These notes refer to the Immigration, Asylum and Nationality Bill as brought from the House of Commons on 17th November 2005 [HL Bill 43]
IMMIGRATION, ASYLUM AND
1. These explanatory notes relate to the Immigration, Asylum and Nationality Bill as brought from the House of Commons on 17th November 2005. They have been prepared by the Home Office in order to assist the reader in understanding the Bill. They do not form part of the Bill.
2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a section or part of a section does not seem to require any explanation or comment, none is given.
3. The Bill builds primarily on two published Government proposals:
4. "Controlling our borders: Making migration work for Britain" the Home Office five year strategy for asylum and immigration, published in February 2005
5. "Confident Communities in a Secure Britain," the Home Office Strategic Plan, 2004-2008 published in July 2004
6. The Government is committed to rapid implementation of the five-year strategy for asylum and immigration. Key provisions of the strategy need primary legislation to take effect and the Bill therefore forms part of the strategy's wider implementation. It also includes a number of provisions that will facilitate the enforcement and transparency of the system.
7. The Bill is arranged under six headings:
8. The provisions:
- amend section 82(2) of the Nationality, Immigration and Asylum Act 2002 to remove from the list of decisions which attract a right of appeal decisions to refuse to extend or to curtail an existing permission to stay, except where the decision relates to a person who has been permitted to stay as a refugee or in such other category as has been specified in an order.
- insert a new section 83A of the Nationality, Immigration and Asylum Act 2002 to provide a right of appeal for people no longer recognised as refugees who are being allowed to stay in another category. The right of appeal will be solely against the decision that the person in question no longer qualifies as a refugee.
- amend section 82(2)(g) of the Nationality, Immigration and Asylum Act 2002 to insert a reference to section 10(1)(ba).
- amend section 84 of the Nationality, Immigration and Asylum Act 2002 to enable issues arising from a decision to refuse to extend or to curtail an existing permission to stay to be considered at an appeal against a decision to remove which results from the earlier decision.
- amend sections 88A, 90 and 91 of the Nationality, Immigration and Asylum Act 2002 to restrict full appeal rights against refusal of entry clearance for those seeking entry clearance to dependants and family visitors, which will be defined in regulations.
- amend section 88 (2) of the Nationality, Immigration and Asylum Act 2002 to limit appeal rights if an applicant fails to provide a medical report or medical certificate where to do so is a requirement of the immigration rules.
- amend section 89 of the Immigration, Nationality and Asylum Act 2002 to restrict full rights of appeal against refusal of entry at the port to those who possess an entry clearance issued for the purpose for which entry is sought.
- insert a new section 97A into the Nationality, Immigration and Asylum Act 2002 so that an appeal against a decision to make a deportation order which has been certified as having been made on national security grounds would normally only be able to be brought from outside the United Kingdom. Where the appellant has made a human rights claim the appeal can be brought in country unless the Secretary of State certifies that removal would not breach the European Convention on Human Rights (ECHR). There is an appeal against this decision to the Special Immigration Appeals Commission (SIAC).
- amend section 103D of the Nationality, Immigration and Asylum Act 2002 to allow payment from the Community Legal Service Fund for preparatory work by legal representatives on a case where reconsideration has been ordered but does then not proceed.
- amend section 104(4) of the Nationality, Immigration and Asylum Act 2002 so that an appeal brought outside the UK shall not be abandoned if the appellant is granted leave to enter or remain. An appeal brought in the UK shall not be treated as abandoned on race discrimination grounds following a grant of leave to enter or remain providing the appellant provides notice that he wishes to continue the appeal. An appeal on Refugee Convention grounds shall not be abandoned if leave is granted for a period of more than12 months and the appellant provides notice that he wishes to continue the appeal.
- provide that section 110 of the Immigration, Nationality and Asylum Act 2002 shall cease to have effect.
- amend section 3C of the Immigration Act 1971 so that leave which is extended by this section terminates when a decision is made on the relevant application; and to provide power to make regulations which will define when a decision is made for this purpose.
- provide that while an appeal can be brought or is pending against a decision under section 82 (2) (fa) or (fb) of the Nationality, Immigration and Asylum Act 2002 (as amended by this Bill) the leave that existed before the decision to refuse to vary or to curtail leave shall be continued.
- amend section 23 of the Immigration and Asylum Act 1999 to clarify that refusals of entry clearance that carry only a limited right of appeal shall be monitored by a person appointed by the Secretary of State.
- provide that someone does not commit an offence under section 24 (1) (b) of the Immigration Act 1971 if, by virtue of section 92, he can remains in the UK while an appeal against a decision to remove him is pending or may be brought, provided that he has previously had an in time application for variation of leave refused or his existing leave curtailed.
- amend section 113 of the Nationality, Immigration and Asylum Act 2002, in particular the definitions of "asylum claim" and "human rights claim" by removing the requirement for such claims to be made in person at a designated place; and clarify that further submissions which follow the refusal of an asylum or human rights claim but which do not amount to a fresh claim will not carry a further right of appeal. Requirements on when asylum and human rights claims must be made in person will be moved to Immigration Rules to be made under clause 47.
- make consequential amendments, removing references in the Immigration, Nationality and Asylum Act 2002 to decisions which will no longer be appealable; inserting necessary references to the new right of appeal (section 83A) and updating a reference in the Race Relations Act to the immigration appellate body.
9. The provisions:
- create a power for the Secretary of State to apply a penalty, determined by a Code of Practice, to an employer of an adult who has not been granted leave to enter or remain, whose leave is invalid or expired, or whose conditions of entry or stay prevent them from undertaking the employment. The provision allows for objection and/or appeal by the employer against the imposition of a penalty and the amount. An employer who complies with requirements prescribed in an order of the Secretary of State is excused from paying a penalty.
- create a new criminal offence of knowingly employing an adult who has not been granted leave to enter or remain, whose leave is invalid or expired or whose conditions of entry or stay prevent them from undertaking the employment in question.
- allow the Secretary of State to issue a code of practice to employers on how to avoid unlawful racial discrimination when applying these provisions.
10. The provisions:
- amend paragraph 4 of Schedule 2 to the Immigration Act 1971 (c.77) to enable Immigration Officers to verify and detain passengers' identity documents and to enable Immigration Officers to require the holders of such documents to provide biometric information (which may include in particular fingerprints or features of the iris or any other part of the eye).
- Amend section 141 of the Immigration an Asylum Act 1999, which sets out a number of categories of person from whom fingerprints can be taken and stored, to allow fingerprints to be taken from a person who has been detained under paragraph 16 of Schedule 2 to the Immigration Act 1971.
- amend section 3(9) of the Immigration Act 1971 (c.77) to enable British citizens and British subjects with a right of abode to enter the United Kingdom using identity cards issued under the current Identity Cards Bill, and make minor amendments relating to British passport holders.
- amend paragraphs 27 and 27B of Schedule 2 to the 1971 Act to allow the Secretary of State by order to require or enable an immigration officer to require passenger lists or particulars of crew of ships or aircraft and to specify the time and manner of provision. The current power in 27(2) applies only to ships or aircraft arriving in the UK. The new power extends the power to apply to ships or aircraft expected to arrive in the UK or leaving or expected to leave the UK. The power is also extended to apply to the owner or agent of a ship or aircraft as well as the captain, as is currently the case. Paragraph 27B is amended to apply to service information in the same way as it currently applies to passenger information. Service information is information relating to the voyage or flight undertaken by the ship or aircraft as may be specified by order. Consequent amendments to the offence in section 27 of the Immigration Act 1971 are also made.
- create a new power to enable a constable of the rank of Superintendent or above to request passenger, service and crew information from an owner or agent of a ship or aircraft in the form and manner directed by the Secretary of State by Order. Create a new offence for failure to comply with this requirement.
- create a new power to enable a constable of the rank of Superintendent or above to request freight information from an owner or agent of a ship or aircraft, an owner or hirer of a vehicle, or any other person responsible for the import or export of freight in the form and manner directed by the Secretary of State by Order. Create a new offence for failure to comply with this requirement.
- create a requirement for the Secretary of State in so far as he has functions under the Immigration Acts, the police and Her Majesty's Revenue and Customs to share with each other passenger, crew, service and freight information obtained or held by them in the course of their functions to the extent that the information is likely to be of use for immigration, police or Revenue and Customs purposes (as defined in sections 20 and 21 of the Immigration and Asylum Act 1999. Information collected by HM Revenue and Customs under the former Inland Revenue's powers will be excluded from this duty to share.
- make provision for the issue of codes of practice about the use of the information shared and the extent to which or form or manner in which shared information is to be made available to the Secretary of State, the police or HM Revenue and Customs.
- enable the police to disclose passenger, crew and freight information acquired from owners or agents of ships and aircraft to police in Jersey, Guernsey, the Isle of Man or a foreign law enforcement agency.
- amend the Customs and Excise Management Act 1979 to allow for the provision of passenger information in advance of a ship or aircrafts arrival in the UK.
- provide that the Secretary of State in so far as he has functions under the Immigration Acts, the police and HM Revenue and Customs may disclose travel or freight information (to be specified by Order) which is obtained or held by them in the course of their functions to the Security Service, the Secret Intelligence Service and the Government Communications Headquarters to the extent that the information is likely to be of use for a purpose specified in section 1 of the Security Service Act 1989 and sections 1 or 3 of the Intelligence Services Act 1994.
Claimants and applicants
11. The provisions:
- introduce a new power for the Secretary of State to allow an Authorised Person (AP) to search a ship, aircraft, vehicle or other thing to satisfy themselves as to the presence of illegal entrants and, if an illegal entrant is found, to search, detain and deliver the individual to an immigration officer. Contain a power to authorise police constables and officers of HM Revenue and Customs.
- create an offence for an individual to obstruct or assault an AP while exercising these search powers, or to abscond while being detained or delivered to an immigration officer by an AP.
- amend section 99(1) and 99(4) of the Immigration and Asylum Act 1999 to enable local authorities to provide support, in accordance with arrangements made with the Secretary of State, under section 4 of the same Act and to incur reasonable expenditure in connection with the preparation of proposals for entering into those arrangements.
- amend section 118(1)(b) of the Immigration and Asylum Act 1999 so as to allow local authorities to use their powers under existing housing legislation to grant tenancies or licences to occupy to persons subject to immigration control, including those provided with accommodation pursuant to sections 4 and 98 of the 1999 Act. The provision will ensure that accommodation provided under section 4 does not give rise to a secure tenancy among recipients of such accommodation and make other amendments to UK housing legislation to achieve the same result across the UK. The clause will also make amendments to UK housing legislation similar to those made in Schedule 14 to the 1999 Act.
- amend section 13 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 to enable those with leave to enter or remain (rather than indefinite leave to enter or remain) and who have been recognised as refugees to access integration loans and enable the Secretary of State to extend eligibility, in the regulations, to other categories of migrants.
- amend section 5A(5A) of the Prison Act 1952 to enable HM Chief Inspector of Prisons to inspect short-term holding facilities and escorts on a statutory basis.
- amend section 10(8) of the Immigration and Asylum Act 1999 to allow an individual's leave to be invalidated by the giving of a notice of a decision to remove.
- insert a new section 44A into the British Nationality Act 1981, conferring on the Secretary of State a discretion to waive the requirement (for the purposes of naturalisation and the renunciation and resumption of citizenship) to be "of full capacity" in cases where he considers it in the applicant's best interests to do so.
- allow the Secretary of State to prescribe, in the immigration rules, procedures to be followed in making an application, and to prescribe what will happen to that application if the procedures are not followed. The Secretary of State also has power to specify that particular forms are used, and to reject applications which are not made on that form.
- enable the Secretary of State to designate, in secondary legislation, any immigration or nationality-related applications, claims, services, processes, information or advice for which a fee may be charged. Regulations may specify the amount of the fee and provide for matters such as exemptions or the consequences of failing to pay a required fee.
- amend paragraph 3 of Schedule 2 to the Immigration Act 1971 to allow an immigration officer to examine a departing passenger to establish immigration status as well as identity, and to subject a person to further examination and short-term detention where necessary to establish identity and/or immigration status.
12. The provisions:
- confirm that the power of entry and arrest in deportation cases is available when a notice of intention to deport is ready but has not yet been given to a prospective deportee.
- provide an interpretation of Article 1F (c) in the 1951 Geneva Convention relating to the Status of Refugees to clarify that acts of committing, preparing or instigating terrorism or of encouraging or inducing others to do so constitute acts contrary to the principles and purposes of the United Nations and will result in exclusion from asylum; and require, where the Secretary of State rejects an asylum claim wholly or partly on the basis of article 1F, that the asylum aspects of the appeal hearing must begin with substantive deliberations on whether Article 1F applies.
- replace one of the current criteria for deprivation of nationality that the person concerned has done something seriously prejudicial to vital national interests with the criterion that the Secretary of State is satisfied that such deprivation is conducive to the public good.
- confer on the Secretary of State a new power to withdraw the right of abode in the United Kingdom from any person whose exclusion or removal from this country he considers to be conducive to the public good.
- extend the requirement to be "of good character", which at present applies only to those seeking British citizenship by naturalisation, to virtually all other applicants for British nationality.
- insert a new section 153A into the Immigration and Asylum Act 1999 to exempt detained persons from the national minimum wage.
13. General provisions on money, repeals, commencement, extent, and the title of the Bill.
COMMENTARY ON CLAUSES
Clause 1: Variation of leave to enter or remain
14. This clause amends section 82 of the Nationality, Immigration and Asylum Act 2002, which lists those decisions which attract a right of appeal. Subsection (2) removes from the list a decision to refuse to extend an existing permission to enter or stay. Subsection (3) removes a decision to curtail such permission. Both these decisions result in the person having no further permission to stay and in both cases a further, appealable, decision to remove the person from the United Kingdom is required to enforce the earlier decision.
15. Clause 1(4) also adds two categories of case to the list of definitions of an immigration decision in Section 82 of the Nationality, Immigration and Asylum Act 2002. These categories of case are where a person has been permitted to stay for a limited period as a refugee or in such other category of case as the Secretary of State may specify in an order and there has then been a decision to curtail or to refuse to extend this permission such that the person no longer has any permission to remain in the United Kingdom.
16. Clause 1(5) inserts a new section 83A into the Immigration, Nationality and Asylum Act 2002 which introduces a new right of appeal for people who can no longer be recognised as refugees but who are permitted to stay here in another category. The appeal is limited to asylum grounds only.
Clause 2: Removal
17 A decision to revoke a person's indefinite leave to enter or remain in the United Kingdom under section 76 of the Nationality, Immigration and Asylum Act 2002 is an "immigration decision" as defined in section 82(2)(f) of the 2002 Act which gives rise to an in-country right of appeal under section 82(1). The removal from the United Kingdom of persons whose leave has been revoked under 76(3) is provided for by section 10(1)(ba) of the Immigration and Asylum Act 1999, which was inserted by section 76(7) of the 2002 Act. However no corresponding provision was made in section 82(2)(g) of the 2002 Act for a person to have a right of appeal against a decision to remove by way of directions under section 10(1)(ba).
18. Clause 2 amends section 82(2)(g) of the 2002 Act to provide a right of appeal against a decision to remove under section 10(1)(ba) of the 1999 Act. This will give the person a separate right of appeal at each of the two decision stages; the first at the revocation stage and the second at the stage the decision to remove is taken. This separation of appeal rights is considered necessary in light of the importance of Refugee Status. No decision to remove will be taken while an appeal against revocation is pending.
Clause 3: Grounds of appeal
19. Clause 3 works with clause 1; subsection (2) ensures that a person affected by the removal of a right of appeal by Clause 1 has the earlier decision taken into account in an appeal against the later removal decision.
Clause 4: Entry clearance
20. Sections 88A, 90 and 91 of the 2002 Act restrict rights of appeal against refusal of entry clearance in respect of some visitors and students and categories of case specified in an order of the Secretary of State. Clause 4 substitutes for these sections one which limits all appeals against refusal of entry clearance to limited grounds (human rights and race discrimination), with the exception of those in the categories listed. The categories which retain a full right of appeal are family visitors and people wishing to join dependents in the United Kingdom (new Section 88A(1)). Provision is also made for regulations which will define in detail the relationships, degree of dependency and circumstances which count for these categories. In particular, the regulations may specify that the UK sponsor should be lawfully settled here, or that the individuals involved should have resided together for a certain length of time (new Section 88A(2). The Secretary of State may, as before, make an order specifying types of entry clearance refusal made on grounds derived from prescriptive provisions of the immigration rules where the right of appeal is to be limited (new Section 88A(3)). A right of appeal remains in all cases on both human rights and race discrimination grounds (new Section 88A(4)).
Clause 5: Failure to provide documents
21. Clause 5 inserts a new subsection (ba) into section 88 (2) of the Nationality, Asylum and Immigration Act 2002, which will limit the right of appeal against refusal of entry clearance to human rights and race discrimination grounds if the reason for refusal is that the applicant failed to provide a medical report or certificate when required to do so by the immigration rules.
Clause 6: Refusal of leave to enter
22. Section 89 of the 2002 Act restricts rights of appeal against refusal of permission to enter at the port of visitors and students who do not hold an entry clearance. The restriction limits the grounds of appeal to human rights and race discrimination and, where the appeal is exercised in the UK, asylum. Clause 6 substitutes a provision which applies the restriction to all appeals against refusal of permission to enter at the port, unless the applicant has an entry clearance at the time of refusal which was issued for the specific purpose for which the person seeks entry. A right of appeal remains in all cases on both human rights and race discrimination grounds.
Clause 7: Deportation
23. Clause 7 inserts a new section 97A into the Nationality, Immigration and Asylum Act 2002. The clause requires that an appeal against a decision to make a deportation order which has been certified as having been made on national security grounds should normally only be able to be brought from outside the United Kingdom. Where the appellant makes a human rights claim, the clause allows for this to be brought in country unless the Secretary of State certifies that removal would not breach the United Kingdom's obligations under the European Convention on Human Rights (ECHR). However the clause provides for an in-country appeal against this certificate to the Special Immigration Appeals Commission (SIAC).
Clause 8: Legal aid
24. Clause 8 amends section 103D(2) and 103D(3) of the 2002 Act to provide that subsection (3) applies where the Tribunal has been ordered to reconsider its decision on an appeal rather than where it has decided the appeal following reconsideration. This amendment allows representatives to be granted Community Legal Service funding by the appropriate court for work done in preparation for a reconsideration hearing that does not then proceed because the Home Office concedes the appeal, the appeal has to be treated as abandoned or where the appellant withdraws the appeal. The previous drafting of section 103D did not cater for the situation where an appeal is withdrawn, abandoned or conceded after reconsideration has been ordered but before it takes place, and the appellant's representative has already carried out some preparatory work for the reconsideration.
Clause 9: Abandonment of appeal
25. Section 104(4) of the 2002 Act provides that when a person has an appeal pending the appeal shall be treated as abandoned if the person is granted leave to enter or remain in the United Kingdom or leaves the United Kingdom. Clause 9 amends section 104 to ensure that neither of these events causes an appeal to be treated as abandoned if the appeal was not brought in the United Kingdom. This prevents anomalies such as an appeal against refusal of entry clearance being treated as abandoned if an entry clearance conferring leave to enter is later granted for a different purpose (new Section 104(4)).
26. A new section 104(4B) will allow an appeal on Refugee Convention grounds to continue if an appellant is granted leave for more than 12 months and gives notice that he wishes to continue the appeal on those grounds. A new section 104(4C) ensures that an appeal brought on race discrimination grounds will continue on those grounds if the appeal is otherwise treated as abandoned when leave is granted, provided the appellant gives notice that he wishes that aspect of his appeal to continue.