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


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

1

 

A

Bill

[AS AMENDED ON REPORT]

To

Make provision about asylum and immigration.                                                            

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and

consent of the Lords Spiritual and Temporal, and Commons, in this present

Parliament assembled, and by the authority of the same, as follows:—

Offences

1       

Assisting unlawful immigration

(1)   

At the end of section 25 of the Immigration Act 1971 (c. 77) (offence of assisting

unlawful immigration to member State) add—

“(7)   

In this section—

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(a)   

a reference to a member State includes a reference to a State on

a list prescribed for the purposes of this section by order of the

Secretary of State (to be known as the “Section 25 List of

Schengen Acquis States”), and

(b)   

a reference to a citizen of the European Union includes a

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reference to a person who is a national of a State on that list.

(8)   

An order under subsection (7)(a)—

(a)   

may be made only if the Secretary of State thinks it necessary for

the purpose of complying with the United Kingdom’s

obligations under the Community Treaties,

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(b)   

may include transitional, consequential or incidental provision,

(c)   

shall be made by statutory instrument, and

(d)   

shall be subject to annulment in pursuance of a resolution of

either House of Parliament.”

(2)   

In section 25C(9)(a) of that Act (forfeiture of vehicle, ship or aircraft) for

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“(within the meaning of section 25)” substitute “(for which purpose “member

 
HL Bill 8453/3
 
 

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

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State” and “immigration law” have the meanings given by section 25(2) and

(7))”.

2       

Entering United Kingdom without passport, &c.

(1)   

A person commits an offence if at a leave or asylum interview he does not have

with him an immigration document which—

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(a)   

is in force, and

(b)   

satisfactorily establishes his identity and nationality or citizenship.

(2)   

A person commits an offence if at a leave or asylum interview he does not have

with him, in respect of any dependent child with whom he claims to be

travelling or living, an immigration document which—

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(a)   

is in force, and

(b)   

satisfactorily establishes the child’s identity and nationality or

citizenship.

(3)   

But a person does not commit an offence under subsection (1) or (2) if—

(a)   

the interview referred to in that subsection takes place after the person

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has entered the United Kingdom, and

(b)   

within the period of three days beginning with the date of the interview

the person provides to an immigration officer or to the Secretary of

State a document of the kind referred to in that subsection.

(4)   

It is a defence for a person charged with an offence under subsection (1)—

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(a)   

to prove that he is an EEA national,

(b)   

to prove that he is a member of the family of an EEA national and that

he is exercising a right under the Community Treaties in respect of

entry to or residence in the United Kingdom,

(c)   

to prove that he has a reasonable excuse for not being in possession of

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a document of the kind specified in subsection (1),

(d)   

to produce a false immigration document and to prove that he used

that document as an immigration document for all purposes in

connection with his journey to the United Kingdom, or

(e)   

to prove that he travelled to the United Kingdom without, at any stage

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since he set out on the journey, having possession of an immigration

document.

(5)   

It is a defence for a person charged with an offence under subsection (2) in

respect of a child—

(a)   

to prove that the child is an EEA national,

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(b)   

to prove that the child is a member of the family of an EEA national and

that the child is exercising a right under the Community Treaties in

respect of entry to or residence in the United Kingdom,

(c)   

to prove that the person has a reasonable excuse for not being in

possession of a document of the kind specified in subsection (2),

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(d)   

to produce a false immigration document and to prove that it was used

as an immigration document for all purposes in connection with the

child’s journey to the United Kingdom, or

(e)   

to prove that he travelled to the United Kingdom with the child

without, at any stage since he set out on the journey, having possession

45

of an immigration document in respect of the child.

 

 

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

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(6)   

Where the charge for an offence under subsection (1) or (2) relates to an

interview which takes place after the defendant has entered the United

Kingdom—

(a)   

subsections (4)(c) and (5)(c) shall not apply, but

(b)   

it is a defence for the defendant to prove that he has a reasonable excuse

5

for not providing a document in accordance with subsection (3).

(7)   

For the purposes of subsections (4) to (6)—

(a)   

the fact that a document was deliberately destroyed or disposed of is

not a reasonable excuse for not being in possession of it or for not

providing it in accordance with subsection (3), unless it is shown that

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the destruction or disposal was—

(i)   

for a reasonable cause, or

(ii)   

beyond the control of the person charged with the offence, and

(b)   

in paragraph (a)(i) “reasonable cause” does not include the purpose

of—

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(i)   

delaying the handling or resolution of a claim or application or

the taking of a decision,

(ii)   

increasing the chances of success of a claim or application, or

(iii)   

complying with instructions or advice given by a person who

offers advice about, or facilitates, immigration into the United

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Kingdom, unless in the circumstances of the case it is

unreasonable to expect non-compliance with the instructions or

advice.

(8)   

A person shall be presumed for the purposes of this section not to have a

document with him if he fails to produce it to an immigration officer or official

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of the Secretary of State on request.

(9)   

A person guilty of an offence under this section shall be liable—

(a)   

on conviction on indictment, to imprisonment for a term not exceeding

two years, to a fine or to both, or

(b)   

on summary conviction, to imprisonment for a term not exceeding

30

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

both.

(10)   

If a constable or immigration officer reasonably suspects that a person has

committed an offence under this section he may arrest the person without

warrant.

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(11)   

An offence under this section shall be treated as—

(a)   

a relevant offence for the purposes of sections 28B and 28D of the

Immigration Act 1971 (c. 77) (search, entry and arrest), and

(b)   

an offence under Part III of that Act (criminal proceedings) for the

purposes of sections 28(4), 28E, 28G and 28H (search after arrest, &c.) of

40

that Act.

(12)   

In this section—

   

“EEA national” means a national of a State which is a contracting party to

the Agreement on the European Economic Area signed at Oporto on

2nd May 1992 (as it has effect from time to time),

45

   

“immigration document” means—

(a)   

a passport, and

 

 

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

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(b)   

a document which relates to a national of a State other than the

United Kingdom and which is designed to serve the same

purpose as a passport, and

   

“leave or asylum interview” means an interview with an immigration

officer or an official of the Secretary of State at which a person—

5

(a)   

seeks leave to enter or remain in the United Kingdom, or

(b)   

claims that to remove him from or require him to leave the

United Kingdom would breach the United Kingdom’s

obligations under the Refugee Convention or would be

unlawful under section 6 of the Human Rights Act 1998 (c. 42)

10

as being incompatible with his Convention rights.

(13)   

For the purposes of this section—

(a)   

a document which purports to be, or is designed to look like, an

immigration document, is a false immigration document, and

(b)   

an immigration document is a false immigration document if and in so

15

far as it is used—

(i)   

outside the period for which it is expressed to be valid,

(ii)   

contrary to provision for its use made by the person issuing it,

or

(iii)   

by or in respect of a person other than the person to or for whom

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it was issued.

(14)   

Section 11 of the Immigration Act 1971 (c. 77) shall have effect for the purpose

of the construction of a reference in this section to entering the United

Kingdom.

(15)   

In so far as this section extends to England and Wales, subsection (9)(b) shall,

25

until the commencement of section 154 of the Criminal Justice Act 2003 (c. 44)

(increased limit on magistrates’ power of imprisonment), have effect as if the

reference to twelve months were a reference to six months.

(16)   

In so far as this section extends to Scotland, subsection (9)(b) shall have effect

as if the reference to twelve months were a reference to six months.

30

(17)   

In so far as this section extends to Northern Ireland, subsection (9)(b) shall have

effect as if the reference to twelve months were a reference to six months.

3       

Immigration documents: forgery

(1)   

Section 5 of the Forgery and Counterfeiting Act 1981 (c. 45) (offences relating

to various documents) shall be amended as follows.

35

(2)   

After subsection (5)(f) (passports) insert—

“(fa)   

immigration documents;”.

(3)   

After subsection (8) add—

“(9)   

In subsection (5)(fa) “immigration document” means a card, adhesive

label or other instrument which satisfies subsection (10) or (11).

40

(10)   

A card, adhesive label or other instrument satisfies this subsection if

it—

(a)   

is designed to be given, in the exercise of a function under the

Immigration Acts (within the meaning of section 31 of the

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

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

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2004), to a person who has been granted leave to enter or remain

in the United Kingdom, and

(b)   

carries information (whether or not wholly or partly

electronically) about the leave granted.

(11)   

A card, adhesive label or other instrument satisfies this subsection if it

5

is given to a person to confirm a right of his under the Community

Treaties in respect of entry to or residence in the United Kingdom.”

4       

Trafficking people for exploitation

(1)   

A person commits an offence if he arranges or facilitates the arrival in the

United Kingdom of an individual (the “passenger”) and—

10

(a)   

he intends to exploit the passenger in the United Kingdom or

elsewhere, or

(b)   

he believes that another person is likely to exploit the passenger in the

United Kingdom or elsewhere.

(2)   

A person commits an offence if he arranges or facilitates travel within the

15

United Kingdom by an individual (the “passenger”) in respect of whom he

believes that an offence under subsection (1) may have been committed and—

(a)   

he intends to exploit the passenger in the United Kingdom or

elsewhere, or

(b)   

he believes that another person is likely to exploit the passenger in the

20

United Kingdom or elsewhere.

(3)   

A person commits an offence if he arranges or facilitates the departure from the

United Kingdom of an individual (the “passenger”) and—

(a)   

he intends to exploit the passenger outside the United Kingdom, or

(b)   

he believes that another person is likely to exploit the passenger outside

25

the United Kingdom.

(4)   

For the purposes of this section a person is exploited if (and only if)—

(a)   

he is the victim of behaviour that contravenes Article 4 of the Human

Rights Convention (slavery and forced labour),

(b)   

he is encouraged, required or expected to do anything as a result of

30

which he or another person would commit an offence under the

Human Organ Transplants Act 1989 (c. 31) or the Human Organ

Transplants (Northern Ireland) Order 1989 (S.I. 1989/2408 (N.I. 21)),

(c)   

he is subjected to force, threats or deception designed to induce him—

(i)   

to provide services of any kind,

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(ii)   

to provide another person with benefits of any kind, or

(iii)   

to enable another person to acquire benefits of any kind, or

(d)   

he is requested or induced to undertake any activity, having been

chosen as the subject of the request or inducement on the grounds

that—

40

(i)   

he is mentally or physically ill or disabled, he is young or he has

a family relationship with a person, and

(ii)   

a person without the illness, disability, youth or family

relationship would be likely to refuse the request or resist the

inducement.

45

(5)   

A person guilty of an offence under this section shall be liable—

 

 

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

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(a)   

on conviction on indictment, to imprisonment for a term not exceeding

14 years, to a fine or to both, or

(b)   

on summary conviction, to imprisonment for a term not exceeding

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

both.

5

5       

Section 4: supplemental

(1)   

Subsections (1) to (3) of section 4 apply to anything done—

(a)   

in the United Kingdom,

(b)   

outside the United Kingdom by an individual to whom subsection (2)

below applies, or

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(c)   

outside the United Kingdom by a body incorporated under the law of

a part of the United Kingdom.

(2)   

This subsection applies to—

(a)   

a British citizen,

(b)   

a British overseas territories citizen,

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(c)   

a British National (Overseas),

(d)   

a British Overseas citizen,

(e)   

a person who is a British subject under the British Nationality Act 1981

(c. 61), and

(f)   

a British protected person within the meaning of that Act.

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(3)   

In section 4(4)(a) “the Human Rights Convention” means the Convention for

the Protection of Human Rights and Fundamental Freedoms agreed by the

Council of Europe at Rome on 4th November 1950.

(4)   

Sections 25C and 25D of the Immigration Act 1971 (c. 77) (forfeiture or

detention of vehicle, &c.) shall apply in relation to an offence under section 4

25

of this Act as they apply in relation to an offence under section 25 of that Act.

(5)   

At the end of section 25C(9)(b), (10)(b) and (11) of that Act add “or section 4 of

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

(trafficking people for exploitation).”

(6)   

After paragraph 2(n) of Schedule 4 to the Criminal Justice and Court Services

30

Act 2000 (c. 43) (offence against child) insert—

“(o)   

an offence under section 4 of the Asylum and Immigration

(Treatment of Claimants, etc.) Act 2004 (trafficking people for

exploitation).”

(7)   

At the end of paragraph 4 of Schedule 2 to the Proceeds of Crime Act 2002

35

(c. 29) (lifestyle offences: England and Wales: people trafficking) add—

     “(3)  

An offence under section 4 of the Asylum and Immigration

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

(8)   

At the end of paragraph 4 of Schedule 4 to the Proceeds of Crime Act 2002

(lifestyle offences: Scotland: people trafficking) add “or under section 4 of the

40

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

(exploitation)”.

(9)   

At the end of paragraph 4 of Schedule 5 to the Proceeds of Crime Act 2002

 

 

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

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(lifestyle offences: Northern Ireland: people trafficking) add—

     “(3)  

An offence under section 4 of the Asylum and Immigration

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

(10)   

After paragraph 2(l) of the Schedule to the Protection of Children and

Vulnerable Adults (Northern Ireland) Order 2003 (S.I. 2003/417 (N.I. 4))

5

(offence against child) insert—

“(m)   

an offence under section 4 of the Asylum and Immigration

(Treatment of Claimants, etc.) Act 2004 (trafficking people for

exploitation).”

(11)   

In so far as section 4 extends to England and Wales, subsection (5)(b) shall, until

10

the commencement of section 154 of the Criminal Justice Act 2003 (c. 44)

(increased limit on magistrates’ power of imprisonment), have effect as if the

reference to twelve months were a reference to six months.

(12)   

In so far as section 4 extends to Scotland, subsection (5)(b) shall have effect as

if the reference to twelve months were a reference to six months.

15

(13)   

In so far as section 4 extends to Northern Ireland, subsection (5)(b) shall have

effect as if the reference to twelve months were a reference to six months.

6       

Employment

(1)   

For section 8(4) of the Asylum and Immigration Act 1996 (c. 49) (employment:

penalty) substitute—

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“(4)   

A person guilty of an offence under this section shall be liable—

(a)   

on conviction on indictment, to a fine, or

(b)   

on summary conviction, to a fine not exceeding the statutory

maximum.”

(2)   

Section 8(9) of that Act (extension of time limit for prosecution) shall cease to

25

have effect.

7       

Advice of Director of Public Prosecutions

In section 3(2) of the Prosecution of Offences Act 1985 (c. 23) (functions of

Director of Public Prosecutions) after paragraph (eb) insert—

“(ec)   

to give, to such extent as he considers appropriate, advice to

30

immigration officers on matters relating to criminal offences;”.

Treatment of claimants

8       

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

35

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

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,

40

(b)   

is designed or likely to mislead, or

 

 

 
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