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These notes refer to the UK Borders Bill as brought from the House of Commons on 10th May 2007 [HL Bill 68]
UK BORDERS BILL
EXPLANATORY NOTES
INTRODUCTION
1. These explanatory notes relate to the UK Borders Bill as brought from the House of Commons on 10th May 2007. They have been prepared by the Home Office in order to assist the reader of the Bill and have not been endorsed by Parliament.
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 clause or part of a clause does not seem to require any explanation or comment, none is given.
SUMMARY
Powers at ports
3. Clauses 1 to 4 provide for the Secretary of State to designate immigration officers acting at ports in England and Wales and Northern Ireland to have the power to detain an individual pending the arrival of a police constable and create offences of absconding from detention, and assaulting or obstructing an immigration officer in the course of exercising this power and the punishments associated with each. The meaning of "port" for these purposes is also defined.
Biometric registration
4. Clauses 5 and 6 confer a power to make regulations to require those subject to immigration control to apply for a document recording external physical characteristics a "biometric immigration document"; and to require a biometric immigration document to be used for specified immigration purposes, in connection with specified immigration procedures, and in specified circumstances where a question arises about a person's status in relation to nationality or immigration.
5. Clauses 7 to 15 deal with the effects and consequences of non-compliance with compulsory registration, including associated penalties, appeal rights and also how provision ought to be made for the use and destruction of an individual's biometric records.
1. Treatment of claimants
6. Clause 16 amends section 3(1)(c) of the Immigration Act 1971 to provide that reporting and residency conditions may be imposed on those with limited leave to enter or remain in the UK.
7. Clause 17 provides that an asylum-seeker remains eligible for support during an appeal related to his asylum claim. Support will be available also for those qualifying as dependants for support purposes.
8. Clause 18 provides for a power of arrest without warrant for an immigration officer in connection with offences under sections 105 and 106 of the Immigration and Asylum Act 1999 (offences relating to asylum support fraud). It also provides that certain associated powers for immigration officers shall apply to those offences.
9. Clause 19 defines the conditions under which late evidence may not be included in an appeal against the refusal of a Points-based application.
10. Clause 20 amends section 42 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 and in doing so provides new powers to (i) over-cost charge in respect of applications or processes in connection with the sponsorship of migrants and (ii) to cross-subsidise between certain in-country services and between certain in-country and overseas services.
Enforcement
11. Clauses 21 and 22 create an offence of assaulting an immigration officer and give immigration officers the power to arrest a person who has committed or is about to commit such an offence.
12. Clauses 23 to 25 deal with the conditions under which cash may be seized and detained property forfeited and disposed of.
13. Clauses 26 and 27 cover the arrest of individuals who knowingly employ an illegal worker and searches that may be made by immigration officers for personnel records.
14. Clause 28 is an amendment that ensures that acts committed after an asylum seeker has arrived in the United Kingdom but before they have entered will be covered by the offence of facilitating an asylum-seeker's entry to the United Kingdom.
15. Clause 29 is an amendment that ensures that those non-UK citizens who commit acts of facilitation whilst outside of the UK in order to secure the illegal entry of individuals to the UK fall within the scope of the various facilitation offences.
16. Clause 30 amends existing trafficking for exploitation offences to ensure that acts committed after a person has arrived in the United Kingdom, but before they have entered, will be covered by the offences. This clause will also extend the extraterritorial application of the trafficking offences to cover acts of facilitation carried out overseas, irrespective of the nationality of the person carrying out the acts.
Deportation of criminals
17. Clauses 31 to 38 detail the conditions and procedure under which a foreign national prisoner will be automatically deported. They specify those foreign nationals subject to compulsory deportation and the sentences that will trigger it. They also detail permissible appeals, timings of deportation and detention beyond the end of sentence. Clarity around the sentences and the definitions of key phrases in these clauses is given in clause 37.
Information
18. Clauses 39 to 42 deal with the information sharing arrangements between the Border and Immigration Agency, HM Revenue and Customs (HMRC) and Revenue and Customs Prosecution Office. This includes confidentiality and wrongful disclosure.
19. Clauses 43 to 45 allow an immigration officer or a police constable to search premises for evidence of an arrested individual's nationality and to retain and copy these documents. Clause 46 enables a designated police civilian to exercise these powers.
Border and Immigration Inspectorate
20. Clauses 47 to 55 establish a single independent inspectorate for the Border and Immigration Agency. This will replace the existing inspecting bodies.
BACKGROUND
21. The UK Borders Bill will implement elements of the IND Review 'Fair, Effective, Transparent and Trusted: Rebuilding Confidence in our Immigration System', published in July 2006. The Bill is part of a package of measures to underpin the Border and Immigration Agency which consists of new powers, a substantial increase in enforcement resource and exploitation of identity technology, in particular to tackle illegal working.
TERRITORIAL EXTENT
22. The Bill extends to the whole of the UK, except for clauses 1-4 relating to powers of immigration officers at ports and clause 24 relating to forfeiture of property and clause 30(1) and (2) relating to trafficking offences. These extend only to England, Wales and Northern Ireland.
23. Because the Sewel Convention provides that Westminster will not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament, if there are amendments relating to such matters which trigger the Convention, the consent of the Scottish Parliament will be sought for them.
COMMENTARY ON CLAUSES
Part 1: Powers at ports
Clause 1 to 4: Designated immigration officers with powers to detain
24. Clauses 1 and 2 allow the Secretary of State to designate individual immigration officers acting in a port in England and Wales or Northern Ireland as having the power to detain a person where the immigration officer considers him someone who a constable could arrest without a warrant pursuant to section 24(1), (2) or (3) of the Police and Criminal Evidence Act 1984 (or the equivalent powers in Northern Ireland) or where a warrant is outstanding for the individual. This detention will be pending the arrival of a constable and is subject to a maximum detention period of three hours. The immigration officer may search a person detained under clause 2 for anything that could be used to assist escape or to cause physical injury and may pursue a person and return him to the port if the person attempts to abscond from detention. Clause 2 also enables Detainee Custody Officers to provide detention services in respect of individuals detained under this clause.
25. Clause 3 creates offences of absconding from detention, and assaulting or obstructing an immigration officer in the course of exercising this power and the sanctions associated with each.
26. Clause 4 defines "port" for the purpose of this power.
Part 2: Biometric Registration
Clause 5 to 16: Registration of those subject to border control
27. Clause 5(1)(a) enables the Secretary of State to make regulations requiring a person subject to immigration control to apply for the issue of a document recording information about his external physical characteristics. This document is called a "biometric immigration document". Regulations may require a biometric immigration document to be used for specified immigration purposes, in connection with specified immigration procedures or in specified circumstances where a question arises about a person's status in relation to nationality and immigration (subsection (1)(b)). The regulations may also provide that a person who produces a biometric immigration document pursuant to a requirement imposed under the regulations may be required to provide information to enable a comparison to be made between that information and information provided in connection with the application for the document (e.g. fingerprints). "External physical characteristics" includes fingerprints and features of the iris or any other part of the eye (subsection(1)(c)). "Document" includes a card or sticker and any other method of recording information, whether in writing, by the use of electronic or other technology, or by a combination of methods (subsection (1)(d)). A "person subject to immigration control" means a person who, under the Immigration Act 1971, requires leave to enter or remain in the United Kingdom, whether or not leave has been given.
28. Clause 5(2) provides that the regulations requiring a person subject to immigration control to apply for the issue of a biometric immigration document (under clause 5(1)(a)) may, in particular, apply generally or to a specific class of persons subject to immigration control. A specific class may include persons making or seeking to make a specified kind of application for immigration purposes. The regulations may specify a period within which the person is required to apply for the biometric immigration document (subsection(2)(b)). They may make provision about the issue and contents of a biometric immigration document, for a biometric immigration document to be combined with another document, and for a biometric immigration document to begin to have effect and cease to have effect (subsection (2)(c), (d), (e) and (f)). The regulations may make provision permitting or requiring the Secretary of State to suspend or cancel a biometric immigration document in specified circumstances, or to require the holder of the document to notify the Secretary of State in certain circumstances (subsection (2)(g) and (h)). Regulations may also provide for the surrender of the biometric immigration document (subsection 5(2)(i) and (j)). The regulations may enable the Secretary of State to require the surrender of other documents on issuing a biometric immigration document (subsection (2)(k)).
29. Clause 5(3) provides that a person applying for a biometric immigration document may be required by regulations to provide information, (which may include biographical and or other non-biometric information). In particular, the regulations or rules may require or enable an authorised person to require the provision of information in a specified form (subsection (3)(a)). The regulations may require an individual to submit, or enable an authorised person to require an individual to submit, to a specified process by means of which biometric information is obtained or recorded (subsection (3)(b)). The regulations may confer a function on an authorised person, which may include the exercise of a discretion (subsection (3)(c)). They may permit the Secretary of State, instead of requiring the provision of information, to use or retain information which he already has in his possession (subsection (3)(d)). They may require an authorised person to have regard to a code (subsection (3)(e) and (f)). An "authorised person" means a constable, an immigration officer, a prison officer, an officer of the Secretary of State authorised for the purpose, or a person who is employed by a contractor in connection with the discharge of the contractor's duties under a removal centre contract (clause 15(1)(e)). Regulations under subsection (1)(c) (requiring a person producing a biometric immigration document to provide information for the purposes of allowing a comparison to be made) may, in particular, make provision of the same kind as that specified above for regulations in relation to a person applying for a biometric immigration document, with the exception that they will not be able to confer a function on an authorised person. Subsection (5) provides that immigration rules made under section 3 of the Immigration Act 1971 may require a person applying for a biometric immigration document to provide non-biometric information to be recorded in it or retained by the Secretary of State.
30. Clause 5(4) provides that regulations made under clause 5(1)(b) may require the production or use of a biometric immigration document that is combined with another document, including an identity card. If a biometric immigration document were to be combined with an identity card this provision also makes it clear that clause 5 take precedence over section 16 of the Identity Card Act 2006.
31. Clause 5(5) prevents the Secretary of State from making regulations that would in effect require a person issued with a biometric immigration document having to carry it with them at all times.
32. Clause 5(7) provides that subsections (3) to (6) are without prejudice to the generality of section 50 of the Immigration, Asylum, and Nationality Act 2006.
33. Clause 6 makes supplementary provision in respect of regulations under clause 5. Regulations amending or replacing earlier regulations may require a person who holds a biometric immigration document issued under the earlier regulations to apply under the new regulations (subsection (2)). Provision must be made, where a person under the age of 16 is required by or in accordance with regulations to submit to a process for recording biometric information, which is similar to sections 141(3) to (5) and (13) of the Immigration and Asylum Act 1999 (clause 6(3)). Section 141(3) to (5) provides that fingerprints may not be taken from a person under 16 except in the presence of an adult who is the child's parent or guardian, or a person who takes responsibility for the child for the time being. An authorised person may not act as the responsible adult in this situation.
34. Clause 6(4) provides that rules made under section 3 of the Immigration Act 1971 (the Immigration Rules) may make provision by reference to the compliance or non-compliance with regulations. Under clause 6(5), information which is in the possession of the Secretary of State which is used or retained in accordance with clause 5(3)(d) shall be treated for the purposes of requirements about treatment and destruction as having been provided in accordance with the regulations at the time which it is used or retained in accordance with them.
35. Clause 6(6) provides that regulations may make provision having effect generally or in specific cases and circumstances, may make different provision for different cases and circumstances, may include incidental, consequential or transitional provision, shall be made by statutory instrument, and shall not be made unless laid in draft before Parliament and approved by a resolution of each House.
36. Clause 7 makes provision for the effect of non-compliance. Regulations made under clause 5(1) shall include provision about the effect of failure to comply with a requirement of the regulations. In particular, regulations may provide for an application for a biometric immigration document to be refused, an application or claim in connection with immigration to be disregarded or refused, the cancellation or variation of leave to enter or remain in the United Kingdom, the Secretary of State to consider giving a penalty notice, or the consequence of failure to be at the discretion for the Secretary of State (clause 7(2)).
37. Clause 8(1) makes provision about the use and retention of information. Regulations made under clause 5(1) must make provision about use and retention of biometric information provided in accordance with regulations. This may include provision permitting the use of information for specified purposes which do not relate to immigration.
38. Clause 8(2) provides that biometric information can be used by the Secretary of State for specified non immigration purposes, e.g. when using Royal Prerogative powers to issue British passports to British Nationals without a right of abode in the UK.
39. Clause 8(3) provides that regulations under clause 5(1) must include provision about the destruction of information obtained or recorded by virtue of the regulations or Immigration Rules made by virtue of clause 5(3). They must require the destruction of information if the Secretary of State thinks that it is no longer likely to be of use in accordance with provision made about the use and retention of information, or in connection with a function under the Immigration Act 1971. Regulations must include provision similar to section 143(2) and (10) to (13) of the Immigration and Asylum Act 1999 (which makes provision about the destruction of fingerprint data taken under section 141 of that Act).
40. Clause 8(4) provides that a requirement to destroy information shall not apply if an in so far as the information is retained in accordance with and for the purposes of another enactment.
41. Clauses 9 to 14 make provision for a civil penalty scheme for failure to comply with a requirement under regulations made under clause 5. Under clause 9 the Secretary of State may by notice require a person to pay a penalty for failing to comply with a requirement of the regulations. The notice must specify the amount of the penalty and the date before which the penalty must be paid (which must not be fewer than 14 days after the date on which the notice is given) (subsection 9(2)(a) and (b) and (4)). The notice must specify methods by which the penalty must be paid and explain the grounds on which the Secretary of State thinks the person has failed to comply with the regulations (subsection (2)(c) and (d)). The penalty notice must explain how the person can object to the penalty and appeal the penalty, and how the penalty may be enforced (subsection (2)(e)).
42. Clause 9(3) sets the maximum amount of penalty that may be levied, £1,000. The Secretary of State may, by order, change this limit to reflect a change in the value of money (clause 9(6)).
43. Clause 9(5) provides that a person who has been given a penalty notice may be given a further penalty notice in the case of continued failure. However, the further notice may not be given during the time available for objection or appeal against the previous notice, nor while an objection or appeal is pending.
44. Clause 10(1) provides that a person who has been given a penalty notice may by notice object to the Secretary of State on the grounds that he has not failed to comply with a requirement of the regulations, it is unreasonable to expect him to pay the penalty or the amount of the penalty is excessive. A notice of objection must specify the grounds of objection and the person's reasons for objecting (subsection (2)(a)). It must comply with any prescribed requirements as to form and content (subsection (2)(b)). The notice must also be given within a prescribed period (subsection (2)(c)). Under clause 10(3) the Secretary of State shall consider the notice of objection and cancel the penalty notice, reduce the penalty by varying the original penalty notice, increase the penalty by issuing a new penalty notice, or confirm the penalty notice. The Secretary of State shall do so in accordance with any prescribed requirements and within a prescribed period, unless the person and the Secretary of State agree a longer time period (subsection (4)).
45. Clause 11(1) provides that a person given a penalty notice may appeal that notice to a county court in England and Wales or Northern Ireland, or to the sheriff in Scotland. An appeal may be brought on the grounds that the person has not failed to comply with a requirement of the regulations, it is unreasonable to expect the person to pay the penalty, or the amount of the penalty is excessive. The court may then cancel the penalty notice, reduce the penalty by varying the penalty notice, increase the penalty notice, or confirm the penalty notice (subsection (3)). An appeal may be brought whether or not the person has objected, and irrespective of the Secretary of State's decision on any notice of objection (subsection (4)). The court may consider matters of which the Secretary of State was not and could not have been aware before giving the penalty notice (subsection (5)).
46. Clause 12 makes provision for enforcement of a penalty. Where a penalty has not been paid before the specified date, it may be recovered as a debt due to the Secretary of State (subsection (1)). However where an objection notice is given in respect of a penalty notice, the Secretary of State may not take steps to enforce the penalty notice before he has decided what to do in respect of the objection, and has informed the objector (subsection (2)). Additionally, the Secretary of State may not take steps to enforce the penalty notice while an appeal under clause 11 could be brought (disregarding the possibility of an appeal out of time) or has been brought and has not been determined or abandoned (subsection (3)). In proceedings for the recovery of a penalty, no question may be raised in respect of matters which are grounds for objection or for appeal (clause 12(3)).
47. Clause 12(5) requires that any money received by the Secretary of State in respect of a penalty under clause 9 are paid into the Consolidated Fund.
48. Clause 13 makes provision for a code of practice in respect of the civil penalty scheme. Under subsection (1) the Secretary of State shall issue a code of practice setting out the matters to be considered in determining whether to give a penalty notice and the amount of the penalty. The code may, in particular, require the Secretary of State to consider any decision already taken in respect of non-compliance with a requirement of the regulations (subsection (2)). The Secretary of State may revise and re-issue the code (subsection (4)). Subsection (5) provides that before issuing or re-issuing the code the Secretary of State must publish proposals, consult members of the public and lay a draft before Parliament. Subsection (6) provides that the code shall come into force at the prescribed time.
49. Where a matter is "prescribed" under the civil penalty scheme, this means prescribed by order (clause 14(1)). An order may make provision generally or only for specified purposes, may make different provision for different purposes, shall be made by statutory instrument and is subject to annulment in pursuance of a resolution of either House of Parliament.
50. Clause 15(1) makes provision for the interpretation of clause 5. Clause 15(1)(g) provides that regulations may (but need not) enable something to be done by the Secretary of State only where the Secretary of State is of a specified opinion.
51. Clause 15(2) enables further provision to be made concerning the procedure to be followed, and for the charging of fees for an application for a biometric immigration document.
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