|
| |
|
24 | Forfeiture of detained property |
| |
(1) | A court making a forfeiture order about property may order that the property |
| |
be taken into the possession of the Secretary of State (and not of the police). |
| |
(2) | An order may be made under subsection (1) only if the court thinks that the |
| |
offence in connection with which the order is made— |
| 5 |
(a) | related to immigration or asylum, or |
| |
(b) | was committed for a purpose connected with immigration or asylum. |
| |
(3) | In subsection (1) “forfeiture order” means an order under— |
| |
(a) | section 143 of the Powers of Criminal Courts (Sentencing) Act 2000 |
| |
| 10 |
(b) | Article 11 of the Criminal Justice (Northern Ireland) Order 1994 (S.I. |
| |
| |
| |
(1) | In this section “property” means property which— |
| |
(a) | has come into the possession of an immigration officer, or |
| 15 |
(b) | has come into the possession of the Secretary of State in the course of, |
| |
or in connection with, a function under the Immigration Acts. |
| |
(2) | A magistrates’ court may, on the application of the Secretary of State or a |
| |
| |
(a) | order the delivery of property to the person appearing to the court to |
| 20 |
| |
(b) | if its owner cannot be ascertained, make any other order about |
| |
| |
(3) | An order shall not affect the right of any person to take legal proceedings for |
| |
the recovery of the property, provided that the proceedings are instituted |
| 25 |
within the period of six months beginning with the date of the order. |
| |
(4) | An order may be made in respect of property forfeited under section 24, or |
| |
under section 25C of the Immigration Act 1971 (c. 77) (vehicles, &c.), only if— |
| |
(a) | the application under subsection (2) above is made within the period of |
| |
six months beginning with the date of the forfeiture order, and |
| 30 |
(b) | the applicant (if not the Secretary of State) satisfies the court— |
| |
(i) | that the applicant did not consent to the offender’s possession |
| |
| |
(ii) | that the applicant did not know and had no reason to suspect |
| |
that the property was likely to be used, or was intended to be |
| 35 |
used, in connection with an offence. |
| |
(5) | The Secretary of State may make regulations for the disposal of property— |
| |
(a) | where the owner has not been ascertained, |
| |
(b) | where an order under subsection (2) cannot be made because of |
| |
| 40 |
(c) | where a court has declined to make an order under subsection (2) on |
| |
the grounds that the court is not satisfied of the matters specified in |
| |
| |
(6) | The regulations may make provision that is the same as or similar to provision |
| |
that may be made by regulations under section 2 of the Police (Property) Act |
| 45 |
|
| |
|
| |
|
1897 (c. 30) (or any similar enactment applying in relation to Scotland or |
| |
Northern Ireland); and the regulations— |
| |
(a) | may apply, with or without modifications, regulations under that Act, |
| |
(b) | may, in particular, provide for property to vest in the Secretary of State, |
| |
(c) | may make provision about the timing of disposal (which, in particular, |
| 5 |
may differ from provision made by or under the Police (Property) Act |
| |
| |
(d) | shall have effect only in so far as not inconsistent with an order of a |
| |
court (whether or not under subsection (2) above), |
| |
(e) | shall be made by statutory instrument, and |
| 10 |
(f) | shall be subject to annulment in pursuance of a resolution of either |
| |
| |
(7) | For the purposes of subsection (1) it is immaterial whether property is acquired |
| |
as a result of forfeiture or seizure or in any other way. |
| |
(8) | In the application of this section to Scotland a reference to a magistrates’ court |
| 15 |
is a reference to the sheriff. |
| |
| |
In section 28AA of the Immigration Act 1971 (c. 77) (arrest with warrant) for |
| |
subsection (1)(b) substitute— |
| |
“(b) | section 21(1) of the Immigration, Asylum and Nationality Act |
| 20 |
2006 (c. 13) (employment: offence).” |
| |
27 | Employment: search for personnel records |
| |
In section 28FA(7) of the Immigration Act 1971 (enforcement: search for |
| |
personnel records) for “an offence under section 8 of the Asylum and |
| |
Immigration Act 1996 (c. 49)” substitute “an offence under section 21 of the |
| 25 |
Immigration, Asylum and Nationality Act 2006”. |
| |
28 | Facilitation: arrival and entry |
| |
In section 25A(1)(a) of the Immigration Act 1971 (helping asylum seeker to |
| |
enter UK: offence) after “the arrival in” insert “, or the entry into,”. |
| |
29 | Facilitation: territorial application |
| 30 |
(1) | For section 25(4) and (5) of the Immigration Act 1971 (assisting unlawful |
| |
immigration: territorial application) substitute— |
| |
“(4) | Subsection (1) applies to things done whether inside or outside the |
| |
| |
(2) | In sections 25A(4) and 25B(4) (facilitation: asylum-seekers and deportees) for |
| 35 |
“Subsections (4) to (6)” substitute “Subsections (4) and (6)”. |
| |
| |
(1) | In section 4(1) of the Asylum and Immigration (Treatment of Claimants, etc.) |
| |
Act 2004 (c. 19) (trafficking) after “the arrival in” insert “, or the entry into,”. |
| |
|
| |
|
| |
|
(2) | For section 5(1) and (2) of that Act (trafficking: extent) substitute— |
| |
“(1) | Subsections (1) to (3) of section 4 apply to anything done whether inside |
| |
or outside the United Kingdom.” |
| |
(3) | In section 57(1) of the Sexual Offences Act 2003 (c. 42) (trafficking) after “the |
| |
arrival in” insert “, or the entry into,”. |
| 5 |
(4) | For sections 60(2) and (3) of that Act (trafficking: extent) substitute— |
| |
“(2) | Sections 57 to 59 apply to anything done whether inside or outside the |
| |
| |
| |
| 10 |
(1) | In this section “foreign criminal” means a person— |
| |
(a) | who is not a British citizen, |
| |
(b) | who is convicted in the United Kingdom of an offence, and |
| |
(c) | to whom Condition 1 or 2 applies. |
| |
(2) | Condition 1 is that the person is sentenced to a period of imprisonment of at |
| 15 |
| |
| |
(a) | the offence is specified by order of the Secretary of State under section |
| |
72(4)(a) of the Nationality, Immigration and Asylum Act 2002 (c. 41) |
| |
| 20 |
(b) | the person is sentenced to a period of imprisonment. |
| |
(4) | For the purpose of section 3(5)(a) of the Immigration Act 1971 (c. 77), the |
| |
deportation of a foreign criminal is conducive to the public good. |
| |
(5) | The Secretary of State must make a deportation order in respect of a foreign |
| |
criminal (subject to section 32). |
| 25 |
(6) | The Secretary of State may not revoke a deportation order made in accordance |
| |
with subsection (5) unless— |
| |
(a) | he thinks that an exception under section 32 applies, |
| |
(b) | the application for revocation is made while the foreign criminal is |
| |
outside the United Kingdom, or |
| 30 |
(c) | section 33(4) applies. |
| |
(7) | Subsection (5) does not create a private right of action in respect of |
| |
consequences of non-compliance by the Secretary of State. |
| |
| |
(1) | Section 31(4) and (5)— |
| 35 |
(a) | do not apply where an exception in this section applies (subject to |
| |
subsection (7) below), and |
| |
(b) | are subject to sections 7 and 8 of the Immigration Act 1971 |
| |
(Commonwealth citizens, Irish citizens, crew and other exemptions). |
| |
|
| |
|
| |
|
(2) | Exception 1 is where removal of the foreign criminal in pursuance of the |
| |
deportation order would breach— |
| |
(a) | a person's Convention rights, or |
| |
(b) | the United Kingdom’s obligations under the Refugee Convention. |
| |
(3) | Exception 2 is where the Secretary of State thinks that the foreign criminal was |
| 5 |
under the age of 18 on the date of conviction. |
| |
(4) | Exception 3 is where the removal of the foreign criminal from the United |
| |
Kingdom in pursuance of a deportation order would breach rights of the |
| |
foreign criminal under the Community treaties. |
| |
(5) | Exception 4 is where the foreign criminal— |
| 10 |
(a) | is the subject of a certificate under section 2 or 70 of the Extradition Act |
| |
| |
(b) | is in custody pursuant to arrest under section 5 of that Act, |
| |
(c) | is the subject of a provisional warrant under section 73 of that Act, |
| |
(d) | is the subject of an authority to proceed under section 7 of the |
| 15 |
Extradition Act 1989 (c. 33) or an order under paragraph 4(2) of |
| |
Schedule 1 to that Act, or |
| |
(e) | is the subject of a provisional warrant under section 8 of that Act or of |
| |
a warrant under paragraph 5(1)(b) of Schedule 1 to that Act. |
| |
(6) | Exception 5 is where any of the following has effect in respect of the foreign |
| 20 |
| |
(a) | a hospital order or guardianship order under section 37 of the Mental |
| |
| |
(b) | a hospital direction under section 45A of that Act, |
| |
(c) | a transfer direction under section 47 of that Act, |
| 25 |
(d) | a compulsion order under section 57A of the Criminal Procedure |
| |
(Scotland) Act 1995 (c. 46), |
| |
(e) | a guardianship order under section 58 of that Act, |
| |
(f) | a hospital direction under section 59A of that Act, |
| |
(g) | a transfer for treatment direction under section 136 of the Mental |
| 30 |
Health (Care and Treatment) (Scotland) Act 2003 (asp 13), or |
| |
(h) | an order or direction under a provision which corresponds to a |
| |
provision specified in paragraphs (a) to (g) and which has effect in |
| |
relation to Northern Ireland. |
| |
(7) | The application of an exception— |
| 35 |
(a) | does not prevent the making of a deportation order; |
| |
(b) | results in it being assumed neither that deportation of the person |
| |
concerned is conducive to the public good nor that it is not conducive |
| |
| |
| but section 31(4) applies despite the application of Exception 1 or 4. |
| 40 |
| |
(1) | Section 31(5) requires a deportation order to be made at a time chosen by the |
| |
| |
(2) | A deportation order may not be made under section 31(5) while an appeal or |
| |
further appeal against the conviction or sentence by reference to which the |
| 45 |
| |
|
| |
|
| |
|
(a) | has been instituted and neither withdrawn nor determined, or |
| |
| |
(3) | For the purpose of subsection (2)(b)— |
| |
(a) | the possibility of an appeal out of time with permission shall be |
| |
| 5 |
(b) | a person who has informed the Secretary of State in writing that the |
| |
person does not intend to appeal shall be treated as being no longer able |
| |
| |
(4) | The Secretary of State may withdraw a decision that section 31(5) applies, or |
| |
revoke a deportation order made in accordance with section 31(5), for the |
| 10 |
| |
(a) | taking action under the Immigration Acts or rules made under section |
| |
3 of the Immigration Act 1971 (c. 77) (immigration rules), and |
| |
(b) | subsequently taking a new decision that section 31(5) applies and |
| |
making a deportation order in accordance with section 31(5). |
| 15 |
| |
(1) | The Nationality, Immigration and Asylum Act 2002 (c. 41) is amended as |
| |
| |
(2) | At the end of section 79 (no deportation order pending appeal) add— |
| |
“(3) | This section does not apply to a deportation order which states that it is |
| 20 |
made in accordance with section 31(5) of the UK Borders Act 2007. |
| |
(4) | But a deportation order made in reliance on subsection (3) does not |
| |
invalidate leave to enter or remain, in accordance with section 5(1) of |
| |
the Immigration Act 1971, if and for so long as section 78 above |
| |
| 25 |
(3) | Before section 82(4) (general right of appeal) insert— |
| |
“(3A) | Subsection (2)(j) does not apply to a decision to make a deportation |
| |
order which states that it is made in accordance with section 31(5) of the |
| |
UK Borders Act 2007; but— |
| |
(a) | a decision that section 31(5) applies is an immigration decision |
| 30 |
for the purposes of this Part, and |
| |
(b) | a reference in this Part to an appeal against an automatic |
| |
deportation order is a reference to an appeal against a decision |
| |
of the Secretary of State that section 31(5) applies.” |
| |
| 35 |
(1) | A person who has served a period of imprisonment may be detained under the |
| |
authority of the Secretary of State— |
| |
(a) | while the Secretary of State considers whether section 31(5) applies, |
| |
| |
(b) | where the Secretary of State thinks that section 31(5) applies, pending |
| 40 |
the making of the deportation order. |
| |
(2) | Where a deportation order is made in accordance with section 31(5) the |
| |
Secretary of State shall exercise the power of detention under paragraph 2(3) of |
| |
|
| |
|
| |
|
Schedule 3 to the Immigration Act 1971 (detention pending removal) unless in |
| |
the circumstances the Secretary of State thinks it inappropriate. |
| |
(3) | A court determining an appeal against conviction or sentence may direct |
| |
release from detention under subsection (1) or (2). |
| |
(4) | Provisions of the Immigration Act 1971 (c. 77) which apply to detention under |
| 5 |
paragraph 2(3) of Schedule 3 to that Act shall apply to detention under |
| |
subsection (1) (including provisions about bail). |
| |
(5) | Paragraph 2(5) of Schedule 3 to that Act (residence, occupation and reporting |
| |
restrictions) applies to a person who is liable to be detained under subsection |
| |
| 10 |
| |
(1) | Where a deportation order against a foreign criminal states that it is made in |
| |
accordance with section 31(5) (“the automatic deportation order”) this section |
| |
shall have effect in place of the words from “A deportation order” to “after the |
| |
making of the deportation order against him” in section 5(3) of the Immigration |
| 15 |
Act 1971 (period during which family members may also be deported). |
| |
(2) | A deportation order may not be made against a person as belonging to the |
| |
family of the foreign criminal after the end of the relevant period of 8 weeks. |
| |
(3) | In the case of a foreign criminal who has not appealed in respect of the |
| |
automatic deportation order, the relevant period begins when an appeal can no |
| 20 |
longer be brought (ignoring any possibility of an appeal out of time with |
| |
| |
(4) | In the case of a foreign criminal who has appealed in respect of the automatic |
| |
deportation order, the relevant period begins when the appeal is no longer |
| |
pending (within the meaning of section 104 of the Nationality, Immigration |
| 25 |
and Asylum Act 2002 (c. 41)). |
| |
| |
(1) | In section 31(2) the reference to a person who is sentenced to a period of |
| |
imprisonment of at least 12 months— |
| |
(a) | does not include a reference to a person who receives a suspended |
| 30 |
sentence (unless a court subsequently orders that the sentence or any |
| |
part of it (of whatever length) is to take effect), |
| |
(b) | does not include a reference to a person who is sentenced to a period of |
| |
imprisonment of at least 12 months only by virtue of being sentenced |
| |
to consecutive sentences amounting in aggregate to more than 12 |
| 35 |
| |
(c) | includes a reference to a person who is sentenced to detention, or |
| |
ordered or directed to be detained, in an institution other than a prison |
| |
(including, in particular, a hospital or an institution for young |
| |
offenders) for at least 12 months, and |
| 40 |
(d) | includes a reference to a person who is sentenced to imprisonment or |
| |
detention, or ordered or directed to be detained, for an indeterminate |
| |
period (provided that it may last for 12 months). |
| |
(2) | In section 31(3)(b) the reference to a person who is sentenced to a period of |
| |
| 45 |
|
| |
|
| |
|
(a) | does not include a reference to a person who receives a suspended |
| |
sentence (unless a court subsequently orders that the sentence or any |
| |
part of it is to take effect), and |
| |
(b) | includes a reference to a person who is sentenced to detention, or |
| |
ordered or directed to be detained, in an institution other than a prison |
| 5 |
(including, in particular, a hospital or an institution for young |
| |
| |
(3) | For the purposes of section 31 a person subject to an order under section 5 of |
| |
the Criminal Procedure (Insanity) Act 1964 (c. 84) (insanity, &c.) has not been |
| |
| 10 |
(4) | In sections 31 and 32— |
| |
(a) | “British citizen” has the same meaning as in section 3(5) of the |
| |
Immigration Act 1971 (c. 77) (and section 3(8) (burden of proof) shall |
| |
| |
(b) | “Convention rights” has the same meaning as in the Human Rights Act |
| 15 |
| |
(c) | “deportation order” means an order under section 5, and by virtue of |
| |
section 3(5), of the Immigration Act 1971, and |
| |
(d) | “the Refugee Convention” means the Convention relating to the Status |
| |
of Refugees done at Geneva on 28th July 1951 and its Protocol. |
| 20 |
38 | Consequential amendments |
| |
(1) | This section amends section 72(11)(b) of the Nationality, Immigration and |
| |
Asylum Act 2002 (c. 41) (removal: serious criminal: interpretation). |
| |
(2) | In sub-paragraph (i) for “(unless at least two years of the sentence are not |
| |
suspended)” substitute “(unless a court subsequently orders that the sentence |
| 25 |
or any part of it is to take effect)”. |
| |
(3) | After sub-paragraph (i) insert— |
| |
“(ia) | does not include a reference to a person who is |
| |
sentenced to a period of imprisonment of at least two |
| |
years only by virtue of being sentenced to consecutive |
| 30 |
sentences which amount in aggregate to more than two |
| |
| |
| |
39 | Supply of Revenue and Customs information |
| |
(1) | Her Majesty’s Revenue and Customs (HMRC) and the Revenue and Customs |
| 35 |
Prosecutions Office (the RCPO) may each supply the Secretary of State with |
| |
information for use for the purpose of— |
| |
(a) | administering immigration control under the Immigration Acts; |
| |
(b) | preventing, detecting, investigating or prosecuting offences under |
| |
| 40 |
(c) | determining whether to impose, or imposing, penalties or charges |
| |
under Part II of the Immigration and Asylum Act 1999 (c. 33) (carriers’ |
| |
| |
|
| |
|