House of Commons - Explanatory Note
Uk Borders Bill - continued          House of Commons

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Supply of Information by HM Revenue and Customs and the police to the Secretary of State

166.     The department considers it likely that Article 8 rights will be engaged by the collection and use by the Secretary of State of the relevant information pursuant to clauses 36 and 39. However the department considers any such interference with this right to be justified under Article 8 (2) as the use of the information will be in accordance with the law and is necessary in a democratic society in the interests of public safety, the economic well being of the country and for the prevention or detection of crime (MS v Sweden (1997) 28 EHRR 151).

167.     In respect of the offence of wrongful disclosure of information obtained by the Secretary of State from Revenue and Customs, clause 38 provides a defence if the person charged with the offence can show that they reasonably believed that they had lawful authority to make the disclosure in question or that the information had already been made available lawfully to the public. This mirrors the defence to other similar offences such as that in section 19 of the Commissioners for Revenue and Customs Act 2005 and paragraph 24 of Schedule 5 to the Finance Act 2006.

168.     The department considers that this provision is compatible with Article 6 (2) applying the test set out in DPP v Sheldrake [2004] UKHL 43. The imposition of the burden of proof on the defendant is reasonable and proportionate as the statutory code of confidentiality for taxpayer information (an integral part of which is the offence for breach of tax payer confidentiality) is a very important safeguard to protect the rights and freedoms of others, particularly the tax payer's Article 8 rights. It is the disclosure of the tax payer's information which is the crux of the offence; and the prosecution must prove that beyond reasonable doubt. The question of whether or not the defendant reasonably believed he had lawful authority to disclose the information or that it had already lawfully been disclosed is something he is much better placed to give evidence on than the prosecution.

ANNEX A

Existing legal framework

Liability to deportation

Under the current legislative framework, a non-British citizen can be deported in accordance with section 3 of the Immigration Act 1971. Section 3(5)(a) provides that such a person is liable for deportation if the Secretary of Sate deems his deportation to be conducive to the public good. Section 3(5)(b) provides that a non-British citizen is liable to deportation if another person to whose family he belongs is or has been ordered to be deported. Section 3(6) provides that a non-British citizen is liable to deportation if he has reached the age of seventeen, is convicted of an offence which is punishable by imprisonment and is recommended for deportation by a court. Exemptions exists for Irish and commonwealth citizens and diplomatic and international functionaries under sections 7 and 8 of the 1971 Act.

Detention

Schedule 3 para 2 provides the consequent power of detention:

         where the court has made a recommendation;

         where a notice of decision to make a deportation order has been served and;

         where a deportation order has been made.

Appeals

Section 82(2)(j) of the Nationality, Immigration and Asylum Act 2002 defines a decision to make a deportation order as an immigration decision, which attracts a statutory right of appeal to the Asylum and Immigration Tribunal on grounds listed in section 84(1) of the 2002 Act. Under section 92(2) the appeal is exercisable from within the UK. Section 79(2) forbids the making of a deportation order whilst such an appeal is outstanding. Under sections 96 and 97 of the 2002 Act, the Secretary of State or an immigration officer can certify the immigration decision such that no appeal can be brought. S96 applies where the person should have raised the point in an appeal against an earlier immigration decision or in response to a one-stop notice. S97 relates to national security cases and directs appeal to Special Immigration Appeals Commission (SIAC). Refusal to revoke a DO is an immigration decision attracting an out of country right of appeal under s82(2)(k) of the 2002 Act.

EEA nationals

EEA nationals are considered for deportation in accordance with the Immigration (European Economic Area) Regulations 2006.

 
 
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Prepared: 26 January 2007