Select Committee on Delegated Powers and Deregulation Twenty-Seventh Report


ANNEX 4

SUPPLEMENTARY MEMORANDUM BY THE HOME OFFICE

The Immigration and Asylum Bill: Memorandum on Report Amendments

1.  This Memorandum, prepared by the Home Office, covers amendments tabled by the Government for Report stage on the Immigration and Asylum Bill in the House of Lords. It identifies those amendments which confer new powers to make delegated legislation. It describes the purpose of every such power, explains why the matter is to be left to delegated legislation and explains the degree of Parliamentary control involved.

2.  This Memorandum does not, though, cover amendments which make minor or drafting changes to powers already set out in the Bill.

3.  References to amendment numbers are references to the numbers given to them in the Marshalled Lists of Amendments to be moved at Report.

AMENDMENT 6: CLAUSE 4: POWER TO PRESCRIBE MEANING OF "DEPENDANT" FOR THE PURPOSES OF EXCEPTION TO POWER TO CHARGE FOR APPLICATIONS


Power conferred on: The Secretary of State
Power exercisable by:Regulations
Parliamentary procedure:Negative
Other relevant provisions:Clause 161



4.  Clause 4 of the Bill confers power on the Secretary of State, with the approval of the Treasury, to set fees for certain "after-entry" applications, in particular for leave to remain in the United Kingdom. The power to charge does not extend to applications for leave to enter, which are made on arrival in the United Kingdom. The fees are to be set by regulations. Under subsection (3) these may provide for no fee to be payable in prescribed circumstances.

5.  In its first Memorandum to the Select Committee, the Home Office, at paragraph 48, explained that it was proposed to use subsection (3) to provide for no fee to be payable for applications under the 1951 Refugee Convention and for protection under Article 3 of the European Convention on Human Rights. It was explained that these exceptions were not provided on the face of the Bill because the precise wording of the exception would, at the margins, require to be adjusted in the light of circumstances and experience. It was also explained that it was proposed to consult on the precise wording. The Select Committee in its 22nd report recommended inter alia that this exception to the charging of fees should be set out on the face of the legislation. The present amendment, together with amendments 2 to 4 are intended to give effect to this recommendation.

6.  Amendment 4, provides that a fee is not payable if the basis on which the application is made is that the applicant is a person making a claim for asylum which claim has either not been determined or has been granted; or is a dependant of such a person. Under amendment 6, the term "dependant" has such meaning as may be prescribed. Under clause 161, "prescribed" means by regulations made by the Secretary of State.

7.  The definition of "dependant" has been left to delegated legislation as being the key aspect on which it was previously felt there was a need to consult. Clearly, the clause does now require applications from dependants of asylum-seekers (which are on the basis that they are such dependants) to be free of charge. Under normal principles of administrative law, the definition in the delegated legislation will have to be rational. The detail of that definition though, requires careful consultation and may need to be adjusted in the light of experience.

8.  Under clause 160, the regulations will be subject to negative procedure. This is consistent with the procedure under clause 4 for the power to charge fees and to make exceptions from liability to pay fees. It will also allow all the matters to be dealt with in the same instrument.

AMENDMENT 7: POWER TO DESIGNATE INTERNATIONAL INSTRUMENTS PURSUANT TO WHICH PERSONS SHALL BE EXCLUDED FROM THE UNITED KINGDOM


Power conferred on:The Secretary of State
Power exercisable by:Statutory instrument
Parliamentary procedure:None
Other relevant provisions:Clause 160(6) of the Bill and section 1 of the United Nations Act 1946



9.  Amendment 7 provides that a person named by or under an international instrument which has been designated by the Secretary of State must be refused leave to enter or remain in the United Kingdom and, if they have previously been granted leave, that leave must be cancelled. The Secretary of State may only designate those instruments made by resolution of the Security Council of the United Nations ("UN travel bans") or by the Council of the European Union ("EU travel bans") which require or recommend the United Kingdom not to admit particular persons to the United Kingdom. The Secretary of State is also given power to specify exceptions to the general obligation to refuse or cancel leave.

10.  It is submitted that it is appropriate for these powers to be provided by way of delegated legislation so as to allow the Secretary of State to designate new UN or EU travel bans as appropriate as they are made. It is submitted that the power need not be subject to Parliamentary procedure as it is concerned with implementation of the United Kingdom's binding international obligations. Similarly, section 1 of the United Nations Act 1946 allows Orders-in-Council to be made implementing UN Security Council measures made under Article 41 of the UN Treaty. Such Orders-in-Council are not subject to Parliamentary procedure.

AMENDMENT 15: POWER TO MAKE REGULATIONS ABOUT REMOVAL DIRECTIONS WHICH INCLUDE PROVISION FOR ESCORTS


Power conferred on:The Secretary of State
Power exercisable by:Statutory instrument
Parliamentary procedure:Negative resolution (either House of Parliament)
Other relevant provisions:Clauses 8 and 160(6) of the Bill and paragraphs 8-10 of Schedule 2 and paragraph 1 of Schedule 3 to the Immigration Act 1971




11.  Sub-clause (2) of amendment 15 allows the Secretary of State to make regulations supplementing sub-clause (1) of that amendment, which provides that removal directions may include, or be amended to include, provision for the person who is to be removed to be accompanied by an escort. Under sub-clause (3) of the amendment, the regulations may, in particular, include provision about the return of the escort to the United Kingdom and the allocation of the costs of escort between the Secretary of State and the relevant carrier.

12.  It is submitted that it is appropriate for sub-clause (1) of the amendment to be supplemented by a power for the Secretary of State to make regulations. This is because various points of detail in connection with escorts for those being removed from the United Kingdom will need to be finalised following consultation with carriers. Furthermore, it is desirable for the Secretary of State to retain an element of flexibility as to the circumstances in which carriers must pay for escorts, and the types of cost which carriers are required to reimburse to the Secretary of State.

13.  Regulations made by the Secretary of State under amendment 15 are subject to annulment by either House. It is submitted that the negative procedure provides an appropriate level of Parliamentary control for regulations of this kind.

AMENDMENT 28: POWER TO PRESCRIBE FEES FOR APPLICATIONS FOR TRAVEL DOCUMENTS


Power conferred on:The Secretary of State
Power exercisable by:Regulations
Parliamentary procedure:Negative
Other relevant provisions:Clause 160(6)




14.  Amendment 28 provides a power to prescribe fees in connection with applications for travel documents. It is intended to use this power to prescribe fees in connection with applications for travel documents by refugees (such documents must be issued to refugees in accordance with Article 28(1) of the Convention relating to the Status of Refugees of 1951), stateless persons (c.f. Article 28(1) of the Convention relating to the Status of Stateless Persons of 1954) and various other third country nationals.

15.  Subsection (3) of the amendment makes this power retrospective. This reason for this was explained to both Houses of Parliament on 27 July 1999 (House of Commons Official Report, columns 248-249 and House of Lords Official Report, columns WA 184-185).

16.  It is submitted that it is appropriate to have a power to prescribe fees for travel documents, given that the fees are likely to change at regular intervals (in the case of the refugee and stateless person travel documents, the fees are tied to passport fees which change from time to time). It is also submitted that the negative procedure is consistent with the position on charging for after entry applications in clause 4 of the Bill and provides a sufficient level of Parliamentary control. It is to be noted that fees prescribed under section 56 of the Finance Act 1973 (under which we are currently charging for refugee and stateless person documents) are subject to the negative procedure.

AMENDMENT 30: NEW CLAUSE: DEFENCES BASED ON ARTICLE 31(1) OF THE REFUGEE CONVENTION


Power conferred on:The Secretary of State
Power exercisable by:Order
Parliamentary procedure:Draft affirmative
Other relevant provisions:Amendment 268



17.  Amendment 30 inserts a new clause into the Bill in response to the judgment of the Divisional Court in the case of Adimi and others of 29th July 1999. The judgment concerns the effect, on prosecutions for certain offences in the United Kingdom, of Article 31(1) of the 1951 UN Convention Relating to the Status of Refugees. Article 31(1) provides

    "a contracting State shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence".

18.  The Divisional Court found that the existence of Article 31(1) gave rise to a legitimate expectation that the executive will consider whether to afford protection to those covered by Article 31(1). The Government has decided to honour this expectation by a two-fold approach. One limb comprises liaison arrangements between the relevant authorities designed to ensure that no-one who is entitled to the protection afforded by Article 31(1) is subject to prosecution for relevant offences. The second limb is a defence, set out in amendment 30, in the event those arrangements fail to prevent a relevant prosecution.

19.  The defence is drafted as a defence to certain offences which are listed in subsection (3), so far as England and Wales is concerned; subsection (4) adds additional offences so far as Scotland is concerned. The listed offences are those which are considered to be relevant for the purposes of Article 31(1). However, we cannot rule out that decisions of the courts will identify other offences to which the defence ought to apply. Moreover, there may in the future be additional offences which ought to be subject to this defence, but which have not been identified as such in time to amend the present provision by means of primary legislation.

20.  Under amendment 268, any Order under this provision has to be made by affirmative procedure. Given that the power is a Henry VIII power enabling the addition or removal of a defence to criminal proceedings, affirmative procedure is considered the most appropriate choice.

21.  The power is at present expressed as a power to amend subsection (3). In the light of further consideration by the Government, it is proposed that the power should be also extended to subsection (4) at Third Reading.

PART II

AMENDMENT 42: CLAUSE 34: POWER TO DISAPPLY CARRIERS' LIABILITY FROM TRAINS


Power conferred on:The Secretary of State
Power exercisable by:Order
Parliamentary procedure:Negative



22.  Clause 34 re-enacts and extends section 1 of the Immigration (Carriers' Liability) Act 1987. This section imposes a charge on a sea or air carrier who brings to the United Kingdom a passenger who is inadequately documented. It is, however, a defence under that section for a carrier to show that he or his representative or agent inspects the passenger's documents when embarking the passenger for the United Kingdom, unless the Secretary of State can then prove that the documents presented were a reasonably apparent falsity. That section has been applied to trains by a statutory instrument under section 11 of the Channel Tunnel Act 1987, namely, the Channel Tunnel (Carriers' Liability) Order 1998 (SI 1998/1015). This extension is to be re-enacted in clause 34. It is a feature of this extension to trains that it is only passengers arriving on a "train" as defined in clause 37 (and the statutory instrument referred to above) who trigger the charge. This definition excludes passengers who travel on a shuttle train as defined by section 1(9) of the Channel Tunnel Act 1987. This is because, in relation to such a train, the United Kingdom immigration control is exercised at Coquelles in France and French immigration control is exercised in England. The passenger thus boards Le Shuttle and travels to the United Kingdom after having passed United Kingdom immigration control; and accordingly in those circumstances it is inappropriate to impose carriers' liability charges.

23.  Amendment 42 inserts a power into clause 34 which enables the Secretary of State to disapply the carriers' liability regime where there is an international agreement in place for the exercise of UK immigration control, or for the checking of passports and visas, abroad. If, pursuant to such an agreement, UK immigration control is exercised at stations on the train route concerned or the authorities of the country concerned conduct checks of travel documents there, it is appropriate to treat the carrier in the same way as Le Shuttle is treated and to lift the carriers' liability regime accordingly. Either, again, the passengers will have already passed UK immigration control before embarking; or responsibility for document checks will lie with the authorities.

24.  The power in effect replicates what may be done with regard to the present statutory instrument referred to above, in that at present further instruments may be made under section 11 of the Channel Tunnel Act varying the extension of the Immigration (Carriers' Liability) Act 1987 to trains.

25.  The matter is considered appropriate for delegated legislation in that it is not at present clear whether and to what extent any such agreements will be made. The present power enables effect to be given to any such agreement that may be made in the future.

26.  Under clause 160 any order under the new power is subject to negative procedure. The Channel Tunnel (Carriers' Liability) Order 1998 was itself made subject to negative procedure; and negative procedure could be used to amend it.

PART III

AMENDMENT 47: POWER TO MODIFY APPLICATION OF CLAUSE 38 IN CASES WHERE BAIL PROCEEDINGS ARE ADJOURNED TO ENABLE MEDICAL OR OTHER REPORTS TO BE OBTAINED OR FOR ANY OTHER REASON


Power conferred on:The Secretary of State
Power exercisable by:Statutory instrument
Parliamentary procedure:Negative resolution (either House of Parliament)
Other relevant provisions:Clauses 38, 40 and 160(6) of the Bill



27.  Amendment 47 provides the Secretary of State with a power by regulations to modify the application of clause 38 in relation to cases where a routine bail hearing is adjourned to enable medical or other reports to be obtained or for any other reason. The amendment states that, in particular, the regulations may provide for the requirement for there to be a second reference not to apply in circumstances prescribed in those regulations. These new sub-clauses are required as there is otherwise no power for the court to adjourn routine bail proceedings in order to enable medical or other reports to be obtained or for any other reason.

28.  The second sub-clause of the amendment is required because, in some circumstances, the length of an adjournment may be such that a second reference is not required under clause 38 as the end of the adjournment will effectively coincide with, or post-date, the time at which that second reference would otherwise have to be made.

29.  It is submitted that it is appropriate for detailed provision about adjournment of routine bail hearings to be made by way of delegated legislation because of the likely complexity of the provisions concerned. It is further submitted that the regulations should be subject to the negative procedure as they will essentially be ones of practice or procedure to be followed at routine bail hearings. Equivalent rules are made, for example, in the immigration appeal context by way of the same negative procedure under paragraph 3 of Schedule 4 to the Bill.

AMENDMENT 58: POWER TO MAKE PROVISION IN RELATION TO APPLICATIONS FOR BAIL BY PERSONS DETAINED UNDER THE IMMIGRATION ACT 1971


Power conferred on:The Secretary of State
Power exercisable by:Statutory instrument
Parliamentary procedure:Draft affirmative (each House of Parliament)
Other relevant provisions:Part III of the Bill, clause 160(4) of the Bill, paragraph 16 of Schedule 2 to the Immigration Act 1971 and paragraph 2 of Schedule 3 to that Act



30.  Amendment 58 allows the Secretary of State by regulations to make new provision about applications for bail by persons detained under the Immigration Act 1971. The amendment allows such regulations to confer a right to be released on bail in prescribed circumstances. It also outlines other areas which the regulations may cover, which include the transfer of jurisdiction over bail applications and the conditions on which an applicant may be released on bail, and ensures that any such regulations may amend or repeal an enactment as appropriate.

31.  Under sub-clause (5) of the new clause introduced by the amendment, the Secretary of State must have regard when making regulations to the desirability of making provision similar to that which is made by Part III of the Bill in relation to routine bail hearings. Thus, for example, when conferring any right to be released on bail, the Secretary of State must have regard to the desirability of making provision similar to clause 40.

32.  Clause 47 allows the Lord Chancellor by rules (subject to negative resolution procedure) to provide for applications for bail to be heard by magistrates' courts in specified circumstances. That power will be subsumed into the new power contained within amendment 58. As the Lord Chancellor will wish to retain a role in relation to, inter alia, any transfer of jurisdiction to hear bail applications or any provision as to where bail applications may be held, the amendment requires that any regulations made under the new clause are approved by the Lord Chancellor.

33.  It is submitted that it is appropriate for regulations making new provision about applications for bail by persons detained under the 1971 Act to be made by way of delegated legislation because of the complex nature of those regulations. It is intended that the regulations will make provision similar to that made by Part III. Thus, for example, it is envisaged that the presumption of bail will be extended to bail applications, a power to require securities as a condition of bail will be introduced, and the mechanics of bail applications, arrest and forfeiture will broadly reflect the provisions of Part III. However, due to the different nature of bail applications as compared with routine bail hearings, the regulations will not exactly mirror the provisions of Part III. They will be different in many subtle, but highly significant, respects. For example, any presumption in favour of bail will need to take account of court recommended deportation cases, which are not catered for by clause 40 as clause 38(3)(b) excludes such cases from routine hearings altogether. The regulation-making power is therefore required so as to provide the necessary element of flexibility in adapting Part III principles to the bail application context.

34.  Various safeguards are put in place by the amendment to ensure that the Secretary of State exercises this power properly. First of all the Secretary of State is to have regard to the desirability of making provision similar to that contained within Part III of the Bill. Secondly, any regulations made under the new clause require the approval of the Lord Chancellor. Thirdly, those regulations will be subject to affirmative resolution procedure.

35.  It is submitted that the affirmative resolution procedure is appropriate for this regulation-making power because of the wide nature and subject matter of the power. In particular, it allows for the amending or repealing of any enactment so far as is necessary and allows the Secretary of State to confer a new right to be released on bail. Under clause 40 of the Bill, in order to introduce new exceptions to the general right to be released on bail in routine cases, the Secretary of State must make an order which itself is subject to affirmative resolution procedure.

PART VI

AMENDMENT 124: POWER TO MAKE REGULATIONS WITH RESPECT TO THE POWER TO PROVIDE SUPPORT UNDER CLAUSE 90


Power conferred on:The Secretary of State
Power exercisable by:Statutory instrument
Parliamentary Procedure:Negative resolution (either House of Parliament)
Other relevant provisions:Clause 93 and clause 160(6) of the Bill; amendments 123 and 158



36.  Amendment 124 introduces a new schedule of regulations making powers in respect of the power to provide support under clause 90. Most of these powers are currently to be found in clause 93 (which is to be deleted - see amendment 158) and as such have already been considered by the House of Lords Select Committee on Delegated Powers and Deregulation. Paragraphs 2 and 5 of the schedule are an expanded version of clause 93(3) which has also already been considered by the Committee.

37.  However, there are a few additional powers in the new schedule. These put on the face of the statute matters which could otherwise have been dealt with by the regulation making power in clause 93(1). Paragraph 6 provides a power to make provision as to the valuation of assets. Assets may be taken into account when assessing destitution and when deciding the level or kind of support to be provided (paragraphs 2 and 5 of the new schedule). The power in paragraph 6 will enable the Secretary of State to set a method for the valuation of assets to cover the situation where the value of an asset is in dispute.

38.  Paragraph 9 provides a power to clarify the period of notice which has to be given before asylum seekers can be required to leave the accommodation which they are occupying under Part VI. This is necessary because the extent to which common law provisions about notices to quit apply is not clear, given that the nature of the occupancy is not a normal tenancy or licence. Paragraph 9 therefore provides a specific power to issue notices to quit to those occupying accommodation provided under Part VI, with the result that any applicable common law provisions about notices to quit are overridden.

39.  Paragraph 10 provides a power which enables the Secretary of State to require a supported person to make payments by way of contribution to support provided under clause 90. If a person has, for example, a small income, he may still be destitute for the purposes of clause 90 and therefore eligible for support. If he is to receive support in the form of accommodation and vouchers/cash, it would be possible to take his income into account by reducing the level of his vouchers/cash. However, if he is to be supported in full-board accommodation, it would not be possible to make any reduction in the value of his support to take his income into account. Instead, paragraph 10 could be used to require him to use his income to make contributory payments in respect of his support.

40.  Paragraph 11 addresses the situation where a person has assets which he cannot realise at the time that he applies for support, perhaps because they have been frozen by a hostile government. At the time that such a person applies for support, he would be destitute and eligible for support under clause 90. If the assets later become realisable, paragraph 11 allows the Secretary of State to recover an amount equivalent to some or all of the support provided to him under clause 90 in the meantime.

41.  It is submitted that the additional powers in paragraphs 6 and 9 are necessary to ensure that the scheme for the support of asylum seekers runs smoothly. The additional powers in paragraphs 10 and 11 are necessary to ensure that asylum seekers cannot profit from the support scheme at the expense of the taxpayer. It is submitted that the negative resolution procedure provides an appropriate level of Parliamentary control for these powers - the other powers in the new schedule are also subject to the negative resolution procedure.

AMENDMENTS 125, 126, 128, 129, 133, 134, 138, 141 AND 144: POWER TO MAKE VARIOUS ADDITIONAL INTERIM REGULATIONS UNDER SCHEDULE 8


Power conferred on:The Secretary of State
Power exercisable by:Statutory instrument
Parliamentary Procedure:Negative resolution (either House of Parliament)
Other relevant provisions:Clauses 90, 92, 93, 94 and 160(6) and Schedule 8 of the Bill



42.  Paragraph 1 of Schedule 8 provides a power to name particular local authorities as being required to provide support under Schedule 8. Amendment 125 extends this to descriptions of local authorities. This provides a greater degree of flexibility. Instead of having to name every local authority that is subject to the duty, the regulations might prescribe, for example, that all local authorities that are metropolitan district councils are subject to the duty.

43.  Amendment 126 provides a new power to require local authorities to support asylum seekers or their dependants who appear to be likely to become destitute within a prescribed period. This mirrors the power in clause 90(1) which has already been scrutinised by the Committee. In the consultation paper issued recently on the interim regulations, we proposed to prescribe 14 days for this purpose.

44.  Amendment 128 provides a power to put the Secretary of State or prescribed local authorities under a duty to provide temporary support to those who claim support under Schedule 8. This is to cover the period between the time when a person makes a claim for support and the determination of whether the person is eligible for support. This power is the equivalent to the power to provide temporary support under the main scheme (clause 94). We are considering whether a technical change to amendment 128 is needed to provide the power to prescribe local authorities falling with a prescribed description of authority (c.f. amendment 125).

45.  Paragraph 2 of Schedule 8 provides that whether a person is destitute must be determined by the local authority concerned. Amendment 129 provides a new power to prescribe the meaning of "the local authority concerned". In most cases, the assessment of destitution will be carried out by the local authority to whom a person applies for support. However, where, for example, a local authority refers a case to another local authority under paragraph 6 of Schedule 8, the assessment of destitution will be carried out by the second local authority. Thus the local authority concerned will not be the local authority to whom the claim for support was made. It is necessary to have a power in order to provide for these distinctions.

46.  Amendment 133 provides a power to make regulations about the level of support. This is intended to mirror in simplified form the powers contained in clause 93(2) which have already been scrutinised by the Committee. Amendment 133 also provides a power to enable local authorities to provide support subject to conditions. This is intended to mirror the provisions of clause 90(9) to (11). In the context of the main scheme, the provisions concerning conditions are not regulation making powers. However, given that the whole of Schedule 8 operates on the basis of regulations, these provisions too must be subject to a power.

47.  Amendment 134 provides a power to put local authorities under a duty to have regard, or not to have regard, to prescribed matters. This power mirrors the provisions of clause 92(1) and (2). It is intended to use this power, for example, to provide that local authorities are to have regard to the cost of providing support.

48.  Amendment 138 concerns paragraph 7 of Schedule 8 and the power of the Secretary of State to refer claims made to him (as opposed to claims made to a local authority) to local authorities. Amendment 138 provides the power either to refer such claims to particular local authorities or to descriptions of local authorities. This provides flexibility (see comments on amendment 125). Instead of having to name every local authority to whom the Secretary of State might refer claims, the regulations might prescribe, for example, all local authorities that are metropolitan district councils.

49.  Amendment 141 amends paragraph 10 of Schedule 8. It is intended to use paragraph 10 to deem those who are currently supported under section 21 of the National Assistance Act 1948 or section 17 of the Children Act 1989 on to Schedule 8 support. However, on the current wording in paragraph 10, all those being supported under these provisions would be deemed on to Schedule 8. The intention is only to deem on to Schedule 8 those being supported under these provisions for destitution needs. Amendment 141 provides the power to prescribe the type of support that leads to a person being deemed on to Schedule 8 support.

50.  Amendment 144 amends paragraph 11 of Schedule 8. Paragraph 11 is intended to prevent those who are eligible for support under Schedule 8 choosing instead to be supported under other provisions. The current drafting is defective. It is intended to use the power to prescribe a description of support under amendment 144 to prescribe section 17 of the Children Act 1989 insofar as it concerns destitution needs. This would mean that those who are eligible for support under Schedule 8 would not be eligible for support for their destitution needs under section 17 of the Children Act 1989. The power to prescribe the extent to which this should apply is intended as a reserve power to mirror the power in the main scheme at clause 118(10). If it became necessary, it would be possible to operate section 17 of the Children Act 1989 as it concerns destitution needs and Schedule 8 alongside each other.

51.  These are all additional powers to make regulations within the context of the general power to make interim regulations. Given that the powers already in the Bill are subject to the negative Parliamentary procedure, it is submitted that this is appropriate for these additional powers too.


 
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