Immigration, Asylum and Nationality Bill

House of Lords

Session 2005 - 06
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Other Bills before Parliament

Immigration, Asylum and Nationality Bill

Immigration, Asylum and Nationality Bill
1

A
Bill
[AS AMENDED ON REPORT]
To
Make provision about immigration, asylum and nationality; and for
connected purposes.
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:—
Appeals
1
Variation of leave to enter or remain
After section 83 of the Nationality, Immigration and Asylum Act 2002 (c. 41)
(right of appeal: asylum claim) insert—
“83A
Appeal: variation of limited leave
5
(1)
This section applies where—
(a)
a person has made an asylum claim,
(b)
he was granted limited leave to enter or remain in the United
Kingdom as a refugee within the meaning of the Refugee
Convention,
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(c)
a decision is made that he is not a refugee, and
(d)
following the decision specified in paragraph (c) he has limited
leave to enter or remain in the United Kingdom otherwise than
as a refugee.
(2)
The person may appeal to the Tribunal against the decision to curtail or
15
to refuse to extend his limited leave.”

HL Bill 74 54/1

Immigration, Asylum and Nationality Bill
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2
Removal
In section 82(2)(g) of the Nationality, Immigration and Asylum Act 2002 (c. 41)
(right of appeal: removal) for “section 10(1)(a), (b) or (c)” substitute “section
10(1)(a), (b), (ba) or (c)”.
3
Grounds of appeal
5
After section 84(3) of the Nationality, Immigration and Asylum Act 2002 (c. 41)
(grounds of appeal) add—
“(4)
An appeal under section 83A must be brought on the grounds that
removal of the appellant from the United Kingdom would breach the
United Kingdom’s obligations under the Refugee Convention.”
10
4
Entry clearance
(1)
For sections 88A, 90 and 91 of the Nationality, Immigration and Asylum Act
2002 (restricted right of appeal in relation to refusal of entry clearance for
visitor or student) substitute—
“88A
Entry clearance
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(1)
A person may not appeal under section 82(1) against refusal of an
application for entry clearance unless the application was made for the
purpose of—
(a)
visiting a person of a class or description prescribed by
regulations for the purpose of this subsection, or
20
(b)
entering as the dependant of a person in circumstances
prescribed by regulations for the purpose of this subsection.
(2)
Regulations under subsection (1) may, in particular—
(a)
make provision by reference to whether the applicant is a
member of the family (within such meaning as the regulations
25
may assign) of the person he seeks to visit;
(b)
provide for the determination of whether one person is
dependent on another;
(c)
make provision by reference to the circumstances of the
applicant, of the person whom the applicant seeks to visit or on
30
whom he depends, or of both (and the regulations may, in
particular, include provision by reference to—
(i)
whether or not a person is lawfully settled in the United
Kingdom within such meaning as the regulations may
assign;
35
(ii)
the duration of two individuals’ residence together);
(d)
make provision by reference to an applicant’s purpose in
entering as a dependant;
(e)
make provision by reference to immigration rules;
(f)
confer a discretion.
40
(3)
Subsection (1)—
(a)
does not prevent the bringing of an appeal on either or both of
the grounds referred to in section 84(1)(b) and (c), and
(b)
is without prejudice to the effect of section 88 in relation to an
appeal under section 82(1) against refusal of entry clearance.”
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Immigration, Asylum and Nationality Bill
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(2)
For section 23(1) of the Immigration and Asylum Act 1999 (c. 33) (monitoring
refusals of entry clearance) substitute—
“(1)
The Secretary of State must appoint a person to monitor, in such
manner as the Secretary of State may determine, refusals of entry
clearance in cases where, as a result of section 88A of the Nationality,
5
Immigration and Asylum Act 2002 (c. 41) (entry clearance: non-family
visitors and students), an appeal under section 82(1) of that Act may be
brought only on the grounds referred to in section 84(1)(b) and (c) of
that Act (racial discrimination and human rights).”
5
Failure to provide documents
10
After section 88(2)(b) of the Nationality, Immigration and Asylum Act 2002
(c. 41) (appeal: ineligibility) insert—
“(ba)
has failed to supply a medical report or a medical certificate in
accordance with a requirement of immigration rules,”.
6
Refusal of leave to enter
15
For section 89 of the Nationality, Immigration and Asylum Act 2002 (appeal
against refusal of leave to enter: visitor or student without entry clearance)
substitute—
“89
Refusal of leave to enter
(1)
A person may not appeal under section 82(1) against refusal of leave to
20
enter the United Kingdom unless—
(a)
on his arrival in the United Kingdom he had entry clearance,
and
(b)
the purpose of entry specified in the entry clearance is the same
as that specified in his application for leave to enter.
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(2)
Subsection (1) does not prevent the bringing of an appeal on any or all
of the grounds referred to in section 84(1)(b), (c) and (g).”
7
Deportation
(1)
After section 97 of the Nationality, Immigration and Asylum Act 2002 (c. 41)
(appeals: national security) insert—
30
“97A
National security: deportation
(1)
This section applies where the Secretary of State certifies that the
decision to make a deportation order in respect of a person was taken
on the grounds that his removal from the United Kingdom would be in
the interests of national security.
35
(2)
Where this section applies—
(a)
section 79 shall not apply,
(b)
the Secretary of State shall be taken to have certified the decision
to make the deportation order under section 97, and
(c)
for the purposes of section 2(5) of the Special Immigration
40
Appeals Commission Act 1997 (c. 68) (appeals from within
United Kingdom) it shall be assumed that section 92 of this
Act—

Immigration, Asylum and Nationality Bill
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(i)
would not apply to an appeal against the decision to
make the deportation order by virtue of section 92(2) to
(3D),
(ii)
would not apply to an appeal against that decision by
virtue of section 92(4)(a) in respect of an asylum claim,
5
and
(iii)
would be capable of applying to an appeal against that
decision by virtue of section 92(4)(a) in respect of a
human rights claim unless the Secretary of State certifies
that the removal of the person from the United Kingdom
10
would not breach the United Kingdom’s obligations
under the Human Rights Convention.
(3)
A person in respect of whom a certificate is issued under subsection
(2)(c)(iii) may appeal to the Special Immigration Appeals Commission
against the issue of the certificate; and for that purpose the Special
15
Immigration Appeals Commission Act 1997 shall apply as to an appeal
against an immigration decision to which section 92 of this Act applies.
(4)
The Secretary of State may repeal this section by order.”
(2)
In section 112 of that Act (regulations, &c.) after subsection (5A) insert—
“(5B)
An order under section 97A(4)—
20
(a)
must be made by statutory instrument,
(b)
shall be subject to annulment in pursuance of a resolution of
either House of Parliament, and
(c)
may include transitional provision.”
8
Legal aid
25
(1)
Section 103D of the Nationality, Immigration and Asylum Act 2002 (c. 41)
(reconsideration: legal aid) shall be amended as follows.
(2)
In subsection (2) for the words “where the Tribunal has decided an appeal
following reconsideration pursuant to an order made” substitute “where an
order for reconsideration is made”.
30
(3)
For subsection (3) substitute—
“(3)
The Tribunal may order payment out of that Fund of the appellant’s
costs—
(a)
in respect of the application for reconsideration;
(b)
in respect of preparation for reconsideration;
35
(c)
in respect of the reconsideration.”
9
Abandonment of appeal
For section 104(4) of the Nationality, Immigration and Asylum Act 2002
(pending appeal: deemed abandonment) substitute—
“(4)
An appeal under section 82(1) brought by a person while he is in the
40
United Kingdom shall be treated as abandoned if the appellant leaves
the United Kingdom.

Immigration, Asylum and Nationality Bill
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(4A)
An appeal under section 82(1) brought by a person while he is in the
United Kingdom shall be treated as abandoned if the appellant is
granted leave to enter or remain in the United Kingdom (subject to
subsections (4B) and (4C)).
(4B)
Subsection (4A) shall not apply to an appeal in so far as it is brought on
5
the ground relating to the Refugee Convention specified in section
84(1)(g) where the appellant—
(a)
is granted leave to enter or remain in the United Kingdom for a
period exceeding 12 months, and
(b)
gives notice, in accordance with any relevant procedural rules
10
(which may include provision about timing), that he wishes to
pursue the appeal in so far as it is brought on that ground.
(4C)
Subsection (4A) shall not apply to an appeal in so far as it is brought on
the ground specified in section 84(1)(b) where the appellant gives
notice, in accordance with any relevant procedural rules (which may
15
include provision about timing), that he wishes to pursue the appeal in
so far as it is brought on that ground.”
10
Grants
Section 110 (grants to advisory organisations) of the Nationality, Immigration
and Asylum Act 2002 (c. 41) shall cease to have effect.
20
11
Continuation of leave
(1)
Section 3C of the Immigration Act 1971 (c. 77) (continuation of leave to enter or
remain pending variation decision) shall be amended as follows.
(2)
In subsection (2)(b) (continuation pending possible appeal) after “could be
brought” insert “, while the appellant is in the United Kingdom”.
25
(3)
In subsection (2)(c) (continuation pending actual appeal) after “against that
decision” insert “, brought while the appellant is in the United Kingdom,”.
(4)
For subsection (6) (decision) substitute—
“(6)
The Secretary of State may make regulations determining when an
application is decided for the purposes of this section; and the
30
regulations—
(a)
may make provision by reference to receipt of a notice,
(b)
may provide for a notice to be treated as having been received
in specified circumstances,
(c)
may make different provision for different purposes or
35
circumstances,
(d)
shall be made by statutory instrument, and
(e)
shall be subject to annulment in pursuance of a resolution of
either House of Parliament.”
(5)
After section 3C insert—
40
“3D
Continuation of leave following revocation
(1)
This section applies if a person’s leave to enter or remain in the United
Kingdom—

Immigration, Asylum and Nationality Bill
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(a)
is varied with the result that he has no leave to enter or remain
in the United Kingdom, or
(b)
is revoked.
(2)
The person’s leave is extended by virtue of this section during any
period when—
5
(a)
an appeal under section 82(1) of the Nationality, Immigration
and Asylum Act 2002 could be brought, while the person is in
the United Kingdom, against the variation or revocation
(ignoring any possibility of an appeal out of time with
permission), or
10
(b)
an appeal under that section against the variation or revocation,
brought while the appellant is in the United Kingdom, is
pending (within the meaning of section 104 of that Act).
(3)
A person’s leave as extended by virtue of this section shall lapse if he
leaves the United Kingdom.
15
(4)
A person may not make an application for variation of his leave to enter
or remain in the United Kingdom while that leave is extended by virtue
of this section.”
(6)
Section 82(3) of the Nationality, Immigration and Asylum Act 2002 (c. 41)
(variation and revocation: extension of leave pending appeal) shall cease to
20
have effect.
12
Asylum and human rights claims: definition
(1)
Section 113(1) of the Nationality, Immigration and Asylum Act 2002 (c. 41)
(appeals: interpretation) shall be amended as follows.
(2)
For the definition of “asylum claim” substitute—
25
““asylum claim”—
(a)
means a claim made by a person that to remove him from or
require him to leave the United Kingdom would breach the
United Kingdom’s obligations under the Refugee Convention,
but
30
(b)
does not include a claim which, having regard to a former claim,
falls to be disregarded for the purposes of this Part in
accordance with immigration rules,”.
(3)
For the definition of “human rights claim” substitute—
““human rights claim”—
35
(a)
means a claim made by a person that to remove him from or
require him to leave the United Kingdom would be unlawful
under section 6 of the Human Rights Act 1998 (c. 42) (public
authority not to act contrary to Convention) as being
incompatible with his Convention rights, but
40
(b)
does not include a claim which, having regard to a former claim,
falls to be disregarded for the purposes of this Part in
accordance with immigration rules,”.
13
Appeal from within United Kingdom: certification of unfounded claim
After section 94(6A) of the Nationality, Immigration and Asylum Act 2002 (c.
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Immigration, Asylum and Nationality Bill
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41) (appeal from within United Kingdom: unfounded human rights or asylum
claim) insert—
“(6B)
A certificate under subsection (1A) or (2) may not be issued (and
subsection (3) shall not apply) in relation to an appeal under section
82(2)(d) or (e) against a decision relating to leave to enter or remain in
5
the United Kingdom, where the leave was given in circumstances
specified for the purposes of this subsection by order of the Secretary of
State.”
14
Consequential amendments
Schedule 1 (which makes amendments consequential on the preceding
10
provisions of this Act) shall have effect.
Employment
15
Penalty
(1)
It is contrary to this section to employ an adult subject to immigration control
if—
15
(a)
he has not been granted leave to enter or remain in the United
Kingdom, or
(b)
his leave to enter or remain in the United Kingdom—
(i)
is invalid,
(ii)
has ceased to have effect (whether by reason of curtailment,
20
revocation, cancellation, effluxion of time or otherwise), or
(iii)
is subject to a condition preventing him from accepting the
employment.
(2)
The Secretary of State may give an employer who acts contrary to this section
a notice requiring him to pay a penalty of a specified amount not exceeding the
25
prescribed maximum.
(3)
An employer is excused from paying a penalty if he shows that he complied
with any prescribed requirements in relation to the employment.
(4)
But the excuse in subsection (3) shall not apply to an employer who knew, at
any time during the period of the employment, that it was contrary to this
30
section.
(5)
The Secretary of State may give a penalty notice without having established
whether subsection (3) applies.
(6)
A penalty notice must—
(a)
state why the Secretary of State thinks the employer is liable to the
35
penalty,
(b)
state the amount of the penalty,
(c)
specify a date, at least 28 days after the date specified in the notice as
the date on which it is given, before which the penalty must be paid,
(d)
specify how the penalty must be paid,
40
(e)
explain how the employer may object to the penalty, and
(f)
explain how the Secretary of State may enforce the penalty.