|
| |
|
(3) | The Secretary of State may not take steps to enforce a penalty notice while an |
| |
| |
(a) | could be brought (disregarding any possibility of an appeal out of time |
| |
| |
(b) | has been brought and has not been determined or abandoned. |
| 5 |
(4) | In proceedings for the recovery of a penalty no question may be raised as to the |
| |
matters specified in sections 10 and 11 as grounds for objection or appeal. |
| |
(5) | Money received by the Secretary of State in respect of a penalty shall be paid |
| |
into the Consolidated Fund. |
| |
13 | Penalty: code of practice |
| 10 |
(1) | The Secretary of State shall issue a code of practice setting out the matters to be |
| |
considered in determining— |
| |
(a) | whether to give a penalty notice under section 9(1), and |
| |
(b) | the amount of a penalty. |
| |
(2) | The code may, in particular, require the Secretary of State to consider any |
| 15 |
decision taken by virtue of section 7. |
| |
(3) | A court or the sheriff shall, when considering an appeal under section 11, have |
| |
| |
(4) | The Secretary of State may revise and re-issue the code. |
| |
(5) | Before issuing or re-issuing the code the Secretary of State must— |
| 20 |
| |
(b) | consult members of the public, and |
| |
(c) | lay a draft before Parliament. |
| |
(6) | The code (or re-issued code) shall come into force at the prescribed time. |
| |
14 | Penalty: prescribed matters |
| 25 |
(1) | In sections 10 to 13 “prescribed” means prescribed by the Secretary of State by |
| |
| |
(2) | An order under subsection (1) or under section 9(6)— |
| |
(a) | may make provision generally or only for specified purposes, |
| |
(b) | may make different provision for different purposes, |
| 30 |
(c) | shall be made by statutory instrument, and |
| |
(d) | shall be subject to annulment in pursuance of a resolution of either |
| |
| |
| |
(1) | For the purposes of section 5— |
| 35 |
(a) | “person subject to immigration control” means a person who under the |
| |
Immigration Act 1971 (c. 77) requires leave to enter or remain in the |
| |
United Kingdom (whether or not such leave has been given), |
| |
(b) | “biometric information” means information about external physical |
| |
| 40 |
(c) | “external physical characteristics” includes, in particular— |
| |
|
| |
|
| |
|
| |
(ii) | features of the iris or any other part of the eye, |
| |
(d) | “document” includes a card or sticker and any other method of |
| |
recording information (whether in writing or by the use of electronic or |
| |
other technology or by a combination of methods), |
| 5 |
(e) | “authorised person” has the meaning given by section 141(5) of the |
| |
Immigration and Asylum Act 1999 (c. 33) (authority to take |
| |
| |
(f) | “immigration” includes asylum, and |
| |
(g) | regulations permitting something to be done by the Secretary of State |
| 10 |
may (but need not) permit it to be done only where the Secretary of |
| |
State is of a specified opinion. |
| |
(2) | An application for a biometric immigration document is an application in |
| |
connection with immigration for the purposes of— |
| |
(a) | section 50(1) and (2) of the Immigration, Asylum and Nationality Act |
| 15 |
2006 (c. 13) (procedure), and |
| |
(b) | section 51 of that Act (fees); |
| |
| and in the application of either of those sections to an application for a |
| |
biometric immigration document, the prescribed consequences of non- |
| |
compliance may include any of the consequences specified in section 7(2) |
| 20 |
| |
| |
16 | Conditional leave to enter or remain |
| |
After section 3(1)(c)(iii) of the Immigration Act 1971 (c. 77) (limited leave to |
| |
enter or remain: conditions) insert— |
| 25 |
“(iv) | a condition requiring him to report to an immigration |
| |
officer or the Secretary of State; and |
| |
(v) | a condition about residence.” |
| |
17 | Support for failed asylum-seekers |
| |
(1) | This section applies for the purposes of— |
| 30 |
(a) | Part 6 (and section 4) of the Immigration and Asylum Act 1999 (support |
| |
and accommodation for asylum-seekers), |
| |
(b) | Part 2 of the Nationality, Immigration and Asylum Act 2002 (c. 41) |
| |
(accommodation centres), and |
| |
(c) | Schedule 3 to that Act (withholding and withdrawal of support). |
| 35 |
(2) | A person (A-S) remains (or again becomes) an asylum-seeker, despite the fact |
| |
that the claim for asylum made by A-S has been determined, during any period |
| |
| |
(a) | A-S can bring an in-country appeal against an immigration decision |
| |
under section 82 of the 2002 Act or section 2 of the Special Immigration |
| 40 |
Appeals Commission Act 1997 (c. 68), or |
| |
(b) | an in-country appeal, brought by A-S under either of those sections |
| |
against an immigration decision, is pending (within the meaning of |
| |
section 104 of the 2002 Act). |
| |
(3) | For the purposes of subsection (2)— |
| 45 |
|
| |
|
| |
|
(a) | “in-country” appeal means an appeal brought while the appellant is in |
| |
| |
(b) | the possibility of an appeal out of time with permission shall be |
| |
| |
(4) | For the purposes of the provisions mentioned in subsection (1)(a) and (b), a |
| 5 |
person’s status as an asylum-seeker by virtue of subsection (2)(b) continues for |
| |
a prescribed period after the appeal ceases to be pending. |
| |
(5) | In subsection (4) “prescribed” means prescribed by regulations made by the |
| |
Secretary of State; and the regulations— |
| |
(a) | may contain incidental or transitional provision, |
| 10 |
(b) | may make different provision for different classes of case, |
| |
(c) | shall be made by statutory instrument, and |
| |
(d) | shall be subject to annulment in pursuance of a resolution of either |
| |
| |
(6) | This section shall be treated as always having had effect. |
| 15 |
18 | Support for asylum-seekers: enforcement |
| |
In Part 6 of the Immigration and Asylum Act 1999 (c. 33) (support for asylum- |
| |
seekers) after section 109 (offences: supplemental) insert— |
| |
| |
An immigration officer may arrest without warrant a person whom the |
| 20 |
immigration officer reasonably suspects has committed an offence |
| |
under section 105 or 106. |
| |
109B | Entry, search and seizure |
| |
(1) | An offence under section 105 or 106 shall be treated as— |
| |
(a) | a relevant offence for the purposes of sections 28B and 28D of |
| 25 |
the Immigration Act 1971 (c. 77) (search, entry and arrest), and |
| |
(b) | an offence under Part 3 of that Act (criminal proceedings) for |
| |
the purposes of sections 28(4), 28E, 28G and 28H (search after |
| |
arrest, &c.) of that Act. |
| |
(2) | The following provisions of the Immigration Act 1971 shall have effect |
| 30 |
in connection with an offence under section 105 or 106 of this Act as |
| |
they have effect in connection with an offence under that Act— |
| |
(a) | section 28I (seized material: access and copying), |
| |
(b) | section 28J (search warrants: safeguards), |
| |
(c) | section 28K (execution of warrants), and |
| 35 |
(d) | section 28L(1) (interpretation).” |
| |
19 | Points-based applications: no new evidence on appeal |
| |
(1) | For section 85(5) of the Nationality, Immigration and Asylum Act 2002 (c. 41) |
| |
(appeal: new evidence may be considered: exception) substitute— |
| |
“(5) | But subsection (4) is subject to the exceptions in section 85A.” |
| 40 |
|
| |
|
| |
|
(2) | After section 85 of that Act insert— |
| |
“85A | Matters to be considered: new evidence: exceptions |
| |
(1) | This section sets out the exceptions mentioned in section 85(5). |
| |
(2) | Exception 1 is that in relation to an appeal under section 82(1) against |
| |
an immigration decision of a kind specified in section 82(2)(b) or (c) the |
| 5 |
Tribunal may consider only the circumstances appertaining at the time |
| |
| |
(3) | Exception 2 applies to an appeal under section 82(1) if— |
| |
(a) | the appeal is against an immigration decision of a kind specified |
| |
in section 82(2)(a) or (d), |
| 10 |
(b) | the immigration decision concerned an application of a kind |
| |
identified in immigration rules as requiring to be considered |
| |
under a “Points Based System”, and |
| |
(c) | the appeal relies wholly or partly on grounds specified in |
| |
section 84(1)(a), (e) or (f). |
| 15 |
(4) | Where Exception 2 applies the Tribunal may consider evidence |
| |
adduced by the appellant only if it— |
| |
(a) | was submitted in support of, and at the time of making, the |
| |
application to which the immigration decision related, |
| |
(b) | relates to the appeal in so far as it relies on grounds other than |
| 20 |
those specified in subsection (3)(c), |
| |
(c) | is adduced to prove that a document is genuine or valid, or |
| |
(d) | is adduced in connection with the Secretary of State’s reliance |
| |
on a discretion under immigration rules, or compliance with a |
| |
requirement of immigration rules, to refuse an application on |
| 25 |
grounds not related to the acquisition of “points” under the |
| |
| |
(5) | Immigration rules may make provision about the circumstances in |
| |
which evidence is to be treated, or not treated, as submitted in support |
| |
of, and at the time of making, an application.” |
| 30 |
| |
(1) | Section 42 of the Asylum and Immigration (Treatment of Claimants, etc.) Act |
| |
2004 (c. 19) (fees: power to set amount in excess of costs) is amended as follows. |
| |
(2) | In subsection (2) after paragraph (d) insert— |
| |
“(da) | an application or process in connection with sponsorship of |
| 35 |
persons seeking leave to enter or remain in the United |
| |
| |
(3) | After that subsection insert— |
| |
“(2A) | Regulations under section 51(3) of the Immigration, Asylum and |
| |
Nationality Act 2006 (c. 13) (fees), specifying the amount of a fee for a |
| 40 |
claim, application, service, process or other matter in respect of which |
| |
an order has been made under section 51(1) or (2), may specify an |
| |
amount which reflects (in addition to any costs referable to the claim, |
| |
application, service, process or other matter) costs referable to— |
| |
|
| |
|
| |
|
(a) | any other claim, application, service, process or matter in |
| |
respect of which the Secretary of State has made an order under |
| |
| |
(b) | the determination of applications for entry clearances (within |
| |
the meaning given by section 33(1) of the Immigration Act 1971 |
| 5 |
(c. 77) (interpretation), |
| |
(c) | the determination of applications for transit visas under section |
| |
41 of the Immigration and Asylum Act 1999 (c. 33) (transit |
| |
| |
(d) | the determination of applications for certificates of entitlement |
| 10 |
to the right of abode in the United Kingdom under section 10 of |
| |
the Nationality, Immigration and Asylum Act 2002 (c. 41).” |
| |
(4) | After subsection (3) insert— |
| |
“(3A) | The amount of a fee under section 1 of the Consular Fees Act 1980 (c. 23) |
| |
in respect of a matter specified in subsection (2A)(b) to (d) above may |
| 15 |
be set so as to reflect costs referable to any claim, application, service, |
| |
process or other matter in respect of which the Secretary of State has |
| |
made an order under section 51(1) or (2) of the Immigration, Asylum |
| |
and Nationality Act 2006 (c. 13).” |
| |
| 20 |
21 | Assaulting an immigration officer: offence |
| |
(1) | A person who assaults an immigration officer commits an offence. |
| |
(2) | A person guilty of an offence under this section shall be liable on summary |
| |
| |
(a) | imprisonment for a period not exceeding 51 weeks, |
| 25 |
(b) | a fine not exceeding level 5 on the standard scale, or |
| |
| |
(3) | In the application of this section to Northern Ireland the reference in subsection |
| |
(2)(a) to 51 weeks shall be treated as a reference to 6 months. |
| |
(4) | In the application of this section to Scotland the reference in subsection (2)(a) |
| 30 |
to 51 weeks shall be treated as a reference to 12 months. |
| |
(5) | In relation to an offence committed before the commencement of section 281(5) |
| |
of the Criminal Justice Act 2003 (c. 44) (51 week maximum term of sentences) |
| |
the reference in subsection (2)(a) to 51 weeks shall be treated as a reference to |
| |
| 35 |
22 | Assaulting an immigration officer: powers of arrest, &c. |
| |
(1) | An immigration officer may arrest a person without warrant if the officer |
| |
reasonably suspects that the person has committed or is about to commit an |
| |
offence under section 21. |
| |
(2) | An offence under section 21 shall be treated as— |
| 40 |
(a) | a relevant offence for the purposes of sections 28B and 28D of the |
| |
Immigration Act 1971 (search, entry and arrest), and |
| |
|
| |
|
| |
|
(b) | an offence under Part 3 of that Act (criminal proceedings) for the |
| |
purposes of sections 28(4), 28E, 28G and 28H (search after arrest, &c.) of |
| |
| |
(3) | The following provisions of the Immigration Act 1971 (c. 77) shall have effect |
| |
in connection with an offence under section 21 of this Act as they have effect in |
| 5 |
connection with an offence under that Act— |
| |
(a) | section 28I (seized material: access and copying), |
| |
(b) | section 28J (search warrants: safeguards), |
| |
(c) | section 28K (execution of warrants), and |
| |
(d) | section 28L(1) (interpretation). |
| 10 |
| |
(1) | Chapter 3 of Part 5 of the Proceeds of Crime Act 2002 (c. 29) (recovery of cash) |
| |
shall apply in relation to an immigration officer as it applies in relation to a |
| |
| |
| 15 |
(a) | “unlawful conduct”, in or in relation to section 289, means an offence |
| |
under the Immigration Acts, |
| |
(b) | “unlawful conduct”, in or in relation to other provisions, means an |
| |
| |
(i) | under the Immigration Acts, or |
| 20 |
(ii) | listed in section 14(2) of the Asylum and Immigration |
| |
(Treatment of Claimants, etc.) Act 2004 (c. 19), |
| |
(c) | “senior officer” in section 290 means an official of the Secretary of State |
| |
who is a civil servant of the rank of at least Assistant Director, |
| |
(d) | in section 292 the words “(in relation to England and Wales and |
| 25 |
Northern Ireland)” shall be disregarded, |
| |
(e) | section 293 shall not apply, |
| |
(f) | an application for an order under section 295(2) must be made— |
| |
(i) | in relation to England and Wales or Northern Ireland, by an |
| |
| 30 |
(ii) | in relation to Scotland, by the Scottish Ministers in connection |
| |
with their functions under section 298 or by a procurator fiscal, |
| |
(g) | an application for forfeiture under section 298 must be made— |
| |
(i) | in relation to England and Wales or Northern Ireland, by an |
| |
| 35 |
(ii) | in relation to Scotland, by the Scottish Ministers, and |
| |
(h) | any compensation under section 302 shall be paid by the Secretary of |
| |
| |
(3) | The Secretary of State may by order amend subsection (2)(c) to reflect a change |
| |
in nomenclature; and an order— |
| 40 |
(a) | shall be made by statutory instrument, and |
| |
(b) | shall be subject to annulment in pursuance of a resolution of either |
| |
| |
|
| |
|