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PART 4: MISCELLANEOUS AND GENERAL
Clause 55: Fresh claim applications
200. Section 19 of the TCEA 2007 amended the Supreme Court Act 1981 and the Judicature (Northern Ireland) Act 1978, to provide for the transfer of judicial review applications to the Upper Tribunal. Section 20 of the TCEA 2007 made equivalent provision for Scotland. Under these provisions a judicial review application may not be transferred if it calls into question a decision under the Immigration Acts, the BNA 1981, an instrument having effect under those enactments or any other provision of law determining British citizenship.
201. Subsection (1) of clause 55 requires the Secretary of State to make an order subject to the affirmative resolution procedure, which would provide for judicial review cases relating to “Fresh Claims” (as defined in rule 353 of the immigration rules) to be transferred to the Upper Tribunal. Subsection (3) provides that the order may not be made until the Asylum and Immigration Tribunal has been transferred into the First Tier Tribunal and Upper Tribunal. Under subsection (2) the Administrative Court would have discretion to decide whether a particular judicial review application was exclusively a “Fresh Claims” case.
202. Subsection (4) removes the Lord Chancellor’s power under section 13(6) of the TCEA 2007 to restrict the test for onward appeal to the Court of Appeal in asylum and immigration appeals from the Upper Tribunal.
Clause 56: Trafficking people for exploitation
203. Clause 56 expands the definition of exploitation in the offence of trafficking in section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. This is to cover use or attempted use of a person for the provision of services or the provision or acquisition of benefits of any kind, where the person is chosen on the grounds of ill-health, disability, youth or family relationship. This clause substitutes the existing definition in section 4(4)(d) of the 2004 Act which provides that a person who is “requested or induced” to undertake any activity is exploited. The effect of this amendment is to ensure the offence of trafficking captures those cases where the role of the person being exploited is entirely passive, and where the person is being used as a tool by which others can gain a benefit of any kind.
204. Clause 56 does not extend to Scotland (see clause 59(4)).
Clause 57: Duty regarding the welfare of children
205. 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. Subsection (1)(b) requires the Secretary of State to make similar arrangements to ensure that other persons, including contractors, who carry out those functions also have regard to the need to safeguard and promote the welfare of children.
206. Subsection (2) sets out the list of functions which the Secretary of State must make arrangements for ensuring are carried out having regard to the need to safeguard and promote the welfare of children who are in the UK. These include the immigration and nationality functions of the Secretary of State, and any function conferred upon an immigration officer by or by virtue of the Immigration Acts. Further, they include the general customs functions of the Secretary of State, and the customs functions of a designated customs official.
207. Subsection (3) requires anyone carrying out any of the functions listed to have regard to any guidance issued to them by the Secretary of State for the purposes of subsection (1).
208. Subsection (4) imposes a duty on the Director to make arrangements for ensuring that the Director’s functions are carried out having regard to the need to safeguard and promote the welfare of children who are in the UK. Subsection (4)(b) requires the Director to make similar arrangements to ensure that other persons carrying out the Director’s functions also have regard to the need to safeguard and promote the welfare of children.
209. Subsection (5) requires any person exercising a function of the Director to have regard to any guidance issued by the Secretary of State for the purpose of subsection (4).
210. Subsection (6) provides that, for the purposes of this section, “children” means persons who are under the age of 18.
211. Subsection (7) provides that any reference to the Immigration Acts in an enactment other than this Act includes this section.
212. Subsection (8) repeals section 21 of the UKBA 2007, which imposes a duty on the Secretary of State to issue a code of practice designed to ensure that, in exercising its functions, the Border and Immigration Agency (now the UK Border Agency) takes appropriate steps to ensure that while children are in the UK they are safe from harm.
Clause 58: Repeals
213. Clause 58 introduces the Schedule which sets out the extent to which current legislation is repealed by the provisions of this Bill.
Clause 59: Extent
214. Subject to certain exceptions set out in subsections (2) to (4), clause 59 provides that this Bill extends to England, Wales, Scotland and Northern Ireland and amendments, modifications and repeals effected by this Bill have the same extent as the provisions to which they relate. 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.
Clause 60: Commencement
215. Clause 60 contains provisions relating to the coming into force of the Bill. Subsections (2), (3)(a) and (4)(b) provide for specified provisions to come into force on such days as the Secretary of State by order appoints. Subsection (4)(a) provides for clause 55 to come into force on such day as the Lord Chancellor by order appoints. All other provisions come into force on the passing of the Bill. Subsection (11) provides that before commencing clause 54 (detention at ports in Scotland) the Secretary of State will consult the Scottish Ministers.
FINANCIAL EFFECTS OF BILL
216. Financial effects of the Bill have been considered in the accompanying impact assessments (see paragraph 244).
217. Overall the Government expects the Bill to result in gross financial costs of £7.8M, £2.2M and £7.5M for the financial years 2009-10, 2010-2011 and 2011-2012 respectively and net costs (having regard to fee income in respect of nationality applications) of £7.6M, £2.1M and £7.4M. These figures are based on a number of assumptions about implementation changes and outcomes.
218. The majority of the estimated costs will be met from within the existing Home Office budget. The Government also expects there will be potential efficiency and cost savings and benefits for the Government which have not been fully quantified.
219. The main financial implications of the Bill for the public sector lie in the following areas:
Part 1 - Border Functions
220. The integration of immigration and customs functions will involve set up costs, including training requirements for staff, estimated to cost an additional £600,000 for external training in the financial year 2009-10; and business change costs (including IT, signage and accommodation changes) of £575,000, £1.9M and £7.3M for the financial years 2009-10, 2010-2011 and 2011-2012 respectively. 1
221. There will also be set up integration costs arising from terms and conditions harmonisation which are subject to Trades Union and HM Treasury negotiations.
222. There will also be some additional set up and ongoing costs in subsequent years, which are set out in more detail in the Impact Assessment, but these will come from existing Home Office budgets.
223. There is the possibility of economies of scale savings to be made by the Department.
Part 2 - Citizenship
224. The Government estimates the proposals in Part 2 to have an additional gross financial cost of £1.27M, £210,000 and £150,000 for the financial years 2009-10, 2010-11 and 2011-12. There will be some additional costs in subsequent years, and these are set out in more detail in the Impact Assessment.
225. The set up costs of the Earned Citizenship proposals will include: publicity and communications costs, estimated to cost an additional £1M in the financial year 2009-10; and changes in case working for Managed Migration applications, estimated to cost an additional £120,000 per annum in the financial years 2009-10, 2010-11 and 2011-12. Other costs are expected to be funded within existing Home Office budgets.
226. The changes to nationality law will lead to additional case working costs to the Department for nationality applications. This is estimated to cost an additional £150,000 per annum in the financial year 2009-10, £87,000 in the financial year 2010-11 and £28,000 in the financial year 2011-12. The changes to nationality law are also expected to create an increase in applications for British citizenship.
227. The number expected to apply under clause 43 is expected to be low as not many children are born overseas to Foreign and Commonwealth members of the UK armed forces accordingly to Ministry of Defence statistics. This is because most Foreign and Commonwealth nationals in the UK armed forces are single males.
228. The numbers able to apply as a result of clause 44 are expected to be low, as many will already have made applications under the previous criteria.
229. There is no way of quantifying precisely the number of people who would become eligible to register as a result of clause 45, or how many of those who become eligible will register, or on what timescale. In discussion so far the general expectation has been that the total potential caseload is in the low thousands. To manage an intake of that order in the first year of commencement should all those eligible apply immediately would require additional resources to be provided to an existing team. It is more feasible that those deciding to register will apply over a more protracted period, however, and thus additional resources may not be required. In the worst case scenario the Home Office would require, on a fixed term basis only, a team of staff who could then be released. This would have a cost implication of between £54,000 and £109,000, depending on the number of applications received immediately after commencement.
230. It has been suggested that the number able to apply under Clause 46 would be up to 10,000, but, again, this is difficult to confirm. It is not expected that all those who qualify will wish to apply, as they may hold another citizenship and be settled overseas. Again, it is feasible that those eligible will apply over a protracted period, and thus additional resources may not be required.
231. The financial impact of clause 47 will be minimal. The numbers who are affected by this clause will be very low, and so there will not be a resource implication. (Any training will be straightforward and provided in-house.)
232. In summary, the estimation of costs resulting from the increase in applications that will result from Part 2 is difficult. The Government estimates that there will be financial costs of approximately £100,000, but that this will be recovered because of subsequent revenue to the Home Office.
233. Any additional nationality applications will generate revenue equivalent to the costs incurred, so the net financial costs of the nationality proposals will be zero.
Part 3 - Immigration
234. The introduction of the proposals in Part 3 will have an additional gross financial cost of £575,000 and £100,000 in the financial years 2009-10 and 2010-11 respectively. There may be some limited additional financial costs in subsequent years, but these are uncertain and are discussed in more detail in the Impact Assessment.
235. The introduction of clause 52 (restriction on studies) will allow a student to be tied to an institution that has a sponsor licence and will support the new student route under Tier 4 of the Points Based System. The implementation of this power to tie a student to a licensed institution will have costs associated with staff abstraction from work for training, but the financial cost to the Home Office will be zero.
236. Clause 53 (fingerprinting of foreign criminals liable to automatic deportation) will lead to set up costs to the Home Office of £520,000 in the financial years 2009-10 and £100,000 in 2010-11 for fingerprinting machines.
237. Clause 54 (extension of sections 1 to 4 of the UK Borders Act 2007 to Scotland) will lead to set up costs to the Home Office of £55,000 in the financial year 2009-10 for protective equipment for staff in Scotland.
Part 4 - Miscellaneous and General
238. The introduction of the proposals in Part 4 will have an additional gross financial cost of £4.75M in the financial year 2009-10. There may be some additional financial costs in subsequent years, but these are unknown and are discussed in the Impact Assessment.
239. The duty in relation to children (clause 57) may lead to additional litigation costs, estimated at £450,000 in the financial year 2009-10; and additional asylum support costs, estimated at £4.3M in the financial year 2009-10.
240. Clause 55 (fresh claim applications) will allow transfer of judicial review applications to the Upper Tribunal. This would result in an increased workload for the Upper Tribunal, but a reduced workload for the higher courts. This is expected to be cost neutral. Removing the Lord Chancellor’s power to restrict the test for onward appeals to the Court of Appeal would prevent savings being made, but does not create any additional costs.
241. There may be some limited costs associated with the human trafficking measures. However, the proposals are largely covered by existing legislation on facilitation (which carries the same maximum sentence as trafficking: 14 years).
EFFECTS OF BILL ON PUBLIC SECTOR MANPOWER
242. Effects of the Bill on public sector manpower have been considered in the accompanying impact assessments. Public sector manpower will be transferred from HMRC to the Home Office for the purposes of Part 1 of the Bill.
SUMMARY OF IMPACT ASSESSMENTS
243. Four Impact Assessments relating to the provisions of the Bill have been published. An overall Impact Assessment for the Bill shows the impact of all of the provisions of the Bill excepting those from Part 1 (border functions) and Part 2 (citizenship). Due to the nature of the border functions and citizenship provisions separate Impact Assessments demonstrate the effect of the proposed clauses in the context of the associated programmes for their implementation.
244. All of these Impact Assessments are available to Members in the Vote Office and to the general public on the following website: .
245. The Impact Assessments set out the key economic costs of making these changes over ten years, including transitional set up costs to the public sector of training case workers, customs officials and immigration officers on the Bill and their new powers and responsibilities. The Bill’s provisions do not create a carbon impact.
246. The key additional financial costs of the Bill are outlined above.
EUROPEAN CONVENTION ON HUMAN RIGHTS
247. Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of that Act). The statement has to be made before Second Reading. The Secretary of State for the Home Department, Jacqui Smith, has made the following statement:
“In my view, the provisions of the Borders, Citizenship and Immigration Bill are compatible with the Convention rights.”
PART 1: BORDER FUNCTIONS
Concurrent exercise of functions
248. The Government considers that it is neither necessary nor appropriate to analyse the compatibility of the underlying customs functions which are to be exercised concurrently by virtue of the Bill. The Bill merely permits the concurrent exercise of functions, already exercisable by HMRC, so that they are now exercisable by another Government department. It does not change the substance of any of the underlying HMRC functions. The functions conferred by the Bill will not be carried out in a manner which is substantively different to the way in which those functions are exercised currently by HMRC and indeed the safeguards which HMRC currently apply to the exercise of those functions will continue to apply. Given that no new issues arise as a result of the conferral of these functions, in the Government’s view it is not necessary to consider the compatibility of each individual power or duty to be conferred under this Bill. Such an approach was recognised as appropriate by the Joint Committee on Human Rights (see the Committee’s comment in respect of the Commissioners for Revenue and Customs Bill in paragraph 1.5 of the Sixth Report of the Joint Committee on Human Rights, Session 2004-05, HL 41/HC 305).
249. Were the Bill to broaden the basis on which the relevant functions could be exercised, it would be necessary for the Minister in charge of the Bill to consider the compatibility of the underlying functions. That is not the case, however. Indeed, on analysis, the reverse is true, as the Bill incorporates “ring-fencing clauses”. For example, it provides that a function which may be exercised by the Commissioners in relation to a general customs matter or a customs revenue matter may be exercised in relation to a general customs matter only, when exercised by the Secretary of State (clause 1) or a general customs official (clause 3), and may be exercised in relation to a customs revenue matter only, when exercised by the Director of Border Revenue (clause 7) or a customs revenue official (clause 11). This reflects one of the core principles underpinning the Bill, namely that revenue functions are not exercisable by the Secretary of State and that she should not have access to customs revenue information except when disclosure of such information to her is (a) expressly
permitted under clause 16 and (b) is not precluded by any restriction of the Commissioners.
250. In any event, prior to these functions being transferred to the Commissioners, they were exercised by HMRC, and were assessed on various occasions by the Government for compatibility with the European Convention on Human Rights (the “ECHR”). Further, it has been open to anyone wishing to do so while the functions in question have been exercisable solely by the Commissioners to challenge the nature of any of those functions on grounds of their incompatibility with the ECHR. However, no successful challenge of that sort has in fact been made. Accordingly, for these reasons too, the Government considers that the conferring of those functions on other officials in clauses 1 to 13 does not give rise to any ECHR concerns.
251. There are further safeguards which will provide for the compatible exercise of these functions. For example, in accordance with clauses 4 and 12 an official can only be designated if the Secretary of State or the Director is satisfied that he is capable of effectively carrying out the functions, has received adequate training and is otherwise a suitable person.
252. Further, clauses 28 to 30 make provision for the inspection and oversight of the exercise of powers by officials of the Secretary of State (including designated officials), the Secretary of State and the Director of Border Revenue.
Data use and sharing and related provisions
253. The information, sharing and use of data which will be permitted under clause 14 or disclosure of which will be permitted under clause 16 or clause 17 will constitute “personal data” for the purposes of the Data Protection Act 1998 (the “DPA 1998”). Article 8 of the ECHR is broad in scope and covers the collection, use and exchange of personal data. It is the Government’s view, however, that any interference with Article 8 can be justified. Each of the purposes for which information is permitted either to be used or shared, is capable of falling within the permitted interferences under ECHR Article 8(2).
254. The Government considers that the use and disclosure of the information is proportionate to the aims pursued and that the proposed measures are suitable for achieving legitimate objectives. Further, the Government considers that there is no less intrusive method for achieving those objectives. The powers will only be exercised when it is lawful to do so, and will be processed in accordance with the DPA 1998 as applicable (see clause 19). Both HMRC and UKBA provide detailed guidance to staff on information handling and disclosure. This guidance is available to staff as a source of reference at all times. Training and further guidance, as necessary, is also provided to staff on the use and disclosure of information. There are also Codes of Practice which will remain relevant to the use of information by UKBA. These include the Code of Practice relating to data sharing under the IANA 2006 and the 2006 Code of Practice for the Management of Police Information, the principles of which are applied by HMRC in relation to certain types of information. UKBA will provide staff with any necessary further guidance and training to ensure that they are aware of their obligations under the new provisions.
255. A regulation-making power has been included in subsection (8) of clause 16. Regulations under that subsection will be subject to the affirmative resolution procedure which means that Ministers will be required to make a declaration of ECHR compatibility in relation to each new set of regulations.
256. Further, the offence of wrongful disclosure in clause 18 will give any person considering whether or not to disclose personal information which is obtained for a customs function, or is cross-cutting information, reason to pause. The Government views this offence as a significant deterrent to unlawful disclosure which might otherwise occur, particularly given the available sentences for anyone convicted of it.
257. Clause 18 provides a defence to any person charged with the offence who can show that they reasonably believed that the disclosure was lawful or that the relevant information had already been made available lawfully to the public. This mirrors the defence to other similar offences such as that in section 19 of the CRCA 2005 and paragraph 24 of Schedule 5 to the Finance Act 2006.
258. The Government also accepts that Article 6 ECHR is engaged, but considers clause 18 (which reflects many other provisions, including, notably, section 19 of the CRCA 2005) to be compatible with it. First, as regards Article 6(1), an individual charged with the offence of wrongful disclosure will be tried before an appropriate court, with all the relevant protections to ensure a fair trial. Secondly, clause 18 is also compatible with Article 6(2). The prosecution must prove the crux of the offence, namely a disclosure in breach of clause 15(1) or (2) or 17(1). The Government considers it to be reasonable and proportionate - particularly given the legitimate objective of protecting Government-held financial information from disclosure - to impose the burden of proof on the defendant to establish whether or not he reasonably believed that it was lawful to disclose the information or that it had already lawfully been made public. Those are matters that the defendant is much better placed to prove on the balance of probabilities than the prosecution is to prove beyond reasonable doubt.
259. Clause 19 provides that information which is subject to the duty of confidentiality is exempt information for the purposes of the Freedom of Information Act 2000. It makes clear that exceptions to the duty are disregarded for the purposes of this analysis as to do otherwise would be at odds with an FOI regime that does not require a requestor to justify a request. There is a consequential amendment to section 23 of the CRCA 2005 in similar terms (see subsection (4)).
260. Clause 19 might be said to engage Article 10 ECHR in so far as it relates to the right of an individual to receive information. A right of access to official information is not explicitly recognised by ECHR and such rights are rarely recognised. The Government considers that any such interference as was established would be justified under Article 10(2) on the basis that it was for the purposes of protecting the rights or reputation of others or preventing the disclosure of information received in confidence. A balance must be struck between the rights of persons to receive information and the rights of privacy of those to whom the information relates, and the purpose of this clause is to ensure that personal information, including information about the tax affairs of an individual, is restricted from disclosure to another individual under the FOI regime.
261. Clause 20 provides for amendment of the UKBA 2007 to:
- permit the supply of information by HMRC and RCPO to designated customs officials, the Secretary of State by whom general customs functions are exercisable, the Director and any other person acting on behalf of these persons; and
- define the circumstances in which any recipient of such information may disclose it.
262. The Government also recognises that the information, disclosure of which will be permitted under clause 20, will constitute “personal data” for the purposes of the DPA 1998 and that it is likely therefore that ECHR Article 8 will be engaged. However, the Government considers that any such interference with this right can be justified.
263. More specifically, clause 20 adopts the framework, defined in sections 40 and 41 of the UKBA 2007, for disclosure of customs information by HMRC and the RCPO to the Secretary of State for her immigration functions, and adapts it for use in relation to the disclosure of customs information to the persons specified in section 41A of the UKBA 2007 for their newly-acquired customs functions. The provision is central therefore to the proper discharge by those persons of their functions.
264. Current arrangements for the disclosure of customs information by HMRC and the RCPO to the Secretary of State for her immigration functions are governed by a Memorandum of Understanding. Guidance for staff is also available and a UKBA-wide training programme was delivered when the provisions in the UKBA 2007 were introduced. UKBA will ensure that staff members receive any further, necessary guidance and training to ensure that they are aware of their obligations under the amended provisions.
265. Sections 40 and 41 of the UKBA 2007 were assessed for compliance with the ECHR when the UK Borders Bill (as it then was) was before Parliament, and Parliament was duly satisfied. There is nothing to lead to any different conclusion about clause 20.
266. Further, any disclosure of information made under section 41A would only be made for customs purposes which are capable of falling within the permitted interferences under ECHR Article 8(2).
267. Clause 22 provides for the application of relevant PACE orders to apply to criminal investigations and persons detained by designated customs officials. This provides certain safeguards to those investigated and or detained.
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