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

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Clause 95 : Secretary of State's rules

266.     This clause provides that the Secretary of State may make rules governing the procedure for bringing and hearing appeals. They may cover such matters as periods of notice for bringing appeals, the burden of proof in the appeals, the admissibility of various matters as evidence, the summoning of witnesses, how adjudicators are to proceed in the absence of the appellant, how they may determine cases without a hearing, and the publication of their decisions.

267.     Subsection (3) provides that the Secretary of State should, in drawing up the rules, have regard to the objective of clearing appeals as swiftly as possible. This reflects the fact that a person appealing against a refusal of assistance is not entitled to support while he is waiting for the case to be heard.

Clause 96: False representations

268.     This clause makes it an offence for a person to give information that he knows to be false, with a view to obtaining assistance under Part VI of the Bill for himself or any other person. It also extends to failures to give information about a change in circumstances that might be relevant to the provision of support. Regulations made under clause 88 may require people to notify the Home Office of any change in circumstances within a reasonable period. The penalty for such an offence is a fine of up to £2,000, or three months' imprisonment.

269.     This, and subsequent provisions in relation to offences and recovery (clauses 97, 98, 99, 103, 104 and 118) have similar wording to the relevant provisions in social security legislation; in this case the corresponding provision is section 112 of the Social Security Administration Act 1992 ("the 1992 Act").

Clause 97: Dishonest representations

270.     This clause makes it a further and more serious offence for a person to obtain benefits or advantage for himself or anyone else by making dishonest representations. The clause is directed at cases of serious and calculated fraud, such as where someone makes a plan to extract as much from the Home Office as possible by deception. The maximum penalty for serious fraud of this sort is correspondingly great; conviction on indictment to the Crown Court can result in imprisonment of up to seven years.

Clause 98: Delay or obstruction

271.     This clause makes it an offence to obstruct a person carrying out functions under Part VI (either the Secretary of State or someone acting on his behalf) by either obstructing him, or failing to give him information when required under the Act. It is punishable by a fine not exceeding £1,000.

Clause 99: Failure of sponsor to maintain

272.     This clause addresses the situation where someone enters the country under a sponsored immigration arrangement (under which the sponsor normally agrees to support the immigrant for five years) and subsequently claims asylum. It makes it an offence for the sponsor to deliberately fail or refuse to maintain an immigrant in these circumstances so that he has to rely on the support arrangements created under Part VI. Subsection (3) provides that where the failure to support arises from the sponsor's lack of resources as a result of his involvement in a strike, this would not constitute deliberate refusal or failure. The offence is punishable by up to three months' imprisonment or a fine not exceeding £2,500.

Clause 100: Offences: supplemental

273.     In the case of offences committed under clauses 96, 97, 98 or 99 by corporate bodies, this clause applies these offence provisions to both the corporate body itself and to the officer concerned. In the case of Scottish partnerships, subsection (6) applies the offences to both the partner himself and to the partnership.

Clause 101: Payments to local authorities

274.     Subsection (1) gives the Secretary of State power to make payments to local authorities in connection with the expenditure they incur in relation to asylum seekers or former asylum seekers, or their dependants. Such payments might cover the costs to the authorities of providing accommodation for use by asylum seekers (rents etc), of providing other support, or those costs that are not reflected in the local government finance settlement of providing other services for asylum seekers.

275.     Subsection (2) gives the Secretary of State power to make payments to local authorities in respect of the liability to council tax that may fall to asylum seekers under the Local Government Finance Act 1992. Alternatively, it is possible to make regulations under that legislation to vary the liability for council tax of asylum seekers.

276.     Subsection (3) obliges the Secretary of State to make such payments as he considers reasonable to local authorities to which he makes a direction under section 92(4) to represent the costs to the authority of complying with the direction.

Clause 102: Grants to voluntary organisations

277.     This clause gives the Secretary of State power to pay grants to voluntary organisations for the provision of support to present and former asylum seekers. The Government recognises the important role that the voluntary sector plays in assisting asylum seekers and wishes to harness this in the context of the new provisions contained in Part VI. This clause provides the means for doing so.

Clause 103: Recovery of expenditure on support: misrepresentation etc

278.     This clause provides for recovery by the Secretary of State of what regulations prescribe as the monetary value of support given, under sections 85 or 89, to asylum seekers or people purporting to be asylum seekers, as a result of their having been found to have misrepresented, or failed to disclose a change of, their circumstances. It extends to recovery by the Secretary of State of the monetary value of support given by a contractor on the Secretary of State's behalf. Recovery would be through proceedings in the county court in England or Wales, or the sheriff court in Scotland.

Clause 104: Recovery of expenditure on support from sponsor

279.     This clause makes provision that, where a person was originally admitted to this country under a sponsorship agreement, but that person has now sought asylum and is being supported under Part VI of the Bill, the Secretary of State may seek a maintenance order from a magistrate's court in England or Wales, or a sheriff court in Scotland.

Clause 105: Overpayments

280. This clause provides for the recovery by the Secretary of State of the monetary value of any benefits provided under clause 85 as a result of an error on the part of the Secretary of State. The value may be recovered as if it were a debt due to the Secretary of State; in addition, subsection (4) provides that regulations may be made providing for other methods of recovery, including by deductions from future support payments.

Clause 106: Exclusion from benefits

281.     The intention of Part VI is to substitute a new set of welfare provisions for entitlement to the majority of the existing social welfare benefits that are available to permanent residents. This clause (and clauses 107 and 108) provides the basis for this, by excluding a "person subject to immigration control" from specified benefits. Subsection (4) provides that a person subject to immigration control is someone who is in the United Kingdom unlawfully (either an illegal entrant, or someone who has overstayed his leave); someone who is here on limited leave with a condition that he will have no recourse to public funds (eg a visitor or a student); someone who is here under arrangements whereby a resident has agreed to sponsor him; or someone whose leave has been extended to allow him to pursue an appeal. These classes embrace asylum seekers if they are subject to immigration control in this sense (an application for asylum does not itself confer an entry status or leave to remain), and a number of other persons subject to immigration control. Subsection (3) gives the Secretary of State power to remove descriptions of person from this definition (so that the exclusion from benefits does not apply). The power would be used, inter alia, in relation to those people who have rights under international conventions to which the United Kingdom is party, such as the European Convention on Medical and Social Assistance and the European Social Charter; if they have entered this country lawfully such people are entitled to normal welfare benefits, even if they are seeking asylum.

282.     Subsection (1) removes entitlement from all non-contributory social security benefits. From commencement of this provision, all existing payments of social security benefits to asylum seekers would cease (subject to any savings or transitional provisions). Those asylum seekers who as a result were destitute would be entitled to assistance under the new support arrangements set out in Part VI.

Clause 107: Amendment of section 21 of the National Assistance Act 1948

283.     This clause removes all persons subject to immigration control (as defined in clause 106) from entitlement to assistance under community care legislation (the National Assistance Act 1948), if their need for assistance arises solely because they are, or about to become, destitute. These provisions have hitherto been relied upon by single, destitute, asylum seekers: these people will in future be entitled to assistance under Part VI of the Bill. Asylum seekers who need care and attention for more specific reasons (such as a particular physical disability or mental health problem) will retain that entitlement.

Clause 108: Other restrictions on assistance: England and Wales

284. This clause removes persons subject to immigration control from entitlement to a number of other forms of welfare support. Subsections (1) and (2) remove the entitlement of asylum seekers from social services assistance under legislation governing the care of old people, and measures for the prevention of ill health.

285.     Subsection (3) removes entitlement of persons subject to immigration control to appear on a local authority housing register (and therefore to be considered for long term social housing). Subsections (4) and (5) disqualify such a person from entitlement to assistance under the homelessness legislation (Part VII of the Housing Act 1996).

Clause 109: Housing authority accommodation

286.     This clause (which has the effect of replacing section 9(1) of the Asylum and Immigration Act 1996) ensures that, other than where it is provided under arrangements made under Part VI of the Bill, tenancies of local authority housing may only be granted to persons subject to immigration control if they fall within a class specified in an order made by the Secretary of State; such an order may not extend to persons excluded from benefit under clause 106 of this Bill. Both in respect of this clause and clause 111 it is envisaged that such an order might extend to those classes of person subject to immigration control as are entitled to receive social security benefits (eg persons here on unlimited leave).

Clause 110: Homelessness: Scotland and Northern Ireland

287.     This clause (which has the effect of replacing section 9(2) of the Asylum and Immigration Act 1996) ensures that persons subject to immigration control will only have access to the homelessness legislation in Scotland and Northern Ireland if they fall within a class specified in an order made by the Secretary of State; such an order may not extend to persons excluded from benefit under clause 106 of the Bill. Comparable provisions for England and Wales are contained in section 185 of the Housing Act 1996.

Clause 111: Other restrictions on assistance: Scotland

288.     This clause replicates the effect of clause 107 with respect to Scotland, similarly removing entitlements to general social welfare provisions, to the provision of residential accommodation with nursing and the provision of care and after-care from all persons subject to immigration control, as defined in clause 106(4) or, as the case may be, those excluded from benefits under clause 106.

289.     Schedule 13 contains further amendments in relation to housing legislation. Paragraph 58 removes entitlement to protection under the Protection from Eviction Act 1977 from asylum seekers accommodated under Part VI; they can therefore be required to leave accommodation provided under Part VI without a court order having been obtained (as could any sub-tenants). Paragraphs 64 and 71 remove asylum seekers accommodated under Part VI from the security of tenure provisions contained in Part IV of the Housing Act 1985, and Part I of the Housing Act 1988 (which govern the secure and assured tenancy regimes respectively). Paragraphs 65 and 70 replicate these removals from the parallel provisions under the Housing (Scotland) Act 1987 and the Housing (Scotland) Act 1988.

Clause 112: Other restrictions on assistance: Northern Ireland

290.      This clause makes provisions equivalent to those in clauses 107 and 108 in relation to Northern Ireland health and personal social services legislation. It removes the entitlement of persons subject to immigration control to assistance under the provision governing the prevention of illness, care and after-care. It also removes all persons subject to immigration control from entitlement to assistance under general social welfare provisions, if their need for assistance arises solely as a result of destitution or anticipated destitution.

Clause 113 : Support for children

291.     This clause imposes a duty on the Secretary of State to offer and, if the offer is accepted, provide support under clause 85 for the children and other minor dependants of asylum seekers who are in need. He is to provide them with adequate accommodation and their essential living needs. Local authority social services departments may not provide assistance under section 17 of the Children Act where the Secretary of State is complying with this duty or where there are reasonable grounds for believing that he would be required to provide support were an application for clause 85 support to be made to him. This exclusion is however subject to any contrary provision made by regulations under subsection (10). Where accommodation has been provided pursuant to the duty under this section and later withdrawn, subsections (7) to (9) provide that only the local authority within whose area the withdrawn accommodation was provided may provide assistance under section 17 of the 1989 Children Act.

Clause 114: Backdating of benefits where person recorded as refugee

292.      This clause re-casts the social security backdating scheme for paying Income Support benefits, Housing Benefit and Council Tax Benefit to those who are subsequently awarded refugee status, for any period of benefit exclusion whilst their asylum application was being determined. The new backdating arrangements will take into account the new support scheme for asylum seekers introduced by the Bill.

293.     Subsections (1) and (2) provide for a backdating scheme to apply to people awarded refugee status who were previously excluded from social security benefits by clause 106, provided they claim within a specified period.

294.     Subsections (3)-(6) make the provision needed for Housing Benefit and Council Tax Benefits, which are administered by local authorities. Where the refugee has lived in more than one local authority area only one local authority will deal with any claim for backdated Housing Benefit and Council Tax Benefit and provision is made for other local authority to supply information to the determining authority.

295.     Subsections (7) and (8) provide that where a person or dependant of the claimant receives Home Office support, regulations may make provision for the determination of the value of the Home Office support package, and for the value of that support package, to be offset against the backdated payment of any benefit. The form of that package will vary according to the nature of the make up of the accommodation provided and the arrangements with the provider. The assessment of the various packages will be based on the value to the asylum seeker of the most readily measurable package - that made up of accommodation, vouchers and cash.

Clause 115: Secretary of State to be corporation sole for the purposes of Part VI

296.     This clause provides that the Secretary of State is to be treated as a corporation sole for the purposes of holding property under Part VI. This will assist in conveyancing, if the Secretary of State acquires property that he makes available to asylum seekers directly.

Clause 116 : Entry of premises

297.     This clause provides that a person acting on behalf of the Secretary of State may make application to a justice of the peace for a warrant to enter premises being used to provide accommodation under clauses 85 or 89. Where the justice of the peace is satisfied that there is reason to believe that the supported person or any dependants of his are not resident there, or that someone other than the supported person and his dependants are living there, or that the premises are being used for a purpose other than the accommodation of the supported person or his dependants, he may grant the warrant.

298.     Subsection (3) provides that, once issued, the warrant may be executed at any reasonable time and using reasonable force. In Scotland, a sheriff may exercise the power instead of a justice of the peace.

Clause 117: Information from property owners

299.     This clause allows the Secretary of State to require the owner or manager of property provided to accommodate asylum seekers under Part VI of the Bill to supply him with information about the premises and the persons occupying the premises. This power might be used, for example, to require landlords to notify the Secretary of State when an asylum seeker had left property provided under an agreement, or when an asylum seeker was subletting the property.

Clause 118: Requirement to supply information about redirection of post

300.     This clause allows the Secretary of State to require anyone conveying postal packets to give him information about any request from an asylum seeker for the redirection of post that may help the Secretary of Sate in the prevention or detection of offences, or in otherwise tracing and checking on asylum seekers who are in receipt of support under this Part.

Part VII: Power to arrest, search and fingerprint

301.     Part VII of the Bill sets out provisions relating to the powers to arrest and search and to take fingerprints from certain persons.

302.     The White Paper explained that immigration officers currently have to rely on the police to perform certain tasks relating to the enforcement of immigration law and announced that, in order to reduce this dependency, the Government intended to extend the existing powers of arrest of immigration officers and to provide immigration officers with powers of search, entry and seizure in respect of immigration offences equivalent to those the police already have. This Part of the Bill gives effect to this and imposes certain limitations on the exercise of these powers. The new powers - and the associated safeguards - have been modelled on those contained in the Police and Criminal Evidence Act 1984 (PACE). In exercising these and other powers, immigration officers will be allowed to use reasonable force if necessary.

Clause 119: Arrest without warrant

303.     This clause inserts a new section (section 28A) into the 1971 Act. Subsections (1), (2) and (3) reproduce the existing powers of arrest without warrant which are currently contained in sections 24(2) and 25(3) of the 1971 Act. Subsections (1) and (2) allow a constable or immigration officer to arrest someone who has committed or has attempted to commit various immigration offences contained in Part III of the Act or where there are reasonable grounds for suspecting that they have committed or attempted to commit such an offence. The offences in question include entering the country illegally; overstaying; failing to observe a condition of leave; and the new extended offence of deception created by clause 22. (Constables already have powers to arrest for the offences referred to in subsection (3) (and (4)) under PACE and its equivalent in Northern Ireland).

304.     The existing power of arrest does not apply to offences under section 24(1)(d) (failure to comply with a requirement to report to a medical officer of health or to be examined by such an officer) and this exception is retained.

Clauses 120, 128, 129 and 131 : search and arrest by warrant, search warrant safeguards and execution of warrants and detention of persons liable to removal

305. Clause 120 inserts a new section 28B into the 1971 Act which will enable a justice of the peace who is satisfied that there are reasonable grounds for suspecting a person who is liable to be arrested for a relevant offence is to be found on any premises to grant a warrant authorising any constable or immigration officer to enter, by force if necessary, those premises for the purposes of searching for and arresting the suspect. In Scotland, warrants for this purpose will be granted by either the sheriff or a justice of the peace who has jurisdiction in a place where the premises are situated (subsections (3) and (4) of new section 28B).

306.     Clause 128 sets out the requirements to be satisfied when an immigration officer applies for a search warrant. These are very similar to those which apply to the police under PACE. They include a requirement to state the ground of the application, the premises to be searched and, as far as possible, the persons or articles to be sought. An application for a warrant must be supported by information in writing and the officer making the application must answer on oath any questions that the person considering the application asks him. A warrant is limited to authorising entry on one occasion only.

307.     Clause 129 sets certain conditions which have to be complied with when executing warrants which again reflect conditions which apply to the police under PACE. For example, an entry and search must be within one month of the date of issue of the warrant and at a reasonable hour (unless it appears to the officer executing it that the purpose of the search might be frustrated if the latter condition is observed). If the occupier of the premises is present at the time, the immigration officer must identify himself to the occupier, produce identification showing he is an immigration officer, show the occupier the warrant and supply him with a copy of it. If the occupier is not present, but someone else who appears to be in charge of the premises is there, the same requirements apply in respect of that person. If it appears that nobody present is in charge of the premises, a copy of the warrant must be left in a prominent place on the premises.

308.     A search under a warrant may only be a search to the extent required for the purpose for which the warrant was issued. An officer executing a warrant must endorse it, stating whether the persons or articles sought were found and whether any articles other than the articles which were sought were seized.

309.     Subsection (2) of clause 131 amends Schedule 2 to the 1971 Act to provide for the issuing to immigration officers, as well as constables, of warrants to enter premises in order to search for and arrest someone who is liable to detention.

Clause 121: Search and arrest without warrant

310.     This clause adds a new section, 28C, to the 1971 Act which will allow an immigration officer to enter and search any premises without a warrant for the purpose of arresting a person for an offence under section 25(1). (Police officers already have a corresponding power by virtue of the provisions of PACE).

311.     Subsection (2) restricts the exercise of this power to the extent that it is reasonably required for that purpose and to cases where the officer has reasonable grounds for believing that the person whom he is seeking is on the premises. Before exercising this power of entry, the immigration officer must produce identification showing that he is an immigration officer.

Clause 123: Entry and search of premises following arrest

312.     This clause inserts a new section 28E into the 1971 Act. It provides that where someone has been arrested for an offence under Part III of the 1971 Act and that the arrest was made somewhere other than at a police station, an immigration officer may enter and search the premises in which the person was when arrested - or any premises in which he was immediately before he was arrested - for evidence relating to the offence for which the arrest was made. This power of entry and search may only be exercised if the immigration officer has reasonable grounds for believing that there is relevant evidence on the premises and only to the extent that it is reasonably required for the purposes of discovering such evidence (subsection (3)).

313.     Subsection (5) allows an officer searching premises under this section to seize and retain anything he finds which he has reasonable grounds for believing is relevant evidence. However, he may not seize such items where there are reasonable grounds for believing that they are subject to legal privilege (subsection (6)).

314.     The clause also amends Schedule 2 to the 1971 Act by adding a new paragraph which provides a corresponding power of entry and search where someone is arrested under that Schedule or is detained under that Schedule by an immigration officer having been arrested by a constable. Thus, an immigration officer will have the power, with the written consent of a senior immigration officer (except where obtaining such consent would impede the effectiveness of the search), to enter any premises occupied or controlled by the arrested person or in which that person was when he was arrested or immediately before he was arrested in order to search for "relevant documents". He may seize and retain any documents which he has reasonable grounds for believing are such documents, subject again to his not being able to do this where there are reasonable grounds for believing the documents in question are items subject to legal privilege. ("Relevant documents" for the purposes of this paragraph are any documents which might establish the identity, nationality or citizenship of the arrested person or indicate the place from which he has travelled to the United Kingdom or to which he is proposing to go.) Any documents seized may not be retained for longer than is necessary in view of the purpose for which the person was arrested.

 
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Prepared: 21 June 1999