APPENDIX 1: UK BORDERS BILL
Memorandum by the Home Office
1. The UK Borders Bill implements 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.
2. This memorandum identifies provisions for
delegated legislation in the Bill (as amended in the House of
Commons). It seeks to explain the purpose of the delegated powers
taken; describe why the Department considers that its subject
matter is suitable for delegated legislation; and explain the
Parliamentary procedure selected for each power and why it has
been chosen.
Biometric Registration
Clause 5: Power to make regulations requiring
a person subject to immigration control to apply for the issue
of a document recording biometric information (a "biometric
immigration document"), and to require that the document
be used for specified purposes or in specified circumstances,
and to require the person who produces the document to provide
information for comparison with information provided in connection
with the application for the document.
Clause 6: General supplemental provision in respect
of clause 5
Clause 7: Supplemental provision for the effect
of non-compliance with regulations made under clause 5
Clause 8: Supplemental provision about the use
and retention of information provided in accordance with regulations
made under clause 5
Clause 15(1): Supplemental provision about interpretation
of clause 5, including provision enabling the regulations to provide
that something may be done only where the Secretary of State is
of a specified opinion
Powers conferred on: Secretary of State
Powers exercised by: Regulations made by Statutory
Instrument (or, in the case of clause 5(5) and 6(4) only, under
the Immigration Rules)
Parliamentary procedure: Affirmative resolution
(or, in the case of clause 5(5) and 6(4), in accordance with the
procedure for the Immigration Rules under section 3(2) of the
Immigration Act 1971)
Summary of the clauses
3. Clause 5(1)(a) gives the Secretary of State
the power to make regulations requiring a person who is subject
to immigration control to apply for the issue of a document recording
biometric information - a "biometric immigration document".
A person subject to immigration control means someone who requires
leave to enter or remain in the United Kingdom, whether or not
such leave has been given (clause 16(1)(a)). "Biometric information"
means "external physical characteristics" which includes
fingerprints and features of the iris or eye (clause 16(1)(c)).
"Document" includes a card or sticker, and any other
means of recording information (whether in writing or by the use
of electronic or other technology or by a combination of methods
(clause 15(1)(b) and (c)).
4. Clause 5(1)(b) gives the Secretary of State
the power to require a biometric immigration document 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
or immigration. However, by virtue of clause 5(5), these regulations
can not make provision having the effect of requiring a person
to carry a biometric immigration document at all times.
5. Clause 5(1)(c) enables the Secretary of State
to require a person who produces a biometric immigration document
by virtue of clause 5(1)(b) to provide information for comparison
with information provided in connection with the application for
the document.
6. Clause 5(2)(a) provides that regulations made
under clause 5(1)(a) may apply generally or only to a specified
class of persons subject to immigration control (for example,
persons making or seeking to make a specified kind of application
for immigration purposes).
7. Regulations may specify the period within
which an application for a biometric immigration must be made
(clause 5(2)(b)), may make provision about the issue and content
of a document (which may include non-biometric information) (clause
5(2)(c) and (d)), may provide for the document to be combined
with another document (clause 5(2)(e)), may provide for the documents
to begin or cease to have effect (clause 5(2)(f)), may provide
for the suspension, cancellation or surrender of the document
(clause 5(2)(g), (i) and (j)), may require the holder of the document
to notify the Secretary of State in specified circumstances (clause
5(2)(h)) and may require the surrender of other documents (clause
5(2)(k)).
8. Clause 5(3) provides that regulations may
require an applicant to provide information, including biographical
information or other non-biometric information.
9. In particular, the regulations may (a) require,
or enable an authorised person to require, the provision of information
in a specified form; (b) require an individual to submit, or enable
an authorised person to submit, to a specified process by means
of which information is obtained or recorded; (c) confer a function,
including the exercise of a discretion) on an authorised person;
(d) permit the Secretary of State, instead of requiring the provision
of information, to use and retain information which is (for whatever
reason) already in his possession; (e) require an authorised person
to have regard to a code (with or without modification); (f) require
an authorised person to have regard to such provisions of a code
(with or without modification) as may be specified by direction
of the Secretary of State.
10. Clause 5(4) will provide that regulations
made under clause 5(1)(b) (requiring a biometric immigration document
to be used for certain specified purposes) may require, in particular,
the production or other use of a biometric immigration document
that is combined with another document. It provides that section
16 of the Identity Cards Act 2006 (prohibition of requirement
to produce ID card) is subject to this subsection.
11. Regulations made under clause 5(1)(c) (which
enable the Secretary of State to require the provision of information
for comparison with information provided in connection with the
original application for the document) may (a) require, or enable
an authorised person to require, the provision of information
in a specified form; (b) 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; (c) require a authorised person to have regard to
a code (with or without modification) and (d) require an authorised
person to have regard to specified provisions of a code (with
or without modification) (clause 5(6)).
12. "Authorised person" has the meaning
given under section 141(5) of the Immigration and Asylum Act 1999,
namely, a constable, an immigration officer, a prison officer,
an official of the Secretary of State authorised for the purposes,
a person who is employed by a contractor in connection with a
removal centre contract.
13. Under clause 5(7) immigration rules made
under section 3 of the Immigration Act 1971 may require a person
applying for the issue of a biometric immigration document to
provide non-biometric information to be recorded in it or retained
by the Secretary of State.
14. Clause 5(3) to (5) are without prejudice
to the generality of section 50 of the Immigration, Asylum and
Nationality Act 2006 (which gives the Secretary of State the power
to make immigration rules setting out the procedure for immigration
applications or claims).
15. Clause 6(2) provides that regulations under
clause 5 may require a person who holds a biometric immigration
document issued under earlier regulations to apply under the new
regulations.
16. Clause 6(3) makes provision for similar safeguards
in respect of children as those which apply where fingerprints
are taken under section 141 of the Immigration and Asylum Act
1999.
17. Clause 6(4) provides that the immigration
rules may make provision with reference to compliance or non-compliance
with regulations.
18. Clause 6(5) provides that where the Secretary
of State uses information for the purposes of the regulations
which is already in his possession (instead of requiring the person
to provide the information again) then that information can, effectively,
be used and retained just as if it had been provided in accordance
with the regulations.
19. Clause 6(6) provides that regulations may
make provision having effect generally or only in specific cases
or circumstances; may make different provision for different circumstances;
may include incidental, consequential or transitional provision,
shall be made by statutory instrument subject to affirmative resolution.
20. Clause 7 provides that regulations under
clause 5 shall include provision about the effect of failure to
comply with a requirement of the regulations. In particular, regulations
may require or permit an application for a biometric 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; require the Secretary
of State to consider giving a notice under section 9; provide
for the consequence of a failure to be at the discretion of the
Secretary of State.
21. Clause 8 provides that regulations made under
clause 5 must make provision about the use and retention of biometric
information provided in accordance with the regulations. The regulations
may include provision permitting the use of information for specified
purposes which do not relate to immigration (clause 8(2)). Regulations
must include provision about the destruction of biometric information
contained or recorded by virtue of the regulations (clause 8(3)).
They must require the destruction of information if the Secretary
of State thinks it is no longer likely to be of use in connection
with a function under the Immigration Acts or for a specified
non-immigration purpose. The regulations must include similar
provision on destruction of copies and access to electronic data
as under section 143(2) and (10) to (13) of the Immigration and
Asylum Act 1999. However, this does not require the destruction
of information which is retained in accordance with, and for the
purposes of, another enactment (clause 8(4)).
22. Clause 15(1)(f) provides that regulations
made under clause 5 enabling something to be done by the Secretary
of State may, but need not, enable it to be done only where the
Secretary of State is of a specified opinion.
Comment on the delegated powers provided for by
the clauses
23. These powers provide for a new secure biometric
document which will serve as reliable evidence of immigration
status and will supersede other less reliable, less secure means
of proving immigration status. The document will be issued to
different categories of those subject to immigration control incrementally.
Practically, it would not be possible to require all those subject
to immigration control to apply for a biometric immigration document
at the same time because of the numbers involved. In addition,
the issue of the documents is a complex procedure, requiring provision
for issue, timing, content, validity, expiry, surrender, cancellation
of the document, for the processes which will apply, the retention
and use of information, and the effect of non-compliance, amongst
other things. As such, the department thinks that the power for
the Secretary of State to impose the requirement in stages through
secondary legislation, in accordance with the operational realities,
and with the discretion to take into account different circumstances
and cases, is essential.
24. The regulation-making powers are subject
to affirmative resolution. The department thinks this is an appropriate
level of Parliamentary scrutiny. It is the same as other existing
powers enabling the Secretary of State to take information about
a person's external physical characteristics (for example section
126 of the Nationality, Immigration and Asylum Act 2002).
25. Clause 5(7) enables the Secretary of State,
by the Immigration Rules, to require an applicant to provide information.
It is intended that Rules made under this provision will set out
the types of biographical and other evidence required, and the
form and process for providing this information. The department
thinks that this is the appropriate level of scrutiny. It is in
line with existing powers for the Secretary of State to set out
the processes and information required for an immigration application
in the Rules (see section 50 of the Immigration, Asylum and Nationality
Act 2006 - which also applies to an application for a biometric
document by virtue of clause 5(4) and 16(2)(a)). The Rules will
not impose the requirement for biometric information to
be provided, nor the processes to be followed. This type of more
sensitive information will be required under the affirmative regulations.
26. Clause 6(4) provides that the Immigration
Rules may make provision with reference to compliance or non-compliance
with regulations. This will mean the Rules can provide that failure
to comply with a requirement of the clause 5 regulations is a
ground for refusal or cancellation of leave, for example. The
department thinks this is the appropriate level of scrutiny for
this type of provision which will mirror the equivalent power
to refuse or cancel for non-compliance made in the affirmative
regulations. For comparison see paragraph 320(20) of the Immigration
Rules which provides that leave to enter may be refused if a person
fails to comply with a requirement relating to the provision of
biometric information to which he is subject by regulations made
under section 126 of the Nationality, Immigration and Asylum Act
2002. This ground for refusal in the Immigration Rules mirrors
the provision under the Article 7(2) and (3) of the Immigration
(Provision of Physical Data) Regulations 2006 which enables leave
to enter to be refused if the person fails to comply with the
regulations (made under section 126). The reason for the apparent
duplication is that the Rules are intended to provide a comprehensive,
accessible list of the grounds for refusal or cancellation of
leave.
Clause 9 to clause 14: civil penalty for failure
to comply with a requirement of regulations made under clause
5
Powers conferred on: Secretary of State
Powers exercised by: Order made by Statutory Instrument
Parliamentary procedure: Negative resolution
27. Clauses 9 to 14 enable the Secretary of State
to require a person to pay a penalty for failing to comply with
a requirement of regulations made under clause 5. The clauses
set out the procedure for the imposition of the penalty, for objection
to the penalty, for appeal against the penalty, for enforcement
of the penalty, and for a code of practice to be issued in respect
of the civil penalty scheme. The clauses provide for various matters
to be provided for or prescribed by Order, subject to negative
resolution.
28. In particular:
- - clause 9(6) enables the
Secretary of State to amend clause 9(3) to raise the maximum penalty
to reflect a change in the value of money;
- - clause 10(2)(b) and (c) provide a notice
of objection against a penalty must comply with any prescribed
requirements as to form and content, and be given within the prescribed
period;
- - clause 10(4) provides that in considering
the objection, the Secretary of State must act in accordance with
any prescribed requirements and within the prescribed period or
such longer period as may be agreed;
- - clause 13 provides that the Secretary of
State may issue a Code of Practice which must be laid before Parliament
before issue, and which comes into force at the prescribed time.
29. Under clause 14 "prescribed" means
prescribed by the Secretary of State by Order. An Order (including
an Order under clause 9(6) may make provision generally or only
for specified purposes, it may make different provision for different
purposes, shall be made by statutory instrument, and shall be
subject to negative resolution.
30. The principles of the civil penalty scheme
are provided for on the face of the primary legislation. The department
thinks it is appropriate for some of the details of the operation
of the scheme, such as the format for an objection notice etc.,
to be provided for in secondary legislation, as they may be liable
to change.
31. The department also thinks this is the appropriate
level of scrutiny. It is comparable to the existing regimes for
civil penalties, for example under section 15 to 20 of the Immigration,
Asylum and Nationality Act 2006 (civil penalty for employing an
illegal worker). The only distinction is that an Order prescribing
the maximum penalty must be subject to affirmative procedure under
the 2006 Act. However, clauses 9(3) and (6) differ from the 2006
Act because the maximum penalty is set out in the primary legislation,
with the power to increase the sum, only to reflect inflation,
is subject to negative resolution. The department thinks negative
resolution is justified because the maximum is already clearly
provided for in the primary legislation, any increase can only
reflect inflation.
Clause 11(6): Rules of court to make provision
about the timing of an appeal against a civil penalty
England and Wales
Powers conferred on: Rule committee, with approval
of the Lord Chancellor, under section 2 and 3 of the Civil Procedure
Act 1997.
Powers exercised by: Statutory Instrument, see
section 3 of the Civil Procedure Act 1997.
Parliamentary procedure: Negative resolution.
Scotland
Powers conferred on: Court of Session following
consultation with the Sheriff Court Rules Council, under section
32 and 34 of the Sheriff Courts (Scotland) Act 1971.
Powers exercised by: Act of Sederunt - Scottish
Statutory Instrument
Parliamentary Procedure: None
Northern Ireland
Powers conferred on: the Rules Committee, subject
to approval by the Lord Chancellor, by section 55A of the Judicature
(Northern Ireland) Act 1978
Powers exercised by: Statutory Rule
Parliamentary Procedure: subject to annulment
(i.e. negative resolution procedure)
32. Under Clause 11(6) Rules of the court may
make provision about the timing of an appeal under this section.
33. As this is a matter concerning court procedure,
the department thinks it is appropriate for the timing to be set
out in rules of the court. The department thinks the level of
scrutiny applicable to court rules in the different legal jurisdictions
provides the appropriate level of scrutiny for this additional
matter which is to be covered in the rules. This is comparable
to section 33(2) of the Identity Cards Act 2006.
Support for Failed Asylum Seekers
Clause 17
Powers conferred on: Secretary of State
Powers exercised by: Regulations made by Statutory
Instrument
Parliamentary procedure: Negative resolution
34. Clause
17(a) and (b) provide a power to make regulations prescribing
the period a person continues to be an asylum-seeker after an
appeal ceases to be pending.
35. Clause 17 provides that a person whose claim
for asylum has been refused and who can bring an in-country appeal
or is pursuing such an appeal against an immigration decision
will remain an asylum-seeker whilst the appeal is pending for
the purposes of section 4 and Part VI of the Immigration and Asylum
Act 1999 (the 1999 Act), Part 2 of the Nationality, Immigration
and Asylum Act 2002 (the 2002 Act) and Schedule 3 to the 2002
Act.
36. Clause
17 (a) and (b) gives the Secretary of State the power to make
regulations prescribing, for the purposes of section 4 and Part
VI of the 1999 Act and Part 2 of the 2002 Act, the period that
a person's status as an asylum-seeker continues after his appeal
ceases to be pending. The regulations may only specify the end
date; the start date (the date on which the appeal ceases to be
pending) is set out in primary legislation. The department thinks
that it is appropriate for the end date to be the subject of secondary
legislation.
37. This
power is comparable to those in section 94(3) of the 1999 Act
and section 21(3) of the 2002 Act both of which are subject to
the same level of Parliamentary scrutiny as this provision.
Points-Based Applications: No New Evidence
on Appeal
Clause 19(2): Power to specify within immigration
rules the circumstances in which evidence is to be treated as
having been submitted in support of and at the time of making
an application under a 'Points Based System'
Power conferred on: Secretary of State
Power exercised by: Immigration Rules
Parliamentary procedure: Procedure provided for
by section 3(2) of the Immigration Act 1971
38. Clause 19 of the Bill amends Part 5 of the
Nationality, Immigration and Asylum Act 2002 by inserting a new
section 85A. This provides that where an application falls to
be considered under a 'Points Based System' the Tribunal may only
consider evidence submitted at the time of making this application
when hearing any appeal against any refusal. This exclusionary
rule only applies insofar as the appeal concerns the applicant's
entitlement to points under the Points Based System.
39. In order to ensure that this provision operates
consistently with the Points Based System it is important that
there is scope to specify the exact circumstances in which evidence
is to be treated as having been submitted at the time of making
an application under the Points Based System. As the Points Based
System will, for the most part, operate within the immigration
rules it makes sense for the rules to specify the circumstances
in which evidence will fall be considered under the system. This
is provided for by new section 85A(5). The circumstances in which
evidence should fall to be treated as having been submitted at
the time of making an application is a matter of detail not appropriate
for primary legislation, which will require to be tailored to
the specifics of the application process, and it is appropriate
for such provision to be subject to the procedure appropriate
to rule changes.
Fees
Clause 20(2) and (3)
Powers conferred on: Secretary of State
Powers exercised by: Regulations made by Statutory
Instrument
Parliamentary procedure: Affirmative resolution
Clause 20(4)
Powers conferred on: Her Majesty
Powers exercised by: Order in Council
Parliamentary procedure: Affirmative resolution
40. Clause 20 provides the Secretary of State
with two new powers.
41. First, it provides the Secretary of State
with a power when making regulations under section 51(3) of the
Immigration, Asylum and Nationality Act 2006 ('the 2006 Act')
specifying the amount of a fee in respect of an application or
process in connection with sponsorship of persons seeking leave
to enter or remain in the United Kingdom, to prescribe an amount
which is intended to exceed the administrative cost of determining
the application or undertaking the process, and reflect benefits
that the Secretary of State thinks are likely to accrue to the
person who makes the application, to whom the application relates
or by or for whom the process is undertaken, if the application
is successful or the process is completed.
42. It does so by inserting a new paragraph,
(da), in subsection (2) of section 42 of the Asylum and Immigration
(Treatment of Claimants, etc) Act 2004 ('the 2004 Act'). This
will mean that fees specified in regulations made under section
51(3) of the 2006 Act, in reliance on section 42(1) of the 2004
Act, for applications or processes in connection with sponsorship
of the relevant persons, will, by virtue of section 42(7) of the
2004 Act, be subject to approval by a resolution of each House
of Parliament.
43. Regulations made in reliance on section 42(1)
of the 2004 Act are already subject to affirmative procedure and
it is considered appropriate that fees which are set at a level
not related to the administrative cost of providing the relevant
service services should be subject to approval by both Houses
of Parliament.
44. Secondly, clause 20 provides the Secretary
of State with a power when making regulations under section 51(3)
of the 2006 Act, specifying a fee for a matter in respect of which
an order has been made under section 51(1) or (2) of that Act,
to specify an amount which reflects, in addition to costs referable
to the particular matter, costs referable to:
i) any other matter in respect of which the Secretary
of State has made an order under section 51(1) or (2) of that
Act;
ii) the determination of applications for entry
clearances;
iii) the determination of applications for transit
visas;
iv) the determination of applications for certificates
of entitlement to the right of abode in the United Kingdom.
45. It does so by inserting a new subsection,
(2A), into section 42 of the 2004 Act. By virtue of section 42(7)
of that Act therefore, a draft of the regulations which are to
be made in reliance on this new power will be subject to approval
by resolution of both Houses of Parliament. The department considers
it appropriate that fees prescribed in reliance on this power
to cross-subsidise, which will be set at a level above the administrative
cost of the particular service for which the fee is charged, should
be subject to the approval by both Houses of Parliament.
46. In addition, clause 20 also provides a power
to set the amount of a fee prescribed by Her Majesty by Order
in Council under section 1 of the Consular Fees Act 1980 ('the
1980 Act') in respect of a matter referred to in paragraph 7(ii)
to (iv) above, so as to reflect costs referable to any matter
in respect of which the Secretary of State has made an order under
section 51(1) or (2) of the 2006 Act.
47. Again it does so by inserting a new subsection,
(3A), into section 42 of the 2004 Act. Therefore by virtue of
section 42(7) of that Act, an Order in Council may not be made
in reliance on this new power unless a draft of that Order has
been laid before and approved by resolution of each House of Parliament.
The department considers it appropriate that fees prescribed in
reliance on this power to cross-subsidise should be subject to
approval of Parliament.
Power to Seize Cash
Clause 23(3): Power to amend subsection (2)(c)
so as to reflect any changes made to the nomenclature used in
relation to a civil servant of the rank of Assistant Director
Power conferred on: Secretary of State
Power exercised by: Order made by statutory instrument
Parliamentary procedure: Negative resolution
48. Section 289 of the Proceeds of Crime Act
2002 ('POCA') allows a customs officer or police constable to
search for cash where there are reasonable grounds for suspecting
that such cash is the proceeds of unlawful conduct or is intended
for use in connection with unlawful conduct. Clause 21 will enable
Immigration Officers to exercise these and other related POCA
powers.
49. In order to exercise the powers in section
289 it will be necessary for an Immigration Officer to obtain
judicial approval unless it is not practicable to do so. Where
it is not practicable to obtain judicial approval authorisation
must be sought from a civil servant of at least the rank of Assistant
Director.
50. This power will allow subsection (2)(c) to
be amended by order so as to reflect a change in the nomenclature
used in relation to a civil servant of the rank of Assistant Director.
Although this order making power will allow the amendment of primary
legislation by later subordinate legislation and is therefore
a Henry VIII clause the order making power is only subject to
the negative resolution procedure. This level of scrutiny is,
however, fully justified as the amendment will only allow for
an amendment to the nomenclature used rather than to the substantive
operation of the provision. It would not, for example, be possible
for the order making power to be used so as to allow authorisation
to be provided by a civil servant of a lower grade.
Power to dispose of Property
Powers conferred on: Secretary of State
Powers exercised by: Regulations made by Statutory
Instrument
Parliamentary procedure: Negative resolution
Clause 25(5): Power to make regulations for the
disposal of property which has come into the possession of an
immigration officer or the Secretary of State in the course of
or in connection with a function under the Immigration Acts
51. Clause 25(5) gives the Secretary of State
the power to make regulations for the disposal of property which
has come into the possession of an immigration officer or the
Secretary of State in the course of or in connection with a function
under the Immigration Acts.
52. The Secretary of State may make regulations
where the owner has not be ascertained, or, in respect of property
which has been forfeited under clause 24 of the Bill or section
25C of the Immigration Act 1971 where the court has not made an
order under clause 25(4) (because the application for the order
was not made in time; or the applicant (if not the Secretary of
State) did not satisfy the court that he did not consent to the
offender's use of the property or that he did not know and had
no reason to suspect that the property was to be used in connection
with an offence).
53. Clause 25(6) provides that regulations may
make provision that is the same, or similar, to provision that
may be made by regulations under section 2 of the Police (Property)
Act 1897 (or Northern Ireland or Scottish equivalents). The regulations
may apply regulations under the 1897 Act, without or without modifications.
They may provide for property to vest in the Secretary of State.
They may make provision about the timing of disposal which may
differ from provision made by or under the 1897 Act. They shall
have effect only so far as this is not inconsistent with any order
of the court. The regulations shall be made by statutory instrument
and shall be subject to negative resolution.
54. The main principle of the power to dispose
is set out in the primary legislation. The department thinks that
it is appropriate for the detail for the provisions for disposal
to be set out in secondary legislation and subject to this level
of scrutiny. The provisions are intended to allow equivalent secondary
legislation to be made allowing for disposal of property as those
which currently enable disposal of property in the possession
of the police, or the Serious Organised Crime Agency (in England
and Wales). The existing provisions are subject to the same level
of Parliamentary scrutiny as the existing equivalents.
Border and Immigration Inspectorate
Clause 50: Plans
Clause 51: Relationship with other bodies: general
Clause 52: Relationship with other bodies: non-interference
notices
Clause 54: Prescribed matters
Powers conferred on: Secretary of State
Powers exercised by: Regulations made by Statutory
Instrument
Parliamentary procedure: Negative resolution
55. By way of background, clause 47 provides
for the appointment of a person as Chief Inspector of the Border
and Immigration Agency whose function is to monitor and report
on the efficiency and effectiveness of the Agency.
56. Clause 52 provides that in the clauses dealing
with the Chief Inspector "prescribed" means prescribed
by order of the Secretary of State. Clause 52 goes onto say that
an order under any of the clauses dealing with the Chief Inspector
prescribing a person may specify one of more persons or a class
of person. An order under any of those clauses is subject to the
negative resolution procedure and may make provision generally
or for specified purposes, may make different provision for different
purposes and may include incidental or transitional provision.
This is relevant as follows:
57. Clause 50 obliges the Chief Inspector to
prepare plans describing the objectives and terms of proposed
inspections. Plans are to be prepared at prescribed times and
in respect of prescribed periods. In preparing plans, the Chief
Inspector must consult prescribed persons. Once a plan is prepared,
the Chief Inspector must send a copy to each prescribed person.
These last two requirements are subject to agreement between the
Chief Inspector and the prescribed person to disapply such a requirement.
58. Clause 51 obliges the Chief Inspector to
co-operate with prescribed persons insofar as he thinks it consistent
with the efficient and effective performance of his functions.
The clause also allows the Chief Inspector to act jointly with
prescribed persons where he thinks it in the interests of the
efficient and effective performance of his functions, to assist
a prescribed person and to delegate a specified aspect of his
functions to a prescribed person.
59. Clause 52 allows the Chief Inspector to give
a prescribed person who proposes to inspect any aspect of the
work of the Border and Immigration Agency a notice prohibiting
him from doing so, if the Chief Inspector thinks that the inspection
may impose an unreasonable burden on the Agency. The notice must
be in the prescribed form and contain the prescribed information.
Further, the Secretary of State may by order make provision about
the timing, publication and revision or withdrawal of such notices.
60. This framework is broadly comparable to,
and has been modelled on, those provided for by sections 28 to
32 of the Police and Justice Act 2006 in relation to other inspectorates
such as Her Majesty's Inspectors of Constabulary.
61. The principles - i.e. that the Chief Inspector
(i) must prepare plans and involve others in that process, (ii)
must co-operate with others where necessary, (iii) may act jointly
with, assist and delegate to others and (iv) may prevent others
from undertaking burdensome inspections of the Border and Immigration
Agency - are provided for on the face of the primary legislation.
The Department thinks it is appropriate for some of the details
of the operation of the framework, such as the format which plans
and notices must take, the information they must contain and their
timing, to be provided for in secondary legislation, as they may
be liable to change.
62. The Department also thinks this is the appropriate
level of scrutiny. It is the same as the level of scrutiny provided
in relation to the similar frameworks provided for by section
28 to 32 of the Police and Justice Act 2006.
Home Office
May 2007
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