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Session 2005 - 06|
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Arrangement of Clauses (Contents)
|Immigration, Asylum And Nationality Bill|
These notes refer to the Immigration, Asylum and Nationality Bill as introduced in the House of Commons on 22nd June 2005 [Bill 13]
IMMIGRATION, ASYLUM AND NATIONALITY BILL
1. These explanatory notes relate to the Immigration, Asylum and Nationality Bill as introduced in the Commons on 22 June 2005. They have been prepared by the Home Office in order to assist the reader in understanding the Bill. They do not form part of the Bill.
2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a section or part of a section does not seem to require any explanation or comment, none is given.
3. The Bill builds primarily on two published Government proposals:
4. "Controlling our borders: Making migration work for Britain" the Home Office five year strategy for asylum and immigration, published in February 2005
5. "Confident Communities in a Secure Britain," the Home Office Strategic Plan, 2004-2008 published in July 2004
6. The Government is committed to rapid implementation of the five-year strategy for asylum and immigration. Key provisions of the strategy need primary legislation to take effect and the Bill therefore forms part of the strategy's wider implementation. It also includes a number of provisions that will facilitate the enforcement and transparency of the system.
[Bill 13EN] 54/1
7. The Bill is arranged under five headings:
8. The Bill will implement key elements of the Government's five year strategy on Asylum and Immigration. It also includes a number of provisions that will facilitate the enforcement and transparency of the system.
9. The provisions:
10. The provisions:
11. The provisions:
Claimants and applicants
12. The provisions:
13. General provisions on money, repeals, commencement, extent, and the title of the Bill.
COMMENTARY ON CLAUSES
Clause 1: Variation of leave to enter or remain
14. This clause amends section 82 of the Nationality, Immigration and Asylum Act 2002, which lists those decisions which attract a right of appeal. Subsection (2) removes from the list a decision to refuse to extend an existing permission to enter or stay. Subsection (3) removes a decision to curtail such permission. Both these decisions result in the person having no further permission to stay and in both cases a further, appealable, decision to remove the person from the United Kingdom is required to enforce the earlier decision.
15. Clause 1(4) also adds two categories of case to the list of definitions of an immigration decision in Section 82 of the Nationality, Immigration and Asylum Act 2002. These categories of case are where a person has been permitted to stay for a limited period as a refugee or in such other category of case as the Secretary of State may specify in an order and there has then been a decision to curtail or to refuse to extend this permission such that the person no longer has any permission to remain in the United Kingdom.
16. Clause 1(5) inserts a new section 83A into the Immigration, Nationality and Asylum Act 2002 which introduces a new right of appeal for people who can no longer be recognised as refugees but who are permitted to stay here in another category. The appeal is limited to asylum grounds only.
Clause 2: Removal
17. A decision to revoke a person's indefinite leave to enter or remain in the United Kingdom under section 76 of the Nationality, Immigration and Asylum Act 2002 is an "immigration decision" as defined in section 82(2)(f) of the 2002 Act which gives rise to an in-country right of appeal against the revocation of leave under section 82(1). The removal from the United Kingdom of persons whose leave has been revoked under 76(3) is provided for by section 10(1)(ba) of the Immigration and Asylum Act 1999, which was inserted by section 76(7) of the 2002 Act. However no corresponding provision was made in section 82(2)(g) of the 2002 Act for a person to have a right of appeal against a decision to remove by way of directions under section 10(1)(ba).
18. Clause 5 amends section 82(2)(g) of the 2002 Act to provide a right of appeal against a decision to remove under section 10(1)(ba) of the 1999 Act. This will give the person a separate right of appeal at each of the two decision stages; the first at the revocation stage and the second at the stage the decision to remove is taken. This separation of appeal rights is considered necessary in light of the importance of Refugee Status. No decision to remove will be taken while an appeal against revocation is pending.
Clause 3: Grounds of appeal
19. Clause 3 works with clause 1; subsection (2) ensures that a person affected by the removal of a right of appeal by Clause 1 has the earlier decision taken into account in an appeal against the later removal decision.
Clause 4: Entry clearance
20. Sections 88A, 90 and 91 of the 2002 Act restrict rights of appeal against refusal of entry clearance in respect of some visitors and students and categories of case specified in an order of the Secretary of State. Clause 3 substitutes for these sections one which limits all appeals against refusal of entry clearance to limited grounds (human rights and race discrimination), with the exception of those in the categories listed. The categories which retain a full right of appeal are family visitors and people wishing to join dependents in the United Kingdom (new Section 88A(1)). Provision is also made for regulations which will define in detail the relationships, degree of dependency and circumstances which count for these categories. In particular, the regulations may specify that the UK sponsor should be lawfully settled here, or that the individuals involved should have resided together for a certain length of time (new Section 88A(2). The Secretary of State may, as before, make an order specifying types of entry clearance refusal made on grounds derived from prescriptive provisions of the immigration rules where the right of appeal is to be limited (new Section 88A(3)). A right of appeal remains in all cases on both human rights and race discrimination grounds (new Section 88A(4)).
Clause 5: Refusal of leave to enter
21. Section 89 of the 2002 Act restricts rights of appeal against refusal of permission to enter at the port of visitors and students who do not hold an entry clearance. The restriction limits the grounds of appeal to human rights and race discrimination and, where the appeal is exercised in the UK, asylum. Clause 4 substitutes a provision which applies the restriction to all appeals against refusal of permission to enter at the port, unless the applicant has an entry clearance at the time of refusal which was issued for the specific purpose for which the person seeks entry. A right of appeal remains in all cases on both human rights and race discrimination grounds.
Clause 6: Legal aid
22. Clause 6 amends section 103D(2) and 103D(3) of the 2002 Act to provide that subsection (3) applies where the Tribunal has been ordered to reconsider its decision on an appeal rather than where it has decided the appeal following reconsideration. This amendment allows representatives to be granted Community Legal Service funding by the appropriate court for work done in preparation for a reconsideration hearing that does not then proceed because the Home Office concedes the appeal, the appeal has to be treated as abandoned or where the appellant withdraws the appeal. The previous drafting of section 103D did not cater for the situation where an appeal is withdrawn, abandoned or conceded after reconsideration has been ordered but before it takes place, and the appellant's representative has already carried out some preparatory work for the reconsideration.
Clause 7: Abandonment of appeal
23. Section 104(4) of the 2002 Act provides that when a person has an appeal pending the appeal shall be treated as abandoned if the person is granted leave to enter or remain in the United Kingdom or leaves the United Kingdom. Clause 5 amends section 104 to ensure that neither of these events causes an appeal to be treated as abandoned if the appeal was not brought in the United Kingdom. This prevents anomalies such as an appeal against refusal of entry clearance being treated as abandoned if an entry clearance conferring leave to enter is later granted for a different purpose (new Section 104(4)). A new section 104(4A) ensures that an appeal brought on race discrimination grounds will continue on those grounds if the appeal is otherwise treated as abandoned when leave is granted.
Clause 8: Grants
24. Clause 8 provides that section 110 of the 2002 Act, which allowed grants to be made to organisations giving advice in relation to appeals, shall cease to have effect. The section has become redundant since funding for this purpose is now the responsibility of the Legal Services Commission.
Clause 9: Continuation of leave
25. Clause 9 amends section 3C of the Immigration Act 1971 (the 1971 Act), which currently extends formal permission to remain in the United Kingdom ("leave") if such permission expires while an application to extend it is still being considered and for such time as an appeal against a decision to curtail it or to refuse to extend it is pending. Subsection (2) removes provision for the leave to be extended while an appeal is pending. Section 3C(6) of the 1971 Act defines when an application is decided for the purposes of section 3C as when a notice of decision is given in accordance with regulations made under section 105 of the 2002 Act, but non-appealable decisions do not properly come within the terms of those Regulations. Subsection (3) replaces section 3C(6) with a provision enabling the Secretary of State to make regulations which will better define the types of notice which terminate leave extended by section 3C.
Clause 10: Consequential amendments
26. Clause 10 causes the consequential amendments listed in Schedule 1 to have effect.
27. Paragraph 3 amends section 82(3) of the 2002 Act to remove reference to those decisions that are no longer directly appealable as a result of clause 1 and to refer to the new decisions which that clause introduces. Paragraph 7 makes a similar consequential amendment to section 88 of the 2002 Act, removing reference to the deleted decisions. Paragraph 8 amends section 92(2) of the 2002 Act, which specifies certain types of decision which attract a right of appeal which is suspensive (that is, it can be pursued in the United Kingdom) regardless of the nature of the application; the revised subsection no longer refers to the decisions which are no longer appealable by virtue of Clause 1 but refers to the new decisions which that clause introduces. Paragraph 9 removes references to the rights of appeal which will no longer exist from section 94(1A) of the 2002 Act, which deals with unfounded asylum claims.
Schedule 1: Immigration and Asylum Appeals: Consequential Amendments
28. Paragraphs 2, 4 to 6, 10 to 14, 17 and 18 make provision in respect of the Nationality, Immigration and Asylum Act 2002, the British Nationality Act 1981, the Special Immigration Appeals Commission Act 1997 and section 72(9) of the 2002 Act, respectively relating to the new right of appeal introduced by clause 1(5); where references to Section 83 of the 2002 Act occur in that Act (right of appeal when asylum is refused but permission is nevertheless given to enter or remain) references are also made to the new provision, section 83A so that rights of appeal under both sections 83 and 83A are treated equally.
29. Schedule 1 paragraph 15 inserts a new provision in section 112 of the 2002 Act (regulations and orders) which requires that an order specifying those categories of case in which a right of appeal will be available against a decision to curtail or to refuse to extend permission to stay must be approved by resolution of both Houses of Parliament.
30. Paragraph 16 replaces the definition of an immigration appellate body in section 57A(5) of the Race Relations Act 1976 with a reference to the Asylum and Immigration Tribunal, established by section 26 and schedules 1 and 2 of the Asylum and Immigration (Treatment of Claimants) Act 2004. Section 57A(5) of the 1976 Act provides that where an immigration appellate body has made a decision relating to racial discrimination, that decision cannot be challenged and is not affected by proceedings in the County Court under section 57 of the 1976 Act.
Clause 11: Penalty
31. Clause 11 provides that a person is liable to a penalty if he employs an adult subject to immigration control who has not been granted leave to enter or remain in the United Kingdom or whose leave is invalid, has expired, or is subject to a condition preventing him from accepting the employment. An employer is excused from paying a penalty if he complies with the requirements of an order made by the Secretary of State. The excuse does not apply where the employer knew that his employment of the individual was unlawful. The clause describes the matters to be covered in the penalty notice and sets out the parameters of the requirements which may be provided for in an order of the Secretary of State. Those are the requirements which, if complied with, will excuse the employer from paying the penalty.
32. Subsection (1) sets out the circumstances in which an employer may be liable to a penalty. Subsection (2) provides the Secretary of State's power to impose a penalty.
33. Subsection (3) sets out the circumstances in which an employer is excused from paying a penalty. Subsection (4) provides that the employer loses the excuse if he knew at any time during the employment that it was contrary to this section. Subsection (5) provides that as a matter of law, the onus is on the employer to satisfy the Secretary of State that he can establish an excuse under subsection (3), rather than on the Secretary of State to establish this prior to the service of a penalty notice.
34. Subsection (6) sets out the specific matters to be covered in a penalty notice, including the reason why the Secretary of State thinks the employer is liable, the amount of the penalty, the date before it should be paid, and other practical points.
35. Subsection (7) sets out the parameters of the requirements which may be placed on employers by way of an order of the Secretary of State. The requirements, if complied with, will excuse the employer from paying a penalty. They relate to the checking, copying and retention of specified documents.
|© Parliamentary copyright 2005||Prepared: 23 June 2005|