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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(iii)
uttering and fraud,
(iv)
bigamy,
(v)
theft, and
(vi)
reset,
(c)
an offence under section 57 of the Offences against the Person Act 1861
5
(c. 100) (bigamy),
(d)
an offence under section 3 or 4 of the Perjury Act 1911 (c. 6) (false
statements),
(e)
an offence under section 7 of that Act (aiding, abetting &c.) if it relates
to an offence under section 3 or 4 of that Act,
10
(f)
an offence under section 53 of the Registration of Births, Marriages and
Deaths (Scotland) Act 1965 (knowingly giving false information to
district registrar, &c.),
(g)
an offence under any of the following provisions of the Theft Act 1968
(c. 60)—
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(i)
section 1 (theft),
(ii)
section 15 (obtaining property by deception),
(iii)
section 16 (obtaining pecuniary advantage by deception),
(iv)
section 17 (false accounting), and
(v)
section 22 (handling stolen goods),
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(h)
an offence under section 1, 15, 16, 17 or 21 of the Theft Act (Northern
Ireland) 1969 (c. 16) (N.I.),
(i)
an offence under section 1 or 2 of the Theft Act 1978 (c. 31) (obtaining
services, or evading liability, by deception),
(j)
an offence under Article 3 or 4 of the Theft (Northern Ireland) Order
25
1978 (S.I. 1978/1407 (N.I. 23)),
(k)
an offence under Article 8 or 9 of the Perjury (Northern Ireland) Order
1979 (S.I. 1979/1714 (N.I. 19)),
(l)
an offence under Article 12 of that Order if it relates to an offence under
Article 8 or 9 of that Order, and
30
(m)
an offence under any of the following provisions of the Forgery and
Counterfeiting Act 1981 (c. 45)—
(i)
section 1 (forgery),
(ii)
section 2 (copying false instrument),
(iii)
section 3 (using false instrument),
35
(iv)
section 4 (using copy of false instrument), and
(v)
section 5(1) and (3) (false documents).
(3)
The following provisions of the Immigration Act 1971 (c. 77) shall have effect
for the purpose of making, or in connection with, an arrest under this section
as they have effect for the purpose of making, or in connection with, arrests for
40
offences under that Act—
(a)
section 28C (entry and search before arrest),
(b)
sections 28E and 28F (entry and search after arrest),
(c)
sections 28G and 28H (search of arrested person), and
(d)
section 28I (seized material).
45
(4)
In section 19D(5)(a) of the Race Relations Act 1976 (c. 74) (permitted
discrimination)—
(a)
for “(within the meaning of section 158 of the Nationality, Immigration
and Asylum Act 2002)” substitute “(within the meaning of section 22 of

Asylum and Immigration (Treatment of Claimants, etc.) Bill
9

the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004)”,
and
(b)
at the end add “and excluding section 8 of the Asylum and Immigration
(Treatment of Claimants, etc.) Act 2004”.
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Fingerprinting
5
(1)
Section 141 of the Immigration and Asylum Act 1999 (c. 33) (fingerprinting)
shall be amended as follows.
(2)
In subsection (7) for paragraph (c) substitute—
“(c)
any person (“C”) in respect of whom a relevant immigration
decision has been made;”.
10
(3)
In subsection (8) for paragraph (c) substitute—
“(c)
for C, on the service on him of notice of the relevant
immigration decision by virtue of section 105 of the Nationality,
Immigration and Asylum Act 2002 (c. 41);”.
(4)
In subsection (9) for paragraph (c) substitute—
15
“(c)
for C—
(i)
the time when the relevant immigration decision ceases
to have effect, whether as a result of an appeal or
otherwise, or
(ii)
if a deportation order has been made against him, its
20
revocation or its otherwise ceasing to have effect;”.
(5)
After subsection (15) add—
“(16)
“Relevant immigration decision” means a decision of the kind
mentioned in section 82(2)(g),(h),(i),(j) or (k) of the Nationality,
Immigration and Asylum Act 2002.”
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Appeals
10
Unification of appeal system
(1)
For section 81 of the Nationality, Immigration and Asylum Act 2002 (appeals:
adjudicators) substitute—
“Appeal to Tribunal
30
81
The Asylum and Immigration Tribunal
(1)
There shall be a tribunal to be known as the Asylum and Immigration
Tribunal.
(2)
Schedule 4 (which makes provision about the Tribunal) shall have
effect.
35
(3)
A reference in this Part to the Tribunal is a reference to the Asylum and
Immigration Tribunal.”
(2)
In section 82(1) of that Act (right of appeal: general) for “to an adjudicator”
substitute “to the Tribunal”.

Asylum and Immigration (Treatment of Claimants, etc.) Bill
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(3)
In section 83(2) of that Act (appeal: asylum claim) for “to an adjudicator”
substitute “to the Tribunal”.
(4)
For Schedule 4 to that Act (adjudicators) substitute the Schedule set out in
Schedule 1 to this Act (Asylum and Immigration Tribunal).
(5)
The following provisions of that Act shall cease to have effect—
5
(a)
sections 100 to 103 (Immigration Appeal Tribunal), and
(b)
Schedule 5 (Immigration Appeal Tribunal).
(6)
Before section 106 of that Act (rules) insert—
“105A
    Review by Tribunal
(1)
The Tribunal shall review its decision on an appeal if requested to do
10
so by a party to the appeal.
(2)
A review shall be conducted by reference only to written submissions.
(3)
On a review by the Tribunal of its decision on an appeal the Tribunal
may—
(a)
uphold the decision,
15
(b)
substitute another decision, or
(c)
order a re-hearing by the Tribunal of the appeal.
(4)
On a review by the Tribunal of its decision on an appeal the Tribunal
may act under subsection (3)(b) only if satisfied that the decision
depended upon an erroneous construction or application of a provision
20
of an Act.
(5)
On a review by the Tribunal of its decision on an appeal the Tribunal
may act under subsection (3)(c) only if satisfied—
(a)
that the decision depended upon an erroneous construction or
application of a provision of an Act, and
25
(b)
that, having regard to the nature or circumstances of the case
and to the nature of the review, a re-hearing is necessary
because an order under subsection (3)(b) would be
inappropriate or undesirable.
(6)
The Tribunal shall not—
30
(a)
review its decision on an appeal more than once, or
(b)
review its decision on an appeal re-heard under this section.”
(7)
After section 108 of that Act (proceedings in private) insert—
“108A
   Exclusivity and finality of Tribunal’s jurisdiction
(1)
No court shall have any supervisory or other jurisdiction (whether
35
statutory or inherent) in relation to the Tribunal.
(2)
No court may entertain proceedings for questioning (whether by way
of appeal or otherwise)—
(a)
any determination, decision or other action of the Tribunal
(including a decision about jurisdiction and a decision under
40
section 105A),
(b)
any action of the President or a Deputy President of the
Tribunal that relates to one or more specified cases,

Asylum and Immigration (Treatment of Claimants, etc.) Bill
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(c)
any decision in respect of which a person has or had a right of
appeal to the Tribunal under—
(i)
section 82, 83 or 109 of this Act, or
(ii)
section 40A of the British Nationality Act 1981 (c. 61),
(d)
any matter which the Tribunal—
5
(i)
was obliged to determine in accordance with section 86
of this Act, or
(ii)
would have been obliged to determine in accordance
with that section had a right of appeal mentioned in
paragraph (c) been exercised, or
10
(e)
a decision to remove a person from the United Kingdom, a
decision to deport a person or any action in connection with a
decision to remove a person from the United Kingdom or to
deport a person, if the removal or deportation is in consequence
of an immigration decision.
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(3)
Subsections (1) and (2)—
(a)
prevent a court, in particular, from entertaining proceedings to
determine whether a purported determination, decision or
action of the Tribunal was a nullity by reason of—
(i)
lack of jurisdiction,
20
(ii)
irregularity,
(iii)
error of law,
(iv)
breach of natural justice, or
(v)
any other matter, but
(b)
do not prevent a court from—
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(i)
reviewing a decision to issue a certificate under section
94 or 96 of this Act or under Schedule 3 to the Asylum
and Immigration (Treatment of Claimants, etc.) Act 2004
(removal to safe country), or
(ii)
considering whether a member of the Tribunal has acted
30
in bad faith.
(4)
Section 7(1) of the Human Rights Act 1998 (c. 42) (claim that public
authority has infringed Convention right) is subject to subsections (1)
to (3) above.
(5)
Nothing in this section shall prevent an appeal under section 2 or 7 of
35
the Special Immigration Appeals Commission Act 1997 (c. 68) (appeals
to and from Commission).
(6)
In this section “action” includes failure to act.
108B
    Reference to appellate court
(1)
The President of the Tribunal may refer to the appropriate appellate
40
court a point of law which arises in the course of proceedings before the
Tribunal.
(2)
The President may refer a point of law under this section only if he
thinks a reference appropriate because of—
(a)
the complexity or importance of the point of law, or
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(b)
an earlier decision of an appellate court on a related matter.

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(3)
Where the President refers a point of law which arises in the course of
proceedings—
(a)
the Tribunal shall submit to the appellate court—
(i)
any findings of fact made by the Tribunal in the
proceedings, and
5
(ii)
the Tribunal’s opinion on the point of law referred,
(b)
the Tribunal shall not determine the proceedings until after
receiving the opinion of the appellate court,
(c)
the appellate court shall give its opinion on the point of law to
the Tribunal, and
10
(d)
the Tribunal shall determine the proceedings, and any other
proceedings, having regard to the opinion of the appellate
court.
(4)
The President may refer a point of law only if the proceedings in the
course of which the point arises—
15
(a)
have not been determined by the Tribunal,
(b)
are the subject of a review under section 105A that has not been
completed, or
(c)
having been determined are again awaiting determination as
the result of an order for re-hearing made on a review under
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section 105A.
(5)
Rules of court may make provision about—
(a)
the procedure to be followed by an appellate court on a
reference under this section;
(b)
the constitution of an appellate court for the purposes of a
25
reference under this section;
(c)
costs.
(6)
No appeal shall lie to the House of Lords from any decision of an
appellate court in relation to the giving of an opinion under this section.
(7)
In this section “the appropriate appellate court” means—
30
(a)
in relation to proceedings which are being heard or are to be
heard by the Tribunal sitting in England or in Wales, the Court
of Appeal,
(b)
in relation to proceedings which are being heard or are to be
heard by the Tribunal sitting in Scotland, the Court of Session,
35
and
(c)
in relation to proceedings which are being heard or are to be
heard by the Tribunal sitting in Northern Ireland, Her Majesty’s
Court of Appeal in Northern Ireland.
(8)
A nomination under subsection (1)(b) may apply generally or only in
40
cases or circumstances specified in the nomination.”
(8)
Schedule 2 (which makes amendments consequential on this section, and
transitional provision) shall have effect.
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Unfounded human rights or asylum claim
(1)
In section 94 of the Nationality, Immigration and Asylum Act 2002 (c. 41) (no
45
appeal from within United Kingdom for unfounded human rights or asylum

Asylum and Immigration (Treatment of Claimants, etc.) Bill
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claim) after subsection (5) insert—
“(5A)
If the Secretary of State is satisfied that the statements in subsection (5)
(a) and (b) are true of a State or part of a State in relation to a description
of person, an order under subsection (5) may add the State or part to the
list in subsection (4) in respect of that description of person.
5
(5B)
Where a State or part of a State is added to the list in subsection (4) in
respect of a description of person, subsection (3) shall have effect in
relation to a claimant only if the Secretary of State is satisfied that he is
within that description (as well as being satisfied that he is entitled to
reside in the State or part).
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(5C)
A description for the purposes of subsection (5A) may refer to—
(a)
gender,
(b)
language,
(c)
race,
(d)
religion,
15
(e)
nationality,
(f)
membership of a social or other group,
(g)
political opinion, or
(h)
any other attribute or circumstance that the Secretary of State
thinks appropriate.”
20
(2)
For section 94(6) of that Act substitute—
“(6)
The Secretary of State may by order amend the list in subsection (4) so
as to omit a State or part added under subsection (5); and the omission
may be—
(a)
general, or
25
(b)
effected so that the State or part remains listed in respect of a
description of person.”
(3)
After section 112(5) of that Act (orders, &c.) insert—
“(5A)
If an instrument makes provision under section 94(5) and 94(6)—
(a)
subsection (4)(b) above shall apply, and
30
(b)
subsection (5)(b) above shall not apply.”
Removal and detention
12
Removing asylum seeker to safe country
(1)
Schedule 3 (which concerns the removal of persons claiming asylum to
countries known to protect refugees and to respect human rights) shall have
35
effect.
(2)
Sections 11 and 12 of the Immigration and Asylum Act 1999 (c. 33) (removal of
asylum claimant to country under standing or other arrangements) shall cease
to have effect.
(3)
The following provisions of the Nationality, Immigration and Asylum Act 2002
40
(c. 41) shall cease to have effect—
(a)
section 80 (new section 11 of 1999 Act), and

Asylum and Immigration (Treatment of Claimants, etc.) Bill
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(b)
section 93 (appeal from within United Kingdom: “third country”
removal).
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Detention pending deportation
(1)
In paragraph 2(1) of Schedule 3 to the Immigration Act 1971 (c. 77) (detention
pending deportation on recommendation by court) for the words “and that
5
person is neither detained in pursuance of the sentence or order of any court
nor for the time being released on bail by any court having power so to release
him” substitute “and that person is not detained in pursuance of the sentence
or order of any court”.
(2)
In paragraph 2(2) of that Schedule (detention following notice of deportation)
10
for the words “and he is neither detained in pursuance of the sentence or order
of a court nor for the time being released on bail by a court having power so to
release him” substitute “and he is not detained in pursuance of the sentence or
order of a court”.
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Deportation or removal: cooperation
15
(1)
The Secretary of State may require a person to take specified action if the
Secretary of State thinks that—
(a)
the action will or may enable a travel document to be obtained by or for
the person, and
(b)
possession of the travel document will facilitate the person’s
20
deportation or removal from the United Kingdom.
(2)
In particular, the Secretary of State may require a person to—
(a)
provide information or documents to the Secretary of State or to any
other person;
(b)
obtain information or documents;
25
(c)
provide fingerprints, submit to the taking of a photograph or provide
information, or submit to a process for the recording of information,
about external physical characteristics (including, in particular,
features of the iris or any other part of the eye);
(d)
make, or consent to or cooperate with the making of, an application to
30
a person acting for the government of a State other than the United
Kingdom;
(e)
cooperate with a process designed to enable determination of an
application;
(f)
complete a form accurately and completely;
35
(g)
attend an interview and answer questions accurately and completely;
(h)
make an appointment.
(3)
A person commits an offence if he fails without reasonable excuse to comply
with a requirement of the Secretary of State under subsection (1).
(4)
A person guilty of an offence under subsection (3) 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.