House of Commons - Explanatory Note
Immigration, Asylum And Nationality Bill - continued          House of Commons

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     Clause 12: Objection

36.     Clause 12 sets out the procedure for employers to object to the Secretary of State in relation to a penalty notice, and for the Secretary of State to consider objections.

37.     Subsections (1) and (2) provide that an employer may object to his liability to the imposition of a penalty and to the amount. He may also object on the grounds that he is excused payment because he has complied with the requirements of an order under clause 11 subsection (7).

38.     Subsection (3) sets out the form the objection must take. It enables the Secretary of State to prescribe the manner and time period in which the objection should be made.

39.     Subsections (4) and (5) cover the actions to be carried out by the Secretary of State on receipt of an objection, and the possible outcomes of his consideration. Subsection (4) provides that the Secretary of State must consider an objection and may cancel, reduce or increase it or take no action. Subsection (5) provides that where the Secretary of State considers a notice of objection, he must have regard to the code of practice issued under clause 15 specifying the criteria to be applied in determining and the amount. The Secretary of State must inform the objector of his decision within a prescribed or agreed period. If the penalty is increased, a new notice must be issued. If the penalty is reduced, the Secretary of State must inform the objector.

     Clause 13: Appeal

40.     Clause 13 sets out the arrangements for an employer wishing to appeal to the court against a penalty.

41.     Subsection (1) provides that an employer on whom a penalty is served may appeal to the court on the grounds that he is not liable to the penalty, the amount is too high, or he is excused payment having complied with the specified requirements.

42.     Subsection (2) covers the actions that may be taken by the court. Subsection (3) clarifies the nature of the appeal and the matters to which the court must have regard in determining the case. Subsection (4) specifies the time period within which an appeal may be brought. The 28 day period runs from the specified date upon which the notice is given, including where the Secretary of State imposes a new notice increasing the penalty following his consideration of an objection under clause 12. The 28 day period also runs from the date on which, having considered an objection under clause 12, the Secretary of State gives the employer notice that the penalty is reduced or that he intends to make no change to the penalty. Subsection (5) provides that an appeal may be brought by an employer irrespective of whether he has objected to the Secretary of State under clause 12 and the outcome of any objection. Subsection (6) defines "court" for the purpose of the clause.

Clause 14: Enforcement

43.     Clause 14 covers the arrangements for enforcing a penalty imposed by the Secretary of State. Subsection (1) provides that the amount may be recovered as a debt. Subsection (2) restricts the matters that may be raised in proceedings for the enforcement of the penalty. In such proceedings, no question may be raised as to the employer's liability to the penalty or its amount, because the legislation provides a separate right of action in relation to these matters in clause 13. Subsection (3) provides that any penalty money paid to the Secretary of State shall be paid into the Consolidated Fund.

     Clause 15: Code of practice

44.     Clause 15 requires the Secretary of State to issue a code of practice specifying the criteria to be applied in determining whether to impose a penalty and the amount. The code must be laid before Parliament in draft before it can come into force by order of the Secretary of State, who must review the code from time to time.

     Clause 16: Orders

45.     Clause 16 elaborates on the Secretary of State's order-making powers under clauses 11, 12 and 15 and sets out that they are all subject to the negative resolution procedure.

     Clause 17: Offence

46.     Clause 17 creates a new criminal offence of employing a person knowing that they are an adult subject to immigration control who has not been granted leave to enter or remain (unless granted permission to work by the Secretary of State), or whose leave to remain is invalid or subject to a condition preventing him from accepting the employment. On conviction following indictment, the maximum penalty is two years imprisonment and/or a fine. On summary conviction, the maximum penalty is 12 months imprisonment in England and Wales (once section 154(1) of the Criminal Justice Act 2003 is commenced), 6 months in Scotland or Northern Ireland, or a fine up to the statutory maximum, or both.

47.     Subsection (3) provides that the offence is to be treated as a relevant offence for the purpose of sections 28B and 28D of the Immigration Act 1971 and an offence under Part III of that Act for the purposes of sections 28E, 28G and 28H. The practical effect of this is to provide immigration officers with arrest, entry and search powers in relation to the offence.

     Clause 18: Offence: bodies corporate, &c

48.     Clause 18 defines the liability of bodies corporate, officers of bodies, and members of partnerships in relation to the criminal offence in clause 17. Subsection (1) provides that a body shall be treated as knowing a fact about an employee if a person who has responsibility within that body for an aspect of the employment knows the fact. Subsection (2) provides that where an offence under clause 16 is committed by a body corporate with the consent or connivance of an officer of the body, the officer as well as the body shall be treated as having committed the offence. Subsection (3) defines an officer of a body for the purpose of the section, and subsection (4) relates to partnerships.

     Clause 19: Discrimination: code of practice

49.     Clause 19 requires the Secretary of State to issue a code of practice to employers specifying how to avoid contravening the Race Relations Act 1976 or the Race Relations (Northern Ireland) Order 1996 while avoiding liability for a penalty under clause 11 or the commission of a criminal offence under clause 17.

50.     Subsection (2) sets out the steps the Secretary of State must take to consult certain bodies before issuing the code. Subsection (3) provides that the code shall be brought into operation following an order made by the Secretary of State. Subsection (4) provides that a breach of the code does not make a person liable to civil or criminal proceedings, but may be taken into account by a court of tribunal.

     Clause 20: Temporary admission, &c.

51.     Clause 20 provides that where a person is at large in the United Kingdom by virtue of having been granted temporary admission or release from detention under paragraph 21(1) of Schedule 2 to the Immigration Act 1971, he is to be treated for the purpose of the employer's liability to a penalty in clause 11 or the commission of an offence in clause 17 as if the person had been granted leave to enter the United Kingdom and any restriction as to employment shall be treated as a condition of leave. The practical effect of this is that an employer is not liable to a penalty under clause 11 and commits no offence under clause 17 if he employs someone who does not have leave to enter or remain, but has been granted temporary admission or release together with permission to take employment under paragraph 21(1) of Schedule 2 to the Immigration Act 1971.

     INFORMATION

     Clause 23: Documents produced or found

52.     This clause replaces and amends sub-paragraphs (2A) and (4) of paragraph 4 of Schedule 2 to the Immigration Act 1971. It makes two substantive changes. First, it brings together the provisions on detention and examination of passports and other documents produced by passengers, or found on them, while being examined under Schedule 2 and provides that the same conditions govern detention and examination for all documents. Second, it provides a new power to enable immigration officers to require passengers being examined under Schedule 2 to provide biometric information (such as fingerprints) for the purpose of ascertaining whether a passenger in question is the rightful holder of the passport or other document he produces.

     Clause 24: Attendance for fingerprinting

53.     Clause 24 seeks to amend section 142 of the Immigration and Asylum Act 1999.

54.     Section 141 of the Immigration and Asylum Act 1999 allows an authorized person (as defined) to take fingerprints from a person to whom the section applies. The section applies to, amongst others, asylum-seekers and their dependants. Section 142 of that Act allows the Secretary of State, by notice in writing, to require a person to whom section 141 applies to attend a specified place for fingerprinting. Section 142(2) currently states that the notice must give the person a period of at least seven days within which to attend. Further, that period cannot begin until at least seven days have passed since the date of the notice. The notice may also require the person to attend on a specified time of day or during specified hours. In relation to asylum-seekers and their dependants only, this clause seeks to amend section 142 so that a notice under the section:

  • may require the person to attend during a specified period, beginning with a day not less than three days after the date given in the notice as its date of issue,

  • may require the person to attend on a specified day not less than three days after the date given in the notice as its date of issue, and

  • may require the person to attend at a specified time of day or during specified hours.

     Clause 25: Proof of right of abode

55.     Clause 25 makes a series of amendments to section 3(9) of the Immigration Act 1971 which relates to the means by which a person seeking leave to enter the UK and claiming to have the right of abode there shall prove that right. The documents which can be used for this include a United Kingdom passport describing him as a British citizen, but not a United Kingdom passport describing him as a British subject with the right of abode in the United Kingdom. These individuals are, instead, able to evidence their right of abode by production of a certificate of entitlement as mentioned in s.3(9)(b) of the Immigration Act 1971. Clause 25, sub-section (1)(b) remedies this by adding the passport issued to a British subject and endorsed with the right of abode in the United Kingdom to s.3(9).

56.     Sub-sections (1)(c) and (d) add to the documents which may be used as evidence the identity cards issued to British citizens and to British subjects with a right of abode in the United Kingdom under the provisions in the current Identity Cards Bill. This will enable these cards to be used for travel within the European Economic Area in the same way as other Member States' national identity cards are used now.

57.     Clause 25, by replacing section 3(9) in its entirety, removes the now redundant reference to a passport issued to a "citizen of the United Kingdom and Colonies", as this category has not existed since 1 January 1983 when the British Nationality Act 1981 came into force.

Clause 26: Provision of information to immigration officers

58.     Clause 26(2) amends Paragraph 27 of Schedule 2 to the Immigration Act 1971 to enable the collection of passenger lists and crew information on or before the arrival of a ship or aircraft into the United Kingdom. As it stands paragraph 27(2) allows passenger lists or crew information to be requested for ships or aircraft arriving in the UK but this allows information to be collected in advance. Clause 26(2) also introduces a new power to request passenger lists or crew information from a ship or aircraft which is leaving or is expected to leave the United Kingdom.

59.     Paragraph 27(2) is amended to apply to the owners or agents of ship or aircraft as well as the captain.

60.     It also amends paragraph 27(2) to enable the Secretary of State to require the information to be provided in the form and manner that he directs for example by electronic means.

61.     Clause 26(3) amends Paragraph 27(B) of Schedule 2 to the Immigration Act 1971 to enable an immigration officer also to request service information about the voyage or flight relating to ships or aircraft of the carrier. Service information will be specified in secondary legislation.

62.     Clause 26(3) also makes consequential amendments to offences under section 27 of the Immigration Act 1971.

     Clause 27: Passenger and crew information: police powers

63.     This clause provides information acquisition powers for the Police in respect of ships and aircraft arriving (or expected to arrive) in or leaving (or expected to leave) the UK. A constable of at least the rank of superintendent may request passenger or crew information from the owner or agent of a ship or aircraft. Passenger and crew information will be specified in secondary legislation. It is also possible for the constable of at least the rank of superintendent to request service information which will also be specified in secondary legislation.

64.      Secondary legislation will also specify the form and manner in which information is to be provided.

65.      The clause requires passengers and crew members to provide the owner or agent of a ship or aircraft with any information that he requires for the purposes of complying with a requirement to provide information.

66.      Requests shall be in writing, may apply generally throughout a specified period or only to one or more specified ships or aircraft and must state the information required and the date or time by which the information must be provided.

67.      Since police functions in Scotland are devolved, Scottish Police will be able to capture information for police purposes if they are or relate to reserved matters e.g. national security.

     Clause 28: Freight information: police powers

68.      This clause provides information acquisition powers for the Police in respect of ships or aircraft arriving (or expected to arrive) or leaving (or expected to leave) the UK in respect of freight information. It makes comparable provision to that in clause 27.

Clause 29: Offence

69.      This section explains the penalties that can be applied for non-compliance with a requirement to provide information under clause 27 or 28.

70.     This clause extends to Scotland.

Clause 30: Power of Revenue and Customs to obtain information

71.     This section amends s.35(2) and (3) of the Customs & Excise Management Act to mean that the report provisions which these sections empower the Commissioners to direct apply to every ship and aircraft arriving or expected to arrive in the UK. The effect of this change is to allow the Commissioners' Directions made under s.35 to be amended to require the provision of the passenger data they direct to be made in advance of the arrival of the means of transport.

     Clause 31: Duty to share information

72.     Clause 31 introduces a new power which provides for information obtained or held by the Border Agencies (Immigration Service, Police Service and HM Revenue and Customs) in the course of their functions to be shared, to the extent that the information is likely to be of use for immigration, police or Revenue and Customs purposes (which are terms defined in sections 20 and 21 of the Immigration and Asylum Act 1999).

73.     The duty on a chief officer of police in Scotland to share information only applies to information which is likely to be of use for immigration, revenue and customs purposes and police purposes in so far as they are or relate to reserved matters (within the meaning of the Scotland Act 1998).

Clause 32: Information sharing: security purposes

74.     Clause 32 introduces a new power which supports the sharing of information relating to travel or freight for security purposes and defines the actors and purposes to whom the provision applies.

75.     The clause provides that the Secretary of State in so far as he has functions under the Immigration Acts, the police, HM Revenue and Customs, the Security Service, the Secret Intelligence Service and the Government Communications Headquarters may share specified information which is obtained or held by them in the course of their functions to the extent that the information is likely to be of use for the purposes of functions specified in section 1 of the Security Service Act 1989 and sections 1 or 3 of the Intelligence Services Act 1994.

76.     Clause 32 provides that the information shared shall be available to each of the persons specified above and may be used only for the purposes specified in the Security Service Act 1989 and the Intelligence Services Act 1994, but without prejudice to the duty to share data under clause.

Clause 33: code of practice

77.     Clause 33 will require the Secretary of State to issue a Code or Codes of Practice governing use of information shared in accordance with clause 31(1) and 32(1) and the extent to which, or form and manner in which, shared information is to be made available with those clauses.

78.     Subsections (2) and (4) provide that a draft of the code of practice shall be laid before Parliament before being issued and that the code of practice will come into force by means of an order, subject to the negative resolution procedure. Subsection (3) provides that a code of practice may be reviewed but that any revision will be subject to the procedures set out in subsections (2) and (4).

79.     Subsections (2) and (4) provide that a draft of the code of practice will be laid before Parliament and that the code of practice will come into force by means of an order, subject to the negative resolution procedure. Subsection (3) provides that a code of practice may be reviewed but that any revision will be subject to the procedures set out in subsections (2) and (4).

     Clause 34: Disclosure to law enforcement agencies

80.     Clause 34 provides a power for a police service to disclose information obtained in accordance with clauses 27 or 28 to the police services in Jersey, Guernsey, the Isle of Man and a foreign law enforcement agency. A foreign law enforcement agency is defined as a person outside the UK with functions similar to a police force in the UK or Serious Organised Crime Agency.

81.     The clause applies to Scotland.

Clause 35: Searches: contracting out

82.     Subsection (1) permits an authorised person to search a ship, aircraft, vehicle or other thing for the purpose of identifying individuals who an immigration officer may wish to examine. The reference to "other thing" reflects the search of things on board ships or aircraft in paragraph 1(5) of Schedule 2.

83.     Subsection (2) defines an authorised person and makes it clear that a ship, aircraft, vehicle or other thing can only be searched if an Immigration Officer would have power to search it under paragraph 1(5) of Schedule 2 to the Immigration Act 1971.

84.     Subsection (3) & (4) states that the Secretary of State may authorise a specified class of constable for the purposes of this section or with the consent of the Commissioners for Her Majesty's Revenue and Customs, authorise an officer or a specified class of officer of Revenue and Customs for the purpose of this section.

85.     Subsection (5) provides that before authorising a person (other than a constable or officer of Revenue and Customs) for the purposes of this clause, the Secretary of State must be satisfied that the person is fit and proper for the purpose and properly trained.

86.     Subsection (6) sets out the arrangements which the Secretary of State may make for the exercise by authorised persons of the powers conferred by this clause (which include the power enter into contracts with private contractors for the provision of authorised persons other than constables and officers of Revenue and Customs).

87.     Subsection (7)(a) gives the authorised person ancillary powers of search and detention in relation to any individual who the authorised person discovers while exercising the power to search. It provides for power to search for items that may be used for self-harm, cause harm to others, or to assist in escape from detention. Furthermore powers are provided to search for items establishing information concerning identity, nationality, citizenship or information about the individual's journey.

88.     Subsection (7)(b) gives the power to retain items found during the course of a section (7)(a) search and to deliver them to an Immigration Officer.

89.     Subsection (7)(c)(d) &(e) allows an authorised person to detain an individual for a period of up to three hours, pending the arrival of an Immigration Officer or to deliver the individual to an Immigration Officer as soon as is reasonably practicable. Subsection (e) provides for the authorised person to use reasonable force pursuant to carrying out his duties under paragraphs (a) to (d).

90.     Subsection (8)(a) stipulates that searches may not include the removal of clothing other than an outer coat, jacket or glove, but the individual being searched may be required to open his mouth.

91.     Subsection (8)(b) excludes items subject to legal privilege from the powers of seizure. Legal privilege is as defined in

  • Police and Criminal Evidence Act 1984 (c.60) (England and Wales)

  • Proceeds of Crime Act 2002 (c.29) (Scotland)

  • Police and Criminal Evidence (Northern Ireland) Order 1989 (SI.1989/1341 (N.I 12 ))

     Clause 36: Section 35: supplemental

92.     Clause 36 covers the appointment of a Monitor, contractual matters, offences and supplemental provisions

93.     Subsection (1) requires the Secretary of State to appoint a Monitor. This person will be a Crown Servant and his or her role will be to monitor the exercise of powers of authorised persons other than constables or officers of Revenue and Customs and periodically undertake inspections into the exercise of those powers, reporting back to the Secretary of State about any allegation or failings in the exercise or application of those powers.

94.     Subsection (2) provides for the Secretary of State to revoke the authorisation given to constables and officers of Revenue and Customs.

95.     Subsection (3) permits the Secretary of State to stipulate conditions when granting authorisation to a person other than a constable or officer of Revenue and Customs and provides for the Secretary of State, by written notice, to suspend or revoke the authorisation. The Secretary of State shall stipulate the term of authorisation (by reference to dates or otherwise).

96.     Subsection (4) explains what is meant by "specified class" of constable or officer of Revenue and Customs in section 36(3) & 36(4) and provides that the specification may be by reference to named individuals, the functions to be exercised, the location or circumstances in which a person is exercising the function or any other matter.

97.     Subsection (5) requires that an Immigration Officer receiving an individual or article delivered by an authorised person shall treat that individual or article as if they had been discovered by an Immigration Officer undertaking a search under schedule 2 of the Immigration Act 1971. This Bill does not amend the application of existing procedures applied by an Immigration Officer to individuals or articles discovered.

98.     Subsection (6) provides that a person is guilty of an offence if he;

  • absconds from detention

  • absconds either whilst being transferred to a place or having arrived

  • absconds prior to being delivered to an Immigration Officer

  • obstructs an authorised person who is exercising his powers under this Bill.

  • assaults an authorised person who is exercising his powers under this Bill.

99.     Subsection (7) provides that an offence is not committed under subsection (6) unless the authorised person is be readily identifiable as a constable or officer of Revenue and Customs or as an authorised person (by means of a uniform, badge or other means of identification).

100.     Subsection (8) provides that on summary conviction for the offences listed in subsection (6), a person shall be liable to imprisonment for a term not exceeding 51 weeks in England or Wales or 6 months in Scotland or Northern Ireland or to a fine not exceeding level 5 on the standard scale or both a fine and imprisonment.

101.     Subsection (9) provides that in relation to a conviction occurring before the commencement of section 281(5) of the Criminal Justice Act 2003 (c.44) (Magistrates Powers's) reference in subsection (7)(a) to 51 weeks shall be treated as a reference to 6 months.

 
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Prepared: 23 June 2005