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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,

10

(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 7454/1
 
 

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

15

(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.

45

 
 

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,

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(e)   

explain how the employer may object to the penalty, and

(f)   

explain how the Secretary of State may enforce the penalty.

 
 

 
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