Enforcement

18.     The Bill contains a number of measures to strengthen powers of enforcement of the immigration law and tackle clandestine entry. The measures include :

  • extending the powers of immigration officers to enable them to undertake operations without the presence of police officers; and

  • extending existing criminal offences under the Immigration Act 1971 regarding deception and the making of false statements;

Detention

19.     The Bill includes provisions for reform of the arrangements for detaining persons under immigration legislation. It introduces a system of routine bail hearings for persons detained for immigration control purposes and provides for certain bail hearings, both under the Bill and the Immigration Act 1971, to be heard by magistrates. The Bill also puts on a statutory footing the arrangements for the management and operation of immigration detention centres, including provisions setting out the powers of detainee custody officers.

OVERVIEW

20.     The Bill is divided into 10 parts :-

  • Part I deals with various provisions to simplify the way in which the immigration control is to be operated; to enable charges to be levied in certain circumstances to be specified in secondary legislation; to strengthen some existing powers regarding access to and exchange of information; to extend existing offences of deception and the making of false statements and to provide for the removal of certain persons unlawfully in the United Kingdom;

  • Part II deals with penalties for carrying clandestine entrants to the United Kingdom and the strengthening of existing carriers' liability legislation;

  • Part III deals with bail hearings for detained persons;

  • Part IV deals with immigration and asylum appeals;

  • Part V deals with the regulation of immigration advisers and immigration service providers;

  • Part VI deals with support arrangements for asylum seekers;

  • Part VII creates powers for immigration officers to arrest and search;

  • Part VIII deals with the management of detention centres; makes provision for contracting out; confers powers of intervention on the Secretary of State; provides for visiting committees and inspections; enables the making of detention centre rules; confers powers and responsibilities on custody officers; makes provision for custodial functions and discipline at detention centres; and provides for escort arrangements;

  • Part IX deals with the marriage registrar's certificates procedures; and

  • Part X contains miscellaneous and supplemental provisions on the making of subordinate legislation, interpretation, the title of the Act, commencement and extent.

COMMENTARY ON CLAUSES

Part I : Immigration : general

Clauses 1 and 2 : Leave to enter or remain in the United Kingdom

21.     Under the current provisions of the Immigration Act 1971 (the 1971 Act), anyone who is not a British citizen, or a national of a Member State of the European Union (EU) (and other nationals of the European Economic Area (EEA)) exercising their European free movement rights, needs to be granted leave to enter or leave to remain (permission to stay) in order lawfully to enter into, or remain in, the United Kingdom (unless exempt). At present, leave to enter has to be given in writing by an immigration officer at a port of entry or, in cases where the individual is already in the country, leave to remain has to be given by the Secretary of State, in practice by Immigration and Nationality Directorate (IND) caseworkers acting on his behalf.

22.     In addition, once a person requiring leave leaves the Common Travel Area (CTA - an area of free movement which comprises the United Kingdom, the Republic of Ireland, the Channel Islands and the Isle of Man) any leave that they may have been granted lapses. If such an individual wishes to come back to the United Kingdom then they have to be granted fresh leave to enter by an immigration officer on their return.

23.     At present under section 4(1) of the 1971 Act a person can only be notified of the conditions and time limits attached to their stay by way of a written notice, which normally takes the form of a stamp in the passport. The effect of clauses 1 and 2 is that while an individual will still need to obtain either leave to enter the United Kingdom or leave to remain in the United Kingdom this leave need not necessarily be granted in writing and, in the case of leave to enter, may be granted in advance of arrival. By providing for a more flexible legislative framework the clauses provide the scope for existing procedures to be revised and updated and will also allow technological developments to be utilised in the future.

Clause 1 : Leave to enter

24.     Clause 1 introduces a new section 3A into the 1971 Act. Subsection (1) of the new section enables the Secretary of State by order to make additional provision about the giving, refusing, or varying of leave to enter the United Kingdom. The order is by statutory instrument subject to negative resolution procedure. Taking a power to make secondary legislation will enable the Secretary of State to respond to future developments, in particular technological changes.

25.     Subsection (2) of the new section sets out what may in particular be contained in an order under subsection (1). Paragraph (a) enables provision allowing individuals to be granted or refused leave to enter before their arrival in the United Kingdom. It is envisaged that this power might be used, for example, for applications made at British Embassies or High Commissions overseas. A person with advance leave would be able to pass through the control without further detailed examination by an immigration officer on arrival.

26.     Paragraph (b) of subsection (2) will allow the Secretary of State to specify the form or manner in which leave to enter will be granted, refused or varied. It is anticipated that technological developments will allow other ways of granting leave in the future that do not rely on the traditional passport endorsement, for example, "smart card" technology which could be used to give and record leave.

27.     Paragraph (c) of subsection (2) will allow the Secretary of State to impose conditions with respect to leave given by reason of the order. It may be necessary, for example, if leave is given in particular form to specify conditions which are to be treated as applying to that leave by operation of law, for example, a requirement to report to the police, or not to take employment may be imposed.

28.     Paragraph (d) of subsection (2). At present, any leave that has been granted to an individual lapses if he leaves the CTA (section 3(4) of the 1971 Act). The CTA is made up of the United Kingdom, the Channel Islands, the Isle of Man (known collectively as the Islands) and the Republic of Ireland. It is an area of passport-free movement whereby people travelling between the United Kingdom, the Islands or the Republic of Ireland do not normally need to produce travel documents and third country nationals (non-British or other EU/EEA nationals), with certain exceptions, do not need to obtain fresh leave to enter every time they return to the United Kingdom from elsewhere in the CTA. But, an order under subsection (2)(d) would allow the individual concerned to leave the United Kingdom and then re-enter the United Kingdom, using his continuing leave to enter (for the duration of its validity), without having to obtain fresh leave to enter from the immigration officer.

29.     Subsection (3). At present, many passengers arriving at United Kingdom sea and airports have a visa or an entry clearance in their passport that has been issued (following completion of an interview with the holder) by an entry clearance officer working at a British Embassy or High Commission abroad. At the moment each holder of a visa or an entry clearance is re-interviewed by an immigration officer on arrival and then given a stamp in their passport giving them leave to enter the United Kingdom. This re-examination at the ports takes time and in many cases is unnecessary. This subsection will therefore allow an order to be laid before Parliament which will provide that in certain specified circumstances the issue of a visa (or another form of entry clearance) will also confer leave to enter on the holder.

30.     Subsection (4) enables an order under subsection (3) to make provision about the number of times the clearance is to have such effect as leave to enter; and the conditions which are to be taken to apply to the conferred leave. Subsection 4(b) enables the order to provide that such an entry clearance can be varied, either by the Secretary of State or an immigration officer, so that leave to enter no longer has this effect.

31.     Subsection (5) simply provides that only the conditions set out in section 3 of the 1971 Act, as amended by section 1(1) of Schedule 2 to the Asylum and Immigration Act 1996 can be applied to visas that are acting as leave to enter. For example:

  • a condition restricting an individual's employment or occupation in the United Kingdom;

  • a condition requiring an individual to maintain and accommodate himself and his dependants without recourse to public funds; and

  • a condition requiring him to register with the police.

32.     Subsection (7). Under section 4(1) of the 1971 Act the power to grant or refuse leave to enter the United Kingdom can only be exercised by an immigration officer; the power to give or refuse leave to remain or to vary an individual's leave to enter or remain can only be exercised by the Secretary of State. Subsection (7) enables the Secretary of State, in circumstances to be set out in an order, to also grant or refuse leave to enter. The aim is to enable the Home Office's procedures (particularly in asylum cases) to be more efficient, to minimise the duplication of effort and to give greater operational flexibility. For example, under the current system one person, a caseworking officer in IND, takes the decision whether to grant or refuse asylum and another, the immigration officer at a port, then has to take a separate decision to grant or refuse leave to enter. It is envisaged that under this new power one caseworker would be able to take both decisions.

33.     Subsection (8) provides that when an order is made under subsection (7) above, certain necessary consequential amendments can be made to specific paragraphs in Part I of Schedule 2 to the 1971 Act in order to give the Secretary of State related powers, for example, to examine an individual to determine whether he required leave to enter the United Kingdom or not.

Clause 2 : Leave to remain

34.     Clause 2 introduces a new section 3B into the 1971 Act. It is designed to allow greater flexibility in the way in which foreign nationals (non-British or EU/EEA nationals) are notified of the leave to remain that they have been granted and the conditions (for example, whether the individual concerned is allowed to take employment or not) and time limits attached to that leave.

35.     Subsection (1) gives the Secretary of State the power by order to make further provision with respect to the grant or refusal of leave to remain. The power is designed to enable the use in future of new methods to grant, refuse or vary such leave, in particular in the light of technological changes.

36.     There is a variety of categories under the Immigration Rules under which people can apply for leave to remain. Where someone has been granted leave, as for example, a visitor and then applies to stay as a student, the length of their leave and the conditions attached to it would have to be changed to enable the individual to stay here as a student. That is their leave would have to be varied.

37.     Under subsection (2), the order may specify the form or manner in which leave to remain may be granted, refused or varied. Paragraph (b) allows the Secretary of State to deem conditions to be attached to leave to remain which has been granted in a particular way under the order. For example, a requirement to report to the police or not to take employment, may be imposed.

38.     Paragraph (c) of subsection (2). Under the current system, any leave that has been granted to an individual lapses if he leaves the CTA (see section 3(4) of the 1971 Act). This paragraph (with subsection (3)) will allow the order to provide that the individual may leave the United Kingdom and then re-enter the United Kingdom, using his continuing permission to stay (for the duration of its validity), without having to either obtain a new visa or fresh leave to enter from the immigration officer.

Clause 3 : Charges

39.     This clause allows fees to be prescribed for the consideration of applications for leave to remain in the United Kingdom, variation of leave to enter or remain or the fixing of a stamp in a new or replacement passport or travel document which confirms indefinite leave to enter or remain in the United Kingdom. Fees will be payable irrespective of whether applications are granted.

40.     There already exists power in section 9(1) of the Immigration Act 1988 for charges to be levied in respect of applications for settlement, but the power has not been exercised. The existing power will be repealed by the Bill as being no longer needed in the light of the new power.

41.     The fees are to be prescribed by regulations made by the Secretary of State, see clause 134, which also allows different fee levels to be set for different types of case. They may also provide for no fees to be payable in prescribed circumstances. The current intention is that asylum seekers and those seeking protection under Article 3 of ECHR, will not be charged. This clause does not permit charges for applicants seeking confirmation of their rights under EC law. Fee levels for other applicants will reflect the full cost of processing their application. Applications will not be processed unless any appropriate fee is received.

Clause 4 : Members of missions other than diplomatic agents

42.     This clause is designed to prevent foreign nationals already in the United Kingdom from evading immigration control by taking a job in a diplomatic mission, thus closing a loophole which exists under current legislation. Under section 8(3) of the 1971 Act, a person is exempt from immigration control for so long as he is a member of a diplomatic mission. Section 8(3A) of the 1971 Act (inserted by the Immigration Act 1988) has the effect that foreign nationals already in the United Kingdom who are offered a job in a diplomatic mission remain subject to control as long as they remain in this country. However, if they travel abroad the current wording of section 8(3A) has the result that they become exempt upon their return simply because they have entered as a member of a diplomatic mission. The clause is intended to close this loophole by replacing the existing section 8(3A) with a new one which provides an exemption only if the person was ordinarily resident outside the United Kingdom and the Islands at the time of his appointment as a member of the mission.

 
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Prepared: 9 february 1999