House of Commons - Explanatory Note
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Clause 19: Points-based applications: no new evidence on appeal

56.     Section 85(4) of the Nationality, Immigration and Asylum Act 2002 allows the Asylum and Immigration Tribunal (AIT) to consider any evidence that is relevant to the substance of the decision, including any evidence which arises after the date of decision. This does not apply to an appeal against the refusal of an entry clearance or a certificate of entitlement: in these cases the AIT can only consider the circumstances as they were at the time of the decision to refuse.

57.     This clause inserts a new section 85A into the 2002 Act which lists the exceptions to the general rule that the AIT can consider any evidence that is relevant to the substance of the decision, including any evidence which arises after the date of decision. It re-enacts the existing evidential restriction in appeals against the refusal of an entry clearance or a certificate of entitlement (new subsection (2)), and adds a new restriction in relation to appeals against a refusal of leave to enter or a variation of leave to enter or remain. In appeals against a refusal of leave to enter or a variation of leave to enter or remain the AIT will be prevented from considering evidence adduced by the appellant which was not submitted at the time of making the original application, where that application was one made under a Points-based immigration rule. This exclusionary rule will not, however, apply insofar as the appeal is brought on the grounds that the decision was racially discriminatory or in breach of the appellant's rights under the Community Treaties, the Refugee Convention or section 6 of the Human Rights Act 1998. Additionally, evidence which was not submitted with the original application may still be adduced to rebut any reason for refusing an application which does not relate to the attainment of points under a Points-based immigration rule or in order to prove that a document is genuine or valid.

Part 4: Enforcement

Clause 20: Seizure of cash

58.     Chapter 3 of Part 5 of the Proceeds of Crime Act 2002 allows a police constable or customs officer to search a person or premises for cash where there are reasonable grounds for suspecting that such cash is derived from or intended for use in unlawful conduct. The provisions also empower a police constable or customs officer to seize and detain any such cash. Seized cash can be further detained and forfeited on an application made to a court of summary jurisdiction. The power to apply for further detention and forfeiture of cash does not depend upon a criminal prosecution and the proceedings focus on the source of the cash which has been seized rather than the guilt of any individual. These clauses will extend the powers so that they may be exercised by immigration officers.

59.     Subsection (2)(a) provides that the power to carry out a search for cash will be available to Immigration Officers where there are reasonable grounds for suspecting that the cash in question is derived from or intended for use in connection with an offence under the Immigration Acts. Subsection (2)(b) provides that the power to seize and detain cash may be exercised where there are reasonable grounds for suspecting that the cash is derived from or intended for use in connection with an offence under the Immigration Acts or an offence listed in section 14 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. The safeguards that apply to constables and officers of HMRC will similarly apply to immigration officers. The code of practice will be amended to apply to immigration officers to provide guidelines on the operation of their search powers.

60.     An immigration officer can only exercise the power to search for cash with the prior approval of a judicial officer, unless it is not practicable to obtain that approval at the time. Subsection (2)(c) provides that where it is not practicable to obtain the approval of a judicial officer an Immigration officer must seek the authority of a civil servant of at least the rank of assistant director in order to exercise the power of search.

61.     Subsection 2(f)(i) provides that where an immigration officer continues to have reasonable suspicion that the seized cash is the proceeds of or intended for the use in an offence related to immigration, he will be able to make an application for an order to extend the detention period of the cash direct to the Magistrates Courts in England, Wales & Northern Ireland. Subsection (2)(f)(ii) provides that in Scotland such applications must either be made by the Scottish Ministers in connection with their functions under section 298 of Act or by a procurator fiscal.

62.     Subsection (2)(g)(i) provides that whilst the cash is detained, an immigration officer will be able to make an application for a forfeiture order direct to the Magistrates Court in England, Wales and Northern Ireland. Subsection (2)(g)(ii) provides that in Scotland such applications must be made by the Scottish Ministers.

63.     Subsection (2)(h) provides that compensation claims in relation to cash seized by immigration officers, for which no forfeiture order is made, will be paid by the Secretary of State.

Clause 21: Forfeiture of detained property

64.     Clause 21 provides that where a court makes a forfeiture order, the court may order the property to be taken into the possession of the Secretary of State rather than the police (as is presently the case).

65.     A "forfeiture order" means an order under section 143 of the Powers of Criminal Courts (Sentencing) Act 2000 (which extends to England and Wales) or Article 11 of the Criminal Justice (Northern Ireland) Order 1994 which allow the court to deprive a convicted offender of property used, essentially, for the commission of a crime or to facilitate the commission of a crime, or intended to be used in this way.

66.     The court may order the property be taken into the possession of the Secretary of State only if it thinks that the offence in connection with which the order was made related to immigration or asylum, or was committed for a purpose connected with immigration or asylum. An order under this clause might be appropriate, for example, where the Immigration Service is leading the investigation of a criminal offence independently of the police.

67.     Clause 44 makes transitional provision so that when clause 21 is commenced it will apply to criminal proceedings instituted before the passing of the Act.

Clause 22: Disposal of property

68.     Clause 22 provides powers of disposal in respect of property which is in the possession of an immigration officer, or which has come into the possession of the Secretary of State in the course of the exercise of his immigration functions under the Immigration Acts. This includes property which has been forfeited or seized under the Immigration Acts, as well as property acquired in any other way (under subsection (7)).

69.     Under subsection (2) a magistrates' court may, on the application of the Secretary of State or a claimant of property, order the delivery of the property to the person who appears to the court to be its owner. If the owner cannot be ascertained, the court may make any other order about the property. However, an order under subsection (2) is subject to the right of any person to bring legal proceedings for the recovery of the property within 6 months from the date of the order (subsection (3)).

70.     Subsection (4) makes additional provision in respect of property which has been forfeited under section 25C of the Immigration Act 1971 or under clause 21 of this Bill. (Section 25C of the Immigration Act 1971 gives the court the power to forfeit a vehicle, aircraft or ship used in connection with an immigration facilitation offence under that Act, in certain circumstances.) A magistrates' court may make an order about the property under subsection (2) if the application is made within six months beginning with the date when the forfeiture order was made (subsection (4)(a)). In addition, if the applicant is not the Secretary of State, an order may be made only if the applicant satisfies the court that he did not consent to the offender's possession of the property or that he did not know and had no reason to suspect that the property was likely to be used in connection with an offence (subsection (4)(b)).

71.     Subsection (5) enables the Secretary of State to make regulations by statutory instrument, subject to annulment by resolution of either House of Parliament, for the disposal of property. The Secretary of State can make regulations where the owner has not been ascertained. For property which is in the possession of an immigration officer or the Secretary of State because it has been forfeited under section 25C of the Immigration Act 1971 or under clause 21 of this Bill, regulations may also provide for disposal where a court order under subsection (2) cannot be made because of subsection (4)(a) (that is, because six months has expired since a forfeiture order was made). Regulations may also provide for disposal where a court has declined to make an order under subsection (2) because it is not satisfied of the matters specified in subsection (4)(b) (that is, the applicant did not consent to the offender's use of the property or he did not know and had no reason to suspect that the property was likely to be used in connection with an offence).

72.     Subsection (6) makes further provision about the regulations. The regulations may make provision which is the same as, or similar to, provision that may be made by regulations under section 2 of the Police (Property) Act 1897 or any similar enactment which applies in relation to Scotland or Northern Ireland. The regulations may apply, with or without modification regulations made under that Act. They may make provision for property to vest in the Secretary of State. They may make provision about the timing of the disposal (which may differ from the provision made under the Police (Property) Act 1897). The regulations shall have effect only where this is not inconsistent with any court order.

73.     Clause 44 makes transitional provision so that when clause 22 is commenced, it will have effect in respect of property which is already in the possession of an immigration officer or the Secretary of State.

Clause 23: Employment: arrest

74.     Section 21 of the Immigration, Asylum and Nationality Act 2006 introduced the new offence of knowingly employing an illegal worker and the associated powers to obtain a warrant to enter and search premises to arrest an individual who is liable to be arrested for this offence. The clause introduces an express power of arrest.

Clause 24: Employment: search for personnel records

75.     The current offence of employing an illegal worker (section 8 of the Asylum & Immigration Act 1996) will be replaced by a regime of civil penalties for employers and a new offence of knowingly employing an illegal worker (sections 15-21 of the Immigration, Asylum and Nationality Act 2006). Section 8 of the 1996 Act will be repealed upon the commencement of sections 15-21 of the 2006 Act. This clause introduces an express power to search for personnel records in connection with an offence under section 21 of the Immigration, Asylum and Nationality Act 2006.

Clause 25: Facilitation: arrival and entry

76.     Clause 25 amends the existing offence in section 25A of the 1971 Act to provide that a person commits an offence if he knowingly and for gain facilitates the entry to the United Kingdom, as well as the arrival in the United Kingdom, of an individual that they know or reasonably believe to be an asylum seeker. This amendment ensures that acts committed after an asylum seeker has arrived in the United Kingdom but before they have entered will be covered by the offence.

Clause 26: Facilitation: territorial application

77.     Clause 26 amends section 25 of the Immigration Act 1971. Section 25 makes it an offence to assist unlawful immigration to a member State of the European Union. Presently, the section applies to anything done in the United Kingdom, anything done outside the United Kingdom by a British national and to anything done outside the United Kingdom by a body incorporated in the United Kingdom. Clause 26 removes these existing limitations on the territorial application of the offence to cover acts of facilitation committed inside or outside the United Kingdom, irrespective of the nationality of the person carrying out the act (subsection (1)).

78.     Subsection (2) amends sections 25A (helping an asylum seeker to enter the United Kingdom) and 25B (assisting entry to United Kingdom in breach of a deportation or exclusion order) of the Immigration Act 1971 to extend the territorial application of the offences under those sections in the same way as described above for section 25.

Clause 27: People trafficking

79.     Clause 27, subsection (1) amends section 4(1) of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 (the 2004 Act) to provide that a person commits an offence if they facilitate the arrival in, or the entry into, the United Kingdom of a person that they intend to exploit or who they believe is likely to be exploited by another person.

80.     Similarly to the above, clause 27, subsection (3), amends the existing offence of trafficking for sexual exploitation contained in Section 57(1) of the Sexual Offences Act 2003 (the 2003 Act) so that it is an offence for an individual to intentionally arrange the arrival in, or entry into, the United Kingdom of another person (A) with the intention of that individual or a third person then doing anything to or in respect of A that will involve the commission of a relevant offence (as defined at subsection (1) of section 60 of the 2003 Act).

81.     These amendments will ensure that acts committed after a person has arrived in the United Kingdom but before they have entered the UK will be covered by the offences.

82.     The trafficking people for exploitation offences contained in Section 4 of the 2004 Act and Sections 57 to 59 of the 2003 Act currently encompass anything done in the United Kingdom, anything done outside the United Kingdom by a British national and anything done outside the United Kingdom by a body incorporated in the United Kingdom to facilitate the arrival or entry into the UK of an individual for the purposes of exploitation. Clause 27, subsections (2) and (4) amends sections 5(1) and (2) of the 2004 Act and sections 60(2) and (3) of the 2003 Act by removing these limitations on the territorial application of the offences and thereby ensuring that facilitating the arrival or entry into the UK of a person for the purposes of exploitation, regardless of

where the facilitation took place and irrespective of the nationality of the facilitator, are now caught by the offences.

Part 5: Deportation of criminals

Clause 28: Automatic deportation

83.     This clause provides that the Secretary of State must make a deportation order in respect of a "foreign criminal" unless certain exceptions apply.

84.     Subsection (1) defines "foreign criminal" for the purposes of the new automatic deportation process. A "foreign criminal" in this context means a non-British Citizen who has been convicted in the United Kingdom of an offence and to whom Condition 1 or 2 applies. Condition 1 is that he is sentenced to a period of imprisonment of at least 12 months (subsection (2)). Condition 2 is that he is sentenced to a period of imprisonment for an offence specified in an order made under section 72(4) of the Nationality, Asylum and Immigration Act 2002 (subsection (3)).

85.     Subsection (4) provides that the deportation of a foreign criminal is conducive to the public good for the purposes of section 3(5)(a) of the Immigration Act 1971.

86.     Subsection (6) prohibits the Secretary of State from revoking a deportation order made under the automatic procedure unless an exception applies (see clause 29 below) or the application for revocation is made while the foreign criminal is outside the United Kingdom.

87.     Subsection (7) confirms that the requirement on the Secretary of State to make an "automatic" deportation order under subsection (5) does not create a private right of action in respect of the consequences of non-compliance.

88.     This clause gives effect to the commitment given in the Home Secretary's statement of 23 May 2006 to create a direct link between deportation and the commission of a crime of the appropriate level of severity; and reduces the scope for challenging "automatic" deportation decisions through the appeals system. The existing legal framework (see Annex A) will continue to be available to deal with those who are exempt from the automatic procedure, those convicted of criminal offences who fall below the threshold for automatic deportation and other residual categories of case where it may be appropriate to exercise the "conducive to the public good" power to deport, for example national security cases and war criminals.

89.     The clause creates a new statutory framework for the "automatic" deportation of certain non-British citizens convicted in the United Kingdom of a qualifying offence. Under the provision, the Secretary of State will be required to make a deportation order unless removal would breach the UK's international obligations under the European Convention on Human Rights or the Refugee Convention. A qualifying offence will be either i) an offence for which an immediate sentence of

imprisonment of at least 12 months is imposed or ii) an offence specified in an order by the Secretary of State for which a sentence of imprisonment is imposed.

Clause 29: Exceptions

90.     This clause creates a number of exceptions to the automatic deportation procedure and preserves the existing exemptions from deportation in sections 7 and 8 of the 1971 Act. Subsections (2) to (6) set out the five exceptions:

  • Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach a person's Convention rights, or the United Kingdom's obligations under the Refugee Convention (subsection (2)).

  • Exception 2 is where the Secretary of State thinks that the foreign criminal was under the age of 18 on the date of conviction (subsection (3)).

  • Exception 3 is where the removal of the foreign criminal would breach his rights under the Community treaties (subsection (4)).

  • Exception 4 is where the Secretary of State has received a valid extradition request in respect of the foreign criminal (subsection (5)).

  • Exception 5 is where certain provisions of the Mental Health Act 1983 or corresponding legislation in Scotland or Northern Ireland apply (the foreign criminal is a "mentally disordered offender")(subsection (6)).

91.     Subsection (7) makes clear that those who are exempt from the new automatic deportation procedure may continue to be deported under existing legislation and the application of an exception will not result in it being assumed either that deportation of the person concerned is conducive to the public good nor that it is not conducive to the public good. However, clause 28(4) will continue to apply to persons falling within exceptions 1 and 4.

Clause 30: Timing

92.     Subsection (1) allows the Secretary of State to chose when the deportation order should be made under clause 28 subject to subsection (2) which provides that no order may be made while an appeal against a relevant conviction or sentence is pending, or could be brought.

Clause 31: Appeal

93.     This clause modifies the usual appeals regime for cases subject to the automatic deportation process.

94.     Subsection (2) disapplies the prohibition on making a deportation order while an appeal to the Tribunal against an immigration decision (within the meaning of section 82(2) of the Nationality. Immigration and Asylum Act 2002) is pending or could be brought. If a deportation order is made it invalidates any leave to enter or remain that the person has or is subsequently given while the order is in force (section 5(1) of the Immigration Act 1971). However, new subsection (4) of section 79, inserted by subsection (2), provides that a deportation order made under clause 28 will not invalidate the deportee's leave to enter or remain while an in-country appeal could be brought against an immigration decision.

95.     Subsection (3) amends section 82 of the Nationality, Immigration and Asylum Act 2002 to provide that the definition of "immigration decision" as including a decision to make a deportation order under section 5(1) of the Immigration Act 1971 shall also include a reference to a decision that clause 28(5) applies. The effect of this is that the decision that clause 28(5) applies is an immigration decision for the purposes of section 82(2) of the Nationality, Immigration and Asylum Act 2002 and so an appeal can be brought against the decision to the Asylum and Immigration Tribunal under section 82(1) of that Act. This appeal will only be capable of being brought from outside the United Kingdom unless the appellant makes an asylum and/or human rights claim (subsection (4)). However, such a claim can be certified as clearly unfounded (subsection (5)) under section 94 of the 2002 Act, the effect of which would be that the appeal could not be brought from within the United Kingdom.

Clause 32: Detention

96.     This clause creates a new power for the Secretary of State to detain a person while he considers whether clause 28 applies, and pending the making of a deportation order under clause 28 (subsection (1)). Where an automatic deportation order has been made, the Secretary of State must exercise the power of detention under paragraph 2(3) of Schedule 3 to the Immigration Act 1971 unless in the circumstances he thinks it inappropriate. A court determining appeal against conviction or sentence may direct release from detention under subsection (1) or (2) (subsection (3)). Subsection (2) provides that where a deportation order is made in accordance with clause 28(5) the Secretary of State shall exercise the power of detention under paragraph 2(3) of Schedule 3 to the Immigration Act 1971 unless in the circumstances the Secretary of State thinks it inappropriate. Paragraph 2(3) provides a power of detention in respect of a person if a deportation order is in force against that person.

97.     Subsections (4) and (5) apply the existing provisions on bail, arrest and restriction orders to automatic deportation cases.

Clause 33: Family

98.     This clause provides that a deportation order may not be made against a family member of a foreign criminal if more than eight weeks have elapsed since either the expiry of the time limit for appeal (if no appeal against an automatic deportation order is brought) (subsection 3) or such an appeal ceased to be pending (subsection (4)).

Clause 34: Interpretation

99.     Subsections (1) and (2) further define a "period of imprisonment" so as to:

  • exclude suspended sentences;

  • exclude (for the purpose of Condition 1 in clause 28) any sentence which amounts to at least 12 months only by virtue of being comprised of consecutive sentences which amount in aggregate to more than 12 months;

  • include indeterminate sentences and sentences served in institutions other than a prison.

100.     Subsection (3) clarifies that a person subject to an order under section 5 of the Criminal Procedure Insanity Act 1964 has not been convicted of an offence for the purposes of clause 28.

101.     Subsection (4) defines the following terms for the purposes of the automatic deportation process:

  • British citizen

  • Convention Rights

  • Deportation order and

  • Refugee convention.

Clause 35: Consequential amendments

102.     This clause makes several consequential amendments to section 72 (11)(b) of the Nationality, Immigration and Asylum Act 2002 in respect of suspended sentences and consecutive sentences.

Part 6: Information

Clause 36: Supply of Revenue and Customs information

103.     This clause provides that Her Majesty's Revenue and Customs and the Revenue and Customs Prosecutions Office, as well as those authorised to act on behalf of those organisations, may supply the Secretary of State with information, documents or articles for use for those purposes which are specified in this provision, all of which relate to the exercise of the Secretary of State's immigration and nationality functions.

Clause 37: Confidentiality

104.     This clause sets out the statutory duty of confidentiality placed on the Secretary of State, Ministers and their officials as well as those acting on their behalf in respect of information, documents and articles supplied by Her Majesty's Revenue and Customs, the Revenue and Customs Prosecutions Office or those acting on either organisation's behalf under those provisions specified in subsection (2) unless it is for a purpose permitted in this provision.

105.     It means that the Secretary of State, Ministers and the officials as well as those acting on their behalf are permitted to disclose information only if permitted to do so by any other enactment (not including an Act of the Scottish Parliament or of the Northern Ireland Assembly or an instrument made under such an Act) or the disclosure is for a purpose specified in subsection (3).

 
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Prepared: 26 January 2007