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These Notes refer to the Borders, Citizenship and Immigration Bill [HL] as brought from the House of Lords on 23 April 2009 [Bill 86]
BORDERS, CITIZENSHIP AND IMMIGRATION BILL [HL]
EXPLANATORY NOTES
INTRODUCTION
1. These Explanatory Notes relate to the Borders, Citizenship and Immigration Bill as brought from the House of Lords on 23 April 2009. They have been prepared by the Home Office in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.
2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of clause does not seem to require any explanation or comment, none is given.
OVERVIEW
3. The Bill is arranged under four Parts:
Part 1: Border functions
Part 2: Citizenship
Part 3: Immigration
Part 4: Miscellaneous and General
Bill 86-EN 54/4
SUMMARY
Part 1 - Border functions
4. The intention of Part 1 is to provide the legislative framework for immigration officers and officials of the Secretary of State to exercise revenue and customs functions which have to date been exercised by Her Majesty’s Revenue and Customs (“HMRC”). Part 1 also provides for the Secretary of State to exercise certain HMRC functions, and provides for the appointment of a Director of Border Revenue who will be responsible for “customs revenue functions” (the term used in the Bill to describe functions relating to taxes, duties and levies). In practice the Government intends that officials of the UK Border Agency (“UKBA”), an executive agency of the Home Office, will exercise these functions on behalf of the Secretary of State and the Director of Border Revenue (“the Director”) respectively. Non-revenue customs functions, for example the prevention of drugs smuggling, will be a matter for the Secretary of State and general customs officials. Customs revenue functions, for example the collection of duties and taxes from passengers and on postal packets, and the prevention of smuggling of goods where such duties and taxes have not been paid, will be a matter for the Director and customs revenue officials. The Director, like HMRC, will exercise revenue functions independently of Ministers, subject only to the general direction of the Treasury. Ministers intend that in this way they will remain at arm’s length from tax-related decisions, although UKBA officials may have functions in relation to both tax and non-tax matters.
5. The Government intends that UKBA’s customs role will be focused on border-related matters, such as the importation and exportation of goods, while HMRC will continue to exercise revenue and customs functions inland. The latter includes inland checks on excise goods and customs checks and audits at business premises. The processing of customs freight declarations and the collection of duties is a centralised function which will remain with HMRC. Certain non-revenue regimes which are business-based, will also remain with HMRC such as strategic export controls and protecting intellectual property rights. UKBA will carry out physical examinations at the frontier although some of those interventions may be carried out at the request of HMRC. For example HMRC may ask UKBA to examine a consignment suspected to contain counterfeit goods to ensure the goods are legitimate. Responsibility for overall revenue and customs policy will stay with HMRC.
6. HMRC and UKBA will work closely together in the discharge of their respective customs functions. UKBA may support HMRC’s inland investigations into revenue smuggling and HMRC investigators will attend at the border in response to revenue smuggling detected by UKBA. The concurrent exercise of customs functions is therefore necessary.
7. Clauses 1 to 13 enable the Secretary of State and the Director of Border Revenue to exercise concurrently with the Commissioners for HMRC (“the Commissioners”) functions which are currently exercised by the Commissioners alone and which relate to general customs matters and customs revenue matters. These clauses also enable the Secretary of State to designate officials for the purpose of carrying out functions relating to general customs matters and the Director to designate officials of the Secretary of State for the purpose of carrying out functions relating to customs revenue matters. They set out the framework within which designations will be made and require designated officials to comply with relevant directions issued by the Secretary of State and the Director.
8. Clauses 14 to 21 explain how customs information may be used and disclosed and amend the duty to share information in section 36 of the Immigration, Asylum and Nationality Act 2006 (“IANA 2006”).
9. Clause 22 applies provisions of the Police and Criminal Evidence Act 1984 (PACE) and the Police and Criminal Evidence (Northern Ireland) Order 1989 (PACE NI) to criminal investigations conducted by designated customs officials in relation to a general customs or customs revenue matter, and to persons detained by such designated customs officials. The provisions of PACE and PACE (NI) to be applied broadly mirror the provisions applied to those officers of HM Revenue and Customs who carry out equivalent functions currently.
10. Clause 23 provides that the Secretary of State may by order apply provisions of PACE and PACE (NI) to persons detained by immigration officers or designated customs officials as part of a criminal investigation, as well as to any such investigation conducted by those officers or officials. As the provisions of PACE do not apply in Scotland clause 24 amends the Criminal Law (Consolidation) (Scotland) Act 1995 so that in Scotland the current provisions will apply to UKBA as they apply currently to HMRC.
11. Clause 25 amends the definition of a short-term holding facility in section 147 of the Immigration and Asylum Act 1999 (“the 1999 Act”).
12. Clause 26 provides for a scheme, or schemes, to enable the transfer of certain property, rights and liabilities between the Commissioners or officers of Revenue and Customs and the Secretary of State, the Director or designated customs officials. Clause 27 provides for the sharing of facilities and services between HMRC and those exercising immigration, asylum, nationality or customs functions, for the purposes of the exercise of any of those functions.
13. Clauses 28 to 30 make provision for a framework for inspections (conferring functions on the Chief Inspector of the UK Border Agency and enabling the Secretary of State to confer functions on Her Majesty’s Inspectors of Constabulary, the Scottish inspectors and the Northern Ireland inspectors in relation to the exercise of customs functions). Clause 31 allows the Attorney General to assign to the Director of Revenue and Customs Prosecutions functions of prosecuting and advising on criminal investigations carried out by officials of the Secretary of State and other persons, such as constables. Clause 32 makes provision for the payment to the Commissioners of revenue received by the Secretary of State and the Director of Border Revenue as a result of exercising, respectively, a general customs function or a customs revenue function, while clause 33 allows for provision to be made in the future for such revenue to be paid into the Consolidated Fund. Clause 34 makes interim provision for the duty regarding the welfare of children until clause 57 of the Bill comes into force.
Part 2 - Citizenship
14. Clauses 39 to 42 amend section 6 and parts of Schedule 1 to the British Nationality Act 1981 (“BNA 1981”), which relate to naturalisation as a British citizen. Section 6 sets out the circumstances in which the Secretary of State may grant a certificate of naturalisation as a British citizen, and amended paragraphs 1 to 4B of Schedule 1 contain the revised qualifying criteria.
15. Clause 43 amends section 1 of the BNA 1981, to provide that children born in the UK or a qualifying territory on or after the commencement of that clause to members of the armed forces will automatically become British citizens if their father or mother is a member of the armed forces at the time of their birth. It also provides for a child born in the UK or a qualifying territory on or after the commencement of the clause to be registered as a British citizen if the child’s father or mother becomes a member of the armed forces while the child is a minor.
16. Clause 44 amends section 3(2) of the BNA 1981 to remove the requirement that an application for the registration of a child under that subsection must be made within twelve months of the child’s birth. This will enable an application to be made at any time before the child’s 18th birthday.
17. Clause 45 amends section 4B of the BNA 1981. This adds British Nationals (Overseas) to those who are eligible to apply for registration under this section, which currently includes British Overseas citizens, British subjects and British protected persons. The amendment will allow British Nationals (Overseas) to be registered as British citizens if they do not hold any other citizenship or nationality, and have not done anything to effect the loss of another citizenship or nationality since 19 March 2009.
18. Clause 46 amends section 4C of the BNA 1981 to remove the requirement that an applicant for registration under that section must be born after 7 February 1961. This will enable applicants born before 7 February 1961 to be able to register as British citizens, if they would have become British had the previous nationality law allowed their mother to pass on nationality in the same way as their father could. The amendments made by the clause also widen the scope of section 4C so that it is no longer restricted to the case where the applicant would otherwise have become a citizen of the United Kingdom and Colonies (“CUKC”) under section 5 of the British Nationality Act 1948 (“BNA 1948”).
19. Clause 47 creates a new registration route in the BNA 1981 for children of members of the armed forces born outside the UK and the qualifying territories on or after the commencement of the clause to become British citizens.
20. Clause 48 moves the requirement for nationality applicants applying for registration to be “of good character” from section 58 of the Immigration, Asylum and Nationality Act 2006 (“IANA 2006”) into each of the Acts which contain the relevant registration routes. It also adds a “good character” requirement in the case of an application for registration under section 1(3A), 3(2) or 4D of the BNA 1981.
21. Clause 49 moves the definition of being “in breach of the immigration laws” from section 11 of the Nationality, Immigration and Asylum Act 2002 (“NIAA 2002”) to the BNA 1981, and updates the references to being a qualified person under European Community law.
22. Clause 50 creates various new definitions for the purposes of the BNA 1981 which are relevant to the amendments made to that Act by clauses 40 to 43 and 47.
Part 3 - Immigration
23. Clause 51 inserts a subsection (1AB) after subsection (1A) of section 10 of the Immigration Act 1971 (“IA 1971”) (entry otherwise than by sea or air) to prevent an Order in Council under subsection (1) of that section making provision in relation to immigration control.
24. Clause 52 amends section 3(1)(c) of the IA 1971 to allow a condition to be imposed on a migrant’s limited leave to enter or remain in the UK restricting his studies whilst here.
25. Clause 53 extends existing powers to take fingerprints in section 141 of the Immigration and Asylum Act 1999 (“IAA 1999”) to include “foreign criminals” subject to the automatic deportation provisions in sections 32 to 38 of the UK Borders Act 2007 (“UKBA 2007”).
26. Clause 54 extends the permissive detention power in section 2 of the UKBA 2007 to designated immigration officers in Scotland and amends section 60(1) of that Act to reflect that sections 1 to 4 extend to Scotland.
Part 4 - Miscellaneous and General
27. Clause 55 relates to judicial review applications in asylum, immigration and nationality matters, and makes provision for fresh claims to be transferred by affirmative order into the Upper Tribunal of the unified tribunal system established under the Tribunals, Courts and Enforcement Act 2007 (“TCEA 2007”). The clause also removes the Lord Chancellor’s power under section 13(6) of the TCEA 2007 to restrict the test for onward appeals to the Court of Appeal in the case of asylum and immigration appeals from the Upper Tribunal.
28. Clause 56 widens the definition of exploitation in the offence of human trafficking (for non-sexual purposes) in section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 to ensure that the use of certain categories of person by another to gain a benefit is conduct which is captured by that offence.
29. Clause 57 imposes a duty on the Secretary of State to make arrangements to ensure that certain specified functions are carried out having regard to the need to safeguard and promote the welfare of children who are in the UK. It also imposes a similar duty on the Director in relation to the Director’s functions.
30. Clauses 58 to 61 make general provision on repeals, extent, commencement and the short title of the Bill.
TERRITORIAL EXTENT
31. Subject to the provisions of subsections (2) to (6) of clause 59 the Bill extends to England, Wales, Scotland and Northern Ireland. Amendments, modifications and repeals made by the Bill (other than those amendments mentioned in subsection (4)) have the same extent as the provisions to which they relate. Subject to clause 59(5), provisions, other than those of Part 1 or clause 55, may be extended to any of the Channel Islands or the Isle of Man by Order in Council.
32. The consent of the Scottish Parliament was sought on 19 March 2009 for the provisions in the Bill that trigger the Sewel Convention. These provisions relate to clause 54 which extends the permissive detention power in section 2 of the UKBA 2007 to designated immigration officers in Scotland. The provision will enable an immigration officer designated under section 1 of the UKBA 2007 to detain, at a port in Scotland, an individual whom the immigration officer thinks is subject to a warrant for arrest. The Sewel Convention provides that Westminster will not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament. If there are amendments relating to such matters which trigger the Convention, the consent of the Scottish Parliament will be sought for them.
COMMENTARY
PART 1: BORDER FUNCTIONS
General customs functions of the Secretary of State
Clause 1: General customs functions of the Secretary of State
33. Clause 1 provides for the concurrent exercise by the Secretary of State of functions in relation to a general customs matter that are currently conferred on the Commissioners by an enactment passed or made before the end of the session in which this Bill is passed. It also ensures that where appropriate any reference to the Commissioners in any such enactment, or in any instrument or document issued before the passing of this Bill, is construed as including a reference to the Secretary of State. Subsection (2) defines a “general customs matter” as a matter in relation to which the Commissioners or officers of Revenue and Customs have functions other than one of the matters specified in paragraphs (a) to (e) of subsection (2). These specified matters are those listed in Schedule 1 to the Commissioners for Revenue and Customs Act 2005 (“CRCA 2005”) (former Inland Revenue matters), any tax, duty or levy not mentioned in that Schedule, a matter in respect of which functions were transferred to the Commissioners from the Paymaster General, the subject matter of Council Directive 2005/60/EC on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing and the subject matter of EC Regulation 1781/2006 on information on the payer accompanying transfers of funds. In essence, these exclusions mean that the Secretary of State may not exercise any tax function of the Commissioners, former functions of the Office of the Paymaster General or any function which relates to the Commissioners’ remit in relation to the regulation of money businesses. The exclusion of these functions leaves the Secretary of State with the ability to exercise non-revenue customs, shipping and enforcement related functions of HMRC. Subsection (3) provides that where a function is exercisable concurrently by the Commissioners and the Secretary of State and may be exercised by the Commissioners in relation both to a general customs matter and another matter, the Secretary of State may exercise it only in relation to the general customs matter.
34. Subsection (4) provides that, where appropriate, a reference to the Commissioners for Her Majesty’s Revenue and Customs, or to HMRC, in an enactment, instrument or document to which clause 1 applies are to be construed as including a reference to the Secretary of State. Subsection (5)(a) provides that references in clause 1 to functions of the Commissioners are to functions conferred by an enactment to which the clause applies; subsection (5)(b) provides that references in clause 1 to functions of officers of Revenue and Customs are to functions conferred by an enactment to which section 3 (designation of general customs officials) applies. Subsection (6) specifies that clause 1 applies to an enactment passed or made before the end of the session in which this Bill is passed and to an instrument or document issued before the passing of this Bill. Subsection (7) provides that clause 1 applies only to certain sections of the CRCA 2005, namely section 5(2)(b) (Commissioners’ initial functions), section 9 (ancillary powers), section 25A(2) (certificates of debt) and sections 31 (obstruction) and 33 (powers of arrest), other than in its application of an offence under section 30 (impersonation). It is unnecessary to apply all provisions of the CRCA 2005 to the Secretary of State, as a number of provisions of that Act are either already dealt with in this Bill (such as the provisions concerning confidentiality of information similar to sections 17 to 23 CRCA 2005) or are not required given the common law powers of the Secretary of State (for example the power to make rewards in section 26 CRCA 2005 would already be available to the Secretary of State under the common law). Subsection (8) defines “general customs function” for the purposes of this Part of the Bill as a function exercisable in relation to a general customs matter.
Clause 2: Power of Secretary of State to modify functions
35. Clause 2 enables the Secretary of State to make an order to amend the general customs matters in respect of which the Secretary of State has functions and to make provision for the Secretary of State to exercise functions relating to general customs matters that are conferred on the Commissioners by an enactment after the passing of this Bill. The Secretary of State may also by order modify any enactment (including one made after the passing of this Bill) in consequence of any provision made under clause 2(1)(a), (b) or (c). Subsection (2) makes clear that an order made under this clause may not add a customs revenue matter to the matters in relation to which functions may be exercised by the Secretary of State. Subsection (3) requires that the Secretary of State consult the Treasury before exercising the power in subsection (1).
General customs officials
Clause 3: Designation of general customs officials
36. Clause 3(1) provides that the Secretary of State by whom general customs functions are exercisable may designate an immigration officer or any other of her officials as a general customs official. Subsection (2) provides that in relation to a general customs matter a general customs official has the same functions as an officer of Revenue and Customs would have and that a general customs official may exercise those functions that are conferred on the Secretary of State by clause 1.
37. Subsection (3) makes clear that the clause does not impact in any way on the ability of any other official of the Secretary of State to exercise the Secretary of State’s functions. This preserves the power to delegate ministerial functions to civil servants under Carltona (Carltona Limited v Commissioners of Works [1943] 2 ER 560 (CA)). Subsection (4) provides that if a function may be exercised in relation to both a general customs matter and another matter, the general customs official may exercise it only in relation to the general customs matter.
38. Subsection (5) provides that in relation to general customs matters, where appropriate, references to an officer of Revenue and Customs, or to HMRC, in an enactment, instrument or document to which clause 3 applies are to be construed as including a reference to a general customs official. Subsection (6) provides that references in clause 3 to functions of an officer of Revenue and Customs are to functions conferred by an enactment to which clause 3 applies. Subsection (7) specifies that this clause applies to an enactment passed or made, or to an instrument or document issued, before this Bill is passed and, subject to express provision to the contrary, to an enactment passed or made, or to an instrument or document issued, after this Bill is passed. Subsection (8), however, provides that clause 3 only applies to certain sections of the CRCA 2005, namely section 2(4) (continuation of anything begun by one officer by another), section 6 (officers’ initial functions), section 25(1) and (5) (conduct of civil proceedings in a magistrates’ court or in the sheriff court), section 25A(1) (certificates of debt) and sections 31 to 33 (assault, obstruction and powers of arrest) excluding the power to arrest a person for the offence of impersonation under section 30. Subsection (9) provides that the extent to which a general customs official may exercise functions under clause 3 is subject to any limitation specified in the official’s designation made under clause 4 and to any designation of the same official under clause 11 (designation of customs revenue officials).
Clause 4: Designation: supplementary
39. Clause 4 provides at subsection (1) that a designation under clause 3 will be subject to any limitations specified in the designation and then sets out at subsection (2) that a limitation may in particular relate to the functions which may be exercised by the general customs official or the purposes for which those functions may be exercised.
40. Subsection (3) provides that a designation may be permanent or made for a specified period and may, in either case, be withdrawn or varied. Subsection (4) provides that the power to designate, withdraw or vary a designation is to be exercised by the Secretary of State giving notice to the official in question. Subsection (5) provides that the Secretary of State may designate an official under clause 3 only if the Secretary of State is satisfied that the official is capable of effectively carrying out the functions exercisable by virtue of the designation and has received adequate training in respect of the exercise of those functions. In addition to these requirements, it also provides that the Secretary of State must be satisfied that the official is otherwise a suitable person to exercise those functions.
Clause 5: Directions by the Secretary of State
41. Clause 5 requires a general customs official to comply with the directions of the Secretary of State in the exercise of general customs functions.
The Director of Border Revenue
Clause 6: The Director of Border Revenue
42. Clause 6(1) provides that the Secretary of State must designate an official in the department of the Secretary of State by whom general customs functions are exercisable as the Director of Border Revenue. Clause 6(2) requires the Secretary of State to obtain the consent of the Treasury to any such designation before making it.
Clause 7: Customs revenue functions of the Director
43. Subsection (1) of clause 7 provides that the functions of the Commissioners that are exercisable in relation to customs revenue matters are exercisable concurrently by the Director.
44. Subsection (2) sets out what constitutes a “customs revenue matter” in this Part of the Bill, namely agricultural levies, anti-dumping duty, countervailing duty, customs duties, duties of excise (with certain exceptions) and value added tax relating to the export of goods from or import of goods into the UK. Subsection (3) makes clear that the Commissioners’ functions in relation to the making, by statutory instrument, of any regulations, rules or order may not be exercised by the Director. Nor may the Director exercise any of the Commissioners’ functions in relation to the issuing of notices, directions or conditions that relate to value added tax and that apply generally to any person falling within their terms. For example, in accordance with this subsection, the Director would not be able to issue public notices in respect of VAT; Notice 700 is issued by the Commissioners as a guide to the public in relation to all the main VAT rules and procedures and Notice 700/21 gives guidance on how to fill in a VAT return.
45. Subsection (4) provides that if a function exercisable concurrently by the Commissioners and the Director may be exercised by the Commissioners in relation to both a customs revenue matter and another matter, the Director may exercise it only in relation to the customs revenue matter.
46. Subsection (5) provides that where appropriate, in relation to customs revenue matters, references to the Commissioners for Her Majesty’s Revenue and Customs, or to HMRC, in an enactment, instrument or document to which clause 7 applies are to be construed as including a reference to the Director. Subsection (6) provides that references in clause 7 to functions of the Commissioners are to functions conferred by an enactment to which that clause applies. Subsection (7) then specifies that clause 7 applies to an enactment passed or made before the end of the session in which this Bill is passed, and to an instrument or document issued before the passing of this Bill. Subsection (8), however, provides that clause 7 only applies to certain sections of the CRCA 2005, namely section 5 (1)(b) and (2)(b) (Commissioners’ initial functions), section 9 (ancillary powers), section 24(1), (2), (3)(e) and (4) to (7) (evidence), sections 25(1), (1A), (5) and (6) (conduct of civil proceedings), section 25A(2) (certificates of debt), section 26 (rewards), section 31 (obstruction) and section 33 (power of arrest) other than in its application to an offence under section 30 of that Act. Subsection (9) defines “customs revenue function” in this Part of the Bill as a function exercisable in relation to a customs revenue matter.
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