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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 1354/1
 
 

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

30

(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

35

(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;

15

(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).”

25

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.

20

(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

25

(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.

20

(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

25

(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

 
 

 
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