House of Lords - Explanatory Note
Immigration And Asylum Bill - continued          House of Lords

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Clause 4: Charges

46.     This clause allows fees to be prescribed for the consideration of applications for leave to remain in the United Kingdom, variation of leave to enter or remain or the fixing of a stamp in a new or replacement passport or travel document which confirms indefinite leave to enter or remain in the United Kingdom. Fees will be payable irrespective of whether applications are granted.

47.     There already exists a power in section 9(1) of the Immigration Act 1988 for charges to be levied in respect of applications for settlement, but the power has not been exercised. The existing power will be repealed by the Bill, as it is no longer needed in the light of the new power.

48.     The fees are to be prescribed by regulations made by the Secretary of State under this clause, read with clause 154, which also allows different fee levels to be set for different types of case. They may also provide for no fees to be payable in prescribed circumstances. The current intention is that asylum seekers, and those seeking protection under Article 3 of ECHR, will not be charged. This clause does not permit charges for applicants seeking confirmation of their rights under European Community (EC) law. Fee levels for other applicants will reflect the full cost of processing their application.

Clause 5: Members of missions other than diplomatic agents

49.     This clause is designed to prevent foreign nationals already in the United Kingdom from evading immigration control by taking a job in a diplomatic mission, thus closing a loophole which exists under current legislation. Under section 8(3) of the 1971 Act, a person is exempt from immigration control for so long as he is a member of a diplomatic mission. Section 8(3A) of the 1971 Act (inserted by the Immigration Act 1988) has the effect that foreign nationals already in the United Kingdom who are offered a job in a diplomatic mission remain subject to control as long as they remain in this country. However, if they travel abroad the current wording of section 8(3A) has the result that they become exempt upon their return simply because they have entered as a member of a diplomatic mission. The clause is intended to close this loophole by replacing the existing section 8(3A) with a new one which provides an exemption only if the person was resident outside the United Kingdom and was not present in the United Kingdom when offered a post as a member of the mission; and if he has not ceased to be a member of the mission after taking up the post. The former condition is designed to ensure that locally engaged staff cannot benefit from the exemption. The latter condition is designed to ensure that the conditions for exemption are again met in the event of subsequent re-employment as a member of a mission.

Clause 6: Persons ceasing to be exempt

50.     This clause is intended to ensure that certain persons who have been exempt from immigration control but who would otherwise require leave to enter or remain in the United Kingdom do not remain for more than 90 days once they have ceased to be exempt, unless they have leave to do so. Under the Immigration (Exemption from Control) Order 1972, made under section 8(2) of the 1971 Act, certain personnel of international organisations with a branch in the United Kingdom are exempt from immigration control. In addition, under section 8(3) of the 1971 Act a member of a diplomatic mission is exempt from immigration control. In both cases, members of their family forming part of the household are also exempt. This means that, as they are not subject to any of the provisions of the 1971 Act relating to those who are not British citizens, many persons who cease to be exempt do not commit any offence of, for example, remaining beyond their leave, if they fail thereafter to apply for permission to stay here. Clause 6 closes this loophole by deeming that limited leave of 90 days has been given from the date that exemption ceases. However, the 90 days of deemed leave will not supersede any leave granted prior to the period of exemption if that leave still has more than 90 days left to run upon cessation of exemption. Those who had been granted indefinite leave (settled status) immediately prior to exemption will have this re-instated.

51.     Clause 6 does not apply to persons who would not require leave to stay in the United Kingdom at the expiration of their exempt status. EEA nationals and their dependants will therefore be unaffected insofar as they are exercising EC free movement rights in the United Kingdom.

Clause 7: Treatment of certain overstayers

52.     Clause 7 enables those foreign nationals who have overstayed their limited leave to enter or remain to apply for leave to remain within a prescribed period before clause 8 of the Bill comes into force. Any application made within this period will preserve the applicant's rights of appeal against deportation. Clause 8 and paragraph 5 of Schedule 14 will come into force on the day after the prescribed period ends. Foreign nationals to whom clause 8 applies and who have not made an application within the prescribed period will be liable to administrative removal with no right of appeal before removal.

Clause 8: Removal of certain persons unlawfully in the United Kingdom

53.     In parallel with the reform of the immigration and asylum appeals system, the White Paper announced that in future, anyone who had been lawfully in the United Kingdom but who no longer had any entitlement to remain would normally be subject to administrative removal rather than deportation. This clause provides that those who have failed to observe the conditions attached to their leave, overstayers and those who have obtained leave to remain by deception - ie those currently liable to deportation action under sections 3(5)(a) and 3(5)(aa) of the 1971 Act, and the family members of such people - will be subject to new administrative removal procedures. These procedures will mirror those which currently apply in respect of illegal entrants. Deportation action will continue to apply to cases where the Secretary of State deems the person's removal to be conducive to the public good and to court recommended cases (sections 3(5)(b) and 3(6) of the 1971 Act) and to the family members of someone deported on those grounds.

54.     Subsection (2) makes it clear that an overstayer who has applied for leave to remain under the special arrangements set out in clause 7 and whose application has not been determined cannot be removed under the new removal procedures. (If an application is subsequently refused, the person concerned will be subject to deportation proceedings and will have a right of appeal to the Immigration Appellate Authority.) Subsection (3) places a time limit on taking removal action against the family member of someone who is being, or has been, removed similar to that contained in section 5(3) of the 1971 Act.

Clause 9: Removal of asylum claimants under standing arrangements with member States

55.     This clause replaces section 2 of the Asylum and Immigration Act 1996 insofar as it applies to asylum seekers transferred to other Member States under standing EU arrangements for determining responsibility for asylum seekers. These standing arrangements are currently provided for by the Dublin Convention. Article 63 of the Treaty of Amsterdam provides that there should be a new measure in this field in the next five years. This may replace the Dublin Convention.

56.     Clause 9 is a response to the fact, identified in the White Paper, that many Dublin Convention cases have been subject to unnecessary and lengthy delay as a result of judicial review applications which challenge the safety of the transfer. Like the current section 2, the new clause requires that nothing shall prevent the removal of an applicant provided that the Secretary of State certifies that certain requirements are met. These requirements are that the claimant is not a national of the receiving state and that the receiving state has accepted that it is the responsible one for considering the asylum claim. The Secretary of State is no longer required to certify that the conditions set out in section 2(2)(b) and 2(2)(c) of the Asylum and Immigration Act 1996 are satisfied. These conditions are that the receiving state should be one where the person's life or liberty is not threatened by reason of his race, religion, nationality, etc or one from which the person shall not be sent to another country otherwise than in accordance with the 1951 Refugee Convention. Instead clause 9 provides specifically that these factors shall be regarded as being satisfied.

57.     In addition, clause 9 makes it a requirement that removal may not proceed if there is an appeal outstanding in respect of a claim that the transfer would be in breach of the ECHR (or the period within which such an appeal should be lodged has not yet expired) or if such an appeal has been successful. In accordance with clause 62 this requirement does not apply where the Secretary of State has certified that such a claim is manifestly unfounded.

Clause 10: Removal of asylum claimants in other circumstances

58.     This clause replaces section 2 of the Asylum and Immigration Act 1996 insofar as it applies to asylum seekers transferred to safe third countries other than in the circumstances provided for in clause 9. The clause re-creates the effect of section 2 in respect of these cases. It provides additionally that a person may not be removed if they have an appeal outstanding in respect of a claim that the decision to remove would be in breach of the ECHR (or the period within which such an appeal should be lodged has not yet expired) or if such an appeal has been successful. In accordance with clause 62 this requirement does not apply where the Secretary of State has certified in respect of a transfer to a Member States or other designated safe third country that such a claim is manifestly unfounded.

Clause 11: Proof of identity of persons to be removed or deported

59.     Subsections (1) and (2) provide for the release of fingerprint data to the authorities of other countries where they require such data in circumstances where their nationals are to be removed from the United Kingdom but do not have valid passports or identity documents which permit travel.

60.     Subsection (3) protects the confidentiality of an asylum seeker by ensuring that the Secretary of State cannot release information about whether the individual concerned has made an application for asylum.

61.     The result of subsection (4) is that, as the release of data under subsection (2) is treated as necessary for reasons of substantial public interest, the eighth principle of Schedule 1 to the Data Protection Act 1998 will not apply. The eighth principle states that the transfer of personal data to countries outside the EEA is forbidden unless the country concerned ensures an adequate level of protection in relation to the processing of that data.

Clauses 12 and 13: Provision of financial security

62.     The powers that clauses 12 and 13 will confer will enable the Government to give effect to the proposal in the White Paper to introduce a financial bond scheme for visitors to the United Kingdom. Under the proposed scheme, to be elaborated in immigration rules, if an entry clearance officer considering an application for entry clearance has any doubts about a visitor's intentions, the visitor may be invited to arrange for a sponsor in the United Kingdom to provide a financial security (eg a bond). The provision or otherwise of a security would be one of the factors the entry clearance officer would be able to take into account when deciding the application. Any security provided would be forfeited if the applicant did not leave the United Kingdom at the end of their visit, except where refugee status or leave on ECHR grounds was granted. A security would be requested only where the application for entry clearance was judged by the entry clearance officer to be borderline. It would not be a feature if the application clearly justified either the grant or refusal of entry clearance.

63.     The Government announced in the White Paper that these powers will be used in the first instance to run a pilot scheme to test whether financial securities for visitors are an effective and practical measure. The Government will undertake a consultation exercise with interested parties on the design of the pilot scheme before it is introduced, and will assess the results of the pilot, which will be made public, to see if they justify wider use of the provisions. The scheme set out above is intended as the scheme which will be put in place in immigration rules under the powers conferred by these clauses. However, it will be possible to extend these powers to those seeking entry to this country or permission to remain in categories other than visitors. However, there are currently no plans to do so.

Clause 14: Passenger information

64.     Under paragraph 27(2) of Schedule 2 to the 1971 Act, an order has been made by the Secretary of State allowing an immigration officer to require the captain of a ship or aircraft arriving in the United Kingdom to furnish a passenger list showing the names and nationality or citizenship of passengers on board the ship or aircraft. This power has been applied with modifications by order under the Channel Tunnel Act 1987 to through trains and shuttle trains arriving in the United Kingdom.

65.     Clause 14 supplements this power by inserting a new paragraph 27B into the 1971 Act. The new paragraph allows immigration officers to require owners or agents ("carriers") to disclose certain information relating to passengers who are expected to be carried on their ships or aircraft arriving in and departing from the United Kingdom, or which have arrived in or departed from the United Kingdom. This new power will be capable of being applied by order under the Channel Tunnel Act 1987 to through trains or shuttle trains arriving in or departing from the United Kingdom.

66.     The types of information about passengers which can be required will be specified by order, subject to the negative resolution procedure. The Government has made clear that it is not intended that carriers should be required to provide information to which they do not have access.

Clause 15: Notification of non-EEA arrivals

67.     This clause inserts a new paragraph 27C into Schedule 2 to the 1971 Act. The new paragraph provides an immigration officer not below the rank of chief immigration officer, or an immigration officer authorised by such an officer, with the power to require a carrier to inform a relevant officer of the expected arrival in the United Kingdom of any of his ships or aircraft which the carrier expects to carry a non-EEA national. It is envisaged that this power will normally be used in relation to arrivals at ports where there is no permanent immigration presence to allow resources to be deployed more efficiently.

68.     This new power will be capable of being applied by order under the Channel Tunnel Act 1987 to through trains or shuttle trains arriving in the United Kingdom.

Clause 16: Supply of information to the Secretary of State

69.     This clause provides for information to be supplied to the Secretary of State by the police, the National Criminal Intelligence Service (NCIS), the National Crime Squad (NCS) and HM Customs and Excise (HMCE). It is designed to facilitate closer inter-agency co-operation in tackling abuse of the immigration control, racketeering and other immigration-related offences. It will also enable resources to be deployed more effectively. Information may only be supplied to the Secretary of State under this provision for the specific "immigration purposes" set out in the clause.

70.     In addition, the Secretary of State is given the power to specify by order further bodies which may supply information to him, and additional immigration purposes for which he may be supplied with information, under the clause. This order-making power will be subject to the affirmative resolution procedure.

Clause 17: Supply of information by the Secretary of State

71.     This clause provides for information to be supplied by the Secretary of State to the police, NCIS, NCS and HMCE for the specified purposes set out in subsections (3), (4), (5) and (6) respectively. It will allow disclosure by the Secretary of State of information held in connection with the exercise of functions under immigration legislation.

72.     The clause also provides the Secretary of State with the power to specify by order further purposes for the supply of information to these agencies, and other bodies to which information may be provided by him for specified purposes. Again, this order-making power will be subject to the affirmative resolution procedure.

Clause 18: Restrictions on employment: code of practice

73.     This clause is designed to re-emphasise to employers their duty to avoid racial discrimination in their recruitment practices when seeking to establish the statutory defence under section 8 of the Asylum and Immigration Act 1996. It places the Secretary of State under a duty to issue a code of practice aimed at ensuring that employers do not breach the provisions of the Race Relations Act 1976 by making more checks on potential employees than section 8 requires or by targetting checks on racial grounds. Following consultation, the draft code must be laid before Parliament and may be brought into operation by statutory instrument subject to the negative resolution procedure.

74.     Subsections (3) and (4) are intended to provide an opportunity for those with statutory responsibility for, or specific interest in, guarding against racial discrimination in employment practice, to be consulted before the code of practice is finalised.

Clause 19: Monitoring refusals of entry clearance

75.     This clause replaces section 13(3AA) and 13(3AB) of the 1971 Act.

76.     Subsections (1) and (2) require the Secretary of State to appoint an independent monitor to review refusals of entry clearance where there is no right of appeal under clause 50(5).

Clause 20 : Duty to report suspicious marriages

77.     This clause places a duty on registration officers to report to the Home Office marriages which they reasonably suspect as being sham marriages (as defined). At present, there is no such obligation. The purpose is to enable the Home Office to obtain early warning of possible suspicious marriages so that they may be investigated. It does not confer power to refuse to marry on grounds of immigration status. Nor does it confer powers on registrars or others to question couples about their immigration status.

78.     Subsection (1) places the duty to report, where there are reasonable grounds for suspecting a sham marriage, on registration officers in England and Wales to whom notice is given or who attest a notice of marriage under the Marriage Act 1949, on district registrars in Scotland to whom notice of marriage or a certificate is submitted under the Marriages (Scotland) Act 1977 and on registrars and deputy registrars in Northern Ireland to whom notice has been given under the Marriages (Ireland) Act 1844 or the Marriage Law (Ireland) Amendment Act 1863.

79.     Subsection (2) provides for the duty to apply where a marriage is solemnised in the presence of a registrar of marriages, and in Scotland to authorised registrars, where before, during or immediately after solemnisation of the marriage the registration officer has reasonable grounds for suspecting the marriage is or will be a sham marriage.

80.     Subsection (3) establishes the duty to report to the Secretary of State; and requires it to be in such form and manner and within such a time period as may be set out in regulations.

81.     Subsection (4) provides for regulations to be made in relation to England and Wales, Scotland and Northern Ireland by the Registrar General for England and Wales (with the approval of the Chancellor), by the Registrar General for Scotland (with the approval of the Home Secretary) and for Northern Ireland by the Secretary of State.

82.     Subsection (5) defines a sham marriage as a marriage entered into between a person ("A") who is neither a British citizen nor a national of an EEA state other than the United Kingdom and another person (whether or not such a citizen or national); and entered into by A for the purpose of avoiding the effect of one or more provisions of United Kingdom immigration law or the immigration rules.

Clause 21: Facilities at ports

83.     Subsection (1) supplements existing legislation by empowering the Secretary of State to make a direction requiring the provision without charge of the accommodation and facilities necessary for, or in connection with, the operation of the immigration control. This will allow the provision of facilities to be standardised and will also have the effect of removing any competitive advantage from which some operators might currently benefit.

84.     Subsection (2) provides for consultation with those likely to be affected before the making of a direction, with subsection (3) requiring the issue of a copy of such a direction to the port manager concerned. It is intended that the statutory consultation under subsection (2) will be preceded by more general discussions between representatives of the industry likely to be affected and officials of the Home Office and the Department of the Environment, Transport and the Regions.

85.     Subsection (4) and subsection (5) detail the enforcement provisions and sanctions applicable in the event of non-compliance. They provide that a direction given under these provisions is enforceable by county court injunction, or in Scotland by relevant order. They further provide that persistent failure to comply with a direction may lead to the revocation of designation as a port of entry (designation under section 33(3) of the 1971 Act allows port authorities to land and embark passengers without the prior approval of the Secretary of State); or, in the case of a port not so designated, withdrawal of any approval given by the Secretary of State under paragraph 26(1) of Schedule 2 of the same Act for the embarkation and disembarkation of passengers at that port.

Clause 22: Deception

86.     The White Paper announced the Government's intention to extend and strengthen the existing criminal offences directed at those who obtain or seek to obtain leave to enter or remain by deception with the particular aim of dealing with failed asylum seekers whose claims have involved blatant deceit. Clause 22 replaces and extends the current deception offence set out in section 24(1)(aa) of the 1971 Act (as inserted by section 4 of the Asylum and Immigration Act 1996). The offence provided for in new section 24A additionally encompasses securing or seeking to secure the avoidance, postponement or revocation of enforcement action by means which include deception. A claim for asylum is technically a claim made by the person that it would be contrary to the United Nations 1951 Convention on the Status of Refugees for him to be removed from, or required to leave, the United Kingdom. Amending the existing offence in this way will ensure that it may also apply to those who seek to remain in this country on the basis of an unfounded asylum claim that involves the use of deception.

87.     The present deception offence is punishable on summary conviction with a fine of not more than level 5 or with imprisonment for not more than six months, or with both (section 24(1) of the 1971 Act). Subsection (3) of new section 24A increases the maximum penalty for the extended offence which on conviction on indictment will be two years' imprisonment or a fine, or both.

Clause 23: Facilitation of entry

88.     Under section 25(1) of the 1971 Act, it is an offence knowingly to facilitate the entry of illegal entrants, knowingly to facilitate for gain the entry of asylum claimants and knowingly to facilitate the obtaining of leave to remain by deception. Clause 23 amends section 25 of the 1971 Act in the following ways.

89.     Subsection (2) increases the maximum custodial sentence that can be imposed following a conviction on indictment from seven years to 10 years imprisonment. This follows comments by the Court of Appeal earlier this year suggesting that an increase was necessary to allow flexibility when sentencing people convicted of a single act of facilitation relating to the entry of a number of people.

90.     Under section 25(1) of the 1971 Act, as amended by the Asylum and Immigration Act 1996, it is an offence to facilitate the entry of an asylum claimant. Section 25(1A) of the 1971 Act makes further provisions in relation to this offence which are replicated in subsection (3) of this clause. However, subsection (3) also extends the definition of asylum claimant to include someone who intends to seek protection under the ECHR. Currently, the offence under section 25(1) does not apply to the actions of those who are employed by bona fide refugee organisations. Subsection (3) extends this so that the offence does not apply to the actions of those who are employed by any bona fide organisation whose purposes include providing assistance to people in the position of the asylum claimant in question.

91.     Under section 25(5) of the 1971 Act, actions committed by a British citizen (or a British Dependent Territories citizen, British Overseas Citizen, British subject or British protected person) outside the United Kingdom in order to facilitate the entry of an illegal entrant are an offence under United Kingdom law. Subsection (4) extends this to actions committed by a British citizen (or a British Dependent Territories citizen, British Overseas Citizen, British subject or British protected person) outside the United Kingdom in order to facilitate the entry of an asylum claimant where this is done for gain. (Facilitating the entry of an asylum claimant is not an offence if it is done otherwise than for gain or by someone in the course of their employment by a bona fide organisation whose purpose it is to assist persons in the position of the asylum claimant.)

Clause 24: False statements etc

92.     Section 26(1)(c) of the 1971 Act provides that a person is guilty of an offence if, on examination under Schedule 2 to that Act or otherwise, he makes or causes to be made to an immigration officer, or other person lawfully acting in the execution of that Act, a return, statement or representation which he knows to be false or does not believe to be true. This clause extends this provision so that it covers such statements or representations made to a person acting in the execution of certain other immigration legislation. It will remain a summary offence punishable with a fine of not more than level 5 on the standard scale or with imprisonment for not more than six months, or with both.

 
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Prepared: 21 June 1999