Asylum and Immigration (Treatment of Claimants, etc.) Bill

House of Commons

Session 2003 - 04
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Other Bills before Parliament

Asylum and Immigration (Treatment of Claimants, etc.) Bill

Asylum and Immigration (Treatment of Claimants, etc.) Bill
1

A
Bill
To
Make provision about asylum and immigration.
Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—
Offences
1
Assisting unlawful immigration
(1)
At the end of section 25 of the Immigration Act 1971 (c. 77) (offence of assisting
unlawful immigration to member State) add—
“(7)
In this section—
5
(a)
a reference to a member State includes a reference to a State on
a list prescribed for the purposes of this section by order of the
Secretary of State (to be known as the “Section 25 List of
Schengen Acquis States”), and
(b)
a reference to a citizen of the European Union includes a
10
reference to a person who is a national of a State on that list.
(8)
An order under subsection (7)(a)—
(a)
may be made only if the Secretary of State thinks it necessary for
the purpose of complying with the United Kingdom’s
obligations under the Community Treaties,
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(b)
may include transitional, consequential or incidental provision,
(c)
shall be made by statutory instrument, and
(d)
shall be subject to annulment in pursuance of a resolution of
either House of Parliament.”
(2)
In section 25C(9)(a) of that Act (forfeiture of vehicle, ship or aircraft) for
20
“(within the meaning of section 25)” substitute “(for which purpose “member
State” and “immigration law” have the meanings given by section 25(2) and
(7))”.

Bill 5 53/3

Asylum and Immigration (Treatment of Claimants, etc.) Bill
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2
Entering United Kingdom without passport
(1)
A person commits an offence if when he is first interviewed by an immigration
officer after arrival in the United Kingdom he does not have with him an
immigration document which—
(a)
is in force, and
5
(b)
satisfactorily establishes his identity and nationality or citizenship.
(2)
If at a person’s first interview with an immigration officer after arrival in the
United Kingdom he claims to be travelling with a dependent child, he commits
an offence if he does not have with him an immigration document which—
(a)
is in force, and
10
(b)
satisfactorily establishes the child’s identity and nationality or
citizenship.
(3)
It is a defence for a person charged with an offence under subsection (1) to
prove—
(a)
that he is an EEA national, or
15
(b)
that he has a reasonable excuse for not being in possession of a
document of the kind specified in subsection (1).
(4)
It is a defence for a person charged with an offence under subsection (2) in
respect of a child to prove—
(a)
that the child is an EEA national, or
20
(b)
that the person has a reasonable excuse for not being in possession of a
document of the kind specified in subsection (2).
(5)
For the purposes of subsections (3) and (4)—
(a)
the fact that a document was deliberately destroyed is not a reasonable
excuse for not being in possession of it, unless it is shown that the
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destruction was—
(i)
for a reasonable cause, or
(ii)
beyond the control of the person charged with the offence, and
(b)
in paragraph (a)(i) “reasonable cause” does not include the purpose
of—
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(i)
delaying the handling or resolution of a claim or application or
the taking of a decision,
(ii)
increasing the chances of success of a claim or application, or
(iii)
complying with instructions or advice given by a person who
offers advice about, or facilitates, immigration into the United
35
Kingdom.
(6)
A person shall be presumed for the purposes of this section not to have a
document with him if he fails to produce it to an immigration officer on
request.
(7)
A person guilty of an offence under this section shall be liable—
40
(a)
on conviction on indictment, to imprisonment for a term not exceeding
two years, to a fine or to both, or
(b)
on summary conviction, to imprisonment for a term not exceeding six
months, to a fine not exceeding the statutory maximum or to both.
(8)
If a constable or immigration officer reasonably suspects that a person has
45
committed an offence under this section he may arrest the person without
warrant.

Asylum and Immigration (Treatment of Claimants, etc.) Bill
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(9)
An offence under this section shall be treated as—
(a)
a relevant offence for the purposes of sections 28B and 28D of the
Immigration Act 1971 (c. 77) (search, entry and arrest), and
(b)
an offence under Part III of that Act (criminal proceedings) for the
purposes of sections 28(4), 28E, 28G and 28H (search after arrest, &c.) of
5
that Act.
(10)
In this section—

“EEA national” means a national of a State which is a contracting party to
the Agreement on the European Economic Area signed at Oporto on
2nd May 1992 (as it has effect from time to time), and
10

“immigration document” means—
(a)
a passport, and
(b)
a document which relates to a national of a State other than the
United Kingdom and which is designed to serve the same
purpose as a passport.
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3
Immigration documents: forgery
(1)
Section 5 of the Forgery and Counterfeiting Act 1981 (c. 45) (offences relating
to various documents) shall be amended as follows.
(2)
After subsection (5)(f) (passports) insert—
“(fa)
immigration documents;”.
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(3)
After subsection (6) add—
“(7)
In subsection (5)(fa) “immigration document” means a card, adhesive
label or other instrument which—
(a)
is designed to be given, in the exercise of a function under the
Immigration Acts (within the meaning of section 22 of the
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Asylum and Immigration (Treatment of Claimants, etc.) Act
2004), to a person who has been granted leave to enter or remain
in the United Kingdom, and
(b)
carries information (whether or not wholly or partly
electronically) about the leave granted.”
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4
Trafficking people for exploitation
(1)
A person commits an offence if he arranges or facilitates the arrival in the
United Kingdom of an individual (the “passenger”) and—
(a)
he intends to exploit the passenger in the United Kingdom or
elsewhere, or
35
(b)
he believes that another person is likely to exploit the passenger in the
United Kingdom or elsewhere.
(2)
A person commits an offence if he arranges or facilitates travel within the
United Kingdom by an individual (the “passenger”) in respect of whom he
believes that an offence under subsection (1) may have been committed and—
40
(a)
he intends to exploit the passenger in the United Kingdom or
elsewhere, or
(b)
he believes that another person is likely to exploit the passenger in the
United Kingdom or elsewhere.

Asylum and Immigration (Treatment of Claimants, etc.) Bill
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(3)
A person commits an offence if he arranges or facilitates the departure from the
United Kingdom of an individual (the “passenger”) and—
(a)
he intends to exploit the passenger outside the United Kingdom, or
(b)
he believes that another person is likely to exploit the passenger outside
the United Kingdom.
5
(4)
For the purposes of this section a person is exploited if (and only if)—
(a)
he is the victim of behaviour that contravenes Article 4 of the Human
Rights Convention (slavery and forced labour),
(b)
he is encouraged, required or expected to do anything as a result of
which he or another person would commit an offence under the
10
Human Organ Transplants Act 1989 (c. 31) or the Human Organ
Transplants (Northern Ireland) Order 1989 (S.I. 1989/2408 (N.I. 21)), or
(c)
he is subjected to force, threats or deception designed to induce him—
(i)
to provide services of any kind,
(ii)
to provide another person with benefits of any kind, or
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(iii)
to enable another person to acquire benefits of any kind.
(5)
A person guilty of an offence under this section shall be liable—
(a)
on conviction on indictment, to imprisonment for a term not exceeding
14 years, to a fine or to both, or
(b)
on summary conviction, to imprisonment for a term not exceeding six
20
months, to a fine not exceeding the statutory maximum or to both.
5
Section 4: supplemental
(1)
Subsections (1) to (3) of section 4 apply to anything done—
(a)
in the United Kingdom,
(b)
outside the United Kingdom by an individual to whom subsection (2)
25
below applies, or
(c)
outside the United Kingdom by a body incorporated under the law of
a part of the United Kingdom.
(2)
This subsection applies to—
(a)
a British citizen,
30
(b)
a British overseas territories citizen,
(c)
a British National (Overseas),
(d)
a British Overseas citizen,
(e)
a person who is a British subject under the British Nationality Act 1981
(c. 61), and
35
(f)
a British protected person within the meaning of that Act.
(3)
In section 4(4)(a) “the Human Rights Convention” means the Convention for
the Protection of Human Rights and Fundamental Freedoms agreed by the
Council of Europe at Rome on 4th November 1950.
(4)
Sections 25C and 25D of the Immigration Act 1971 (c. 77) (forfeiture or
40
detention of vehicle, &c.) shall apply in relation to an offence under section 4
of this Act as they apply in relation to an offence under section 25 of that Act.
(5)
At the end of section 25C(9)(b), (10)(b) and (11) of that Act add “or section 4 of
the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004
(trafficking people for exploitation).”
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Asylum and Immigration (Treatment of Claimants, etc.) Bill
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(6)
After paragraph 2(n) of Schedule 4 to the Criminal Justice and Court Services
Act 2000 (c. 43) (offence against child) insert—
“(o)
an offence under section 4 of the Asylum and Immigration
(Treatment of Claimants, etc.) Act 2004 (trafficking people for
exploitation).”
5
(7)
At the end of paragraph 4 of Schedule 2 to the Proceeds of Crime Act 2002
(c. 29) (lifestyle offences: England and Wales: people trafficking) add—
     “(3)
An offence under section 4 of the Asylum and Immigration
(Treatment of Claimants, etc.) Act 2004 (exploitation).”
(8)
At the end of paragraph 4 of Schedule 5 to the Proceeds of Crime Act 2002
10
(lifestyle offences: Northern Ireland: people trafficking) add—
     “(3)
An offence under section 4 of the Asylum and Immigration
(Treatment of Claimants, etc.) Act 2004 (exploitation).”
(9)
After paragraph 2(l) of the Schedule to the Protection of Children and
Vulnerable Adults (Northern Ireland) Order 2003 (S.I. 2003/417 (N.I. 4))
15
(offence against child) insert—
“(m)
an offence under section 4 of the Asylum and Immigration
(Treatment of Claimants, etc.) Act 2004 (trafficking people for
exploitation).”
Treatment of claimants
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Claimant’s credibility
(1)
In determining whether to believe a statement made by or on behalf of a person
who makes an asylum claim or a human rights claim, a deciding authority shall
take account of any behaviour by the claimant that the deciding authority
thinks—
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(a)
is designed or likely to conceal information,
(b)
is designed or likely to mislead,
(c)
is designed or likely to obstruct or delay the handling or resolution of
the claim or the taking of a decision in relation to the claimant, or
(d)
otherwise damages the claimant’s credibility.
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(2)
Without prejudice to the generality of subsection (1) the following kinds of
behaviour shall be treated as designed or likely to conceal information or to
mislead—
(a)
failure without reasonable explanation to produce a passport on
request to an immigration officer or to the Secretary of State,
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(b)
the production of a document which is not a valid passport as if it were,
(c)
the destruction, alteration or disposal, in each case without reasonable
explanation, of a passport,
(d)
the destruction, alteration or disposal, in each case without reasonable
explanation, of a ticket or other document connected with travel, and
40
(e)
failure without reasonable explanation to answer a question asked by a
deciding authority.
(3)
Without prejudice to the generality of subsection (1) the fact that a person
failed to take advantage of a reasonable opportunity to make an asylum claim

Asylum and Immigration (Treatment of Claimants, etc.) Bill
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or human rights claim while in a safe country shall be treated as behaviour that
damages his credibility.
(4)
In this section—

“asylum claim” has the meaning given by section 113(1) of the
Nationality, Immigration and Asylum Act 2002 (c. 41) (subject to
5
subsection (6) below),

“deciding authority” means—
(a)
an immigration officer,
(b)
the Secretary of State,
(c)
the Asylum and Immigration Tribunal, or
10
(d)
the Special Immigration Appeals Commission,

“human rights claim” has the meaning given by section 113(1) of the
Nationality, Immigration and Asylum Act 2002 (subject to subsection
(6) below),

“passport” includes a document which relates to a national of a country
15
other than the United Kingdom and which is designed to serve the
same purpose as a passport, and

“safe country” means a country to which Part 2 of Schedule 3 applies.
(5)
A passport produced by or on behalf of a person is valid for the purposes of
subsection (2)(b) if it—
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(a)
relates to the person by whom or on whose behalf it is produced,
(b)
has not expired,
(c)
has not been altered otherwise than by or with the permission of the
authority who issued it, and
(d)
was not obtained by deception.
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(6)
In subsection (3) a reference to an asylum claim or human rights claim shall be
treated as including a reference to a claim of entitlement to remain in a country
other than the United Kingdom made by reference to the rights that a person
invokes in making an asylum claim or a human rights claim in the United
Kingdom.
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(7)
Before the coming into force of section 10 a reference in this section to the
Asylum and Immigration Tribunal shall be treated as a reference to—
(a)
an adjudicator appointed, or treated as if appointed, under section 81
of the Nationality, Immigration and Asylum Act 2002 (appeals), and
(b)
the Immigration Appeal Tribunal.
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7
Failed asylum seekers: withdrawal of support
(1)
In Schedule 3 to the Nationality, Immigration and Asylum Act 2002
(witholding and withdrawal of support) after paragraph 7 insert—
“Fifth class of ineligible person: failed asylum-seeker with family
7A
(1) Paragraph 1 applies to a person if—
40
(a)
he—
(i)
is treated as an asylum-seeker for the purposes of Part
VI of the Immigration and Asylum Act 1999 (c. 33)
(support) by virtue only of section 94(3A) (failed
asylum-seeker with dependent child), or
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Asylum and Immigration (Treatment of Claimants, etc.) Bill
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(ii)
is treated as an asylum-seeker for the purposes of Part
2 of this Act by virtue only of section 18(2),
(b)
the Secretary of State has certified that in his opinion the
person has failed without reasonable excuse to take
reasonable steps—
5
(i)
to leave the United Kingdom voluntarily, or
(ii)
to place himself in a position in which he is able to
leave the United Kingdom voluntarily,
(c)
the person has received a copy of the Secretary of State’s
certificate, and
10
(d)
the period of 14 days, beginning with the date on which the
person receives the copy of the certificate, has elapsed.
(2)
Paragraph 1 also applies to a dependant of a person to whom that
paragraph applies by virtue of sub-paragraph (1).
(3)
For the purpose of sub-paragraph (1)(d) if the Secretary of State
15
sends a copy of a certificate by first class post to a person’s last
known address, the person shall be treated as receiving the copy on
the second day after the day on which it was posted.
(4)
The Secretary of State may by regulations vary the period specified
in sub-paragraph (1)(d).”
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(2)
In paragraph 14(1) and (2) of Schedule 3 to the Nationality, Immigration and
Asylum Act 2002 (c. 41) (local authority to notify Secretary of State) for
“paragraph 6 or 7” substitute “paragraph 6, 7 or 7A”.
(3)
No appeal may be brought under section 103 of the Immigration and Asylum
Act 1999 (c. 33) (asylum support appeal) against a decision—
25
(a)
that by virtue of Schedule 3 to the Nationality, Immigration and
Asylum Act 2002 a person is not qualified to receive support, or
(b)
on the grounds of the application of a provision of that Schedule, to
stop providing support to a person.
(4)
An order under section 26 providing for this section to come into force may, in
30
particular, provide for this section to have effect with specified modifications
before the coming into force of a provision of the Nationality, Immigration and
Asylum Act 2002.
Enforcement powers
8
Immigration officer: power of arrest
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(1)
Where an immigration officer in the course of exercising a function under the
Immigration Acts forms a reasonable suspicion that a person has committed or
attempted to commit an offence listed in subsection (2), he may arrest the
person without warrant.
(2)
Those offences are—
40
(a)
the offence of conspiracy at common law (in relation to conspiracy to
defraud),
(b)
at common law in Scotland, any of the following offences—
(i)
fraud,
(ii)
conspiracy to defraud,
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