Borders, Citizenship and Immigration Bill [HL]

House of Commons

Session 2008 - 09
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Borders, Citizenship and Immigration Bill [HL]

Borders, Citizenship and Immigration Bill [HL]
Part 2 — Citizenship
40

Interpretation etc.
49
Meaning of references to being in breach of immigration laws
(1)
After section 50 of the British Nationality Act 1981 (c. 61) insert—
“50A
Meaning of references to being in breach of immigration laws
(1)
This section applies for the construction of a reference to being in the
5
United Kingdom “in breach of the immigration laws” in—
(a)
section 4(2) or (4);
(b)
section 50(5); or
(c)
Schedule 1.
(2)
It applies only for the purpose of determining on or after the relevant
10
day—
(a)
whether a person born on or after the relevant day is a British
citizen under section 1(1),
(b)
whether, on an application under section 1(3) or 4(2) made on or
after the relevant day, a person is entitled to be registered as a
15
British citizen, or
(c)
whether, on an application under section 6(1) or (2) made on or
after the relevant day, the applicant fulfils the requirements of
Schedule 1 for naturalisation as a British citizen under section
6(1) or (2).
20
(3)
But that is subject to section 49(3)(d) and (4) of the Borders, Citizenship
and Immigration Act 2009 (saving in relation to section 11 of the
Nationality, Immigration and Asylum Act 2002).
(4)
A person is in the United Kingdom in breach of the immigration laws
if (and only if) the person—
25
(a)
is in the United Kingdom;
(b)
does not have the right of abode in the United Kingdom within
the meaning of section 2 of the Immigration Act 1971;
(c)
does not have leave to enter or remain in the United Kingdom
(whether or not the person previously had leave);
30
(d)
does not have a qualifying CTA entitlement;
(e)
is not entitled to reside in the United Kingdom by virtue of any
provision made under section 2(2) of the European
Communities Act 1972 (whether or not the person was
previously entitled);
35
(f)
is not entitled to enter and remain in the United Kingdom by
virtue of section 8(1) of the Immigration Act 1971 (crew)
(whether or not the person was previously entitled); and
(g)
does not have the benefit of an exemption under section 8(2) to
(4) of that Act (diplomats, soldiers and other special cases)
40
(whether or not the person previously had the benefit of an
exemption).
(5)
For the purposes of subsection (4)(d), a person has a qualifying CTA
entitlement if the person—
(a)
is a citizen of the Republic of Ireland,
45

Borders, Citizenship and Immigration Bill [HL]
Part 2 — Citizenship
41

(b)
last arrived in the United Kingdom on a local journey (within
the meaning of the Immigration Act 1971) from the Republic of
Ireland, and
(c)
on that arrival, was a citizen of the Republic of Ireland and was
entitled to enter without leave by virtue of section 1(3) of the
5
Immigration Act 1971 (entry from the common travel area).
(6)
Section 11(1) of the Immigration Act 1971 (person deemed not to be in
the United Kingdom before disembarkation, while in controlled area or
while under immigration control) applies for the purposes of this
section as it applies for the purposes of that Act.
10
(7)
This section is without prejudice to the generality of—
(a)
a reference to being in a place outside the United Kingdom in
breach of immigration laws, and
(b)
a reference in a provision other than one specified in subsection
(1) to being in the United Kingdom in breach of immigration
15
laws.
(8)
The relevant day for the purposes of subsection (2) is the day appointed
for the commencement of section 49 of the Borders, Citizenship and
Immigration Act 2009 (which inserted this section).”
(2)
Section 11 of the Nationality, Immigration and Asylum Act 2002 (c. 41) (“the
20
2002 Act”) (unlawful presence in the United Kingdom) ceases to have effect.
(3)
Notwithstanding its repeal, section 11 of the 2002 Act is to continue to have
effect for the purpose of determining on or after the relevant day—
(a)
whether a person born before the relevant day is a British citizen under
section 1(1) of the British Nationality Act 1981 (c. 61),
25
(b)
whether, on an application under section 1(3) or 4(2) of that Act made
but not determined before the relevant day, a person is entitled to be
registered as a British citizen,
(c)
whether, on an application under section 6(1) or (2) of that Act made
but not determined before the relevant day, the applicant fulfils the
30
requirements of Schedule 1 for naturalisation as a British citizen under
section 6(1) or (2) of that Act, or
(d)
whether, in relation to an application under section 1(3) or 6(1) or (2) of
that Act made on or after the relevant day, a person was in the United
Kingdom “in breach of the immigration laws” at a time before 7
35
November 2002 (the date of commencement of section 11 of the 2002
Act).
(4)
Where section 11 of the 2002 Act continues to have effect by virtue of
paragraph (d) of subsection (3) for the purpose of determining on or after the
relevant day the matter mentioned in that paragraph, section 50A of the British
40
Nationality Act 1981 is not to apply for the purpose of determining that matter.
(5)
The relevant day for the purposes of subsection (3) is the day appointed for the
commencement of this section.
(6)
In paragraph 7(a) of Schedule 3 to the 2002 Act (definition of persons
unlawfully in the UK who are ineligible for support), for “section 11” substitute
45
“section 50A of the British Nationality Act 1981”.

Borders, Citizenship and Immigration Bill [HL]
Part 2 — Citizenship
42

50
Other interpretation etc.
(1)
In section 50 of the British Nationality Act 1981 (c. 61) (interpretation), after
subsection (1), insert—
“(1A)
Subject to subsection (1B), references in this Act to being a member of
the armed forces are references to being—
5
(a)
a member of the regular forces within the meaning of the
Armed Forces Act 2006, or
(b)
a member of the reserve forces within the meaning of that Act
subject to service law by virtue of paragraph (a), (b) or (c) of
section 367(2) of that Act.
10
(1B)
A person is not to be regarded as a member of the armed forces by
virtue of subsection (1A) if the person is treated as a member of a
regular or reserve force by virtue of—
(a)
section 369 of the Armed Forces Act 2006, or
(b)
section 4(3) of the Visiting Forces (British Commonwealth) Act
15
1933.”
(2)
In Schedule 1 to that Act (requirements for naturalisation as a British citizen),
in paragraph 9(1), for “paragraph 2(b)” substitute “paragraph 2(1)(b) or 4(b)”.
(3)
After paragraph 10 of that Schedule insert—
“11   (1)
This paragraph applies for the purposes of this Schedule.
20
      (2)
A person has qualifying temporary residence leave if—
(a)
the person has limited leave to enter or remain in the United
Kingdom, and
(b)
the leave is granted for a purpose by reference to which a
grant of probationary citizenship leave may be made.
25
      (3)
A person has probationary citizenship leave if—
(a)
the person has limited leave to enter or remain in the United
Kingdom, and
(b)
the leave is of a description identified in rules under section
3 of the Immigration Act 1971 as “probationary citizenship
30
leave”,

and the reference in sub-paragraph (2) to a grant of probationary
citizenship leave is to be construed accordingly.
      (4)
A person has permanent residence leave if the person has indefinite
leave to enter or remain in the United Kingdom.
35
      (5)
A person has a qualifying CTA entitlement if the person—
(a)
is a citizen of the Republic of Ireland,
(b)
last arrived in the United Kingdom on a local journey (within
the meaning of the Immigration Act 1971) from the Republic
of Ireland, and
40
(c)
on that arrival, was a citizen of the Republic of Ireland and
was entitled to enter without leave by virtue of section 1(3) of
the Immigration Act 1971 (entry from the common travel
area).

Borders, Citizenship and Immigration Bill [HL]
Part 3 — Immigration
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      (6)
A person has a Commonwealth right of abode if the person has the
right of abode in the United Kingdom by virtue of section 2(1)(b) of
the Immigration Act 1971.
      (7)
A person has a permanent EEA entitlement if the person is entitled
to reside in the United Kingdom permanently by virtue of any
5
provision made under section 2(2) of the European Communities Act
1972.
      (8)
A person has a temporary EEA entitlement if the person does not
have a permanent EEA entitlement but is entitled to reside in the
United Kingdom by virtue of any provision made under section 2(2)
10
of the European Communities Act 1972.
      (9)
A reference in this paragraph to having leave to enter or remain in
the United Kingdom is to be construed in accordance with the
Immigration Act 1971.”
Part 3
15
Immigration
Entry otherwise than by sea or air: immigration control
51
Entry otherwise than by sea or air: immigration control
In section 10 of the Immigration Act 1971 (c. 77) (entry otherwise than by sea or
air), after subsection (1A), insert—
20
“(1AB)
An Order in Council made under subsection (1) must not include
provision relating to immigration control.”
Studies
52
Restriction on studies
(1)
In section 3(1)(c) of the Immigration Act 1971 (conditions that may be imposed
25
on limited leave to enter or remain in the United Kingdom), after sub-
paragraph (i) insert—
“(ia)
a condition restricting his studies in the United
Kingdom;”.
(2)
A condition under section 3(1)(c)(ia) of that Act may be added as a condition to
30
leave given before the passing of this Act (as well as to leave given on or after
its passing).
Fingerprinting
53
Fingerprinting of foreign criminals liable to automatic deportation
(1)
Section 141 of the Immigration and Asylum Act 1999 (c. 33) (persons from
35
whom fingerprints may be taken) is amended as follows.

Borders, Citizenship and Immigration Bill [HL]
Part 4 — Miscellaneous and general
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(2)
In subsection (7)(f), after “persons” insert “, other than a dependant of a person
who falls within paragraph (c) by reason of a relevant immigration decision
within subsection (16)(b) having been made in respect of that person”.
(3)
In subsection (16)—
(a)
after “means” insert “—”,
5
(b)
the words from “a decision” to the end become paragraph (a), and
(c)
after that paragraph insert “, or
(b)
a decision that section 32(5) of the UK Borders Act 2007
applies (whether made before, or on or after, the day
appointed for the commencement of section 53 of the
10
Borders, Citizenship and Immigration Act 2009 which
inserted this paragraph)”.
Detention at ports in Scotland
54
Extension of sections 1 to 4 of the UK Borders Act 2007 to Scotland
(1)
In section 2 of the UK Borders Act 2007 (c. 30) (detention at ports), after
15
subsection (1), insert—
“(1A)
A designated immigration officer at a port in Scotland may detain an
individual if the immigration officer thinks that the individual is
subject to a warrant for arrest.”
(2)
In section 3 of that Act (enforcement of detention at ports), after subsection (4),
20
insert—
“(4A)
In the application of this section to Scotland, the references in
subsections (2)(a) and (3)(a) to 51 weeks shall be treated as references to
12 months.”
(3)
In section 60(1) of that Act (provisions which do not extend to Scotland), omit
25
“1 to 4,”.
Part 4
Miscellaneous and general
Fresh claim applications
55
Fresh claim applications
30
(1)
The Secretary of State must by affirmative order make provision for the
transfer of fresh claim applications made under rule 353 of the Immigration
Rules to the Upper Tribunal.
(2)
The Administrative Court has the discretion to determine whether an
application to it falls exclusively within the category of a fresh claim
35
application.
(3)
An order made under subsection (1) may not be made until the Asylum and
Immigration jurisdiction has been transferred to the First Tier Tribunal and
Upper Tribunal.

Borders, Citizenship and Immigration Bill [HL]
Part 4 — Miscellaneous and general
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(4)
Section 13(6) of the Tribunals, Courts and Enforcement Act 2007 (c. 15) (right
to appeal to Court of Appeal etc.) shall not apply to asylum and immigration
appeals from the Upper Tribunal.
Trafficking people for exploitation
56
Trafficking people for exploitation
5
In section 4(4) of the Asylum and Immigration (Treatment of Claimants, etc.)
Act 2004 (c. 19) (trafficking people for exploitation: meaning of exploitation),
for paragraph (d) substitute—
“(d)
a person uses or attempts to use him for any purpose within
sub-paragraph (i), (ii) or (iii) of paragraph (c), having chosen
10
him for that purpose on the grounds that—
(i)
he is mentally or physically ill or disabled, he is young
or he has a family relationship with a person, and
(ii)
a person without the illness, disability, youth or family
relationship would be likely to refuse to be used for that
15
purpose.”
Children
57
Duty regarding the welfare of children
(1)
The Secretary of State must make arrangements for ensuring that—
(a)
the functions mentioned in subsection (2) are discharged having regard
20
to the need to safeguard and promote the welfare of children who are
in the United Kingdom, and
(b)
any services provided by another person pursuant to arrangements
which are made by the Secretary of State and relate to the discharge of
a function mentioned in subsection (2) are provided having regard to
25
that need.
(2)
The functions referred to in subsection (1) are—
(a)
any function of the Secretary of State in relation to immigration, asylum
or nationality;
(b)
any function conferred by or by virtue of the Immigration Acts on an
30
immigration officer;
(c)
any general customs function of the Secretary of State;
(d)
any customs function conferred on a designated customs official.
(3)
A person exercising any of those functions must, in exercising the function,
have regard to any guidance given to the person by the Secretary of State for
35
the purpose of subsection (1).
(4)
The Director of Border Revenue must make arrangements for ensuring that—
(a)
the Director’s functions are discharged having regard to the need to
safeguard and promote the welfare of children who are in the United
Kingdom, and
40
(b)
any services provided by another person pursuant to arrangements
made by the Director in the discharge of such a function are provided
having regard to that need.

Borders, Citizenship and Immigration Bill [HL]
Part 4 — Miscellaneous and general
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(5)
A person exercising a function of the Director of Border Revenue must, in
exercising the function, have regard to any guidance given to the person by the
Secretary of State for the purpose of subsection (4).
(6)
In this section—
“children” means persons who are under the age of 18;
5
“customs function”, “designated customs official” and “general customs
function” have the meanings given by Part 1.
(7)
A reference in an enactment (other than this Act) to the Immigration Acts
includes a reference to this section.
(8)
Section 21 of the UK Borders Act 2007 (c. 30) (children) ceases to have effect.
10
General
58
Repeals
The Schedule contains repeals.
59
Extent
(1)
Subject to the following provisions of this section, this Act extends to—
15
(a)
England and Wales,
(b)
Scotland, and
(c)
Northern Ireland.
(2)
Sections 22 (application of the PACE orders) and 23 (investigations and
detention: England and Wales and Northern Ireland) extend to England and
20
Wales and Northern Ireland only.
(3)
An amendment, modification or repeal by this Act has the same extent as the
enactment or relevant part of the enactment to which it relates (ignoring extent
by virtue of an Order in Council under any of the Immigration Acts).
(4)
Subsection (3) does not apply to—
25
(a)
the amendments made by section 54 (detention at ports in Scotland);
(b)
the amendment made by section 56 (trafficking people for
exploitation), which extends to England and Wales and Northern
Ireland only.
(5)
Her Majesty may by Order in Council provide for any of the provisions of this
30
Act, other than any provision of Part 1 or section 55, to extend, with or without
modifications, to any of the Channel Islands or the Isle of Man.
(6)
Subsection (5) does not apply in relation to the extension to a place of a
provision which extends there by virtue of subsection (3).
60
Commencement
35
(1)
Part 1 (border functions) comes into force on the day this Act is passed.
(2)
The provisions of Part 2 (citizenship) come into force on such day as the
Secretary of State may by order appoint.
(3)
In Part 3 (immigration)—