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

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     CLAIMANTS AND APPLICANTS

     Clause 37: Accommodation

102.     Clause 37(1) amends section 99 of the 1999 Act so as to empower local authorities to provide accommodation in accordance with arrangements made by the Secretary of State under section 4 of the same Act. The power is therefore extended so that local authorities may provide support under sections 95, 98 and now section 4.

103.     Subsection (2) amends section 118(1)(b) of the 1999 Act so as to ensure that where accommodation is provided by a housing authority under its housing powers, this accommodation is not granted to a person subject to immigration control unless the tenancy of, or licence to occupy, such accommodation is granted in accordance with arrangements made under section 4. This replicates the position in respect of local authority accommodation provided in accordance with arrangements made under section 95.

104.     Subsection (3) makes amendments in relation to housing legislation. Paragraph (a) removes entitlement to protection under the Protection from Eviction Act 1977 from persons accommodated under section 4; they can therefore be required to leave accommodation provided under section 4 without a court order having been obtained (as could any sub-tenants). Paragraph (b) removes those accommodated under section 4 from the ordinary creation of a secure tenancy in Northern Ireland, paragraph (d) makes the same provision in relation to England and Wales and subsections (4) and (5) make similar provision in Scotland. Paragraph (e) provides that the provision of accommodation under section 4 will not give rise to an assured tenancy in Scotland and paragraph (f) makes similar provision in relation to England and Wales. These amendments broadly replicate the changes made to UK housing legislation, which made provisions in relation to accommodation provided under Part VI of the 1999 Act, as contained in Schedule 14 to that Act.

     Clause 38: Integration loans

105.     Section 13 of the Asylum & Immigration (Treatment of Claimants, etc.) Act 2004 enables the Secretary of State to make regulations enabling him to make loans to refugees. Clause 38 amends the definition of refugee contained in that section so that it refers to a person who is recorded by the Secretary of State as a refugee and has been given leave to enter or remain in the UK (rather than indefinite leave to enter or remain in the UK).

Clause 39: Inspection of detention facilities

106.     Clause 39 amends section 5A(5A) of the Prison Act 1952 so as to regularise HM Chief Inspector of Prisons' (HMCIP) existing voluntary oversight of immigration short-term holding facilities (STHFs) and escort arrangements by placing it on a statutory footing. HMCIP's voluntary oversight of STHFs began in April 2004 and of escort arrangements in May 2005. The amendment brings the basis for the oversight of STHFs and escort arrangements in line with the position on immigration removal centres, which were made subject to statutory HMCIP oversight by section 152(5) of the Immigration and Asylum Act 1999.

     Clause 40: Removal: cancellation of leave

107.      Clause 41 amends section 10(8) of the Immigration and Asylum Act 1999, so that notification of a decision to remove in accordance with that section invalidates any leave to enter or remain in the United Kingdom which was previously given to the person. Prior to this amendment leave was invalidated only at the point at which removal directions were given under section 10.

108.      Under the 1999 Act the giving of removal directions under section 10 could attract an in country right of appeal if the person concerned was appealing under section 65 of that Act on the basis that removal would breach his human rights. Directions would often be given at an early stage in the removal process in order to trigger a right of appeal under section 65. However, as removal directions often had to be cancelled and reset this often gave rise to further rights of appeal against the giving of the second, or subsequent, set of removal directions. This was rectified by section 82 of the Nationality, Immigration and Asylum Act 2002 which provides of a right of appeal against the principal decision to remove by way of directions as opposed to the subsidiary decision to give removal directions. Clause 41 makes a corresponding amendment to section 10(8) of the 1999 Act so that the invalidation of leave reverts to the point at which a person is notified of the appealable decision to remove in accordance with section 10, rather than the later decision to give removal directions under that section.

109.      Invalidation of the person's leave also has the effect of stopping access to any benefits, financial or otherwise, which may have been conditional on the leave, even where the leave was obtained by deception. The amendment will have the effect of stopping that access at the earlier stage in the process.

     Clause 41: Capacity to make nationality application

110.     Clause 41 amends the British Nationality Act 1981 in regard to the requirement under that Act to be "of full capacity". The requirement applies where the applicant is seeking to be naturalised, to renounce citizenship or (in some cases) to resume citizenship following a previous renunciation. The effect of the amendment is to confer on the Secretary of State a discretion to waive the requirement to be of full capacity if, in the circumstances of a particular case, he considers it in the applicant's best interests to do so.

     Clause 42: Procedure

111.      Clause 42 enables the Secretary of State to require that specified procedures must be followed by applicants when making an immigration-related application or claim, and the effects of failing to comply with those procedures.

112.     Subsection (1) provides that such procedures may be prescribed in the Immigration Rules whilst subsection (2) provides that such procedures may be prescribed by the Secretary of State otherwise than in the Immigration Rules. In both cases the procedures may relate to applications and claims made under the Immigration Rules or any other enactment.

113.      Subsection (4) amends the British Nationality Act 1981, enabling the Secretary of State to specify in regulations under section 41(1) of that Act the consequences of a failure to comply with any procedural requirement imposed by such regulations.

Clause 43: Fees

114.      Clause 43 gives the Secretary of State power to charge fees for immigration and nationality-related applications and claims, services, processes, advice, and information.

115.      Subsection (1) allows the Secretary of State to specify in secondary legislation applications and claims for which a fee may be charged.

116.      Subsection (2) allows the Secretary of State to designate in secondary legislation services, processes, advice and information which may be subject to a charge.

117.      Subsection (3) enables the Secretary of State to set the level of fees in regulations, and to provide in regulations for various other matters relating to the payment of fees.

118.      Subsection (4) provides for fees to be paid into the Consolidated Fund, unless otherwise specified in secondary legislation made pursuant to subsections (1) or (2).

Clause 44: Fees: supplemental

119.      Clause 44(1) preserves the existing arrangement whereby fees for "consular functions" (as defined in the Consular Relations Act 1968) are set under the powers in the Consular Fees Act 1980.

120.      Subsection (2) ensures that any orders already made under section 102 of the Finance (No. 2) Act 1987, with reference to the powers to charge fees for immigration and nationality applications which are repealed in Schedule 2, shall be read as if they referred to the charging powers in section 43.

     GENERAL

121.     Clause 47 contains provisions relating to the coming into force of the Bill on such dates as the Secretary of State appoints.

     TERRITORIAL EXTENT

122.     Clause 48: the Immigration, Asylum and Nationality Bill applies to the whole of the United Kingdom, with two exceptions:

123.     Amendments to other Acts have the same extent as the amended Act (or the amended part thereof).

124.     Provisions relating to nationality have the same extent as the British Nationality Act 1981, disregarding the provisions referred to in section 53(7) of that Act.

     PUBLIC SECTOR FINANCE COSTS

125.     There may be additional costs for Government Departments arising from some provisions in the Bill. Details are set out below. The Bill's other provisions are expected to have negligible expenditure implications for Government Departments. None of the Bill's provisions have tax implications.

     Information

126.     Data extraction and transport costs are likely to be a major cost component of the e-Borders Programme under clauses 26 and 27. The programme has received indicative costings from two industry providers for data extraction and transport on which it has developed an initial cost model. Cost estimates during the initial implementation in 2007/8 are between £1.3m and £7.5m.

127.     Clauses 35 and 36 will have a cost impact, which will depend on the level of usage at ports in the United Kingdom and at the juxtaposed controls abroad. Initial estimates are that to provide a contracted round the clock searching operation at the port of Calais would cost in the region of £450,000 per annum. The cost of a similar sized operation using Immigration Service personnel is estimated to be in excess of £1.1 million.

     PUBLIC SECTOR MANPOWER EFFECTS

128.     The effects of certain provisions in the Bill on public service manpower are set out below. The Bill's other measures are expected to make negligible changes.

     Claimants and applicants

129.     The e-Borders programme proposals in clauses 26 and 27 will result in major changes to working practices in the public sector. These provisions will impact on how other Government departments carry out their business but support much closer working between the agencies.

     SUMMARY OF THE REGULATORY APPRAISAL

130.     The provisions in the Bill on Employment would result in a direct or indirect cost impact on business, charities or voluntary bodies. A Regulatory Impact Assessment has been completed for the Employment measures and is published alongside the Bill. Clauses 26 and 27, on the e-borders programme, would also result in a direct or indirect cost impact. A partial RIA on this provision is publicly available and will be published as a full RIA at a later stage. The relevant measures are summarised below.

     Employment

131.     Clause 11 replicates the Secretary of State's existing powers to require employers to carry out pre-recruitment checks. It also provides (Clause 11 (7(e)) the enabling power to require employers to perform follow-up checks for workers at specified intervals or on specified occasions during the course of employment.

Information

132.     The comprehensive and routine provision of passenger, crew, service and freight information contained in clauses 26 and 27 will impact on carriers operating into and out of the United Kingdom by air, sea and rail, by extending carrier check-in transaction times.

     EUROPEAN CONVENTION ON HUMAN RIGHTS

133.      Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement about the compatibility of the provisions of the Bill with the Convention (as defined by section 1 of that Act). The statement has to be made before second reading. On 22 June the Secretary of State for the Home Department made the following statement:

    In my view the provisions of the Immigration, Asylum and Nationality Bill are compatible with the Convention rights.

134.      The following provisions may be said to give rise to issues concerning the compatibility of the Bill with Convention rights.

     Appeals

135.      Clauses 1, 3 and 4 restrict or remove rights of appeal in certain circumstances. They may be thought to raise concerns in relation to the Convention rights. However, the right of appeal on the ground that the decision is incompatible with the Convention rights (section 84(1)(c) of the 2002 Act) or that removal in consequence of the decision would be incompatible with the Convention rights (section 84(1)(g) of the 2002 Act) are expressly preserved.

Civil penalty

136.      The Bill provides for a civil penalty scheme whereby the employer of a person who is subject to immigration control and does not have the right to work within the United Kingdom would be liable to pay a penalty. It is proposed that the maximum penalty would be £2000 per illegal worker. The penalty would in general be imposed by an immigration officer on the premises of the employer. There will be a statutory code of practice setting out the matters which must be considered when determining the level of the penalty.

137.      It will be a defence for the employer to show that he has complied with specified requirements of checking and copying certain documents (e.g. a passport). It is proposed that those requirements would only need to be complied with at the point of recruitment in relation to UK and EEA nationals and those with indefinite leave to remain. As regards those who have a limited entitlement to be here, the document checks would need to be repeated at specified intervals (the current thinking being 12 months). There will be a right of objection to the Secretary of State on the grounds that the specified requirements have been complied with, that the employer is not liable to the penalty, or that the amount of the penalty is too high. There will be a right of appeal on the same grounds to the county court or sheriff.

138.      The civil penalty scheme may be said to raise issues under article 6 (right to a fair trial). Whether or not the scheme is classified by the courts as criminal or civil, the Department considers it will be compatible with article 6. We have taken account of the criticisms which were made by the Court of Appeal in the case of International Transport Roth GmbH and others v Secretary of State for the Home Department [2002] EWCA Civ 158, and the subsequent amendments which were made to the carriers' liability scheme. The features of the proposed scheme which should safeguard against incompatibility with article 6 are as follows:

  • The level of penalty per illegal employee will not be fixed, rather it will subject to a statutory maximum.

  • There will be a code of practice concerning the matters (e.g. aggravating and mitigating factors) to be taken into account when determining the level of penalty in any given case.

  • There will be a right of objection to the Secretary of State. The objection stage will be a full reconsideration of the initial decision. At the objection stage the financial circumstances of the employer will be considered.

  • There will be a right of appeal to the county court or sheriff. That appeal will be a full reconsideration of the Secretary of State's decision (including any decision on an objection). The court will be able to consider evidence which was not before the Secretary of State and will have regard to the code of practice.

  • Unlike the carriers' liability scheme there will be no power to require security to be provided pending the payment of a penalty.

  • The 'statutory defence' will be relatively easy for employers to demonstrate. It simply involves checking and copying specified documents, as opposed to disproving knowledge or demonstrating that reasonable care was taken.

  • The defence will continue to be simple even as regards employees in relation to whom employers will have to repeat the checks at specified intervals. There will be no requirement on employers to keep a continuous watch on the immigration status of their employees.

  • The reverse burden is fair and proportionate.

139.      The code of practice is also a relevant factor. The purpose of the code of practice is to ensure that immigration officers are consistent and fair in the manner in which they assess the appropriate level of penalties. The main factors which will be covered by the code are the amount of times penalties have been imposed on the employer in the past, the efforts (if any) made by the employer to establish whether the employee was entitled to work, the extent to which the employer cooperated with immigration officers, and whether or not it was the employer who approached the immigration service with concerns about the immigration status of his employees.

140.      The Department does not consider that requiring employers to carry out document checks will give rise to breaches of the Convention. Article 14, which prohibits discrimination, is not free-standing. It only arises when another article of the Convention is engaged. There is no 'right to work' as such, be it under article 8 (private life) or article 1 of protocol 1 (protection of property). However, a wide ranging restriction on employment could be capable of falling within the ambit of article 8 to the extent necessary to bring article 14 into play. Insofar as article 14 might be engaged the department considers that the differential treatment can be readily justified. A person who has only a limited entitlement to remain in the United Kingdom is not in the same position as a person who has an unlimited entitlement.

Data acquisition and sharing

141.      Clauses 27 and 28 confer new powers on the police to acquire specified information from the owner or agent of a ship or aircraft in relation to passengers, crew, service and freight on ships and aircraft arriving and leaving the United Kingdom. The nature of the data which may be acquired under clause 27 (passenger and crew details) means that Convention rights under article 8 may be engaged.

142.      We consider that any interference is compatible with article 8(1), as being within article 8(2) for the following reasons. First, the data which may be acquired is limited to that which is specified in an order made by the Secretary of State. The Secretary of State may not make such an order in relation to a kind of information unless he is satisfied that it is such that there are likely to be circumstances in which it can be required under clause 27(2) without breaching Convention rights. Second, the information may only be requested by a constable of the rank of superintendent or above. Third, the constable may only impose the requirement if he considers it necessary for police purposes.

143.      Clause 31 imposes an obligation on the Secretary of State (in so far as he has functions under the Immigration Acts), a chief officer of police and Her Majesty's Revenue and Customs to share information held by them in certain circumstances. Once shared, the information may be used by any of the three bodies for any of their purposes. Again the information by its nature could be such that article 8(1) is engaged. The Department considers that any interference is lawful and permissible within article 8(2) for the following reasons. First, the information to which the duty will relate will be specified by order by the Secretary of State. He may only specify such information if satisfied it is likely to be of use for immigration purposes, police purposes or Revenue and Customs purposes (all legitimate ends in terms of article 8(2)) and that the nature of the information is such that there are likely to be circumstances in which it can be shared compatibly with the Convention rights. Second, the duty to share only arises where the one of the specified bodies forms the view that the information is likely to be of use for one of the three specified purposes. Third, the Secretary of State will issue a code of practice governing the use of information shared by virtue of clause 31. This will address matters such as handling and retention.

144.      Similar issues in terms of article 8(1) arise on clause 32 (a power to share information for security purposes). The Department considers the same safeguards as mentioned above will be sufficient to ensure the provision is compatible with the Convention rights.

     Searches: contracting out

145.     Authorised persons under clause 35 will have the power to search persons found during the course of a search under subsection (1) and detain the person for a period, not exceeding three hours, pending the arrival of an immigration officer. The Department considers the provision to detain is compatible with article 5(1)(f) as the persons would be being detained for the purpose of preventing his unauthorised entry into the United Kingdom. In so far as any search of a person would engage article 8 the Department considers it would be lawful by virtue of article 8(2).

 
 
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Prepared: 23 June 2005