Immigration, Asylum and Nationality Bill

House of Commons

Session 2005 - 06
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Other Bills before Parliament

Immigration, Asylum and Nationality Bill

Immigration, Asylum and Nationality Bill
1

A
Bill
To
Make provision about immigration, asylum and nationality; and for
connected purposes.
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:—
Appeals
1
Variation of leave to enter or remain
(1)
Section 82(2) of the Nationality, Immigration and Asylum Act 2002 (c. 41)
(right of appeal: definition of immigration decision) shall be amended as
follows.
5
(2)
Omit paragraph (d) (refusal to vary leave to enter or remain).
(3)
Omit paragraph (e) (variation of leave to enter or remain).
(4)
After paragraph (f) (revocation of indefinite leave to enter or remain) insert—
“(fa)
variation of, or refusal to vary, a person’s limited leave to enter
or remain in the United Kingdom if—
10
(i)
the leave was granted to the person as a refugee within
the meaning of the Refugee Convention, and
(ii)
the result of the variation, or refusal, taking effect is that
the person has no leave to enter or remain,
(fb)
variation of, or refusal to vary, a person’s limited leave to enter
15
or remain in the United Kingdom if—
(i)
the leave was granted, or the decision was taken, in
circumstances of a kind specified for the purpose of this
paragraph by order of the Secretary of State, and
(ii)
the result of the variation, or refusal, taking effect is that
20
the person has no leave to enter or remain,”.

Bill 13 54/1

Immigration, Asylum and Nationality Bill
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(5)
After section 83 of that Act (right of appeal: asylum claim) insert—
“83A
Appeal: variation of limited leave
(1)
This section applies where—
(a)
a person has made an asylum claim,
(b)
he was granted limited leave to enter or remain in the United
5
Kingdom as a refugee within the meaning of the Refugee
Convention,
(c)
a decision is made that he is not a refugee, and
(d)
following the decision specified in paragraph (c) he has limited
leave to enter or remain in the United Kingdom otherwise than
10
as a refugee, as a result of which section 82(2)(fa) does not
apply.
(2)
The person may appeal to the Tribunal against the decision to curtail or
to refuse to extend his limited leave.”
2
Removal
15
In section 82(2)(g) of the Nationality, Immigration and Asylum Act 2002 (c. 41)
(right of appeal: removal) for “section 10(1)(a), (b) or (c)” substitute “section
10(1)(a), (b), (ba) or (c)”.
3
Grounds of appeal
(1)
Section 84 of the Nationality, Immigration and Asylum Act 2002 (grounds of
20
appeal) shall be amended as follows.
(2)
After subsection (1) insert—
“(1A)
In the application of subsection (1)(a) to (g) to an appeal under section
82(2)(g) a reference to the decision against which an appeal is brought
(“the appealable decision”) includes a reference to any other decision
25
under or in accordance with the Immigration Acts, other than an
immigration decision within the meaning given by section 82(2),
which—
(a)
was made in respect of the appellant, and
(b)
gave rise to or facilitated the making of the appealable
30
decision.”
(3)
After subsection (3) add—
“(4)
An appeal under section 83A must be brought on the grounds that
removal of the appellant from the United Kingdom would breach the
United Kingdom’s obligations under the Refugee Convention.”
35
4
Entry clearance
For sections 88A, 90 and 91 of the Nationality, Immigration and Asylum Act
2002 (restricted right of appeal in relation to refusal of entry clearance for

Immigration, Asylum and Nationality Bill
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visitor or student) substitute—
“88A
Entry clearance
(1)
A person may not appeal under section 82(1) against refusal of an
application for entry clearance unless the application was made for the
purpose of—
5
(a)
visiting a person of a class or description prescribed by
regulations for the purpose of this subsection, or
(b)
entering as the dependant of a person in circumstances
prescribed by regulations for the purpose of this subsection.
(2)
Regulations under subsection (1) may, in particular—
10
(a)
make provision by reference to whether the applicant is a
member of the family (within such meaning as the regulations
may assign) of the person he seeks to visit;
(b)
provide for the determination of whether one person is
dependent on another;
15
(c)
make provision by reference to the circumstances of the
applicant, of the person whom the applicant seeks to visit or on
whom he depends, or of both (and the regulations may, in
particular, include provision by reference to—
(i)
whether or not a person is lawfully settled in the United
20
Kingdom within such meaning as the regulations may
assign;
(ii)
the duration of two individuals’ residence together);
(d)
make provision by reference to an applicant’s purpose in
entering as a dependant;
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(e)
make provision by reference to immigration rules;
(f)
confer a discretion.
(3)
A person may not appeal under section 82(1) against refusal of entry
clearance if the decision to refuse is taken on grounds which—
(a)
relate to a provision of immigration rules, and
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(b)
are specified for the purpose of this subsection by order of the
Secretary of State.
(4)
Subsections (1) and (3)—
(a)
do not prevent the bringing of an appeal on either or both of the
grounds referred to in section 84(1)(b) and (c), and
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(b)
are without prejudice to the effect of section 88 in relation to an
appeal under section 82(1) against refusal of entry clearance.”
5
Refusal of leave to enter
For section 89 of the Nationality, Immigration and Asylum Act 2002 (c. 41)
(appeal against refusal of leave to enter: visitor or student without entry
40
clearance) substitute—
“89
Refusal of leave to enter
(1)
A person may not appeal under section 82(1) against refusal of leave to
enter the United Kingdom unless—
(a)
on his arrival in the United Kingdom he had entry clearance,
45
and

Immigration, Asylum and Nationality Bill
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(b)
the purpose of entry specified in the entry clearance is the same
as that specified in his application for leave to enter.
(2)
Subsection (1) does not prevent the bringing of an appeal on any or all
of the grounds referred to in section 84(1)(b), (c) and (g).”
6
Legal aid
5
(1)
Section 103D of the Nationality, Immigration and Asylum Act 2002 (c. 41)
(reconsideration: legal aid) shall be amended as follows.
(2)
In subsection (2) for the words “where the Tribunal has decided an appeal
following reconsideration pursuant to an order made” substitute “where an
order for reconsideration is made”.
10
(3)
For subsection (3) substitute—
“(3)
The Tribunal may order payment out of that Fund of the appellant’s
costs—
(a)
in respect of the application for reconsideration;
(b)
in respect of preparation for reconsideration;
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(c)
in respect of the reconsideration.”
7
Abandonment of appeal
For section 104(4) of the Nationality, Immigration and Asylum Act 2002
(pending appeal: deemed abandonment) substitute—
“(4)
An appeal under section 82(1) brought by a person while he is in the
20
United Kingdom shall be treated as abandoned if the appellant—
(a)
leaves the United Kingdom, or
(b)
is granted leave to enter or remain in the United Kingdom.
(4A)
But subsection (4)(b) shall not apply to an appeal if or in so far as it is
brought on the ground specified in section 84(1)(b).”
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8
Grants
Section 110 (grants to advisory organisations) of the Nationality, Immigration
and Asylum Act 2002 shall cease to have effect.
9
Continuation of leave
(1)
Section 3C of the Immigration Act 1971 (c. 77) (continuation of leave to enter or
30
remain pending variation decision) shall be amended as follows.
(2)
Omit subsection (2)(b) and (c) (continuation pending appeal).
(3)
For subsection (6) (decision) substitute—
“(6)
The Secretary of State may make regulations determining when an
application is decided for the purposes of this section; and the
35
regulations—
(a)
may make provision by reference to receipt of a notice,
(b)
may provide for a notice to be treated as having been received
in specified circumstances,

Immigration, Asylum and Nationality Bill
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(c)
may make different provision for different purposes or
circumstances,
(d)
shall be made by statutory instrument, and
(e)
shall be subject to annulment in pursuance of a resolution of
either House of Parliament.”
5
10
Consequential amendments
Schedule 1 (which makes amendments consequential on the preceding
provisions of this Act) shall have effect.
Employment
11
Penalty
10
(1)
It is contrary to this section to employ an adult subject to immigration control
if—
(a)
he has not been granted leave to enter or remain in the United
Kingdom, or
(b)
his leave to enter or remain in the United Kingdom—
15
(i)
is invalid,
(ii)
has expired, or
(iii)
is subject to a condition preventing him from accepting the
employment.
(2)
The Secretary of State may give an employer who acts contrary to this section
20
a notice requiring him to pay a penalty of a specified amount not exceeding the
prescribed maximum.
(3)
An employer is excused from paying a penalty if he shows that he complied
with any prescribed requirements in relation to the employment.
(4)
But the excuse in subsection (3) shall not apply to an employer who knew, at
25
any time during the period of the employment, that it was contrary to this
section.
(5)
The Secretary of State may give a penalty notice without having established
whether subsection (3) applies.
(6)
A penalty notice must—
30
(a)
state why the Secretary of State thinks the employer is liable to the
penalty,
(b)
state the amount of the penalty,
(c)
specify a date, at least 14 days after the date specified in the notice as
the date on which it is given, before which the penalty must be paid,
35
(d)
specify how the penalty must be paid,
(e)
explain how the employer may object to the penalty, and
(f)
explain how the Secretary of State may enforce the penalty.
(7)
An order prescribing requirements for the purposes of subsection (3) may, in
particular—
40
(a)
require the production to an employer of a document of a specified
description;

Immigration, Asylum and Nationality Bill
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(b)
require the production to an employer of one document of each of a
number of specified descriptions;
(c)
require an employer to take specified steps to verify, retain, copy or
record the content of a document produced to him in accordance with
the order;
5
(d)
require action to be taken before employment begins;
(e)
require action to be taken at specified intervals or on specified
occasions during the course of employment.
12
Objection
(1)
This section applies where an employer to whom a penalty notice is given
10
objects on the ground that—
(a)
he is not liable to the imposition of a penalty,
(b)
he is excused payment by virtue of section 11(3), or
(c)
the amount of the penalty is too high.
(2)
The employer may give a notice of objection to the Secretary of State.
15
(3)
A notice of objection must—
(a)
be in writing,
(b)
give the objector’s reasons,
(c)
be given in the prescribed manner, and
(d)
be given before the end of the prescribed period.
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(4)
Where the Secretary of State receives a notice of objection to a penalty he shall
consider it and—
(a)
cancel the penalty,
(b)
reduce the penalty,
(c)
increase the penalty, or
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(d)
determine to take no action.
(5)
Where the Secretary of State considers a notice of objection he shall—
(a)
have regard to the code of practice under section 15 (in so far as the
objection relates to the amount of the penalty),
(b)
inform the objector of his decision before the end of the prescribed
30
period or such longer period as he may agree with the objector,
(c)
if he increases the penalty, issue a new penalty notice under section 11,
and
(d)
if he reduces the penalty, notify the objector of the reduced amount.
13
Appeal
35
(1)
An employer to whom a penalty notice is given may appeal to the court on the
ground that—
(a)
he is not liable to the imposition of a penalty,
(b)
he is excused payment by virtue of section 11(3), or
(c)
the amount of the penalty is too high.
40
(2)
The court may—
(a)
allow the appeal and cancel the penalty,
(b)
allow the appeal and reduce the penalty, or

Immigration, Asylum and Nationality Bill
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(c)
dismiss the appeal.
(3)
An appeal shall be a re-hearing of the Secretary of State’s decision to impose a
penalty and shall be determined having regard to—
(a)
the code of practice under section 15 that has effect at the time of the
appeal (in so far as the appeal relates to the amount of the penalty), and
5
(b)
any other matters which the court thinks relevant (which may include
matters of which the Secretary of State was unaware);

and this subsection has effect despite any provision of rules of court.
(4)
An appeal must be brought within the period of 28 days beginning with—
(a)
the date specified in the penalty notice as the date upon which it is
10
given, or
(b)
if the employer gives a notice of objection and the Secretary of State
reduces the penalty, the date specified in the notice of reduction as the
date upon which it is given, or
(c)
if the employer gives a notice of objection and the Secretary of State
15
determines to take no action, the date specified in the notice of that
determination as the date upon which it is given.
(5)
An appeal may be brought by an employer whether or not—
(a)
he has given a notice of objection under section 12;
(b)
the penalty has been increased or reduced under that section.
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(6)
In this section “the court” means—
(a)
where the employer has his principal place of business in England and
Wales, a county court,
(b)
where the employer has his principal place of business in Scotland, the
sheriff, and
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(c)
where the employer has his principal place of business in Northern
Ireland, a county court.
14
Enforcement
(1)
A sum payable to the Secretary of State as a penalty under section 11 may be
recovered by the Secretary of State as a debt due to him.
30
(2)
In proceedings for the enforcement of a penalty no question may be raised as
to—
(a)
liability to the imposition of the penalty,
(b)
the application of the excuse in section 11(3), or
(c)
the amount of the penalty.
35
(3)
Money paid to the Secretary of State by way of penalty shall be paid into the
Consolidated Fund.
15
Code of practice
(1)
The Secretary of State shall issue a code of practice specifying factors to be
considered by him in determining the amount of a penalty imposed under
40
section 11.
(2)
The code—
(a)
shall not be issued unless a draft has been laid before Parliament, and