UK Borders Bill

House of Commons

Session 2006 - 07
Internet Publications
Other Bills before Parliament

UK Borders Bill

UK Borders Bill
1

A
Bill
[AS AMENDED IN PUBLIC BILL COMMITTEE]
To
Make provision about immigration and asylum; and for connected purposes.
Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—
Detention at ports
1
Designated immigration officers
(1)
The Secretary of State may designate immigration officers for the purposes of
section 2.
(2)
The Secretary of State may designate only officers who the Secretary of State
5
thinks are—
(a)
fit and proper for the purpose, and
(b)
suitably trained.
(3)
A designation—
(a)
may be permanent or for a specified period, and
10
(b)
may (in either case) be revoked.
2
Detention
(1)
A designated immigration officer at a port in England, Wales or Northern
Ireland may detain an individual if the immigration officer thinks that the
individual—
15
(a)
may be liable to arrest by a constable under section 24(1), (2) or (3) of
the Police and Criminal Evidence Act 1984 (c. 60) or Article 26(1), (2) or
(3) of the Police and Criminal Evidence (Northern Ireland) Order 1989
(S.I. 1989/1341 (N.I. 12)), or
(b)
is subject to a warrant for arrest.
20

Bill 82 54/2

UK Borders Bill
2

(2)
A designated immigration officer who detains an individual—
(a)
must arrange for a constable to attend as soon as is reasonably
practicable,
(b)
may search the individual for, and retain, anything that might be used
to assist escape or to cause physical injury to the individual or another
5
person,
(c)
must retain anything found on a search which the immigration officer
thinks may be evidence of the commission of an offence, and
(d)
must, when the constable arrives, deliver to the constable the
individual and anything retained on a search.
10
(3)
An individual may not be detained under this section for longer than three
hours.
(4)
A designated immigration officer may use reasonable force for the purpose of
exercising a power under this section.
(5)
Where an individual whom a designated immigration officer has detained or
15
attempted to detain under this section leaves the port, a designated
immigration officer may—
(a)
pursue the individual, and
(b)
return the individual to the port.
(6)
Detention under this section shall be treated as detention under the
20
Immigration Act 1971 (c. 77) for the purposes of Part 8 of the Immigration and
Asylum Act 1999 (c. 33) (detained persons).
3
Enforcement
(1)
An offence is committed by a person who—
(a)
absconds from detention under section 2,
25
(b)
assaults an immigration officer exercising a power under section 2, or
(c)
obstructs an immigration officer in the exercise of a power under
section 2.
(2)
A person guilty of an offence under subsection (1)(a) or (b) shall be liable on
summary conviction to—
30
(a)
imprisonment for a term not exceeding 51 weeks,
(b)
a fine not exceeding level 5 on the standard scale, or
(c)
both.
(3)
A person guilty of an offence under subsection (1)(c) shall be liable on
summary conviction to—
35
(a)
imprisonment for a term not exceeding 51 weeks,
(b)
a fine not exceeding level 3 on the standard scale, or
(c)
both.
(4)
In the application of this section to Northern Ireland—
(a)
the reference in subsection (2)(a) to 51 weeks shall be treated as a
40
reference to six months, and
(b)
the reference in subsection (3)(a) to 51 weeks shall be treated as a
reference to one month.
(5)
In relation to an offence committed before the commencement of section 281(5)
of the Criminal Justice Act 2003 (c. 44) (51 week maximum term of sentences)—
45

UK Borders Bill
3

(a)
the reference in subsection (2)(a) to 51 weeks shall be treated as a
reference to six months, and
(b)
the reference in subsection (3)(a) to 51 weeks shall be treated as a
reference to one month.
4
Interpretation: “port”
5
(1)
In section 2 “port” includes an airport and a hoverport.
(2)
A place shall be treated for the purposes of that section as a port in relation to
an individual if a designated immigration officer believes that the individual—
(a)
has gone there for the purpose of embarking on a ship or aircraft, or
(b)
has arrived there on disembarking from a ship or aircraft.
10
Biometric registration
5
Registration regulations
(1)
The Secretary of State may make regulations—
(a)
requiring a person subject to immigration control to apply for the issue
of a document recording biometric information (a “biometric
15
immigration document”);
(b)
requiring a biometric immigration document to be used—
(i)
for specified immigration purposes,
(ii)
in connection with specified immigration procedures, or
(iii)
in specified circumstances, where a question arises about a
20
person’s status in relation to nationality or immigration;
(c)
requiring a person who produces a biometric immigration document
by virtue of paragraph (b) to provide information for comparison with
information provided in connection with the application for the
document.
25
(2)
Regulations under subsection (1)(a) may, in particular—
(a)
apply generally or only to a specified class of persons subject to
immigration control (for example, persons making or seeking to make
a specified kind of application for immigration purposes);
(b)
specify the period within which an application for a biometric
30
immigration document must be made;
(c)
make provision about the issue of biometric immigration documents;
(d)
make provision about the content of biometric immigration documents
(which may include non-biometric information);
(e)
make provision permitting a biometric immigration document to be
35
combined with another document;
(f)
make provision for biometric immigration documents to begin to have
effect, and cease to have effect, in accordance with the regulations;
(g)
permit or require the Secretary of State to suspend or cancel a biometric
immigration document in specified circumstances;
40
(h)
require the holder of a biometric immigration document to notify the
Secretary of State in specified circumstances;
(i)
require a person who acquires a biometric immigration document,
without the consent of the person to whom it relates or of the Secretary

UK Borders Bill
4

of State, to surrender it to the Secretary of State as soon as is reasonably
practicable;
(j)
permit the Secretary of State to require the surrender of a biometric
immigration document in other specified circumstances;
(k)
permit the Secretary of State on issuing a biometric immigration
5
document to require the surrender of other documents.
(3)
Regulations under subsection (1)(a) may require a person applying for the
issue of a biometric immigration document to provide information (which may
include biographical or other non-biometric information) to be recorded in it
or retained by the Secretary of State; and, in particular, the regulations may—
10
(a)
require, or permit an authorised person to require, the provision of
information in a specified form;
(b)
require an individual to submit, or permit an authorised person to
require an individual to submit, to a specified process by means of
which biometric information is obtained or recorded;
15
(c)
confer a function (which may include the exercise of a discretion) on an
authorised person;
(d)
permit the Secretary of State, instead of requiring the provision of
information, to use or retain information which is (for whatever reason)
already in the Secretary of State’s possession;
20
(e)
require an authorised person to have regard to a code (with or without
modification);
(f)
require an authorised person to have regard to such provisions of a
code (with or without modification) as may be specified by direction of
the Secretary of State.
25
(4)
Regulations under subsection (1)(b) may, in particular, require the production
or other use of a biometric immigration document that is combined with
another document; and section 16 of the Identity Cards Act 2006 (c. 15)
(prohibition of requirement to produce ID card) is subject to this subsection.
(5)
Regulations under subsection (1)(c) may, in particular, make provision of a
30
kind specified in subsection (3)(a), (b), (e) or (f).
(6)
Rules under section 3 of the Immigration Act 1971 (c. 77) (immigration rules)
may require a person applying for the issue of a biometric immigration
document to provide non-biometric information to be recorded in it or retained
by the Secretary of State.
35
(7)
Subsections (3) to (6) are without prejudice to the generality of section 50 of the
Immigration, Asylum and Nationality Act 2006 (c. 13) (procedure).
6
Regulations: supplemental
(1)
This section applies to regulations under section 5(1).
(2)
Regulations amending or replacing earlier regulations may require a person
40
who holds a biometric immigration document issued under the earlier
regulations to apply under the new regulations.
(3)
In so far as regulations require an individual under the age of 16 to submit to a
process for the recording of biometric information, or permit an authorised
person to require an individual under the age of 16 to submit to a process of
45
that kind, the regulations must make provision similar to section 141(3) to (5)
and (13) of the Immigration and Asylum Act 1999 (fingerprints: children).

UK Borders Bill
5

(4)
Rules under section 3 of the Immigration Act 1971 (c. 77) (immigration rules)
may make provision by reference to compliance or non-compliance with
regulations.
(5)
Information in the Secretary of State’s possession which is used or retained in
accordance with regulations under section 5(3)(d) shall be treated, for the
5
purpose of requirements about treatment and destruction, as having been
provided in accordance with the regulations at the time at which it is used or
retained in accordance with them.
(6)
Regulations—
(a)
may make provision having effect generally or only in specified cases
10
or circumstances,
(b)
may make different provision for different cases or circumstances,
(c)
may include incidental, consequential or transitional provision,
(d)
shall be made by statutory instrument, and
(e)
may not be made unless a draft has been laid before and approved by
15
resolution of each House of Parliament.
7
Effect of non-compliance
(1)
Regulations under section 5(1) must include provision about the effect of
failure to comply with a requirement of the regulations.
(2)
In particular, the regulations may—
20
(a)
require or permit an application for a biometric immigration document
to be refused;
(b)
require or permit an application or claim in connection with
immigration to be disregarded or refused;
(c)
require or permit the cancellation or variation of leave to enter or
25
remain in the United Kingdom;
(d)
require the Secretary of State to consider giving a notice under section
9;
(e)
provide for the consequence of a failure to be at the discretion of the
Secretary of State.
30
8
Use and retention of information
(1)
Regulations under section 5(1) must make provision about the use and
retention by the Secretary of State of biometric information provided in
accordance with the regulations.
(2)
The regulations may include provision permitting the use of information for
35
specified purposes which do not relate to immigration.
(3)
Regulations under section 5(1)—
(a)
must include provision about the destruction of information obtained
or recorded by virtue of—
(i)
the regulations, or
40
(ii)
immigration rules made by virtue of section 5(5),
(b)
must, in particular, require the destruction of information if the
Secretary of State thinks that it is no longer likely to be of use—
(i)
in accordance with provision made by virtue of subsection (1)
above, or
45

UK Borders Bill
6

(ii)
in connection with a function under the Immigration Acts, and
(c)
must include provision similar to section 143(2) and (10) to (13) of the
Immigration and Asylum Act 1999 (c. 33) (fingerprints: destruction of
copies and electronic data).
(4)
But a requirement to destroy information shall not apply if and in so far as the
5
information is retained in accordance with and for the purposes of another
enactment.
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).
10
(2)
The notice must—
(a)
specify the amount of the penalty,
(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,
15
(d)
explain the grounds on which the Secretary of State thinks the person
has failed to comply with a requirement of the regulations, and
(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
20
the date on which the notice is given.
(5)
A person who has been given a notice under subsection (1) for failing to
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
25
notice, or
(b)
while an objection or appeal against an earlier notice has been
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.
30
10
Penalty: objection
(1)
A person (P) who is given a penalty notice under section 9(1) may by notice to
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),
35
(b)
that it is unreasonable to require P to pay a penalty, or
(c)
that the amount of the penalty is excessive.
(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
40
(c)
be given within the prescribed period.
(3)
The Secretary of State shall consider a notice of objection and—
(a)
cancel the penalty notice,

UK Borders Bill
7

(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—
(a)
in accordance with any prescribed requirements, and
5
(b)
within the prescribed period or such longer period as the Secretary of
State and P may agree.
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
10
(b)
the sheriff, in Scotland.
(2)
An appeal may be brought 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
15
(c)
that the amount of the penalty is excessive.
(3)
The court or sheriff may—
(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
20
court or sheriff thinks the original amount insufficient or because the
court or sheriff thinks that the appeal should not have been brought), or
(d)
confirm the penalty notice.
(4)
An appeal may be brought—
(a)
whether or not P has given a notice of objection, and
25
(b)
irrespective of the Secretary of State’s decision on any notice of
objection.
(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
30
section.
12
Penalty: enforcement
(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.
35
(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—
(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
40
appeal under section 11—