House of Commons - Explanatory Note
Nationality, Immigration And Asylum Bill - continued          House of Commons

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Clause 18: Dependant: definition

54.     Clause 18 defines a dependant of an asylum-seeker as someone who is in the United Kingdom and falls within a prescribed class.

Clause 19: Sections 15 to 18: supplementary

55.     This clause makes supplementary provision including provision that a claim for asylum is treated as determined after a prescribed period of time beginning with when the Secretary of State notifies the person of his decision on the claim or, if the person appeals against the decision, when the appeal is disposed of.

Clause 20: Section 95 of the Immigration and Asylum Act 1999

56.     Part VI of the 1999 Act sets out provisions for the support of asylum-seekers. Section 95 of that Act gives the Secretary of State the power to support destitute asylum-seekers and their dependants (if any) and section 96 sets out the ways in which support may be provided. Clause 20 provides that the Secretary of State may provide support under section 95 of the 1999 Act by arranging for accommodation to be provided in an accommodation centre.

Clause 21: Person subject to United Kingdom entrance control

57.     Paragraph 21(2) of Schedule 2 to the 1971 Act gives immigration officers the power to impose residence restrictions on people who are liable to detention under Schedule 2 of that Act. Subsection (1) of clause 21 provides that this power may be used to set a condition that an asylum-seeker must reside at an accommodation centre.

58.     Subsection (3) provides that a person who breaches the conditions of residence of the accommodation and who, as a consequence, is required to leave the centre, will also have breached the condition imposed under paragraph 21 (2) of Schedule 2 to the 1971 Act.

59.     Section 4 of the 1999 Act gives the Secretary of State a power to provide facilities for the accommodation of certain people, including those granted temporary admission to the United Kingdom or released from detention on bail. Subsection (4) of clause 21 provides that the Secretary of State may provide support under section 4 of the 1999 Act by arranging for accommodation in an accommodation centre.

Clause 22: Provisional assistance

60.     Clause 22 allows a person to be supported in an accommodation centre if the Secretary of State thinks that person might be eligible to be provided with accommodation in an accommodation centre or provided with other support or assistance of any kind, pending a decision as to whether the person is in fact eligible for accommodation in an accommodation centre.

Operation of centres

Clause 23: Resident of centre

61.     Clause 23 defines a resident of an accommodation centre for the purposes of Part 2.

Clause 24: Manager of centre

62.     Clause 24 defines a manager of an accommodation centre for the purposes of Part 2.

Clause 25: Facilities

63.     Clause 25 gives the Secretary of State the power to provide residents of accommodation centres with a number of facilities and services, described in subsection (1).

64.     Subsection (2) enables the Secretary of State by regulations to set the maximum amount of money that can be provided to the resident of an accommodation centre, or require the manager of the centre to determine the exact amount, in accordance with the regulations.

65.     Subsection (3) allow the Secretary of State to add to the list of facilities set out in subsection (1) by order. (Orders and regulations are subject to the negative resolution procedure under clause 32).

Clause 26: Conditions of residence

66.     Clause 26 enables the Secretary of State to make regulations setting out conditions of residence that may be imposed on residents of accommodation centres. The powers to impose residence restrictions set out in paragraph 21 of Schedule 2 to the 1971 Act are unaffected by this clause.

67.     Subsection (3) sets out two particular conditions that may be imposed; subsection (4) makes clear that a resident who breaches a condition may be required to leave the centre; subsection (5) provides that a resident and his dependants may be required to leave the centre if a dependant breaches a condition; and subsection (6) provides that residents must be informed in writing of any condition imposed on them. Regulations under clause 26 are subject to the affirmative resolution procedure under clause 32.

Clause 27: Financial contribution by resident

68.     Clause 27 provides that a resident of an accommodation centre may be required to make payments to the Secretary of State or the manager of the centre as a condition of residence where the resident applied to be supported and had assets (including assets outside the United Kingdom) at the time of the application which have since become realisable.

69.     Subsection (4) provides the methods by which any amounts may be recovered.

Clause 28: Tenure

70.     Clause 28 provides that a resident of an accommodation centre is not to be treated as acquiring a tenancy of or other interest in any part of the centre. It allows the Secretary of State, or the manager of the centre if authorised to do so by the Secretary of State, to recover possession of the premises occupied by the resident where the resident is required to leave the centre or where the Secretary of State decides to stop providing accommodation in the centre for that resident.

71.     Subsection (4) makes clear that any licence to occupy premises which a resident of an accommodation centre has will be an excluded licence for the purposes of the Protection from Eviction Act 1977. There is therefore no need to obtain a court order before recovering possession of the premises. The procedure to be followed in order to recover the premises is to be prescribed in regulations.

General

Clause 29: Ancillary provisions

72.     Subsections (1)(a) to (d) of this clause provide that certain criminal offences that apply to the provision of support for asylum-seekers under Part VI of the 1999 Act, shall also apply to the provision of support under this Part.

73.     Subsection (1)(e) provides for recovery by the Secretary of State of monies provided to support asylum-seekers as a result of fraud or material non-disclosure of facts.

Clause 30: Education: general

74.     Clause 30(1) provides that residents of an accommodation centre shall not be treated as part of the population of a local education authority ("LEA") for the purposes of section 13 of the Education Act 1996 ("the EA 1996"). Section 13 of the EA 1996 describes, in general terms, the duties of a LEA towards the population of its area. Education to contribute towards the spiritual, moral, mental and physical development of the community by securing that efficient primary and secondary education is available to meet its needs.

75.     Clause 30(3) prohibits a child who is a resident of an accommodation centre from attending a maintained school or nursery.

76.     For residents of accommodation centres, clause 30(5)(a) removes the duties in section 86 of the School Standards and Framework Act 1998 Act requiring LEAs to enable the parents of children in their area to express a preference as to the school at which they want their children to be educated and to comply with any preference expressed.

77.     For residents of accommodation centres, clause 30(5)(c) removes the duties in paragraph 3 of Schedule 27 to the EA 1996 requiring LEAs to enable the parents of children with special educational needs to express a preference as to the school at which they want their children to be educated, and the duty to specify the name of such a school in a child's statement of special educational needs.

78.     Clause 30(6) provides that a child who is resident in an accommodation centre and who has special educational needs shall be educated in the accommodation centre unless it is incompatible with his receiving the special educational provision which his learning difficulty calls for or the efficient use of resources.

Clause 31: Education: special cases

79.     This clause makes provision for a LEA to provide education for a child resident in an accommodation centre in certain circumstances.

Clause 32: "Prescribed": orders and regulations

80.     Clause 32 sets out the procedure to be used when making an order or regulations under this Part of the Bill.

Clause 33: Scotland

81.     This clause provides that the Secretary of State may not make arrangements for establishing an accommodation centre in Scotland unless he has consulted the Scottish Ministers. It also provides for the Secretary of State to make provision by order, subject to the negative resolution procedure, for the education of residents of accommodation centres in Scotland.

PART 3: OTHER SUPPORT AND ASSISTANCE

Clause 34: Asylum-seeker: form of support

82.     Clause 34 creates a power under which support provided for asylum-seekers under section 96(1)(b) of the 1999 Act can be restricted to those asylum-seekers who have accommodation provided for them under section 96(1)(a) of the 1999 Act. Regulations made under this power can apply generally or in specific circumstances, allowing the restriction to be phased in.

Clause 35: Destitute asylum-seeker

83.     Clause 35 substitutes a new provision for section 95(3) to (8) of the 1999 Act, which defines destitution for the purposes of support under that section. The clause mirrors clause 17 (in relation to accommodation centres) by defining a person as destitute when that person does not have, and cannot obtain, adequate accommodation and food and other living essentials. This replaces the original definition, which referred to accommodation or other essential living needs. It therefore removes the requirement to provide cash-only support to asylum-seekers. Clause 35 also mirrors clause 17 by providing the factors to which the Secretary of State cannot have regard in determining when accommodation is adequate and what items are essential items. Like clause 17, the Secretary of State also has the power to provide for when a person is not destitute.

Clause 36: Young asylum-seeker

84.     Clause 36(a) provides a power for the Secretary of State to make payments to local authorities under section 110 of the 1999 Act to reimburse them for the support they have provided for UASCs. The Secretary of State already makes these payments but requires a special grant report under the Local Government Finance Act 1988. The definition of asylum-seeker in section 94(1) of the 1999 Act excludes those who are under the age of 18 and, therefore, payments under section 110 of the 1999 Act cannot currently be made to those who are under the age of 18. This clause will enable payments under section 110 to be made in respect of asylum-seekers that are under the age of 18. The new power does not affect the amounts to be paid to local authorities or the requirements for auditing claims and ensuring payments only relate to those entitled. Clause 33(b) provides a similar power for the Secretary of State to make payments to voluntary organisations under section 111 of the 1999 Act in respect of UASCs.

Clause 37: Failed asylum-seeker

85.     Clause 37 gives the Secretary of State additional powers to support failed asylum-seekers. Section 4 of the 1999 Act currently provides that the Secretary of State may provide, or arrange for the provision of, accommodation of persons temporarily admitted to the United Kingdom or released from detention as specified in paragraphs (a), (b) and (c) of that section. However, the existing power does not allow the provision of accommodation to all categories of asylum-seekers whose claims for asylum have been rejected, should the Secretary of State decide to provide such accommodation in particular cases. Clause 37 remedies this.

Clause 38: Conditions of support

86.     Section 95(9) of the 1999 Act provides that support for asylum-seekers (accommodation and subsistence) may be provided subject to conditions. Clause 38 provides a power for the Secretary of State to link the provision of support (accommodation and subsistence) with compliance with the conditions on which temporary admission or release from detention has been granted.

Clause 39: Choice of form of support

87.     Clause 39 provides that the Secretary of State may refuse support under clause 15 or 22 of the Bill, or under section 4 or section 95 of the 1999 Act to a person if that person has been offered support under one of those provisions. The Secretary of State is given a discretion as to the provision under which he may choose to offer support.

Clause 40: Back-dating of benefit for refugee

88.     Section 123(7) of the 1999 Act provides that where a person who has been recognised as a refugee within the meaning of the Refugee Convention, or a dependant of such a person, makes a claim for any benefit to which he would have been entitled had he been regarded as a refugee when he made his claim for asylum and has received support under Part VI of the 1999 Act, regulations may make provision for the value of that support to be offset against the backdated payment of any benefit. Clause 40 extends the provisions of section 123(7) of the 1999 Act to persons provided with support under Part 2 of the Bill.

Clause 41: Asylum-seeker: appeal against refusal to support

89.     Clause 41 makes provision for appeals against refusal of asylum support or the ending of support. This clause substitutes sections 103, 103A and 103B for the existing section 103 of the 1999 Act.

90.     The provisions substituted for the existing section 103 of the 1999 Act extend the existing rights of appeal against refusal or ending of support under section 95 of the 1999 Act to refusal or ending of support under clause 15 of the Bill which provides for support in accommodation centres (new section 103(1)-(3)). This clause also re-enacts provisions of the 1999 Act relating to appeals to the asylum support Adjudicators and extends them to support under clause 15 (new section 103(4)-(5)). It also re-enacts the provision of the 1999 Act providing for the payment of reasonable travelling expenses incurred by an appellant in connection with attending an appeal hearing under section 103 or 103A and extends this to clause 15 (new section 103B).

Clause 42: Voluntary departure from the United Kingdom

91.     Clause 42 allows the Secretary of State to make arrangements to assist "voluntary leavers". A person qualifies for assistance as a "voluntary leaver" if he is leaving the United Kingdom for a place where he hopes to take up permanent residence and if the Secretary of State thinks it is in his interests to leave the United Kingdom and that he wishes to do so. British citizens and EEA nationals are excluded.

92.     Clause 42 replaces section 29 of the 1971 Act. The class of person who qualifies for assistance has been largely unchanged (the only difference is that clause 42 now excludes EEA nationals as well as British citizens), but the sort of assistance which can be given has been expanded. In addition to meeting travel expenses of voluntary leavers and their families, the Home Office is now able to meet costs associated with their immediate arrival and reception and longer term support to facilitate successful re-integration. It is also able to fund "explore and prepare" visits by persons who wish to assess the possibility of becoming voluntary leavers.

93.     The Home Office is currently responsible for a number of schemes to assist "voluntary return". The existing schemes are being run for the Home Office by the International Organisation for Migration in partnership with Refugee Action. Clause 42 enables the Secretary of State to make payments directly to these organisations.

Clause 43: International projects

94.     Clause 43 provides a power for the Secretary of State to participate in projects, either with other Governments, the EU or other non-governmental organisations of a domestic or international nature. The criteria governing the types of projects in respect of which this power to participate may be exercised are set out in subsection (1). Such projects may have as their aim, amongst others, the return of migrants both inside and outside of the United Kingdom to their country of origin by voluntary or compulsory means. Subsection (2) clarifies that the power to participate may be exercised by the Secretary of State in a way that involves the provision of funding to both governmental and non-governmental organisations, both in the United Kingdom and abroad.

95.     Pilot projects have already been undertaken, funded by the Secretary of State under the terms of the annual Appropriation Act.

96.     Subsection (4) declares that no new power of removal is created by this clause, nor are the rights to enter or remain of individuals affected in any way by it.

PART 4: DETENTION AND REMOVAL

Detention

Clause 45: Detention by Secretary of State

97.     Under paragraph 16 of Schedule 2 to the 1971 Act, an immigration officer has the power to detain an arriving passenger, an illegal entrant or a passenger liable to removal under the powers contained in section 10 of the 1999 Act. As an alternative to detaining them, the immigration officer also has the power (under paragraph 21 of Schedule 2 to the 1971 Act) to temporarily admit them to the United Kingdom. The Secretary of State has the power (under Schedule 3 to the 1971 Act) to detain or release someone against whom deportation action is being taken. The Secretary of State also has the power to grant temporary admission to someone who has made a claim for asylum immediately on arrival at a port, but unlike an immigration officer, has no power to detain such a person.

98.     This clause will give the Secretary of State the same power to detain as immigration officers, in the following circumstances - (1) pending a decision by the Secretary of State whether to set removal directions under paragraph 10 or 14 of Schedule 2 to the 1971 Act and pending removal; and (2) where the Secretary of State has power to examine a person or grant or refuse them leave to enter under section 3A of the 1971 Act, pending the examination, his decision to give or refuse leave to enter, his decision to set removal directions or removal of such a person.

99.     Subsection (4) allows the Secretary of State, where he has power to detain under this clause, as an alternative, to grant temporary admission or release from detention under paragraph 21 of Schedule 2 to the 1971 Act in the same way that an immigration officer currently can.

100.     This will mean that the decision whether or not to detain can be taken by the person who determines a person's asylum claim or immigration status and that this can be done at the same time.

101.     Subsection (5) allows restrictions under paragraph 21 of Schedule 2 to the 1971 Act set by the Secretary of State to be varied by an immigration officer and vice versa. The present offence of failing to comply with a condition of temporary admission or release without reasonable excuse is extended by subsection (9) to include failing to comply with a condition set by the Secretary of State.

Clause 46: Escorts

102.     Clause 46 amends paragraph 17 of Schedule 2 to the 1971 Act so as to confer a power on detainee custody officers, acting in accordance with escort arrangements, to enter premises in order to search a person who has been arrested with a view to detention prior to escorting him to a place of detention. The power is confined to those circumstances where an immigration or police officer has executed a warrant issued under paragraph 17(2) of Schedule 2 to the 1971 Act and has arrested a person on the premises.

103.     The existing powers of detainee custody officers acting in accordance with escort arrangements are contained in paragraph 2 of Schedule 13 to the 1999 Act. In particular, a detainee custody officer has the power to search a detained person for whose delivery or custody he is responsible. The new power would permit such a search to take place on private premises where entry is not by consent.

Clause 47: Detention centres: change of name

104.     Clause 47 amends section 147 of the 1999 Act so that detention centres will be known formally as removal centres. This reflects the part played by detention in the removal of failed asylum-seekers and others. There are a number of minor consequential amendments to other provisions in the 1999 Act and provisions in other legislation that refer to "detention centres". There are no substantive changes to the existing provisions relating to the purpose and operation of detention centres.

Temporary release

Clause 48: Bail

105.     Clause 48 provides a power for the Secretary of State, or an official acting on his behalf, to grant bail to a person detained under paragraph 16 of Schedule 2 to the 1971 Act in the same circumstances as a chief immigration officer may currently. The power takes effect after the expiry of the eighth day after detention begins, prior to which the power to grant bail will continue to be exercised by an immigration officer not below the rank of chief immigration officer.

106.     Clause 48 also repeals Part III of the 1999 Act, with the exceptions of sections 53 (except subsection (5)) and 54. Part III of the 1999 Act contained provisions for a system of routine bail hearings for those in detention and has not been implemented. The rights to apply for bail under existing legislation will remain in place.

Clause 49: Reporting restriction: travel expenses

107.     Clause 38 provides a power for the Secretary of State to link the provision of support with a requirement to report to the police or an immigration officer. Clause 49 will enable the Secretary of State to meet the reasonable travel costs of supported asylum-seekers who are required to travel to enable them to report as directed. It is necessary to introduce a specific power to cover this because regulation 9(4) of the Asylum Support Regulations 2000 specifically precludes travel expenses from being classed as an essential living need. Without this new power asylum-seekers would have to meet the costs of travel from their existing subsistence payments.

Clause 50: Induction

108.     Clause 50 provides that an asylum-seeker may be required to reside at a location for a period of up to 14 days which is at or near a place where a programme of induction will take place. The intention is that all asylum-seekers will be given an induction at the outset of their claim. The purpose of this induction is to inform the asylum-seeker about how the asylum process will work, up to and beyond the initial decision on their claim; to explain what responsibilities they have to comply with requirements placed upon them as part of that process; and to consider any requests for support. The residence restriction can be imposed regardless of circumstances, for example, whether or not the asylum-seeker has alternative accommodation available to them.

Clause 51: Asylum-seeker: residence &c. restriction

109.     Clause 51 is concerned with asylum-seekers who have existing leave to enter or remain at the time they make a claim for asylum (at present, only a small percentage of asylum-seekers fall into this category). The clause provides that such asylum-seekers and their dependants may have restrictions imposed on them which can be imposed on other asylum-seekers (that is, those without existing leave to enter or remain) under paragraph 21 of Schedule 2 to the 1971 Act. The powers under that paragraph include the power to impose reporting and residence requirements. The purpose of this provision is to ensure that all asylum-seekers, whatever their circumstances prior to making a claim, can be subject to the same basic process including, for example, the requirement to keep in touch through regular reporting. The clause further provides that where an asylum-seeker with existing leave fails to comply with a restriction placed upon him they will then become liable to detention under paragraph 16 of Schedule 2 to the 1971 Act. Restrictions imposed under this clause cease to have effect once a person ceases to be an asylum-seeker.

Removal

Clause 52: Family

110.     Under paragraphs 8 to 10 of Schedule 2 to the 1971 Act, directions may be given for the removal of persons refused leave to enter the United Kingdom and illegal entrants. Clause 52(1) allows removal directions to be given for the children of such people where those children were born in the United Kingdom.

111.     An equivalent power already exists under section 10(1)(c) of the 1999 Act in respect of children born in the United Kingdom whose parents have remained beyond their leave, breached the conditions of their leave or obtained leave to remain by deception.

112.     Subsections (2) to (4) make minor amendments in relation to the existing provisions of section 10 of the 1999 Act.

Clause 53: Deception

113.     Under section 10(1)(b) of the 1999 Act, there is a power to remove immigration offenders who have obtained leave to remain by deception. Clause 53 creates a power to remove people whose deception is discovered before leave is granted. People who seek to obtain leave to remain by deception and people who succeed in doing so both commit an offence under section 24A(1)(a) of the 1971 Act.

Clause 54: Exemption from deportation

114.     Under section 7(1)(a) of the 1971 Act Commonwealth citizens or citizens of the Republic of Ireland cannot be deported on grounds of the public good if they were: (a) Commonwealth or Republic of Ireland citizens on 1st January 1973 (the date of the coming into force of the 1971 Act); (b) ordinarily resident in the United Kingdom at that time; and (c) have been ordinarily resident in the United Kingdom ever since.

115.     Under section 7(1)(b) of 1971 Act Commonwealth citizens and citizens of the Republic of Ireland cannot be deported if they were ordinarily resident here on 1 January 1973 and have been ordinarily resident here for the 5 years prior to a decision to make a deportation order. Clearly, someone who has been ordinarily resident here at all times since 1 January 1973 has also been resident here for 5 years before the decision to deport. Subsection (2) therefore repeals section 7(1)(a) of the 1971 Act which is redundant.

116.     Subsection (3) replaces section 7(1)(b) of the 1971 Act.

 
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Prepared: 12 April 2002