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

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Clause 152: Refusal to issue certificate

364.     At present a superintendent registrar has no authority to refuse to solemnise a marriage unless a lawful impediment is shown to exist. This clause provides a superintendent registrar with a statutory power to refuse to issue his authority for a marriage where he is not satisfied that one or both of the couple is legally free to contract the marriage. It also provides for an appeal procedure to the Registrar General against the superintendent registrar's refusal to issue a certificate and for persons making frivolous representations against a marriage to be liable for any costs incurred. Subsections (1) and (2) apply this provision to England and Wales. Subsections (3) and (4) apply the provisions to Northern Ireland.

Schedule 13: Consequential amendments

365.     Paragraphs 1 and 2 amend the Marriages (Ireland) Act 1844 and the Marriage Law (Ireland) Amendment Act 1863 to provide for the nationality of each party to be provided. Paragraphs 3-32 amend the Marriage Act 1949 in England and Wales to remove reference to marriage by "licence", where appropriate replace references to "a certificate" with "certificates", and replace references to "either party" to "each party" to reflect the fact that there is to be a standardised system for giving notice of marriage with both parties being required to give notice and a registrar solemnising marriage needing to see two certificates.

366.     Paragraph 15 substitutes the existing section 33 of the Marriage Act 1949 and sets out provision dealing with the validity of certificates and notices. It allows for the fact that the parties may not give notice of marriage on the same day and provides that, when calculating whether a certificate is valid, the period of validity is to run from the date on which the first notice is given.

367.     Paragraph 30 amends section 75 of the Marriage Act 1949 so as to remove reference to the licence procedure and brings the offence committed by the superintendent registrar in line with the new 15 day waiting period.

368.     Paragraphs 34-39 make consequential amendment to the Marriage (Registrar General's Licence) Act 1970 and the Family Law Reform Act 1969. Paragraph 60 makes a consequential amendment to the Marriage Act 1983.

Part X: Miscellaneous and Supplemental

Clause 153 : Institution of Proceedings

369.     The White Paper, stated that the Government was considering whether there were changes which could be made to improve the prosecution process as it applies to immigration offences.

370.     Part VII of the Bill gives effect to the Government's proposals to increase the 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 currently possessed by the police. However, those changes do not alter the procedures for bringing prosecutions under which the documentary evidence needed to support a prosecution is currently submitted to the Crown Prosecution Service (CPS) via a police officer and that officer's Criminal Justice Unit. This is because of the terms of the Prosecution of Offenders Act 1985, which established the CPS and which specifies that the CPS are under a duty to take over the conduct of proceedings instituted on behalf of a police force but not by an immigration officer.

371.     The Government has concluded that there is no operational need for the police to be involved in forwarding papers to the CPS where they have not been involved in the investigation. This clause amends the Prosecution of Offences Act to require the CPS to take over the conduct of any criminal proceedings instituted by an immigration officer acting in his official capacity.

372.     The remainder of this Part of the Bill makes provision applicable to the Bill as a whole.


373.     Taken as a whole the Bill is intended to reduce the costs of the immigration and asylum system. It is expected therefore that this Bill will produce savings, in particular on the support costs for asylum seekers.

374.     The costs and savings described below depend on a range of assumptions many of which cannot easily be quantified. For these reasons the figures given are estimates only. All costs are full year costs and are given at current prices.

375.     With the exception of the following proposals, the measures in the Bill will be cost neutral or have a minimal impact on public expenditure.

Part I : Immigration : general

Charging for applications

376.     The financial effects of charging for applications for extensions of stay or duplicate endorsements in new passports will depend on the number of applications made within the chargeable categories, but the levying of fees could reduce public expenditure by £15 million or more annually.

Provision of facilities for immigration control at ports

377.     The facilities to be provided by port operators to the Immigration Service free of charge are still subject to consultation, but cost reductions could amount to £5 million.

Part II : Carriers' Liability

Civil penalty for the transportation of clandestine immigrants

378.     The operation of the new civil penalty regime will be met from existing resources. On the basis of 8,000 clandestines detected in 1998, the penalties raised could amount to a maximum of about £16 million a year. The actual amount raised is likely to be substantially lower as a result of the deterrent effect of the penalty and the safeguards which will mean that a penalty is not owed in all cases.

Part III : Bail

379.     It is estimated that the maximum cost of providing automatic bail hearings for immigration detainees will be around £3 million. Some initial training for magistrates involved in this work is also likely to be needed.

Part IV : Appeals

Comprehensive right of appeal

380.     It is anticipated that the new system of immigration and asylum appeals will yield savings by compressing issues presently spread over a number of appeal rights into a single appeal hearing. Other procedural changes designed to enable more cases, particularly at Tribunal level, to be dealt with on the papers and to discourage meritless appeals should also produce savings. These changes should also lead to savings in support costs, although these cannot be quantified at this stage. On the other hand, there may be additional appeals arising from claims made under the ECHR. Overall, the changes could produce savings of up to £3.8 million a year compared with the current system.

Visitor appeals

381.     Visitors who are refused a visa will be expected to pay for the cost of their appeals. But there will be an increase in public expenditure because successful appellants will be entitled to claim a refund of their appeal fees. It is estimated that the net additional costs will be of the order of £0.4 million.

Removal of asylum claimants under standing arrangements with member States.

382.     Clause 9 is designed to reduce delay caused by unnecessary judicial review challenges in cases where the asylum seeker is to be transferred to another member State under the Dublin Convention. There will be some savings to the Home Office's legal expenses and the Legal Aid fund. These savings could be up to £0.5 million a year. In addition there will be savings in respect of the support that persons with families would otherwise have received while their cases were reviewed. Depending on the number of applicants with families who are identified as suitable for transfer under the Dublin Convention, the savings could be of the order of £1 million a year.

Part V : Immigration advisers and immigration service providers

383.      The cost of the Immigration Services Commissioner and his staff will largely be met from fee income from those who are required to register and from charges levied on the legal professions. There will be no charges levied on the legal professions in the first year of the regulatory scheme in the expectation that regulatory activity by the Commissioner directed at those bodies will be minimal. Thereafter, the question of whether any charges will be made, and if so where the level of such charges will be, is to be determined on the basis of the level of activity conducted by the Commissioner in respect of each legal profession. Costs incurred in relation to those who will be exempted from registration will be met from public funds.

Part VI : Support for asylum seekers

384.     The new support scheme is intended to be a disincentive to economic migrants who do not have a well founded fear of persecution. The costs of support for adults and families will be funded from a new asylum seeker support budget managed by the Home Office. £350 million for 1999/2000, £300 million for 2000/2001 and £250 for 2001/2002 was provisionally allocated to this in the Comprehensive Spending Review in July 1998. The most recent estimates of the costs are £375 million for 1999/2000, £280 million for 2000/2001 and £176 million for 2001/2002. These figures compare with spending of about £400 million a year when the Government announced its immigration and asylum strategy in July 1998, which would have increased to £800 million by 2002 if remedial action had not been taken.

385.     Actual spend will depend on a number of factors such as the number of asylum claims and the speed with which they can be handled.

386.     There will also be costs administering the new support scheme and providing the associated right of appeal against refusal or withdrawal of support. These are estimated at £27 million.

Part VII : Power to Arrest and Search

387.     Immigration officers will need training in the use of the new powers proposed in these provisions. The cost of additional training equipment and external advice is estimated to be about £200,000 for each of the first five years.

388.     Costs arising from all proposals in this Bill will be met from Departmental expenditure limits agreed following the Comprehensive Spending Review in 1998.


389.     With the exception of the following proposals, the measures in the Bill will have no public service manpower implications.

Part I: Immigration : general

Charging for applications

390.     Charging for extensions of stay or certain passport endorsements will require an estimated 13 additional posts.

Part III : Bail

391.     The provision for automatic bail hearings will require a maximum of a further 10 administrative staff in the Home Office.

Part V : Immigration advisers and immigration service providers

392.     A Non-Departmental Public Body will be created to regulate immigration advisers, headed by a Commissioner, a deputy and an administrative team of about 34 staff. A separate Non-Departmental Public Body will be set up as a Tribunal with 9 part-time staff.

Part VI: Support for asylum seekers

393.     The new support arrangements will be administered by IND. It is currently estimated that an additional 300 staff will be required. The IND will contract out as much work as it is sensible and prudent to do, while ensuring that responsibility for control of the support system rests within the Home Office.

Part VII : Power to Arrest and Search etc

394.     The provisions are expected to reduce marginally the calls on police resources.


395.     Regulatory Impact Assessments have been prepared and are separately available on:-

    (i)     regulation of immigration advisers. The scheme is intended to be largely self-financing, with estimated costs of about £1.5 million per year.

    (ii)     extension of the Immigration (Carriers' Liability) Act 1987 to buses and coaches. It is likely that additional training of drivers and tour leaders will be necessary to improve documentation checks. Such training is provided free of charge by the Immigration Service and so the cost to operators will be the staff time needed for training sessions normally of about three hours. It is not possible to estimate such costs at present.

    (iii)     civil penalty for transporting clandestine entrants. The costs for business will depend upon the extent to which drivers and owners improve the security of loads and ensure vigilance in checking for clandestine illegal immigrants. The cost of such steps cannot at present be estimated, but will be considered as part of the further work with the industry on the detailed operation of the new regime.

    (iv)     the provision without charge by port operators of the accommodation and facilities required to operate and support the immigration control. The Government currently invests about £8 million a year in accommodation and facilities at ports, which might be reduced to £3 million. The estimate loss of income to port authorities is therefore £5 million, but the true cost to operators may be less.

396.     Copies of the regulatory impact assessments are available from Liz McCarty, Strategy & Legislation Team, Room 1105/6, 50 Queen Anne's Gate, London, SW1H 9AT.


397.     Clauses 154 (the making of rules, regulations and orders under the Act), and 158 (short title, commencement and extent), will come into force on Royal Assent. The other provisions will come into force on such dates as the Secretary of State appoints by order.


398.     Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement about the compatibility of the provisions of the Bill with the Convention rights (as defined by Section 1 of that Act). The statement has to be made before second reading. Lord Williams of Mostyn, Minister of State at the Home Department, has made the following statement:

         "In my view the provisions of the Immigration and Asylum Bill are compatible with the Convention rights".

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Prepared: 21 June 1999