|Nationality, Immigration And Asylum Bill - continued||House of Commons|
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Provision of information by traveller
Clause 97: Physical data: compulsory provision
175. This clause supplements the current power to fingerprint and gather data from persons subject to immigration control, which is contained in sections 141 to 146 of the 1999 Act. Subsections (1) and (2) enable the Secretary of State to provide by regulations that a person who makes an application for a visa or entry clearance, or for leave to enter or remain (including variation of such leave) must either ensure that specified data accompanies the application, or provide such information to an "authorised person" (for example, an entry clearance or immigration, officer) on demand. The data that may be required extends to external physical characteristics, including features of the iris and any other part of the eye. By virtue of subsection (3), the power does not extend to those persons to whom section 141 of the 1999 Act applies. These groups continue to be covered by sections 141 to 146 of that Act.
176. Subsections (4) to (8) make further provision about the regulations. In particular, regulations may specify the form in which "data" should be provided, the means by which data may be obtained and safeguards regarding the proper use and retention of the information The regulations may also specify the result of a person failing to provide the requisite "data", which may include the application being invalid or dismissed. There is no power to arrest persons who refuse to provide the data or to use reasonable force as remains the case for those covered by sections 141 to 146 of the 1999 Act. Regulations must provide for the destruction of data and ensure that proper safeguards are in place when collecting data from those under the age of 16.
Clause 98: Physical data: voluntary provision
177. Under this clause the Secretary of State may operate a scheme that enables people voluntarily to provide "data" with a view to assisting and accelerating their entry into the United Kingdom. By virtue of subsection (2), regulations made under this clause may impose or permit imposition of a charge on participants and may provide for safeguards regarding the use and retention of "data".
Clause 99: Data collection under the Immigration and Asylum Act 1999
178. This clause amends section 144 of the 1999 Act to clarify that features of the iris or any other part of the eye come within the scope of external physical characteristics. This confirms that iris scans may be prescribed under section 144 of the 1999 Act and ensures that section 144 of that Act is interpreted in line with clause 97. This clause also ensures that those exercising powers taken under section 144 of the 1999 Act are obliged to have regard to the provisions of any specified code. It thereby brings section 144 of that Act into line with the collection of data under clause 97.
Disclosure of information by public authority
Clause 100: Local authority
179. This clause provides that where the Secretary of State reasonably suspects that a person has committed a specified offence under the 1971 Act and is, or has been resident in a local authority area, the Secretary of State may require that local authority to provide information for the purpose of locating that person. It further provides that local authorities must comply with such a requirement.
Clause 101: Inland Revenue
180. This clause provides that where the Secretary of State reasonably suspects that a person is in the United Kingdom without leave and it is not lawful for the person to work, or the person has worked in breach of conditions of leave or temporary admission the Board of Commissioners of Inland Revenue may supply information to the Secretary of State that may help him to locate that person.
Clause 102: Police, etc
181. Section 20 of the 1999 Act provides for information to be supplied to the Secretary of State by a number of bodies, to tackle abuse of the immigration control and other immigration related offences. This clause enables those bodies (including chief officers of police, the National Criminal Intelligence Service and HM Customs & Excise) to supply information to assist the Secretary of State to determine whether a person who has applied for naturalisation as a British citizen satisfies the "good character" requirements of the BNA 1981. Such information may include evidence of convictions.
Clause 103: Supply of document to Secretary of State
182. Clause 103 provides that where in supplying data under section 20 a person comes across physical objects, such as documents or replica immigration stamps, they may pass them to the Secretary of State for immigration purposes.
183. Subsection (4) allows the Secretary of State to retain or dispose of documents or articles which are passed to him under this clause.
Clause 104: Medical inspectors
184. This clause authorises port medical inspectors appointed under the 1971 Act to disclose to a health service body information about a person they reasonably suspect to be infected with a notifiable disease. The information that can be disclosed is set out in subsection (2). A health service body is defined in subsection (3). A notifiable disease means a disease specified in section 10 of the Public Health (Control of Diseases) Act 1984 or any enactment which applies by virtue of regulations made under that Act.
Disclosure of information by private person
Clause 105: Employer
185. This clause provides for the Secretary of State, where he has reasonable suspicion that a person has committed an offence in relation to earnings under the NASS scheme to require that person's employer to disclose information about that person's earnings. It also enables the Secretary of State to require an employer to disclose compulsory records held under section 8 of the Asylum and Immigration Act 1996 ("the 1996 Act") where he reasonably suspects the employee of committing a specified immigration offence. The provision applies to employment agencies hiring out the services of staff, whether those staff are self-employed, employed by the employment agency, or employed by a third party employer.
Clause 106: Financial institution
186. This clause provides for the Secretary of State to require a financial institution, including a bank or building society, to supply information about a person's earnings and financial status to detect and prevent fraud of the national asylum support arrangements. To exercise this power, the Secretary of State must have reasonable grounds to suspect that the institution holds relevant information about a person and that the latter has made false or dishonest statements to obtain support under Part VI of the 1999 Act.
Clause 107: Notice
187. This clause sets out the form in which a request made under clause 105 or 106 must be made, and what is required of an employer or financial institution that receives such a request. The request must be made in writing and must specify the information required and the time limit for replying, which must be at least 10 working days after the request is received. Within that time limit, the person on whom the notice is served must provide the information, or make a declaration to say that he does not have that information.
Clause 108: Disclosure of information: offences
188. A person who without reasonable excuse does not comply with a request made under clause 107(3) commits an offence punishable with a fine. A person who falsely makes a declaration to say that he does not have the information requested commits an offence punishable by either a fine or 3 months imprisonment, or both.
Clause 109: Offence by body corporate
189. The offences in clause 108 may be committed by a natural or legal person, including a company. This clause provides that where an offence under clause 108 is committed by a company, an officer of the company (which may include a manager, director, secretary or member) may be jointly and severally liable if it can be shown that the offence was committed with his consent or knowledge, or due to his negligence. The clause also provides for liability of partners in a firm.
Clause 110: Privilege against self-incrimination
190. This clause provides that information provided by a person under clauses 105 and 106 can not be used as evidence in criminal proceedings against that person (or an officer or employee of that person), except to prove an offence under clause 108.
Immigration Services Commissioner
Clause 111: Immigration Services Commissioner
191. Subsection (1) inserts a subparagraph in paragraph 7 of Schedule 5 to the 1999 Act to provide that the Immigration Services Commissioner ("the Commissioner") may exercise his existing powers of entry when investigating a matter on his own initiative. These powers may be exercised to the same extent and in relation to the same matters as would be the case if the Commissioner was investigating a complaint made to him by a third party.
192. Subsection (2) inserts a new paragraph in Schedule 6 to the 1999 Act which enables the Commissioner to vary an adviser's registration at any time without charge. Subsection (3) enables any decision made by the Immigration Services Commissioner in this way to be appealed to the Tribunal.
PART 7: OFFENCES
Clause 112: Assisting unlawful immigration
193. Under section 25(1) of the 1971 Act it is an offence for someone to be knowingly concerned in making or carrying out arrangements for securing or facilitating the entry into the UK of an illegal entrant or (if done for gain) an asylum-seeker. It is also an offence to knowingly assist a person to obtain leave to remain in the United Kingdom by deception. The maximum penalty for these offences is 10 years imprisonment and/or an unlimited fine. Where someone is convicted of an offence of assisting entry, the court can order the forfeiture of any ship, aircraft or vehicle used to commit the offence. (In the case of ships and aircraft this power is limited to vessels below a certain tonnage and aircraft below a certain operating weight (section 25(7) of the 1971 Act.) The offence of assisting entry includes acts done outside the United Kingdom by a British citizen, a British Dependent Territories citizen, a British Overseas citizen, a British subject or a British protected person.
194. Under section 25(2) of the 1971 Act it is an offence to "harbour" an illegal entrant, a person who stays longer than allowed by their leave or a person who fails to observe another condition of their leave. The maximum penalty for this offence is 6 months imprisonment and/or a fine of £5,000.
195. Clause 112 repeals section 25 of the 1971 Act and replaces it with four new sections (sections 25, 25A and 25B and 25C). Section 25 makes it an offence knowingly to facilitate someone to breach the laws of any Member State, not just the United Kingdom. This is a measure required to enable the United Kingdom to comply with Article 27 of the Schengen Convention. It will also assist compliance with a European Directive on Unauthorised Entry, Transit and Residence and its associated Framework Decision, which have yet to be formally adopted. The maximum penalty for the offence has been increased to 14 years' imprisonment or an unlimited fine. There is no longer a separate offence of "harbouring" since this conduct is now included as part of the general offence.
196. United Kingdom courts continue to have jurisdiction over acts of "assistance" given by certain classes of person outside the United Kingdom. The list has been expanded to include British Nationals (Overseas). "British National (Overseas)" is a form of British Nationality created by the Hong Kong Act 1985. Until 1997, British Nationals (Overseas) were also British Dependent Territories citizens and could be prosecuted for "assistance" given outside the United Kingdom on this basis. When they ceased to be British Dependent Territories citizens, they could no longer be prosecuted for such assistance. Their inclusion restores the pre-July 1997 position.
197. New Section 25A reproduces the offence which is presently section 25(1)(b) of the 1971 Act (namely, helping an asylum-seeker to enter the United Kingdom). New section 25B makes it an offence to assist entry to the United Kingdom in breach of a deportation order and new section 25C confers the same powers on courts to order the forfeiture of ships, aircraft and vehicles as exist presently.
Clause 113: Traffic in prostitution
198. Clause 113 creates a criminal offence of trafficking people into, or out of, the United Kingdom for the purpose of controlling them in prostitution. A person commits the offence if he arranges for a person to enter or leave the United Kingdom and he intends to control them in prostitution there or elsewhere, or he believes another person is likely to control them in prostitution anywhere in the world. The offence is also committed if a person arranges travel within the United Kingdom if he believes that the passenger has been brought into the United Kingdom in order to be controlled in prostitution there or elsewhere and he intends to control them in prostitution, or believes another person is likely to do so, anywhere in the world. Controlling someone in prostitution means exercising control, direction or influence over a prostitute's movements in a way that shows he is aiding, abetting or compelling prostitution.
199. The offence is triable either summarily or on indictment. The maximum penalty on indictment is 14 years imprisonment.
Clause 114: Section 113: supplementary
200. The supplementary clause provides that the offence applies to trafficking a person into or out of any part of the United Kingdom, as well as within the United Kingdom. It creates extra-territorial effect as the provision applies to trafficking outside the United Kingdom when it is committed by specified categories of British national. It also applies to a company incorporated anywhere in the United Kingdom. Clause 128(2) provides that clause 113 and 114 extend only to England, Wales and Northern Ireland.
201. Subsection (3) provides that the vehicle forfeiture provisions in the 1971 Act, which relate to facilitation of illegal entry offences, also apply to the trafficking offences. This means that where a person is convicted of trafficking, the court may order the forfeiture of any vehicle, ship or aircraft used in the commission of the offence.
202. Subsection (4) provides that the trafficking offence shall be included in the schedule of offences which will be included on the list of offences against a child listed in Schedule 4 of the Criminal Justice and Court Services Act 2000. This means that those convicted of this offence against a person aged under 18 and who are sentenced to imprisonment or detention of twelve months or more will be disqualified from work with children in the future, whether in a paid or unpaid capacity. Breach of such a disqualification order is a criminal offence.
Clause 115 Employment
203. Clause 115 amends section 8 of the 1996 Act and modifies the existing law on illegal working. Under section 8 of the 1996 Act it is an offence to employ a person aged 16 or over who is subject to immigration control unless:
204. A statutory defence is provided in section 8(2) of the 1971 Act. The employer needs to prove that they have taken two steps in order to establish this defence. First, the employer must have had produced to him a document which appeared to him to relate to the worker in question and to be of a description specified in an order by the Secretary of State. The current order is the Immigration (Restrictions on Employment) Order 1996 SI 1996/3225. Second, the employer must have retained the document or a copy of it.
205. Subsection (2) inserts two new subsections in the 1996 Act in place of section 8(2) of the 1996 Act. Under subsection (2) it will be a defence for a person charged with an offence under section 8 to prove that he complied with any relevant requirement of an order made by the Secretary of State under subsection (2A). Subsection (2A) expands the type of document that an employer could be required to see under such an order. In practice this could mean that, to establish a defence, an employer must demonstrate that he has seen two documents of particular types, and to produce copies of these when required.
206. Subsection (4) provides new ancillary powers of entry, search and arrest in relation to the section 8 offence. Immigration officers will have powers of entry to premises in order to make an arrest, entry and search of premises by warrant in order to obtain relevant evidence, entry and search of premises after arrest, search of arrested persons and search of persons in police custody.
Clause 116: Registration Card
207. Clause 116 inserts section 26A into the 1971 Act which creates a number of new offences relating to the creation, possession and use of false or altered registration cards.
208. Subsections (1) and (2) define a registration card as a card containing information about a person issued by the Secretary of State in connection with a claim for asylum. A "claim for asylum" is a claim made for asylum or for protection under Article 3 of the European Convention on Human Rights. A card may issued to the asylum claimant themselves or to a spouse or dependant of that claimant.
209. The offences are contained in subsection (3). These include making a false card, altering a genuine card with intent to deceive (or to enable someone else to deceive), possessing a false or altered card without reasonable excuse, using a false card, and using an altered genuine card with intent to deceive. There are also offences relating to equipment designed to be used in making or altering cards.
210. The maximum custodial sentence for the offences involving "possession" of a false or altered card or an article designed to make one is two years following conviction on indictment. The maximum custodial sentence for the other offences (including making, altering and using the card) is ten years imprisonment.
211. Subsections (7) and (8) provide that the Secretary of State may amend the definition of a card by order.
Clause 117: Immigration Stamp
212. Clause 117 creates an offence of possession of an immigration stamp, whether genuine or a replica, without a reasonable excuse. The offence relates to stamps used by immigration officers or officers acting on behalf of the Secretary of State to endorse documents, when exercising their powers under the Immigration Acts. It is punishable by a maximum custodial sentence of two years, a fine or both.
Clause 118: Sections 116 and 117: consequential amendments
213. These clauses contain ancillary powers in relation to the immigration stamp and registration card offences. Immigration officers or police constables can arrest someone who has committed these offences without a warrant. They can also enter premises by warrant in order to search for and arrest a person suspected of committing one of these offences. Finally they can enter premises by warrant in order to search for evidence relevant to these offences.
Clauses 119 and 120: Power of entry and to search for evidence
214. Clause 119 gives immigration officers and police officers the power to enter business premises to search for, and, where appropriate, arrest immigration offenders where they have reasonable grounds for believing that such an offender is on the premises. Authorisation to use this power must be given by a senior officer (either an Assistant Director of Immigration or a Chief Superintendent of police) and is valid for a period of seven days beginning on the day it was given.
215. Clause 119 gives immigration officers and police constables powers to search business premises without a warrant if, amongst other things, a person has been arrested for an offence under section 24 or section 24A and the officer reasonably believes that an offence under section 8 of the 1996 Act has been committed and that there are employee records on the premises which are likely to be of substantial value in the investigation of the offence.
216. Clause 120 gives immigration officers a power to search business premises by warrant where the officer reasonably believes that the employer has provided inaccurate or incomplete information under the compulsory disclosure provisions of clause 105. Officers will be able to inspect employee records other than privileged records under this power.
FINANCIAL EFFECTS OF THE BILL
217. There will be additional costs for Government Departments arising from some provisions in the Bill. Details are set out below. The Bill's other provisions have negligible expenditure implications for Government Departments. None of the Bill's provisions have tax implications.
Part 1: Nationality
218. All costs resulting from the introduction of citizenship ceremonies will be met from applicants' fees. The majority of costs incurred through the provision of language and British society education will be met from existing provision. Future funding decisions in relation to any additional costs will be made in relation to other Government spending priorities.
Part 2: Accommodation Centres
219. Costs of establishing trial centres will be established through competitive procurement procedures. Running costs will be largely offset against the costs of supporting up to 3000 asylum-seekers and dependents in dispersal accommodation at any one time.
Part 3: Other Support and Assistance
220. It is anticipated that the extension of accommodation for failed asylum-seekers under clause 34 to those who had leave to enter or remain at the time they made their application for asylum will have little impact on the total costs of such support.
221. Clause 38 will result in savings because of improved contact management and that this should offset any increase in accommodation costs as a result of ending living costs-only support.
222. Clause 42 enables the Government to fund voluntary departure programmes under the same procedures as other Home Office funds. Future funding decisions in relation to voluntary departure will be made in relation to other Government and Home Office spending priorities, though it is notable that the voluntary departure programmes result in significant savings to the Department. This also applies to clause 43 and the funding of international projects.
Part 4: Detention and Removal
223. The measures that give the Secretary of State the same powers as immigration officers in respect of detention and bail are expected to deliver marginal cost savings.
Part 5: Immigration and Asylum Appeals
224. Increasing the IAT's workload may lead to an increase of costs. The change will be at least cost neutral in the overall context of the asylum process, because of the cost savings that will be made by the Home Office in the end-to-end asylum process.
Part 6: Immigration Procedure
225. The measure to charge for work permits will enable the existing high level of service to be maintained and reduce the burden on the taxpayer. Charging users should offset costs to the taxpayer, by around £15 million in a year, based on a forecast of 175,000 applications being received.
226. The measure giving certain agencies the power to pass information to the Secretary of State may have a small effect on public expenditure, though it may ultimately result in savings to the exchequer by reducing fraud.
EFFECTS OF THE BILL ON PUBLIC SERVICE MANPOWER
227. The effects of the Bill on public service manpower are set out below. The Bill's other measures are expected to make negligible changes.
Part 1: Nationality
228. The anticipated increase in the provision of language and British society education will result in an increase in staff. Additionally staff may be required at local authority level to deal with the introduction of citizenship ceremonies where there are high concentrations of successful applicants.
Part 2: Accommodation Centres
229. It is estimated that around 300 staff will be required to operate each accommodation centre. Of these, only around 50 will be newly appointed public servants. Therefore, during the trial period where a total of 3,000 places will be made available to asylum-seekers, around 200 new public service posts will be created.
Part 6: Immigration Procedure
230. Administering the work permit charging system will require around 20 new public service posts.
SUMMARY OF THE REGULATORY APPRAISAL
231. Some of the measures in the Bill will increase the regulatory burden on industry. Regulatory Impact Assessments have been completed for many of these and are summarised below, though the total compliance costs for some of the measures will depend on the details of the proposals to be covered in secondary legislation. These proposals, which may require orders, regulations or codes to be issued by Statutory Instrument, will be developed in consultation with industry to ensure that the regulatory burden is minimised. Regulatory Impact Assessments for these measures will be completed as the proposals are developed.
Part 6: Immigration Procedure
232. Clause 94 introduces a power to charge for Work Permit applications. This will impose an additional burden on those United Kingdom businesses wishing to employ people from outside the European Economic Area totalling around £15.8 million per year. The charging system will ensure that the existing high level of service is maintained or improved in spite of an expected increase in the number of applications, and will be developed following a full and formal consultation.
233. Clause 95 gives the Immigration Services Commissioner the power to regulate businesses that provide advice about work permits. This is likely to affect a small number of specialist work permit advisers, requiring them to register with, and pay a fee to, the Commissioner.
234. The cumulative effect on carriers of the ATC scheme introduced by clause 96 will be noticeable. However, the electronic checks will give carriers reassurance that passengers are not known to pose a threat, and will identify those who are unlikely to be admissible to the United Kingdom enabling carriers to avoid the costs associated with the removal of those refused leave to enter. A Regulatory Impact Assessment will be completed as the regulations are developed.
|© Parliamentary copyright 2002||Prepared: 12 April 2002|