Immigration, Asylum and Nationality Bill

House of Commons

Session 2005 - 06
Internet Publications
Other Bills before Parliament

Immigration, Asylum and Nationality Bill

Immigration, Asylum and Nationality Bill
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Legal aid
(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
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order for reconsideration is made”.
(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;
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(b)
in respect of preparation for reconsideration;
(c)
in respect of the reconsideration.”
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Abandonment of appeal
For section 104(4) of the Nationality, Immigration and Asylum Act 2002
(pending appeal: deemed abandonment) substitute—
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“(4)
An appeal under section 82(1) brought by a person while he is in the
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
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brought on the ground specified in section 84(1)(b).”
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Grants
Section 110 (grants to advisory organisations) of the Nationality, Immigration
and Asylum Act 2002 shall cease to have effect.
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Continuation of leave
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(1)
Section 3C of the Immigration Act 1971 (c. 77) (continuation of leave to enter or
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
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application is decided for the purposes of this section; and the
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,
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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.”
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Asylum and human rights claims: definition
(1)
Section 113(1) of the Nationality, Immigration and Asylum Act 2002 (c. 41)
(appeals: interpretation) shall be amended as follows.
(2)
For the definition of “asylum claim” substitute—
““asylum claim”—
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(a)
means a claim made by a person that to remove him from or
require him to leave the United Kingdom would breach the
United Kingdom’s obligations under the Refugee Convention,
but
(b)
does not include a claim which, having regard to a former claim,
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falls to be disregarded for the purposes of this Part in
accordance with immigration rules,”.
(3)
For the definition of “human rights claim” substitute—
““human rights claim”—
(a)
means a claim made by a person that to remove him from or
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require him to leave the United Kingdom would be unlawful
under section 6 of the Human Rights Act 1998 (c. 42) (public
authority not to act contrary to Convention) as being
incompatible with his Convention rights, but
(b)
does not include a claim which, having regard to a former claim,
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falls to be disregarded for the purposes of this Part in
accordance with immigration rules,”.
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Consequential amendments
Schedule 1 (which makes amendments consequential on the preceding
provisions of this Act) shall have effect.
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Employment
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Penalty
(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
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Kingdom, or
(b)
his leave to enter or remain in the United Kingdom—
(i)
is invalid,
(ii)
has expired, or
(iii)
is subject to a condition preventing him from accepting the
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employment.
(2)
The Secretary of State may give an employer who acts contrary to this section
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
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with any prescribed requirements in relation to the employment.

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(4)
But the excuse in subsection (3) shall not apply to an employer who knew, at
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.
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(6)
A penalty notice must—
(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
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the date on which it is given, before which the penalty must be paid,
(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
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particular—
(a)
require the production to an employer of a document of a specified
description;
(b)
require the production to an employer of one document of each of a
number of specified descriptions;
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(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;
(d)
require action to be taken before employment begins;
(e)
require action to be taken at specified intervals or on specified
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occasions during the course of employment.
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Objection
(1)
This section applies where an employer to whom a penalty notice is given
objects on the ground that—
(a)
he is not liable to the imposition of a penalty,
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(b)
he is excused payment by virtue of section 14(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.
(3)
A notice of objection must—
(a)
be in writing,
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(b)
give the objector’s reasons,
(c)
be given in the prescribed manner, and
(d)
be given before the end of the prescribed period.
(4)
Where the Secretary of State receives a notice of objection to a penalty he shall
consider it and—
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(a)
cancel the penalty,
(b)
reduce the penalty,
(c)
increase the penalty, or
(d)
determine to take no action.
(5)
Where the Secretary of State considers a notice of objection he shall—
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(a)
have regard to the code of practice under section 18 (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
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 14,
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and
(d)
if he reduces the penalty, notify the objector of the reduced amount.
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Appeal
(1)
An employer to whom a penalty notice is given may appeal to the court on the
ground that—
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(a)
he is not liable to the imposition of a penalty,
(b)
he is excused payment by virtue of section 14(3), or
(c)
the amount of the penalty is too high.
(2)
The court may—
(a)
allow the appeal and cancel the penalty,
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(b)
allow the appeal and reduce the penalty, or
(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 18 that has effect at the time of the
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appeal (in so far as the appeal relates to the amount of the penalty), and
(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—
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(a)
the date specified in the penalty notice as the date upon which it is
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
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(c)
if the employer gives a notice of objection and the Secretary of State
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 15;
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(b)
the penalty has been increased or reduced under that section.
(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
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sheriff, and
(c)
where the employer has his principal place of business in Northern
Ireland, a county court.