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

House of Commons

Session 2003 - 04
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Asylum and Immigration (Treatment of Claimants, etc.) Bill

Asylum and Immigration (Treatment of Claimants, etc.) Bill
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(a)
general, or
(b)
effected so that the State or part remains listed in respect of a
description of person.”
(4)
After section 112(5) of that Act (orders, &c.) insert—
“(5A)
If an instrument makes provision under section 94(5) and 94(6)—
5
(a)
subsection (4)(b) above shall apply, and
(b)
subsection (5)(b) above shall not apply.”
Removal and detention
13
Removing asylum seeker to safe country
(1)
Schedule 3 (which concerns the removal of persons claiming asylum to
10
countries known to protect refugees and to respect human rights) shall have
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.
15
(3)
The following provisions of the Nationality, Immigration and Asylum Act 2002
(c. 41) shall cease to have effect—
(a)
section 80 (new section 11 of 1999 Act), and
(b)
section 93 (appeal from within United Kingdom: “third country”
removal).
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14
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
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
25
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)
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
30
release him” substitute “and he is not detained in pursuance of the sentence or
order of a court”.
15
Deportation or removal: cooperation
(1)
The Secretary of State may require a person to take specified action if the
Secretary of State thinks that—
35
(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
deportation or removal from the United Kingdom.
(2)
In particular, the Secretary of State may require a person to—
40
(a)
provide information or documents to the Secretary of State or to any
other person;

Asylum and Immigration (Treatment of Claimants, etc.) Bill
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(b)
obtain information or documents;
(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);
5
(d)
make, or consent to or cooperate with the making of, an application to
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;
10
(f)
complete a form accurately and completely;
(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).
15
(4)
A person guilty of an offence under subsection (3) 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.
20
(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
25
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)—
30

“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—
35
(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
40
(c)
Schedule 3 to this Act.
(8)
An order under section 27 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.
45

Asylum and Immigration (Treatment of Claimants, etc.) Bill
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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 (c. 77)
5
(control 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,
10
(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
15
(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
(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.
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(3)
Where a reporting restriction could be imposed on an adult—
(a)
he may instead be required to cooperate with electronic monitoring,
and
(b)
the requirement shall be treated for all purposes of the Immigration
Acts as a reporting restriction.
30
(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)
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
35
arrangements as the person imposing the requirement may specify for
detecting and recording by electronic means the location of the adult, or his
presence in or absence from a location—
(a)
at specified times,
(b)
during specified periods of time, or
40
(c)
throughout the currency of the arrangements.
(6)
In particular, arrangements for the electronic monitoring of an adult—
(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
45
with a device;
(d)
may prohibit him from taking or permitting action that would or might
prevent the effective operation of a device;

Asylum and Immigration (Treatment of Claimants, etc.) Bill
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(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
monitoring (and those functions may relate to any aspect or condition
5
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—
(a)
imposes a residence restriction,
10
(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
purposes of this section, and
15
(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.
(9)
Rules under subsection (8)(a) may, in particular, require that arrangements for
20
electronic monitoring impose on a person of a specified description
responsibility for specified aspects of the operation of the arrangements.
(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
25
an area unless the person imposing the requirement has received a
notification from the Secretary of State under subsection (8)(b) in
respect of that area.
(11)
Rules under subsection (8)(a)—
(a)
may include incidental, consequential or transitional provision,
30
(b)
may make provision generally or only in relation to specified cases,
circumstances or areas,
(c)
shall be made by statutory instrument, and
(d)
shall be subject to annulment in pursuance of a resolution of either
House of Parliament.
35
(12)
Before the commencement of section 11 a reference in this section to the
Asylum and Immigration Tribunal shall be treated as a reference to—
(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
40
(b)
the Immigration Appeal Tribunal.
Immigration services
17
Immigration Services Commissioner: power of entry
(1)
After section 92 of the Immigration and Asylum Act 1999 (c. 33) (offences:

Asylum and Immigration (Treatment of Claimants, etc.) Bill
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enforcement) insert—
“92A
    Investigation of offence: power of entry
(1)
On an application made by the Commissioner a justice of the peace may
issue a warrant authorising the Commissioner to enter and search
premises.
5
(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,
(b)
there is material on the premises which is likely to be of
substantial value (whether by itself or together with other
10
material) to the investigation of the offence, and
(c)
any of the conditions specified in subsection (3) is satisfied.
(3)
Those conditions are—
(a)
that it is not practicable to communicate with a person entitled
to grant entry to the premises,
15
(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
produced, and
(d)
that the purpose of a search may be frustrated or seriously
20
prejudiced unless the Commissioner can secure immediate
entry on arrival at the premises.
(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
25
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
summary conviction to—
(a)
imprisonment for a term not exceeding six months,
(b)
a fine not exceeding level 5 on the standard scale, or
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(c)
both.
(7)
In this section—
(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
35
wholly or partly as a dwelling, and
(c)
a reference to material includes a reference to material—
(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
40
Evidence Act 1984 (c. 60)), and
(ii)
whether or not it would be admissible in evidence at a
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
45
peace.

Asylum and Immigration (Treatment of Claimants, etc.) Bill
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(9)
In the application of this section to Northern Ireland the reference to the
Police and Criminal Evidence Act 1984 (c. 60) shall be taken as a
reference to the Police and Criminal Evidence (Northern Ireland) Order
1989 (S.I. 1989/1341 (N.I. 12)).”
(2)
In paragraph 7 of Schedule 5 to the Immigration and Asylum Act 1999 (c. 33)
5
(investigation of complaints, &c.: power of entry)—
(a)
in sub-paragraph (1)(b) after “(b)” insert “, (c)”,
(b)
in sub-paragraph (1)(c) for “registered person.” substitute “registered
or exempt person.”,
(c)
in sub-paragraph (1A)(a) after “(b)” insert “, (c)”,
10
(d)
in sub-paragraph (1A)(b) for “registered person.” substitute “registered
or exempt person.”, and
(e)
after sub-paragraph (8) insert—
     “(9)
Sub-paragraphs (7) and (8) shall apply to an exempt person
as they apply to a registered person, but with a reference to
15
cancellation of registration being treated as a reference to
withdrawal of exemption.
(10)
In this paragraph “exempt person” means a person certified
by the Commissioner as exempt under section 84(4)(a).”
18
Offence of advertising services
20
After section 92A of the Immigration and Asylum Act 1999 (inserted by section
17 above) insert—
“92B
    Advertising
(1)
A person commits an offence if—
(a)
he offers to provide immigration advice or immigration
25
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—
30
(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
35
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.
(4)
Subsections (3) to (7) of section 91 shall have effect for the purposes of
40
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
(or first date) on which the offence is alleged to have been
45
committed, or

Asylum and Immigration (Treatment of Claimants, etc.) Bill
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(b)
it is laid—
(i)
within the period of two years beginning with that date,
and
(ii)
within the period of six months beginning with a date
certified by the Immigration Services Commissioner as
5
the date on which the commission of the offence came to
his notice.
(6)
A complaint charging the commission of an offence under this section
may in Northern Ireland be heard and determined by a magistrates’
court if—
10
(a)
it is made within the period of six months beginning with the
date (or first date) on which the offence is alleged to have been
committed, or
(b)
it is made—
(i)
within the period of two years beginning with that date,
15
and
(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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19
Appeal to Immigration Services Tribunal
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.
20
Professional bodies
(1)
Section 86 of the Immigration and Asylum Act 1999 (designated professional
25
bodies) shall be amended as follows.
(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
30
provision of immigration advice or immigration services, or
(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—
35
“(b)
report to the Secretary of State if the Commissioner considers
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
40
(ii)
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).”