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
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(5)
If a constable or immigration officer reasonably suspects that a person has
committed an offence under subsection (3) he may arrest the person without
warrant.
(6)
An offence under subsection (3) shall be treated as—
(a)
a relevant offence for the purposes of sections 28B and 28D of the
5
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
that Act.
(7)
In subsection (1)—
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“travel document” means a passport or other document which is issued
by or for Her Majesty’s Government or the government of another State
and which enables or facilitates travel from the United Kingdom to
another State, and

“removal from the United Kingdom” means removal under—
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(a)
Schedule 2 to the Immigration Act 1971 (control on entry)
(including a provision of that Schedule as applied by another
provision of the Immigration Acts),
(b)
section 10 of the Immigration and Asylum Act 1999 (c. 33)
(removal of person unlawfully in United Kingdom), or
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(c)
Schedule 3 to this Act.
(8)
An order under section 26 providing for this section to come into force may, in
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 (c. 41) or of this Act.
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Electronic monitoring
(1)
In this section—
(a)
“residence restriction” means a restriction as to residence imposed
under—
(i)
paragraph 21 of Schedule 2 to the Immigration Act 1971 (control
30
on entry) (including that paragraph as applied by another
provision of the Immigration Acts), or
(ii)
Schedule 3 to that Act (deportation),
(b)
“reporting restriction” means a requirement to report to a specified
person imposed under any of those provisions,
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(c)
“employment restriction” means a restriction as to employment or
occupation imposed under any of those provisions, and
(d)
“immigration bail” means—
(i)
release under a provision of the Immigration Acts on entry into
a recognizance or bail bond, and
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(ii)
bail granted in accordance with a provision of the Immigration
Acts by a court, a justice of the peace, the sheriff, the Asylum
and Immigration Tribunal, the Secretary of State or an
immigration officer (but not by a police officer or by the Special
Immigration Appeals Commission).
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(2)
Where a residence restriction is imposed on an adult—
(a)
he may be required to cooperate with electronic monitoring, and

Asylum and Immigration (Treatment of Claimants, etc.) Bill
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(b)
failure to comply with a requirement under paragraph (a) shall be
treated for all purposes of the Immigration Acts as failure to observe
the residence restriction.
(3)
Where a reporting restriction could be imposed on an adult—
(a)
he may instead be required to cooperate with electronic monitoring,
5
and
(b)
the requirement shall be treated for all purposes of the Immigration
Acts as a reporting restriction.
(4)
Immigration bail may be granted to an adult subject to a requirement that he
cooperate with electronic monitoring; and the requirement may (but need not)
10
be imposed as a condition of a recognizance or bail bond.
(5)
In this section a reference to requiring an adult to cooperate with electronic
monitoring is a reference to requiring him to cooperate with such
arrangements as the person imposing the requirement may specify for
detecting and recording by electronic means the location of the adult, or his
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presence in or absence from a location—
(a)
at specified times,
(b)
during specified periods of time, or
(c)
throughout the currency of the arrangements.
(6)
In particular, arrangements for the electronic monitoring of an adult—
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(a)
may require him to wear a device;
(b)
may require him to make specified use of a device;
(c)
may prohibit him from causing or permitting damage of or interference
with a device;
(d)
may prohibit him from taking or permitting action that would or might
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prevent the effective operation of a device;
(e)
may require him to communicate in a specified manner and at specified
times or during specified periods of time;
(f)
may involve the performance of functions by persons other than the
person imposing the requirement to cooperate with electronic
30
monitoring (and those functions may relate to any aspect or condition
of a residence restriction, of a reporting restriction, of an employment
restriction, of a requirement under this section or of immigration bail).
(7)
In this section “adult” means an individual who appears to be at least 18 years
old in the opinion of a person who—
35
(a)
imposes a residence restriction,
(b)
could impose a reporting restriction, or
(c)
grants immigration bail.
(8)
The Secretary of State—
(a)
may make rules about arrangements for electronic monitoring for the
40
purposes of this section, and
(b)
when he thinks that satisfactory arrangements for electronic
monitoring are available in respect of an area, shall notify persons
likely to be in a position to exercise power under this section in respect
of the area.
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(9)
Rules under subsection (8)(a) may, in particular, require that arrangements for
electronic monitoring impose on a person of a specified description
responsibility for specified aspects of the operation of the arrangements.

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(10)
A requirement to cooperate with electronic monitoring—
(a)
shall comply with rules under subsection (8)(a), and
(b)
may not be imposed in respect of an adult who is or is expected to be in
an area unless the person imposing the requirement has received a
notification from the Secretary of State under subsection (8)(b) in
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respect of that area.
(11)
Rules under subsection (8)(a)—
(a)
may include incidental, consequential or transitional provision,
(b)
may make provision generally or only in relation to specified cases,
circumstances or areas,
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(c)
shall be made by statutory instrument, and
(d)
shall be subject to annulment in pursuance of a resolution of either
House of Parliament.
(12)
Before the commencement of section 10 a reference in this section to the
Asylum and Immigration Tribunal shall be treated as a reference to—
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(a)
a person appointed, or treated as if appointed, as an adjudicator under
section 81 of the Nationality, Immigration and Asylum Act 2002 (c. 41)
(appeals), and
(b)
the Immigration Appeal Tribunal.
Immigration services
20
16
Immigration Services Commissioner: power of entry
After section 92 of the Immigration and Asylum Act 1999 (c. 33) (offences:
enforcement) insert—
“92A
    Investigation of offence: power of entry
(1)
On an application made by the Commissioner a justice of the peace may
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issue a warrant authorising the Commissioner to enter and search
premises.
(2)
A justice of the peace may issue a warrant in respect of premises only if
satisfied that there are reasonable grounds for believing that—
(a)
an offence under section 91 has been committed,
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(b)
there is material on the premises which is likely to be of
substantial value (whether by itself or together with other
material) to the investigation of the offence, and
(c)
any of the conditions specified in subsection (3) is satisfied.
(3)
Those conditions are—
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(a)
that it is not practicable to communicate with a person entitled
to grant entry to the premises,
(b)
that it is not practicable to communicate with a person entitled
to grant access to the evidence,
(c)
that entry to the premises will be prevented unless a warrant is
40
produced, and
(d)
that the purpose of a search may be frustrated or seriously
prejudiced unless the Commissioner can secure immediate
entry on arrival at the premises.

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(4)
The Commissioner may seize and retain anything for which a search is
authorised under this section.
(5)
A person commits an offence if without reasonable excuse he obstructs
the Commissioner in the exercise of a power by virtue of this section.
(6)
A person guilty of an offence under subsection (5) shall be liable on
5
summary conviction to—
(a)
imprisonment for a term not exceeding six months,
(b)
a fine not exceeding level 5 on the standard scale, or
(c)
both.
(7)
In this section—
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(a)
a reference to the Commissioner includes a reference to a
member of his staff authorised in writing by him,
(b)
a reference to premises includes a reference to premises used
wholly or partly as a dwelling, and
(c)
a reference to material includes a reference to material—
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(i)
whether or not it is material subject to legal privilege,
excluded material or special procedure material (in each
case within the meaning of the Police and Criminal
Evidence Act 1984 (c. 60)), and
(ii)
whether or not it would be admissible in evidence at a
20
trial.
(8)
In the application of this section to Scotland a reference to a justice of
the peace shall be taken as a reference to the sheriff or a justice of the
peace.”
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Offence of advertising services
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After section 92A of the Immigration and Asylum Act 1999 (c. 33) (inserted by
section 16 above) insert—
“92B
    Advertising
(1)
A person commits an offence if—
(a)
he offers to provide immigration advice or immigration
30
services, and
(b)
provision by him of the advice or services would constitute an
offence under section 91.
(2)
For the purpose of subsection (1) a person offers to provide advice or
services if he—
35
(a)
makes an offer to a particular person or class of person,
(b)
makes arrangements for an advertisement in which he offers to
provide advice or services, or
(c)
makes arrangements for an advertisement in which he is
described or presented as competent to provide advice or
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services.
(3)
A person guilty of an offence under this section shall be liable on
summary conviction to a fine not exceeding level 4 on the standard
scale.

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(4)
Subsections (3) to (7) of section 91 shall have effect for the purposes of
this section as they have effect for the purposes of that section.
(5)
An information relating to an offence under this section may in
England and Wales be tried by a magistrates’ court if—
(a)
it is laid within the period of six months beginning with the date
5
(or first date) on which the offence is alleged to have been
committed, or
(b)
it is laid—
(i)
within the period of two years beginning with that date,
and
10
(ii)
within the period of six months beginning with a date
certified by the Immigration Services Commissioner as
the date on which the commission of the offence came to
his notice.”
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Appeal to Immigration Services Tribunal
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Section 87(3)(f) of the Immigration and Asylum Act 1999 (c. 33) (appeal to
Tribunal against deferral of decision) shall cease to have effect.
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Professional bodies
(1)
Section 86 of the Immigration and Asylum Act 1999 (designated professional
bodies) shall be amended as follows.
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(2)
For subsection (2) substitute—
“(2)
The Secretary of State may by order remove a body from the list in
subsection (1) if he considers that the body—
(a)
has failed to provide effective regulation of its members in their
provision of immigration advice or immigration services, or
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(b)
has failed to comply with a request of the Commissioner for the
provision of information (whether general or in relation to a
particular case or matter).”
(3)
For subsection (9)(b) substitute—
“(b)
report to the Secretary of State if the Commissioner considers
30
that a designated professional body—
(i)
is failing to provide effective regulation of its members
in their provision of immigration advice or immigration
services, or
(ii)
has failed to comply with a request of the Commissioner
35
for the provision of information (whether general or in
relation to a particular case or matter).”
(4)
After subsection (9) insert—
“(9A)
A designated professional body shall comply with a request of the
Commissioner for the provision of information (whether general or in
40
relation to a specified case or matter).”
(5)
For paragraph 21(2) of Schedule 5 to the Immigration and Asylum Act 1999

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(c. 33) (Commissioner: annual report) substitute—
     “(2)
The report must, in particular, set out the Commissioner’s opinion as
to the extent to which each designated professional body has—
(a)
provided effective regulation of its members in their provision of
immigration advice or immigration services, and
5
(b)
complied with requests of the Commissioner for the provision of
information.”
Fees
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Fees
(1)
In prescribing a fee for an application or process under a provision specified in
10
subsection (2) the Secretary of State may, with the consent of the Treasury,
prescribe an amount which is intended to—
(a)
exceed the administrative costs of determining the application or
undertaking the process, and
(b)
reflect benefits that the Secretary of State thinks are likely to accrue to
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the person who makes the application, to whom the application relates
or by or for whom the process is undertaken, if the application is
successful or the process is completed.
(2)
Those provisions are—
(a)
section 41(2) of the British Nationality Act 1981 (c. 61) (fees for
20
applications, &c. under that Act),
(b)
section 5(1)(a) and (b) of the Immigration and Asylum Act 1999 (fees for
application for leave to remain, &c.), and
(c)
section 122 of the Nationality, Immigration and Asylum Act 2002 (c. 41)
(fees for work permit, &c.).
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(3)
An Order in Council under section 1 of the Consular Fees Act 1980 (c. 23) (fees)
which prescribes a fee in relation to an application for the issue of a certificate
under section 10 of the Nationality, Immigration and Asylum Act 2002 (right
of abode: certificate of entitlement) may prescribe an amount which is intended
to—
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(a)
exceed the administrative costs of determining the application, and
(b)
reflect benefits that in the opinion of Her Majesty in Council are likely
to accrue to the applicant if the application is successful.
(4)
Where an instrument prescribes a fee in reliance on this section it may include
provision for the refund, where an application is unsuccessful or a process is
35
not completed, of that part of the fee which is intended to reflect the matters
specified in subsection (1)(b) or (3)(b).
(5)
Provision included by virtue of subsection (4)—
(a)
may determine, or provide for the determination of, the amount to be
refunded;
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(b)
may confer a discretion on the Secretary of State or another person
(whether in relation to determining the amount of a refund or in
relation to determining whether a refund should be made).