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

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Part II: Carriers' liability

93.     Clauses 25-30 introduce a new a civil penalty to be imposed on those persons responsible for the transport of clandestine entrants to the United Kingdom. It is entirely separate from, and in addition to, the provisions under the Immigration (Carriers' Liability) Act 1987.

Clause 25: Penalty for carrying clandestine entrants

94.     Subsection (1) defines a clandestine entrant as someone who evades or attempts to evade immigration control, or claims or intends to claim asylum having (a) arrived in the United Kingdom having concealed himself in a vehicle, ship or aircraft; or (b) gone through or tried to go through immigration control concealed in a vehicle; or (c) arrives in the United Kingdom having embarked on a ship or aircraft outside of the United Kingdom concealed in a vehicle.

95.     Subsection (2) makes those responsible for clandestine entrants liable to a penalty. Liability also extends in relation to those (eg dependants) who accompany a clandestine entrant. This means that if one person is responsible for transporting, for example, five clandestine entrants, then that person will be liable to a penalty for each entrant.

96.     Subsection (4) makes provision for the joint and several liability of the persons responsible to be discharged by payment of the penalty by one or more of them.

97.     Subsection (5) establishes who is responsible for clandestine entrants who arrive in the United Kingdom having concealed themselves in a vehicle (see subsection (1)(a)). Those responsible are the owner, operator or captain of the ship or aircraft if the clandestine is concealed on a ship or aircraft; or the owner, hirer or driver if concealed in a vehicle; or the owner, operator or hirer if concealed in a detached trailer. ("Owner" is given an extended meaning by clause 35.) Subsection (6) establishes who is a responsible person in relation to other heads of liability (see subsection (1)(b) and (c)). The responsible person will be the owner, hirer and driver of the vehicle or the owner, operator or hirer of the detached trailer. Subsection (7) makes clear that it is irrelevant whether the person responsible for a clandestine entrant knew or suspected that one or more clandestine entrants were concealed in the transport used.

98.     Subsections (8) and (9) make it clear that, where a vehicle is itself carried within a ship or aircraft, the persons responsible for a clandestine entrant in that vehicle are responsible only for the clandestines found in that vehicle; and not for any clandestines carried in other vehicles being carried at the same time by the ship or aircraft, or in the ship or aircraft itself.

Clause 26: Code of practice

99.     This clause provides that the Secretary of State must issue a code of practice setting out the procedures that should be followed by road hauliers, ferry companies etc who operate a system to prevent clandestine entrants from using their vehicle or other form of transport. Under subsection (4) of clause 27, in determining what constitutes an effective system for preventing the carriage of clandestine entrants, reference must be made to the code of practice issued under clause 26.

Clause 27: Defences to claim that penalty is due under clause 25

100.     This clause refers back to clause 25 and applies to those persons (referred to as carriers) who are alleged to be liable to a penalty under that clause.

101.     Subsections (2) and (3) of the clause provide the carrier with defences against the allegation that he is liable to a penalty. It is a defence if the carrier can show that he or a relevant employee acted under duress (for example, that he had been threatened with a gun). Alternatively, he will have a defence where he can show that he did not know and had no reasonable grounds for suspecting that he was carrying a clandestine entrant, that there was an effective system in operation for preventing the carriage of illegal entrants and that the person responsible for operating the system, for example the lorry driver, had done so properly.

102.     Subsections (5) and (6) provide for those times when more than one person is responsible for a clandestine. If one of them has a defence under subsection (3), this will not affect the liability of others. However, should the defence be under subsection (2) (the defence of duress) then the liability of any other responsible person is also discharged.

Clause 28: Procedure

103.     This clause sets out the procedures that must be followed in cases where the Secretary of State has decided that a person is liable for one or more penalties under clause 25.

104.     Subsections (3) and (4) make service of a penalty notice on one responsible person service on all other persons responsible; but subsection (5) requires the Secretary of State to take reasonable steps actually to serve the notice on the others, while the penalty remains unpaid. Subsection (9) enables provisions to be made for services of notices on detached trailers.

Clause 29: Power to detain vehicles etc in connection with penalties under clause 25

105.     This clause provides power to detain a vehicle and certain ships and aircraft as security until such time as all penalties have been paid.

106.     Subsections (1) and (2) state that a senior officer may detain a vehicle, small ship or small aircraft until all penalties have been paid but that this power will only be used where the officer believes there is a significant risk that the penalty will not otherwise be paid within the timescale allowed by the notice. This power may not be exercised if an alternative form of security which the Secretary of State considers satisfactory has been given.

107.     Subsections (4) and (5) provide that, as long as the Secretary of State was acting reasonably in issuing the penalty notice, detention of a transporter will not be unlawful even when it is later found that the penalty notice was ill-founded. This does not apply where the Secretary of State acted unreasonably in issuing the penalty notice (subsection (5)).

Clause 30: Effect of detention

108.     This clause sets out the circumstances in which someone (the person on whom the penalty notice was served, the owner if different, or anyone else claiming an interest) can apply to the court for the release of a detained vehicle, ship or aircraft.

109.     The vehicle, ship or aircraft may be released if the court decides that adequate security against the penalty and any connected expenses has been offered or if the court has significant doubt that the penalty will not stand and the return of the transporter is vital to the applicant.

110.     However, if the court does not release the transporter the Secretary of State can arrange for its sale if the penalty is not paid within the period allowed. This period is 84 days and begins on the day the transporter is first detained. The power of sale is subject to Schedule 1.

Clause 31 : Assisting illegal entry and harbouring

111.     Subsection (1) amends section 25(6) of the 1971 Act to enable the court to order the forfeiture of a vehicle where the driver is convicted of an offence under subsections (1)(a) or (b). That is to say, where the driver is knowingly involved in assisting an illegal entrant or (for gain) an asylum claimant to enter the United Kingdom.

112.     Subsection (2) inserts a new section, section 25A, in the 1971 Act. This provides that where a person is arrested for an offence under section 25(1)(a) or (b) of the 1971 Act (the facilitation of an illegal entrant or, for gain, an asylum claimant), the ship, aircraft or vehicle employed may be seized by a senior immigration officer or police constable pending a decision to charge the arrested person and, if charged, pending the verdict of the court. On conviction, the court may decide to order the forfeiture of the transport involved under section 25(6).

113.     In order to detain a ship, aircraft or vehicle under section 25A(1), the senior officer or police constable must have reasonable grounds to believe that it could be subject to forfeiture by the court under section 25(6) upon conviction of the person concerned.

114.     Under new section 25A(3), where the owner of the ship, aircraft or vehicle detained is not the person arrested for the offence, they may apply to the court for it to be released.

115.     Where an application is made under section 25A(3) the court may order the release of the ship, aircraft or vehicle if satisfied that adequate securities are provided and on condition that it is made available to the court if, on conviction of the arrested person, it is ordered to be forfeited.

Clause 32: Charges in respect of passengers without proper documents

116.     This clause replaces with amendments section 1 of the Immigration (Carriers' Liability) Act 1987, which relates to the carriage of inadequately documented passengers on ships, aircraft and trains; the latter by virtue of the Channel Tunnel Act (Carriers Liability Order) 1998.

117.     Subsections (1) and (2) apply where a person requiring leave to enter the United Kingdom arrives by ship, aircraft, road passenger vehicle or train and fails to produce a passport or other document which satisfactorily establishes his identity and nationality, and a visa where required, when asked to do so by an immigration officer. In these circumstances the owner of the transport (the operator in the case of a train) carrying such a passenger is liable to pay to the Secretary of State a charge of £2,000 or such other sum as may be prescribed. The charge relates to each inadequately documented passenger carried.

118.     Subsection (4) states that there is to be no liability where the owner (or operator in the case of trains) can show that the required documents were produced to him or his representative when the passenger embarked on his flight, voyage or journey to the United Kingdom. Subsection (5) provides for a further defence against the imposition of a charge under the clause for a train operator or the owner of a road passenger vehicle. The defence applies where they can demonstrate that they have in place a satisfactory system for the prevention of carriage of inadequately documented passengers and have done everything practicable to carry it out. This defence reflects the fact that train and road passenger vehicle operators may have difficulties, in some countries, lawfully carrying out the checks required to secure the defence in subsection (4).

119.     Subsections (7) and (8) state that where the owner of a road passenger vehicle which has arrived in the United Kingdom on a ship or aircraft is liable for a charge in respect of an inadequately documented passenger, the Secretary of State may charge the owner of the vehicle or, alternatively, the owner of the ship or aircraft, but not both.

120.     Subsection (9) defines "road passenger vehicle" in the context of this clause; it excludes taxis.

Clause 33: Visas for transit passengers

121.     This clause currently forms part of the Immigration (Carriers' Liability) Act 1987, which is to be repealed.

122.     Subsection (1) gives the Secretary of State the power to lay an order before Parliament to require transit passengers (that is, those people who are travelling through the United Kingdom on their way to their ultimate destination) to hold a transit visa.

123.     Subsection (3)(b) states that someone who has the right of abode in the United Kingdom cannot be required to have a transit visa. That is, someone who has the right to live in the United Kingdom and who is not subject to immigration control.

124.     Subsection (3)(c) allows the Secretary of State to provide for an exemption from the requirement to obtain a transit visa for certain categories of person, for example, people possessing a residence permit of an EU Member State.

Clause 34: Power to detain vehicles etc in connection with charges under clause 32

125.     Subsection (1) provides a senior immigration officer with the power to detain as security for payment any transporter used to carry a person who is not properly documented and for whom a carriers' liability charge is incurred. In addition, any other transporter, used on any route to carry passengers by the person liable to the charge, may also be detained. A transporter detained under this clause may continue to be detained pending payment of any expenses incurred by the Secretary of State as a result of his detention. Subsection (2) provides that a transporter may continue to be detained. Subsection (3) gives the court power to release a detained transporter if satisfactory security is given for the payment of the charge, if there is significant doubt as to whether the charge will stand having the retention of the transporter is vital to the applicant.

126.     Subsection (4) states that, if the charge is not paid within the allotted timescale (84 days from the first day of detention) and the court has not ordered its release, the Secretary of State can sell the transporter. Sale of the transporter is subject to the provisions of Schedule 1.

127.     Subsection (5) makes the detention of a transporter lawful even if it subsequently turns out the charge is not owed, unless (subsection (6)) the charge was imposed unreasonably.

Schedule 1: Detention and sale of transporters

128.     This Schedule deals with the detention and sale of transporters under clauses 30 and 34.

129.     Paragraph 1 provides that the permission of the court must be obtained before a transporter can be sold. It also states that before the court can give its permission it must have proof that the penalty or charge was due but has not been paid by the person liable and that the transporter is liable to sale.

130.     Paragraph 2 provides that the Secretary of State must take such steps as may be prescribed to bring the proposed sale to the notice of anyone who may be affected by the sale of the transporter so that they can involve themselves in any application the Secretary of State makes to the court.

131.     Paragraph 3 requires the Secretary of State to obtain the best possible price for any transporter sold.

132.     Paragraph 4 provides that, should the Secretary of State fail to comply with the conditions as set out in paragraphs 2 and 3 of the Schedule, any person suffering loss as a consequence will be able to take proceedings to obtain compensation. This will not, however, serve to make the sale of the transporter invalid.

133.     Paragraph 5 sets out how the proceeds from any sale will be distributed. The order of distribution will be set out in regulations to be made by the Secretary of State.

Part III: Bail

134.     This part of the Bill will introduce a greater judicial element into the detention process. It provides for the creation of up to two routine bail hearings, the first of which will take place about a week after initial detention, the second about a month later (if the person concerned is still detained). These will be in addition to the right to apply for bail under existing legislation.

Clause 36: Bail hearings for detained persons

135.     This clause introduces routine bail hearings for those detained under immigration legislation. It provides that detained persons will be entitled to a routine bail hearing within nine days of their initial detention and, where they remain in detention, a further hearing between 33 and 37 days following initial detention. The Secretary of State is placed under a duty to notify the appropriate court of the need to arrange a first hearing no later than the eighth day following detention. If the person remains in detention, a second reference must be made no later than the thirty-sixth day following detention. A person will be entitled to a routine bail hearing if he is released and, then detained again at a later date. In such circumstances there will again be two routine bail hearings (assuming the person concerned is not released at the first hearing).

136.     Subsection (7) ensures that the routine bail hearing will be limited to addressing the individual's suitability for release on bail. Subsections (10) and (11) ensure that if the Secretary of State fails to make a reference to the court, or the court fails to hear a routine bail hearing in time, arrangements will be put in place so as to ensure that the hearing will take place as soon as is reasonably practicable.

137.     Subsection (12) provides that, except for those coming under the jurisdiction of the Special Immigration Appeals Commission (SIAC) under the Special Immigration Appeals Commission Act 1997 on national security grounds, the routine hearings in England, Wales and Northern Ireland will be before magistrates until such time as an appeal has been lodged. Where an appeal has been lodged, the hearing will be before the court dealing with that appeal. Routine hearings will be held before SIAC in the case of any person whose bail application would be held before that body under current provisions. In Scotland, all routine bail hearings not held before the Commission will be before an Immigration Appellate Authority adjudicator (unless an appeal under the Immigration Acts is pending before another body, in which case that body shall hold the hearing).

Clause 37: Location of bail hearings

138.     This clause allows the Secretary of State to direct where, in relation to a particular case or class of case, routine bail hearings should be heard. These places may include courtrooms, detention centres, prisons, or Immigration Appellate Authority hearing centres. A direction by the Secretary of State under this clause will require the approval of the Lord Chancellor.

Clause 38: Power to grant bail

139.     This clause provides that a person may be released on bail by the court following a routine bail hearing. The grant of bail may be subject to such conditions as appear likely to the court to result in the appearance of the person bailed at the required time and place. The conditions may require the person to enter into a recognizance (with or without sureties), or bail bond in Scotland. The court must impose a condition requiring any released person to report to an immigration officer at a specified time and place, or at any such other time and place as may be notified in writing by an immigration officer. The clause allows the court, instead of releasing a person on bail immediately, to fix the amount and conditions of bail with a view to the bail being taken subsequently.

Clause 39: Forfeiture

140.     This clause allows for the forfeiture of recognizances or, in Scotland, bail bonds entered into under clause 38. If the court ordering forfeiture of a recognizance is not a magistrates' court, it must specify a magistrates' court which will, for the purposes of collection and enforcement of the sum forfeited, be treated as the court which ordered the forfeiture. In Scotland, any bail which has been forfeited will be treated as having been forfeited by the appropriate sheriff court. All forfeited sums must be paid to the Lord Chancellor and transmitted to the Consolidated Fund (clause 156(2)).

Clause 40: Power of arrest

141.     This clause grants power to an immigration officer or constable to arrest, without warrant, a person who has been released on bail if there are reasonable grounds for believing that the person has broken, is breaking, or is likely to break any condition of bail. The person must, if required by a condition of his release to appear before an immigration officer within 24 hours of the arrest, be brought before an immigration officer within that period. If the person was released on bail by SIAC, he must be brought before that body within 24 hours of arrest. In all other cases, the person arrested must be brought before a justice of the peace or, in Scotland, before an adjudicator or, where this is impracticable, the sheriff. The court dealing with the matter may, if of the opinion that the arrested person has broken or is likely to break any condition on which he was released, order the person to be detained, release him on his original bail or release him on new bail. If the court does not agree that the person has broken or is likely to break a condition of bail, it must order release on the original bail. The clause also provides immigration officers and constables with powers to enter premises, and where necessary, to use reasonable force, for the purposes of searching for a person liable to arrest under the clause so long as an authorising warrant has been issued.

Clause 41: Procedure

142.     This clause makes provision for the procedure and practice to be followed in connection with routine bail hearings. It provides that any rules made by the Lord Chancellor will be under the general rule-making power contained within section 144 of the Magistrates' Courts Act 1980. The rules must require the Secretary of State to notify the detained person and also, if he is aware of the fact, the person who is to represent the detained person at the hearing, that a reference under clause 36 has been made. The clause also restricts repetition of the same arguments by detainees at routine bail hearings, requires magistrates holding routine bail hearings to sit in open court and provides for the conduct of proceedings at routine bail hearings by persons other than barristers (or, in Scotland, advocates) or solicitors.

Clause 42: Use of live television links at bail hearings

143.     This clause will enable courts to direct, after hearing representations from both parties, that the detained person is to be treated as being present in the court if he is able by live television link or otherwise to see and hear the court and to be seen and heard by it. If, after hearing representations by both parties, the court decides not to give a direction, it must give its reasons for refusing. The court may not give a direction under this clause unless the Secretary of State has notified the court that appropriate facilities for the setting up of a link are available.

Clause 43: Power to provide for certain bail hearings to be before magistrates

144.     This clause allows the Lord Chancellor, by rules, to provide for applications for bail made under current immigration legislation to be heard by magistrates' courts in circumstances where the detainee has not brought an appeal. It ensures that provision identical to clauses 38 to 40 and subsections (4) - (7) of clause 41 will apply in the context of such applications in the same way as those clauses apply in the routine bail hearing context.

Clause 44: Extension of right to apply for bail in deportation cases

145.     This clause extends the right of those subject to deportation action to apply for bail under current immigration legislation. At present there is an anomaly between deportation and other enforcement cases in that persons who are subject to deportation action may only apply for bail where they have an outstanding appeal. This anomaly is removed by clause 44.

Clause 45: Grants to voluntary organisations

146.     This clause will enable the Secretary of State, with the approval of the Treasury, to make grants to voluntary organisations providing advice or assistance to detained persons in connection, inter alia, with routine bail hearings. The Secretary of State can decide the terms and conditions on which such grants may be made.

Part IV: Appeals

147.     Part IV of the Bill sets out arrangements for immigration and asylum appeals.

Clause 46 and Schedule 2 : The appellate authorities

148.     Clause 46 confirms that the Immigration Appeal Tribunal will continue to hear appeals from adjudicators.

149.      Schedule 2 re-states responsibility for the exercise of functions under Part II of Schedule 5 of the 1971 Act for appointment and payment of Tribunal members and staff. References to the Secretary of State have been replaced by references to the Lord Chancellor, to whom responsibility was transferred by the Transfer of Functions (Immigration Appeals) Order 1987 (SI 1987 No. 465).

150.     Paragraph 1 allows the Lord Chancellor to appoint such number of members to the Tribunal as he sees fit. Paragraph 1(3) sets out the criteria for appointment as one of the legally qualified members.

151.     Paragraph 2(1) requires the Lord Chancellor, as now, to appoint a President and, in addition, a Deputy President and requires both appointments to be made from amongst the legally qualified members. The Deputy will support the President in the judicial management of the Tribunal.

152.     Paragraph 6(3) provides for the jurisdiction of the Tribunal to be exercised, in a case or category of case, by a panel of one or more members as the President may direct.

Clause 47 and Schedule 3 : Adjudicators

153.      Clause 47 confirms that there will continue to be adjudicators to hear appeals for the purposes of the Bill. Subsection (2) requires the Lord Chancellor, as now, to appoint a Chief Adjudicator from amongst those appointed under subsection (1). The Chief Adjudicator will allocate duties amongst the adjudicators and will have such other functions as the Lord Chancellor may confer on him.

154.     Schedule 3 re-states and brings together the appointment and payment arrangements for adjudicators and their support staff as set out in Part I of Schedule 5 to the 1971 Act, section 8(5) of the Asylum and Immigration Appeals Act 1993 and section 3(3) of the Asylum and Immigration Act 1996.

155.      Paragraph 1 provides new power for the Lord Chancellor to appoint a Deputy Chief Adjudicator and Regional Adjudicators from amongst those appointed under clause 47. The Deputy and Regional Adjudicators will have such functions as the Chief Adjudicator may confer on them. The Deputy Chief Adjudicator will be able to act on behalf of the Chief Adjudicator when the Chief Adjudicator is absent.

156.     Paragraph 2 formalises the Lord Chancellor's long standing practice to appoint only those who have a legal qualification to be an adjudicator and sets out the criteria. In the past, the Lord Chancellor had been required to designate those who may deal with asylum appeals. This will no longer be the case. In future, it will be a matter for the Chief Adjudicator to decide when an adjudicator is ready to deal with asylum appeals. Paragraphs 3 and 4 relate to the terms of office and remuneration of adjudicators and paragraph 5 to compensation on ceasing to be an adjudicator.

157.      Paragraph 6 allows the Chief Adjudicator to direct that a case or category of case may be dealt with by a panel consisting of more than one adjudicator. Paragraph 7 relates to the appointment of staff to support adjudicators.

Clause 48: Appeals: General

158.     Clause 48 and the clauses which follow it in Part IV set out the Government's proposals for a one-stop comprehensive appeal following refusal of leave to enter or remain. Clause 48 establishes important general appeal principles. Subsection (1) provides that the right of appeal given by a particular provision of Part IV is subject to any limitations specified in other clauses of Part IV.

159.     Subsection (5) sets out when an appeal is pending and when it ends: it clarifies that an appeal ceases to be pending when it is abandoned. An adjudicator may rule that an appeal has been abandoned, or an appeal may have to be treated as abandoned, under subsections (8)-(10), because the appellant leaves the United Kingdom, is granted leave to enter or remain, or a deportation order is made against him. Subsections (6) and (7) ensure that an appeal continues to be pending both while an appeal against an adjudicator's determination may be brought to the Tribunal, or a further appeal under the Bill to the Court of Appeal or Court of Session, and until such further appeal is finally determined. It is important to know when an appeal is pending, in particular in the light of the effect it has under Part II of Schedule 4 of the Bill (stay on directions for removal).

Clause 49: Leave to enter the United Kingdom

160.     Clause 49 is concerned with appeals in relation to refusal of leave to enter. Subsection (1) confers a right of appeal to an adjudicator against either a refusal of leave to enter or a decision that the applicant is a person who is subject to immigration control and therefore requires leave to enter. Where an appellant under this clause claims that he should be removed to a different country, he must in accordance with clause 58 provide evidence, if he is not a national of that country, that the country will admit him. The provision is to ensure that the objection to destination is taken as part of the appeal against refusal of leave to enter: it is not a separate right of appeal in its own right.

Clause 50: Limitations on rights of appeal under clause 49

161.     Clause 50 sets out the restrictions on rights of appeal under clause 49. Subsection (1) provides that persons who claim that they are not subject to immigration control have no right of appeal if they do not possess the appropriate documentary evidence. Subsection (2) provides that there is no right of appeal where a person is seeking leave to enter for a purpose for which the immigration rules or an order made by the Secretary of State require a person to hold a particular document, and the person does not hold such a document.

162.     Subsection (3) denies an in-country right of appeal against refusal of leave to enter except in the cases of persons who held a current entry clearance or work permit.

 
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Prepared: 21 June 1999