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


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

25

 

(8)   

The Secretary of State—

(a)   

may make rules about arrangements for electronic monitoring for the

purposes of this section, and

(b)   

when he thinks that satisfactory arrangements for electronic

monitoring are available in respect of an area, shall notify persons

5

likely to be in a position to exercise power under this section in respect

of the area.

(9)   

Rules under subsection (8)(a) may, in particular, require that arrangements for

electronic monitoring impose on a person of a specified description

responsibility for specified aspects of the operation of the arrangements.

10

(10)   

A requirement to cooperate with electronic monitoring—

(a)   

shall comply with rules under subsection (8)(a), and

(b)   

may not be imposed in respect of an adult who is or is expected to be in

an area unless the person imposing the requirement has received a

notification from the Secretary of State under subsection (8)(b) in

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respect of that area.

(11)   

Rules under subsection (8)(a)—

(a)   

may include incidental, consequential or transitional provision,

(b)   

may make provision generally or only in relation to specified cases,

circumstances or areas,

20

(c)   

shall be made by statutory instrument, and

(d)   

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

House of Parliament.

(12)   

Before the commencement of section 15 a reference in this section to the

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

25

(a)   

a person appointed, or treated as if appointed, as an adjudicator under

section 81 of the Nationality, Immigration and Asylum Act 2002 (c. 41)

(appeals), and

(b)   

the Immigration Appeal Tribunal.

Immigration services

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24      

Provision of immigration services

(1)   

For section 84(2) and (3) of the Immigration and Asylum Act 1999 (c. 33)

(person qualified to provide immigration services) substitute—

“(2)   

A person is a qualified person if he is—

(a)   

a registered person,

35

(b)   

authorised by a designated professional body to practise as a

member of the profession whose members the body regulates,

(c)   

the equivalent in an EEA State of—

(i)   

a registered person, or

(ii)   

a person within paragraph (b),

40

(d)   

a person permitted, by virtue of exemption from a prohibition,

to provide in an EEA State advice or services equivalent to

immigration advice or services, or

 

 

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

26

 

(e)   

acting on behalf of, and under the supervision of, a person

within any of paragraphs (a) to (d) (whether or not under a

contract of employment).

(3)   

Subsection (2)(a) and (e) are subject to any limitation on the effect of a

person’s registration imposed under paragraph 2(2) of Schedule 6.”

5

(2)   

In section 85(1) of that Act (registration by the Commissioner) omit “and (b)”.

(3)   

In section 89 of that Act (disciplinary charge upheld by Immigration Services

Tribunal)—

(a)   

for subsections (2) and (3) substitute—

“(2)   

If the person charged is a registered person or acts on behalf of

10

a registered person, the Tribunal may—

(a)   

direct the Commissioner to record the charge and the

Tribunal’s decision for consideration in connection with

the registered person’s next application for continued

registration;

15

(b)   

direct the registered person to apply for continued

registration as soon as is reasonably practicable.”, and

(b)   

in subsection (8) for “employed by him or working” substitute “acting

on his behalf or”.

(4)   

In section 90(4) of that Act (orders by disciplinary bodies) for “works under the

20

supervision of” substitute “is acting on behalf of”.

(5)   

In Schedule 5 to that Act (Immigration Services Commissioner)—

(a)   

for paragraph 1(1)(b) substitute—

“(b)   

those acting on behalf of registered persons,”,

(b)   

for paragraph 1(3)(b) substitute—

25

“(b)   

any person acting on behalf of that person.”,

(c)   

for paragraph 3(3)(b) substitute—

“(b)   

a person who is acting on behalf of a person who is

within paragraph (a);”,

(d)   

for paragraph 4(1)(b) substitute—

30

“(b)   

persons acting on behalf of persons who are within

paragraph (a).”,

(e)   

in paragraph 5(3)(b) for “employed by, or working under the

supervision of,” substitute “acting on behalf of”,

(f)   

for paragraph 5(3)(e) substitute—

35

“(e)   

an alleged breach of a rule of a relevant regulatory

body,”,

(g)   

for paragraph 6(3)(c) substitute—

“(c)   

in any other case, refer the matter to any relevant

regulatory body.”,

40

(h)   

in paragraphs 9(1)(a) and (b) for “or a person employed by, or working

under the supervision of,” substitute “or is acting on behalf of”,

(i)   

for paragraph 9(1)(c) substitute—

“(c)   

refer the complaint and his decision on it to a relevant

regulatory body;”,

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

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(j)   

for paragraphs 9(3)(a) and (b) substitute—

“(a)   

imposing restrictions on the provision of immigration

advice or immigration services by the relevant person

or by a person acting on his behalf or under his

supervision;

5

(b)   

prohibiting the provision of immigration advice or

immigration services by the relevant person or a

person acting on his behalf or under his supervision.”,

and

(k)   

for paragraphs 9(4)(b) to (d) substitute—

10

“(b)   

a person acting on behalf of a registered person;”.

(6)   

In Schedule 6 to that Act (registration)—

(a)   

in paragraph 1(1) omit “or (b)”, and

(b)   

in paragraph 3(7)(a) for “section 89(3)(b)” substitute “section 89(2)(b)”.

25      

Immigration Services Commissioner: power of entry

15

(1)   

After section 92 of the Immigration and Asylum Act 1999 (c. 33) (offences:

enforcement) insert—

“92A    

    Investigation of offence: power of entry

(1)   

On an application made by the Commissioner a justice of the peace may

issue a warrant authorising the Commissioner to enter and search

20

premises.

(2)   

A justice of the peace may issue a warrant in respect of premises only if

satisfied that there are reasonable grounds for believing that—

(a)   

an offence under section 91 has been committed,

(b)   

there is material on the premises which is likely to be of

25

substantial value (whether by itself or together with other

material) to the investigation of the offence, and

(c)   

any of the conditions specified in subsection (3) is satisfied.

(3)   

Those conditions are—

(a)   

that it is not practicable to communicate with a person entitled

30

to grant entry to the premises,

(b)   

that it is not practicable to communicate with a person entitled

to grant access to the evidence,

(c)   

that entry to the premises will be prevented unless a warrant is

produced, and

35

(d)   

that the purpose of a search may be frustrated or seriously

prejudiced unless the Commissioner can secure immediate

entry on arrival at the premises.

(4)   

The Commissioner may seize and retain anything for which a search is

authorised under this section.

40

(5)   

A person commits an offence if without reasonable excuse he obstructs

the Commissioner in the exercise of a power by virtue of this section.

(6)   

A person guilty of an offence under subsection (5) shall be liable on

summary conviction to—

(a)   

imprisonment for a term not exceeding six months,

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

28

 

(b)   

a fine not exceeding level 5 on the standard scale, or

(c)   

both.

(7)   

In this section—

(a)   

a reference to the Commissioner includes a reference to a

member of his staff authorised in writing by him,

5

(b)   

a reference to premises includes a reference to premises used

wholly or partly as a dwelling, and

(c)   

a reference to material—

(i)   

includes material subject to legal privilege within the

meaning of the Police and Criminal Evidence Act 1984

10

(c. 60),

(ii)   

does not include excluded material or special procedure

material within the meaning of that Act, and

(iii)   

includes material whether or not it would be admissible

in evidence at a trial.

15

(8)   

In the application of this section to Scotland—

(a)   

a reference to a justice of the peace shall be taken as a reference

to the sheriff or a justice of the peace,

(b)   

for sub-paragraph (i) of subsection (7)(c) there is substituted—

“(i)    

includes material comprising items subject to legal

20

privilege (as defined by section 412 of the Proceeds of

Crime Act 2002 (c. 29)),” and

(c)   

sub-paragraph (ii) of subsection (7)(c) shall be ignored.

(9)   

In the application of this section to Northern Ireland the reference to the

Police and Criminal Evidence Act 1984 shall be taken as a reference to

25

the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I.

1989/1341 (N.I. 12)).”

(2)   

In paragraph 7 of Schedule 5 to the Immigration and Asylum Act 1999 (c. 33)

(investigation of complaints, &c.: power of entry)—

(a)   

in sub-paragraph (1)(b) after “(b)” insert “, (c)”,

30

(b)   

in sub-paragraph (1)(c) for “registered person.” substitute “registered

or exempt person.”,

(c)   

in sub-paragraph (1A)(a) after “(b)” insert “, (c)”,

(d)   

in sub-paragraph (1A)(b) for “registered person.” substitute “registered

or exempt person.”, and

35

(e)   

after sub-paragraph (8) insert—

     “(9)  

Sub-paragraphs (7) and (8) shall apply to an exempt person

as they apply to a registered person, but with a reference to

cancellation of registration being treated as a reference to

withdrawal of exemption.

40

     (10)  

In this paragraph “exempt person” means a person certified

by the Commissioner as exempt under section 84(4)(a).”

26      

Offence of advertising services

After section 92A of the Immigration and Asylum Act 1999 (inserted by section

 

 

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

29

 

25 above) insert—

“92B    

    Advertising

(1)   

A person commits an offence if—

(a)   

he offers to provide immigration advice or immigration

services, and

5

(b)   

provision by him of the advice or services would constitute an

offence under section 91.

(2)   

For the purpose of subsection (1) a person offers to provide advice or

services if he—

(a)   

makes an offer to a particular person or class of person,

10

(b)   

makes arrangements for an advertisement in which he offers to

provide advice or services, or

(c)   

makes arrangements for an advertisement in which he is

described or presented as competent to provide advice or

services.

15

(3)   

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

summary conviction to a fine not exceeding level 4 on the standard

scale.

(4)   

Subsections (3) to (7) of section 91 shall have effect for the purposes of

this section as they have effect for the purposes of that section.

20

(5)   

An information relating to an offence under this section may in

England and Wales be tried by a magistrates’ court if—

(a)   

it is laid within the period of six months beginning with the date

(or first date) on which the offence is alleged to have been

committed, or

25

(b)   

it is laid—

(i)   

within the period of two years beginning with that date,

and

(ii)   

within the period of six months beginning with a date

certified by the Immigration Services Commissioner as

30

the date on which the commission of the offence came to

his notice.

(6)   

In Scotland, proceedings for an offence under this section may be

commenced—

(a)   

at any time within the period of six months beginning with the

35

date (or first date) on which the offence is alleged to have been

committed, or

(b)   

at any time within both—

(i)   

the period of two years beginning with that date, and

(ii)   

the period of six months beginning with a date specified,

40

in a certificate signed by or on behalf of the procurator

fiscal, as the date on which evidence sufficient in his

opinion to warrant such proceedings came to his

knowledge,

   

and any such certificate purporting to be so signed shall be

45

deemed so signed unless the contrary is proved and be

conclusive as to the facts stated in it.

 

 

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

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(7)   

Subsection (3) of section 136 of the Criminal Procedure (Scotland) Act

1995 (c. 46) (date on which proceedings are deemed commenced) has

effect to the purposes of subsection (6) as it has effect for the purposes

of that section.

(8)   

A complaint charging the commission of an offence under this section

5

may in Northern Ireland be heard and determined by a magistrates’

court if—

(a)   

it is made within the period of six months beginning with the

date (or first date) on which the offence is alleged to have been

committed, or

10

(b)   

it is made—

(i)   

within the period of two years beginning with that date,

and

(ii)   

within the period of six months beginning with a date

certified by the Immigration Services Commissioner as

15

the date on which the commission of the offence came to

his notice.”

27      

Appeal to Immigration Services Tribunal

Section 87(3)(f) of the Immigration and Asylum Act 1999 (c. 33) (appeal to

Tribunal against deferral of decision) shall cease to have effect.

20

28      

Professional bodies

(1)   

Section 86 of the Immigration and Asylum Act 1999 (designated professional

bodies) shall be amended as follows.

(2)   

For subsection (2) substitute—

“(2)   

The Secretary of State may by order remove a body from the list in

25

subsection (1) if he considers that the body—

(a)   

has failed to provide effective regulation of its members in their

provision of immigration advice or immigration services, or

(b)   

has failed to comply with a request of the Commissioner for the

provision of information (whether general or in relation to a

30

particular case or matter).”

(3)   

For subsection (9)(b) substitute—

“(b)   

report to the Secretary of State if the Commissioner considers

that a designated professional body—

(i)   

is failing to provide effective regulation of its members

35

in their provision of immigration advice or immigration

services, or

(ii)   

has failed to comply with a request of the Commissioner

for the provision of information (whether general or in

relation to a particular case or matter).”

40

(4)   

After subsection (9) insert—

“(9A)   

A designated professional body shall comply with a request of the

Commissioner for the provision of information (whether general or in

relation to a specified case or matter).”

 

 

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

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(5)   

In section 166(2) of the Immigration and Asylum Act 1999 (regulations and

orders) after “in relation to” insert “orders made under section 90(1),”.

(6)   

For paragraph 21(2) of Schedule 5 to the Immigration and Asylum Act 1999

(Commissioner: annual report) substitute—

     “(2)  

The report must, in particular, set out the Commissioner’s opinion as

5

to the extent to which each designated professional body has—

(a)   

provided effective regulation of its members in their provision of

immigration advice or immigration services, and

(b)   

complied with requests of the Commissioner for the provision of

information.”

10

Fees

29      

Amount of fees

(1)   

In prescribing a fee for an application or process under a provision specified in

subsection (2) the Secretary of State may, with the consent of the Treasury,

prescribe an amount which is intended to—

15

(a)   

exceed the administrative costs of determining the application or

undertaking the process, and

(b)   

reflect benefits that the Secretary of State thinks are likely to accrue to

the person who makes the application, to whom the application relates

or by or for whom the process is undertaken, if the application is

20

successful or the process is completed.

(2)   

Those provisions are—

(a)   

section 41(2) of the British Nationality Act 1981 (c. 61) (fees for

applications, &c. under that Act),

(b)   

section 5(1)(a) and (b) of the Immigration and Asylum Act 1999 (c. 33)

25

(fees for application for leave to remain, &c.), and

(c)   

sections 10 and 122 of the Nationality, Immigration and Asylum Act

2002 (c. 41) (certificate of entitlement to right of abode; and fees for

work permit, &c.).

(3)   

An Order in Council under section 1 of the Consular Fees Act 1980 (c. 23) (fees)

30

which prescribes a fee in relation to an application for the issue of a certificate

under section 10 of the Nationality, Immigration and Asylum Act 2002 (right

of abode: certificate of entitlement) may prescribe an amount which is intended

to—

(a)   

exceed the administrative costs of determining the application, and

35

(b)   

reflect benefits that in the opinion of Her Majesty in Council are likely

to accrue to the applicant if the application is successful.

(4)   

Where an instrument prescribes a fee in reliance on this section it may include

provision for the refund, where an application is unsuccessful or a process is

not completed, of that part of the fee which is intended to reflect the matters

40

specified in subsection (1)(b) or (3)(b).

(5)   

Provision included by virtue of subsection (4)—

(a)   

may determine, or provide for the determination of, the amount to be

refunded;

 

 

 
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