House of Lords - Explanatory Note
Immigration And Asylum Bill - continued          House of Lords

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Clause 73 : The Immigration Services Commissioner

214.     This clause makes provision for the appointment by the Secretary of State, after consulting the Lord Chancellor, of the Immigration Services Commissioner and refers to his functions. The Commissioner must exercise these functions to ensure that those who provide immigration advice or services are fit and competent to do so, act in the best interests of their clients, do not mislead any court, tribunal or adjudicator and do not seek to abuse immigration or asylum procedures or advise another to do so. The Commissioner is required to publicise his functions.

Clause 74 : Provision of immigration services

215.     This clause prohibits the providing of immigration advice or services by those who are not qualified to do so. Contravention of the prohibition is an offence. The clause sets out who are to be qualified persons. These include those who are registered with the Commissioner or members of a designated professional body or equivalent EEA professional body. It provides the Commissioner and the Secretary of State with the power to exempt a person or category of persons, respectively, from the scheme. The Commissioner is provided with the power to exempt a person in respect of the provision of certain types of immigration advice or services and not others, for example, the Commissioner may exempt a person from giving advice on immigration cases but not on asylum cases. It also sets out those who do not fall to be regulated, including those employed by a government department when acting in that capacity.

Clause 75 : Registration and exemption by the Commissioner

216.     This clause states that the Commissioner must keep a register of those persons he has registered and a record of those he has exempted from registration. It also introduces Schedule 6. The register will record who is a qualified person to give immigration services and who is exempt.

Clause 76 : Designated professional bodies

217.     This clause lists the designated professional bodies whose members are to be considered qualified to provide advice or services. It provides the Secretary of State with the power to amend the list of professional bodies and puts a duty on the Commissioner to keep this list under review and to report to the Secretary of State any failure of a body to provide effective regulation of its members. The intention is to catch a general failing rather than a single act of ineffective regulation. The Secretary of State is required to seek the agreement of the Lord Chancellor or (as the case may be) Scottish Ministers before removing a body from the list of designated professional bodies. The professional bodies may also seek to remove themselves from the list of designated professional bodies. A fee set by the Secretary of State is payable by each designated body.

Clause 77 : The Immigration Services Tribunal

218.     This clause establishes the Immigration Services Tribunal, which will hear disciplinary charges laid by the Commissioner and to which any person aggrieved by certain decisions of the Commissioner (such as to refuse registration or continuation of registration) may appeal. Schedule 7 sets out matters regarding appointment to the Tribunal.

Clause 78 : Appeal upheld by the Tribunal

219.     This clause gives the Tribunal certain powers when it allows an appeal against a decision of the Commissioner. For example, in an allowed appeal against the decision of the Commissioner to refuse an application for registration or continuation of registration, it may direct the Commissioner to register the applicant if appropriate with a limitation on the applicant's registration.

Clause 79 : Disciplinary charges upheld by the Tribunal

220.     This clause gives the Tribunal power, where it upholds a disciplinary charge laid by the Commissioner, as appropriate: to direct the Commissioner to record the charge for consideration on application for continued registration; to direct the applicant to seek continued registration without delay; to direct the Commissioner to consider whether to withdraw exemption; or to direct the re-payment of fees to clients, to direct the payment of a fine, and to direct restriction, suspension or prohibition of the provision of immigration advice and services, including advice and services provided by employees or those working under supervision.

Clause 80: Orders by disciplinary bodies

221.     This clause enables the disciplinary bodies of the professions to be given powers to restrict, suspend or prohibit the provision of immigration advice by a member of that professional body. The disciplinary bodies to have these powers are to be specified in an order made by the Secretary of State, subject to consultation with the relevant designated professional body.

Clause 81: Offences

222.     This clause sets out the penalties for those providing immigration advice or services if not qualified to do so or when subject to a restraining order, namely: on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum or both, or on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or both. A restraining order is defined as either a direction given by the Tribunal or an order made by a disciplinary body to restrict, suspend or prohibit the provision of immigration advice or services. Where it is proved that an offence has been committed by a body corporate with the consent, connivance or neglect of an officer of that body, that officer will also be guilty of the offence.

Clause 82: Enforcement

223.     This clause provides the Commissioner with the power to apply to a county or sheriff court for an injunction where a person continues to provide immigration advice or services when not qualified or restrained from doing so.

Clause 83: Information

224.     This clause sets out provisions governing disclosure of information to the Commissioner and the Tribunal. It also sets out provisions governing the disclosure of information by the Commissioner and prohibits the disclosure of information without lawful authority. This is particularly important in view of the powers available to the Commissioner, or those acting on his authority, for entry to premises (Schedule 5, paragraph 6).

Schedule 5, Part I: Regulatory functions of the Immigration Services Commissioner

225.     Paragraph 1 provides the Commissioner with the power, after consultation, to make rules with regard to the professional practice, conduct and discipline of registered advisers and their employees or those supervised by them in connection with the provision of immigration advice or services. Paragraph 2 requires the Commissioner to prepare and issue a code of standards for certain persons providing immigration advice or immigration services, other than the members of designated bodies. Paragraph 3 allows the extension of the code to members of designated professional bodies.

226.     Paragraph 4 requires the Commissioner to set out a scheme for the investigation of complaints and paragraph 5 requires the complaint scheme to allow those subject to investigation reasonable opportunity to make representations. It also requires those persons to assist the Commissioner in his investigation. Those who fail to comply may have their registration cancelled, exemption withdrawn or be referred to the relevant regulatory body. Paragraph 7 requires the Commissioner to give a written statement of his determination of a complaint to the person who made the complaint and the person who is the subject of the complaint. The Commissioner must refer complaints about those authorised to give advice by a designated professional body to that body.

227.     Paragraph 6 provides the Commissioner or an authorised member of his staff with the power to enter premises but without using force and to take copies of any document or information held on computer which the investigating officer considers relate to the investigation of a relevant complaint against a registered person. It also permits cancellation of registration where access by the Commissioner or his staff is denied or where he is obstructed in carrying out an investigation.

228.     Paragraph 8 sets out the options available to the Commissioner on the determination of a complaint. These include recording a complaint for consideration when a registered person next applies for continued registration or a requirement for a registered person to apply for continued registration without delay. If the person is authorised by a designated professional body (including EEA bodies) or working under the supervision of such a person, the Commissioner may refer the complaint to the relevant regulatory body. If a person is exempted by the Commissioner (or is employed by, or working under the supervision of such a person), then the Commissioner may consider whether to withdraw exemption.

229.     Paragraph 9 enables the Commissioner when referring a complaint to a designated body professional body to set a timetable for the investigation of the complaint and the taking of any disciplinary proceedings. The Commissioner is required to take into account the failure by the designated body (whether in part of whole) to comply with directions in deciding to make a report under clause 76 as to failure of self regulation of the body concerned; and the Secretary of State to take it into account in deciding whether to withdraw the designation of the professional body under the clause.

Schedule 5, Part II : Immigration Services Commissioner's status, remuneration and staff etc

230.     Part II of Schedule 5 sets out the Commissioner's status, remuneration and staff. Paragraph 24 brings the Immigration Services Commissioner under the jurisdiction of the Parliamentary Commissioner for Administration (PCA) and ensures that the actions of the Commissioner may be subject to scrutiny by the PCA.

Schedule 6: Registration

231.     Paragraph 2 requires the Commissioner to register an applicant who is competent and fit to provide immigration advice/services, and allows registration subject to certain restrictions, for example, an immigration adviser may be permitted to give advice on immigration matters but not on asylum matters.

232.     Paragraph 3 provides the Commissioner with the power to require applications for continued registration and to determine the format and content of these applications. It also provides that the Commissioner must cancel registration where he considers that an applicant for continued registration is no longer competent or fit to provide immigration advice or services. The Commissioner also has the power to vary the extent of the registration.

233.     Under paragraph 4 a person who is convicted of an offence under the 1971 Act of facilitating illegal entry or of altering immigration documents or obstructing an immigration officer or other person acting in the execution of the 1971 Act is disqualified from registration or continued registration.

Part VI: Support for asylum seekers

234.     Part VI of the Bill sets out provisions for the support of asylum seekers.

Clause 84: Interpretation of Part VI

235.     Subsection (1) defines an asylum seeker as someone who has made a claim for asylum under the 1951 Convention which has not yet been determined, or for protection under Article 3 of the ECHR, and whose claim has not yet been determined. Dependants of asylum seekers are supported alongside the asylum seeker, and a dependant is defined as an asylum seeker's spouse or any dependant child of the asylum seeker or spouse who is under the age of 18. There is a power to add to this list. This subsection also defines a supported person under the terms of the Secretary of State's scheme so that it includes both the principal asylum and any dependants. This reflects the ability of the Secretary of State to provide support for an asylum seeker's dependants even though he may not be supporting the principal asylum seeker, for example, because he is detained.

236.     Under clause 85 support may be provided to an asylum seeker by the Secretary of State, or through arrangements made by him with another party. The Home Office proposes to contract with local authorities, housing associations, private sector landlords and the voluntary sector for the provision of accommodation and subsistence for asylum seekers. Subsection (2) of clause 84 clarifies that throughout this Part of the Bill, references to support provided under the main power in clause 85 include support provided under arrangements made with others.

237.     Subsection (3) defines when an asylum claim is to be treated as having been determined for the purposes of the support arrangements. A claim would be determined a prescribed number of days after either the Secretary of State's decision on an asylum application, or (where there has been an appeal) the final determination of the appeal. It is expected that this period will not be less than 14 days; this period of grace would allow a former asylum seeker time to make other arrangements before his stay in accommodation provided under Part VI ends. This provision would only apply to single asylum seekers or childless couples ; the effect of subsection (5) is that families with dependant children will continue to be eligible for support for as long as they remain in the country. Subsection (6) makes it clear however that they would cease to be eligible for support under the Secretary of State's scheme if the asylum seeker was recognised as a refugee or otherwise granted leave to enter or remain (because he would be entitled to transfer to the main benefits system).

238.     Subsection (7) gives the Secretary of State power to reach a decision on the age of a person claiming support. This provision is necessary, for example, because some asylum seekers claim to be minors when they are not.

Clause 85: Persons for whom support may be provided

239.     This clause contains the key support power conferred on the Secretary of State, and in particular sets out whom he may support. It sets out the core tests that will be applied when considering applications for assistance under these provisions.

240.     Subsection (1) provides that support may be provided for asylum seekers and their dependants who appear to the Secretary of State to be either destitute or who are likely to become destitute within a period to be prescribed in regulations; this latter provision will allow the Secretary of State to start making support arrangements in anticipation of destitution occurring. The power to provide support exists only so long as destitution (or the threat of it) exists; thus if someone assisted under these provisions ceases to be destitute, the Secretary of State will cease to be able to assist him. The support may either be provided by the Secretary of State (in practice the Home Office) directly, or under arrangements he makes with others who will provide support.

241.     Regulations can be made under subsection (2) to exclude people from entitlement under prescribed circumstances; for example, a person who had previously caused serious damage to property provided under the support arrangements might be excluded, or an asylum seeker who was entitled to benefits.

242.     Subsection (5) provides for regulations to be made setting out matters to be taken into account in determining the adequacy of accommodation for this purpose, while subsection (6) sets out certain matters which may not be taken into account in determining whether accommodation is adequate for this purpose. No account may be taken of whether the asylum seeker has any right to occupy accommodation (eg whether or not he has a tenancy or is a licensee), or the fact that the accommodation is shared with others, that it is of a temporary character (eg a short stay hostel), or the area in which it is located. Subsections (7) and (8) provide for the Secretary of State to make secondary legislation specifying what kinds of items or expenses are, or are not, to be treated as essential living needs and identifying matters to which he may or may not have regard in considering whether these needs are met.

243.     Subsections (9)-(11) provide that the Secretary of State may make the support subject to conditions which must be notified to the person in writing. These conditions could cover matters such as the behaviour of the applicant, his responsibilities as an occupier of property made available by the Secretary of State, or (for asylum seekers receiving assistance with living expenses only) a requirement for him to live at the address notified to the Home Office for the purpose of his asylum application. If a person is in breach of these conditions he could be evicted from the accommodation, and/or the support for living expenses ended.

Clause 86: Ways in which support may be provided

244.     This clause sets out the manner in which the Secretary of State may provide support for destitute asylum seekers. The extent of the support is set out in subsection (1); it may include accommodation, provision for essential living needs (including meals and personal care items), and provision for expenses associated with pursuing the asylum application; the last category would not extend to legal expenses, but would cover the costs of preparing and copying certain documents, and travelling to interviews. Only the principal asylum seeker (and not his dependants) would be eligible to claim these expenses. Where a person has adequate accommodation (eg because he can stay with friends or relatives) he may be provided with living expenses only. And where he has sufficient resources to meet living expenses, but cannot afford rent, he may be provided with accommodation only. Additionally, subsection (2) provides that in exceptional circumstances support may be given in other ways which go beyond the provision of accommodation, essential living expenses and expenses associated with the application until such time as the asylum seeker's claim for asylum has been determined.

245.     Subsection (3) provides that support should not normally be given by way of cash payments. The intention is that asylum seekers will be provided either with board and lodging together, or, if they are to cater for themselves, they will be given vouchers to be exchanged for food and other essentials at a shop or supermarket; they may be given a small weekly cash allowance to cover minor incidental expenses.

246.     Subsections (4)-(6) give the Secretary of State the power to make an order disapplying or repealing the provisions that limit the extent of cash payments.

Clause 87: Provision of support : supplemental rules

247.     Subsection (1) sets out factors to which the Secretary of State must have regard in providing accommodation. These are that the need for accommodation is only temporary pending determination of an asylum claim (so security of tenure need not be an issue), and the desirability of providing accommodation in areas where there is a ready supply (in contrast to areas such as London where there is an acute shortage of accommodation). He may also make regulations specifying further matters that he must take into account; regulations might cover such matters as the condition of the property.

248.     Subsection (2) prevents the Secretary of State from taking account of any preferences as to location that the asylum seeker may express. He may also make regulations setting out other factors he is required to ignore. Subsection (3) allows him to modify this and the previous provision by order.

249.     Subsection (5) provides that, in setting the level of support for essential living needs, the Secretary of State may limit the overall amount payable to any individual or family to a proportion of the level of income support generally available; in doing so he may recognise that the support is only of a temporary nature, and need not therefore include contributions to the replacement of items of furnishing or clothing that might be required in the longer term.

250.     Subsection (7) allows the Secretary of State to disregard any preference an asylum seeker may express as to the manner in which the support is to be provided. Thus, he may disregard the preference a single person might express for self contained accommodation and self-catering arrangements, instead making an offer of accommodation in a hostel that provides full board. If the asylum seeker declines to take up such an offer of accommodation the Secretary of State need not make any further offer.

Clause 88: Secretary of State's scheme for providing support

251.     This clause contains powers for the Secretary of State to make regulations governing the operation of the support scheme. By setting out a scheme the Secretary of State may indicate the way in which he would normally provide support, and at what level (although this would not limit his discretion); this would allow claimants and those advising them to know what they may expect.

252.     Regulations under subsection (2) would set out the circumstances under which payments may be made at a flat rate applicable to anyone meeting certain criteria (eg that support should be to the value of £x per adult and £y per child), and the circumstances under which the Secretary of State may disregard the flat rate payments and make special payments to meet particular needs (eg to someone whose particular medical condition gives rise to special needs).

253.     Regulations under subsection (3) may prescribe that, in determining whether and to what extent he should provide support, the Secretary of State must take into account the support or assets that might reasonably be expected to be available to an asylum seeker from other sources. This might include support from friends and relatives already in the country, or from the voluntary sector.

254.     Regulations under subsection (4) would allow the Secretary of State when deciding whether to provide support to an asylum seeker, or to continue to do so, to take into consideration whether the supported person has complied with any condition attached to the provision of support. This would include, for example, individuals who deliberately vandalised the property which they had been allocated. Regulations under subsection (5) would allow the Secretary of State to suspend or cease to provide support in certain circumstances. Subsection (6) makes it clear that these circumstances would include individuals who ceased to live in accommodation allocated under the Secretary of State's scheme or at an address notified to the Secretary of State.

255.     Regulations under subsection (7) would cover procedural matters, including the making of an application for support. It is envisaged that regulations might cover the form of an application, to whom it should be made, the information that the applicant might be required to supply (eg about his personal affairs and finances, or about other sources of support available to him in this country), and the other information that the Secretary of State might be able to rely on in assessing an application. They might also cover procedures and set time scales for notifying the Secretary of State of changes in circumstances that would lead to a reassessment of the asylum seeker's continued need for support (for example, where he gained access to other resources).

256.      Subsection (8) allows for the Secretary of State to make regulations allowing for the support scheme to pay for items which fall outside the specific definition of essential living needs.

Clause 89: Temporary provision of support

257.     There may be circumstances where an asylum seeker needs support before the Home Office has the opportunity to make a formal assessment as to whether there is an entitlement under the conditions of clause 85. In such cases the Secretary of State is empowered to provide support on an interim basis until a proper assessment is made, where he feels the person in question may be destitute; the support may take any form. The provision might be relied upon where it was necessary to make emergency provision for people arriving at a United Kingdom airport at a weekend, before the Home Office screening unit could make a normal assessment.

Clause 90: Provision of support by local authorities

258.     The specific functions of local authorities in relation to supporting asylum seekers under housing and social services legislation are removed by the provisions contained in this part of the Bill. Clause 90 empowers local authorities to provide accommodation and essential living needs for asylum seekers in accordance with the arrangements made by the Secretary of State under clause 85; the support might be provided to the Secretary of State or someone with whom he has contracted. There is no power for authorities to make such provision in other circumstances.

Clause 91: Local authority and other assistance for the Secretary of State

259.     The Secretary of State will be looking to the providers of social housing (essentially local authorities, registered social landlords and housing associations) for assistance in the provision and management of housing accommodation, and possibly in the provision of essential living needs where these are directly associated with the provision of accommodation. This clause will require such landlords to co-operate with the Secretary of State when he makes such a request, so far as is reasonable in the circumstances. What is reasonable would depend on the particular case. It would be reasonable for a landlord to co-operate providing he had suitable spare accommodation which he could put at the Secretary of State's disposal in return for appropriate reimbursement; it would not be reasonable to expect a housing association or registered social landlord to co-operate if this were in conflict with its constitution or articles of association.

260.     The clause also requires a local authority to provide the Secretary of State with such information about their housing stock as he requests. Collecting such information would help the Secretary of State to decide which landlords to seek assistance from; or it might be the precursor to his designating a "reception zone" under clause 92.

Clause 92: Reception zones

261.     The provisions of this clause are intended as reserve powers that the Secretary of State would only bring into play if he were unable to secure sufficient accommodation by voluntary agreement with the local authorities of an area that he feels is suitable for the accommodation of asylum seekers. It provides that, having consulted with the local authorities of an area, their associations, and such other persons as he thinks fit, he may make an order designating a reception zone. This would typically be an area comprising a of number of local authorities in which the Secretary of State felt there was spare housing accommodation, and the potential to construct a sound base for the support of asylum seekers.

262.     Once a reception zone has been designated, and it is apparent to the Secretary of State that there is unoccupied housing available in the area of a particular authority, it would be open for him to direct that authority to make available to him (or to a person with whom he has contracted for providing support) a specified amount of housing accommodation. Before making a direction, the Secretary of State is required to make regulations setting out the basis on which rent and other charges are to be calculated, when it is to be paid, and where responsibility for maintenance and repairs rests. The direction, which would last for no more than five years and would specify the amount of housing to be made available. The local authority would be reimbursed the reasonable rent and other charges for property made available in this way under the provisions of clause 101.

263.     Since immigration and asylum matters are reserved functions, it would be for the Home Secretary to exercise the powers in this clause. But bearing in mind that housing is a devolved function, he would want to do so only after consultation with the relevant devolved administrations in Wales, Scotland and Northern Ireland.

Clause 93 and Schedule 9 : Asylum Support Adjudicators

264.     This clause and Schedule create the office of Asylum Support Adjudicator. There will be a Chief Asylum Support Adjudicator, his deputy, and a number of other Asylum Support Adjudicators, all appointed by the Secretary of State. These adjudicators will be independent of the Secretary of State, hearing appeals against a refusal of support, or a cessation of support. The remuneration of the adjudicators and the costs of staffing their office are to be met by the Secretary of State, with Treasury approvals where requisite.

Clause 94: Appeals

265.     This clause provides that a person may appeal to an Asylum Support Adjudicator against a refusal of support, or the termination of support before the applicant's asylum application has been determined (eg when he is required to leave accommodation because of misbehaviour); no other matters may be considered by the adjudicator. If the adjudicator finds in favour of the applicant he may either require the Secretary of State to reconsider his decision, or he may substitute his own decision. There is to be no further route of appeal against the adjudicator's decision (although judicial review will be available). Where the adjudicator has rejected an appeal, that person has no right to make a further application for support under Part VI unless there has been a material change in his circumstances. This clause also provides that reasonable travelling costs incurred by an appellant to attend a hearing may be paid.

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Prepared: 21 June 1999