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Borders, Citizenship and Immigration Bill [HL]


Borders, Citizenship and Immigration Bill [HL]
Part 1 — Border functions

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18      

Offence of wrongful disclosure

(1)   

A person commits an offence if the person breaches section 15(1) or (2) or 17(1).

(2)   

It is a defence for a person charged with an offence under this section to prove

that the person reasonably believed—

(a)   

that the disclosure was lawful, or

5

(b)   

that the information had already and lawfully been made available to

the public.

(3)   

A prosecution for an offence under this section—

(a)   

may be brought in England and Wales only with the consent of the

Director of Public Prosecutions or the Director of Revenue and

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Customs Prosecutions;

(b)   

may be brought in Northern Ireland only with the consent of the

Director of Public Prosecutions for Northern Ireland.

(4)   

This section is without prejudice to the pursuit of any remedy or the taking of

any action in relation to a breach of section 15(1) or (2) or 17(1) (whether or not

15

this section applies to the breach).

(5)   

A person guilty of an offence under this section is liable—

(a)   

on conviction on indictment to imprisonment for a term not exceeding

2 years, or to a fine, or to both;

(b)   

on summary conviction—

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(i)   

in England and Wales, to imprisonment for a term not

exceeding 12 months, or to a fine not exceeding the statutory

maximum, or to both;

(ii)   

in Scotland, to imprisonment for a term not exceeding 12

months, or to a fine not exceeding the statutory maximum, or to

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both;

(iii)   

in Northern Ireland, to imprisonment for a term not exceeding

6 months, or to a fine not exceeding the statutory maximum, or

to both.

(6)   

In relation to an offence under this section committed before the

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commencement of section 282 of the Criminal Justice Act 2003 (c. 44) (increase

in maximum sentence on summary conviction of offence triable either way),

the reference in subsection (5)(b)(i) to 12 months has effect as if it were a

reference to 6 months.

19      

Application of statutory provisions

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(1)   

Nothing in sections 14 to 17 authorises the making of a disclosure which—

(a)   

contravenes the Data Protection Act 1998 (c. 29), or

(b)   

is prohibited by Part 1 of the Regulation of Investigatory Powers Act

2000 (c. 23).

(2)   

Information whose disclosure is prohibited by section 15(1) or (2) or 17(1) is

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exempt information by virtue of section 44(1)(a) of the Freedom of Information

Act 2000 (c. 36).

(3)   

Sections 15(6), 16 and 17(2) and (4) are to be disregarded in determining for the

purposes of subsection (2) whether the disclosure of personal customs

information is prohibited by section 15(1) or (2) or 17(1).

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Borders, Citizenship and Immigration Bill [HL]
Part 1 — Border functions

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(4)   

In section 23 of the Commissioners for Revenue and Customs Act 2005 (c. 11)

(freedom of information), after subsection (1) insert—

“(1A)   

Subsections (2) and (3) of section 18 are to be disregarded in

determining for the purposes of subsection (1) of this section whether

the disclosure of revenue and customs information relating to a person

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is prohibited by subsection (1) of that section.”

20      

Supply of Revenue and Customs information

(1)   

After section 41 of the UK Borders Act 2007 (c. 30) insert—

“41A    

Supply of information to UK Border Agency

(1)   

HMRC and the RCPO may each supply a person to whom this section

10

applies with information for use for the purpose of the customs

functions exercisable by that person.

(2)   

This section applies to—

(a)   

a designated customs official,

(b)   

the Secretary of State by whom general customs functions are

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exercisable,

(c)   

the Director of Border Revenue, and

(d)   

a person acting on behalf of a person mentioned in paragraphs

(a) to (c).

(3)   

This section applies to a document or article which comes into the

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possession of, or is discovered by, HMRC or the RCPO, or a person

acting on behalf of HMRC or the RCPO, as it applies to information.

(4)   

A person to whom this section applies—

(a)   

may retain for a purpose within subsection (1) a document or

article supplied by virtue of subsection (3);

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(b)   

may dispose of a document or article supplied by virtue of

subsection (3).

(5)   

A power conferred by this section on HMRC or the RCPO may be

exercised on behalf of HMRC or the RCPO by a person who is

authorised (generally or specifically) for the purpose.

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(6)   

In this section and section 41B “customs function” and “general

customs function” have the meanings given by Part 1 of the Borders,

Citizenship and Immigration Act 2009.

41B     

UK Border Agency: onward disclosure

(1)   

A person to whom information is supplied under section 41A may not

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disclose that information.

(2)   

But subsection (1) does not apply to a disclosure—

(a)   

which is made for the purpose of a customs function, where the

disclosure does not contravene any restriction imposed by the

Commissioners for Her Majesty’s Revenue and Customs;

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(b)   

which is made for the purposes of civil proceedings (whether or

not within the United Kingdom) relating to a customs function;

 
 

Borders, Citizenship and Immigration Bill [HL]
Part 1 — Border functions

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(c)   

which is made for the purpose of a criminal investigation or

criminal proceedings (whether or not within the United

Kingdom);

(d)   

which is made in pursuance of an order of a court;

(e)   

which is made with the consent (which may be general or

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specific) of HMRC or the RCPO, depending on by whom or on

whose behalf the information was supplied;

(f)   

which is made with the consent of each person to whom the

information relates.

(3)   

Subsection (1) is subject to any other enactment permitting disclosure.

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(4)   

The reference in subsection (1) to information supplied under section

41A includes a reference to documents or articles supplied by virtue of

subsection (3) of that section.

(5)   

The reference in that subsection to a person to whom information is

supplied includes a reference to a person who is or was acting on behalf

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of that person.

(6)   

In subsection (3) “enactment” does not include—

(a)   

an Act of the Scottish Parliament,

(b)   

an Act of the Northern Ireland Assembly, or

(c)   

an instrument made under an Act within paragraph (a) or (b).”

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(2)   

In section 42(1) of that Act (wrongful disclosure) after “section 41” insert “or

41B”.

21      

Duty to share information

(1)   

In section 36 of the Immigration, Asylum and Nationality Act 2006 (c. 13) (duty

to share information), in subsection (1), for paragraph (a) substitute—

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“(a)   

designated customs officials,

(aa)   

immigration officers,

(ab)   

the Secretary of State in so far as the Secretary of State has

general customs functions,

(ac)   

the Secretary of State in so far as the Secretary of State has

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functions relating to immigration, asylum or nationality,

(ad)   

the Director of Border Revenue and any person exercising

functions of the Director,”.

(2)   

In subsection (6)(a) of that section, after “persons” insert “or descriptions of

persons”.

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(3)   

In subsection (9) of that section, at the appropriate place insert—

““designated customs official” and “general customs function” have the

meanings given by Part 1 of the Borders, Citizenship and Immigration

Act 2009,”.

Investigations and detention

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22      

Application of the PACE orders

(1)   

Subject as follows, the PACE orders—

 
 

Borders, Citizenship and Immigration Bill [HL]
Part 1 — Border functions

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(a)   

apply to criminal investigations conducted by designated customs

officials and relating to a general customs matter or customs revenue

matter as they apply to relevant investigations conducted by officers of

Revenue and Customs, and

(b)   

apply to persons detained by designated customs officials as they apply

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to persons detained by officers of Revenue and Customs.

(2)   

Each of the following is a PACE order for the purposes of this section—

(a)   

the Police and Criminal Evidence Act 1984 (Application to Revenue

and Customs) Order 2007 (S.I. 2007/3175);

(b)   

the Police and Criminal Evidence (Application to Revenue and

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Customs) Order (Northern Ireland) 2007 (S.R. 2007/464).

(3)   

In the application of the PACE orders by virtue of this section—

(a)   

subject to the following provisions of this subsection, references in

those orders to an officer of Revenue and Customs are to be read as

references to a designated customs official;

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(b)   

references in those orders to the Commissioners are to be read as

references to—

(i)   

the Secretary of State in relation to general customs matters, or

(ii)   

the Director of Border Revenue in relation to customs revenue

matters;

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(c)   

references in those orders to Her Majesty’s Revenue and Customs or to

Revenue and Customs are to be read as references to—

(i)   

the Secretary of State in so far as the Secretary of State has

general customs functions,

(ii)   

the Director of Border Revenue, and

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(iii)   

designated customs officials;

(d)   

references in those orders to an office of Revenue and Customs are to

be read as references to an office of the UK Border Agency;

(e)   

references in those orders to a designated office of Revenue and

Customs are to be read as references to a designated office of the UK

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Border Agency;

(f)   

references in those orders to a relevant indictable offence are to be read

as references to an indictable offence that relates to a general customs

matter or a customs revenue matter;

(g)   

references in those orders to a relevant investigation are to be read as

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references to a criminal investigation conducted by a designated

customs official that relates to a general customs matter or a customs

revenue matter;

(h)   

references in those orders to a person being in Revenue and Customs

detention are to be read as references to a person being in UK Border

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Agency detention;

(i)   

references in those orders to an officer of Revenue and Customs of at

least the grade of officer are to be read as references to a designated

customs official of at least the grade of immigration officer or executive

officer;

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(j)   

references in those orders to an officer of Revenue and Customs of at

least the grade of higher officer are to be read as references to a

designated customs official of at least the grade of chief immigration

officer or higher executive officer;

(k)   

references in those orders to an officer of Revenue and Customs of at

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least the grade of senior officer are to be read as references to a

 
 

Borders, Citizenship and Immigration Bill [HL]
Part 1 — Border functions

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designated customs official of at least the grade of immigration

inspector or senior executive officer;

(l)   

any other references in those orders to an officer of Revenue and

Customs occupying a specified post or grade are to be read as

references to the Secretary of State.

5

(4)   

For the purposes of this section—

(a)   

a person is in UK Border Agency detention if—

(i)   

the person has been taken to an office of the UK Border Agency

after being arrested for an offence, or

(ii)   

the person is arrested at an office of the UK Border Agency after

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attending voluntarily at the office or accompanying a

designated customs official to it,

   

and is detained there or is detained elsewhere in the charge of a

designated customs official, and

(b)   

“office of the UK Border Agency” means premises wholly or partly

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occupied by designated customs officials.

(5)   

This section does not apply to the following provisions of the PACE orders—

(a)   

in article 2(1) of the Police and Criminal Evidence Act 1984 (Application

to Revenue and Customs) Order 2007 (S.I. 2007/3175), the definitions

of “the Commissioners”, “office of Revenue and Customs”, “relevant

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indictable offence” and “relevant investigation”;

(b)   

article 2(2) of that order (Revenue and Customs detention);

(c)   

article 7 of that order (restriction on other powers to apply for

production of documents);

(d)   

article 19 of that order (authorisation);

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(e)   

in article 2(1) of the Police and Criminal Evidence (Application to

Revenue and Customs) Order (Northern Ireland) 2007 (S.R. 2007/464),

the definitions of “the Commissioners”, “office of Revenue and

Customs”, “relevant indictable offence” and “relevant investigation”;

(f)   

article 2(2) of that order (Revenue and Customs detention);

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(g)   

article 7 of that order (restriction on other powers to apply for

production of documents);

(h)   

article 15 of that order (authorisation).

(6)   

A person may be transferred—

(a)   

between UK Border Agency detention and Revenue and Customs

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detention;

(b)   

between Revenue and Customs detention and UK Border Agency

detention;

(c)   

between UK Border Agency detention and police detention;

(d)   

between police detention and UK Border Agency detention.

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(7)   

The references to police detention in subsection (6)—

(a)   

in relation to England and Wales, are to be construed in accordance

with the Police and Criminal Evidence Act 1984 (c. 60);

(b)   

in relation to Northern Ireland, are to be construed in accordance with

the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I.

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1989/1341 (N.I. 12)).

(8)   

Expressions used in this section that are defined in a PACE order have the

same meaning as in that PACE order.

 
 

Borders, Citizenship and Immigration Bill [HL]
Part 1 — Border functions

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(9)   

This section does not affect the generality of sections 1(4), 3(5), 7(5) and 11(4)

(construction of statutory etc. references to the Commissioners for Her

Majesty’s Revenue and Customs, officers of Revenue and Customs and Her

Majesty’s Revenue and Customs).

23      

Investigations and detention: England and Wales and Northern Ireland

5

(1)   

The Secretary of State may by order provide for any provision of an enactment

listed in subsection (2) that relates to investigations of offences conducted by

police officers or to persons detained by the police to apply, subject to such

modifications as the order may specify, in relation to—

(a)   

investigations conducted by designated customs officials,

10

(b)   

persons detained by designated customs officials,

(c)   

investigations conducted by immigration officers, or

(d)   

persons detained by immigration officers.

(2)   

Those enactments are—

(a)   

the Police and Criminal Evidence Act 1984 (c. 60), and

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(b)   

the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I.

1989/1341 (N.I. 12)).

(3)   

An order under this section may make, in relation to designated customs

officials, immigration officers, the Secretary of State or the Director of Border

Revenue, provision similar to that which may be made in relation to officers of

20

Revenue and Customs or the Commissioners for Her Majesty’s Revenue and

Customs under—

(a)   

section 114 of the Police and Criminal Evidence Act 1984, or

(b)   

article 85 of the Police and Criminal Evidence (Northern Ireland) Order

1989.

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(4)   

If an order under this section provides that a function may be exercised only

by a person acting with the authority of the Secretary of State or the Director of

Border Revenue, a certificate of the Secretary of State or (as the case may be) the

Director that the person had authority to exercise the function is conclusive

evidence of that fact.

30

(5)   

An order under this section may amend or repeal section 22 (application of the

PACE orders).

24      

Investigations and detention: Scotland

(1)   

After section 26B of the Criminal Law (Consolidation) (Scotland) Act 1995

(c. 39) insert—

35

“26C    

Investigations by designated customs officials

(1)   

In the application of this Part of this Act to investigations conducted by

designated customs officials—

(a)   

references to an officer are to a designated customs official;

(b)   

references to an authorised officer are to a designated customs

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official acting with the authority (which may be general or

specific) of—

(i)   

the Secretary of State in relation to investigations

relating to general customs matters, or

 
 

Borders, Citizenship and Immigration Bill [HL]
Part 1 — Border functions

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(ii)   

the Director of Border Revenue in relation to

investigations relating to customs revenue matters;

(c)   

references to the Commissioners for Her Majesty’s Revenue

and Customs are to—

(i)   

the Secretary of State in relation to investigations

5

relating to general customs matters, or

(ii)   

the Director of Border Revenue in relation to

investigations relating to customs revenue matters;

(d)   

references to an office of Revenue and Customs are to premises

wholly or partly occupied by designated customs officials;

10

(e)   

references to a superior officer are to—

(i)   

an immigration officer not below the grade of Inspector,

(ii)   

a person of the grade of Senior Executive Officer, or

(iii)   

a person of a grade equivalent to that within sub-

paragraph (i) or (ii).

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(2)   

In this section “customs revenue matter”, “designated customs official”

and “general customs matter” have the meanings given by Part 1 of the

Borders, Citizenship and Immigration Act 2009.”

(2)   

The amendment made by this section does not affect the generality of sections

1(4), 3(5), 7(5) and 11(4) (construction of statutory etc. references to the

20

Commissioners for Her Majesty’s Revenue and Customs, officers of Revenue

and Customs and Her Majesty’s Revenue and Customs).

25      

Short-term holding facilities

In section 147 of the Immigration and Asylum Act 1999 (c. 33) (removal centres

and detained persons: interpretation), in the definition of “short-term holding

25

facility”—

(a)   

omit “solely”, and

(b)   

at the end insert “(whether or not it is also used for the detention of

other persons for any period).”

Transfer of property etc.

30

26      

Transfer schemes

(1)   

The Commissioners for Her Majesty’s Revenue and Customs may make one or

more schemes for the transfer of specified property, rights or liabilities or

property, rights or liabilities of a specified description between—

(a)   

the Commissioners or officers of Revenue and Customs, and

35

(b)   

the Secretary of State, the Director of Border Revenue or designated

customs officials.

(2)   

A scheme under subsection (1) may, in particular—

(a)   

create interests or rights, or impose liabilities, in relation to property,

rights or liabilities transferred by virtue of the scheme or retained by a

40

transferor;

(b)   

apportion property, rights or liabilities between a transferor and a

transferee.

(3)   

A scheme under subsection (1) may—

 
 

 
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