Borders, Citizenship and Immigration Bill [HL]

House of Commons

Session 2008 - 09
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Other Bills before Parliament

Borders, Citizenship and Immigration Bill [HL]

Borders, Citizenship and Immigration Bill [HL]
Part 1 — Border functions
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(a)
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;
(b)
permit anything (including any legal proceedings) relating to anything
transferred by the scheme which is in the process of being done by or
5
in relation to a transferor when the transfer takes effect to be continued
by or in relation to a transferee;
(c)
provide for references to a transferor in an agreement (whether written
or not), instrument or other document relating to anything transferred
by the scheme to be treated as references to a transferee;
10
(d)
include other incidental, supplementary, consequential, transitional or
transitory provision or savings.
(4)
A scheme under subsection (1) may provide for a transfer of property, rights
or liabilities—
(a)
whether or not they would otherwise be capable of being transferred,
15
(b)
without any instrument or other formality being required, and
(c)
irrespective of any requirement for consent that would otherwise
apply.
(5)
The Commissioners may make one or more schemes providing for—
(a)
any specified thing or anything of a specified description done by or in
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relation to the Commissioners or an officer of Revenue and Customs in
connection with a relevant function to have effect as if done by or in
relation to the Secretary of State, the Director or a designated customs
official;
(b)
any specified thing or anything of a specified description (including
25
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.
(6)
A scheme under this section—
30
(a)
comes into force in accordance with its terms;
(b)
may be amended or revoked.
(7)
In this section—
“relevant function” means a function which before the passing of this Act
was exercisable by the Commissioners or officers of Revenue and
35
Customs (whether or not it remains so exercisable) and that—
(a)
is conferred by or by virtue of this Part on the Secretary of State,
the Director or a designated customs official, or
(b)
is a function under Community law that is exercisable by the
Secretary of State, the Director or a designated customs official;
40
“specified” means specified in the scheme.
27
Facilities and services
(1)
Her Majesty’s Revenue and Customs may make facilities and services
available to any person by whom functions relating to immigration, asylum or
nationality, or customs functions, are exercisable for the purposes of the
45
exercise of any of those functions.

Borders, Citizenship and Immigration Bill [HL]
Part 1 — Border functions
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(2)
A person by whom functions relating to immigration, asylum or nationality, or
customs functions, are exercisable may make facilities and services available to
Her Majesty’s Revenue and Customs for the purposes of the exercise of a
function of Her Majesty’s Revenue and Customs.
Inspection and oversight
5
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Inspections by the Chief Inspector of the UK Border Agency
(1)
In section 48 of the UK Borders Act 2007 (c. 30) (establishment of the Border
and Immigration Inspectorate), in subsection (1) for “the Border and
Immigration Agency” substitute “the UK Border Agency”.
(2)
After that subsection insert—
10
“(1A)
The Chief Inspector shall monitor and report on the efficiency and
effectiveness of the performance of functions by the following—
(a)
designated customs officials, and officials of the Secretary of
State exercising customs functions;
(b)
immigration officers, and officials of the Secretary of State
15
exercising functions relating to immigration, asylum or
nationality;
(c)
the Secretary of State in so far as the Secretary of State has
general customs functions;
(d)
the Secretary of State in so far as the Secretary of State has
20
functions relating to immigration, asylum or nationality;
(e)
the Director of Border Revenue and any person exercising
functions of the Director.
(1B)
The Chief Inspector shall monitor and report on the efficiency and
effectiveness of the services provided by a person acting pursuant to
25
arrangements relating to the discharge of a function within subsection
(1A).”
(3)
In subsection (2) of that section—
(a)
omit the words from the beginning to “Agency;”,
(b)
in paragraph (a), for “within the Border and Immigration Agency”
30
substitute “among the persons listed in subsections (1A) and (1B) (the
“listed persons”)”,
(c)
in paragraph (b), for “the Border and Immigration Agency” substitute
“the listed persons”, and
(d)
after paragraph (g) insert—
35
“(ga)
practice and procedure in relation to the prevention,
detection and investigation of offences,
(gb)
practice and procedure in relation to the conduct of
criminal proceedings,
(gc)
whether customs functions have been appropriately
40
exercised by the Secretary of State and the Director of
Border Revenue,”.
(4)
After that subsection insert—
“(2A)
Unless directed to do so by the Secretary of State, the Chief Inspector
shall not monitor and report on the exercise by the listed persons of—
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Borders, Citizenship and Immigration Bill [HL]
Part 1 — Border functions
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(a)
functions at removal centres and short term holding facilities,
and under escort arrangements, in so far as Her Majesty’s Chief
Inspector of Prisons has functions under section 5A of the
Prison Act 1952 in relation to such functions, and
(b)
functions at detention facilities, in so far as Her Majesty’s
5
Inspectors of Constabulary, the Scottish inspectors or the
Northern Ireland inspectors have functions by virtue of section
29 of the Borders, Citizenship and Immigration Act 2009 in
relation to such functions.”
(5)
Omit subsection (3) of that section.
10
(6)
After that subsection insert—
“(3A)
In this section “customs function”, “designated customs official” and
“general customs function” have the meanings given by Part 1 of the
Borders, Citizenship and Immigration Act 2009.”
(7)
In section 53 of that Act (relationship with other bodies), in subsection (1)—
15
(a)
in paragraph (a), for “the Border and Immigration Agency” substitute
“a person listed in section 48(1A) or (1B)”, and
(b)
in paragraph (b), for “the Agency” substitute “such a person”.
(8)
In subsection (3) of that section, for “the Agency” insert “a person listed in
section 48(1A) or (1B)”.
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(9)
In section 56(2)(a) of that Act (Senior President of Tribunals), for “the Border
and Immigration Agency” substitute “the UK Border Agency”.
(10)
The person holding the office of the Chief Inspector of the Border and
Immigration Agency immediately before the day on which this section comes
into force is to be treated, on and after that day, as if appointed as the Chief
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Inspector of the UK Border Agency under section 48(1) of the UK Borders Act
2007 (c. 30).
29
Inspections by Her Majesty’s Inspectors of Constabulary etc.
(1)
The Secretary of State may make regulations conferring functions on Her
Majesty’s Inspectors of Constabulary, the Scottish inspectors or the Northern
30
Ireland inspectors in relation to—
(a)
designated customs officials, and officials of the Secretary of State
exercising customs functions;
(b)
immigration officers, and officials of the Secretary of State exercising
functions relating to immigration, asylum or nationality;
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(c)
the Secretary of State in so far as the Secretary of State has general
customs functions;
(d)
the Secretary of State in so far as the Secretary of State has functions
relating to immigration, asylum or nationality;
(e)
the Director of Border Revenue and any person exercising functions of
40
the Director;
(f)
persons providing services pursuant to arrangements relating to the
discharge of a function of a person mentioned in paragraphs (a) to (e).
(2)
Regulations under subsection (1) may—

Borders, Citizenship and Immigration Bill [HL]
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(a)
in relation to Her Majesty’s Inspectors of Constabulary, apply (with or
without modification) or make provision similar to any provision of
sections 54 to 56 of the Police Act 1996 (c. 16) (inspection);
(b)
in relation to the Scottish inspectors, apply (with or without
modification) or make provision similar to any provision of section 33
5
or 34 of the Police (Scotland) Act 1967 (c. 77) (inspection);
(c)
in relation to the Northern Ireland inspectors, apply (without or
without modification) or make provision similar to any provision of
section 41 or 42 of the Police (Northern Ireland) Act 1998 (c. 32)
(inspection).
10
(3)
Regulations under subsection (1)—
(a)
may enable a Minister of the Crown to require an inspection to be
carried out;
(b)
must provide for a report of an inspection to be made and, subject to
any exceptions required or permitted by the regulations, published;
15
(c)
must provide for an annual report by Her Majesty’s Inspectors of
Constabulary;
(d)
may make provision for payment to or in respect of Her Majesty’s
Inspectors of Constabulary, the Scottish inspectors or the Northern
Ireland inspectors.
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(4)
An inspection carried out by virtue of this section 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 (c. 44).
(5)
An inspection carried out by virtue of this section must be carried out jointly
by Her Majesty’s Inspectors of Constabulary and the Scottish inspectors—
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(a)
if it is carried out wholly in Scotland, or
(b)
in a case where it is carried out partly in Scotland, to the extent that it is
carried out there.
(6)
In this section—
(a)
“the Scottish inspectors” means the inspectors of constabulary
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appointed under section 33(1) of the Police (Scotland) Act 1967;
(b)
“the Northern Ireland inspectors” means the inspectors of constabulary
appointed under section 41(1) of the Police (Northern Ireland) Act 1998.
30
Complaints and misconduct
(1)
In section 41 of the Police and Justice Act 2006 (c. 48) (power to confer functions
35
on the Independent Police Complaints Commission in respect of the exercise
of immigration functions)—
(a)
after subsection (1)(b) insert—
“(c)
the provision of services pursuant to arrangements
relating to the discharge of a function within paragraph
40
(a) or (b).”, and
(b)
after subsection (2) insert—
“(2A)
The Secretary of State may make regulations conferring
functions on the Independent Police Complaints Commission
in relation to—
45
(a)
the exercise by designated customs officials, and
officials of the Secretary of State, of customs functions

Borders, Citizenship and Immigration Bill [HL]
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within the meaning of Part 1 of the Borders, Citizenship
and Immigration Act 2009;
(b)
the exercise by the Director of Border Revenue, and any
person exercising functions of the Director, of customs
revenue functions within the meaning of that Part of
5
that Act;
(c)
the provision of services pursuant to arrangements
relating to the discharge of a function within paragraph
(a) or (b).”
(2)
In each of subsections (4) and (7) of that section, after “subsection (1)” insert “or
10
(2A)”.
(3)
In the title to that section, after “functions” insert “and customs functions”.
Other provisions
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Prosecution of offences
(1)
The Attorney General may by order assign to the Director of Revenue and
15
Customs Prosecutions a function of—
(a)
instituting criminal proceedings in England and Wales,
(b)
assuming the conduct of criminal proceedings in England and Wales,
or
(c)
providing legal advice,
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relating to a criminal investigation of a kind specified in the order by a person
to whom this section applies.
(2)
This section applies to—
(a)
designated customs officials,
(b)
immigration officers,
25
(c)
officials of the Secretary of State,
(d)
the Secretary of State,
(e)
the Director of Border Revenue,
(f)
a person acting on behalf of a person mentioned in paragraphs (a) to (e),
and
30
(g)
constables.
(3)
For the purposes of the Commissioners for Revenue and Customs Act 2005
(c. 11)—
(a)
functions assigned to the Director of Revenue and Customs
Prosecutions by virtue of this section are to be treated as functions of
35
the Director under or by virtue of that Act, and
(b)
proceedings conducted by the Director by virtue of this section are to
be treated as proceedings conducted by the Director under that Act.
(4)
Sections 37 to 37B of the Police and Criminal Evidence Act 1984 (c. 60)
(guidance etc.) have effect, in relation to a person arrested following a criminal
40
investigation in relation to which functions are conferred by virtue of this
section, as if references to the Director of Public Prosecutions were references
to the Director of Revenue and Customs Prosecutions.
(5)
An order under this section—
(a)
may include incidental, supplementary and consequential provision;
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Borders, Citizenship and Immigration Bill [HL]
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(b)
may make transitional or transitory provision or savings;
(c)
may be amended or revoked.
(6)
The reference in this section to instituting criminal proceedings is to be
construed in accordance with section 15(2) of the Prosecution of Offences Act
1985 (c. 23).
5
(7)
In this section “criminal investigation” means any process—
(a)
for considering whether an offence has been committed,
(b)
for discovering by whom an offence has been committed, or
(c)
as a result of which an offence is alleged to have been committed.
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Payment of revenue to the Commissioners
10
(1)
The Director of Border Revenue must pay money received by way of revenue
or security for revenue in the exercise of the Director’s customs revenue
functions to the Commissioners for Her Majesty’s Revenue and Customs.
(2)
The Secretary of State must pay money received by way of revenue in the
exercise of the Secretary of State’s general customs functions to the
15
Commissioners.
(3)
A payment under subsection (1) or (2) must be made—
(a)
at such times and in such manner as the Treasury directs, and
(b)
after deduction of payments in connection with drawback and
repayments.
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(4)
If the Commissioners think that the funds available to the Director or the
Secretary of State may be insufficient to make a payment in connection with
drawback or a repayment, the Commissioners may—
(a)
pay money to the Director or the Secretary of State (as the case may be)
to enable the payment or repayment to be made, or
25
(b)
make the payment or repayment on behalf of the Director or the
Secretary of State (as the case may be).
(5)
Subsection (4) applies whether or not the reason for a 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 to be inaccurate.
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(6)
A payment by the Commissioners under that subsection is to be treated for the
purposes of the Commissioners for Revenue and Customs Act 2005 (c. 11) as a
disbursement of a kind specified in section 44(3) of that Act.
(7)
In this section—
“repayments” includes—
35
(a)
payments in respect of actual or deemed credits relating to any
tax, duty or levy, and
(b)
payments of interest (or repayment supplement) on—
(i)
repayments, or
(ii)
payments treated as repayments;
40
“revenue” means—
(a)
taxes, duties and levies,
(b)
the proceeds of forfeitures made and penalties imposed under
the customs and excise Acts (within the meaning of section 1 of
the Customs and Excise Management Act 1979 (c. 2)),
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Borders, Citizenship and Immigration Bill [HL]
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(c)
a sum paid, or the proceeds of sale, under paragraph 16 of
Schedule 3 to that Act, and
(d)
the proceeds of penalties imposed in accordance with
Regulation (EC) No 1889/2005 on controls of cash entering or
leaving the Community (including penalties imposed under
5
that Regulation as amended from time to time);
“security for revenue” means any sum paid as security for a tax or duty.
33
Power to require payment into the Consolidated Fund
(1)
The Treasury may by order make provision for—
(a)
requiring the payment of sums received by the Secretary of State or the
10
Director in the exercise of their functions into the Consolidated Fund;
(b)
permitting the deduction of disbursements before such payments are
made;
(c)
requiring the Secretary of State or the Director to provide accounts of
the receipt and disposal of revenue;
15
(d)
permitting the Treasury to make payments to the Secretary of State or
the Director out of the Consolidated Fund to enable them to make
disbursements.
(2)
An order under this section may amend or repeal section 32 (payment of
revenue to the Commissioners).
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Children
(1)
In section 21 of the UK Borders Act 2007 (c. 30) (code of practice relating to
children), in subsection (1), for “the Border and Immigration Agency takes”
substitute “the persons listed in subsection (4A) take”.
(2)
In subsection (2) of that section—
25
(a)
for “The Agency” substitute “Those persons”,
(b)
in paragraph (a), for “its” substitute “their”, and
(c)
in paragraph (b), for “it makes” substitute “they make”.
(3)
After subsection (4) of that section insert—
“(4A)
The persons are—
30
(a)
designated customs officials, and officials of the Secretary of
State exercising customs functions,
(b)
immigration officers, and officials of the Secretary of State
exercising functions relating to immigration, asylum or
nationality,
35
(c)
the Secretary of State in so far as the Secretary of State has
general customs functions,
(d)
the Secretary of State in so far as the Secretary of State has
functions relating to immigration, asylum or nationality, and
(e)
the Director of Border Revenue and any person exercising
40
functions of the Director.”
(4)
In subsection (5) of that section omit paragraph (a).