Clause 5 : Persons ceasing to be exempt

43.     This clause is intended to ensure that certain persons who have been exempt from immigration control but who would otherwise require leave to enter or remain in the United Kingdom do not remain for more than 90 days once they have ceased to be exempt, unless they have leave to do so. Under the Immigration (Exemption from Control) Order 1972, made under section 8(2) of the 1971 Act, certain personnel of international organisations with a branch in the United Kingdom are exempt from immigration control. In addition, under section 8(3) of the 1971 Act a member of a diplomatic mission is exempt from immigration control. In both cases, members of their family forming part of the household are also exempt. This means that, as they are not subject to any of the provisions of the 1971 Act relating to those who are not British citizens, many persons who cease to be exempt do not commit any offence of, for example, remaining beyond their leave, if they fail thereafter to apply for permission to stay here. Clause 5 closes this loop-hole by deeming that limited leave of 90 days has been given from the date that exemption ceases. However, the 90 days of deemed leave will not supersede any leave granted prior to the period of exemption if that leave still has more than 90 days left to run upon cessation of exemption. Those who had been granted indefinite leave (settled status) immediately prior to exemption will have this re-instated.

44.     Clause 5 does not apply to persons who would not require leave to stay in the United Kingdom at the expiration of their exempt status. EEA nationals and their dependants will therefore be unaffected insofar as they are exercising EC free movement rights in the United Kingdom.

Clause 6 : Removal of certain persons unlawfully in the United Kingdom

45.     In parallel with reform of the immigration and asylum appeals system, the White Paper announced that anyone who had been lawfully in the United Kingdom but no longer had any entitlement to remain would normally be subject to administrative removal rather than deportation. This clause provides that those who have failed to observe the conditions attached to their leave, overstayers and those who have obtained leave to remain by deception - ie those currently liable to deportation action under sections 3(5)(a) and 3(5)(aa) of the 1971 Act, and the family members of such people - will be subject to new administrative removal procedures. These procedures will mirror those which currently apply in respect of illegal entrants. Deportation action will continue to apply to "non-conducive" and court recommended cases (sections 3(5)(b) and 3(6) of the 1971 Act) and to the family members of someone deported on those grounds.

46.     Under subsection (2), where someone has leave to enter or remain and applies for further leave and their leave then expires, they cannot be removed under the new arrangements until the application has been refused and any appeal against that decision has been dismissed. Similarly, where leave to enter or remain expires while an appeal is pending, the person concerned cannot be removed until the appeal has been determined.

47.     Subsection (3) places a time limit on taking removal action against the family member of someone who is being, or has been, removed similar to that contained in section 5(3) of the 1971 Act. Removal directions may not be given more than 8 weeks after the other family member left the United Kingdom.

48.     The effect of subsection (5) is that directions for removal action against family members cease to have effect if the person concerned ceases to be a member of the family of the person being removed.

49.     The effect of subsection (6) is that certain provisions in Schedule 2 to the 1971 Act apply to those removed under the new procedures.

50.     The effect of subsection (7) is to invalidate any leave to enter or remain given to the person being removed before the directions for his removal were given or while they were in force.

Clauses 7 and 8 : Provision of financial security

51.     In the White Paper the Government announced its intention to take powers to enable a financial bond scheme for visitors to the United Kingdom to be introduced. Under the proposed scheme, if there are any doubts about a visitor's intentions the sponsor would be asked to arrange for a financial security (eg a bond), which would be forfeited if the applicant did not leave the United Kingdom at the end of their visit. The Government also announced in the White Paper that these powers will be used in the first instance to run a pilot scheme to test whether financial securities for visitors are an effective and practical measure. The Government intends to consult interested parties on the design of the pilot scheme before it is introduced, and will assess the results to see if they justify wider use of the provision. Forfeited securities will be paid into the Consolidated Fund.

Clause 7 : Security on grant of entry clearance

52.     This clause gives the Secretary of State the power to require a person applying for entry clearance to provide, or arrange for, a financial security to be provided. It also enables the Secretary of State to accept financial security when it is offered voluntarily (in cases which it is not required), and to take that into account when deciding whether or not to give entry clearance. Entry clearance means a visa (mandatory for visa nationals) or an entry certificate (mandatory for non-visa nationals under certain categories of the Immigration Rules), or other document as specified in the Immigration Rules. The security is either a sum of money provided by the applicant or a third party, or a financial guarantee. The circumstances in which such a security may be required, together with the nature of any financial guarantee, and the circumstances in which it will be repaid or forfeited, or in the case of a guarantee cancelled or realised, will be specified in immigration rules. These will also make provision for fixing the maximum amount of any security, the way in which it will be deposited and reimbursed, and the arrangements for the person providing it to make representations against any proposed forfeiture.

Clause 8 : Provision of further security on extension of leave

53.     Clause 8 makes similar provision in respect of applications for further leave to remain in the United Kingdom from those who have arranged security when seeking entry clearance and have been granted leave to enter accordingly.

Clause 9 : Passenger information

54.     Under paragraph 27(2) of Schedule 2 to the 1971 Act, an order has been made by the Secretary of State allowing an immigration officer to require the captain of a ship or aircraft arriving in the United Kingdom to furnish a passenger list showing the names and nationality or citizenship of passengers on board the ship or aircraft.

55.     Clause 9 supplements this power by inserting a new paragraph 27B into the 1971 Act. The new paragraph allows immigration officers to require carriers to disclose certain information relating to passengers who are expected to be carried on their ships or aircraft arriving in and departing from the United Kingdom (or which have arrived in or departed from the United Kingdom. The types of information which can be required shall be specified by order.

Clause 10 : Notification of non-EEA arrivals

56.     This clause inserts a new paragraph 27C into Schedule 2 to the 1971 Act. The new paragraph provides an immigration officer not below the rank of chief immigration officer, or an immigration officer authorised by such an officer, with the power to require a carrier to inform a relevant officer of the expected arrival in the United Kingdom of any of his ships or aircraft that the carrier expects to carry a non-EEA national. It is envisaged that this power will normally be used in relation to arrivals at ports where there is no permanent immigration presence to allow resources to be deployed as necessary.

Clause 11 : Supply of information to the Secretary of State

57.     This clause provides for information to be supplied to the Secretary of State by the police, the National Criminal Intelligence Service (NCIS), the National Crime Squad (NCS), and HM Customs and Excise (HMCE). Information may only be supplied to the Secretary of State under this provision for the specific "immigration purposes" set out in the clause.

58.     In addition, the Secretary of State is given the power to specify by order further bodies which may supply information to him, and additional immigration purposes for which he may be supplied with information, under the clause.

Clause 12 : Supply of information by the Secretary of State

59.     This clause provides for information to be supplied by the Secretary of State to the police, NCIS, NCS and HMCE for the specified purposes set out in subsections (3), (4), (5) and (6) respectively. It also provides the Secretary of State with the power to specify by order further purposes for the supply of information to these agencies, or other bodies to which information may be provided by him for specified purposes.

Clause 13 : Restrictions on employment : code of practice

60.     This clause is designed to re-emphasise to employers their duty to avoid racial discrimination in their recruitment practices when seeking to secure the statutory defence under section 8 of the Asylum and Immigration Act 1996. It places the Secretary of State under a duty to issue a code of practice aimed at ensuring that employers do not breach the provisions of the Race Relations Act 1976 by making more checks on potential employees than section 8 requires or by targetting checks on racial grounds. Following consultation, the draft code must be laid before Parliament and may be brought into operation by statutory instrument subject to the negative resolution procedure.

61.     Subsections (3) and (4) are intended to provide an opportunity for those with statutory responsibility for, or specific interest in, guarding against racial discrimination in employment practice, to be consulted before the code of practice is finalised.

Clause 14: Monitoring refusals of entry clearance

62.     This clause replaces section 13(3AA) and 13(3AB) of the 1971 Act.

63.     Subsections (1) and (2) require the Secretary of State to appoint an independent monitor to review refusals of entry clearance where there is no right of appeal under clause 42(5).

Clause 15 : Duty to report suspicious marriages

64.     This clause places a duty on superintendent registrars to report to the Home Office marriages which they reasonably suspect as being sham marriages (as defined). At present there is no such obligation. The purpose is to enable the Home Office to obtain early warning of possible suspicious marriages so that they may be investigated.

65.     Subsection (1) provides for the duty to apply where notice of a marriage is given to a superintendent registrar or registrar of marriages and where there are reasonable grounds for suspecting that the marriage is a sham marriage.

66.     Subsection (2) provides for the duty to apply where a marriage is solemnised in the presence of a registrar of marriages where before, during or immediately after solemnisation of the marriage the registrar has reasonable grounds for suspecting the marriage is or will be a sham marriage.

67.     Subsection (3) establishes the duty to report to the Secretary of State; and requires it to be in such form and manner and within such a time period as may be set out in regulations. These regulations may be made by the Registrar General of Births, Deaths and Marriages in England and Wales with the approval of the Chancellor of the Exchequer.

68.     Subsection (5) defines a sham marriage as a marriage entered into between an EEA national (as defined in subsection (6)) and a non EEA national for the purpose of gaining an immigration advantage for the non EEA national. Equivalent provision is made for Scotland and Northern Ireland.

Clause 16 : Deception

69.     The White Paper announced the Government's intention to extend and strengthen the existing criminal offences directed at those who seek to obtain leave to enter or remain by deception with the express purpose of dealing with failed asylum seekers whose claims have involved blatant deceit. Clause 16 replaces and extends the offence set out in section 24(1)(aa) of the 1971 Act (as inserted by section 4 of the Asylum and Immigration Act 1996). The new offence additionally encompasses obtaining or seeking to obtain the avoidance, postponement or revocation of enforcement action by means which include deception. A claim for asylum is technically a claim made by a person that it would be contrary to the United Kingdom's obligations under the United Nations 1951 Convention on the Status of Refugees (the 1951 Convention) for him to be removed from, or required to leave, the United Kingdom, amending the existing offence in this way will therefore ensure that it covers the making of any asylum claim involving deception.

70.     The present deception offence is punishable on summary conviction with a fine of not more than level 5 on the standard scale or with imprisonment for not more than six months, or with both (section 24(1) of the 1971 Act). Subsection (3) of the new section 24A strengthens the penalty for the extended offence.

Clause 17 : False statements etc

71.     Section 26(1)(c) of the 1971 Act provides that a person is guilty of an offence if, on examination under Schedule 2 to that Act or otherwise, he makes or causes to be made to an immigration officer or other person lawfully acting in the execution of that Act a return, statement or representation which he knows to be false or does not believe to be true. This clause extends this provision so that it covers such statements or representations made to persons acting in the execution of certain other immigration legislation.

Part II : Carriers' liability

72.     Clauses 18 - 23 introduce a new a civil penalty on those persons responsible for the transport of clandestine entrants to the United Kingdom. It is entirely separate from and in addition to, the provisions under the Immigration (Carriers' Liability) Act 1987.

Clause 18 : Penalty for carrying clandestine entrants

73.     Subsection (1) defines a clandestine entrant as someone who evades or attempts to evade immigration control, or claims or intends to claim asylum having (a) arrived in the United Kingdom having concealed himself in a vehicle, ship or aircraft; or, (b) gone through or tried to go through immigration control in the United Kingdom concealed in a vehicle; or, (c) arrives in the United Kingdom having embarked on a ship or aircraft outside of the United Kingdom concealed in a vehicle.

74.     Subsection (2) makes liable to a penalty, those responsible for clandestine entrants liable to a penalty. Liability also extends to those (eg dependants) who accompany a clandestine entrant. This means that if one person is responsible for transporting, for example, 5 clandestine entrants, then that person will be liable to a penalty for each entrant.

75.     Subsection (3) states that the penalty must be paid to the Secretary of State within a prescribed timescale.

76.     Subsection (4) makes provision for the joint and several liability of the persons responsible to be discharged by payment of the penalty by one or more of them.

77.     Subsection (5) establishes who is responsible for those clandestine entrants who arrive in the United Kingdom having concealed themselves in a vehicle (see subsection (1)(a)). Those responsible are the owner, operator or captain of the ship or aircraft if the clandestine is concealed on a ship or aircraft; or the owner, hirer or driver if concealed in a vehicle; or the owner or hirer if concealed in a detached trailer. ("Owner" is given an extended meaning by clause 28).

78.     Subsection (6) establishes who is a responsible person in relation to other heads of liability (see subsection (1)(b) and (c)). The responsible person will be the owner, hirer and driver of the vehicle or the owner/hirer of the detached trailer. Subsection (7) makes clear that it is irrelevant whether the person responsible for a clandestine entrant knew or suspected that one or more clandestine entrants were concealed in the transport used.

79.     Subsections (8) and (9) make it clear that, where a vehicle is itself carried within a ship or aircraft, the persons responsible for a clandestine entrant in that vehicle are only responsible for the clandestines found in that vehicle; and not any clandestines carried in other vehicles being carried at the same time by the ship or aircraft or in the ship or aircraft itself.

Clause 19 : Code of practice

80.     This clause provides that the Secretary of State may issue a code of practice setting out the procedures that should be followed by road hauliers, ferry companies etc who operate a system to prevent clandestine entrants from using their vehicle or other transport.

81.     The code of practice will be laid before both Houses of Parliament before it is brought in force by way of an order.

Clause 20 : Defences to claim that penalty is due under clause 18

82.     This refers back to clause 18 and applies to those persons (referred to as carriers) who are alleged to be liable to a penalty under that clause.

83.     Subsections (2) and (3) of the clause provide the carrier with defences against the allegation that he is liable to a penalty. It is a defence if the carrier can show that he or a relevant employee acted under duress, (for example he had been threatened with a gun). Alternatively, he will have a defence where he can show that he did not know and had no reasonable grounds (for example, there was no evidence that the seals on the load had been tampered with), for suspecting that he was carrying a clandestine entrant, that there was an effective system in operation for preventing the carriage of illegal entrants and that the person responsible for operating the system, for example the lorry driver, had done so properly.

84.     Under subsection (4), in determining what constitutes an effective system for preventing the carriage of clandestine entrants, reference must be made to any code of practice issued under clause 19.

85.     Subsections (5) and (6) provide for those times when more than one person is responsible for a clandestine. If one of them has a defence under subsection (3), this will not affect the liability of others. However, should the defence be under subsection (2) (the defence of duress) then the liability of any other responsible person is also discharged.

Clause 21 : Procedure

86.     This clause sets out the procedures that must be followed in cases where the Secretary of State has decided that a person is liable for one or more penalties under clause 18.

87.     Subsection (1) provides that where the Secretary of State decides that someone is liable for a penalty then that individual must be notified of the Secretary of State's decision by the issue of a "penalty notice".

88.     Subsection (2) states that a penalty notice must contain the Secretary of State's reasons for deciding that the individual concerned is liable for a penalty; the amount of the penalty that the individual is liable for; the date by which the penalty must be paid; the manner in which the penalty must be paid, for example, by cheque or banker's draft. It will also have to include an explanation of the steps that the Secretary of State may take to recover any unpaid penalty, for example, by detaining and selling the vehicle if payment is not forthcoming.

89.     Subsections (3) and (4) make service of a penalty notice on one responsible person service on all other persons responsible; but subsection (5) requires the Secretary of State subsequently to make reasonable steps to actually service the notice on the others.

90.     Subsection (6) provides that the person who has been served with a penalty notice can claim that he is not liable and can give written notice of this claim to the Secretary of State.

91.     Subsection (7) provides that this notice has to be given within a set time period prescribed in regulations.

92.     Subsection (8) sets out the duties of the Secretary of State if the notice has been returned within the set time limit. In such circumstances the Secretary of State must consider the objections raised and conclude whether a penalty is still payable.

93.     Subsection (9) allows recovery of a penalty owed in an action for debt.

Clause 22 : Power to detain vehicles etc in connection with penalties under clause 18

94.     This clause provides power to detain a vehicle and certain ships and aircraft until such time as all penalties have been paid.

95.     Subsections (1) and (2) state that a senior officer or above may detain a vehicle, small ship or small aircraft until all penalties have been paid but that this power will only be used where the officer believes there is a significant risk that the penalty will not otherwise be paid within the timescale allowed by the notice. This power may not be exercised if an alternative form of security which the Secretary of State considers satisfactory, has been given.

96.     Subsection (3) states that the owner, consigner or any other interested person, may remove, or make arrangements for the removal, of any goods or freight carried on the transporter.

97.     Subsections (4) and (5) provide that, as long as the Secretary of State was acting reasonably in issuing the penalty notice, detention of a transporter will not be unlawful even when it is later found that the penalty notice was ill-founded. This does not apply where the penalty notice acted unreasonably in issuing the penalty notice (subsection (5)).

Clause 23 : Effect of detention

98.     This clause sets out the circumstances in which someone (the person on whom the penalty notice was served, the owner if different, or anyone else claiming an interest) can apply to the court for the release of a detained vehicle, ship or aircraft.

99.     The vehicle, ship or aircraft may be released if the court decides that an adequate guarantee against the penalty and any connected expenses has been offered or if the court has significant doubt that the penalty will not stand and the return of the transporter is vital to the applicant.

100.     However, if the court does not release the transporter the Secretary of State can arrange for its sale if the penalty is not paid within the period allowed. This period is 56 days and begins on the day the transporter is first detained.

Clause 24 : Assisting illegal entry and harbouring

101.     Subsection (1) amends section 25(6) of the 1971 Act to enable the court to order the forfeiture of a vehicle where the driver is convicted of an offence under subsections 1(a) or (b). That is to say, where the driver is knowingly involved in assisting an illegal entrant to enter the United Kingdom.

102.     Subsection (2) inserts a new section, section 25A, in the 1971 Act. This provides that where a person is arrested for an offence under section 25(1) (a) or (b) of the 1971 Act (the facilitation of an illegal entrant), the ship, aircraft or vehicle employed may be seized by a senior immigration officer or police constable pending a decision to charge him/her and, if charged, pending the verdict of the court. On conviction the court may decide to order the forfeiture of the transport involved under section 25(6).

103.     In order to detain a ship, aircraft or vehicle under 25A(1), the senior officer or police constable must have reasonable grounds to believe that it could be subject to forfeiture by the court under section 25(6) upon conviction of the person concerned.

104.     Under new section 25A(3), where the owner of the ship, aircraft or vehicle detained under section 25 or 25A is not the person arrested for the offence, he/she may apply to the court for it to be released.

105.     Where an application is made under section 25A(3) the court may order the release of the ship, aircraft or vehicle if satisfied that adequate securities are provided and on condition that it is made available to the court if, on conviction of the arrested person, it is ordered to be forfeited.

Clause 25 : Charges in respect of passengers without proper documents

106.     This clause replaces with amendments section 1 of the Immigration (Carriers' Liability) Act 1987 which relates to the carriage of inadequately documented passengers on ships, aircraft and trains; the latter by virtue of the Channel Tunnel Act (Carriers Liability Order) 1998.

107.     Subsections (1) and (2) apply where a person requiring leave to enter the United Kingdom arrives by ship, aircraft, road passenger vehicle or train and fails to produce a passport or other document which satisfactorily establishes his identity and nationality, and a visa where required, when asked to do so by an immigration officer. In these circumstances the owner of the transport (operator in case of a train) carrying such a passenger is liable to pay to the Secretary of State a charge of £2,000 or such other sum as may be prescribed. The charge relates to each inadequately documented passenger carried.

108.     Subsection (4) states that there is to be no liability where the owner (or operator in the case of trains), can show that the required documents were produced to him or his representative when the passenger embarked on his flight, voyage or journey to the United Kingdom.

109.     Subsection (5) explains that for the purposes of this section a document is to be regarded as genuine unless it is reasonably apparent that it is a forgery.

110.     Subsections (6) and (7) state that where the owner of a road passenger vehicle, which has arrived in the United Kingdom on a ship or aircraft, is liable for a charge in respect of an inadequately documented passenger, the Secretary of State may charge the owner of the vehicle or, alternatively, the owner of the ship or aircraft but not both.

111.     Subsection (8) defines "road passenger vehicle" in the context of this clause; it excludes taxis.