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Asylum and Immigration (Treatment of Claimants, etc.) Bill


Asylum and Immigration (Treatment of Claimants, etc.) Bill

7

 

Treatment of claimants

7       

Claimant’s credibility

(1)   

In determining whether to believe a statement made by or on behalf of a person

who makes an asylum claim or a human rights claim, a deciding authority shall

take account, as damaging the claimant’s credibility, of any behaviour to which

5

this section applies.

(2)   

This section applies to any behaviour by the claimant that the deciding

authority thinks—

(a)   

is designed or likely to conceal information,

(b)   

is designed or likely to mislead, or

10

(c)   

is designed or likely to obstruct or delay the handling or resolution of

the claim or the taking of a decision in relation to the claimant.

(3)   

Without prejudice to the generality of subsection (2) the following kinds of

behaviour shall be treated as designed or likely to conceal information or to

mislead—

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(a)   

failure without reasonable explanation to produce a passport on

request to an immigration officer or to the Secretary of State,

(b)   

the production of a document which is not a valid passport as if it were,

(c)   

the destruction, alteration or disposal, in each case without reasonable

explanation, of a passport,

20

(d)   

the destruction, alteration or disposal, in each case without reasonable

explanation, of a ticket or other document connected with travel, and

(e)   

failure without reasonable explanation to answer a question asked by a

deciding authority.

(4)   

This section also applies to failure by the claimant to take advantage of a

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reasonable opportunity to make an asylum claim or human rights claim while

in a safe country.

(5)   

This section also applies to failure by the claimant to make an asylum claim or

human rights claim before being notified of an immigration decision, unless

the claim relies wholly on matters arising after the notification.

30

(6)   

This section also applies to failure by the claimant to make an asylum claim or

human rights claim before being arrested under an immigration provision,

unless—

(a)   

he had no reasonable opportunity to make the claim before the arrest,

or

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(b)   

the claim relies wholly on matters arising after the arrest.

(7)   

In this section—

   

“asylum claim” has the meaning given by section 113(1) of the

Nationality, Immigration and Asylum Act 2002 (c. 41) (subject to

subsection (8) below),

40

   

“deciding authority” means—

(a)   

an immigration officer,

(b)   

the Secretary of State,

(c)   

the Asylum and Immigration Tribunal, or

(d)   

the Special Immigration Appeals Commission,

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Asylum and Immigration (Treatment of Claimants, etc.) Bill

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“human rights claim” has the meaning given by section 113(1) of the

Nationality, Immigration and Asylum Act 2002 (c. 41) (subject to

subsection (9) below),

   

“immigration decision” means—

(a)   

refusal of leave to enter the United Kingdom,

5

(b)   

refusal to vary a person’s leave to enter or remain in the United

Kingdom,

(c)   

grant of leave to enter or remain in the United Kingdom,

(d)   

a decision that a person is to be removed from the United

Kingdom by way of directions under section 10(1)(a), (b), (ba) or

10

(c) of the Immigration and Asylum Act 1999 (c. 33) (removal of

persons unlawfully in United Kingdom),

(e)   

a decision that a person is to be removed from the United

Kingdom by way of directions under paragraphs 8 to 12 of

Schedule 2 to the Immigration Act 1971 (c. 77) (control of entry:

15

removal),

(f)   

a decision to make a deportation order under section 5(1) of that

Act, and

(g)   

a decision to take action in relation to a person in connection

with extradition from the United Kingdom,

20

   

“immigration provision” means—

(a)   

sections 28A, 28AA, 28B, 28C and 28CA of the Immigration Act

1971 (immigration offences: enforcement),

(b)   

paragraph 17 of Schedule 2 to that Act (control of entry),

(c)   

section 8 of this Act, and

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(d)   

a provision of the Extradition Act 1989 (c. 33) or 2003 (c. 41),

   

“notified” means notified in such manner as may be specified by

regulations made by the Secretary of State,

   

“passport” includes a document which relates to a national of a country

other than the United Kingdom and which is designed to serve the

30

same purpose as a passport, and

   

“safe country” means a country to which Part 2 of Schedule 3 applies.

(8)   

A passport produced by or on behalf of a person is valid for the purposes of

subsection (3)(b) if it—

(a)   

relates to the person by whom or on whose behalf it is produced,

35

(b)   

has not been altered otherwise than by or with the permission of the

authority who issued it, and

(c)   

was not obtained by deception.

(9)   

In subsection (4) a reference to an asylum claim or human rights claim shall be

treated as including a reference to a claim of entitlement to remain in a country

40

other than the United Kingdom made by reference to the rights that a person

invokes in making an asylum claim or a human rights claim in the United

Kingdom.

(10)   

Regulations under subsection (5) specifying a manner of notification may, in

particular—

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(a)   

apply or refer to regulations under section 105 of the Nationality,

Immigration and Asylum Act 2002 (notice of immigration decisions);

(b)   

make provision similar to provision that is or could be made by

regulations under that section;

 

 

Asylum and Immigration (Treatment of Claimants, etc.) Bill

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(c)   

modify a provision of regulations under that section in its effect for the

purpose of regulations under this section;

(d)   

provide for notice to be treated as received at a specified time if sent to

a specified class of place in a specified manner.

(11)   

Regulations under subsection (5) specifying a manner of notification—

5

(a)   

may make incidental, consequential or transitional provision,

(b)   

shall be made by statutory instrument, and

(c)   

shall be subject to annulment in pursuance of a resolution of either

House of Parliament.

(12)   

This section shall not prevent a deciding authority from determining not to

10

believe a statement on the grounds of behaviour to which this section does not

apply.

(13)   

Before the coming into force of section 14 a reference in this section to the

Asylum and Immigration Tribunal shall be treated as a reference to—

(a)   

an adjudicator appointed, or treated as if appointed, under section 81

15

of the Nationality, Immigration and Asylum Act 2002 (c. 41) (appeals),

and

(b)   

the Immigration Appeal Tribunal.

8       

Failed asylum seekers: withdrawal of support

(1)   

In Schedule 3 to the Nationality, Immigration and Asylum Act 2002

20

(withholding and withdrawal of support) after paragraph 7 insert—

“Fifth class of ineligible person: failed asylum-seeker with family

7A         

(1)  Paragraph 1 applies to a person if—

(a)   

he—

(i)   

is treated as an asylum-seeker for the purposes of Part

25

VI of the Immigration and Asylum Act 1999 (c. 33)

(support) by virtue only of section 94(3A) (failed

asylum-seeker with dependent child), or

(ii)   

is treated as an asylum-seeker for the purposes of Part

2 of this Act by virtue only of section 18(2),

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(b)   

the Secretary of State has certified that in his opinion the

person has failed without reasonable excuse to take

reasonable steps—

(i)   

to leave the United Kingdom voluntarily, or

(ii)   

to place himself in a position in which he is able to

35

leave the United Kingdom voluntarily,

(c)   

the person has received a copy of the Secretary of State’s

certificate, and

(d)   

the period of 14 days, beginning with the date on which the

person receives the copy of the certificate, has elapsed.

40

(2)        

Paragraph 1 also applies to a dependant of a person to whom that

paragraph applies by virtue of sub-paragraph (1).

(3)        

For the purpose of sub-paragraph (1)(d) if the Secretary of State

sends a copy of a certificate by first class post to a person’s last

 

 

Asylum and Immigration (Treatment of Claimants, etc.) Bill

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known address, the person shall be treated as receiving the copy on

the second day after the day on which it was posted.

(4)        

The Secretary of State may by regulations vary the period specified

in sub-paragraph (1)(d).”

(2)   

In paragraph 14(1) and (2) of Schedule 3 to the Nationality, Immigration and

5

Asylum Act 2002 (c. 41) (local authority to notify Secretary of State) for

“paragraph 6 or 7” substitute “paragraph 6, 7 or 7A”.

(3)   

No appeal may be brought under section 103 of the Immigration and Asylum

Act 1999 (c. 33) (asylum support appeal) against a decision—

(a)   

that by virtue of a provision of Schedule 3 to the Nationality,

10

Immigration and Asylum Act 2002 other than paragraph 7A a person is

not qualified to receive support, or

(b)   

on the grounds of the application of a provision of that Schedule other

than paragraph 7A, to stop providing support to a person.

(4)   

On an appeal under section 103 of the Immigration and Asylum Act 1999

15

against a decision made by virtue of paragraph 7A of Schedule 3 to the

Nationality, Immigration and Asylum Act 2002 the adjudicator may, in

particular—

(a)   

annul a certificate of the Secretary of State issued for the purposes of

that paragraph;

20

(b)   

require the Secretary of State to reconsider the matters certified.

(5)   

An order under section 34 providing for this section to come into force may, in

particular, provide for this section to have effect with specified modifications

before the coming into force of a provision of the Nationality, Immigration and

Asylum Act 2002.

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Enforcement powers

9       

Immigration officer: power of arrest

(1)   

Where an immigration officer in the course of exercising a function under the

Immigration Acts forms a reasonable suspicion that a person has committed or

attempted to commit an offence listed in subsection (2), he may arrest the

30

person without warrant.

(2)   

Those offences are—

(a)   

the offence of conspiracy at common law (in relation to conspiracy to

defraud),

(b)   

at common law in Scotland, any of the following offences—

35

(i)   

fraud,

(ii)   

conspiracy to defraud,

(iii)   

uttering and fraud,

(iv)   

bigamy,

(v)   

theft, and

40

(vi)   

reset,

(c)   

an offence under section 57 of the Offences against the Person Act 1861

(c. 100) (bigamy),

(d)   

an offence under section 3 or 4 of the Perjury Act 1911 (c. 6) (false

statements),

45

 

 

Asylum and Immigration (Treatment of Claimants, etc.) Bill

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(e)   

an offence under section 7 of that Act (aiding, abetting &c.) if it relates

to an offence under section 3 or 4 of that Act,

(f)   

an offence under section 53 of the Registration of Births, Deaths and

Marriages (Scotland) Act 1965 (c. 49) (knowingly giving false

information to district registrar, &c.),

5

(g)   

an offence under any of the following provisions of the Theft Act 1968

(c. 60)—

(i)   

section 1 (theft),

(ii)   

section 15 (obtaining property by deception),

(iii)   

section 16 (obtaining pecuniary advantage by deception),

10

(iv)   

section 17 (false accounting), and

(v)   

section 22 (handling stolen goods),

(h)   

an offence under section 1, 15, 16, 17 or 21 of the Theft Act (Northern

Ireland) 1969 (c. 16) (N.I.),

(i)   

an offence under section 1 or 2 of the Theft Act 1978 (c. 31) (obtaining

15

services, or evading liability, by deception),

(j)   

an offence under Article 3 or 4 of the Theft (Northern Ireland) Order

1978 (S.I. 1978/1407 (N.I. 23)),

(k)   

an offence under Article 8 or 9 of the Perjury (Northern Ireland) Order

1979 (S.I. 1979/1714 (N.I. 19)),

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(l)   

an offence under Article 12 of that Order if it relates to an offence under

Article 8 or 9 of that Order, and

(m)   

an offence under any of the following provisions of the Forgery and

Counterfeiting Act 1981 (c. 45)—

(i)   

section 1 (forgery),

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(ii)   

section 2 (copying false instrument),

(iii)   

section 3 (using false instrument),

(iv)   

section 4 (using copy of false instrument), and

(v)   

section 5(1) and (3) (false documents).

(3)   

The following provisions of the Immigration Act 1971 (c. 77) shall have effect

30

for the purpose of making, or in connection with, an arrest under this section

as they have effect for the purpose of making, or in connection with, arrests for

offences under that Act—

(a)   

section 28C (entry and search before arrest),

(b)   

sections 28E and 28F (entry and search after arrest),

35

(c)   

sections 28G and 28H (search of arrested person), and

(d)   

section 28I (seized material).

(4)   

In section 19D(5)(a) of the Race Relations Act 1976 (c. 74) (permitted

discrimination)—

(a)   

for “(within the meaning of section 158 of the Nationality, Immigration

40

and Asylum Act 2002)” substitute “(within the meaning of section 30 of

the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004)”,

and

(b)   

at the end add “and excluding section 9 of the Asylum and Immigration

(Treatment of Claimants, etc.) Act 2004”.

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10      

Fingerprinting

(1)   

Section 141 of the Immigration and Asylum Act 1999 (c. 33) (fingerprinting)

shall be amended as follows.

 

 

Asylum and Immigration (Treatment of Claimants, etc.) Bill

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(2)   

In subsection (7) for paragraph (c) substitute—

“(c)   

any person (“C”) in respect of whom a relevant immigration

decision has been made;”.

(3)   

In subsection (8) for paragraph (c) substitute—

“(c)   

for C, on the service on him of notice of the relevant

5

immigration decision by virtue of section 105 of the Nationality,

Immigration and Asylum Act 2002 (c. 41);”.

(4)   

In subsection (9) for paragraph (c) substitute—

“(c)   

for C—

(i)   

the time when the relevant immigration decision ceases

10

to have effect, whether as a result of an appeal or

otherwise, or

(ii)   

if a deportation order has been made against him, its

revocation or its otherwise ceasing to have effect;”.

(5)   

After subsection (15) add—

15

“(16)   

“Relevant immigration decision” means a decision of the kind

mentioned in section 82(2)(g), (h), (i), (j) or (k) of the Nationality,

Immigration and Asylum Act 2002.”

11      

Information about passengers

In paragraph 27B of Schedule 2 to the Immigration Act 1971 (c. 77) (control on

20

entry: provision of information about passengers) after sub-paragraph (4)

insert—

    “(4A)  

The officer may ask the carrier to provide a copy of all or part of a

document that relates to a passenger and contains passenger

information.”

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12      

Retention of documents

Where a document comes into the possession of the Secretary of State or an

immigration officer in the course of the exercise of an immigration function, the

Secretary of State or an immigration officer may retain the document while he

suspects that—

30

(a)   

a person to whom the document relates may be liable to removal from

the United Kingdom in accordance with a provision of the Immigration

Acts, and

(b)   

retention of the document may facilitate the removal.

13      

Control of entry

35

After paragraph 2A(2) of Schedule 2 to the Immigration Act 1971 (control of

entry: persons arriving with leave to enter) insert—

    “(2A)  

Where the person’s leave to enter derives, by virtue of section 3A(3),

from an entry clearance, he may also be examined by an immigration

officer for the purpose of establishing whether the leave should be

40

cancelled on the grounds that the person’s purpose in arriving in the

United Kingdom is different from the purpose specified in the entry

clearance.”

 

 

 
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