Clause 23: Investigations and detention: England and Wales and Northern Ireland

102.     Clauses 24(1) and (2) allow the Secretary of State by order to provide for the application of provisions of PACE and PACE (NI) to criminal investigations conducted by designated customs officials or immigration officers, or to persons detained by such officials or officers as part of a criminal investigation, subject to such modifications as the order may specify.

103.     Subsection (3) provides that an order made under clause 23 may make similar provision for designated customs officials, immigration officers, the Secretary of State or the Director to that which may be made in relation to officers of Revenue and Customs or the Commissioners for Her Majesty’s Revenue and Customs under Section 114 of PACE and Article 85 of PACE (NI).

104.      Subsection (4) provides that, if an order under clause 23 stipulates that a function may be exercised only by a person with the authority of the Secretary of State or the Director, a certificate of the Secretary of State or, as the case may be, the Director that the person had the requisite authority shall be conclusive evidence of that fact.

105.     Subsection (5) provides for an order made under this clause to amend or repeal section 22. This will enable the provisions of PACE or PACE (NI), as the case may be, and the associated Codes of Practice, to be applied more directly to designated customs officials, rather than by transposing provisions in the Revenue and Customs PACE Orders as is the case under clause 22. It will also allow the specification of relevant provisions of PACE, PACE (NI) and the associated Codes of Practice which will apply to any criminal investigation conducted by immigration officers and to persons detained by those officers as part of any criminal investigation.

Clause 24: Investigations and detentions: Scotland

106.     Clause 24(1) inserts new section 26C to the Criminal Law (Consolidation) (Scotland) Act 1995 (“the 1995 Act”) so that Part 3 of that Act applies to criminal investigations conducted by designated customs officials and references in that Part to the Commissioners apply - in relation to investigations relating to general customs matters - to the Secretary of State and - in relation to investigations relating to customs revenue matters - to the Director. The provisions of PACE do not extend to Scotland, where the powers of HMRC to detain and search suspects are contained in the Criminal Law (Consolidation) (Scotland) Act 1995. This amendment will ensure that the same powers will be available to, and the same obligations will be imposed upon, officers conducting criminal investigations in Scotland when they cease to be officers of HMRC and become designated officials of the Secretary of State and the Director of Border Revenue respectively. Similarly references in the 1995 Act to an office of the Revenue and Customs will be construed to include offices occupied by designated customs officials and references in the same Act to a superior officer shall be an immigration officer of the grade of Inspector, a senior executive officer or a person of equivalent grade.

107.     Clause 24(2) provides that the amendment made by clause 24(1) does not affect the generality of clauses 1(4), 3(5), 7(5) and 11(4) of this Bill.

Clause 25: Short-term holding facilities

108.     Clause 25 amends the definition of a “short-term holding facility” in section 147 of the Immigration and Asylum Act 1999 (”the 1999 Act”).

109.     Clause 25(a) omits the word “solely” from that definition so that a short-term holding facility is no longer defined as “a place used solely for the detention of detained persons for a period of not more than seven days or for such other period as may be prescribed”. A “detained person” for this purpose is an immigration detainee.

110.     Clause 25(b) inserts at the end of the definition of a short-term holding facility the words “(whether or not it is also used for the detention of other persons for any period)”. These modifications will mean that a short-term holding facility does not cease to be a short-term holding facility when it is used to detain a person who is not an immigration detainee. Thus the related provisions in the Immigration and Asylum Act 1999 (on contracting out, the activities of detainee custody officers etc.) will continue to apply in relation to a short-term holding facility.

Transfer of property etc

Clause 26: Transfer schemes

111.     Clause 26(1) provides for the making of a scheme, or schemes, by the Commissioners for the transfer of specified property, rights or liabilities - or for property, rights or liabilities of a specified description - between the Commissioners or officers of Revenue and Customs and the Secretary of State, the Director or designated customs officials.

112.     Subsection (2) provides that a scheme made under subsection (1) may, in particular, create interests or rights, or impose liabilities, in relation to the transferred property, rights or liabilities. Subsection (2) further provides that any such scheme may apportion property, rights or liabilities between a transferor and a transferee.

113.     Subsection (3) enables a scheme made under subsection (1) to provide for anything done by or in relation to a transferor in connection with anything transferred to have effect as if done by or in relation to a transferee and to permit anything, including legal proceedings, relating to anything transferred by the scheme which is in the process of being done by or in relation to a transferor when the transfer takes effect to be continued by or in relation to a transferee. Under subsection (3) any such scheme may also provide for references to a transferor in any agreement, instrument or document relating to anything transferred by the scheme to be treated as references to a transferee and may make other incidental, supplementary, consequential, transitional or transitory provision or savings.

114.     Subsection (4) provides that a scheme made under subsection (1) may provide for a transfer of property, rights or liabilities whether or not they would otherwise be capable of being transferred, without any instrument or other formality being required, and irrespective of any requirement for consent that would otherwise apply. Subsection (5) enables the Commissioners to make a scheme providing for any specified thing or anything of a specified description done by or in relation to the Commissioners or an officer of Revenue and Customs in connection with a relevant function to have effect as if done by the Secretary of State, the Director or a designated customs official. Under subsection (5) a scheme may also provide for any specified thing or anything of a specified description (including any legal proceedings) relating to a relevant function done by or in relation to the Commissioners or an officer of Revenue and Customs to be continued by or in relation to the Secretary of State, the Director or a designated customs official. This will enable, for example, ongoing legal proceedings and liability for certain matters to be transferred from HMRC and customs officers to the Secretary of State, the Director or a designated customs official as appropriate.

115.     Subsection (6) makes provision in respect of the coming into force of any scheme and provides that such a scheme may be revoked or amended. Subsection (7) defines the terms “relevant function” and “specified” for the purposes of clause 26.

Clause 27: Facilities and services

116.     Clause 27 makes provision to enable HMRC and any person by whom functions relating to immigration, asylum, nationality or customs are exercisable to make facilities and services available to each other for the purpose of exercising any of those functions. This ensures that UKBA and HMRC will be able to provide facilities and services to each other so that, for example, the Director will be able to share services and facilities with HMRC and HMRC will be able to use any of UKBA’s custody facilities. The provision also covers contractors who exercise detention and escort functions on behalf of the Secretary of State.

Inspection and oversight

Clause 28: Inspections by the Chief Inspector of the UK Border Agency

117.     Clauses 28(1) and (2) make amendments to section 48 of the UKBA 2007 which established a single independent inspectorate for the Border and Immigration Agency. Subsection (1) substitutes a reference to “the UK Border Agency” for the reference to “the Border and Immigration Agency” in section 48(1) of the 2007 Act. Subsection (2) inserts a new subsection (1A) into section 48 which specifies that the functions of the Chief Inspector apply to the efficiency and effectiveness of the performance of functions by designated customs officials, immigration officers and officials of the Secretary of State exercising customs functions or functions relating to immigration, asylum or nationality, the Secretary of State in so far as the Secretary of State has general customs functions or functions relating to immigration, asylum or nationality, the Director and any person exercising functions of the Director.

118.     Clause 28(3) makes further amendments to section 48 of the 2007 Act consequential on the changes made in subsections (1) and (2). Clause 28(4) sets out the wider functions of the Chief Inspector, and subsection (4) also inserts the new subsection (2B) into section 48 of the 2007 Act which sets out the functions that will not fall within the remit of the Inspector unless directed to do so by the Secretary of State.

119.     Clauses 28(5) to (9) make further consequential amendments and clause 28(10) enables the Chief Inspector of the Border and Immigration Agency to be treated immediately when this clause comes into force as if appointed as the Chief Inspector of the UK Border Agency.

Clause 29: Inspections by Her Majesty’s Inspectors of Constabulary etc.

120.     Clause 29(1) provides that the Secretary of State may make regulations conferring functions on Her Majesty’s Inspectors of Constabulary, the Scottish inspectors or the Northern Ireland inspectors in relation to designated customs officials and officials of the Secretary of State exercising customs functions, immigration officers, and officials of the Secretary of State exercising functions relating to immigration, asylum or nationality, the Secretary of State in so far as the Secretary of State has general customs functions and functions relating to immigration, asylum and nationality, the Director and any person exercising functions of the Director, and any one providing services relating to the discharge of functions by any of these persons.

121.     The inspectors to whom clause 29 applies already have functions conferred on them in existing legislation and subsection (2) provides that regulations made under subsection (1) may apply, with or without modification or make provision similar to (a) in the case of Her Majesty’s Inspectors of Constabulary sections 54 to 56 of the Police Act 1996, (b) in the case of the Scottish inspectors section 33 or 34 of the Police (Scotland) Act 1967 and (c) in relation to the Northern Ireland inspectors section 41 or 42 of the Police (Northern Ireland) Act 1998.

122.     Subsection (3), (4), (5) and (6) of clause 29 establish the framework, to be provided for in the regulations, for the commissioning and carrying out of inspections, for the reporting of their results and for the making of payments for the inspections. Subsection (3) provides that the regulations may enable a Minister of the Crown to require an inspection to be carried out; that regulations must provide for a report of an inspection to be made and, subject to any exceptions required or permitted by the regulations, published. Regulations must also provide for an annual report to be made by Her Majesty’s Inspectors of Constabulary. Finally, regulations may make provision for payment to or in respect of the inspectors mentioned in subsection (1).

123.     Subsection (4) provides that an inspection carried out by virtue of this clause may not address a matter of a kind which the Comptroller and Auditor General may examine under section 6 of the National Audit Act 1983 (the examination of public bodies in respect of economy, efficiency and effectiveness in the discharge of their functions). Subsection (5) requires that an inspection carried out by virtue of this clause must be carried out jointly by Her Majesty’s Inspectors of Constabulary and the Scottish inspectors if the inspection is carried out wholly in Scotland or, in a case where it is carried out partly in Scotland, to the extent that it is carried out there. Subsection (6) defines “the Scottish inspectors” and “the Northern Ireland inspectors” for the purpose of this section.

Clause 30: Complaints and misconduct

124.     Clauses 30(1) to (3) amend section 41 of the Police and Justice Act 2006 (power to confer functions on the Independent Police Complaints Commission (“the IPCC) in respect of the exercise of immigration and asylum functions), to expand the functions which the Secretary of State may confer on the IPCC. The amendments provide that the IPCC may carry out investigations in relation to the exercise of specified immigration and asylum enforcement functions by contractors and in relation to the exercise of customs functions by (a) designated customs officials and officials of the Secretary of State, (b) the Director and any person exercising functions of the Director and (c) contractors providing services pursuant to arrangements relating to the discharge of the functions referred to in (a) or (b). The functions may be conferred on the IPCC by the Secretary of State making regulations under the existing provision in the Police and Justice Act 2006, as amended by this clause.

Clause 31: Prosecution of offences

125.     Clause 31 enables the Attorney General to assign functions to the Director of Revenue and Customs Prosecutions to institute and assume the conduct of prosecutions in England and Wales and to provide advice relating to criminal investigations carried out by the persons specified at subsection (2), namely, designated customs officials, immigration officers, officials of the Secretary of State, the Secretary of State, the Director, a person acting on behalf of any of those persons and constables. Subsection (1) provides an order-making power to enable the Attorney General to assign functions to the Director of Revenue and Customs Prosecution. Subsection (1) also sets out the functions that may be assigned by the Attorney General. These are the functions of instituting or assuming the conduct of criminal proceedings in England or Wales, or providing legal advice.

126.     Subsection (3) ensures that the provisions of the CRCA 2005 relating to the exercise of the functions of the Director of Revenue and Customs Prosecutions apply also to the exercise of functions conferred by clause 31. Subsection (4) applies the prosecutor functions in respect of charging decisions contained in section 37 to 37B of PACE to the functions exercised by the Director of Revenue and Customs Prosecutions under clause 31. Subsection (5) provides that an order under clause 31 may include incidental, supplementary and consequential provision, may make transitional or transitory provision or savings, or may be amended or revoked. Subsection (6) provides that the reference in clause 31 to instituting criminal proceedings is to be construed in accordance with Section 15(2) of the Prosecution of Offences Act 1985. Subsection (7) specifies the meaning of “criminal investigation” for the purpose of this clause.

Clause 32: Payment of revenue to the Commissioners

127.     Clause 32 requires the Director (subsection (1)) and the Secretary of State (subsection (2)) to pay to the Commissioners any money received by way of revenue or security in the exercise of, as regards the Director, customs revenue functions and, in relation to the Secretary of State, general customs functions. Subsection (3) provides that any such payment by the Director or Secretary of State must be made at such times and in such manner as the Treasury directs and after deductions of payments in connection with drawback and repayments.

128.     Subsection (4) provides that, should they consider the funds available to the Director or Secretary of State insufficient to cover any payment due in connection with drawback or repayment, the Commissioners may pay money to the Director or Secretary of State as applicable to enable the necessary payment or repayment to be made, or may themselves make a payment or repayment on behalf of the Director or the Secretary of State. Subsection (5) provides that subsection (4) will apply whether or not the reason for the deficiency is or may be that an amount has been paid or retained on the basis of an estimate that has proved or may prove inaccurate.

129.     Subsection (6) provides that a payment by the Commissioners under subsection (4) is to be treated for the purposes of the CRCA 2005 as a disbursement of a kind specified in section 44(3) of that Act. Section 44(3) of the CRCA 2005 covers the arrangements for payment by the Commissioners into the Consolidated Fund and provides that such payment should be made after the deduction of any disbursements covered by section 44(3). Subsection (7) provides definitions of the terms “repayments”, “revenue” and “security for revenue” for the purposes of clause 32.

Clause 33: Power to require payment into the Consolidated Fund

130.     Clause 33(1) makes provision for an order-making power to enable the Treasury to direct the Secretary of State or the Director to pay the money received in the exercise of their customs functions into the Consolidated Fund and to require the Secretary of State or Director to provide accounts of the receipt and disposal of revenue. The order may also permit the deduction of disbursements before such payments are made and permit the Treasury to make payments out of the Consolidated Fund, to enable the Secretary of State or the Director to make disbursements.

131.     Clause 33(2) provides an order-making power to amend or repeal clause 32. It is intended that the Secretary of State and Director will collect revenue but pay those monies directly into the Commissioners’ accounts in accordance with clause 32. The Commissioners will be responsible for accounting for the monies received by the UK Border Agency and reports to the Comptroller and Auditor General in respect of accounting for those receipts. However, should circumstances change and the Secretary of State and Director begin to run their own accounts this order making provision provides flexibility for the monies they collect to be paid directly into the Consolidated Fund rather than through the Commissioners’ accounts.

Clause 34: Children

132.     Clauses 34(1) to (5) amend section 21 of the UKBA 2007 to apply the Code of Practice regarding children’s welfare introduced in that section to specific individuals. Those individuals are named in the new section 21(4A), inserted by clause 34(3). Subsections (2), (4) and (5) of clause 34 further amend section 21 to reflect the replacement of the Border and Immigration Agency with the UK Border Agency.

133.     Clause 34(6) provides for clause 34 to cease to have effect when Clause 57 of this Bill comes into force.

Supplementary

Clause 35: Power to modify enactments

134.     Clause 35 provides an order-making power for the Secretary of State to modify enactments. Subsection (1) provides that an order made by the Secretary of State may provide for an enactment or description of enactments to apply, with such modification as considered necessary or expedient, in relation to relevant persons (as defined in subsection (2)) or to the exercise of functions by those persons. Subsection (2) defines “relevant persons” as the Secretary of State by whom general functions are exercisable, the Director, designated customs officials, immigration officers and officials in the department of that Secretary of State, and provides that a reference to relevant persons includes a reference to any description of relevant persons.

135.     Subsection (3) states that an order made under this clause may, in particular, include provision for, or in connection with, extending to the persons specified in subsection (2) an exemption or protection afforded to other persons in another enactment and providing for the disclosure of information to, or for doing other things in relation to, the relevant persons.

136.     Subsection (4) obliges the Secretary of State to consult with the Commissioners before making an order under clause 35 relating to customs matters or the exercise of a customs function.

Clause 36: Power to make supplementary etc provision

137.     Clause 36(1) provides the Secretary of State with an order-making power for the purpose of making such incidental, supplementary, consequential provision, or such transitional or transitory provision or savings, as considered appropriate for the purposes of this Part of the Bill, or in consequence, or for giving full effect to, any provision made by or under this Part of the Bill.

138.     Clause 36(2) provides that an order made under clause 36 may amend, repeal, revoke or otherwise modify any enactment, including this Bill, and subsection (3) provides that the power to make an order under subsection (1) includes the power to repeal or revoke an enactment that is spent.

139.     Clause 36(4) provides that nothing in Part 1 of the Bill affects the generality of the power in clause 36.

Clause 37: Subordinate legislation

140.     Clause 37 makes further provision for the making of subordinate legislation under this Part. Subsection (1) provides that the orders and regulations under Part 1 of the Bill must be made by statutory instrument, and subsection (2) provides that such instruments may include incidental, supplementary and consequential provision; make transitional or transitory provision or savings; and make different provision for different cases or circumstances. Subsections (3) to (6) establish the parliamentary procedures to which orders and regulations made under Part 1 are subject. Statutory instruments containing an order or regulations to which subsection (4) applies are subject to the affirmative resolution procedure. These are the orders or regulations made under clause 2, 8, 16(8), 23, or 35 and any order containing provision amending or repealing primary legislation by virtue of clause 36(2). Statutory instruments containing regulations under clause 29, or an order under clause 36 that does not amend or repeal primary legislation, are subject to the negative resolution procedure. An order under clause 33 (power to require payment into the consolidated fund) is subject to annulment by the House of Commons. Subsection (7) defines primary legislation for the purpose of clause 37, while subsection (8) makes it clear that that clause does not apply to an order made under clause 31 of the Bill (assignment of functions to the Director of Revenue and Customs Prosecutions by the Attorney General). Those orders are not made by statutory instrument and follow no Parliamentary procedure. This is consistent with other similar order-making powers of the Attorney General such as those found in section 35 of the CRCA 2005 relating to Revenue and Customs Prosecutions and section 3(2)(g) of the Prosecution of Offences Act 1985 in relation to the assignment of functions to the Director of Public Prosecutions.

Clause 38: Interpretation

141.     Clause 38 sets out the interpretation of the terminology used in this Part.

PART 2: CITIZENSHIP

Acquisition of British citizenship by naturalisation

Clause 39: Exceptions to application of this Part

142.     Clause 39 provides that nothing in Part 2 shall affect an application made, prior to the date Part 2 is commenced, for indefinite leave to remain or British citizenship. It also provides that nothing in Part 2 shall affect an application made, in the twelve months after the date that Part 2 is commenced, for indefinite leave to remain.

Clause 40: Application requirements: general

143.     Clause 40 amends the requirements to be met by those applying for naturalisation under section 6(1) of the BNA 1981. By virtue of paragraph 1(1) of Schedule 1 to that Act applicants will still be required to be of good character - a person can be refused on the basis, for example, of a criminal conviction or failure to pay taxes. They will also still be required to have a sufficient knowledge of English, Welsh or Scottish Gaelic, have a sufficient knowledge about life in the UK and, normally, intend to make the UK their home.

144.     Clause 40(2) replaces paragraph 1(2) of Schedule 1 to the BNA 1981. This sets out six requirements which mostly relate to the applicant’s presence in the UK during the qualifying period. The requirements provide that an applicant:

• must have been in the UK at the beginning of the qualifying period;

• must not have been absent from the UK for more than 90 days in each year of the qualifying period;

• must have had a qualifying immigration status (as defined in new paragraph 2A of Schedule 1 to the BNA 1981 which is inserted by clause 40(11)) for the whole of the qualifying period;

• on the date of the application for naturalisation, must have either probationary citizenship leave, permanent residence leave, a qualifying CTA entitlement, a Commonwealth right of abode, or a permanent EEA entitlement (as defined in new paragraph 11 of Schedule 1 to the BNA 1981 which is inserted by clause 50(3));

• who, on the date of the application for naturalisation, has probationary citizenship leave granted for the purpose of taking employment in the UK, has been in continuous employment since the date of the grant of that leave. (“Employment” is defined in paragraph 2(5) of Schedule 1 to the BNA 1981 which is inserted by clause 40(10) as including self-employment); and

• must not, at any time in the qualifying period, have been in the UK in breach of the immigration laws (as defined in section 50A of the BNA 1981 which is inserted by clause 49).

145.     Clause 40(1) and (3) repeal paragraph 1(3) of Schedule 1 to the BNA 1981 (and the reference to it in paragraph 1(1)). This relates to those in Crown service under the government of the UK. Instead there is a discretion in the new paragraph 2(2) (as inserted by clause 40(9)) to waive certain requirements in respect of applicants who have performed exceptional Crown service under the government of the UK.

146.     Clause 40(4) to (9) amend paragraph 2 of Schedule 1 to the BNA 1981. These amendments relate to the discretion the Secretary of State has in the special circumstances of a particular case to waive various requirements for naturalisation set out in paragraph 1 or to treat them as fulfilled.

147.     Clause 40(9) inserts new paragraphs 2(2) to (4) in Schedule 1 to the BNA 1981. These provide a new discretion for individual cases involving members of the armed forces or those who have performed exceptional Crown service under the government of the UK. In the special circumstances of a particular case, the Secretary of State can waive some or all of the requirements in paragraph 1(2), which relate to the qualifying period. A definition of “member of the armed forces” is inserted into section 50 of the BNA 1981 by clause 50(1). That section already contains a definition of “Crown service under the government of the United Kingdom”.

148.     Clause 40(11) inserts a new paragraph 2A in Schedule 1 to the BNA 1981. This defines qualifying immigration status for the purposes of paragraph 1(2). Only the following forms of status will count as qualifying immigration status: qualifying temporary residence leave; probationary citizenship leave; permanent residence leave; a qualifying CTA entitlement; a Commonwealth right of abode; or a temporary or permanent EEA entitlement. (All of these terms are defined in paragraph 11 of Schedule 1 to the BNA 1981 which is inserted by clause 50(3)).

149.     New paragraph 2A(2) provides that an applicant need not have held the same qualifying immigration status for the whole of the qualifying period. For example, an applicant who had been in the UK for the whole of the qualifying period with a combination of temporary residence leave and probationary citizenship leave would be able to count both of those periods towards the requirement to have had qualifying immigration status for the whole of the qualifying period.