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UK Borders Bill


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.

13      

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

15

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.

14      

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.

15      

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),

5

(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

10

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

15

biometric immigration document, the prescribed consequences of non-

compliance may include any of the consequences specified in section 7(2)

above.

Treatment of claimants

16      

Conditional leave to enter or remain

20

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.”

25

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)

30

(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—

35

(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

40

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.

5

(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

10

(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.

18      

Support for asylum-seekers: enforcement

In Part 6 of the Immigration and Asylum Act 1999 (c. 33) (support for asylum-

15

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).”

19      

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

40

(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—

5

(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.”

20      

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.

30

(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

5

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,

10

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

21      

Assaulting an immigration officer: offence

15

(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.

22      

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

35

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

40

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).

23      

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,

10

(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),

15

(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,

20

(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

30

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

35

House of Parliament.

24      

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

40

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).

25      

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.

15

(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—

20

(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

25

(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,

30

(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,

40

(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

45

court (whether or not under subsection (2) above),

(e)   

shall be made by statutory instrument, and

 
 

 
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