House of Commons - Explanatory Note
Asylum And Immigration (Treatment Of Claimants, Etc.) Bill - continued          House of Commons

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Clause 11: Unfounded human rights or asylum claim

62.     Clause 11 amends section 94 of the Nationality, Immigration and Asylum Act 2002. Section 94 provides that a person may not bring an appeal while in the United Kingdom solely by virtue of having made an asylum or human rights claim where the Secretary of State certifies that claim as clearly unfounded. It also provides that where the Secretary of State is satisfied that an asylum or human rights claimant is entitled to reside in a State listed in subsection (4) he shall certify the claim as clearly unfounded unless satisfied that it is not. Subsection (5) provides an affirmative Order-making power under which a State or part of a State may be added to the list in subsection (4) where certain conditions are met. Those conditions are that:

      a)      there is in general in that State or part no serious risk of persecution of persons entitled to reside in that State or part, and

      b)      removal to that State or part of persons entitled to reside there will not in general contravene the United Kingdom's obligations under the Human Rights Convention.

63.     Clause 11 extends the Order-making power in section 94. It provides that where the conditions in section 94(5) are met for a "description of person" within a State or part of a State then that State or part may be added to the list in subsection (4) in respect of that description of person only. Examples of what might constitute a "description of person" are given in new subsection (5C) of section 94.

64.     The effect of using the power in Clause 11 to add a State or part to the list in section 94(4) is that where an asylum or human rights claimant is both entitled to reside in the State or part added and falls within the defined "description of person" for that State or part, the Secretary of State shall certify the claim as clearly unfounded unless satisfied that it is not. The purpose of this clause is to provide extra flexibility to identify groups of persons within a State or part for whom conditions are generally safe.

REMOVAL AND DETENTION

Clause 12 and Schedule 3: Removing asylum seekers to a safe country

65.     Clause 12 and Schedule 3 deal with situations where a person can be removed to a safe third country without substantive consideration of his asylum claim and, in certain cases, without substantive consideration of any associated human rights claim. They replace and extend the provisions currently contained in sections 11 and 12 of the Immigration and Asylum Act 1999.

66.     Under sections 11 and 12 of the 1999 Act, certain countries are deemed safe for Refugee Convention purposes - that is to say they are to be regarded as

      a)      a place where a person's life and liberty is not threatened by reason of his race, religion, nationality, membership of a particular social group, or political opinion; and

      b)      a place from which a person will not be sent to another country otherwise than in accordance with the Refugee Convention.

67.     Under the current provisions a person can still challenge removal to those countries on the ground that it would be unlawful under section 6 HRA as being incompatible with his Convention rights. But where the Secretary of State certifies a human rights claim as clearly unfounded, any appeal on this ground can only be pursued from abroad.

68.     Under the new provisions certain countries will be deemed safe for ECHR purposes as well as for the Refugee Convention. The effect of this is that a person will not be able to challenge removal to such a country as being in breach of ECHR rights because of circumstances of or relating to the third country (including the circumstances in which he may be removed from the third country). The clause does not affect claims that removal would be a breach of a claimant's rights in the UK (e.g. under Article 8 because it would interfere with an established family life here).

69.     Clause 12 repeals sections 11 and 12 of the Immigration and Asylum Act 1999 and introduces Schedule 3, which contains the replacement provisions (see below). It also repeals section 93 of the Nationality, Immigration and Asylum Act 2002 which limits the right to an "in country" appeal in relation to removals to safe third countries. This is now dealt with in Schedule 3.

70.     Part 2 of Schedule 3 deals with countries that are deemed safe for Refugee Convention and ECHR purposes. The countries listed are the members of the enlarged European Union as from May 2004 together with Norway and Iceland. Additional countries may be added by order - see Part 5 below.

71.     Under paragraph 3 in considering whether a person may be removed there, they are to be treated as places

      a)      where a person's life and liberty are not threatened by reason of his race, religion, nationality, membership of a particular social group or political opinion,

      b)      where a person will not be treated in a manner which is inconsistent with his rights under the Human Rights Convention (whether by removal from that State or otherwise), and

      c)      from which a person will not be sent to another State otherwise than in accordance with the Refugee Convention.

72.     Paragraph 4 disapplies section 77 of 2002 Act (which prevents removal while an asylum claim is pending) where the Secretary of State certifies that a person is to be removed to a listed State and he is not a national or citizen of that State.

73.     Paragraph 5 prevents a person being removed bringing an appeal within the United Kingdom on the basis that the country is not safe for Refugee Convention or ECHR purposes.

74.     Paragraph 6 prevents a person bringing an appeal from outside the United Kingdom on similar grounds.

75.     Part 3 of Schedule 3 deals with countries that are deemed safe for the purposes of the Refugee Convention only. The list of countries is to be specified by Order.

76.     Paragraph 9 disapplies the provision in section 77 of the 2002 Act that a person shall not be removed pending the determination of their asylum claim where the Secretary of State certifies that he is to be removed to a State to which this Part applies and he is not a national or citizen of that State.

77.     Paragraph 10 prevents a person being removed bringing an appeal within the United Kingdom on the basis that the country is not safe for Refugee Convention purposes.

78.     Paragraph 11 prevents a person bringing an appeal from outside the United Kingdom on similar grounds.

79.     Part 4 of Schedule 3 provides for the Secretary of State to certify a country (not listed under Part 2 or 3 of the Schedule) as safe for Refugee Convention purposes for a particular individual. Where a country is certified in this way, section 77 of the 2002 Act is disapplied (by virtue of paragraph 13) and the in country and out of country appeal rights are limited by paragraph 14 to the same extent as under paragraphs 10 and 11 discussed above.

80.     Part 5 of Schedule 3 provides an Order making power to add or remove a State to or from the lists in Part 2 or Part 3. This is normally by the affirmative Order procedure, although provision is made for a special procedure in cases of emergency.

Clause 13: Detention pending deportation

81.     Schedule 3 to the Immigration Act 1971 deals with deportation. Where someone has been recommended for deportation by a court under section 3(6) of the Act, paragraph 2(1) of Schedule 3 specifies that that person shall be detained pending the signing of the deportation order unless (a) he is already detained by virtue of the sentence or order of any court, or (b) he is released on bail by any court having power so to release him, or (c) the court which made the recommendation (or an appeal court) or the Secretary of State directs that he is to be released, or he is granted bail under paragraph 2(4A) of that Schedule. Similarly, where someone has been notified that the Secretary of State intends to make a deportation order against him under section 3(5) of the Act, paragraph 2(2) allows that person to be detained unless he is already detained by virtue of the sentence or order of a court or released on bail by a court having the power to release him.

82.     Although it may be implicit that it is only bail granted by a court which is both aware of and involved in the deportation process which affects the power to detain under these paragraphs, on the face of it, it could mean bail granted by any court. This would mean that bail granted by a court which was unaware of the impending deportation action, or perhaps was granted before deportation came into prospect, could prevent detention pending the making of a deportation order if this was considered appropriate.

83.     Clause 13 amends paragraphs 2(1) and 2(2) to remove the reference to the grant of bail by a court. A person who is detained under Schedule 3 will continue to be able to apply for bail from the Immigration Service or from the appropriate immigration appellate body by virtue of paragraph 2(4A) of the Schedule which came into force in February 2003.

Clause 14: Deportation or removal: cooperation

84.     Clause 14 creates a new offence of failing to comply, without reasonable excuse, with steps that the Secretary of State may require someone to take so as to enable their deportation or removal from the United Kingdom. Many people arrive in the UK without a passport or other identification and cannot, in many cases, be removed or deported unless a travel document is obtained on their behalf. A travel document is obtained from the person's relevant embassy or high commission and before issuing such a document the embassy must be satisfied of the person's identity and nationality. This requires certain information to be obtained from and, on some occasions attendance at interviews by, the person concerned. The offence may be tried in either the Magistrates Court or the Crown Court, with the maximum penalty being a six month (Magistrates) or two year (Crown Court) prison sentence and/or a maximum fine. If a police constable or an immigration officer 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.

Clause 15: Electronic monitoring

85.     Clause 15 makes provision for the electronic monitoring of persons subject to immigration control who are at least 18 years of age in the following circumstances:

  • Where a residence restriction is imposed (subsection (2));

  • Where a reporting restriction could be imposed (subsection (3)); and

  • Where immigration bail is granted subject to a recognizance of bail bond (except where bail is granted by a police officer or the Special Immigration Appeals Commission) (subsection (3)).

86.     A person subject to electronic monitoring in accordance with these provisions is required to cooperate with arrangements for detecting and recording his location at specified times, during specified periods of time or throughout the currency of the arrangements. The electronic means employed in connection with such arrangements may include voice recognition technology, the use of a "tag" to confirm the presence of absence of the person from a specified location and in the future "tracking" technology to monitor the person's whereabouts on a continuous basis.

87.     Subsection (8) provides power for the Secretary of State to make rules about the arrangements for electronic monitoring under Clause 15.

88.     Subsection (9) prevents the imposition of a requirement to submit to electronic monitoring unless the authority imposing the requirement has been notified by the Secretary of State that satisfactory monitoring arrangements are available in the relevant area(s).

IMMIGRATION SERVICES

Clause 16: Immigration Services Commissioner: power of entry

89.     Clause 16 inserts a new section 92A in the Immigration and Asylum Act 1999. It gives the OISC a power, subject to obtaining a warrant, to enter and search premises (including a dwelling) where there are reasonable grounds for suspecting that immigration advice or services are being provided, in the course of a business, by an unqualified person who is thereby committing a criminal offence under section 91 of the 1999 Act. The list of those qualified to provide immigration advice is set out in section 84 of the 1999 Act.

90.     Subsection (1) enables a justice of the peace to issue a warrant authorising the Commissioner to enter and search premises.

91.     Subsection (2) provides that warrants can only be issued if there are reasonable grounds for believing that an offence under section 91 is being committed and that there is material on the premises which is of substantial value to the investigation of the offence.

92.     Subsection (3) sets out other conditions. Any one of those conditions must be satisfied before a warrant can be issued. Those conditions are: where it is impracticable to communicate with a person entitled to grant entry or access to the premises; where entry to the premises will be prevented unless a warrant is produced; where the purpose of the search may be seriously prejudiced unless immediate entry on arrival at the premises is secured.

93.     Subsection (4) enables the Commissioner to retain material he has seized.

94.     Subsection (5) makes it an offence for anyone to obstruct the Commissioner in exercising the warrant.

95.     Subsection (6) sets the penalty for obstructing the Commissioner, following a summary conviction, as imprisonment for up to six months or a fine not exceeding level 5 on the standard scale, or both.

96.     Subsection (7) clarifies the following references in the section. A reference to the Commissioner includes a reference to a member of his staff authorised in writing by him. A reference to premises includes a reference to premises used wholly or partly as a dwelling. A reference to material includes material subject to legal privilege, and material which would not be admissible as evidence at a trial.

Clause 17: Offence of advertising Services

97.     Clause 17 inserts a new section 92B in the Immigration and Asylum Act 1999.

98.     Subsection (1) creates a new criminal offence of advertising or offering to provide immigration advice or services when unqualified. Those qualified to provide immigration advice are listed in section 84 of the 1999 Act.

99.     Subsection (2) sets out the behaviour that would constitute advertising or offering to provide immigration advice or services.

100.     Subsection (3) establishes the maximum penalty for the offence which will be a Level 4 fine (£2,500).

101.     Subsection (4) applies subsections (3) to (7) of section 91 of the 1999 Act so that if the new offence is committed by a body corporate, an officer (including partners in Scotland) of that body will be culpable.

102.     Subsection (5) enables the Commissioner to lay an information before a magistrate within six months of the date of the alleged advertising offence having been committed, or within two years of that date and within six months of the offence coming to the attention of the Commissioner.

Clause 18: Appeal to Immigration Services Tribunal

103.     Clause 18 provides that section 87(3)(f) of the Immigration and Asylum Act 1999 shall cease to have effect.

104.     Section 87(2) of the 1999 Act provides a right of appeal to the Immigration Services Tribunal against a relevant decision of the Immigration Services Commissioner; section 87(3) lists the relevant decisions. The relevant decision in section 87(3)(f) is one recorded under paragraph 9(1)(a) of Schedule 5 of the 1999 Act. Paragraph 9(1)(a) of Schedule 5 provides that on determining a complaint against a registered adviser, an employee, or someone being supervised by a registered adviser, the Commissioner may record the complaint and the decision on it for consideration when that registered person next applies for his registration to be continued.

105.     The effect of this clause, therefore, is to remove the right of appeal to the Tribunal where the Commissioner has recorded a complaint on file for consideration when an application for continued registration is received from the immigration adviser concerned. If the Commissioner were to refuse that application for continued registration from such an adviser, a right of appeal would remain by virtue of sections 87(3)(d) of the 1999 Act.

Clause 19: Professional Bodies

106.     Clause 19 amends section 86 of the Immigration and Asylum Act 1999 and paragraph 21of Schedule 5 to that Act.

107.     Subsection (2) inserts a new subsection (2) in section 86. The effect of new subsection (2)(b) is to extend Secretary of State's existing power to make an Order removing the name of a designated professional body from those listed in section 86 of the 1999 Act so that he make such an Order if he considers a designated professional body has failed to comply with a request from the Commissioner for information.

108.     Subsection (3) substitutes a new subsection (9)(b) in section 86. The effect of new subsection (9)(b)(ii) is to extend the Commissioner's existing responsibility when reporting to the Secretary of State about a designated professional body, to include a duty to report where the body has failed to comply with an information request from him.

109.     Subsection (4) inserts a new subsection (9A) in section 86. The effect is to place an obligation on all designated professional bodies to comply with requests from the Commissioner for information.

110.     Subsection (5) substitutes a new paragraph 21(2) in Schedule 5 to the 1999 Act. The effect of new sub-paragraph 21(2)(b) is to extend the Commissioner's existing responsibility, when making his Annual Report to the Secretary of State, so as to include a duty to report on failures on the part of designated professional bodies to comply with requests by him for information.

FEES

Clause 20: Fees

111.     Clause 20 gives the Secretary of State the power, when setting a fee under existing powers in respect of certain immigration and nationality applications, to do so at a rate that is designed both to exceed the administrative cost of determining or processing such an application and to reflect benefits likely to accrue to the person making that application or for whose benefit the application is made. This power may only be exercised with the consent of the Treasury.

112.     Subsection (2) sets out the existing fee-setting powers in respect of which this power is available. It states that the new power is available when the Secretary of State prescribes a fee under section 41(2) of the British Nationality Act 1981 (fees for nationality applications); section 5(1)(a) and (b) of the Immigration and Asylum Act 1999 (fee for an application for leave to remain or variation of leave to enter or remain, where that application is not asylum-based) and section 122 of the Nationality, Immigration and Asylum Act 2002 (fee for an application for an immigration employment document).

113.     Subsection (3) provides a similar power where an Order in Council under section 1 of the Consular Fees Act 1980 prescribes a fee in relation to an application for the issue of a certificate of entitlement to the right of abode in the United Kingdom. The power can be exercised in this limited circumstance without the need for Treasury consent.

Clause 21: Transfer of leave stamps

114.     Clause 21 amends section 5 of the Immigration and Asylum Act 1999 which enables the Secretary of State, with the approval of the Treasury, to make regulations prescribing fees to be paid in connection with certain immigration applications. In particular, section 5(1)(c) enables fees to be prescribed for applications for an indefinite leave stamp to be transferred into the applicant's passport or travel document as the result of the renewal or replacement of his previous passport or travel document.

115.     This clause substitutes a new section 5(1)(c) which will enable fees to be prescribed for applications for limited leave stamps as well as indefinite leave stamps to be transferred into the applicant's passport or other document issued to the applicant, where the leave stamp was previously fixed in another passport or document issued to the applicant.

116.     This clause also replaces section 5(5) Act 1999 (which defines "indefinite leave stamp") with a new subsection (5), which defines "limited leave stamp" and "indefinite leave stamp" for the purposes of section 5. In particular this makes clear that "leave stamps" include stamps, stickers and any other attachment which indicates that a person has been granted limited or indefinite leave to enter or remain in the United Kingdom.

GENERAL

Clause 26: Commencement

117.     Clause 26 contains provisions relating to the coming into force of the Bill. Clause 14 (Deportation or removal: co-operation) and Clause 2 (Entering United Kingdom without passport) will come into force two months after Royal Assent. The remaining provisions come into force on such dates as the Secretary of State (or the Lord Chancellor in the case of Clause 10 (Unification of appeal system) or Schedule 1 or 2) appoints.

118.     Clause 26(3) takes powers, by subordinate legislation, to make transitional arrangements applying the new procedures to cases pending at the time the new provisions come into force.

119.     Clause 26(4) makes it possible for an appeal not available under the new appeals system to be allowed to be continued. The Lord Chancellor also gains powers to terminate proceedings and make other appropriate provisions.

PUBLIC SECTOR FINANCE COSTS

120.     There may be additional costs for Government Departments arising from some provisions in the Bill. Details are set out below. The Bill's other provisions are expected to have negligible expenditure implications for Government Departments. None of the Bill's provisions have tax implications.

Treatment of Claimants

121.     A possible consequence of creating a fifth class of person (failed asylum seeker 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) is that some children might have to be accommodated by local authorities. The costs to local authorities of children being accommodated under these circumstances would be met by Central Government. The savings made by this measure should cover any such costs.

Removal and Detention

122.     There may be cost implications for the electronic monitoring of persons subject to immigration control. However, there should be overall savings because of the savings, for example, in detention costs and costs associated with physical reporting.

PUBLIC SECTOR MANPOWER EFFECTS

123.     The effects of the Bill on public service manpower are set out below. The Bill's other measures are expected to make negligible changes.

Treatment of Claimants

124.     It is possible that adding families as a new class of person who are ineligible for support to Schedule 3 to the Nationality, Immigration and Asylum Act 2002 may result in an increase in IND staff required to deal with these cases.

Fees

125.     Depending on how it is implemented, Clause 20 may result in an increase in staff required to deal with these cases.

SUMMARY OF THE REGULATORY APPRAISAL

126.     Some of the measures in the Bill could result in a direct or indirect cost impact on business, charities or voluntary bodies. Regulatory Impact Assessments have been completed for many of these and will be published. They are summarised below. The total compliance costs for some of the measures will depend on the details of the proposals to be covered in secondary legislation. Those proposals, which may require Orders, Regulations or Codes to be issued by Statutory Instrument will be developed in consultation with industry to ensure that the regulatory impact is minimised. Further Regulatory Impact Assessments for these measures will be completed as the proposals are developed.

Appeals

127.     Unifying the immigration and asylum appeals systems into a single tier of appeal may reduce the amount of publicly and privately funded work available in the asylum and immigration sectors. This will affect those legal firms engaged in this area.

Immigration Services

128.     The power of entry to the premises of unregulated advisers for the purposes of investigating an offence under Section 91 of the 1999 Act could result in some costs to business but these are expected to be minimal.

 
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Prepared: 27 November 2003