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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(a)
an adjudicator appointed, or treated as if appointed, under section 81
of the Nationality, Immigration and Asylum Act 2002 (c. 41) (appeals),
and
(b)
the Immigration Appeal Tribunal.
7
Failed asylum seekers: withdrawal of support
5
(1)
In Schedule 3 to the Nationality, Immigration and Asylum Act 2002
(witholding and withdrawal of support) after paragraph 7 insert—
“Fifth class of ineligible person: failed asylum-seeker with family
7A
(1) Paragraph 1 applies to a person if—
(a)
he—
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(i)
is treated as an asylum-seeker for the purposes of Part
VI of the Immigration and Asylum Act 1999 (c. 33)
(support) by virtue only of section 94(3A) (failed
asylum-seeker with dependent child), or
(ii)
is treated as an asylum-seeker for the purposes of Part
15
2 of this Act by virtue only of section 18(2),
(b)
the Secretary of State has certified that in his opinion the
person has failed without reasonable excuse to take
reasonable steps—
(i)
to leave the United Kingdom voluntarily, or
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(ii)
to place himself in a position in which he is able to
leave the United Kingdom voluntarily,
(c)
the person has received a copy of the Secretary of State’s
certificate, and
(d)
the period of 14 days, beginning with the date on which the
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person receives the copy of the certificate, has elapsed.
(2)
Paragraph 1 also applies to a dependant of a person to whom that
paragraph applies by virtue of sub-paragraph (1).
(3)
For the purpose of sub-paragraph (1)(d) if the Secretary of State
sends a copy of a certificate by first class post to a person’s last
30
known address, the person shall be treated as receiving the copy on
the second day after the day on which it was posted.
(4)
The Secretary of State may by regulations vary the period specified
in sub-paragraph (1)(d).”
(2)
In paragraph 14(1) and (2) of Schedule 3 to the Nationality, Immigration and
35
Asylum Act 2002 (local authority to notify Secretary of State) for “paragraph 6
or 7” substitute “paragraph 6, 7 or 7A”.
(3)
No appeal may be brought under section 103 of the Immigration and Asylum
Act 1999 (asylum support appeal) against a decision—
(a)
that by virtue of Schedule 3 to the Nationality, Immigration and
40
Asylum Act 2002 a person is not qualified to receive support, or
(b)
on the grounds of the application of a provision of that Schedule, to
stop providing support to a person.
(4)
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
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Asylum and Immigration (Treatment of Claimants, etc.) Bill
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before the coming into force of a provision of the Nationality, Immigration and
Asylum Act 2002.
Enforcement powers
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Immigration officer: power of arrest
(1)
Where an immigration officer in the course of exercising a function under the
5
Immigration Acts forms a reasonable suspicion that a person has committed or
attempted to commit an offence listed in subsection (2), he may arrest the
person without warrant.
(2)
Those offences are—
(a)
the offence of conspiracy at common law (in relation to conspiracy to
10
defraud),
(b)
at common law in Scotland, any of the following offences—
(i)
fraud,
(ii)
conspiracy to defraud,
(iii)
uttering and fraud,
15
(iv)
bigamy,
(v)
theft, and
(vi)
reset,
(c)
an offence under section 57 of the Offences against the Person Act 1861
(c. 100) (bigamy),
20
(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,
(f)
an offence under section 53 of the Registration of Births, Marriages and
25
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)—
(i)
section 1 (theft),
30
(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),
(h)
an offence under section 1, 15, 16, 17 or 21 of the Theft Act (Northern
35
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
1978 (S.I. 1978/1407 (N.I. 23)),
40
(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
(m)
an offence under any of the following provisions of the Forgery and
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Counterfeiting Act 1981 (c. 45)—
(i)
section 1 (forgery),

Asylum and Immigration (Treatment of Claimants, etc.) Bill
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(ii)
section 2 (copying false instrument),
(iii)
section 3 (using false instrument),
(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
5
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
offences under that Act—
(a)
section 28C (entry and search before arrest),
(b)
sections 28E and 28F (entry and search after arrest),
10
(c)
sections 28G and 28H (search of arrested person), and
(d)
section 28I (seized material).
(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
15
and Asylum Act 2002)” substitute “(within the meaning of section 23 of
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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9
Fingerprinting
(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
25
decision has been made;”.
(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);”.
30
(4)
In subsection (9) for paragraph (c) substitute—
“(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
35
(ii)
if a deportation order has been made against him, its
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,
40
Immigration and Asylum Act 2002.”
10
Information about passengers
In paragraph 27B of Schedule 2 to the Immigration Act 1971 (c. 77) (control on
entry: provision of information about passengers) after sub-paragraph (4)

Asylum and Immigration (Treatment of Claimants, etc.) Bill
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insert—
    “(4A)
The officer may ask the carrier to provide a copy of all or part of a
document that relates to a passenger and contains passenger
information.”
Appeals
5
11
Unification of appeal system
(1)
For section 81 of the Nationality, Immigration and Asylum Act 2002 (c. 41)
(appeals: adjudicators) substitute—
“Appeal to Tribunal
81
The Asylum and Immigration Tribunal
10
(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.
(3)
A reference in this Part to the Tribunal is a reference to the Asylum and
15
Immigration Tribunal.”
(2)
In section 82(1) of that Act (right of appeal: general) for “to an adjudicator”
substitute “to the Tribunal”.
(3)
In section 83(2) of that Act (appeal: asylum claim) for “to an adjudicator”
substitute “to the Tribunal”.
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(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—
(a)
sections 100 to 103 (Immigration Appeal Tribunal), and
(b)
Schedule 5 (Immigration Appeal Tribunal).
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(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
so by a party to the appeal.
(2)
A request under subsection (1) must assert that the Tribunal’s decision
30
would have been different but for a clear error of law by the Tribunal
identified in the request.
(3)
A review shall consider only the assertion made in accordance with
subsection (2).
(4)
A review shall be conducted by reference only to written submissions.
35
(5)
But if in the course of a review the Tribunal forms the opinion that the
exceptional nature of the case makes it impossible properly to
determine the review without an oral hearing, the Tribunal may hold
an oral hearing.

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(6)
On a review by the Tribunal of its decision on an appeal the Tribunal
may—
(a)
uphold the decision, or
(b)
substitute another decision.
(7)
On a review by the Tribunal of its decision on an appeal the Tribunal
5
may act under subsection (6)(b) only if satisfied that the decision would
have been different but for a clear error of law by the Tribunal.
(8)
The Tribunal shall not review its decision on an appeal more than
once.”
(7)
After section 108 of that Act (proceedings in private) insert—
10
“108A
   Exclusivity and finality of Tribunal’s jurisdiction
(1)
No court shall have any supervisory or other jurisdiction (whether
statutory or inherent) in relation to the Tribunal.
(2)
No court may entertain proceedings for questioning (whether by way
of appeal or otherwise)—
15
(a)
any determination, decision or other action of the Tribunal
(including a decision about jurisdiction and a decision under
section 105A),
(b)
any action of the President or a Deputy President of the
Tribunal that relates to one or more specified cases,
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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—
25
(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
30
(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,
40
(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

Asylum and Immigration (Treatment of Claimants, etc.) Bill
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and Immigration (Treatment of Claimants, etc.) Act 2004
(removal to safe country), or
(ii)
considering whether a member of the Tribunal has acted
in bad faith.
(4)
A court may consider whether a member of the Tribunal has acted in
5
bad faith, in reliance on subsection (3)(b)(ii), only if satisfied that
significant evidence has been adduced of—
(a)
dishonesty,
(b)
corruption, or
(c)
bias.
10
(5)
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.
(6)
Nothing in this section shall prevent an appeal under section 2, 2B or 7
of the Special Immigration Appeals Commission Act 1997 (c. 68)
15
(appeals to and from Commission).
(7)
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
court a point of law which arises in the course of proceedings before the
20
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
(b)
an earlier decision of an appellate court on a related matter.
25
(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
30
(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
35
(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—
40
(a)
have not been determined by the Tribunal, or
(b)
are the subject of a review under section 105A that has not been
completed.
(5)
Rules of court may make provision about—
(a)
the procedure to be followed by an appellate court on a
45
reference under this section;

Asylum and Immigration (Treatment of Claimants, etc.) Bill
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(b)
the constitution of an appellate court for the purposes of a
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.
5
(7)
In this section “the appropriate appellate court” means—
(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
10
heard by the Tribunal sitting in Scotland, the Court of Session,
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.”
15
(8)
Schedule 2 (which makes amendments consequential on this section, and
transitional provision) shall have effect.
12
Unfounded human rights or asylum claim
(1)
In section 94 of the Nationality, Immigration and Asylum Act 2002 (c. 41) (no
appeal from within United Kingdom for unfounded human rights or asylum
20
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.
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(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,
35
(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.”
40
(2)
In section 94(4) of that Act omit paragraphs (a) to (j).
(3)
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—
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