House of Lords - Explanatory Note

Uk Borders Bill - continued	House of Lords

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Part 3: Treatment of claimants

Clause 16: Conditional leave to enter or remain

52. This clause amends section 3(1)(c) of the Immigration Act 1971. Section 3(1)(c) already provides that a person who is given limited leave to enter/remain in the UK may be subject to any or all of the following conditions, namely -

a condition restricting his employment or occupation in the UK;

a condition requiring him to maintain and accommodate himself, and any dependants of his, without recourse to public funds; and

a condition requiring him to register with the police.

53. This clause simply adds two new conditions under section 3(1)(c), namely -

a condition requiring him to report to an immigration officer or the Secretary of State;

a condition about residence.

Clause 17: Support for failed asylum-seekers

54. Clause 17 provides that a person whose claim for asylum has been determined and who can bring or has brought an in-country appeal against an immigration decision will remain an asylum-seeker for the purposes of section 4 and Part 6 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. The effect of this provision is that, whilst an in-country appeal against the immigration decision can be brought or is pending, such a person will be eligible for support on the same basis as asylum-seekers who have not yet received a decision on their claim. Support will continue for a prescribed period after the appeal ceases to be pending.

55. A judgment by the Court of Appeal in May 2006 (in the case of Slough Borough Council v R (oao M)) held that, for the purposes of Schedule 3 to the 2002 Act, save for when a right of appeal arises under section 83 of that Act, a person ceases to be an asylum-seeker as the time at which the Secretary of State notifies his decision on the claim and not when the appeal related to his asylum claim had been disposed of. Clause 17(3) defines an in country appeal as one brought while the appellant is in the United Kingdom and specifies that the possibility of bringing an appeal out of time with permission is to be ignored for the purpose of this clause.

56. The purpose of clause 17 is to avoid a situation where a person has made a claim for asylum and an in-country appeal against an immigration decision can be brought or is pending but support under Part 6 of the 1999 Act or Part 2 of the 2002 Act (currently not in force) is not available because the claim for asylum is deemed to be determined on conclusion of the prescribed period after the Secretary of State has notified his decision on the claim. Further, the clause ensures that such a person will not fall within any of the classes of ineligible person within Schedule 3 of the 2002 Act.

Clause 18: Support for asylum-seekers: enforcement

57. This clause applies existing immigration officer powers of arrest, entry, search and seizure in the Immigration Act 1971 (the 1971 Act) to the offences of dishonestly obtaining asylum support.

58. New section 109A (arrest) gives an immigration officer the power to arrest a person, without warrant, where the officer has reasonable grounds for suspecting that the person has committed an offence under section 105 or section 106 of the Immigration and Asylum Act 1999 (the 1999 Act) (false or dishonest representations in order to obtain support for asylum-seekers, respectively).

59. New section 109B (entry, search and seizure) extends the relevant powers of entry, search and seizure under sections 28B, 28D, 28E and 28G to 28L of the 1971 Act after a person has been arrested for an offence under section 105 or section 106 of the 1999 Act.

Clause 19: Points-based applications: no new evidence on appeal

60. Section 85(4) of the Nationality, Immigration and Asylum Act 2002 allows the Asylum and Immigration Tribunal (AIT) to consider any evidence that is relevant to the substance of the decision, including any evidence which arises after the date of decision. This does not apply to an appeal against the refusal of an entry clearance or a certificate of entitlement: in these cases the AIT can only consider the circumstances as they were at the time of the decision to refuse.

61. This clause inserts a new section 85A into the 2002 Act which lists the exceptions to the general rule that the AIT can consider any evidence that is relevant to the substance of the decision, including any evidence which arises after the date of decision. It re-enacts the existing evidential restriction in appeals against the refusal of an entry clearance or a certificate of entitlement (subsection (2)), and adds a new restriction in relation to appeals against a refusal of leave to enter or a variation of leave to enter or remain. In appeals against a refusal of leave to enter or a variation of leave to enter or remain the AIT will be prevented from considering evidence adduced by the appellant which was not submitted at the time of making the original application, where that application was one made under a Points-based immigration rule. This exclusionary rule will not, however, apply insofar as the appeal is brought on the grounds that the decision was racially discriminatory or in breach of the appellant's rights under the Community Treaties, the Refugee Convention or section 6 of the Human Rights Act 1998. Additionally, evidence which was not submitted with the original application may still be adduced to rebut any reason for refusing an application which does not relate to the attainment of points under a Points-based immigration rule or in order to prove that a document is genuine or valid.

Clause 20: Fees

62. Clause 20(2) provides a power when setting the fees for applications or processes in connection with sponsorship of persons seeking leave to enter or remain in the UK under section 51(3) of the Immigration, Asylum and Nationality Act 2006 ('the 2006 Act'), to set them at above administrative cost recovery levels. It does so by allowing the Secretary of State to prescribe an amount which exceeds the administrative cost of the relevant application or process, based upon the benefits that he 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.

63. 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 which are to be 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 resolution of each House of Parliament.

64. Clause 20(3) provides the Secretary of State with a power when setting the fee for an in-country service in connection with immigration or nationality under section 51 of the 2006 Act to take into account the costs of:

(i) Other such services which are charged under section 51 of that Act; and

(ii) Certain out-of-country services, in particular applications for entry clearance, transit visas and certificates of entitlement to the right of abode in the United Kingdom, which are charged under section 1 of the Consular Fees Act 1980.

65. The effect of this is to enable the Secretary of State when setting the fees for immigration or nationality services under section 51 of the 2006 Act, to cross-subsidise between different in-country services in connection with immigration or nationality and between in-country and certain out-of country services in connection with immigration or nationality. This will mean that the Secretary of State can prescribe an amount which exceeds the administrative cost of the relevant service by taking into account the administrative cost of certain other services.

66. 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 under section 51(3) of the 2006 Act in reliance on this new power will be subject to approval by resolution of both Houses of Parliament.

67. Clause 20(4) provides a power when setting the amount of a fee under section 1 of the Consular Fees Act 1980 in respect of certain visa services, in particular applications for entry clearance, transit visas and certificates of entitlement to the right of abode in the United Kingdom, to set an amount which takes into account the costs of any in-country services in connection with immigration or nationality which are charged for under section 51 of the 2006 Act.

68. 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.

69. In addition, by virtue of section 42(6) of the 2004 Act, an instrument, i.e. regulations or an Order in Council, may not be made in reliance on these new powers unless the Secretary of State has consulted with such persons as appear to him to be appropriate.

Part 4: Enforcement

Clause 21: Assaulting an immigration officer: offence

70. Clause 21 creates an offence of assaulting an immigration officer. It also establishes penalties for anyone found guilty of committing such an offence.

Clause 22: Assaulting an immigration officer: powers of arrest, &c.

71. Clause 22 creates a power of arrest for the offence of assaulting an immigration officer. It enables an immigration officer to arrest a person without warrant where he has reasonable grounds for suspecting that the person has assaulted or is about to assault an immigration officer. The clause also applies existing immigration officer powers of entry, search and seizure in the Immigration Act 1971 to the offence of assaulting an immigration officer.

Clause 23: Seizure of cash

72. Chapter 3 of Part 5 of the Proceeds of Crime Act 2002 allows a police constable or customs officer to search a person or premises for cash where there are reasonable grounds for suspecting that such cash is derived from or intended for use in unlawful conduct. The provisions also empower a police constable or customs officer to seize and detain any such cash. Seized cash can be further detained and forfeited on an application made to a court of summary jurisdiction. The power to apply for further detention and forfeiture of cash does not depend upon a criminal prosecution and the proceedings focus on the source of the cash which has been seized rather than the guilt of any individual. These clauses will extend the powers so that they may be exercised by immigration officers.

73. Subsection (2)(a) provides that the power to carry out a search for cash will be available to Immigration Officers where there are reasonable grounds for suspecting that the cash in question is derived from or intended for use in connection with an offence under the Immigration Acts. Subsection (2)(b) provides that the power to seize and detain cash may be exercised where there are reasonable grounds for suspecting that the cash is derived from or intended for use in connection with an offence under the Immigration Acts or an offence listed in section 14 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. The safeguards that apply to constables and officers of HMRC will similarly apply to immigration officers. The code of practice will be amended to apply to immigration officers to provide guidelines on the operation of their search powers.

74. An immigration officer can only exercise the power to search for cash with the prior approval of a judicial officer, unless it is not practicable to obtain that approval at the time. Subsection (2)(c) provides that where it is not practicable to obtain the approval of a judicial officer an Immigration officer must seek the authority of a civil servant of at least the rank of assistant director in order to exercise the power of search.

75. Subsection 2(f)(i) provides that where an immigration officer continues to have reasonable suspicion that the seized cash is the proceeds of or intended for the use in an offence related to immigration, he will be able to make an application for an order to extend the detention period of the cash direct to the Magistrates Courts in England, Wales and Northern Ireland. Subsection (2)(f)(ii) provides that in Scotland such applications must either be made by the Scottish Ministers in connection with their functions under section 298 of Act or by a procurator fiscal.

76. Subsection (2)(g)(i) provides that whilst the cash is detained, an immigration officer will be able to make an application for a forfeiture order direct to the Magistrates Court in England, Wales and Northern Ireland. Subsection (2)(g)(ii) provides that in Scotland such applications must be made by the Scottish Ministers.

77. Subsection (2)(h) provides that compensation claims in relation to cash seized by immigration officers, for which no forfeiture order is made, will be paid by the Secretary of State.

Clause 24: Forfeiture of detained property

78. Clause 24 provides that where a court makes a forfeiture order, the court may order the property to be taken into the possession of the Secretary of State rather than the police (as is presently the case).

79. A "forfeiture order" means an order under section 143 of the Powers of Criminal Courts (Sentencing) Act 2000 (which extends to England and Wales) or Article 11 of the Criminal Justice (Northern Ireland) Order 1994 which allow the court to deprive a convicted offender of property used, essentially, for the commission of a crime or to facilitate the commission of a crime, or intended to be used in this way.

80. The court may order the property be taken into the possession of the Secretary of State only if it thinks that the offence in connection with which the order was made related to immigration or asylum, or was committed for a purpose connected with immigration or asylum. An order under this clause might be appropriate, for example, where the Immigration Service is leading the investigation of a criminal offence independently of the police.

81. Clause 58 makes transitional provision so that when clause 24 is commenced it will apply to criminal proceedings instituted before the passing of the Act.

Clause 25: Disposal of property

82. Clause 25 provides powers of disposal in respect of property which is in the possession of an immigration officer, or which has come into the possession of the Secretary of State in the course of the exercise of his immigration functions under the Immigration Acts. This includes property which has been forfeited or seized under the Immigration Acts, as well as property acquired in any other way (under subsection (7)).

83. Under subsection (2) a magistrates' court may, on the application of the Secretary of State or a claimant of property, order the delivery of the property to the person who appears to the court to be its owner. If the owner cannot be ascertained, the court may make any other order about the property. However, an order under subsection (2) is subject to the right of any person to bring legal proceedings for the recovery of the property within 6 months from the date of the order (subsection (3)).

84. Subsection (4) makes additional provision in respect of property which has been forfeited under section 25C of the Immigration Act 1971 or under clause 24 of this Bill. (Section 25C of the Immigration Act 1971 gives the court the power to forfeit a vehicle, aircraft or ship used in connection with an immigration facilitation offence under that Act, in certain circumstances.) A magistrates' court may make an order about the property under subsection (2) if the application is made within six months beginning with the date when the forfeiture order was made (subsection (4)(a)). In addition, if the applicant is not the Secretary of State, an order may be made only if the applicant satisfies the court that he did not consent to the offender's possession of the property or that he did not know and had no reason to suspect that the property was likely to be used in connection with an offence (subsection (4)(b)).

85. Subsection (5) enables the Secretary of State to make regulations by statutory instrument, subject to annulment by resolution of either House of Parliament, for the disposal of property. The Secretary of State can make regulations where the owner has not been ascertained. For property which is in the possession of an immigration officer or the Secretary of State because it has been forfeited under section 25C of the Immigration Act 1971 or under clause 24 of this Bill, regulations may also provide for disposal where a court order under subsection (2) cannot be made because of subsection (4)(a) (that is, because six months has expired since a forfeiture order was made). Regulations may also provide for disposal where a court has declined to make an order under subsection (2) because it is not satisfied of the matters specified in subsection (4)(b) (that is, the applicant did not consent to the offender's use of the property or he did not know and had no reason to suspect that the property was likely to be used in connection with an offence).

86. Subsection (6) makes further provision about the regulations. The regulations may make provision which is the same as, or similar to, provision that may be made by regulations under section 2 of the Police (Property) Act 1897 or any similar enactment which applies in relation to Scotland or Northern Ireland. The regulations may apply, with or without modification regulations made under that Act. They may make provision for property to vest in the Secretary of State. They may make provision about the timing of the disposal (which may differ from the provision made under the Police (Property) Act 1897). The regulations shall have effect only where this is not inconsistent with any court order.

87. Clause 58 makes transitional provision so that when clause 25 is commenced, it will have effect in respect of property which is already in the possession of an immigration officer or the Secretary of State.

Clause 26: Employment: arrest

88. Section 21 of the Immigration, Asylum and Nationality Act 2006 introduced the new offence of knowingly employing an illegal worker and the associated powers to obtain a warrant to enter and search premises to arrest an individual who is liable to be arrested for this offence. The clause introduces an express power of arrest.

Clause 27: Employment: search for personnel records

89. The current offence of employing an illegal worker (section 8 of the Asylum & Immigration Act 1996) will be replaced by a regime of civil penalties for employers and a new offence of knowingly employing an illegal worker (sections 15-21 of the Immigration, Asylum and Nationality Act 2006). Section 8 of the 1996 Act will be repealed upon the commencement of sections 15-21 of the 2006 Act. This clause introduces an express power to search for personnel records in connection with an offence under section 21 of the Immigration, Asylum and Nationality Act 2006.

Clause 28: Facilitation: arrival and entry

90. Clause 28 amends the existing offence in section 25A of the 1971 Act to provide that a person commits an offence if he knowingly and for gain facilitates the entry to the United Kingdom, as well as the arrival in the UK, of an individual that they know or reasonably believe to be an asylum-seeker. This amendment 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.

Clause 29: Facilitation: territorial application

91. Clause 29 amends section 25 of the Immigration Act 1971. Section 25 makes it an offence to assist unlawful immigration to a member State of the European Union. Presently, the section applies to anything done in the UK, anything done outside the UK by a British national and to anything done outside the UK by a body incorporated in the UK. Clause 29 removes these existing limitations on the territorial application of the offence to cover acts of facilitation committed inside or outside the UK, irrespective of the nationality of the person carrying out the act (subsection (1)).

92. Subsection (2) amends sections 25A (helping an asylum seeker to enter the United Kingdom) and 25B (assisting entry to United Kingdom in breach of a deportation or exclusion order) of the Immigration Act 1971 to extend the territorial application of the offences under those sections in the same way as described above for section 25.

Clause 30: People trafficking

93. Clause 30(1) amends section 4(1) of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 (the 2004 Act) to provide that a person commits an offence if they facilitate the arrival in, or the entry into, the United Kingdom of a person that they intend to exploit or who they believe is likely to be exploited by another person.

94. Similarly to the above, subsection (3) amends the existing offence of trafficking for sexual exploitation contained in Section 57(1) of the Sexual Offences Act 2003 (the 2003 Act) so that it is an offence for an individual to intentionally arrange the arrival in, or entry into, the United Kingdom of another person (A) with the intention of that individual or a third person then doing anything to or in respect of A that will involve the commission of a relevant offence (as defined at subsection (1) of section 60 of the 2003 Act).

95. These amendments will ensure that acts committed after a person has arrived in the UK but before they have entered the UK will be covered by the offences.

96. The trafficking people for exploitation offences contained in Section 4 of the 2004 Act and Sections 57 to 59 of the 2003 Act currently encompass anything done in the UK, anything done outside the UK by a British national and anything done outside the UK by a body incorporated in the UK to facilitate the arrival or entry into the UK of an individual for the purposes of exploitation. Clause 30, subsections (2) and (4) amends sections 5(1) and (2) of the 2004 Act and sections 60(2) and (3) of the 2003 Act by removing these limitations on the territorial application of the offences and thereby ensuring that facilitating the arrival or entry into the UK of a person for the purposes of exploitation, regardless of where the facilitation took place and irrespective of the nationality of the facilitator, are now caught by the offences.

Part 5: Deportation of criminals

Clause 31: Automatic deportation

97. This clause provides that the Secretary of State must make a deportation order in respect of a "foreign criminal" unless certain exceptions apply.

98. Subsection (1) defines "foreign criminal" for the purposes of the new automatic deportation process. A "foreign criminal" in this context means a non-British Citizen who has been convicted in the United Kingdom of an offence and to whom Condition 1 or 2 applies. Condition 1 is that he is sentenced to a period of imprisonment of at least 12 months (subsection (2)). Condition 2 is that he is sentenced to a period of imprisonment for an offence specified in an order made under section 72(4) of the Nationality, Asylum and Immigration Act 2002 (subsection (3)).

99. Subsection (4) provides that the deportation of a foreign criminal is conducive to the public good for the purposes of section 3(5)(a) of the Immigration Act 1971.

100. Subsection (6) prohibits the Secretary of State from revoking a deportation order made under the automatic procedure unless he thinks that an exception applies (see clause 32 below), the application for revocation is made while the foreign criminal is outside the United Kingdom or clause 33(4) applies.

101. Subsection (7) confirms that the requirement on the Secretary of State to make an "automatic" deportation order under subsection (5) does not create a private right of action in respect of the consequences of non-compliance.

102. This clause gives effect to the commitment given in the Home Secretary's statement of 23rd May 2006 to create a direct link between deportation and the commission of a crime of the appropriate level of severity; and reduces the scope for challenging "automatic" deportation decisions through the appeals system. The existing legal framework (see Annex A) will continue to be available to deal with those who are exempt from the automatic procedure, those convicted of criminal offences who fall below the threshold for automatic deportation and other residual categories of case where it may be appropriate to exercise the "conducive to the public good" power to deport, for example national security cases and war criminals.

103. The clause creates a new statutory framework for the "automatic" deportation of certain non-British citizens convicted in the United Kingdom of a qualifying offence. Under the provision, the Secretary of State will be required to make a deportation order unless he thinks that removal would breach a person's rights under the European Convention on Human Rights or the United Kingdom's obligations under the Refugee Convention or one of the other exceptions in clause 32 applies.

Prepared: 11 May 2007