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UK Borders Bill


UK Borders Bill

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21      

Forfeiture of detained property

(1)   

A court making a forfeiture order about property may order that the property

be taken into the possession of the Secretary of State (and not of the police).

(2)   

An order may be made under subsection (1) only if the court thinks that the

offence in connection with which the order is made—

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(a)   

related to immigration or asylum, or

(b)   

was committed for a purpose connected with immigration or asylum.

(3)   

In subsection (1) “forfeiture order” means an order under—

(a)   

section 143 of the Powers of Criminal Courts (Sentencing) Act 2000

(c. 6), or

10

(b)   

Article 11 of the Criminal Justice (Northern Ireland) Order 1994 (S.I.

1994/2795 (N.I. 15).

22      

Disposal of property  

(1)   

In this section “property” means property which—

(a)   

has come into the possession of an immigration officer, or

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(b)   

has come into the possession of the Secretary of State in the course of,

or in connection with, a function under the Immigration Acts.

(2)   

A magistrates’ court may, on the application of the Secretary of State or a

claimant of property—

(a)   

order the delivery of property to the person appearing to the court to

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be its owner, or

(b)   

if its owner cannot be ascertained, make any other order about

property.

(3)   

An order shall not affect the right of any person to take legal proceedings for

the recovery of the property, provided that the proceedings are instituted

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within the period of six months beginning with the date of the order.

(4)   

An order may be made in respect of property forfeited under section 21, or

under section 25C of the Immigration Act 1971 (c. 77) (vehicles, &c.), only if—

(a)   

the application under subsection (2) above is made within the period of

six months beginning with the date of the forfeiture order, and

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(b)   

the applicant (if not the Secretary of State) satisfies the court—

(i)   

that the applicant did not consent to the offender’s possession

of the property, or

(ii)   

that the applicant did not know and had no reason to suspect

that the property was likely to be used, or was intended to be

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used, in connection with an offence.

(5)   

The Secretary of State may make regulations for the disposal of property—

(a)   

where the owner has not been ascertained,

(b)   

where an order under subsection (2) cannot be made because of

subsection (4)(a), or

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(c)   

where a court has declined to make an order under subsection (2) on

the grounds that the court is not satisfied of the matters specified in

subsection (4)(b).

(6)   

The regulations may make provision that is the same as or similar to provision

that may be made by regulations under section 2 of the Police (Property) Act

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UK Borders Bill

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1897 (c. 30) (or any similar enactment applying in relation to Scotland or

Northern Ireland); and the regulations—

(a)   

may apply, with or without modifications, regulations under that Act,

(b)   

may, in particular, provide for property to vest in the Secretary of State,

(c)   

may make provision about the timing of disposal (which, in particular,

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may differ from provision made by or under the Police (Property) Act

1897),

(d)   

shall have effect only in so far as not inconsistent with an order of a

court (whether or not under subsection (2) above),

(e)   

shall be made by statutory instrument, and

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(f)   

shall be subject to annulment in pursuance of a resolution of either

House of Parliament.

(7)   

For the purposes of subsection (1) it is immaterial whether property is acquired

as a result of forfeiture or seizure or in any other way.

(8)   

In the application of this section to Scotland a reference to a magistrates’ court

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is a reference to the sheriff.

23      

Employment: arrest

In section 28AA of the Immigration Act 1971 (c. 77) (arrest with warrant) for

subsection (1)(b) substitute—

“(b)   

section 21(1) of the Immigration, Asylum and Nationality Act

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2006 (c. 13) (employment: offence).”

24      

Employment: search for personnel records

In section 28FA(7) of the Immigration Act 1971 (enforcement: search for

personnel records) for “an offence under section 8 of the Asylum and

Immigration Act 1996 (c. 49)” substitute “an offence under section 21 of the

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Immigration, Asylum and Nationality Act 2006 (c. 13)”.

25      

Facilitation: arrival and entry

In section 25A(1)(a) of the Immigration Act 1971 (helping asylum seeker to

enter UK: offence) after “the arrival in” insert “, or the entry into,”.

26      

Facilitation: territorial application

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(1)   

For section 25(4) and (5) of the Immigration Act 1971 (assisting unlawful

immigration: territorial application) substitute—

“(4)   

Subsection (1) applies to things done whether inside or outside the

United Kingdom.”

(2)   

In sections 25A(4) and 25B(4) (facilitation: asylum-seekers and deportees) for

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“Subsections (4) to (6)” substitute “Subsections (4) and (6)”.

27      

People trafficking

(1)   

In section 4(1) of the Asylum and Immigration (Treatment of Claimants, etc.)

Act 2004 (c. 19) (trafficking) after “the arrival in” insert “, or the entry into,”.

 
 

UK Borders Bill

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(2)   

For section 5(1) and (2) of that Act (trafficking: extent) substitute—

“(1)   

Subsections (1) to (3) of section 4 apply to anything done whether inside

or outside the United Kingdom.”

(3)   

In section 57(1) of the Sexual Offences Act 2003 (c. 42) (trafficking) after “the

arrival in” insert “, or the entry into,”.

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(4)   

For sections 60(2) and (3) of that Act (trafficking: extent) substitute—

“(2)   

Sections 57 to 59 apply to anything done whether inside or outside the

United Kingdom.”

Deportation of criminals

28      

Automatic deportation

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(1)   

In this section “foreign criminal” means a person—

(a)   

who is not a British citizen,

(b)   

who is convicted in the United Kingdom of an offence, and

(c)   

to whom Condition 1 or 2 applies.

(2)   

Condition 1 is that the person is sentenced to a period of imprisonment of at

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least 12 months.

(3)   

Condition 2 is that—

(a)   

the offence is specified by order of the Secretary of State under section

72(4)(a) of the Nationality, Immigration and Asylum Act 2002 (c. 41)

(serious criminal), and

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(b)   

the person is sentenced to a period of imprisonment.

(4)   

For the purpose of section 3(5)(a) of the Immigration Act 1971 (c. 77), the

deportation of a foreign criminal is conducive to the public good.

(5)   

The Secretary of State must make a deportation order in respect of a foreign

criminal (subject to section 29).

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(6)   

The Secretary of State may not revoke a deportation order made in accordance

with subsection (5) unless—

(a)   

he thinks that an exception under section 29 applies, or

(b)   

the application for revocation is made while the foreign criminal is

outside the United Kingdom.

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(7)   

Subsection (5) does not create a private right of action in respect of

consequences of non-compliance by the Secretary of State.

29      

Exceptions

(1)   

Section 28(4) and (5)—

(a)   

do not apply where an exception in this section applies (subject to

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subsection (7) below), and

(b)   

are subject to sections 7 and 8 of the Immigration Act 1971

(Commonwealth citizens, Irish citizens, crew and other exemptions).

(2)   

Exception 1 is where removal of the foreign criminal in pursuance of the

deportation order would breach—

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UK Borders Bill

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(a)   

a person's Convention rights, or

(b)   

the United Kingdom’s obligations under the Refugee Convention.

(3)   

Exception 2 is where the Secretary of State thinks that the foreign criminal was

under the age of 18 on the date of conviction.

(4)   

Exception 3 is where the removal of the foreign criminal from the United

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Kingdom in pursuance of a deportation order would breach rights of the

foreign criminal under the Community treaties.

(5)   

Exception 4 is where the foreign criminal—

(a)   

is the subject of a certificate under section 2 or 70 of the Extradition Act

2003 (c. 41),

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(b)   

is in custody pursuant to arrest under section 5 of that Act,

(c)   

is the subject of a provisional warrant under section 73 of that Act,

(d)   

is the subject of an authority to proceed under section 7 of the

Extradition Act 1989 (c. 33) or an order under paragraph 4(2) of

Schedule 1 to that Act, or

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(e)   

is the subject of a provisional warrant under section 8 of that Act or of

a warrant under paragraph 5(1)(b) of Schedule 1 to that Act.

(6)   

Exception 5 is where any of the following has effect in respect of the foreign

criminal—

(a)   

a hospital order or guardianship order under section 37 of the Mental

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Health Act 1983 (c. 20),

(b)   

a hospital direction under section 45A of that Act,

(c)   

a transfer direction under section 47 of that Act,

(d)   

a compulsion order under section 57A of the Criminal Procedure

(Scotland) Act 1995 (c. 46),

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(e)   

a guardianship order under section 58 of that Act,

(f)   

a hospital direction under section 59A of that Act,

(g)   

a transfer for treatment direction under section 136 of the Mental

Health (Care and Treatment) (Scotland) Act 2003 (asp 13), or

(h)   

an order or direction under a provision which corresponds to a

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provision specified in paragraphs (a) to (g) and which has effect in

relation to Northern Ireland.

(7)   

The application of an exception—

(a)   

does not prevent the making of a deportation order;

(b)   

results in it being assumed neither that deportation of the person

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concerned is conducive to the public good nor that it is not conducive

to the public good;

   

but section 28(4) applies despite the application of Exception 1 or 4.

30      

Timing

(1)   

Section 28(5) requires a deportation order to be made at a time chosen by the

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Secretary of State.

(2)   

A deportation order may not be made under section 28(5) while an appeal or

further appeal against the conviction or sentence by reference to which the

order is to be made—

(a)   

has been instituted and neither withdrawn nor determined, or

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(b)   

could be brought.

 
 

UK Borders Bill

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(3)   

For the purpose of subsection (2)(b)—

(a)   

the possibility of an appeal out of time with permission shall be

disregarded, and

(b)   

a person who has informed the Secretary of State in writing that the

person does not intend to appeal shall be treated as being no longer able

5

to appeal.

31      

Appeal

(1)   

The Nationality, Immigration and Asylum Act 2002 (c. 41) is amended as

follows.

(2)   

At the end of section 79 (no deportation order pending appeal) add—

10

“(3)   

This section does not apply to a deportation order which states that it is

made in accordance with section 28(5) of the UK Borders Act 2007.

(4)   

But a deportation order made in reliance on subsection (3) does not

invalidate leave to enter or remain, in accordance with section 5(1) of

the Immigration Act 1971, if and for so long as section 78 above

15

applies.”

(3)   

Before section 82(4) (general right of appeal) insert—

“(3A)   

In subsection (2)(j) the reference to a decision to make a deportation

order includes a reference to a decision of the Secretary of State that

section 28(5) of the UK Borders Act 2007 applies; and a reference in this

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Part to an appeal against an automatic deportation order is a reference

to an appeal against a decision of the Secretary of State that section 28(5)

applies.”

(4)   

At the end of section 92 (right of appeal from within UK) add—

“(5)   

This section does not apply to an appeal against an automatic

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deportation order unless the appellant has made an asylum claim or a

human rights claim (or both).”

(5)   

After section 94(1A) (unfounded human rights or asylum claim) insert—

“(1B)   

A person may not bring an appeal in reliance on section 92(2) against

an automatic deportation order if the Secretary of State certifies that the

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claim or claims mentioned in subsection (1) above is or are clearly

unfounded.”

32      

Detention

(1)   

A person who has served a period of imprisonment may be detained under the

authority of the Secretary of State—

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(a)   

while the Secretary of State considers whether section 28(5) applies,

and

(b)   

where the Secretary of State thinks that section 28(5) applies, pending

the making of the deportation order.

(2)   

Where a deportation order is made in accordance with section 28(5) the

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Secretary of State shall exercise the power of detention under paragraph 2(3) of

Schedule 3 to the Immigration Act 1971 (c. 77) (detention pending removal)

unless in the circumstances the Secretary of State thinks it inappropriate.

 
 

UK Borders Bill

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(3)   

A court determining an appeal against conviction or sentence may direct

release from detention under subsection (1) or (2).

(4)   

Provisions of the Immigration Act 1971 (c. 77) which apply to detention under

paragraph 2(3) of Schedule 3 to that Act shall apply to detention under

subsection (1) (including provisions about bail).

5

(5)   

Paragraph 2(5) of Schedule 3 to that Act (residence, occupation and reporting

restrictions) applies to a person who is liable to be detained under subsection

(1).

33      

Family

(1)   

Where a deportation order against a foreign criminal states that it is made in

10

accordance with section 28(5) (“the automatic deportation order”) this section

shall have effect in place of the words from “A deportation order” to “after the

making of the deportation order against him” in section 5(3) of the Immigration

Act 1971 (period during which family members may also be deported).

(2)   

A deportation order may not be made against a person as belonging to the

15

family of the foreign criminal after the end of the relevant period of 8 weeks.

(3)   

In the case of a foreign criminal who has not appealed in respect of the

automatic deportation order, the relevant period begins when an appeal can no

longer be brought (ignoring any possibility of an appeal out of time with

permission).

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(4)   

In the case of a foreign criminal who has appealed in respect of the automatic

deportation order, the relevant period begins when the appeal is no longer

pending (within the meaning of section 104 of the Nationality, Immigration

and Asylum Act 2002 (c. 41)).

34      

Interpretation

25

(1)   

In section 28(2) the reference to a person who is sentenced to a period of

imprisonment of at least 12 months—

(a)   

does not include a reference to a person who receives a suspended

sentence (whether or not a court subsequently orders that the sentence

is to take effect),

30

(b)   

does not include a reference to a person who is sentenced to a period of

imprisonment of at least 12 months only by virtue of being sentenced

to consecutive sentences amounting in aggregate to more than 12

months,

(c)   

includes a reference to a person who is sentenced to detention, or

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ordered or directed to be detained, in an institution other than a prison

(including, in particular, a hospital or an institution for young

offenders) for at least 12 months, and

(d)   

includes a reference to a person who is sentenced to imprisonment or

detention, or ordered or directed to be detained, for an indeterminate

40

period (provided that it may last for 12 months).

(2)   

In section 28(3)(b) the reference to a person who is sentenced to a period of

imprisonment—

(a)   

does not include a reference to a person who receives a suspended

sentence (whether or not a court subsequently orders that the sentence

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is to take effect), and

 
 

UK Borders Bill

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(b)   

includes a reference to a person who is sentenced to detention, or

ordered or directed to be detained, in an institution other than a prison

(including, in particular, a hospital or an institution for young

offenders).

(3)   

For the purposes of section 28 a person subject to an order under section 5 of

5

the Criminal Procedure (Insanity) Act 1964 (c. 84) (insanity, &c.) has not been

convicted of an offence.

(4)   

In sections 28 and 29

(a)   

“British citizen” has the same meaning as in section 3(5) of the

Immigration Act 1971 (c. 77) (and section 3(8) (burden of proof) shall

10

apply),

(b)   

“Convention rights” has the same meaning as in the Human Rights Act

1998 (c. 42),

(c)   

“deportation order” means an order under section 5, and by virtue of

section 3(5), of the Immigration Act 1971, and

15

(d)   

“the Refugee Convention” means the Convention relating to the Status

of Refugees done at Geneva on 28th July 1951 and its Protocol.

35      

Consequential amendments

(1)   

This section amends section 72(11)(b) of the Nationality, Immigration and

Asylum Act 2002 (c. 41) (removal: serious criminal: interpretation).

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(2)   

In sub-paragraph (i) for “(unless at least two years of the sentence are not

suspended)” substitute “(whether or not a court subsequently orders that the

sentence is to take effect)”.

(3)   

After sub-paragraph (i) insert—

“(ia)   

does not include a reference to a person who is

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sentenced to a period of imprisonment of at least two

years only by virtue of being sentenced to consecutive

sentences which amount in aggregate to more than two

years,”.

Information

30

36      

Supply of Revenue and Customs information

(1)   

Her Majesty’s Revenue and Customs (HMRC) and the Revenue and Customs

Prosecutions Office (the RCPO) may each supply the Secretary of State with

information for use for the purpose of—

(a)   

administering immigration control under the Immigration Acts;

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(b)   

preventing, detecting, investigating or prosecuting offences under

those Acts;

(c)   

determining whether to impose, or imposing, penalties or charges

under Part II of the Immigration and Asylum Act 1999 (c. 33) (carriers’

liability);

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(d)   

determining whether to impose, or imposing, penalties under section

15 of the Immigration, Asylum and Nationality Act 2006 (c. 13)

(restrictions on employment);

 
 

 
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