Clause 81 : Local authority and other assistance for the Secretary of State

264.     The Secretary of State will be looking to the providers of social housing (essentially local authorities and registered social landlords) for assistance in the provision and management of housing accommodation, and possibly in the provision of essential living needs where these are directly associated with the provision of accommodation. This clause will require such landlords to co-operate with the Secretary of State when he makes such a request, so far as is reasonable in the circumstances. What is reasonable would depend on the particular case. It would be reasonable for a landlord to co-operate providing he had suitable spare accommodation which he could put at the Secretary of State's disposal in return for appropriate reimbursement; it would not be reasonable to expect a housing association or registered social landlord to co-operate if this were in conflict with its constitution or articles of association - see subsection (3).

265.     The clause also requires a local authority to provide the Secretary of State with such information about their housing stock as he requests. Collecting such information would help the Secretary of State to decide which landlords to seek assistance from; or it might be the precursor to his designating a "reception zone" under clause 82.

Clause 82 : Reception zones

266.     The provisions of this clause are intended as reserve powers that the Secretary of State would only bring into play if he were unable to secure sufficient accommodation by voluntary agreement with the local authorities of an area that he feels is suitable for the accommodation of asylum seekers. It provides that, having consulted with the local authorities of an area, their associations, and such other persons as he thinks fit, he may make an order designating a reception zone. This would typically be an area comprising a number of local authorities in whose area the Secretary of State felt there is spare housing accommodation, and the potential to construct a sound base for the support of asylum seekers.

267.     Once a reception zone has been designated, and it is apparent to the Secretary of State that there is unoccupied housing available in the area of a particular authority, it would be open for him to direct that authority to make available to him (or to a person with whom he has contracted for providing support) a specified amount of housing accommodation. The direction would specify the amount of housing to be made available, and the terms on which it was to be made available; the local authority would be reimbursed the reasonable rent and other charges for property made available in this way.

268.     Since immigration and asylum matters are reserved functions, it would be for the Home Secretary to exercise the powers in this clause. But bearing in mind that housing is a devolved function, he would want to do so only after consultation with the relevant devolved administrations in Wales, Scotland and Northern Ireland.

Clause 83 and Schedule 8 : Asylum Support Adjudicators

269.     This clause and Schedule create the office of Asylum Support Adjudicator; there will be a Chief Asylum Support Adjudicator, his deputy, and a number of other adjudicators, all appointed by the Secretary of State. The adjudicators are independent of the Secretary of State, hearing appeals against a refusal of support, or a cessation of support. The remuneration of the adjudicators and the costs of staffing their office are to be met by the Secretary of State.

Clause 84 : Appeals against refusal or withdrawal of support

270.     This clause provides that a person may appeal to an asylum support adjudicator against a refusal of support, or the termination of support before the applicant's asylum application has been determined (eg when he is required to leave accommodation because of misbehaviour); no other matters may be considered by the asylum support adjudicator. If the adjudicator finds in favour of the applicant he may either require the Secretary of State to reconsider his decision, or he may substitute his own decision. There is to be no further route of appeal against the asylum support adjudicator's decision (although judicial review will be available). Where the asylum support adjudicator has rejected an appeal that person has no right to make a further application for support under Part VI unless there has been a material change in his circumstances.

Clause 85 : Secretary of State's rules

271.     This clause provides that the Secretary of State may make rules governing the procedure for bringing and hearing appeals. They may cover the period within which an appeal must be brought, the burden of proof, the admissibility of various matters as evidence, the role of witnesses, how to proceed in the absence of the appellant, how to proceed without a hearing, and the publication of decisions.

272.     Subsection (3) provides that the Secretary of State should, in drawing up the rules, have regard to the objective of clearing appeals as swiftly as possible. This reflects the fact that a person appealing against a refusal of assistance is not entitled to support while he is waiting for the case to be heard.

Clause 86 : False representations

273.     This clause makes it an offence for a person to give information that he knows to be false, with a view obtaining assistance under this Part of the Bill. It also extends to failures to give information about a change in circumstances that might be relevant to the provision of support, whether given by the person supported or by someone else; regulations made under clause 78 may require people to notify the Home Office of any change in circumstances within a reasonable period. The penalty for such an offence is a fine of up to £2000, or three months imprisonment.

274.     This, and subsequent provisions in relation to offences and recovery (clauses 86, 87, 88, 89, 93, 94 and 103) have similar wording to the relevant provisions in social security legislation; in this case the corresponding provision is s112 of the Social Security Administration Act 1992 ("the 1992 Act").

Clause 87 : Dishonest representations

275.     This clause makes it a further and more serious offence for a person to obtain benefits or advantage for himself or anyone else by making dishonest representations. The clause is directed at cases of serious and calculated fraud, such as where someone makes a plan to extract as much from the Home Office as possible by deception. The maximum penalty for serious fraud of this sort is correspondingly great; conviction on indictment to the crown court can result in imprisonment of up to seven years. (The corresponding provision in the 1992 Act is s111A).

Clause 88 : Delay or obstruction

276.     This clause makes it an offence to obstruct a person carrying out functions under Part VI (either the Secretary of State or someone acting on his behalf) by either obstructing him, or failing to give him information when required under the Act. It is punishable by a fine not exceeding £1000. (The corresponding provision in the 1992 Act is s111).

Clause 89 : Failure of sponsor to maintain

277.     This clause addresses the situation where someone who enters the country under a sponsored immigration arrangement (under which the sponsor normally agrees to support the immigrant for five years) and subsequently claims asylum. It makes it an offence for the sponsor to deliberately fail or refuse to maintain an immigrant in these circumstances so that he has to rely on the support arrangements created under Part VI; lack of resources as a result of the sponsors involvement in a strike would not constitute deliberate refusal or failure. The offence is punishable by up to three months imprisonment or a fine not exceeding £2500. (The corresponding provision in the 1992 Act is s105).

Clause 90 : Offences : supplemental

278.     In the case of offences committed under clauses 86, 87, 88 or 89, by corporate bodies, this clause applies these offence provisions to both the corporate body itself and to the officer concerned. In the case of Scottish partnerships, subsection (4) applies the offences to both the partner himself and to the partnership. (The equivalent provision in the 1992 Act is s115).

Clause 91 : Payments to local authorities

279.     Subsection (1) gives the Secretary of State power to make payments to local authorities in connection with the expenditure they incur in relation to asylum seekers. Such payments might cover the costs to the authorities of providing accommodation for use by asylum seekers (rents etc), of providing other support, or those costs that are not reflected in the local government finance settlement of providing other services for asylum seekers

280.     Subsection (2) gives the Secretary of State power to make payments to local authorities in respect of the liability to council tax that may fall to asylum seekers under the Local Government Finance Act 1992; alternatively it is possible to make regulations under that legislation to vary the liability for council tax of asylum seekers.

Clause 92 : Grants to voluntary organisations

281.     This clause gives the Secretary of State power to pay grants to voluntary organisations for the provision of support to asylum seekers. The Government recognises the important role that the voluntary sector plays in assisting asylum seekers and wishes to harness this in the context of the new provisions contained in Part VI. This clause provides the means for doing so.

Clause 93 : Recovery of expenditure on support: misrepresentation etc

282.     This clause provides for recovery by the Secretary of State of the monetary value of support given to asylum seekers or people purporting to be asylum seekers, as a result of their having been found to have misrepresented, or failed to disclose a change of, their circumstances. It extends to recovery by the Secretary of State of the monetary value of support given by a contractor on the Secretary of State's behalf. Recovery would be through proceedings in the county court in England or Wales, or the sheriff court in Scotland. (The equivalent provision in the 1992 Act is s71).

Clause 94 : Recovery of expenditure on support from sponsor

283.     This clause makes provision that, where a person was originally admitted to this country under a sponsorship agreement, but that person has now sought asylum and is being supported under Part VI of the Bill, the Secretary of State may seek a maintenance order from a magistrate's court in England or Wales or Northern Ireland, or a sheriff court in Scotland or a court of summary jurisdiction in Northern Ireland. (The equivalent provision in the 1992 Act is s106 & s107).

Clause 95 : Exclusion from benefits

284.     The intention of Part VI is to substitute a new set of welfare provisions for entitlement to the majority of the existing social welfare benefits that are available to permanent residents; this clause (together with clauses 96 and 99) provides the basis for this, by excluding a "person subject to immigration control" from specified benefits. Subsection (4) provides that a person subject to immigration control is someone who is here unlawfully (either an illegal entrant, or someone who has overstayed his leave), someone who is here on limited leave with a condition that he will have no recourse to public funds (eg a visitor or a student), someone who is here under arrangements whereby a resident has agreed to sponsor him, or someone whose leave has been extended to allow him to pursue an appeal. These classes embrace asylum seekers with no other status (an application for asylum does not itself confer an entry status or leave to remain), and a number of other persons subject to immigration control. Subsection (3) gives the Secretary of State power to remove descriptions of person from the scope of this clause (so that the exclusion from benefits does not apply). The power would be used, inter alia, in relation to those people who have rights under international conventions to which the United Kingdom is party, such as the European Convention on Medical and Social Assistance and the European Social Charter; if they have entered this country lawfully such people are entitled to normal welfare benefits, even if they are seeking asylum.

285.     Subsection (1) removes entitlement to all non contributory social security benefits. From commencement of this provision all existing payments of social security benefits to asylum seekers would cease (subject to any savings or transitional provisions). Those who as a result were destitute would be entitled to assistance under the new support arrangements set out in Part VI.

Clause 96 : Amendment of section 21 of the National Assistance Act 1948

286.     This clause removes all persons subject to immigration control (as defined in clause 95) from entitlement to assistance under community care legislation (The National Assistance Act 1948), if their need for assistance arises solely because they are, or about to become, destitute. These provisions have hitherto been relied upon by single destitute asylum seekers; they will in future be entitled to assistance under Part VI of the Bill. Asylum seekers who need social services care and attention for more specific reasons (such as a particular physical disability or mental health problem), will retain that entitlement.

Clause 97: Other restrictions on assistance: England and Wales

287.     This clause removes persons subject to immigration control from entitlement to a number of other forms of welfare support. Subsections (1) and (2) remove the entitlement of asylum seekers from social services assistance under legislation governing the care of old people, and measures for the prevention of ill health.

288.     Subsection (3) removes entitlement of persons subject to immigration control to appear on a local authority housing register (and therefore to be considered for long term social housing). Subsections (4) & (5) disqualify such a person from entitlement to assistance under the homelessness legislation (Part VII of The Housing Act 1996).

289.     Schedule 12 contains further amendments in relation to housing legislation. Paragraph 38 removes entitlement to protection under the Protection from Eviction Act 1977 from asylum seekers accommodated under Part VI; they can therefore be required to leave accommodation provided under Part VI without a court order having been obtained (as could any sub-tenants). Paragraphs 43 and 50 remove asylum seekers accommodated under Part VI from the security of tenure provisions contained in Part IV of the Housing Act 1985, and Part I of the Housing Act 1988 (which govern the secure and assured tenancy regimes respectively). Corresponding provision is made for Scotland.

Clause 98: Other restrictions on assistance: Scotland

290.     This clause makes provisions equivalent to those in clauses 96 and 97 in relation to Scottish social work legislation. It removes the entitlement of persons subject to immigration control to assistance under social work legislation, where this arises solely as a result of his destitution or anticipated destitution. It also removes such people from entitlement to assistance under health care legislation

Clause 99 : The Children Acts

291.     This clause provides that local authority social services departments may not provide assistance to the families of children in need solely because the family is destitute in cases where they would be entitled to assistance from the Secretary of State under the provisions of Part VI of the Bill. In such cases assistance under the respective Children Acts would only be available to the child. Unaccompanied children will continue to be entitled to assistance from social services departments under that legislation. Other duties of social services departments to children in need or at risk will also continue to apply.

Clause 100 : Secretary of State to be corporation sole for the purposes of Part VI

292.     This clause provides that the Secretary of State is to be treated as a "corporation sole" for the purposes of Part VI. This will assist in conveyancing, if the Secretary of State acquires property that he makes available to asylum seekers directly.

Clause 101 : Entry of premises

293.     This clause provides that a person acting on behalf of the Secretary of State may enter accommodation provided under Part VI to ensure that the accommodation is being used by the people for whom it has been provided, is not being sublet or used to accommodate anyone else, and is being kept in reasonable condition (this will be one of the conditions to be imposed under clause 74).

Clause 102 : Information from property owners

294.     This clause allows the Secretary of State to require the owner or manager of property provided to accommodate asylum seekers under Part VI of the Bill to supply him with information about the premises and the persons occupying the premises. This power might be used for example to require landlords to notify the Secretary of State when an asylum seeker had left property provided under an agreement, or when an asylum seeker was subletting the property. (This provision is similar to s122D of the 1992 Act).

Clause 103 : Requirement to supply information about redirection of post

295.     This clause allows the Secretary of State to require anyone conveying postal packets to give him information about any request from an asylum seeker for the redirection of post that may help the Secretary of Sate in the prevention or detection of offences, or in otherwise tracing and checking on asylum seekers who are in receipt of support under this Part. (This is similar to the provision in s182B of the 1992 Act).

PART VII : Power to arrest and search

296.     The White Paper explained that immigration officers currently have to rely on the police to perform certain tasks relating to the enforcement of immigration law and announced that, in order to reduce this dependency, the Government intended to extend the existing powers of arrest of immigration officers and to provide immigration officers with powers of search, entry and seizure in respect of immigration offences equivalent to those the police already have. This Part of the Bill gives effect to this and imposes certain limitations on the exercise of these powers. The new powers - and the associated safeguards - have been modelled on those contained in the Police and Criminal Evidence Act 1984 (PACE). In exercising these and other powers, immigration officers will be allowed to use reasonable force if necessary.

Clause 104 : Arrest without warrant

297.     This clause inserts a new section (section 28A) into the 1971 Act. Subsections (1), (2) and (3) reproduce the existing powers of arrest without warrant which are currently contained in sections 24(2) and 25(3) of the 1971 Act. Subsections (1) and (2) allow a constable or immigration officer to arrest someone who has committed or has attempted to commit various immigration offences contained in Part III of the Act or where there are reasonable grounds for suspecting that they have committed or attempted to commit such an offence. The offences in question include entering the country illegally; overstaying; failing to observe a condition of leave; and the new extended offence of deception created by clause 16.

298.     The existing power of arrest does not apply to offences under section 24(1)(d) (failure to comply with a requirement to report to a medical officer of health or be examined by such an officer) and this exception is retained.

299.     Subsections (4) and (5) allow an immigration officer to arrest without warrant someone whom he has reasonable grounds for suspecting has committed or attempted to commit certain other offences contained in Part III of the 1971 Act. The offences in question include: harbouring an illegal entrant, or an overstayer or someone who fails to observe a condition of their leave and obstructing an immigration officer in the execution of his duty. Subsection (6) limits the power of arrest for obstructing an immigration officer to cases where the option of serving a summons appears impracticable or inappropriate and the immigration officer has reasonable grounds for believing that arrest is necessary to prevent the suspect either causing physical injury to himself or another person or suffering physical injury or causing loss of or damage to property.

Clauses 105, 113, 114 and 116 : search and arrest by warrant, search warrant safeguards and execution of warrants and detention of persons liable to removal

300.     Clause 105 inserts a new section 28B into the 1971 Act which will enable a justice of the peace who is satisfied that there are reasonable grounds for suspecting a person who is liable to be arrested for a relevant offence is to be found on any premises to grant a warrant authorising any constable or immigration officer to enter, by force if necessary, those premises for the purposes of searching for and arresting the suspect. The relevant offences include those of illegal entry; overstaying; failing to observe a condition of leave to enter or remain; obtaining leave to enter or remain by means which include deception; and harbouring an illegal entrant, overstayer or person who has failed to observe a condition of their leave. In Scotland, warrants for this purpose will be granted by either a sheriff or a justice of the peace who has jurisdiction in a place where the premises are situated (subsections (3) and (4) of the new section 28B).

301.     Clause 113 sets out the requirements to be satisfied when an immigration officer applies for a search warrant. These are very similar to those which apply to the police under PACE. They include a requirement to state the ground of the application, the premises to be searched and, as far as possible, the persons or articles to be sought. An application for a warrant must be supported by information in writing and the officer making the application must answer on oath any questions that the person considering the application asks him. A warrant is limited to authorising entry on one occasion only.

302.     Clause 114 sets certain conditions which have to be complied with when executing warrants which again reflect conditions which apply to the police under PACE. For example, an entry and search must be within one month of the date of issue of the warrant and at a reasonable hour (unless it appears to the officer executing it that the purpose of the search might be frustrated if the latter condition is observed). If the occupier of the premises is present at the time, the immigration officer must identify himself to the occupier, produce identification showing he is an immigration officer, show the occupier the warrant and supply him with a copy of it. If the occupier is not present, but someone else who appears to be in charge of the premises is there, the same requirements apply in respect of that person. If it appears that nobody present is in charge of the premises, a copy of the warrant must be left in a prominent place on the premises.

303.     A search under a warrant may only be a search to the extent required for the purpose for which the warrant was issued. An officer executing a warrant must endorse it stating whether the persons or articles sought were found and whether any articles other than the articles which were sought were seized.

304.     Subsection (2) of clause 116 amends Schedule 2 to the 1971 Act to provide for the issuing to immigration officers, as well as constables, of warrants to enter premises in order to search for and arrest someone who is liable to detention.

305.     Subsection (1) of clause 116 does not deal with the matter of warrants. It amends paragraph 16(2) of Schedule 2 to the 1971 Act to allow immigration officers to detain someone on reasonable suspicion that directions may be given for the removal of that person from the United Kingdom.

Clause 106 : Search and arrest without warrant

306.     This clause adds a new section, 28C, to the 1971 Act which will allow an immigration officer to enter and search any premises without a warrant for the purpose of arresting a person for an offence under section 25(1). (Police officers already have a corresponding power by virtue of the provisions of PACE).

307.     Subsection (2) restricts the exercise of this power to the extent that it is reasonably required for that purpose and to cases where the officer has reasonable grounds for believing that the person whom he is seeking is on the premises. Before exercising this power of entry, the immigration officer must produce identification showing that he is an immigration officer. He must do this whether or not he is asked to (subsection (4)).

Clause 107 : Entry and search of premises

308.     This clause sets out the general grounds and conditions on which a justice of the peace may issue a warrant authorising an immigration officer to enter and search premises for evidence.

Clause 108 : Entry and search of premises following arrest

309.     This clause inserts a new section 28E into the 1971 Act. It provides that where someone has been arrested for an offence under Part III of the 1971 Act and that arrest was made somewhere other than at a police station, an immigration officer may enter and search the premises in which the person was when arrested - or any premises in which he was immediately before he was arrested - for evidence relating to the offence for which the arrest was made. This power of entry and search may only be exercised if the immigration officer has reasonable grounds for believing that there is relevant evidence on the premises and only to the extent that it is reasonably required for the purposes of discovering such evidence (subsection (3)).

310.     Subsection (5) allows an officer searching premises under this section to seize and retain anything he finds which he has reasonable grounds for believing is relevant evidence. However, he may not seize such items where there are reasonable grounds for believing that they are subject to legal privilege (subsection (6)).

311.     The clause also amends Schedule 2 to the 1971 Act by adding a new paragraph which provides a corresponding power of entry and search where someone is arrested under that Schedule or is detained under that Schedule by an immigration officer having been arrested by a constable. Thus, an immigration officer will have the power, with the written consent of a senior immigration officer (except where obtaining such consent would impede the effectiveness of the search), to enter any premises occupied or controlled by the arrested person or in which that person was when he was arrested or immediately before he was arrested in order to search for "relevant documents". He may seize and retain any documents which he has reasonable grounds for believing are such documents, subject again to his not being able to do this where there are reasonable grounds for believing the documents in question are items subject to legal privilege. ("Relevant documents" for the purposes of this paragraph are any documents which might establish the identity, nationality or citizenship of the arrested person or indicate the place from which he has travelled to the United Kingdom or to which he is proposing to go.) Any documents seized may not be retained for longer than is necessary in view of the purpose for which the person was arrested.