House of Commons - Explanatory Note
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Clause 38: Wrongful disclosure

106.     This clause creates an offence of wrongful disclosure of certain information supplied by Her Majesty's Revenue and Customs, the Revenue and Customs Prosecutions Office or those authorised to act on behalf of either of them. The offence is committed where a person in disclosing the information which relates to an identifiable natural or legal person contravenes clause 37. It does not apply to the disclosure of information about internal administrative arrangements of Her Majesty's Revenue and Customs or the Revenue and Customs Prosecutions Office.

107.     The offence applies in respect of the information supplied to the Secretary of State, etc. under the relevant provisions both before and after this provision is commenced.

Clause 39: Supply of police information, etc.

108.     This clause amends section 131 of the Nationality, Immigration and Asylum Act 2002. That provision provides that information may be supplied under section 20 of the Immigration and Asylum Act 1999 for the purpose of determining whether an applicant for naturalisation under the British Nationality Act 1981 is of good character. Section 20 of the Immigration and Asylum Act 1999 provides for information to be supplied to the Secretary of State by a number of persons specified in subsection (1) or specified in an order made under subsection (1) (f) for immigration purposes as defined in that provision.

109.     This clause in amending section 131 of the Nationality, Immigration and Asylum Act 2002, enables those persons (including chief officers of police and the Serious Organised Crime Agency) to supply information to assist the Secretary of State in determining whether applicants aged 10 or over for registration under a provision listed in section 58 (2) of the Immigration, Asylum and Nationality Act 2006 are of good character. Such information may include evidence of previous convictions.

Clauses 40 & 41: Entry and search for nationality documents and seizure and retention of nationality documents

110.     Where a person has been arrested for a criminal offence, and an immigration officer or a police constable suspects that the individual might not be a British citizen and documents relating to his nationality might be found on certain premises, the immigration officer or constable may enter and search the premises for the purpose of finding those documents (under clause 40(2)).

111.     A nationality document means a document showing the individual's identity, nationality or citizenship, the place from which he travelled to the United Kingdom, or the place to which he is proposing to go (subsection (5)). The premises which may be searched are premises occupied or controlled by the arrested person, or the premises in which he was when arrested (subsection (1)(b)).

112.     Under subsection (3) the power of entry and search may be exercised only with the written authority of a senior officer. In relation to an immigration officer, a senior officer is an immigration officer of at least the rank of chief immigration officer. In relation to a constable, a senior officer is a constable of at least the rank of inspector. The senior officer who authorises the search must arrange for a written record of the grounds for the suspicions in reliance on which the power was exercised and the nature of the documents sought (subsection (3)(b)).

113.     Under subsection (4) the power of search may not be exercised where the arrested person has been released without charge.

114.     Under clause 41(1) an immigration officer or constable may seize a document which he thinks is a nationality document relating to the arrested person, provided it is not a document subject to legal privilege (subsection (2)). An immigration officer or a constable may retain the seized document while he suspects that the individual to whom the document relates may be liable to removal, and that retention of the document may facilitate that removal.

115.     Subsections (4) and (5) provide for the access to and copying of any documents seized.

Part 7: General

Clause 42: Money

116.     This clause gives the Secretary of State authority to spend money provided by Parliament for the purposes of the Act.

Clause 43: Repeals

117.     The provisions specified will be repealed as they are replaced by or rendered obsolete by the provisions in the Bill.

Clause 44: Commencement

118.     This clause sets out the arrangements for bringing into force the provisions of the Act.

119.     Subsection (1) provides that clause 17 shall come into force on the day the Bill is passed.

120.     Subsection (2) states that the other preceding provisions may be brought into force on a day which the Secretary of State may, by order, appoint.

121.     Subsection (3) states that different provisions may be brought into force at different times and for different purposes and may include transitional provisions.

122.     Subsection (4) specifies certain particular transitional provisions which the commencement order may make in relation to clauses 16, 21 22 and 28.

Clause 45: Extent

123.     Clause 45: the UK Borders Bill extends to the whole of the United Kingdom, with two exceptions, clauses 1-4 relating to powers of detention for immigration officers at ports, and clause 21 relating to forfeiture of property. These will only apply to England, Wales and Northern Ireland.

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

125.     A provision of the Bill may be extended to any of the Channel Islands or to the Isle of Man by Order in Council.

FINANCIAL EFFECTS AND EFFECTS OF THE BILL ON PUBLIC SERVICE MANPOWER

126.     Some of the provisions in the Bill will place an increased burden on the public sector. These are likely to be incurred by the training necessary required for increasing powers of frontline staff and costs associated with processing the prosecution of a greater number of cases through the courts. Specifically, the provisions relating to tackling facilitation offences are likely to incur additional costs for Crown Prosecution Service, Department for Constitutional Affairs, Prison Service and UKVisas. Where possible these costs have been estimated in the Regulatory Impact Assessment (RIA) for the Bill. With regard to the provision for the automatic deportation of foreign national prisoners, further modelling is being carried out to assess the impact on the Prison Service.

SUMMARY OF THE REGULATORY IMPACT ASSESSMENT

127.     A regulatory impact assessment is published with the Bill. There are no proposals that have an adverse impact on business.

EUROPEAN CONVENTION ON HUMAN RIGHTS

128.     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 25th January 2007 the Secretary of State for the Home Department made the following statement:

  • In my view the provisions of the UK Borders Bill are compatible with the Convention rights.

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

Designation of immigration officers as having a power of detention pending the arrival of a constable

130.     Clauses 1 and 2 allow the Secretary of State to designate individual Immigration Officers as having the power to detain a person where the immigration officer considers him someone who a constable could arrest without a warrant pursuant to section 24(1), (2) and (3) of the Police and Criminal Evidence Act 1984 or where a warrant is outstanding for the individual. This detention will be solely pending the arrival of a police constable, clause 2.

131.     The power of detention engages Article 5 ECHR. As the new power is set out in legislation which will specify when it can it be exercised and the limitations on its use, the department considers its use will be "in accordance with a procedure prescribed by law" for the purposes of Article 5. It also falls within one of the permitted cases, namely Article 5(1)(c). Detention where there is an outstanding warrant for an individual's arrest may also fall within Article 5(1) (a).

132.     The power to search individuals, and seize weapons or documents, raises potential issues under Article 8 ECHR and Article 1 of Protocol 1. There is clearly the potential for interference under both Articles, but in the Department's view any such interference can be justified under Article 8(2) and Article 1, Protocol 1. The powers of search and seizure pursue the legitimate aim of the public safety, the economic well-being of the country and/or the prevention of disorder or crime and are proportionate. The power to search is for specific and limited purposes and will be carried out by Immigration Officers who the Secretary of State has concluded are capable of, properly trained for and fit and proper to exercise the powers.

Biometric registration of persons subject to immigration control

133.     The department recognises that taking biometric or other information from a person, storing that information (on existing IND biometric databases) and requiring the biometric immigration document to be used for specific immigration purposes, is likely to be an interference in the right to respect for private life. 1 However, the department believes the interference is justified and proportionate.

1 Murray v UK [1994] 19 EHRR and McVeigh v UK [1981] 25 DR 15, 49, taking of personal details/fingerprints by the army/police an interference, although see also Filip Reyntjens v Belgium [1992] 73 DR 136 where the Commission decided that it was not a breach of Article 8 to require a person to carry and produce an identity card.

134.     In the department's view the proposals will be in accordance with the law. 2 The provisions will be set out in primary legislation and in secondary legislation (affirmative procedure), save for certain procedural requirements which will be provided for under the Immigration Rules. The intention is to ensure that the requirements of the regulations are formulated with sufficient precision so that their ambit is absolutely clear, accessible and foreseeable.

2 As required by Olsson v Sweden (No 1) [1988] EHRR 259.

135.     In the department's view it is necessary for the Secretary of State to have the proposed powers for the maintenance of immigration control by ensuring the integrity of documents which are evidence of a person's immigration status, and which are used to combat illegal working. As such, the proposals are necessary for the economic well-being of the country 3 and the prevention of crime. 4

3 The European Court of Human Rights has recognised that the maintenance of immigration control is a legitimate aim under this heading, Berrehab v Netherlands [1988] 11 EHRR 322 at paragraph 26.

4 Illegal working and employing an illegal worker are criminal offences under section 24(1) of the Immigration Act 1971, and section 8 of the Asylum and Immigration Act 1996 respectively. Immigration control policy may fall within this heading, Beldjoudi v France [1992] 14 EHRR 801 at paragraph 70.

136.     In the department's view the proposals are a proportionate way of achieving these objectives. The use of insecure, easily forged documents as evidence of immigration status is a real threat to the effective maintenance of immigration control, including the prevention of illegal working. Those subject to immigration control must be issued with specific documentary evidence of their status already. 5 It is reasonable and proportionate to require these individuals, who wish to be in the UK, to have a secure, reliable biometric immigration document as evidence of their status.

5 Under European Council Regulation (EC) 1030/2002, save visa applicants (who must be issued with documents under other EC legislation), those who wish to stay for fewer than 6 months, and those on temporary admission pending consideration of an immigration application or asylum claim.

137.     A new European Council Regulation is being negotiated which makes similar provision to the new proposals. This Regulation will require member States to issue a biometric residence permit to any third country national who is authorised to stay in its territory. 6 Member States may make domestic provision to require third country nationals to upgrade existing authorisations to a biometric residence permit. 7 The proposed power in the Bill will be used to make this domestic provision. There has been no suggestion in the course of negotiations that the European proposals are contrary to Article 8. The Republic of Ireland has published instructions to the Irish Parliamentary Counsel (which take the form of a draft Bill) for Irish legislation which will make similar provision. 8

6 Apart from those authorised to stay by a visa, those who wish to stay for less than 6 months, and those who are on temporary admission pending consideration of an asylum or immigration application.

7 Under Article 9(4) of Council Regulation (EC) 1030/2002 which will be amended by the draft Regulation under discussion.

8 Scheme for an Immigration, Residence and Protection Bill, please see Head 21 to 34 at http://www.justice.ie/80256E010039C5AF/vWeb/flJUSQ6TDJ3V-ga/$File/Scheme.pdf

138.     In connection with article 14 ECHR, there are two separate legal issues for consideration. Firstly, these measures will only apply to those who are subject to immigration control. Secondly, the measures will be rolled out to different categories of those subject to immigration control incrementally according to rational criteria. For both issues, the department considers the different treatment is not discriminatory 9 or (if wrong) any discrimination is justified.

9 In the application of Article 8.

Application of the measures to those subject to immigration control only

139.     It is accepted that those subject to immigration control will be treated differently from those who are not, under the proposals. However, the department does not think this is discrimination. Those subject to immigration control are not in a comparable position to those who are not subject to immigration control. The Bill's measures are designed to reinforce the maintenance of immigration control, including by the prevention of illegal working. Those subject to immigration control are treated differently from those who are not. This fundamental assumption is reflected in the Immigration Acts.

140.     If the department is wrong in thinking that there is no discrimination, it believes it is objectively justified and proportionate for the reasons given above in respect of Article 8.

Incremental implementation of the requirements

141.     The requirement for those subject to immigration control to apply for a biometric immigration document will be implemented incrementally. Different categories of those subject to immigration control will be subject to the measures at different times by successive secondary legislation made under the power, and so will be treated differently.

142.     The phases of the implementation will be determined by rational criteria. The precise order and categories for the phases are still being developed. It is likely that those categories who present the greatest risk to immigration control will be subject to a requirement first. The phases may also be determined by practical considerations, such as the availability of the necessary technology and resources for particular applicants.

143.     In the department's view, an incremental implementation according to rational criteria is, in principle, compatible with Article 14.

Power of arrest, entry, search and seizure in respect of two asylum-support offences

144.     Clause 18 gives an immigration officer the power to arrest a person, without warrant, whom he reasonably suspects has committed an offence under section 105 or 106 of the Immigration and Asylum Act 1999 (false or dishonest representations to obtain asylum-support). This clause also applies existing powers to a section 105 or 106 offence. The extension of these existing powers gives an immigration officer the power to enter premises, with warrant, to search for a person liable to arrest for the offence. It gives an immigration officer the power to enter and search certain premises, with and without warrant, for evidence of the offence, and to seize and retain the evidence. It also gives an immigration officer the power to search the arrested person for, broadly speaking, dangerous items, items which may enable him to escape from custody, and relevant evidence. Items found can be seized and retained.

145.     These powers are subject to the particular conditions and restrictions provided for in respect of each power (see section 28B (search and arrest by warrant), 28D (entry and search of premises), 28E (entry and search of premises following arrest), 28G (searching arrested persons) and 28H (searching persons in police custody) of the Immigration Act 1971), and also to the additional safeguards under sections 28I (seized material: access and copying), 28J (search warrants: safeguards) and 28K (execution of warrants) of the Immigration Act 1971 which are expressly applied by clause 18.

146.     In the view of the department, the proposed power of arrest is in accordance with Article 5 and Article 8 of the ECHR, and the powers of entry, search and seizure are in accordance with Article 8 of the ECHR and Article 1 of the First Protocol to the ECHR.

Power of arrest

147.     It is necessary for an immigration officer to have the proposed power to secure the lawful arrest of a person for the purpose of bringing him before the courts on reasonable suspicion of his having committed an offence under section 105 or 106 of the Immigration and Asylum Act 1999 (for the purposes of Article 5). This power is also necessary in the interests of the prevention of disorder or crime and for the economic well-being of the country (for the purposes of Article 8). Asylum-support fraud is a serious problem.

Powers of entry, search and seizure

148.     The department recognises that the exercise of the powers of entry, search and seizure may engage Article 8 of the ECHR and Article 1 of the First Protocol to the ECHR. However, interference in this context may be necessary, for the investigation of a serious criminal offence, and for the protection of those investigating the offence (depending again on the particular circumstances of a particular case). As such it may be necessary for the prevention of crime, for the economic well-being of the country, and for the protection of right and freedoms of others (for the purposes of Article 8). The department considers for these reasons that any control on the use of or deprivation of property under these powers may be in the public interest (for the purposes of Article 1 of the First Protocol).

149.     The department also considers that any such interference would be proportionate and strike a fair balance between the rights of the general community and the individual (for the purposes of both Article 8 and Article 1 of the First Protocol). In particular, the conditions and restrictions under section 28B, 28D, 28E, 28G, and 28H of the Immigration Act 1971 for the respective powers, combined with the safeguards under section 28I, 28J and 28K of the Immigration Act 1971, are intended to ensure this is the case.

Powers to enter premises to search for and seize nationality-related documents following arrest for a criminal offence

150.     Clause 40 gives an immigration officer or a constable the power to enter certain premises without warrant in order to search for and seize documents which establish a person's nationality. This power may be exercised where a person has been arrested for a criminal offence.

151.     The department recognises that the exercise of the powers of entry, search and seizure may engage Article 8 of the ECHR and Article 1 of the First Protocol to the ECHR. However, interference may be necessary. It is necessary to secure the deportation of those who are not British citizens who have committed a criminal offence, to ensure the economic well-being of the country, 10 the prevention of crime and the protection of rights and freedoms of others (for the purposes of Article 8). Seizure of nationality-related documents in appropriate cases achieves these objectives.

10 The European Court of Human Rights has recognised that the maintenance of immigration control is a legitimate aim under this heading, Berrehab v Netherlands [1988] 11 EHRR 322 at paragraph 26.

152.     The department considers that any deprivation of property under these powers may be in the public interest for the same reasons (for the purposes of Article 1 of the First Protocol).

153.     The department believes that any such interference is proportionate, and strikes a fair balance between the rights of the general community and the individual (for the purposes of Article 8 and Article 1 of the First Protocol respectively). There is a strong public interest in securing deportation of those who are not British citizens who commit criminal offences; and deportation can best be achieved by establishing nationality at the earliest possible stage in the criminal justice process.

154.     In addition, the conditions and restrictions and safeguards under clauses 40 and 41 are intended to ensure the power is proportionate. These conditions and safeguards replicate similar provisions which restrict the exercise of similar existing powers of search and seizure. 11 There has been no suggestion that the similar existing powers are contrary to the ECHR.

11 See paragraph 25A and 25D of Schedule 2 to the Immigration Act 1971 for comparable safeguards.

Seizure of cash

155.     Clause 20 provides that Chapter 3 of Part 5 of the Proceeds of Crime Act 2002 shall apply to immigration officers as it applies to officers of Revenue and Customs.

156.     The exercise of the relevant powers is authorised by primary legislation. During the passage of this legislation a statement was made in accordance with section 19 of the Human Rights Act 1998 ('the 1998 Act') that the relevant provisions of the then Bill were compatible with Convention Rights (as defined in the 1998 Act). As the proposed change extends the exercise of the powers contained in that Act to Immigration Officers but does not extend the scope or operation of those powers we take the view that this proposal is also compatible with Convention Rights. It is also important to note that applications for continued detention and forfeiture of any cash seized must be authorised by a court of summary jurisdiction and that any party who claims an interest in the seized cash can apply to such a court for its release.

Disposal of property

157.     Clause 22 provides for the disposal of property which has come into the possession of an immigration officer, or the Secretary of State, in the course of, or in connection with, a function under the Immigration Acts.

158.     The rights which are most obviously relevant are Article 8 of the ECHR (right to private life) and Article 1 of the first Protocol to the ECHR (protection of property). It is accepted that the disposal of property belonging to another person engages these rights. However, the department considers that any interference is justified for the following reasons.

159.     The interference is in accordance with the law. The provisions will be set out in primary and secondary legislation (negative procedure). The department will ensure that the requirements of the regulations are formulated with sufficient precision so that their ambit is absolutely clear, accessible and foreseeable.

160.     The justification for the disposal under Article 8(2) depends on the particular item and would have to be assessed at the time before disposal. Where the item has been seized because it could be used to harm persons or property (for example, under the power provided for by section 28G(6) of the Immigration Act 1971 (searching arrested persons)) the power of disposal may be necessary for public safety, for the prevention of disorder or crime, and for the protection of the rights and freedoms of others. Where the item has been seized because it is relevant evidence of a criminal offence (for example, under section 28E of the Immigration Act 1971 (entry and search of premises following arrest)) then it may be necessary for the prevention of disorder and crime and for the protection of rights and freedoms of others. More generally, where the officer or Secretary of State is exercising immigration-related functions, disposal may be necessary as part of the maintenance of immigration control and so for the economic well-being of the country. 12 Similarly, an interference with the right to property under Article 1 of the First Protocol to the ECHR may be justified.

12 The European Court of Human Rights has recognised that the maintenance of immigration control is a legitimate aim under this heading, Berrehab v Netherlands [1988] 11 EHRR 322 at paragraph 26.

161.     Before any particular item is disposed of, an assessment would have to be made as to whether disposal was proportionate (in respect of Article 8 ECHR and Article 1 of the First Protocol). In principle, the department considers that disposal may be proportionate. Parliament has given powers to immigration officers and the Secretary of State to seize and retain certain property. Without powers to dispose of the property in appropriate cases equivalent to the police, the Immigration and Nationality Directorate has to retain the items, at considerable cost to the taxpayer.

Deportation of criminals

162.      Clauses 28 to 34 introduce a modified procedure for deportation of criminals. In relation to specified foreign criminals clause 28(5) provides that the Secretary of State must make a deportation order, subject to certain exceptions. An appeal against the making of a deportation order in cases falling within the new regime will be non-suspensive unless the appellant has, while in the United Kingdom, made an arguable asylum or human rights claim. Deportation could engage Convention rights. However, the department considers the provisions to be compatible with them.

163.     First, one of the exceptions to the making of an automatic deportation order is that removal of the person would be incompatible with the Human Rights Act 1998 (clause 29(2)). Secondly, the right of appeal on the ground that the making of a deportation order is unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant's Convention Rights (section 84(1)(c) of the Nationality, Immigration and Asylum Act 2002) is not affected by any of the provisions. Thirdly, a person in respect of whom a deportation order is made who makes an arguable human rights claim will continue to enjoy a right of appeal from within the United Kingdom against the making of the deportation order.

164.     Clause 44 provides that the provisions on automatic deportation may be applied to persons convicted of offences before the Bill is passed. This may be thought to raise issues under article 7 ECHR. The department does not consider that article 7 would be engaged. Persons are currently liable to deportation if the Secretary of State deems their deportation to be conducive to the public good (section 3(5) of the Immigration Act 1971). Any person who would fall within the Bill's provisions on automatic deportation is currently capable of being deported under these powers. Therefore, even if deportation were a penalty for the purposes of article 7, it is a penalty which could be imposed now under existing legislation on the persons to whom the automatic provisions will apply. The department does not consider that the change to make the making of a deportation order mandatory in certain circumstances has the effect of imposing a heavier sentence than was applicable at the time of commission of the offence (see the approach of the House of Lords to the automatic extension of licences to the three-quarter period of the sentence, rather than the two-thirds point applicable at time of commission of the offence in Uttley [2004] UKHL 38).

165.     If the department's analysis above is wrong, the department considers that automatic deportation is in any event not a penalty for the purposes of article 7. That is the accepted position for deportation. While automatic deportation following conviction is new, the nature and purpose of deportation itself has not changed and the department considers that it would still be held to be essentially preventative and not punitive (applying the test in Welch v UK (1995) 20 EHRR 247).

 
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Prepared: 26 January 2007