House of Commons - Explanatory Note

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Session 2001- 02
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Nationality, Immigration And Asylum Bill

These notes refer to the Nationality, Immigration and Asylum Bill as introduced in the House of Commons on 12th April 2002 [Bill 119]

NATIONALITY, IMMIGRATION AND ASYLUM BILL

EXPLANATORY NOTES

INTRODUCTION

1.     These explanatory notes relate to the Nationality, Immigration and Asylum Bill, which was introduced in the House of Commons on 12 April 2002. They have been prepared by the Home Office in order to assist the reader in understanding the Bill. They do not form part of the Bill.

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

OVERVIEW

3.     The Bill is in eight parts:

Part 1 contains provisions which amend British nationality legislation, primarily the British Nationality Act 1981 ("BNA 1981"). It includes provision for citizenship ceremonies and a pledge, and imposes a requirement for naturalisation that the applicant has sufficient knowledge about life in the United Kingdom;

Part 2 contains provisions for the support of asylum-seekers in accommodation centres, built or adapted to accommodate and provide services for a number of asylum-seekers and their dependants on one site;

Part 3 concerns support arrangements for asylum-seekers and other assistance;

Part 4 contains provisions relating to detention, temporary release and removal;

[Bill 119—EN]     53/1

Part 5 contains provisions which aim to reform immigration and asylum appeals;

Part 6 contains provisions relating to immigration procedures, including charges for work permits and the provision of information;

Part 7 introduces new offences and a power of entry to business premises; and

Part 8 contains general provisions.

SUMMARY

Part 1 - Nationality

4.     The provisions:

Introduce citizenship ceremonies and an updated oath of allegiance, renamed a citizenship oath and pledge, and impose additional requirements on those wishing to acquire citizenship;

Require those who apply for naturalisation as a British citizen to have sufficient knowledge about life in the United Kingdom; allow for regulations to be made which would specify how this requirement - and the existing requirement in relation to knowledge of English, Welsh or Scottish Gaelic - is to be met; extend the language requirement to those applying for naturalisation as the spouse of a British citizen or a British overseas territories citizen;

Remove existing provisions which allow discrimination on the grounds of nationality or ethnic or national origin in the exercise of nationality functions;

Remove the present distinctions in nationality law between legitimate and illegitimate children;

Repeal the present statutory exemptions from the duty to give reasons for nationality decisions and provisions which restrict the court's ability to review certain decisions. Other nationality provisions which are now spent are also repealed;

Remove the minimum age requirement for applications for registration as a British citizen or a British overseas territories citizen by stateless children born in the United Kingdom and the British overseas territories;

Amend the grounds for deprivation of citizenship, and replace the existing procedure for reviewing the deprivation decision with a new right of appeal against deprivation; and

Enable regulation of the procedure for applying for a certificate of entitlement to the right of abode in the United Kingdom.

Part 2 - Accommodation Centres

5.     The Bill makes provision for the introduction of accommodation centres, built or adapted to accommodate and provide services for a number of asylum-seekers and their dependants on one site. The centres will be introduced on a trial basis. A proportion of new asylum-seekers who request, and are eligible for, support will be offered places in accommodation centres. Those who refuse the offer of a place, voluntarily cease to reside in a centre or breach their conditions of residence will not qualify for other forms of support. The centres may provide for a number of facilities and services, including:

Food and other essential items;

Money;

Assistance with transport and expenses to pursue purposeful activities;

Healthcare; and

Education and training.

Part 3 - Other Support and Assistance

6.     The new asylum system will be based on a network of induction, accommodation and reporting centres as well as existing National Asylum Support Service ("NASS") accommodation. The Bill enables reporting and residence requirements to be imposed on all asylum-seekers and allows for the discontinuation of support to asylum-seekers who fail without reasonable cause to report as required. The Bill also includes a number of provisions that alter the way in which those in the asylum system are supported both during and after the determination of their claim and includes a provision for the Secretary of State to make payments to local authorities to reimburse them for the support they have provided for Unaccompanied Asylum Seeking Children ("UASCs"). This does not affect the amount paid to local authorities.

7.     This Part of the Bill also contains funding provisions for the voluntary assisted return programme ("VARP") and international projects. The VARP is a means by which assistance is provided to asylum-seekers who wish to return home. The scheme is administered for the Home Office by the International Organisation for Migration in partnership with Refugee Action. Asylum-seekers are eligible to take part in the programme at any stage of their claim, but not when they are to be removed or deported or have been granted indefinite leave to enter or remain. Examples of international projects that may be funded under the power include resettlement and the "interception assisted return programmes". A United Kingdom resettlement programme would allow a scheme to be established whereby those who cannot be protected in their region of origin may be entitled to have their claim for protection considered before they reach the United Kingdom, and enable the cost of their travel and settlement here to be met. Any resettlement programme would operate in addition to the current asylum determination procedures. This provision also enables the Secretary of State to participate in research projects, and fund organisations and bodies that are involved in such projects.

Part 4 - Detention and Removal

8.     The Bill contains a number of measures designed to simplify the process of removing those who have no right to stay in the United Kingdom. These include:

Giving detainee custody officers acting as escorts a limited power to enter private premises to search persons being taken into detention;

Giving the Secretary of State power to detain where he has power to give or refuse leave to enter, or where he has power to set removal directions, and giving the Secretary of State an equivalent power to grant bail to that of immigration officers;

The power to remove children born in the United Kingdom, where their parents entered the United Kingdom unlawfully; and

The power to remove those who attempt to obtain permission to stay by using deception.

9.     This Part also contains a provision allowing a residence restriction to be imposed on an asylum-seeker requiring him to reside for up to 14 days at a specified location at or near a place where an induction programme is to be made available to him.

Part 5 - Appeals

10.     The Immigration and Asylum Act 1999 ("the 1999 Act") introduced a one-stop appeal requiring an adjudicator considering an immigration appeal to deal with any other appealable matters raised by the applicant at the same time. The provisions in the Bill aim to re-structure the appeals system and will:

Define the specific immigration decisions which attract a right of appeal;

Enable the certification of applications, preventing a further right of appeal where a person could have made the application earlier or raised it at an earlier appeal but did not do so; and

Enable rules to provide a statutory closure date to prevent multiple adjournments of cases at the adjudicator stage.?

Part 6 - Immigration Procedure

11.     The Bill contains measures that allow a fee to be set for work permit applications, and bring work permit advice within the remit of the Office of the Immigration Services Commissioner.

12.     The Bill also contains provisions to introduce a scheme to require physical data, such as iris or facial images, to accompany applications to enter or remain in the United Kingdom. The Secretary of State may also operate a scheme to allow people voluntarily to provide such data to assist their entry into the United Kingdom. There is also provision which allows the introduction of an Authority to Carry ("ATC") scheme. This provides for regulations to require carriers to check the details of passengers against a Home Office database to confirm that they pose no known immigration or security risk. The Secretary of State will also be able to require an employer, financial institution, or local authority to supply him with information, and the Inland Revenue and port medical inspectors will be able to supply information to the Secretary of State for specified purposes.

Part 7 - Offences

Provisions have been included that create new criminal offences: assisting unlawful immigration, trafficking of people into, out of or within the UK for the purpose of prostitution; forgery and similar activities relating to the Application Registration Card; offences relating to the employment of persons who are subject to immigration control; an offence of failure to comply with a notice requesting information in respect of suspected immigration offending; and an offence relating to the possession of an immigration stamp, whether genuine or a replica, without a reasonable excuse. This Part also contains provisions which give police and immigration officers the power to enter business premises to search for and arrest immigration offenders, and to inspect and seize personnel records following the arrest of an immigration offender on those premises.

COMMENTARY ON CLAUSES

PART 1: NATIONALITY

Clause 1: Naturalisation: knowledge of language and society

13.     Clause 1 amends the provisions in the BNA 1981 which set out the requirements that an applicant for naturalisation as a British citizen must satisfy. There is already a requirement, in paragraph 1(1)(c) of Schedule 1 to the BNA 1981, for applicants to have a sufficient knowledge of English, Welsh or Scottish Gaelic.

14.     Subsection (1) adds to Schedule 1 of the BNA 1981 a requirement for the applicant to demonstrate sufficient knowledge about life in the United Kingdom.

15.     Subsection (2) enables provision to be made by regulations for determining whether a person has a sufficient knowledge of a language and whether a person has sufficient knowledge about life in the United Kingdom for the purpose of an application for naturalisation.

16.     By subsection (3) the regulations may make provision about how those requirements of sufficient knowledge of language and about life in the United Kingdom are met (for example, by reference to a specified qualification or attendance on a specified course).

Clause 2: Naturalisation: spouse of citizen

17.     Clause 2 extends the requirement to have sufficient knowledge of English, Welsh or Scottish Gaelic to those applying for naturalisation, on the basis of marriage to a British citizen or British overseas territories citizen. This clause also requires those applying for naturalisation on the basis of marriage to a British citizen to have sufficient knowledge about life in the United Kingdom.

Clause 3: Citizenship ceremony, oath and pledge

18.     Clause 3 introduces Schedule 1, which replaces the current provisions in the BNA 1981 about naturalisation and registration.

19.     Paragraph 1 of Schedule 1 replaces section 42 of the BNA 1981 with provision requiring persons, except minors, who are naturalised or registered as British citizens, to attend citizenship ceremonies and make a citizenship pledge as well as the existing oath. It also extends to applicants for British overseas territories citizenship the requirement to make a pledge. The Secretary of State is given discretion to disapply these requirements in particular cases.

20.     Paragraph 2 of Schedule 1 replaces Schedule 5 to the BNA 1981. It introduces new "citizenship oath and pledge" which is to be taken by applicants for registration or naturalisation as British citizens and British overseas territories citizens. The citizenship oath and pledge consists of the existing oath of allegiance with the addition of a pledge. The new pledge states that that the person respects the rights and freedoms of the United Kingdom, and will uphold its democratic values, observe its laws and fulfil the duties and obligations of citizenship. Those applicants becoming British citizens pledge loyalty to the United Kingdom whereas those becoming British overseas citizens pledge loyalty to the relevant overseas territory.

21.     Paragraph 4 of Schedule 1 amends the existing regulation-making power in subsection 41(1)(d) of the BNA 1981 to enable regulation of the timing of attendance at a citizenship ceremony and the taking of the citizenship oath and pledge, the content and conduct of the citizenship ceremony, the completion and grant of a certificate of registration or naturalisation, and certain other related matters.

22.     Paragraph 7 of Schedule 1 enables the Secretary of State to make regulations about the persons who shall be authorised to conduct citizenship ceremonies and to require local authorities in England, Wales and Scotland to provide facilities for the conduct of such ceremonies.

23.     Paragraph 8 allows the Secretary of State to reimburse local authorities for the cost of carrying out citizenship ceremonies.

Clause 4: Deprivation of citizenship

24.     Clause 4 makes new provision about the deprivation of British nationality or status. Subsection (1) replaces section 40 of the BNA 1981. The substituted section 40(1) extends liability to deprivation to the listed forms of citizenship status: all British citizens, British overseas territories citizens, British Overseas citizens, British Nationals (Overseas), British subjects and British protected persons.

25.      The substituted section 40(2) indicates that a person may be deprived of citizenship if he has done anything seriously prejudicial to the vital interests of the United Kingdom or a British overseas territory, or if the registration or naturalisation by virtue of which citizenship was acquired was obtained by means of fraud, false representation or by concealment of a material fact. The substituted section 40(3) provides that a person may not be deprived of citizenship on the first of these grounds if this would render him / her stateless. The substituted section 40(4) provides that before making a deprivation order the Secretary of State must give the person written notice specifying that a decision has been made to make the order and the reasons for it. The notice must also advise the person of his right to appeal.

26.     Subsection (2) inserts a new section 40A into the BNA 1981 and:

confers on any person in respect of whom a decision to withdraw citizenship has been made a right of appeal to an adjudicator (in the first instance). There is also provision for both parties to appeal to the Tribunal from the Adjudicator on a point of law. From the Tribunal there is a further appeal, again on a point of law to the Court of Appeal, or the Court of Session (if the Adjudicator's decision was in Scotland).

provides that where the decision to deprive was taken wholly or partly in reliance on information which the Secretary of State does not believe should be made public for one of the specified reasons, then the right to appeal to the Adjudicator does not apply. Rather the appeal in these circumstances will be to the Special Immigration Appeals Commission established under the Special Immigration Appeals Commission Act 1997 ("SIAC 1997").

Clause 5: Resumption of citizenship

27.     Clause 5 removes the words "if a woman" from sections 10 and 22 of the BNA 1981, thus allowing either a woman or a man who renounced their United Kingdom and Colonies citizenship before 1983 to qualify for registration on the basis of a connection with the United Kingdom through marriage.

Clause 6: Nationality decision: discrimination

28.     Clause 6 repeals the exemption from the general prohibition on discrimination in section 19B of the Race Relations Act 1976 ("the 1976 Act")(as amended by the Race Relations (Amendment) Act 2000), in so far as it applies to discrimination on the grounds of nationality, ethnic or national origins in the exercise of nationality functions. The "Nationality functions" are functions exercisable by virtue of the BNA 1981, the British Nationality (Falkland Islands) Act 1983, the British Nationality (Hong Kong) Act 1990, the Hong Kong (War Wives and Widows) Act 1996 and the British Nationality (Hong Kong) Act 1997.

29.     Subsection (2) removes "nationality functions" from the scope of the exemption in subsection 19D(1) of the 1976 Act.

30.     Subsection (3) inserts into section 19D of the 1976 Act new definitions of "immigration functions" and "Immigration Acts", consequent upon the removal from that section of references to nationality functions and statutes relating to nationality.

31.     Subsection (4) removes references to nationality functions from provisions in section 19E of the 1976 Act relating to the review by the Race Monitor of the use of the exemptions from discrimination, since this is made redundant by the other provisions in this clause.

Clause 7: Nationality decision: reasons and review

32.     Clause 7 repeals the provisions in section 44(2) of the BNA 1981 and corresponding provision in section 1 of the British Nationality (Hong Kong) Act 1990 which exempt the Secretary of State from having to give reasons for granting or refusing applications under the BNA 1981, where these decisions are at his discretion, and which restrict the ability of the courts to review such decisions.

33.     This clause also repeals section 44(3) of the BNA 1981 since this is made redundant by the other provisions in this clause.

Clause 8: Citizenship: Registration

34.     Clause 8 removes the minimum age restriction for applicants seeking to acquire British citizenship or British overseas territories citizenship by registration on the grounds that they were born stateless in either the United Kingdom or a British overseas territory.

Clause 9: Legitimacy of child

35.     Clause 9 removes from the nationality legislation the present distinctions between legitimate and illegitimate children and inserts a new definition of "father" into section 50 of the BNA 1981.

36.     Subsection (1) provides that, for the purposes of the BNA 1981, a child's mother is the woman who gives birth to the child. A child's "father" is (a) the husband at the time of the child's birth of the woman who gives birth to the child, (b) a person who falls to be treated as the child's father by virtue of section 28 of the Human Fertilisation and Embryology Act 1990 or (c) any person who satisfies prescribed requirements as to proof of paternity. The Secretary of State may set out in regulations how, in circumstances where proof is required, paternity must be proven.

37.     Subsection (2) amends section 3(6) of the BNA 1981 to allow registration as a British citizen of an illegitimate minor born outside the United Kingdom through a connection with his father as well as his mother.

38.     Subsection (3) makes similar provision as subsection (2) but in respect of registration as a British overseas territories citizen under section 17 of the BNA 1981.

39.     Subsection (4) repeals section 47 of the BNA 1981. This enables an illegitimate child of a British citizen father to be legitimated by the subsequent marriage between his mother and father. In view of the new provisions in this Bill which enable regulations to make provision as to proof of paternity, this measure is redundant so far as children born after commencement are concerned.

40.     Subsection (5) amends paragraph 1(1)(b) of Schedule 2 to the BNA 1981, which provides that an illegitimate child born in the United Kingdom after 1st January 1983 whose parents hold different British nationality statuses under the BNA 1981, can only acquire the citizenship of the mother. By this subsection of the Bill, the position of illegitimate children is brought into line with that of legitimate children, who can acquire citizenship through either parent.

Clause 10: Right of abode: certificate of entitlement

41.     Clause 10 enables regulations to be made in relation to the issue of a certificate of entitlement to the right of abode in the United Kingdom. The procedure is currently unregulated, except in regard to the level of fee and procedure for appealing against a refusal to issue such a certificate. A certificate of entitlement is defined as a certificate stating that a person has the right of abode in the United Kingdom. Section 2 of the Immigration 1971 Act ("the 1971 Act") sets out who has the right of abode. A person with the right of abode does not require leave to enter or remain in the United Kingdom, by virtue of section 3 of the 1971 Act.

42.     Regulations are to be made by statutory instrument, subject to the negative resolution procedure. The regulations may specify such matters as the person to whom the application must be made, the form of the application and the documents which are to accompany it. They may also make provision for certificates to be revoked in certain circumstances, for example, where obtained by the provision of false information, and for the certificate to cease to have effect after a specified time.

43.     Subsection (5) defines "certificate of entitlement", for the purposes of the 1971 Act by reference to the new provision.

44.     Subsection (6) enables regulations made under this clause to preserve the effect of any certificate issued in accordance with the existing procedures.

Clause 11: Unlawful presence in the United Kingdom

45.     Clause 11 makes provision for construing the expression "in the United Kingdom in breach of the immigration laws" in section 4 of, and Schedule 1 to, the BNA 1981. These provisions of the BNA 1981 relate to periods of residence in the United Kingdom relevant to entitlement to registration or naturalisation under those provisions. During periods of residence where a person needs leave to enter or remain in the United Kingdom but does not have such leave the person is treated as being in the United Kingdom in breach of the immigration laws.

Clause 12: Hong Kong

46.      Clause 12 re-enacts the substance of section 42(6) of the BNA 1981, which provided that applications for registration and naturalisation as a British dependent territories citizen by virtue of a connection with Hong Kong had to be made by 31st March 1996.

Clause 13: Repeal of spent provisions

47.     Clause 13 introduces Schedule 2, which repeals certain sections of the BNA 1981 which are now spent. Sub-paragraph (2) of paragraph 1 of Schedule 2 provides that the status of people who were registered under any of these sections is unaffected by the repeals.

PART 2: ACCOMMODATION CENTRES

Establishment

Clause 14: Establishment of centres

48.     This clause enables the Secretary of State to arrange for the provision of premises to be used as accommodation centres.

Use of centres

Clause 15: Support for destitute asylum-seeker

49.     Subsection (1) of clause 15 gives the Secretary of State power to provide, or to arrange for the provision, of accommodation through another party (for example a local authority or private sector contractor) in an accommodation centre to asylum-seekers and their dependants who are destitute or likely to become destitute within a period to be prescribed by regulations - this will allow the Secretary of State to start making arrangements in anticipation of actual destitution. "Asylum-seeker" is defined in clause 16, "dependant" in clause 18 and "destitution" in clause 17. Subsection (2) enables the Secretary of State to make regulations about the procedure to be followed in providing accommodation in an accommodation centre and subsection (3) gives examples of the particular provisions which may be included in the regulations.

Clause 16: Asylum-seeker: definition

50.     Clause 16 defines the term "asylum-seeker" as someone who is at least 18 years old and who has made a claim under the Refugee Convention or under article 3 ECHR which has been recorded by the Secretary of State but which has not yet been determined. Once a person is no longer an asylum-seeker he will no longer be eligible for accommodation in an accommodation centre and will be expected to leave the accommodation centre, the prescribed period of time allowing him to make arrangements to do so. However, a person whose household includes a dependant child under the age of 18 will continue to be treated as an asylum-seeker whilst he and the child remain in the United Kingdom and will continue to be eligible for accommodation in an accommodation centre.

Clause 17: Destitution: definition

51.     Clause 17 defines "destitution". This means a person, and his dependants if he has any, who is unable to obtain adequate accommodation, food and other essential items. In deciding whether accommodation is adequate, the Secretary of State must have regard to any prescribed matter but may not have regard to whether a person has an enforceable right to occupy accommodation, whether a person shares all or part of the accommodation, the location of the accommodation, whether it is temporary or permanent or any other prescribed matter.

52.     Subsection (5) enables the Secretary of State to make regulations specifying items which are or are not to be considered as essential items.

53.     Subsection (6) allows the Secretary of State to make regulations specifying when a person is not to be treated as destitute, to have regard to any income which a person or his dependant might reasonably be expected to have, or assets which are or might be available and to make provision for the valuation of these assets.

© Parliamentary copyright 2002
Prepared: 12 April 2002