Schedule 4, Part II : Determination of appeals

201.     Paragraph 10 provides for the determination of appeals by adjudicators and the circumstances in which an appeal must be allowed.

202.     Paragraph 11 provides for appeals to the Immigration Appeal Tribunal from the determination of an adjudicator and sets out the powers of the Tribunal.

203.     Paragraph 12 provides for appeals with leave from the Immigration Appeal Tribunal to the Court of Appeal (or, if the determination appealed against was by an adjudicator in Scotland, the Court of Session).

204.     Paragraph 13 provides for the circumstances in which an appeal must be dismissed. Under sub-paragraph (1), an appeal against refusal of leave to enter must be dismissed if at the time of refusal the adjudicator is satisfied that the appellant was an illegal entrant. Under sub-paragraph (2), an appeal against refusal of an entry clearance must be dismissed if the adjudicator is satisfied that a deportation order was in force in respect of the appellant. Under sub-paragraph (3), an appeal against directions under clause 48 must be dismissed if the adjudicator is satisfied that there was power to give the directions because the appellant was an illegal entrant.

Part V : Immigration advisers and immigration service providers

205.     In the White Paper, the Government announced its intention to introduce legislation to regulate immigration advisers. Under the proposed scheme both non-legally and legally qualified advisers are to be regulated. It would be unlawful for any person to provide immigration advice in or from the United Kingdom, unless registered to do so; a member of a designated professional body or European equivalent; or exempt.

Clause 62 : The Immigration Services Commissioner

206.     This clause makes provision for the appointment (and introduces the functions) of the Immigration Services Commissioner. The Commissioner is required to publicise these functions.

Clause 63 : Provision of immigration services

207.     This clause prohibits the providing of immigration advice or services by those who are not qualified to do so. The clause sets out who are to be qualified persons. These include those who are registered with the Commissioner or members of a designated professional body or equivalent EEA professional body. It provides the Commissioner and the Secretary of State with the power to exempt a person or category of persons, respectively, from the scheme. It also sets out those who do not fall to be regulated, including those employed by a government department when acting in that capacity.

Clause 64 : Registration and exemption by the Commissioner

208.     This clause states that the Commissioner must keep a register of those persons he has registered and a record of those he has exempted from registration.

Clause 65 : Designated professional bodies

209.     This clause lists the designated professional bodies whose members are to be considered qualified to provide advice or services. It provides the Secretary of State with the power to amend the list of professional bodies and puts a duty on the Commissioner to keep this list under review and to report to the Secretary of State any failure of a body to provide effective regulation of its members the intention is to catch a general failing rather than a one off. The Secretary of State is required to seek the agreement of the Lord Chancellor or (as the case may be) Scottish Ministers before removing a body from the list of designated professional bodies.

210.     A fee set by the Secretary of State is payable by each designated body.

Clause 66 : The Immigration Services Tribunal

211.     This clause establishes the Immigration Services Tribunal which will hear disciplinary charges laid by the Commissioner and to which any person aggrieved by certain decisions of the Commissioner (such as to refuse registration or continuation of registration) may appeal.

Clause 67 : Appeal upheld by the Tribunal

212.     This clause gives the Tribunal certain powers when it allows an appeal against a decision of the Commissioner. For example, in an allowed appeal against the decision of the Commissioner to refuse an application for registration or continuation of registration, it may direct the Commissioner to register the applicant if appropriate with a limitation on the applicant's registration.

Clause 68 : Disciplinary charges upheld by the Tribunal

213.     This clause gives the Tribunal power, where it upholds a disciplinary charge laid by the Commissioner, as appropriate; to direct the Commissioner to record the charge for consideration on application for continued registration; to direct the applicant to seek continued registration without delay; to direct the Commissioner to consider whether to withdraw exemption; or to direct the repayment of fees to clients, to direct the payment of a fine, and to direct restriction, suspension or prohibition of the provision of immigration advice and services.

Clause 69 : Orders by disciplinary bodies

214.     This clause enables the disciplinary bodies of the professions to be given powers to restrict, suspend or prohibit the provision of immigration advice by a member of that professional body. The disciplinary bodies to have these powers are to be specified in an order made by the Secretary of State subject to consultation with the relevant designated professional body.

Clause 70 : Offences

215.     This clause sets out the penalties for the provision of immigration advice or services if not qualified to do so or when subject to a restraining order. Where it is proved that an offence has been committed by a body corporate with the consent, connivance or neglect of an officer of that body, that officer will also be guilty of the offence. The intention is to ensure that individuals are accountable for their unscrupulous activity.

Clause 71 : Enforcement

216.     This clause provides the Commissioner with the power to apply to a county court for an injunction where a person continues to provide immigration advice or services when not qualified or restrained from doing so.

Clause 72 : Information

217.     This clause sets out provisions governing disclosure of information to the Commissioner and the Tribunal. It also sets out provisions governing the disclosure of information by the Commissioner and prohibits the disclosure of information without lawful authority. This is particularly important in view of the powers available to the Commissioner, or those acting on his authority, for entry to premises (Schedule 5, paragraph 6).

Schedule 5, Part I : Regulatory functions of the Immigration Services Commissioner

218.     Part 1, paragraph 1 provides the Commissioner with the power to make rules with regard to the professional practice, conduct and discipline of registered advisers and their employees or those supervised by them in connection with the provision of immigration advice or services. Before making such rules, he is required to consult those who he considers represent the views of those who provide immigration advice or services.

219.     Paragraph 2 requires the Commissioner to prepare and issue a code of conduct for certain persons providing immigration advice or immigration services, other than the members of designated bodies. Paragraph 3 allows the extension of the code to members of designated professional bodies, by order of the Secretary of State with the approval of the Lord Chancellor.

220.     Paragraph 4 requires the Commissioner to set out a scheme for the investigation of relevant complaints and defines what constitutes a relevant complaint.

221.     Paragraph 5 requires the complaint scheme to allow those subject to investigation reasonable opportunity to make representations and requires those persons to assist the Commissioner in his investigation.

222.     Paragraph 6 provides the Commissioner or an authorised member of his staff with the power to enter premises and to take copies of any document or information held on computer which the investigating officer considers relate to the investigation of a relevant complaint against a registered person. It also permits cancellation of registration where access by the Commissioner or his staff is denied.

223.     Paragraph 7 requires the Commissioner to give a written statement of his determination of a complaint to the person who made the complaint and the person who is the subject of the complaint.

224.     Paragraph 8 sets out the options available to the Commissioner on the determination of a complaint. If the complaint relates to a registered person or person employed or working under the supervision of a registered person, the complaint and decision may be recorded for consideration when the registered person next applies for continued registration. If the complaint is sufficiently serious to require immediate action the Commissioner may require the registered person to apply for continued registration without delay. If the person is authorised by a designated professional body (including EEA bodies) or working under the supervision of such a person, the Commissioner may refer the complaint to the relevant regulatory body. If a person is exempt (or is employed by, or working under the supervision of such a person), then the Commissioner may consider whether to withdraw exemption. The Commissioner may also decide whether to lay before the Tribunal a disciplinary charge against a relevant person.

Schedule 5, Part II : Immigration Services Commissioner's status, remuneration and staff etc

225.     Paragraph 9 sets out the status of the Commissioner; paragraph 10 the period of office; paragraph 11 the terms and conditions of appointment for the Commissioner; and paragraph 12 the remuneration, expenses and pensions of the Commissioner.

226.     Paragraph 13 provides the Secretary of State with the power to compensate a person who ceases to be the Commissioner, other than where the term of office ends, and where the Secretary of State considers there are special circumstances to do so. Paragraph 14 requires the Secretary of State to appoint a Deputy Commissioner. Paragraph 15 permits the Commissioner to appoint and pay staff subject to the approval of the Secretary of State. Paragraph 16 permits the Secretary of State to pay expenses to the Commissioner. Paragraph 17 requires sums received by the Commissioner to be paid to the Secretary of State and then into the Consolidated Fund.

227.     Paragraph 18 requires the Commissioner to keep accounts, records and to prepare a statement of accounts for each financial year to be sent to the Secretary of State and the Comptroller and Auditor General.

228.     Paragraph 19 requires the Commissioner to prepare a report each year to the Secretary of State on the performance of his functions. The report must set out the Commissioner's opinion as to the effectiveness of the regulation by each designated professional body on its members.

Schedule 6 : Registration

229.     Paragraph 1 requires an application for registration to be made to the Commissioner in such form and manner and with such information and supporting evidence as the Commissioner may determine and provides the Commissioner with the power to require further information or supporting evidence as may be reasonably required.

230.     Paragraph 2 requires the Commissioner to register an applicant who is competent and fit to provide immigration advice/services, and allows registration subject to certain restrictions.

231.     Paragraph 3 provides the Commissioner with the power to require applications for continued registration and to determine the format and content of these applications. It also provides that the Commissioner must cancel registration where he considers that an applicant for continued registration is no longer competent or fit to provide immigration advice or services. The Commissioner also has the power to vary the extent of the registration.

232.     Under paragraph 4 a person who is convicted of an offence under the Immigration Act 1971 of facilitating illegal entry or of altering immigration documents or obstructing an immigration officer or other person acting in the execution of the 1971 Act is disqualified from registration or continued registration.

233.     Paragraph 5 allows the Secretary of State to prescribe fees for registration or continued registration and stipulates that no application can be considered by the Commissioner unless accompanied by the required fee.

234.     Paragraph 6 requires the Commissioner's registers to be open for inspection and, on application, for copies to be provided on payment of a fee.

Schedule 7 : The Immigration Services Tribunal

235     Paragraphs 1 and 10 set out the qualifications for membership of the Tribunal. Members are to be appointed by the Lord Chancellor in such numbers as he determines.

236.     Paragraphs 2 and 3 make provision for a President of the Tribunal and the terms and conditions of appointment of members. Paragraph 4 provides the Lord Chancellor with the power to pay members of the Tribunal.

237.     Paragraph 6 makes provision for the Commissioner to be represented before the Tribunal.

238.     Paragraph 7 allows the Lord Chancellor to make rules of procedure.

239.     Paragraph 8 permits the Lord Chancellor to appoint staff for the Tribunal. Paragraph 9 permits the Lord Chancellor to pay other expenses of the Tribunal.

Part VI : Support for asylum seekers

Clause 73 : Interpretation of Part VI

240.     Part VI contains new provisions for the support of asylum seekers.

241.     Subsection (1) defines an asylum seeker as a person over 18 who has made a claim for asylum under the 1951 Refugee Convention, or for protection under Article 3 of the European Convention on Human Rights, and whose claim has not yet been determined. Dependants of asylum seekers are supported alongside the asylum seeker, and a dependent is defined as an asylum seeker's spouse or any dependent child under the age of 18. There is a power to add to this list.

242.     Subsection (2). Under clause 74 support may be provided to an asylum seeker by the Secretary of State, or through arrangements made by him with another party. The Home Office proposes to contract with local authorities, housing associations, private sector landlords and the voluntary sector for the provision of accommodation and subsistence for asylum seekers. Throughout this Part of the Bill, references to support provided under the clause 74 include support provided under arrangements made with others.

243.     Subsection (3) defines when an asylum claim is to be treated as having been determined for the purposes of the support arrangements. A claim would be determined a prescribed number of days after either the Secretary of State's decision on an asylum application, or (where there has been an appeal) the final settlement of the appeal. It is expected that this period will not be less than 14 days; this period of grace would allow a former asylum seeker time to make other arrangements before his stay in accommodation provided under Part VI ends. This provision would only apply to single asylum seekers or childless couples; the effect of subsection (5) is that families with dependent children will continue to be eligible for support for as long as they remain in the country.

Clause 74 : Persons for whom support may be provided

244.     This clause contains the key support power conferred on the Secretary of State, and in particular sets out who he may support. The clause sets out the core tests will be applied when considering applications for assistance under these provisions.

245.     Subsection (1) provides that support may be provided for asylum seekers and their dependants who appear to the Secretary of State to be either destitute or to be likely to become destitute within a period to be prescribed in regulations; this latter provision will allow the Secretary of State to start making support arrangements in anticipation of destitution occurring. The power to provide support endures only so long as destitution (or the threat of it) exists; thus if someone assisted under these provisions ceases to be destitute, the Secretary of State will cease to be able to assist him at any time. The support may either be provided by the Secretary of State (in practice the Home Office) directly, or by arrangements he makes with others who will provide support.

246.     Regulations can be made under subsection (2) to exclude people from entitlement under prescribed circumstances; for example a person who had previously caused serious damage to property provided under the support arrangements might be excluded.

247.     Subsection (3) defines destitution as the lack of adequate accommodation or the means to obtain it, and/or the lack of resources to meet other essential living needs.

248.     Subsection (5) provides for regulations to be made setting matters to be taken into account in determining the adequacy of accommodation for this purpose, while subsection (6) sets out certain matters which may not be taken into account in determining whether accommodation is adequate for this purpose. No account may be taken whether the asylum seeker has any right to occupy accommodation (eg whether or not he has a tenancy or is a licensee), or the fact that the accommodation is shared with others, that it is of a temporary character (eg a short stay hostel), or the area in which it is located. Subsections (7) and (8) provide for the Secretary of State to make secondary legislation specifying what kinds of items or expenses are, or are not, to be treated as essential living needs and identifying matters to which he must or must not have regard in considering whether these needs are met.

249.     Subsections (9) to (11) provide that the Secretary of State may make the support subject to conditions which must be notified to the person in writing. These conditions could cover matters such as the behaviour of the applicant, his responsibilities as occupier of property made available by the Secretary of State, or (for asylum seekers receiving assistance with living expenses only) a requirement for him to live at the address notified to the Home Office for the purpose of his asylum application. If a person is in breach of these conditions he could be evicted from the accommodation, and/or the support for living expenses ended.

Clause 75 : Ways in which support may be provided

250.     This clause sets out the manner in which the Secretary of State may provide support for destitute asylum seekers. The extent of the support is set out in sub-section (1); it may include accommodation, provision for essential living needs (including meals, personal care items), and provision for expenses associated with pursuing the asylum application; the last category would not extend to legal expenses, but would cover the costs of preparing and copying certain documents, and travelling to interviews. Where a person has adequate accommodation (eg because he can stay with friends or relatives) he may be provided with living expenses only. And where he has sufficient resources to meet living expenses, but cannot afford rent, he may be provided with accommodation only. Additionally, subsection (2) provides that in exceptional circumstances support may be given in other ways which go beyond the provision of accommodation, essential living expenses and expenses associated with the application.

251.     Subsection (3) provides that support should not normally be given by way of cash payments. The intention is that asylum seekers will be provided either with board and lodging together, or, if they are to cater for themselves, they will be given vouchers to be exchanged for food and other essentials at a shop or supermarket; they may be given a small weekly cash allowance to cover minor incidental expenses.

252.     Subsections (4) to (6) give the Secretary of State the power to make an order disapplying or repealing the provisions that limit the extent of cash payments.

Clause 76 : Provision of support : supplemental

253.     Subsection (1) sets out factors to which the Secretary of State must have regard in providing accommodation. These are that the need for accommodation is only temporary pending determination of an asylum claim (so security of tenure need not be an issue), and the desirability of providing accommodation in areas where there is a ready supply (in contrast to areas such as London where there is an acute shortage of accommodation). He may also make regulations specifying further matters that he must take into account; regulations might cover such matters as the condition of the property.

254.     Subsection (2) prevents the Secretary of State from taking account of any preferences as to location that the asylum seeker may express. He may also make regulations setting out other factors he is required to ignore. Regulations might require him to ignore any preferences that the asylum seeker expresses as to type of property (eg for a house rather than a flat). Subsection (3) allows him to modify this and the previous provision by order.

255.     Subsection (4) provides for the Secretary of State to be able to make regulations setting out matters to which he must have regard, and to which he may not have regard in providing for essential living needs; this parallels his power in clause 74(7). Subsection (5) provides that, in setting the level of support for essential living needs, the Secretary of State may limit the overall amount payable to any individual or family to a portion of the level of income support generally available; in doing so he may recognise that the support is only of a temporary nature, and need not therefore include contributions to the replacement of items of furnishing or clothing that might be required in the longer term.

256.     Subsection (7) allows the Secretary of State to disregard any preference an asylum seeker may express as to the manner in which the support is to be provided. Thus he may disregard the preference a single person might express for self contained accommodation and self catering arrangements, instead making an offer of accommodation in a hostel that provides full board. If the asylum seeker declines to take up such an offer of accommodation the Secretary of State need not make any further offer.

Clause 77 : Duration of support

257.     This clause deals with the situation where a person voluntarily leaves either the accommodation provided by the Secretary of State, or (if he is not in such accommodation but is receiving living expenses) where he leaves the address at which he has notified the Secretary of State he will be living (regulations made under clause 78 will require such people to register their address with the Home Office). In either case support ceases when the asylum seeker ceases to be resident at that address, but may re-commence when he returns to that address. This provision would apply only to extended absences, not overnight absences such as for short visits to friends.

Clause 78 : Secretary of State's scheme for providing support

258.     This clause contains powers for the Secretary of State to make regulations governing the operation of the support scheme. By setting out a scheme the Secretary of State may indicate the way in which he would normally provide support, and at what level (although this would not limit his discretion); this would allow claimants and those advising them to know what they may expect.

259.     Regulations under subsection (2) would set out the circumstances under which payments may be made at a flat rate applicable to anyone meeting certain criteria (eg that support should be to the value of £x per adult and £y per child), and the circumstances under which the Secretary of State may disregard the flat rate payments and make special payments to meet particular needs (eg to someone whose particular medical condition gives rise to special needs).

260.     Regulations under subsection (3) may prescribe that, in determining whether and to what extent he should provide support, the Secretary of State must take into account the support or assets that might reasonably be expected to be available to an asylum seeker from other sources. This might include support from friends and relatives already in the country, or from the voluntary sector.

261.     Regulations under subsection (4) would cover procedural matters including the making of an application for support. It is envisaged that regulations might cover the form of an application, to whom it should be made, the information that the applicant might be required to supply (eg about his personal affairs and finances, or about other sources of support available to him in this country), and the other information that the Secretary of State might be able to rely on in assessing an application. They might also cover procedures and set time scales for notifying the Secretary of State of changes in circumstances that would lead to a reassessment of the asylum seeker's continued need for support (where for example he gained access to other resources).

Clause 79 : Temporary provision of support

262.     There may be circumstances where an asylum seeker needs support before the Home Office has the opportunity to make a formal assessment as to whether there is an entitlement under the conditions of clause 74. In such cases the Secretary of State is empowered to provide support on an interim basis until a proper assessment is made, where he feels the person in question may be destitute; the support may take any form. The provision might be relied upon where it was necessary to make emergency provision for people arriving at a United Kingdom airport at a weekend, before the Home Office screening unit could make a normal assessment.

Clause 80 : Provision of support by local authorities

263.     The specific functions of local authorities in relation to supporting asylum seekers under housing and social services legislation are removed by the amendments contained in clauses 96 to 99. This clause empowers local authorities to provide accommodation and essential living needs for asylum seekers in accordance with the arrangements made by the Secretary of State under clause 74; the support might be provided for the Secretary of State or someone with whom he has contracted. There is no power for authorities to make such provision in other circumstances.