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| Asylum And Immigration (Treatment Of Claimants, Etc.) Bill |
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These notes refer to the Asylum and Immigration (Treatment of Claimants, etc.) Bill as introduced in the House of Commons on 27 November 2003 [Bill 5] ASYLUM AND IMMIGRATION (TREATMENT OF CLAIMANTS, ETC.) BILLEXPLANATORY NOTESINTRODUCTION 1. These explanatory notes relate to the Asylum and Immigration (Treatment of Claimants, etc.) Bill as introduced in the Commons on 27 November 2003. 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. BACKGROUND 3. The Minister of State for Citizenship, Immigration and Counter-Terrorism announced proposals on asylum reform to Parliament on 27 October 2003. Ministers from the Home Office and the Department for Constitutional Affairs published a letter on 27 October 2003 outlining the Government's proposals on asylum reform. This letter provides the background to the Bill. The letter set out a range of proposals which are intended to:
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OVERVIEW 4. The Bill is arranged under 8 headings:
SUMMARY 5. The Bill includes provisions which unify the immigration and asylum appeals system into a single tier of appeal with restricted access to the higher courts, deal with undocumented arrivals and those who fail to comply with steps to co-operate with the re-documentation process, create new offences and provide additional powers to the OISC. Offences 6. The provisions:
Treatment of claimants 7. The provisions:
Enforcement powers 8. The provisions:
Appeals 9. The provisions:
Removal and detention 10. The provisions:
Immigration services 11. The provisions:
Fees 12. The provisions:
General 13. General provisions on interpretation, repeals, commencement, the title of the Bill and extent. COMMENTARY ON CLAUSES OFFENCES Clause 1 : Assisting Unlawful Immigration 14. Clause 1 amends section 25 of the Immigration Act 1971 which creates an offence of facilitating the commission of a breach of immigration law. "Immigration law" means a law which has effect in a member State and which controls entitlement to enter the State, transit across the State or be in the State. 15. The amendment allows the Secretary of State to make an order prescribing additional States which are to be regarded as "member States" for the purposes of the section if he considers it necessary for the purpose of complying with the United Kingdom's EU obligations. The nationals of these states are also to be deemed to be citizens of the European Union for the purposes of section 25 of the 1971 Act. This is necessary as the EU Council Directive (2002/90/EC) and EU Council Framework Decision (2002/946/JHA) which require member States to create the offence of assisting a person who is not a national of a member State to enter or reside in a member State contrary to the laws of that member State apply in relation to Norway and Iceland as well as the member States. Subsection (2) makes a minor amendment to section 25C of the 1971 Act to make clear that the references to "member State" and "immigration law" in subsection (9)(a) thereof have the same meaning as in section 25. Clause 2 : Entering the UK without a passport 16. Clause 2 creates a criminal offence if, when a person is first interviewed by an immigration officer after his arrival in the United Kingdom, he does not have a valid passport or equivalent document with him and he does not have a reasonable excuse for not being in possession of such a document. Likewise if he has with him a dependent child and does not have a document for the child. If an immigration officer or a police constable has a reasonable suspicion that the offence has been committed then he or she may arrest the individual without a warrant. They also have various other powers of search and entry common to other immigration-type offences. The offence may be tried in either the Magistrates or the Crown Court with the maximum penalty being a six month (Magistrates) or a two year (Crown Court) prison sentence and/or a maximum fine. Most carriers are required to ensure that their passengers have appropriate documentation prior to embarking on their journey. Someone who arrives in the UK, therefore, without a passport may in many cases be assumed to have destroyed it en route. Clause 3 : Immigration documents: forgery 17. Clause 3 amends section 5 of the Forgery and Counterfeiting Act 1981 so that "immigration documents" become instruments to which section 5 of the 1981 Act applies. "Immigration documents" are cards or stickers designed to be given to a person to show whether that person is subject to control under the Immigration Act 1971 and, if so, what conditions have been attached to any grant of leave to enter or remain in the United Kingdom, such as duration or entitlement to employment. They will increasingly be used instead of ink stamps in future. Possession of ink stamps (both genuine and replica), without reasonable excuse, is already an offence under section 26B of the Immigration Act 1971 (as inserted by section 149 of the Nationality Immigration and Asylum Act 2002). As a result of the amendment, the possession of a false card or sticker, or equipment with which such things may be made will be an offence in the circumstances set out in section 5 of the 1981 Act. Clause 4 : Trafficking people for exploitation 18. Clause 4 introduces a new criminal offence of trafficking people into, or out of, the UK for the purpose of exploitation. A person commits the offence if he arranges for a person to enter or leave the UK to exploit them. The offence is also committed if a person arranges travel within the UK if he believes that the passenger has been brought into the UK to be exploited. Exploitation encompasses slavery or forced labour, organ removal, or the use of force or threats to induce the victim to provide services. 19. The offence is aimed at:
TREATMENT OF CLAIMANTS Clause 6: Claimant's credibility 20. Clause 6 sets out various behaviours which a deciding authority is required to take account of when deciding whether to believe a statement made by or on behalf of a person making an asylum or human rights claim. A "deciding authority" is an immigration officer, the Secretary of State, the Asylum and Immigration Tribunal (or an adjudicator and the Immigration Appeal Tribunal until such time as the Asylum and Immigration Tribunal is established) and the Special Immigration Appeals Commission. 21. Subsection (1) provides that the deciding authority shall take account of any behaviour which it thinks:
22. Subsection (2) provides that various behaviours relating to the non production of passports (without reasonable explanation), the production of false passports as if they were valid, and the failure to answer questions (without reasonable explanation), will be treated as behaviours designed to conceal or mislead, and hence within the scope of subsection (1). 23. Subsection (3) similarly provides that a person's failure to take a reasonable opportunity to seek protection in a safe third country will be treated as behaviour that damages his credibility, and hence within the scope of subsection (1). For the purposes of this clause a "safe country" means a country to which Part 2 of Schedule 3 applies. Clause 7 : Failed asylum seekers: withdrawal of support 24. Clause 7 creates a fifth class of person (failed asylum seeker with family) who will cease to be eligible for support under Paragraph 1 of Schedule 3 to the Nationality, Immigration and Asylum Act 2002 (withholding and withdrawal of support). The clause adds a new paragraph, Paragraph 7A, to the Schedule. 25. Failed asylum seekers with dependent children receive asylum support until such time as they leave the United Kingdom or fail to comply with a removal direction if sooner. However, under this provision, if the Secretary of State certifies that, in his opinion , such a person has failed without reasonable excuse to take reasonable steps to leave the United Kingdom voluntarily or place himself in a position in which he is able to leave the United Kingdom voluntarily (by, for example, co operating with steps taken to obtain a travel document on his behalf) then asylum support for the family will cease. The family is also rendered ineligible for various other types of support or assistance, although the children in the family may still be supported by, for example, the local authority. ENFORCEMENT POWERS Clause 8 : Immigration officer: power of arrest 26. Clause 8 provides immigration officers with the power of arrest - and ancillary powers of entry, search and seizure - in respect of a number of specified offences. Their powers of arrest are currently restricted to offences under the Immigration Acts. The new power is only to be available where an immigration officer forms a reasonable suspicion that one of the specified offences has been committed in the course of exercising a function under the Immigration Acts. In other words, immigration officers must uncover the evidence of the offences in the course of their usual duties investigating immigration matters. The offences are specified in subsection (2). 27. Subsection (4) provides that certain powers of entry, search and seizure which immigration officers already have in relation to offences under the Immigration Act 1971 ("the 1971 Act"), shall also apply in relation to the specified offences. Clause 9 : Fingerprinting 28. Clause 9 amends section 141 of the Immigration and Asylum Act 1999 which allows fingerprints to be taken from specified persons during specified periods. Section 141 applies to any person in respect of whom directions have been given and permits fingerprints to be taken between the time the directions are given and the time when the person is removed or deported (or, if a deportation order has been made against him, its revocation or otherwise ceasing to have effect). 29. As the setting of removal directions no longer attracts a right of appeal (by virtue of changes introduced by the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act")), directions are now set at the end of the enforcement process, shortly before removal is due to take place. This means that there is now only a short period of time within which fingerprints can be taken. Before the changes, directions were set at the beginning of the enforcement process so that any appeal could be dealt with early. Clause 9 amends section 141 of the 1999 Act to allow fingerprints to be taken, once more, at the beginning of the enforcement process, notwithstanding that removal directions will not be set until the end of that process. In that respect, it restores the pre-2002 Act position. APPEALS Clause 10: Unification of appeal system 30. Clause 10 (1) replaces section 81 of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"), which made provision for the appointment of asylum adjudicators under the two-tier system. The new clause establishes a single-tier tribunal called the Asylum and Immigration Tribunal, which is referred to in the rest of this part of the Act as "the Tribunal". 31. Clause 10 (2) amends section 82(1) of the 2002 Act. Section 82(1) lists the immigration decisions which attract a right of appeal to an adjudicator. This amendment is consequential upon the merger of the two tiers of tribunal. With the amendment, the appeal is to the new Tribunal instead. 32. Clause 10 (3) makes a similar consequential amendment to section 83(2) of the 2002 Act which states the circumstances in which a person has a right of appeal from rejection of an asylum claim. Appeals will go to the new Tribunal. 33. Clause 10(4) substitutes a new Schedule (found at Schedule 1) for the Schedule 4 of the 2002 Act. The old Schedule 4 made provision for the terms of office, staffing, remuneration and sitting arrangements for adjudicators. It is replaced by a Schedule making similar provision in respect of Tribunal members, and related matters. 34. Clause 10(5) repeals sections 100 to 103 and Schedule 5 of the 2002 Act, thereby abolishing the Immigration Appeal Tribunal (IAT), the second tier of the current system. As a consequence of this, this section also removes the right of appeal to the IAT, the right to seek statutory review of a refusal by the IAT to grant permission to appeal to itself, and the right to appeal from the IAT to the higher appellate courts in the part of the United Kingdom where the appeal was originally heard. 35. Clause 10(6) adds a new section, numbered 105A, to the 2002 Act. 36. Section.105A gives the Tribunal the ability to review its own decisions if requested to do so by a party to the appeal. 37. Subsection (2) provides that the review will be conducted entirely in writing without oral hearings. 38. Subsection (3) sets out the options open to the Tribunal when reviewing its own decisions: to uphold the decision, to substitute another decision or to order a re-hearing of the appeal. 39. Subsection (4) specifies that the appeal decision will only be substituted if there has been an error in the construction or application of a provision of an Act. This limits the grounds on which the Tribunal may change its own decision to serious points of law. 40. Subsection (5) specifies that the Tribunal should only order a re-hearing if satisfied that it is necessary and that the substitution of a different decision would be inappropriate or undesirable. 41. Subsection (6) prevents the Tribunal from reviewing its decision a second time. 42. Clause 10(7) adds two new sections, numbered 108A and 108B to the 2002 Act. 43. Section 108A provides for the exclusivity and finality of decisions made by the new Tribunal. The repeal by Clause 10(5) of the avenue of appeal from the IAT to the appellate courts, read together with the new section 108A, means that there is to be no right of appeal from, nor statutory or judicial review of the Tribunal's decisions by the higher courts. 44. Subsection (2) specifies the range of decisions and activities of the Tribunal which cannot be challenged by way of judicial review or otherwise in the higher courts. In essence, it removes judicial review of decisions that a person could have appealed to the Tribunal, whether or not they exercised that right. It also removes review of the Tribunal's decisions on matters which they have to take into consideration upon the hearing of such an appeal. Finally, it removes review of decisions flowing from the immigration and asylum decision, namely decisions to remove and actions taken consequent upon the immigration decision. 45. Subsection (3) elaborates on the matters which the courts are precluded from considering. By stating unambiguously that the tribunal's decisions may not be challenged on these grounds, the provision makes clear the scope of the ouster of the High Court's (and Court of Session's) supervisory or inherent jurisdiction over the Tribunal. However, subsection (3)(b) details certain exceptions. One is where the challenge is to a lawfulness of a decision of the Secretary of State, not a decision of the Tribunal. It also does not exclude a challenge that a member of the Tribunal has acted in bad faith. 46. Subsection (4) has the effect that the power to challenge in legal proceedings whether the Tribunal has acted in a way incompatible with a Convention right specified in the Human Rights Act 1998 is subject to the removal of further appeals and challenges to the Tribunal's decisions. 47. Subsection (5) provides that section 108A does not affect proceedings heard by the Special Immigration Appeals Commission. The avenues of appeal from the Commission's decisions are to remain unaffected. 48. The new section 108B creates a new procedure empowering the Tribunal of its own initiative to refer to an appellate court a point of law. The President may only make such a reference where he considers that the case raises a point of law of considerable complexity or importance, or is related to an earlier decision of an appellate court which is binding on the Tribunal. The "appellate court" is defined in subsection (7) of the new clause. It refers to the relevant appellate court in the part of the United Kingdom where the Tribunal appeal is due to be heard. The referral power must be exercised, if at all, while the Tribunal proceedings are still pending. Once referred, the Tribunal must await the appellate court's opinion before making its final determination of the appeal. 49. Subsection (5) allows rules of court to be made to determine the procedures of the appellate court when considering a reference from the Tribunal. Subsection (6) specifies that the appellate court's decision may not be appealed to the House of Lords. 50. Section 10(8) gives effect to Schedule 2, which makes consequential amendments and transitional provisions Schedule 1: New Schedule 4 to the Nationality, Immigration and Asylum Act 2002 51. Schedule 1 replaces Schedule 4 of the Nationality, Immigration and Asylum Act 2002, as specified in Clause 11(4). 52. Schedule 4 made provision for the appointment of asylum adjudicators and related matters. As the two-tier system of adjudicators and the Immigration Appeal Tribunal is replaced by the single tier Asylum and Immigration Tribunal, the new schedule makes provision for the appointment of members of the new Tribunal and related matters instead. 53. Paragraph 1 imposes on the Lord Chancellor the duty and responsibility for appointing the members of the new Tribunal. 54. Paragraph 2 specifies the legal qualifications required to become a member of the new Tribunal. 55. Paragraph 3 specifies when the appointment of a Tribunal member shall end, including specifying a retirement age of 70, and otherwise makes the holding of office subject to the terms of the holder's appointment. 56. Paragraph 4 allows the Lord Chancellor to decide what the title of the Tribunal members shall be. Read together with paragraph 23 of Schedule 2, the Order is subject to the negative resolution procedure. 57. Paragraph 5 provides for the Lord Chancellor to appoint a President of the Tribunal, and one or more Deputy Presidents, and specifies the role of the Deputy Presidents. 58. Paragraphs 6 to 8 are provisions for the sitting arrangements, Tribunal composition and allocation of proceedings to members of the Tribunal. In particular, paragraph 7 allows the transfer of cases between members of the Tribunal, and allows cases to be heard either by single Tribunal members or by a panel of members. 59. Paragraph 9 allows the Lord Chancellor to appoint Tribunal staff, and paragraphs 10 and 11 make provision for the remuneration and allowances to members and staff of the Tribunal. Schedule 2: Asylum and Immigration Tribunal: Consequential Amendments and Transitional Provision 60. Part 1 of this Schedule makes consequential amendments to other legislation. Where legislation refers to an "adjudicator" or the "Immigration Appeal Tribunal", these are changed to refer to the new Asylum and Immigration Tribunal and Tribunal members. 61. Part 2 makes transitional provisions for the judicial office holders and staff currently at the Immigration Appellate Authority. Persons appointed as adjudicators (under section 81 of the Nationality, Immigration and Asylum Act 2002) and persons who are legally qualified members of the Immigration Appeal Tribunal (under Schedule 5 of the 2002 Act) will automatically be considered on commencement to have been appointed as a member of the AIT. Similarly, the staff of the IAT automatically become staff of the AIT at commencement. |
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| © Parliamentary copyright 2003 | Prepared: 27 November 2003 |