Clause 109 : Entry and search of premises following an arrest under section 25(1) of the 1971 Act

312.     This clause gives an immigration officer the power, with the written consent of a senior immigration officer (except where obtaining such consent would impede the effectiveness of the investigation), to enter and search any premises occupied or controlled by a person arrested for the offence in section 25(1) of the 1971 Act. As with other similar powers, this power may be exercised only if the officer has reasonable grounds for suspecting that there is relevant evidence on the premises and only to the extent that it is reasonably required for the purpose of discovering such evidence.

313.     The officer who authorises a search, or who is informed of one carried out without prior written authority, must make a written record of the grounds for the search and the nature of the evidence that was sought. An immigration officer searching premises may seize and retain anything he finds which he has reasonable grounds for suspecting is evidence which relates to the offence except items which are subject to legal privilege.

Clause 110 : Searching arrested persons

314.     This clause adds a new section 28G to Part III of the 1971 Act and a new paragraph 25B to Schedule 2 to that Act. Where someone has been arrested, other than at a police station, for an offence under Part III or has been arrested under Schedule 2 of the 1971 Act, an immigration officer will be allowed to search them if the immigration officer has reasonable grounds for believing that the arrested person may present a danger to himself or others. In addition, the arrested person may be searched for anything which might be used to assist his escape from lawful custody or anything which might be evidence relating to the offence under Part III or, in the case of Schedule 2, which might establish his identity, nationality or citizenship or indicate the place from which he has travelled to the United Kingdom or to which he is proposing to go. The power may be used only if the officer has reasonable grounds for believing that the arrested person may have these things concealed on him and only to the extent that it is reasonably required for the purpose of discovering that thing. Items which may be searched for under these powers may be seized and retained apart from items subject to legal privilege. Items which might be used to inflict injury or assist in an escape which were seized under Schedule 2 powers must be returned once the person is either no longer in custody or in the custody of a court but released on bail.

Clause 111 : Searching persons in police custody

315.     This clause will allow an immigration officer to search somebody who has been arrested for an offence under either Part III or Schedule 2 of the 1971 Act and is in custody at a police station (or, additionally, in the case of Part III, in police detention at a place other than a police station). The arrested person may be searched at any time to see whether he has with him anything which he might use to cause physical injury to himself or others, to damage property, to interfere with evidence or to assist his escape. He may also be searched under Part III for anything the officer has reasonable grounds for believing is evidence relating to the offence or (in the case of Schedule 2) a document which might establish his identity, nationality or citizenship or indicate the place from which he has travelled to the United Kingdom or to which he is proposing to go.

316.     This power of search may be exercised only to the extent considered necessary for the purpose of discovering such items, must be carried out by a person of the same sex as the person being searched and does not permit an "intimate search" (as defined by section 65 PACE). If any items of the kind described are found they may be seized. The person from whom something is seized must be told why it is being taken unless he is violent, or appears likely to become violent, or is incapable of understanding what is said to him. Anything that is seized under these powers may be retained either by the police or by an immigration officer (depending on the nature of the item). However, an immigration officer may not retain anything seized under Schedule 2 powers for longer than is necessary or when the person from whom it was seized is either no longer in custody or has been released on bail.

Clause 112 : Access and copying

317.     This clause lays down certain conditions relating to the handling of material which has been seized by an immigration officer under the proposed new powers. The occupier of the premises on which the material was seized - or the person who had custody or control of material immediately before it was seized - must be given a record of what was seized within a reasonable time if they ask for this to be done. The clause goes on to provide that the person who had custody or control of seized material immediately before it was seized or someone acting on their behalf must also be given access (under supervision) to the seized material and, if they so request, a photograph or copy of the material unless there are reasonable grounds for believing that to do so would prejudice any investigation being conducted under the 1971 Act or any criminal proceedings or the exercise of any functions in connection which the material was seized.

Clause 117 : Use of reasonable force

318.     This clause confers on immigration officers the power, if necessary, to use reasonable force in the exercise of the powers under the 1971 Act or the provisions of this Bill.

Part VIII : Detention Centres and Detained Persons

319.     This Part of the Bill is concerned with placing on a statutory footing the operation and management of immigration detention centres which are used to hold solely those detained under the provisions of immigration legislation. In particular, it sets out provisions concerning the powers and responsibilities of detainee custody officers.

Clause 119 : Management of detention centres

320.     This clause requires the appointment of a detention centre manager at every detention centre. In the case of contracted-out detention centres, the appointed person must be a detainee custody officer whose appointment is approved by the Secretary of State. The clause makes provision for the functions of detention centre managers

321.     It also requires that detention centre managers who are private contractors must not deal with disciplinary matters, nor may they authorise segregation or restraint of detainees other than in an emergency. These powers are very similar to those given to Directors of private prisons.

Clause 120 : Contracting out of certain detention centres

322.     This clause allows the Secretary of State to contract out the provision or running of detention centres or parts of detention centres. It also provides for the Secretary of State to appoint a contract monitor for each contracted-out centre, who will be a Crown servant, and sets out the key functions of the monitor and requires the contractor to assist the monitor in the exercise of these functions.

Clause 121 : Contracted out functions at directly managed detention centres

323.     This clause allows the Secretary of State to enter into a contract for the fulfillment of specific functions at a detention centre which is being directly managed by the Home Office to be performed by the contractor. For example, it will allow medical facilities, catering or sanitation services to be contracted out to the private sector while the operation and management of the centre would remain the responsibility of the Secretary of State. Equally, it will allow detainee custody officers, or prisoner custody officers, to be provided by another person, while management of the centre would remain a matter for the Secretary of State.

Clause 122 : Intervention by the Secretary of State

324.     This clause sets out the circumstances in which the Secretary of State can intervene in the operation and management of a detention centre, by the appointment of a Crown servant to be known as a "Controller". The powers of the Controller are set out. It also provides for termination of his appointment by the Secretary of State.

Clause 123 : Visiting Committees and inspections

325.     This clause provides for the appointment of Visiting Committees for detention centres and makes provision for the functions of those Committees. Every member of a Visiting Committee for a detention centre is entitled to enter the centre at any time and have free access to any part of it and to every person detained there. It also provides for the inspection of detention centres throughout the United Kingdom by HM Chief Inspector of Prisons.

Clause 124 : Detention centre rules

326.     This clause provides that the Secretary of State must make rules for the regulation and management of detention centres. The rules may extend to certain other facilities where detained persons may be held for short periods prior to their transfer to detention centres.

Clause 125 : Detainee custody officers

327.     This clause sets out arrangements for the appointment of detainee custody officers. It provides for the Secretary of State to issue certificates of authorisation without which they will not be allowed to perform custodial or escort functions. It also allows the Secretary of State to make arrangements for prison officers or prisoner custody officers to assume the role of detainee custody officers where required.

Clause 126 : Custodial functions and discipline etc. at detention centres

328.     This clause establishes that only detainee custody officers or, in certain circumstances, prison officers or prisoner custody officers, may discharge custodial functions at detention centres.

Clause 127: Arrangements for the provision of escorts and custody

329.     This clause allows the Secretary of State to make arrangements for the escorting of detained persons by contract or otherwise.

Clause 128 : Wrongful disclosure of information

330.     This clause creates an offence of disclosure, by certain persons employed at detention centres or in accordance with escort arrangements, of information relating to detained persons in any case which was required in the course of employment where such disclosure is outside the course of duty and has not been authorised by the Secretary of State.

Clause 129 : Power of constable to act outside his jurisdiction

331.     This clause provides powers for constables who are engaged in undertaking escorts of detainees to conduct such escorts outside their jurisdiction.

Schedule 9: Detainee custody officers

332.     This Schedule makes further provision relating to detainee custody officers. It includes offences relating to the obtaining of certificates of authorisation by false pretences, assaulting a detainee custody officer and obstructing such an officer. Paragraph 2 details the powers and duties of detainee custody officers when exercising custodial functions. Paragraph 3 allows any detainee custody officer to perform functions of a custodial nature at a short-term holding facility. The Schedule also provides that detainee custody officers should be identifiable when escorting detained persons and provides for the suspension and revocation of certificates of authorisation.

Schedule 10 : Discipline etc at detention centres

333.     Paragraph 1 allows detention centre rules to make provision for the measurement and photographing of detained persons. Paragraph 2 provides powers to require detained persons to be tested for drugs and alcohol. Paragraph 3 provides powers to require detained persons to be medically examined where there are reasonable grounds for believing that they are suffering from diseases to be specified by order. It also creates an offence of failing without reasonable excuse to submit to such a medical examination. The Schedule also creates offences of helping a detainee to escape or attempt to escape from a detention centre and of importing into detention centres, contrary to detention centre rules, any alcohol or other thing and provides for the posting of penalty notices at detention centres.

Schedule 11 : Escort arrangements

334.     Paragraph 1 provides for the appointment of a Crown servant as an escort monitor and sets out his various duties. Paragraph 2 details the powers and duties of detainee custody officers when escorting detained persons. Paragraph 3 makes provision in relation to detained persons who breach disciplinary provisions of the detention centre rules while under escort.

Part IX : Registrar's certificates : procedure

335.     Part IX of the Bill makes procedural changes designed to tackle abuse of the immigration system by those who are prepared to enter into marriage for the purpose of evading immigration control. There is evidence to show that a large number of sham marriages are being contracted in the United Kingdom every year.

336.     Part IX is to be read with clause 15 which places a duty on superintendent registrars to notify immigration authorities of suspected cases of sham marriages. Part IX amends the Marriage Act 1949 which applies to England and Wales to ensure that both parties attend to give notice of marriage thus giving the superintendent registrar the opportunity to meet both parties and obtain suitable documentation from them as to their name, age, marital status and nationality. The provisions also allow only one procedure for giving notice by reducing the existing 21 day waiting period to a 15 day notice period (which can be further reduced on the authority of the Registrar General) and abolishing the existing licence procedure by which parties can currently give one day's notice of their intention to marry.

337.     There is no evidence to suggest that religious marriages after ecclesiastic preliminaries are abused for immigration advantage and accordingly these proposals do not extend to the procedures for marriages celebrated in the Church of England and Church in Wales. However, they do apply to all other religious marriages solemnised after civil preliminaries.

Clause 130 : Abolition of certificate by licence

338.     At present in England and Wales notice by civil preliminaries may be given either by certificate (which requires a 21 day waiting period) or by licence (where there is a one day waiting period). For England and Wales this clause provides for the existing procedures to be replaced by a single procedure with a 15 day waiting period, with a discretion vested in the Registrar General to reduce in exceptional circumstances.

339.     Subsections (1) to (4) remove references in the Marriage Act 1949 to marriages "with licence" and remove references to the notification period of 21 days and substitute 15 days. Subsection (5) amends the Marriage Act 1949 to empower the Registrar General to reduce the 15 day notice period in exceptional circumstances, eg unforeseen work contracts or military service in a foreign country, or serious illness of a close relative. The Registrar General is given power to make procedural regulations and to delegate his authority to a superintendent registrar in prescribed circumstances. Provision is made for fees to be prescribed.

Clause 131: Notice of marriage

340.     At present in England and Wales, for a certificate without licence where both parties to the marriage reside in the same registration district, only one notice of marriage is required. Where they reside in different registration districts, notice must be given in each district although there are no restrictions as to which party should give that notice. This clause amends the Marriage Act 1949 so that each party is required to personally appear before the superintendent registrar to give notice of marriage in the registration district where they reside. It also adds to the matters they have to state a requirement to state their nationality. The requirements state nationality also applies to Northern Ireland.

341.     For marriages in England and Wales, subsection (1) results in a duty on both partners to give notice; subsection (2) results in a duty to give details of nationality; and subsection (3) means that marriages may only be solemnised on production of two superintendent registrar's certificates, ie one from each party.

Clause 132 : Power to require evidence

342.     At present there is no obligation on parties wishing to be married to produce any documentary evidence to the superintendent registrar. This clause empowers a superintendent registrar to request specified evidence in order to establish the identity and nationality of the person giving notice, and their marital status. A registrar may also request specified evidence relating to the other party to the proposed marriage in exceptional circumstances, for example where the evidence seen leads the registrar to suspect that the information given in respect of that party may be inaccurate. Such evidence may be requested at any time after notice of marriage has been given but only up until the superintendent registrar's certificates for the marriage have been issued.

Clause 133 : Refusal to issue certificate

343.     At present a superintendent registrar has no authority to refuse to solemnise a marriage ceremony unless a lawful impediment is shown to him. This clause provides a superintendent registrar with a statutory power to refuse to issue his authority for a marriage where he is not satisfied that one or both of the couple are legally free to contract the marriage. It also provides for an appeal procedure to the Registrar General against the superintendent registrar's refusal to issue his/her authority, and for persons making frivolous representations against a marriage to be liable for any costs incurred.

Schedule 12 : Consequential amendments

344.     Schedule 12, paragraphs 1-23 amend the Marriage Act 1949 in England and Wales to remove reference to marriage by "licence", replace references to "a certificate" with "certificates", and replace references to "either party" to "each party" to reflect the fact that there is to be a standardised system for giving notice of marriage with both parties being required to give notice and a registrar solemnising marriage needing to see two certificates.

345.     Paragraph 10 substitutes the existing section 33 of the Marriage Act 1949 and sets out provision dealing with the validity of certificates and notices. It allows for the fact that the parties may not give notice of marriage on the same day and provides that, when calculating whether a certificate is valid, the period of validity is to run from the date on which the first notice is given.

346.     Paragraph 23 amends section 75 of the Marriage Act 1949 so as to remove reference to the licence procedure and brings the offence committed by the superintendent registrar in line with the new 15 day waiting period.

347.     Paragraphs 25-28 make consequential amendment to the Marriage (Registrar General's Licence) Act 1970; and paragraph 40 makes a consequential amendment to the Marriage Act 1983.

Part X : Miscellaneous and Supplemental

348.     The final Part of the Bill makes provision applicable to the Bill as a whole.

FINANCIAL EFFECTS OF THE BILL

349.     Taken as a whole the Bill is intended to reduce the costs of the immigration and asylum system. It is expected therefore that this Bill will produce savings, in particular on the support costs for asylum seekers.

350.     The costs and savings described below depend on a range of assumptions many of which cannot easily be quantified. For these reasons the figures given are estimates only. All costs are full year costs and are given at current prices.

351.     With the exception of the following proposals, the measures in the Bill will be cost neutral or have a minimal impact on public expenditure.

Part I : Immigration : general

Charging for applications

352.     The financial effects of charging for applications for extensions of stay or duplicate endorsements in new passports will depend on the number of applications made within the chargeable categories, but the levying of fees could reduce public expenditure by £15 million or more annually.

Part II : Carriers' Liability

Civil penalty for the transportation of clandestine immigrants

353.     The operation of the new civil penalty regime will be met from existing resources. On the basis of 8,000 clandestines detected in 1998, the penalties raised could amount to a maximum of about £16 million a year. The actual amount raised is likely to be substantially lower as a result of the deterrent effect of the penalty and the safeguards which will mean that a penalty is not owed in all cases.

Part III : Bail

354.     It is estimated that the maximum cost of providing automatic bail hearings for immigration detainees will be around £3 million. Some initial training for magistrates involved in this work is also likely to be needed.

Part IV : Appeals

Comprehensive right of appeal

355.     It is anticipated that the new system of immigration and asylum appeals will yield savings by compressing issues presently spread over a number of appeal rights into a single appeal hearing. Other procedural changes designed to enable more cases, particularly at Tribunal level, to be dealt with on the papers and to discourage meritless appeals should also produce savings. These changes should also lead to savings in support costs, although these cannot be quantified at this stage. On the other hand, there may be additional appeals arising from claims made under the European Convention on Human Rights. Overall, the changes could produce savings of up to £3.8 million a year compared with the current system.

Visitor appeals

356.     Visitors who are refused a visa will be expected to pay for the cost of their appeals. But there will be an increase in public expenditure because successful appellants will be entitled to claim their costs. It is estimated that the net additional costs will be of the order of £0.4 million.

Immigration Appellate Authorities

357.     Removal of lay members from the Immigration Appeal Tribunal will result in a saving of approximately £350,000.

Part V : Immigration advisers and immigration service providers

358.     The scheme will be self-financing and advisers will be required to pay a fee for registration. A Non-Departmental Public Body will be created to regulate immigration advisers, headed by a Commissioner, a Deputy and an administrative team. The cost of the NDPB, including investigating complaints, and an appeals mechanism will be met from fee income. It is not expected that the scheme will lead to any additional public expenditure.

Part VI : Support for asylum seekers

359.     The costs of support for adults and families will be funded from a new asylum seeker support budget managed by the Home Office. On the basis that the new support scheme will be a disincentive to economic migrants who do not have a well founded fear of persecution, £350 million for 1999/2000, £300 million for 2000/2001 and £250 million for 2001/2002 was allocated to this in the Comprehensive Spending Review. This was based on estimated costs; it compared with spending of about £400 million a year when the Government announced its immigration and asylum strategy in July 1998, which would have increased to £800 million by 2002 if remedial action had not been taken.

360.     Actual spend will depend on a number of factors such as the number of asylum claims and the speed with which they can be handled. These cost estimates may be revised in due course.

361.     There will also be costs administering the new support scheme and providing the associated right of appeal. These will be quantified as planning proceeds.

Part VII : Power to Arrest and Search

362. Immigration Officers will need training in the use of the new powers proposed in these provisions. The cost of additional training equipment and external advice is estimated to be about £200,000 for each of the first five years.

General

EFFECTS OF THE BILL ON PUBLIC SERVICE MANPOWER

364.     With the exception of the following proposals, the measures in the Bill will have no public service manpower implications.

Part I : Immigration : general

Charging for applications

365.     Charging for extensions of stay or certain passport endorsements will require an estimated 13 additional posts.

Part III : Bail

366.     The provision for automatic bail hearings will require a maximum of a further 10 administrative staff in the Home Office.

Part V : Immigration advisers and immigration service providers

367.     A Non-Departmental Public Body will be created to regulate immigration advisers, headed by a Commissioner, a deputy and an administrative team of about 34 staff. A separate Non-Departmental Public Body will be set up as a Tribunal with 9 part-time staff.

Part VI : Support for asylum seekers

368.     The Government envisages that the new support arrangements will be administered by an asylum seekers support agency which will be part of the Home Office. The agency will contract out as much work as it is sensible and prudent to do, while ensuring that responsibility for control of the support system rests within the agency. It is currently estimated that the agency will require between 100-200 additional staff.

Part VII : Power to Arrest and Search etc

369. The provisions are expected to reduce marginally the calls on police resources.

SUMMARY OF REGULATORY IMPACT ASSESSMENTS

370.     Regulatory Impact Assessments have been prepared and are separately available on:-

i)     regulation of immigration advisers. The scheme will be self-financing, with estimated costs of about £1.5 million per year.

ii)     extension of the Immigration (Carriers' Liability) Act 1987 to buses and coaches. It is likely that additional training of drivers and tour leaders will be necessary to improve documentation checks. Such training is provided free of charge by the Immigration Service and so the cost to operators will be the staff time needed for training sessions normally of about three hours. It is not possible to estimate such costs at present.

iii)     civil penalty for transporting clandestine entrants. The costs for business will depend upon the extent to which drivers and owners improve the security of loads and ensure vigilance in checking for clandestine illegal immigrants. The cost of such steps cannot at present be estimated, but will be considered as part of the further work with the industry on the detailed operation of the new regime.

371.     Copies of the regulatory impact assessments are available from Liz McCarty, Strategy & Legislation Team, Immigration and Nationality Directorate, 6th Floor, Whitgift Centre, Block A, 15 Wellesley Road, Croydon CR9 2LY.