UK Borders Bill

House of Commons

Session 2006 - 07
Internet Publications
Other Bills before Parliament

UK Borders Bill

UK Borders Bill
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9
Penalty
(1)
The Secretary of State may by notice require a person to pay a penalty for
failing to comply with a requirement of regulations under section 5(1).
(2)
The notice must—
(a)
specify the amount of the penalty,
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(b)
specify a date before which the penalty must be paid to the Secretary of
State,
(c)
specify methods by which the penalty may be paid,
(d)
explain the grounds on which the Secretary of State thinks the person
has failed to comply with a requirement of the regulations, and
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(e)
explain the effect of sections 10 to 12.
(3)
The amount specified under subsection (2)(a) may not exceed £1,000.
(4)
The date specified under subsection (2)(b) must be not less than 14 days after
the date on which the notice is given.
(5)
A person who has been given a notice under subsection (1) for failing to
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comply with regulations may be given further notices in the case of continued
failure; but a person may not be given a new notice—
(a)
during the time available for objection or appeal against an earlier
notice, or
(b)
while an objection or appeal against an earlier notice has been
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instituted and is neither withdrawn nor determined.
(6)
The Secretary of State may by order amend subsection (3) to reflect a change in
the value of money.
10
Penalty: objection
(1)
A person (P) who is given a penalty notice under section 9(1) may by notice to
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the Secretary of State object on the grounds—
(a)
that P has not failed to comply with a requirement of regulations under
section 5(1),
(b)
that it is unreasonable to require P to pay a penalty, or
(c)
that the amount of the penalty is excessive.
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(2)
A notice of objection must—
(a)
specify the grounds of objection and P’s reasons,
(b)
comply with any prescribed requirements as to form and content, and
(c)
be given within the prescribed period.
(3)
The Secretary of State shall consider a notice of objection and—
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(a)
cancel the penalty notice,
(b)
reduce the penalty by varying the penalty notice,
(c)
increase the penalty by issuing a new penalty notice, or
(d)
confirm the penalty notice.
(4)
The Secretary of State shall act under subsection (3) and notify P—
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(a)
in accordance with any prescribed requirements, and
(b)
within the prescribed period or such longer period as the Secretary of
State and P may agree.

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11
Penalty: appeal
(1)
A person (P) who is given a penalty notice under section 9(1) may appeal to—
(a)
a county court, in England and Wales or Northern Ireland, or
(b)
the sheriff, in Scotland.
(2)
An appeal may be brought on the grounds—
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(a)
that P has not failed to comply with a requirement of regulations under
section 5(1),
(b)
that it is unreasonable to require P to pay a penalty, or
(c)
that the amount of the penalty is excessive.
(3)
The court or sheriff may—
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(a)
cancel the penalty notice,
(b)
reduce the penalty by varying the penalty notice,
(c)
increase the penalty by varying the penalty notice (whether because the
court or sheriff thinks the original amount insufficient or because the
court or sheriff thinks that the appeal should not have been brought), or
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(d)
confirm the penalty notice.
(4)
An appeal may be brought—
(a)
whether or not P has given a notice of objection, and
(b)
irrespective of the Secretary of State’s decision on any notice of
objection.
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(5)
The court or sheriff may consider matters of which the Secretary of State was
not and could not have been aware before giving the penalty notice.
(6)
Rules of court may make provision about the timing of an appeal under this
section.
12
Penalty: enforcement
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(1)
Where a penalty has not been paid before the date specified in the penalty
notice in accordance with section 9(2)(b), it may be recovered as a debt due to
the Secretary of State.
(2)
Where a notice of objection is given in respect of a penalty notice, the Secretary
of State may not take steps to enforce the penalty notice before—
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(a)
deciding what to do in response to the notice of objection, and
(b)
informing the objector.
(3)
The Secretary of State may not take steps to enforce a penalty notice while an
appeal under section 11—
(a)
could be brought (disregarding any possibility of an appeal out of time
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with permission), or
(b)
has been brought and has not been determined or abandoned.
(4)
In proceedings for the recovery of a penalty no question may be raised as to the
matters specified in sections 10 and 11 as grounds for objection or appeal.
(5)
Money received by the Secretary of State in respect of a penalty shall be paid into the
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Consolidated Fund.

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13
Penalty: code of practice
(1)
The Secretary of State shall issue a code of practice setting out the matters to be
considered in determining—
(a)
whether to give a penalty notice under section 9(1), and
(b)
the amount of a penalty.
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(2)
The code may, in particular, require the Secretary of State to consider any
decision taken by virtue of section 7.
(3)
A court or the sheriff shall, when considering an appeal under section 11, have
regard to the code.
(4)
The Secretary of State may revise and re-issue the code.
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(5)
Before issuing or re-issuing the code the Secretary of State must—
(a)
publish proposals,
(b)
consult members of the public, and
(c)
lay a draft before Parliament.
(6)
The code (or re-issued code) shall come into force at the prescribed time.
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14
Penalty: prescribed matters
(1)
In sections 10 to 13 “prescribed” means prescribed by the Secretary of State by
order.
(2)
An order under subsection (1) or under section 9(6)—
(a)
may make provision generally or only for specified purposes,
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(b)
may make different provision for different purposes,
(c)
shall be made by statutory instrument, and
(d)
shall be subject to annulment in pursuance of a resolution of either
House of Parliament.
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Interpretation
25
(1)
For the purposes of section 5—
(a)
“person subject to immigration control” means a person who under the
Immigration Act 1971 (c. 77) requires leave to enter or remain in the
United Kingdom (whether or not such leave has been given),
(b)
“biometric information” means information about external physical
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characteristics,
(c)
“external physical characteristics” includes, in particular—
(i)
fingerprints, and
(ii)
features of the iris or any other part of the eye,
(d)
“document” includes a card or sticker and any other method of
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recording information (whether in writing or by the use of electronic or
other technology or by a combination of methods),
(e)
“authorised person” has the meaning given by section 141(5) of the
Immigration and Asylum Act 1999 (authority to take fingerprints),
(f)
“immigration” includes asylum, and
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(g)
regulations permitting something to be done by the Secretary of State
may (but need not) permit it to be done only where the Secretary of
State is of a specified opinion.

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(2)
An application for a biometric immigration document is an application in
connection with immigration for the purposes of—
(a)
section 50(1) and (2) of the Immigration, Asylum and Nationality Act
2006 (c. 13) (procedure), and
(b)
section 51 of that Act (fees);
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and in the application of either of those sections to an application for a
biometric immigration document, the prescribed consequences of non-
compliance may include any of the consequences specified in section 7(2)
above.
Treatment of claimants
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16
Conditional leave to enter or remain
After section 3(1)(c)(iii) of the Immigration Act 1971 (c. 77) (limited leave to
enter or remain: conditions) insert—
“(iv)
a condition requiring him to report to an immigration
officer or the Secretary of State; and
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(v)
a condition about residence.”
17
Support for failed asylum-seekers
(1)
This section applies for the purposes of—
(a)
Part VI (and section 4) of the Immigration and Asylum Act 1999 (c. 33)
(support and accommodation for asylum-seekers),
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(b)
Part 2 of the Nationality, Immigration and Asylum Act 2002 (c. 41)
(accommodation centres), and
(c)
Schedule 3 to that Act (withholding and withdrawal of support).
(2)
A person (A-S) remains (or again becomes) an asylum-seeker, despite the fact
that the claim for asylum made by A-S has been determined, during any period
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when—
(a)
A-S can bring an in-country appeal against an immigration decision
under section 82 of the 2002 Act or section 2 of the Special Immigration
Appeals Commission Act 1997 (c. 68), or
(b)
an in-country appeal, brought by A-S under either of those sections
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against an immigration decision, is pending (within the meaning of
section 104 of the 2002 Act).
(3)
For the purposes of subsection (2)—
(a)
“in-country” appeal means an appeal brought while the appellant is in
the United Kingdom, and
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(b)
the possibility of an appeal out of time with permission shall be
ignored.
(4)
This section shall be treated as always having had effect.
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Support for asylum-seekers: enforcement
In Part 6 of the Immigration and Asylum Act 1999 (support for asylum-seekers)
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after section 109 (offences: supplemental) insert—
“109A
     Arrest
An immigration officer may arrest without warrant a person whom the
immigration officer reasonably suspects has committed an offence
under section 105 or 106.
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109B
      Entry, search and seizure
(1)
An offence under section 105 or 106 shall be treated as—
(a)
a relevant offence for the purposes of sections 28B and 28D of
the Immigration Act 1971 (c. 77) (search, entry and arrest), and
(b)
an offence under Part 3 of that Act (criminal proceedings) for
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the purposes of sections 28(4), 28E, 28G and 28H (search after
arrest, &c.) of that Act.
(2)
The following provisions of the Immigration Act 1971 shall have effect
in connection with an offence under section 105 or 106 of this Act as
they have effect in connection with an offence under that Act—
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(a)
section 28I (seized material: access and copying),
(b)
section 28J (search warrants: safeguards),
(c)
section 28K (execution of warrants), and
(d)
section 28L(1) (interpretation).”
19
Points-based applications: no new evidence on appeal
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(1)
For section 85(5) of the Nationality, Immigration and Asylum Act 2002 (c. 41)
(appeal: new evidence may be considered: exception) substitute—
“(5)
But subsection (4) is subject to the exceptions in section 85A.”
(2)
After section 85 of that Act insert—
“85A
Matters to be considered: new evidence: exceptions
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(1)
This section sets out the exceptions mentioned in section 85(5).
(2)
Exception 1 is that in relation to an appeal under section 82(1) against
an immigration decision of a kind specified in section 82(2)(b) or (c) the
Tribunal may consider only the circumstances appertaining at the time
of the decision.
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(3)
Exception 2 applies to an appeal under section 82(1) if—
(a)
the appeal is against an immigration decision of a kind specified
in section 82(2)(a) or (d),
(b)
the immigration decision concerned an application of a kind
identified in immigration rules as requiring to be considered
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under a “Points Based System”, and
(c)
the appeal relies wholly or partly on grounds specified in
section 84(1)(a), (e) or (f).
(4)
Where Exception 2 applies the Tribunal may consider evidence
adduced by the appellant only if it—
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(a)
was submitted in support of, and at the time of making, the
application to which the immigration decision related,

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(b)
relates to the appeal in so far as it relies on grounds other than
those specified in subsection (3)(c),
(c)
is adduced to prove that a document is genuine or valid, or
(d)
is adduced in connection with the Secretary of State’s reliance
on a discretion under immigration rules, or compliance with a
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requirement of immigration rules, to refuse an application on
grounds not related to the acquisition of “points” under the
“Points Based System”.
(5)
Immigration rules may make provision about the circumstances in
which evidence is to be treated, or not treated, as submitted in support
10
of, and at the time of making, an application.”
Enforcement
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Seizure of cash
(1)
Chapter 3 of Part 5 of the Proceeds of Crime Act 2002 (c. 29) (recovery of cash)
shall apply in relation to an immigration officer as it applies in relation to a
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constable.
(2)
For that purpose—
(a)
“unlawful conduct”, in or in relation to section 289, means an offence
under the Immigration Acts,
(b)
“unlawful conduct”, in or in relation to other provisions, means an
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offence—
(i)
under the Immigration Acts, or
(ii)
listed in section 14(2) of the Asylum and Immigration
(Treatment of Claimants, etc.) Act 2004 (c. 19),
(c)
“senior officer” in section 290 means an official of the Secretary of State
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who is a civil servant of the rank of at least Assistant Director,
(d)
in section 292 the words “(in relation to England and Wales and
Northern Ireland)” shall be disregarded,
(e)
section 293 shall not apply,
(f)
an application for an order under section 295(2) must be made—
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(i)
in relation to England and Wales or Northern Ireland, by an
immigration officer, and
(ii)
in relation to Scotland, by the Scottish Ministers in connection
with their functions under section 298 or by a procurator fiscal,
(g)
an application for forfeiture under section 298 must be made—
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(i)
in relation to England and Wales or Northern Ireland, by an
immigration officer, and
(ii)
in relation to Scotland, by the Scottish Ministers, and
(h)
any compensation under section 302 shall be paid by the Secretary of State.
(3)
The Secretary of State may by order amend subsection (2)(c) to reflect a change
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in nomenclature; and an order—
(a)
shall be made by statutory instrument, and
(b)
shall be subject to annulment in pursuance of a resolution of either
House of Parliament.