Select Committee on Delegated Powers and Deregulation Twenty-Second Report


Memorandum by the Home Office

1.  This Memorandum, prepared by the Home Office, identifies those provisions in the Immigration and Asylum Bill which confer powers to make delegated legislation. It describes the purpose of every such power, explains why the matter is to be left to delegated legislation and explains the degree of Parliamentary control involved.


41.  The Bill includes provisions which touch on all areas of the immigration and asylum system. There are provisions which address the conditions which will apply to persons before they come to the United Kingdom; provisions which will affect the way in which persons are dealt with at ports when arriving in the United Kingdom; and provisions which will affect how they are dealt with once they are here. The Bill contains provisions which are intended to contribute to genuine travellers being dealt with more quickly and, on the other hand, provisions for combating illegal entry and strengthening powers to deal with other persons not entitled to enter or remain in the country. The Bill contains new support arrangements for asylum seekers in genuine need; provides for the regulation of immigration advisers; and makes new provision for the grant of bail to persons detained under immigration legislation. The Bill also clarifies or strengthens some existing powers and offences.


42.  Under present legislation, persons refused an entry clearance as a visitor have no right of appeal against that decision. Among the provisions in the Bill which apply to persons before they come to the United Kingdom is one for a streamlined right of appeal for visitors who are refused an entry clearance to visit a family member in the United Kingdom.

43.  The Bill also includes a provision for applicants for an entry clearance to be required to provide, or arrange for the provision of, a financial security (eg a bond) to be provided before entry clearance is given as a means of securing that the applicant will, if admitted to the United Kingdom, leave at the end of the proposed stay. Immigration rules will specify the circumstances in which a financial security will be required, the maximum amount and the circumstances in which the financial security may be re-paid or forfeited. A pilot scheme will be run to test the merits of such a scheme before consideration is given to its wider introduction.


44.  The Bill provides for greater flexibility in the way leave to enter the United Kingdom may be granted: currently it has to be given in writing at a port of entry. It will allow additional forms and manners in which leave to enter may be given to be specified by order. Also, the Secretary of State may stipulate that a visa or other entry clearance may be treated as leave to enter. This will mean that holders will be able to pass through port control with only a quick check on identity and on the rightful ownership of the travel document and entry clearance, unless there is a need to examine for change of circumstances. The power will enable other changes to be made in future, for example to exploit new technology, to speed the clearance of passengers through the immigration controls, and to facilitate the more efficient use of resources.

45.  There are other provisions in the Bill relating to the operation of controls at ports of entry. These include:

  • provision to extend the present power to require information from carriers about their passengers and a new power to require advance notification by carriers of the arrival of passengers who are not nationals of the European Economic Area;
  • provision to create statutory gateways to allow information to be exchanged for specified purposes between the Immigration Service, the police and HM Customs and Excise. The Bill will enable further purposes to be specified and additional gateways with other agencies to be established in future by order;
  • enabling the Secretary of State to direct that certain prescribed types of facilities are to be provided free of charge at a port at which a control zone for immigration purposes has been designated;
  • strengthening existing carriers' liability legislation to facilitate the collection of any charges incurred by carriers in bringing inadequately documented passengers to the United Kingdom.


46.  The Bill includes provisions to reform the immigration and asylum appeals system. The current system, which provides for successive avenues of appeal, will be replaced by a comprehensive one-stop right of appeal for those who were lawfully present or held a valid entry clearance when they applied for leave to enter or remain, for a variation of leave or whose leave to enter or remain has been varied. Persons claiming asylum or an entitlement under the European Convention on Human Rights (ECHR) who are refused and required to leave the United Kingdom will have a right of appeal even if they made their claim when not lawfully present here. The Bill also contains provisions to replace section 2 of the Asylum and Immigration Act 1996 regarding the certification of asylum claims by the Secretary of State in third country cases.

47.  The Bill provides that for those applicants who are lawfully present or holding a valid entry clearance or work permit when they make their claim the comprehensive one-stop appeal will address all factors in a case falling under the Immigration Rules or a published policy of the Secretary of State which appellants will be expected to set out with the grounds of appeal. In most cases, those who are in the United Kingdom unlawfully (i.e. overstayers and illegal entrants), will have no right of appeal and will be subject to administrative removal rather than deportation. But where a person who is in the United Kingdom unlawfully makes a claim to stay on asylum or ECHR grounds, they will have a right of appeal confined to asylum and ECHR issues only. The Bill makes provision for people who have overstayed their leave to enter or remain to make applications for leave to remain within a prescribed period and before clause 7 of the Bill comes into force. The effect of the provision for those who do so is to preserve current appeal rights against deportation after the provisions of the Bill come into force.


48.  The Bill will create new support arrangements for asylum seekers. The Bill will:

  • remove from the main benefits system those subject to immigration control in certain respects, including those whose only status here is as an asylum seeker. Unaccompanied children seeking asylum will continue to be dealt with under current arrangements;
  • create a new safety net for asylum seekers in genuine need. The scheme will be funded and administered nationally by the Home Office, thus lifting the current burden on local authorities;
  • provide accommodation with no choice about location. Other support will mainly be provided in kind (e.g. vouchers or directly) rather than by cash payments;
  • create a system for the review of decisions to refuse or to withdraw support.


49.  The Bill contains other provisions affecting persons after they have entered the United Kingdom. These include:

  • a provision for a power to set out in regulations the fees to be paid for processing applications for extensions of stay, changes in conditions of stay, leave to remain and the entry of duplicate stamps in new passports.
  • a provision specifying which members of diplomatic missions are exempt from immigration control; and providing for the imposition of leave to remain to certain people who cease to be so exempt;
  • a provision for a code of practice on the measures that employers are to take in order to avoid unlawful discrimination when making checks under Section 8 of the Asylum and Immigration Act 1996 to establish that applicants for employment are entitled to work in the United Kingdom.


50.  The Bill sets out provisions for the regulation of immigration advisers. They provide for the appointment of an Immigration Services Commissioner to administer this. Only persons who register with the Commissioner, or persons authorised by the various legal professional bodies (such as the Law Society or Bar Council), or who fall into certain other categories, will be able to give immigration advice or provide immigration services. The Bill sets out the criteria for the appointment of the Commissioner, his deputy and staff and their funding. It makes provision for an Immigration Services Tribunal before which the Commissioner may lay disciplinary charges and to which aggrieved persons may appeal against certain findings of the Commissioner. It also creates an offence of giving immigration advice or providing immigration services when not permitted to do so; and gives the courts power to restrain unauthorised persons from giving immigration advice or providing immigration services.


51.  The Bill contains provisions for a new civil penalty on persons responsible for the transport of clandestine entrants to the United Kingdom. The new civil penalty is additional to and separate from existing carriers' liability legislation which the Bill is strengthening. The civil penalty will apply to all vehicles, ships, or aircraft bringing clandestine entrants to the United Kingdom. The Bill provides the power to detain vehicles, ships or aircraft as security until all charges for the carriage of illegal entrants have been paid. The Bill requires the Secretary of State to issue a code of practice setting out the procedures that should be followed by transporters such as road hauliers and ferry companies to prevent their vehicles being used for the purpose of clandestine entry.


52.  The Bill contains procedural measures to increase the effectiveness of existing provisions in the Immigration Rules to prevent the abuse of the immigration system by those who are prepared to enter into marriage simply as a means to obtain settlement in the United Kingdom. Registrars will be given the power to request evidence of name, age, marital status and nationality from couples. This will be underpinned by a power for the registrar to refuse to give authority for the marriage where the registrar is not satisfied that a person is free, legally, to contract the marriage. The existing procedure under which a superintendent registrar may authorise a marriage by a certificate with a licence is to be abolished. At the same time, the existing notice period for a superintendent registrar to issue a certificate without a licence is to be reduced from 21 days to 15 days. In addition, notice will need to be given personally by each party before the superintendent registrar in the registration district where they reside, and the notice will have to state their nationality. A duty is also to be placed on registrars to report to the Home Office those marriages suspected of having been arranged solely for the purpose of evading immigration controls. However, registrars will have no power to refuse to marry on immigration grounds. Only where they are not satisfied that the parties are free to marry - for example it appears one is already married.


53.  The Bill contains a number of measures to strengthen powers of enforcement of the immigration law and tackle clandestine entry. The measures include:

  • extending the powers of immigration officers to enable them to undertake more operations without the presence of police officers;
  • extending existing criminal offences under the Immigration Act 1971 (the 1971 Act) regarding deception and the making of false statements; and
  • extending the powers to fingerprint to, for example, people who are to be removed or deported, inadequately documented passengers who have no reasonable explanation for their lack of documents, and persons arrested under Schedule 2 to the 1971 Act.


54.  The Bill includes provisions for reform of the arrangements for detaining persons under immigration legislation. It introduces a system of routine bail hearings for persons detained for immigration control purposes and provides for certain bail hearings, both under the Bill and the 1971 Act, to be heard by magistrates. The Bill also puts on a statutory footing the arrangements for the management and operation of immigration detention centres, including provisions setting out the powers of detainee custody officers.


55.  The Bill is divided into 10 parts:

  • Part I contains various provisions to simplify the way in which the immigration control is to be operated; to provide continuation of leave pending decision; to enable charges for after-entry applications to be levied in certain circumstances to be specified in secondary legislation; to clarify responsibility for the provision of facilities for immigration control at ports free of charge; to strengthen existing powers regarding access to and exchange of information; to extend existing offences of deception and the making of false statements; and to provide for the removal of certain persons unlawfully in the United Kingdom;
  • Part II deals with penalties for carrying clandestine entrants to the United Kingdom and the strengthening of existing carriers' liability legislation. It also makes further provision with regard to forfeiture of transporters used in an offence of facilitation;
  • Part III deals with bail hearings for detained persons;
  • Part IV deals with immigration and asylum appeals;
  • Part V deals with the regulation of immigration advisers and immigration service providers;
  • Part VI deals with support arrangements for asylum seekers;
  • Part VII creates powers for immigration officers to arrest and search and for the fingerprinting of certain persons;
  • Part VIII deals with the management and operation of detention centres;
  • Part IX deals with the marriage registrar's certificates procedures; and
  • Part X contains miscellaneous and supplemental provisions on the making of subordinate legislation, interpretation, the title of the Act, commencement and extent.


56.  Clause 154 of the Bill makes general provision about rules regulations and orders made under it.

57.  Subsection (1) of that clause provides that any power to make rules, regulations or orders conferred by the Bill is exercisable by statutory instrument.

58.  Subsection (2) enables any such statutory instrument to: contain incidental, supplemental, consequential and transitional provision; make different provision for different cases or descriptions of case; and make different provision for different areas. (The latter provision in particular will permit provision to be made in respect of the commencement of Part VI of the Bill local authority by local authority. It may be necessary to adopt this approach having regard to the difficulty of transferring all asylum seekers and their dependants currently being supported by local authorities under the National Assistance Act 1948 to the Secretary of State's support scheme at once. The need to transfer may be more pressing in some areas than others.)

59.  Subsections (3) to (5) then provide for the Parliamentary procedure applicable to such instruments. The procedure applicable to each power identified below is discussed in the context of that power.

60.  Various provisions of the Bill refer to certain matters being prescribed. Under clause 155(1) (the interpretation provision), "prescribed" means prescribed by regulations made by the Secretary of State.

61.  In this memorandum:

    "the 1971 Act" means the Immigration Act 1971;

    "the 1988 Act" means the Immigration Act 1988;

    "the 1993 Act" means the Immigration and Asylum Appeals Act 1993; and

    "the 1996 Act" means the Asylum and Immigration Act 1996.

62.  This memorandum lists and explains all those provisions of the Bill which confer power (whether by statutory instrument or otherwise) to lay down rules for categories of case, and which are therefore delegated "legislation" in the widest sense of that term. Where the power is not exercisable by statutory instrument, the reason for this is explained. However, the following kinds of administrative direction are nevertheless not thought to have the character of delegated legislation and are not further discussed:

  • Schedule 2, paragraph 6: power to direct the times and places at which the Immigration Appeal Tribunal must sit.
  • Schedule 2, paragraph(3): power to determine the composition of the Immigration Appeal Tribunal in respect of a case or category of case.
  • Schedule 3, paragraph 4: power to direct the times and places at which the adjudicators must sit.
  • Schedule 3, paragraph 6(3): power to determine the number of adjudicators to deal with a case or a category of case.
  • Schedule 7, paragraph 5 - power to determine times and places where Immigration Services tribunal is to sit.
  • Schedule 9, paragraph 1(2) - power to Chief Asylum Support Adjudicator to give directions to asylum support adjudicators.
  • Schedule 9 paragraph 7 - power for Secretary of State to determine times and places asylum adjudicators are to sit.

If the Committee is of a different view, the Home Office would be happy to provide a supplementary memorandum on these powers.

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