UK Borders Bill

House of Commons

Session 2006 - 07
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Other Bills before Parliament

UK Borders Bill

UK Borders Bill
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(f)
shall be subject to annulment in pursuance of a resolution of either
House of Parliament.
(7)
For the purposes of subsection (1) it is immaterial whether property is acquired
as a result of forfeiture or seizure or in any other way.
(8)
In the application of this section to Scotland a reference to a magistrates’ court
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is a reference to the sheriff.
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Employment: arrest
In section 28AA of the Immigration Act 1971 (c. 77) (arrest with warrant) for
subsection (1)(b) substitute—
“(b)
section 21(1) of the Immigration, Asylum and Nationality Act
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2006 (c. 13) (employment: offence).”
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Employment: search for personnel records
In section 28FA(7) of the Immigration Act 1971 (enforcement: search for
personnel records) for “an offence under section 8 of the Asylum and
Immigration Act 1996 (c. 49)” substitute “an offence under section 21 of the
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Immigration, Asylum and Nationality Act 2006 (c. 13)”.
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Facilitation: arrival and entry
In section 25A(1)(a) of the Immigration Act 1971 (helping asylum seeker to
enter UK: offence) after “the arrival in” insert “, or the entry into,”.
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Facilitation: territorial application
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(1)
For section 25(4) and (5) of the Immigration Act 1971 (assisting unlawful
immigration: territorial application) substitute—
“(4)
Subsection (1) applies to things done whether inside or outside the
United Kingdom.”
(2)
In sections 25A(4) and 25B(4) (facilitation: asylum-seekers and deportees) for
25
“Subsections (4) to (6)” substitute “Subsections (4) and (6)”.
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People trafficking
(1)
In section 4(1) of the Asylum and Immigration (Treatment of Claimants, etc.)
Act 2004 (c. 19) (trafficking) after “the arrival in” insert “, or the entry into,”.
(2)
For section 5(1) and (2) of that Act (trafficking: extent) substitute—
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“(1)
Subsections (1) to (3) of section 4 apply to anything done whether inside
or outside the United Kingdom.”
(3)
In section 57(1) of the Sexual Offences Act 2003 (c. 42) (trafficking) after “the
arrival in” insert “, or the entry into,”.
(4)
For sections 60(2) and (3) of that Act (trafficking: extent) substitute—
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“(2)
Sections 57 to 59 apply to anything done whether inside or outside the
United Kingdom.”

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Deportation of criminals
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Automatic deportation
(1)
In this section “foreign criminal” means a person—
(a)
who is not a British citizen,
(b)
who is convicted in the United Kingdom of an offence, and
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(c)
to whom Condition 1 or 2 applies.
(2)
Condition 1 is that the person is sentenced to a period of imprisonment of at
least 12 months.
(3)
Condition 2 is that—
(a)
the offence is specified by order of the Secretary of State under section
10
72(4)(a) of the Nationality, Immigration and Asylum Act 2002 (c. 41)
(serious criminal), and
(b)
the person is sentenced to a period of imprisonment.
(4)
For the purpose of section 3(5)(a) of the Immigration Act 1971 (c. 77), the
deportation of a foreign criminal is conducive to the public good.
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(5)
The Secretary of State must make a deportation order in respect of a foreign
criminal (subject to section 32).
(6)
The Secretary of State may not revoke a deportation order made in accordance
with subsection (5) unless—
(a)
he thinks that an exception under section 32 applies,
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(b)
the application for revocation is made while the foreign criminal is
outside the United Kingdom, or
(c)
section 33(4) applies.
(7)
Subsection (5) does not create a private right of action in respect of
consequences of non-compliance by the Secretary of State.
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32
Exceptions
(1)
Section 31(4) and (5)—
(a)
do not apply where an exception in this section applies (subject to
subsection (7) below), and
(b)
are subject to sections 7 and 8 of the Immigration Act 1971
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(Commonwealth citizens, Irish citizens, crew and other exemptions).
(2)
Exception 1 is where removal of the foreign criminal in pursuance of the
deportation order would breach—
(a)
a person's Convention rights, or
(b)
the United Kingdom’s obligations under the Refugee Convention.
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(3)
Exception 2 is where the Secretary of State thinks that the foreign criminal was
under the age of 18 on the date of conviction.
(4)
Exception 3 is where the removal of the foreign criminal from the United
Kingdom in pursuance of a deportation order would breach rights of the
foreign criminal under the Community treaties.
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(5)
Exception 4 is where the foreign criminal—

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(a)
is the subject of a certificate under section 2 or 70 of the Extradition Act
2003 (c. 41),
(b)
is in custody pursuant to arrest under section 5 of that Act,
(c)
is the subject of a provisional warrant under section 73 of that Act,
(d)
is the subject of an authority to proceed under section 7 of the
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Extradition Act 1989 (c. 33) or an order under paragraph 4(2) of
Schedule 1 to that Act, or
(e)
is the subject of a provisional warrant under section 8 of that Act or of
a warrant under paragraph 5(1)(b) of Schedule 1 to that Act.
(6)
Exception 5 is where any of the following has effect in respect of the foreign
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criminal—
(a)
a hospital order or guardianship order under section 37 of the Mental
Health Act 1983 (c. 20),
(b)
a hospital direction under section 45A of that Act,
(c)
a transfer direction under section 47 of that Act,
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(d)
a compulsion order under section 57A of the Criminal Procedure
(Scotland) Act 1995 (c. 46),
(e)
a guardianship order under section 58 of that Act,
(f)
a hospital direction under section 59A of that Act,
(g)
a transfer for treatment direction under section 136 of the Mental
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Health (Care and Treatment) (Scotland) Act 2003 (asp 13), or
(h)
an order or direction under a provision which corresponds to a
provision specified in paragraphs (a) to (g) and which has effect in
relation to Northern Ireland.
(7)
The application of an exception—
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(a)
does not prevent the making of a deportation order;
(b)
results in it being assumed neither that deportation of the person
concerned is conducive to the public good nor that it is not conducive
to the public good;

but section 31(4) applies despite the application of Exception 1 or 4.
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Timing
(1)
Section 31(5) requires a deportation order to be made at a time chosen by the
Secretary of State.
(2)
A deportation order may not be made under section 31(5) while an appeal or
further appeal against the conviction or sentence by reference to which the
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order is to be made—
(a)
has been instituted and neither withdrawn nor determined, or
(b)
could be brought.
(3)
For the purpose of subsection (2)(b)—
(a)
the possibility of an appeal out of time with permission shall be
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disregarded, and
(b)
a person who has informed the Secretary of State in writing that the
person does not intend to appeal shall be treated as being no longer able
to appeal.

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(4)
The Secretary of State may withdraw a decision that section 31(5) applies, or
revoke a deportation order made in accordance with section 31(5), for the
purpose of—
(a)
taking action under the Immigration Acts or rules made under section
3 of the Immigration Act 1971 (c. 77) (immigration rules), and
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(b)
subsequently taking a new decision that section 31(5) applies and
making a deportation order in accordance with section 31(5).
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Appeal
(1)
The Nationality, Immigration and Asylum Act 2002 (c. 41) is amended as
follows.
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(2)
At the end of section 79 (no deportation order pending appeal) add—
“(3)
This section does not apply to a deportation order which states that it is
made in accordance with section 31(5) of the UK Borders Act 2007.
(4)
But a deportation order made in reliance on subsection (3) does not
invalidate leave to enter or remain, in accordance with section 5(1) of
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the Immigration Act 1971, if and for so long as section 78 above
applies.”
(3)
Before section 82(4) (general right of appeal) insert—
“(3A)
Subsection (2)(j) does not apply to a decision to make a deportation
order which states that it is made in accordance with section 31(5) of the
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UK Borders Act 2007; but—
(a)
a decision that section 31(5) applies is an immigration decision
for the purposes of this Part, and
(b)
a reference in this Part to an appeal against an automatic
deportation order is a reference to an appeal against a decision
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of the Secretary of State that section 31(5) applies.”
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Detention
(1)
A person who has served a period of imprisonment may be detained under the
authority of the Secretary of State—
(a)
while the Secretary of State considers whether section 31(5) applies,
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and
(b)
where the Secretary of State thinks that section 31(5) applies, pending
the making of the deportation order.
(2)
Where a deportation order is made in accordance with section 31(5) the
Secretary of State shall exercise the power of detention under paragraph 2(3) of
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Schedule 3 to the Immigration Act 1971 (detention pending removal) unless in
the circumstances the Secretary of State thinks it inappropriate.
(3)
A court determining an appeal against conviction or sentence may direct
release from detention under subsection (1) or (2).
(4)
Provisions of the Immigration Act 1971 which apply to detention under
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paragraph 2(3) of Schedule 3 to that Act shall apply to detention under
subsection (1) (including provisions about bail).

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(5)
Paragraph 2(5) of Schedule 3 to that Act (residence, occupation and reporting
restrictions) applies to a person who is liable to be detained under subsection
(1).
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Family
(1)
Where a deportation order against a foreign criminal states that it is made in
5
accordance with section 31(5) (“the automatic deportation order”) this section
shall have effect in place of the words from “A deportation order” to “after the
making of the deportation order against him” in section 5(3) of the Immigration
Act 1971 (c. 77) (period during which family members may also be deported).
(2)
A deportation order may not be made against a person as belonging to the
10
family of the foreign criminal after the end of the relevant period of 8 weeks.
(3)
In the case of a foreign criminal who has not appealed in respect of the
automatic deportation order, the relevant period begins when an appeal can no
longer be brought (ignoring any possibility of an appeal out of time with
permission).
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(4)
In the case of a foreign criminal who has appealed in respect of the automatic
deportation order, the relevant period begins when the appeal is no longer
pending (within the meaning of section 104 of the Nationality, Immigration
and Asylum Act 2002 (c. 41)).
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Interpretation
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(1)
In section 31(2) the reference to a person who is sentenced to a period of
imprisonment of at least 12 months—
(a)
does not include a reference to a person who receives a suspended
sentence (whether or not a court subsequently orders that the sentence
is to take effect),
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(b)
does not include a reference to a person who is sentenced to a period of
imprisonment of at least 12 months only by virtue of being sentenced
to consecutive sentences amounting in aggregate to more than 12
months,
(c)
includes a reference to a person who is sentenced to detention, or
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ordered or directed to be detained, in an institution other than a prison
(including, in particular, a hospital or an institution for young
offenders) for at least 12 months, and
(d)
includes a reference to a person who is sentenced to imprisonment or
detention, or ordered or directed to be detained, for an indeterminate
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period (provided that it may last for 12 months).
(2)
In section 31(3)(b) the reference to a person who is sentenced to a period of
imprisonment—
(a)
does not include a reference to a person who receives a suspended
sentence (whether or not a court subsequently orders that the sentence
40
is to take effect), and
(b)
includes a reference to a person who is sentenced to detention, or
ordered or directed to be detained, in an institution other than a prison
(including, in particular, a hospital or an institution for young
offenders).
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(3)
For the purposes of section 31 a person subject to an order under section 5 of
the Criminal Procedure (Insanity) Act 1964 (c. 84) (insanity, &c.) has not been
convicted of an offence.
(4)
In sections 31 and 32—
(a)
“British citizen” has the same meaning as in section 3(5) of the
5
Immigration Act 1971 (c. 77) (and section 3(8) (burden of proof) shall
apply),
(b)
“Convention rights” has the same meaning as in the Human Rights Act
1998 (c. 42),
(c)
“deportation order” means an order under section 5, and by virtue of
10
section 3(5), of the Immigration Act 1971, and
(d)
“the Refugee Convention” means the Convention relating to the Status
of Refugees done at Geneva on 28th July 1951 and its Protocol.
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Consequential amendments
(1)
This section amends section 72(11)(b) of the Nationality, Immigration and
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Asylum Act 2002 (c. 41) (removal: serious criminal: interpretation).
(2)
In sub-paragraph (i) for “(unless at least two years of the sentence are not
suspended)” substitute “(whether or not a court subsequently orders that the
sentence is to take effect)”.
(3)
After sub-paragraph (i) insert—
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“(ia)
does not include a reference to a person who is
sentenced to a period of imprisonment of at least two
years only by virtue of being sentenced to consecutive
sentences which amount in aggregate to more than two
years,”.
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Information
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Supply of Revenue and Customs information
(1)
Her Majesty’s Revenue and Customs (HMRC) and the Revenue and Customs
Prosecutions Office (the RCPO) may each supply the Secretary of State with
information for use for the purpose of—
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(a)
administering immigration control under the Immigration Acts;
(b)
preventing, detecting, investigating or prosecuting offences under
those Acts;
(c)
determining whether to impose, or imposing, penalties or charges
under Part II of the Immigration and Asylum Act 1999 (c. 33) (carriers’
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liability);
(d)
determining whether to impose, or imposing, penalties under section
15 of the Immigration, Asylum and Nationality Act 2006 (c. 13)
(restrictions on employment);
(e)
providing facilities, or arranging for the provision of facilities, for the
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accommodation of persons under section 4 of the Immigration and
Asylum Act 1999;
(f)
providing support for asylum-seekers and their dependants under Part
6 of that Act;

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(g)
determining whether an applicant for naturalisation under the British
Nationality Act 1981 (c. 61) is of good character;
(h)
determining whether an applicant within subsection (1) of section 58 of
the Immigration, Asylum and Nationality Act 2006 (c. 13) (acquisition
of British nationality, &c. by adult or young person) for registration
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under a provision listed in subsection (2) of that section is of good
character;
(i)
determining whether to make an order in respect of a person under
section 40 of the British Nationality Act 1981 (deprivation of
citizenship);
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(j)
doing anything else in connection with the exercise of immigration and
nationality functions.
(2)
This section applies to a document or article which comes into the possession
of, or is discovered by, HMRC or the RCPO, or a person acting on behalf of
HMRC or the RCPO, as it applies to information.
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(3)
The Secretary of State—
(a)
may retain for a purpose within subsection (1) a document or article
supplied by virtue of subsection (2);
(b)
may dispose of a document or article supplied by virtue of subsection
(2).
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(4)
In subsection (1) “immigration and nationality functions” means functions
exercisable by virtue of—
(a)
the Immigration Acts,
(b)
the British Nationality Act 1981,
(c)
the Hong Kong Act 1985 (c. 15),
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(d)
the Hong Kong (War Wives and Widows) Act 1996 (c. 41), or
(e)
the British Nationality (Hong Kong) Act 1997 (c. 20).
(5)
A power conferred by this section on HMRC or the RCPO may be exercised on
behalf of HMRC or the RCPO by a person who is authorised (generally or
specifically) for the purpose.
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(6)
The following provisions (which relate to the supply of information to the
Secretary of State) shall cease to have effect—
(a)
section 20(1)(d) of the Immigration and Asylum Act 1999 (c. 33),
(b)
section 130 of the Nationality, Immigration and Asylum Act 2002
(c. 41), and
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(c)
paragraphs 17 and 20 of Schedule 2 to the Commissioners for Revenue
and Customs Act 2005 (c. 11).
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Confidentiality
(1)
A person to whom relevant information is supplied (whether before or after
the commencement of this section) may not disclose that information.
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(2)
Information is relevant information if it is supplied by or on behalf of HMRC
or the RCPO under—
(a)
section 20 of the Immigration and Asylum Act 1999,
(b)
section 130 of the Nationality, Immigration and Asylum Act 2002,