UK Borders Bill

House of Commons

Session 2006 - 07
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Other Bills before Parliament

UK Borders Bill

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(a)
could be brought (disregarding any possibility of an appeal out of time
with permission), or
(b)
has been brought and has not been determined or abandoned.
(4)
In proceedings for the recovery of a penalty no question may be raised as to the
matters specified in sections 10 and 11 as grounds for objection or appeal.
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(5)
Money received by the Secretary of State in respect of a penalty shall be paid
into the Consolidated Fund.
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Penalty: code of practice
(1)
The Secretary of State shall issue a code of practice setting out the matters to be
considered in determining—
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(a)
whether to give a penalty notice under section 9(1), and
(b)
the amount of a penalty.
(2)
The code may, in particular, require the Secretary of State to consider any
decision taken by virtue of section 7.
(3)
A court or the sheriff shall, when considering an appeal under section 11, have
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regard to the code.
(4)
The Secretary of State may revise and re-issue the code.
(5)
Before issuing or re-issuing the code the Secretary of State must—
(a)
publish proposals,
(b)
consult members of the public, and
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(c)
lay a draft before Parliament.
(6)
The code (or re-issued code) shall come into force at the prescribed time.
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Penalty: prescribed matters
(1)
In sections 10 to 13 “prescribed” means prescribed by the Secretary of State by
order.
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(2)
An order under subsection (1) or under section 9(6)—
(a)
may make provision generally or only for specified purposes,
(b)
may make different provision for different purposes,
(c)
shall be made by statutory instrument, and
(d)
shall be subject to annulment in pursuance of a resolution of either
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House of Parliament.
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Interpretation
(1)
For the purposes of section 5—
(a)
“person subject to immigration control” means a person who under the
Immigration Act 1971 (c. 77) requires leave to enter or remain in the
35
United Kingdom (whether or not such leave has been given),
(b)
“biometric information” means information about external physical
characteristics,
(c)
“external physical characteristics” includes, in particular—
(i)
fingerprints, and
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(ii)
features of the iris or any other part of the eye,

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(d)
“document” includes a card or sticker and any other method of
recording information (whether in writing or by the use of electronic or
other technology or by a combination of methods),
(e)
“authorised person” has the meaning given by section 141(5) of the
Immigration and Asylum Act 1999 (authority to take fingerprints),
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(f)
“immigration” includes asylum, and
(g)
regulations permitting something to be done by the Secretary of State
may (but need not) permit it to be done only where the Secretary of
State is of a specified opinion.
(2)
An application for a biometric immigration document is an application in
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connection with immigration for the purposes of—
(a)
section 50(1) and (2) of the Immigration, Asylum and Nationality Act
2006 (c. 13) (procedure), and
(b)
section 51 of that Act (fees);

and in the application of either of those sections to an application for a
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biometric immigration document, the prescribed consequences of non-
compliance may include any of the consequences specified in section 7(2)
above.
Treatment of claimants
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Conditional leave to enter or remain
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After section 3(1)(c)(iii) of the Immigration Act 1971 (c. 77) (limited leave to
enter or remain: conditions) insert—
“(iv)
a condition requiring him to report to an immigration
officer or the Secretary of State; and
(v)
a condition about residence.”
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17
Support for failed asylum-seekers
(1)
This section applies for the purposes of—
(a)
Part 6 (and section 4) of the Immigration and Asylum Act 1999 (c. 33)
(support and accommodation for asylum-seekers),
(b)
Part 2 of the Nationality, Immigration and Asylum Act 2002 (c. 41)
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(accommodation centres), and
(c)
Schedule 3 to that Act (withholding and withdrawal of support).
(2)
A person (A-S) remains (or again becomes) an asylum-seeker, despite the fact
that the claim for asylum made by A-S has been determined, during any period
when—
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(a)
A-S can bring an in-country appeal against an immigration decision
under section 82 of the 2002 Act or section 2 of the Special Immigration
Appeals Commission Act 1997 (c. 68), or
(b)
an in-country appeal, brought by A-S under either of those sections
against an immigration decision, is pending (within the meaning of
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section 104 of the 2002 Act).
(3)
For the purposes of subsection (2)—
(a)
“in-country” appeal means an appeal brought while the appellant is in
the United Kingdom, and

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(b)
the possibility of an appeal out of time with permission shall be
ignored.
(4)
For the purposes of the provisions mentioned in subsection (1)(a) and (b), a
person’s status as an asylum-seeker by virtue of subsection (2)(b) continues for
a prescribed period after the appeal ceases to be pending.
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(5)
In subsection (4) “prescribed” means prescribed by regulations made by the
Secretary of State; and the regulations—
(a)
may contain incidental or transitional provision,
(b)
may make different provision for different classes of case,
(c)
shall be made by statutory instrument, and
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(d)
shall be subject to annulment in pursuance of a resolution of either
House of Parliament.
(6)
This section shall be treated as always having had effect.
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Support for asylum-seekers: enforcement
In Part 6 of the Immigration and Asylum Act 1999 (c. 33) (support for asylum-
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seekers) after section 109 (offences: supplemental) insert—
“109A
     Arrest
An immigration officer may arrest without warrant a person whom the
immigration officer reasonably suspects has committed an offence
under section 105 or 106.
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109B
      Entry, search and seizure
(1)
An offence under section 105 or 106 shall be treated as—
(a)
a relevant offence for the purposes of sections 28B and 28D of
the Immigration Act 1971 (c. 77) (search, entry and arrest), and
(b)
an offence under Part 3 of that Act (criminal proceedings) for
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the purposes of sections 28(4), 28E, 28G and 28H (search after
arrest, &c.) of that Act.
(2)
The following provisions of the Immigration Act 1971 shall have effect
in connection with an offence under section 105 or 106 of this Act as
they have effect in connection with an offence under that Act—
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(a)
section 28I (seized material: access and copying),
(b)
section 28J (search warrants: safeguards),
(c)
section 28K (execution of warrants), and
(d)
section 28L(1) (interpretation).”
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Points-based applications: no new evidence on appeal
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(1)
For section 85(5) of the Nationality, Immigration and Asylum Act 2002 (c. 41)
(appeal: new evidence may be considered: exception) substitute—
“(5)
But subsection (4) is subject to the exceptions in section 85A.”
(2)
After section 85 of that Act insert—
“85A
Matters to be considered: new evidence: exceptions
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(1)
This section sets out the exceptions mentioned in section 85(5).

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(2)
Exception 1 is that in relation to an appeal under section 82(1) against
an immigration decision of a kind specified in section 82(2)(b) or (c) the
Tribunal may consider only the circumstances appertaining at the time
of the decision.
(3)
Exception 2 applies to an appeal under section 82(1) if—
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(a)
the appeal is against an immigration decision of a kind specified
in section 82(2)(a) or (d),
(b)
the immigration decision concerned an application of a kind
identified in immigration rules as requiring to be considered
under a “Points Based System”, and
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(c)
the appeal relies wholly or partly on grounds specified in
section 84(1)(a), (e) or (f).
(4)
Where Exception 2 applies the Tribunal may consider evidence
adduced by the appellant only if it—
(a)
was submitted in support of, and at the time of making, the
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application to which the immigration decision related,
(b)
relates to the appeal in so far as it relies on grounds other than
those specified in subsection (3)(c),
(c)
is adduced to prove that a document is genuine or valid, or
(d)
is adduced in connection with the Secretary of State’s reliance
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on a discretion under immigration rules, or compliance with a
requirement of immigration rules, to refuse an application on
grounds not related to the acquisition of “points” under the
“Points Based System”.
(5)
Immigration rules may make provision about the circumstances in
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which evidence is to be treated, or not treated, as submitted in support
of, and at the time of making, an application.”
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Fees
(1)
Section 42 of the Asylum and Immigration (Treatment of Claimants, etc.) Act
2004 (c. 19) (fees: power to set amount in excess of costs) is amended as follows.
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(2)
In subsection (2) after paragraph (d) insert—
“(da)
an application or process in connection with sponsorship of
persons seeking leave to enter or remain in the United
Kingdom,”.
(3)
After that subsection insert—
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“(2A)
Regulations under section 51(3) of the Immigration, Asylum and
Nationality Act 2006 (fees), specifying the amount of a fee for a claim,
application, service, process or other matter in respect of which an
order has been made under section 51(1) or (2), may specify an amount
which reflects (in addition to any costs referable to the claim,
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application, service, process or other matter) costs referable to—
(a)
any other claim, application, service, process or matter in
respect of which the Secretary of State has made an order under
section 51(1) or (2),
(b)
the determination of applications for entry clearances (within
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the meaning given by section 33(1) of the Immigration Act 1971
(c. 77) (interpretation),

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(c)
the determination of applications for transit visas under section
41 of the Immigration and Asylum Act 1999 (c. 33) (transit
passengers), or
(d)
the determination of applications for certificates of entitlement
to the right of abode in the United Kingdom under section 10 of
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the Nationality, Immigration and Asylum Act 2002 (c. 41).”
(4)
After subsection (3) insert—
“(3A)
The amount of a fee under section 1 of the Consular Fees Act 1980 in
respect of a matter specified in subsection (2A)(b) to (d) above may be
set so as to reflect costs referable to any claim, application, service,
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process or other matter in respect of which the Secretary of State has
made an order under section 51(1) or (2) of the Immigration, Asylum
and Nationality Act 2006 (c. 13).”
Enforcement
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Assaulting an immigration officer: offence
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(1)
A person who assaults an immigration officer commits an offence.
(2)
A person guilty of an offence under this section shall be liable on summary
conviction to—
(a)
imprisonment for a period not exceeding 51 weeks,
(b)
a fine not exceeding level 5 on the standard scale, or
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(c)
both.
(3)
In the application of this section to Northern Ireland the reference in subsection
(2)(a) to 51 weeks shall be treated as a reference to 6 months.
(4)
In the application of this section to Scotland the reference in subsection (2)(a)
to 51 weeks shall be treated as a reference to 12 months.
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(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)
the reference in subsection (2)(a) to 51 weeks shall be treated as a reference to
6 months.
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Assaulting an immigration officer: powers of arrest, &c.
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(1)
An immigration officer may arrest a person without warrant if the officer
reasonably suspects that the person has committed or is about to commit an
offence under section 21.
(2)
An offence under section 21 shall be treated as—
(a)
a relevant offence for the purposes of sections 28B and 28D of the
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Immigration Act 1971 (c. 77) (search, entry and arrest), and
(b)
an offence under Part 3 of that Act (criminal proceedings) for the
purposes of sections 28(4), 28E, 28G and 28H (search after arrest, &c.) of
that Act.
(3)
The following provisions of the Immigration Act 1971 shall have effect in
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connection with an offence under section 21 of this Act as they have effect in
connection with an offence under that Act—
(a)
section 28I (seized material: access and copying),

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(b)
section 28J (search warrants: safeguards),
(c)
section 28K (execution of warrants), and
(d)
section 28L(1) (interpretation).
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Seizure of cash
(1)
Chapter 3 of Part 5 of the Proceeds of Crime Act 2002 (c. 29) (recovery of cash)
5
shall apply in relation to an immigration officer as it applies in relation to a
constable.
(2)
For that purpose—
(a)
“unlawful conduct”, in or in relation to section 289, means an offence
under the Immigration Acts,
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(b)
“unlawful conduct”, in or in relation to other provisions, means an
offence—
(i)
under the Immigration Acts, or
(ii)
listed in section 14(2) of the Asylum and Immigration
(Treatment of Claimants, etc.) Act 2004 (c. 19),
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(c)
“senior officer” in section 290 means an official of the Secretary of State
who is a civil servant of the rank of at least Assistant Director,
(d)
in section 292 the words “(in relation to England and Wales and
Northern Ireland)” shall be disregarded,
(e)
section 293 shall not apply,
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(f)
an application for an order under section 295(2) must be made—
(i)
in relation to England and Wales or Northern Ireland, by an
immigration officer, and
(ii)
in relation to Scotland, by the Scottish Ministers in connection
with their functions under section 298 or by a procurator fiscal,
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(g)
an application for forfeiture under section 298 must be made—
(i)
in relation to England and Wales or Northern Ireland, by an
immigration officer, and
(ii)
in relation to Scotland, by the Scottish Ministers, and
(h)
any compensation under section 302 shall be paid by the Secretary of
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State.
(3)
The Secretary of State may by order amend subsection (2)(c) to reflect a change
in nomenclature; and an order—
(a)
shall be made by statutory instrument, and
(b)
shall be subject to annulment in pursuance of a resolution of either
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House of Parliament.
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Forfeiture of detained property
(1)
A court making a forfeiture order about property may order that the property
be taken into the possession of the Secretary of State (and not of the police).
(2)
An order may be made under subsection (1) only if the court thinks that the
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offence in connection with which the order is made—
(a)
related to immigration or asylum, or
(b)
was committed for a purpose connected with immigration or asylum.
(3)
In subsection (1) “forfeiture order” means an order under—

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(a)
section 143 of the Powers of Criminal Courts (Sentencing) Act 2000
(c. 6), or
(b)
Article 11 of the Criminal Justice (Northern Ireland) Order 1994 (S.I.
1994/2795 (N.I. 15).
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Disposal of property
5
(1)
In this section “property” means property which—
(a)
has come into the possession of an immigration officer, or
(b)
has come into the possession of the Secretary of State in the course of,
or in connection with, a function under the Immigration Acts.
(2)
A magistrates’ court may, on the application of the Secretary of State or a
10
claimant of property—
(a)
order the delivery of property to the person appearing to the court to
be its owner, or
(b)
if its owner cannot be ascertained, make any other order about
property.
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(3)
An order shall not affect the right of any person to take legal proceedings for
the recovery of the property, provided that the proceedings are instituted
within the period of six months beginning with the date of the order.
(4)
An order may be made in respect of property forfeited under section 24, or
under section 25C of the Immigration Act 1971 (c. 77) (vehicles, &c.), only if—
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(a)
the application under subsection (2) above is made within the period of
six months beginning with the date of the forfeiture order, and
(b)
the applicant (if not the Secretary of State) satisfies the court—
(i)
that the applicant did not consent to the offender’s possession
of the property, or
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(ii)
that the applicant did not know and had no reason to suspect
that the property was likely to be used, or was intended to be
used, in connection with an offence.
(5)
The Secretary of State may make regulations for the disposal of property—
(a)
where the owner has not been ascertained,
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(b)
where an order under subsection (2) cannot be made because of
subsection (4)(a), or
(c)
where a court has declined to make an order under subsection (2) on
the grounds that the court is not satisfied of the matters specified in
subsection (4)(b).
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(6)
The regulations may make provision that is the same as or similar to provision
that may be made by regulations under section 2 of the Police (Property) Act
1897 (c. 30) (or any similar enactment applying in relation to Scotland or
Northern Ireland); and the regulations—
(a)
may apply, with or without modifications, regulations under that Act,
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(b)
may, in particular, provide for property to vest in the Secretary of State,
(c)
may make provision about the timing of disposal (which, in particular,
may differ from provision made by or under the Police (Property) Act
1897),
(d)
shall have effect only in so far as not inconsistent with an order of a
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court (whether or not under subsection (2) above),
(e)
shall be made by statutory instrument, and