|
|
| |
| |
|
| |
| |
| |
[AS AMENDED IN STANDING COMMITTEE B] |
| |
| |
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:— |
| |
| |
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— |
| |
| 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, |
| 15 |
(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 |
| |
| |
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 |
| 5 |
immigration document which— |
| |
| |
(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 |
| 10 |
an offence if he does not have with him an immigration document which— |
| |
| |
(b) | satisfactorily establishes the child’s identity and nationality or |
| |
| |
(3) | It is a defence for a person charged with an offence under subsection (1) to |
| 15 |
| |
(a) | that he is an EEA national, |
| |
(b) | that he is a member of the family of an EEA national and that he is |
| |
exercising a right under the Community Treaties in respect of entry to |
| |
or residence in the United Kingdom, or |
| 20 |
(c) | 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, |
| 25 |
(b) | that the child is a member of the family of an EEA national and that the |
| |
child is exercising a right under the Community Treaties in respect of |
| |
entry to or residence in the United Kingdom, or |
| |
(c) | that the person has a reasonable excuse for not being in possession of a |
| |
document of the kind specified in subsection (2). |
| 30 |
(5) | For the purposes of subsections (3) and (4)— |
| |
(a) | the fact that a document was deliberately destroyed or disposed of is |
| |
not a reasonable excuse for not being in possession of it, unless it is |
| |
shown that the destruction or disposal was— |
| |
(i) | for a reasonable cause, or |
| 35 |
(ii) | beyond the control of the person charged with the offence, and |
| |
(b) | in paragraph (a)(i) “reasonable cause” does not include the purpose |
| |
| |
(i) | delaying the handling or resolution of a claim or application or |
| |
the taking of a decision, |
| 40 |
(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 |
| |
| |
(6) | A person shall be presumed for the purposes of this section not to have a |
| 45 |
document with him if he fails to produce it to an immigration officer on |
| |
| |
|
| |
|
|
| |
| |
|
(7) | A person guilty of an offence under this section shall be liable— |
| |
(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. |
| 5 |
(8) | If a constable or immigration officer reasonably suspects that a person has |
| |
committed an offence under this section he may arrest the person without |
| |
| |
(9) | An offence under this section shall be treated as— |
| |
(a) | a relevant offence for the purposes of sections 28B and 28D of the |
| 10 |
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 |
| |
| |
| 15 |
| “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 |
| |
| “immigration document” means— |
| |
| 20 |
(b) | a document which relates to a national of a State other than the |
| |
United Kingdom and which is designed to serve the same |
| |
| |
3 | Immigration documents: forgery |
| |
(1) | Section 5 of the Forgery and Counterfeiting Act 1981 (c. 45) (offences relating |
| 25 |
to various documents) shall be amended as follows. |
| |
(2) | After subsection (5)(f) (passports) insert— |
| |
“(fa) | immigration documents;”. |
| |
(3) | After subsection (8) add— |
| |
“(9) | In subsection (5)(fa) “immigration document” means a card, adhesive |
| 30 |
label or other instrument which satisfies subsection (10) or (11). |
| |
(10) | A card, adhesive label or other instrument satisfies this subsection if |
| |
| |
(a) | is designed to be given, in the exercise of a function under the |
| |
Immigration Acts (within the meaning of section 23 of the |
| 35 |
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. |
| 40 |
(11) | A card, adhesive label or other instrument satisfies this subsection if it |
| |
is given to a person to confirm a right of his under the Community |
| |
Treaties in respect of entry to or residence in the United Kingdom.” |
| |
|
| |
|
|
| |
| |
|
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 |
| |
| 5 |
(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— |
| 10 |
(a) | he intends to exploit the passenger in the United Kingdom or |
| |
| |
(b) | he believes that another person is likely to exploit the passenger in the |
| |
United Kingdom or elsewhere. |
| |
(3) | A person commits an offence if he arranges or facilitates the departure from the |
| 15 |
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 |
| |
| |
(4) | For the purposes of this section a person is exploited if (and only if)— |
| 20 |
(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 |
| |
Human Organ Transplants Act 1989 (c. 31) or the Human Organ |
| 25 |
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 |
| |
(iii) | to enable another person to acquire benefits of any kind. |
| 30 |
(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 |
| |
months, to a fine not exceeding the statutory maximum or to both. |
| 35 |
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) |
| |
| 40 |
(c) | outside the United Kingdom by a body incorporated under the law of |
| |
a part of the United Kingdom. |
| |
(2) | This subsection applies to— |
| |
| |
(b) | a British overseas territories citizen, |
| 45 |
(c) | a British National (Overseas), |
| |
|
| |
|
|
| |
| |
|
(d) | a British Overseas citizen, |
| |
(e) | a person who is a British subject under the British Nationality Act 1981 |
| |
| |
(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 |
| 5 |
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 |
| |
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. |
| 10 |
(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).” |
| |
(6) | After paragraph 2(n) of Schedule 4 to the Criminal Justice and Court Services |
| |
Act 2000 (c. 43) (offence against child) insert— |
| 15 |
“(o) | an offence under section 4 of the Asylum and Immigration |
| |
(Treatment of Claimants, etc.) Act 2004 (trafficking people for |
| |
| |
(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— |
| 20 |
“(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 |
| |
(lifestyle offences: Northern Ireland: people trafficking) add— |
| |
“(3) | An offence under section 4 of the Asylum and Immigration |
| 25 |
(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)) |
| |
(offence against child) insert— |
| |
“(m) | an offence under section 4 of the Asylum and Immigration |
| 30 |
(Treatment of Claimants, etc.) Act 2004 (trafficking people for |
| |
| |
| |
| |
(1) | In determining whether to believe a statement made by or on behalf of a person |
| 35 |
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 |
| |
| |
(a) | is designed or likely to conceal information, |
| |
(b) | is designed or likely to mislead, |
| 40 |
(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. |
| |
|
| |
|
|
| |
| |
|
(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 |
| |
| |
(a) | failure without reasonable explanation to produce a passport on |
| |
request to an immigration officer or to the Secretary of State, |
| 5 |
(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 |
| 10 |
(e) | failure without reasonable explanation to answer a question asked by a |
| |
| |
(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 |
| |
or human rights claim while in a safe country shall be treated as behaviour that |
| 15 |
| |
(4) | Without prejudice to the generality of subsection (1) the fact that a person did |
| |
not make an asylum claim or human rights claim before being notified of an |
| |
immigration decision shall be treated as behaviour that damages his |
| |
credibility, unless the claim relies wholly on matters arising after the |
| 20 |
| |
(5) | Without prejudice to the generality of subsection (1) the fact that a person did |
| |
not make an asylum claim or human rights claim before being arrested under |
| |
an immigration provision shall be treated as behaviour that damages his |
| |
| 25 |
(a) | the person had no reasonable opportunity to make the claim before the |
| |
| |
(b) | the claim relies wholly on matters arising after the arrest. |
| |
| |
| “asylum claim” has the meaning given by section 113(1) of the |
| 30 |
Nationality, Immigration and Asylum Act 2002 (c. 41) (subject to |
| |
| |
| “deciding authority” means— |
| |
(a) | an immigration officer, |
| |
(b) | the Secretary of State, |
| 35 |
(c) | the Asylum and Immigration Tribunal, or |
| |
(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 |
| |
| 40 |
| “immigration decision” means— |
| |
(a) | refusal of leave to enter the United Kingdom, |
| |
(b) | refusal to vary a person’s leave to enter or remain in the United |
| |
| |
(c) | grant of leave to enter or remain in the United Kingdom, |
| 45 |
(d) | a decision that a person is to be removed from the United |
| |
Kingdom by way of directions under section 10(1)(a), (b), (ba) or |
| |
(c) of the Immigration and Asylum Act 1999 (c. 33) (removal of |
| |
persons unlawfully in United Kingdom), |
| |
|
| |
|
|
| |
| |
|
(e) | a decision that a person is to be removed from the United |
| |
Kingdom by way of directions under paragraphs 8 to 12 of |
| |
Schedule 2 to the Immigration Act 1971 (c. 77) (control of entry: |
| |
| |
(f) | a decision to make a deportation order under section 5(1) of that |
| 5 |
| |
| “immigration provision” means— |
| |
(a) | sections 28A, 28AA, 28B, 28C and 28CA of the Immigration Act |
| |
1971 (immigration offences: enforcement), |
| |
(b) | paragraph 17 of Schedule 2 to that Act (control of entry), and |
| 10 |
(c) | section 8 of this Act, |
| |
| “notified” means notified in such manner as may be specified by |
| |
regulations made by the Secretary of State, |
| |
| “passport” includes a document which relates to a national of a country |
| |
other than the United Kingdom and which is designed to serve the |
| 15 |
same purpose as a passport, and |
| |
| “safe country” means a country to which Part 2 of Schedule 3 applies. |
| |
(7) | A passport produced by or on behalf of a person is valid for the purposes of |
| |
| |
(a) | relates to the person by whom or on whose behalf it is produced, |
| 20 |
| |
(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. |
| |
(8) | In subsection (3) a reference to an asylum claim or human rights claim shall be |
| 25 |
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 |
| |
| |
(9) | Regulations under subsection (4) specifying a manner of notification may, in |
| 30 |
| |
(a) | apply or refer to regulations under section 105 of the Nationality, |
| |
Immigration and Asylum Act 2002 (c. 41) (notice of immigration |
| |
| |
(b) | make provision similar to provision that is or could be made by |
| 35 |
regulations under that section; |
| |
(c) | modify a provision of regulations under that section in its effect for the |
| |
purpose of regulations under this section; |
| |
(d) | provide for notice to be treated as received at a specified time if sent to |
| |
a specified class of place in a specified manner. |
| 40 |
(10) | Regulations under subsection (4) specifying a manner of notification— |
| |
(a) | may make incidental, consequential or transitional provision, |
| |
(b) | shall be made by statutory instrument, and |
| |
(c) | shall be subject to annulment in pursuance of a resolution of either |
| |
| 45 |
(11) | Before the coming into force of section 11 a reference in this section to the |
| |
Asylum and Immigration Tribunal shall be treated as a reference to— |
| |
|
| |
|