Select Committee on Delegated Powers and Deregulation Twenty-Seventh Report


ANNEX 4 (Continued)

AMENDMENT 135: POWER TO PREVENT LOCAL AUTHORITIES PLACING ASYLUM SEEKERS SUPPORTED UNDER SCHEDULE 8 IN PRESCRIBED AREAS


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



52.  Amendment 135 provides a power to prevent local authorities placing asylum seekers being supported under Schedule 8 in prescribed areas. The intention behind this power is to prevent local authorities placing asylum seekers in areas that already have a large number of asylum seekers. Specific areas might be prescribed for this purpose. Alternatively, the power might be used to prescribe the circumstances in which an area is to be prohibited, for example, any area with more than a set proportion of asylum seekers to residents.

53.  It is submitted that a power is appropriate for this purpose because it provides flexibility. It may be necessary to operate this power at short notice if a particular area appears to be having public order problems because of the numbers of asylum seekers within its borders. If we had had this power over the summer when disorder problems arose on the south coast, we might have used it to prevent local authorities from continuing to place asylum seekers in bed and breakfast accommodation in that area. As well as needing to use this power at short notice, it might be necessary to lift a prohibition on a particular area that had earlier been imposed, perhaps because the number of asylum seekers in that area had fallen considerably.

54.  It is submitted that the negative resolution procedure provides an appropriate level of Parliamentary control, particularly given that this power might be needed at short notice.

AMENDMENT 136: POWER FOR LOCAL AUTHORITIES TO REFER/TRANSFER ASYLUM SEEKERS TO OTHER LOCAL AUTHORITIES


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



55.  Amendment 136 is an expanded version of the current paragraph 6 of Schedule 8. It provides a power for the Secretary of State to set the maximum number of asylum seekers (or eligible persons) that local authorities are required to support under Schedule 8. Local authorities with more than the maximum may refer claims for support to other local authorities. Amendment 136 includes the power to prescribe descriptions of local authorities for this purpose which would enable the Secretary of State to determine, for example, the maximum number of asylum seekers/eligible persons that metropolitan district authorities are required to support. This provides flexibility (see comments on amendments 125 and 138 above).

56.  Sub-paragraph (3) of amendment 136 provides a power to prescribe particular local authorities to whom claims for support may not be referred, as well as a power to prescribe descriptions of local authorities to whom claims for support may not be referred. It also provides a power to prescribe circumstances in which claims for support may not be referred. This power might be used to provide that a claim for support should not be referred where the person concerned had close family living in the area of the local authority to whom the first claim was made.

57.  Sub-paragraph (4) of amendment 136 provides a power to make provision for the payment by the local authority that refers a claim for support of travel or subsistence expenses that are incurred as a result of the referral. Thus, the intention is that the local authority that refers the claim for support, rather than the local authority that receives the claim for support, should pay such expenses.

58.  Sub-paragraph (5) of amendment 136 provides a power for the transfer of claims for support or responsibility for providing support between two local authorities. This would be done on a voluntary basis and would thus complement sub-paragraphs (1) to (4) of amendment 136 which are concerned with enforced referrals in cases where the maximum set in sub-paragraph (1) has been exceeded. Sub-paragraph (5) is intended to provide statutory backing to the voluntary dispersal arrangements that are already being operated by the Local Government Association.

59.  It is submitted that the negative procedure provides a sufficient level of Parliamentary control. In this context, it should be noted that the powers under the unamended version of paragraph 6 are subject to the negative procedure.

AMENDMENT 145A: POWER TO PRESCRIBE THE DAY ON WHICH THE INTERIM PERIOD ENDS


Power conferred on:The Secretary of State
Power exercisable by:Statutory instrument
Parliamentary Procedure:Negative resolution (either House of Parliament)
Other relevant provisions:Clause 160(6) and Schedule 8 of the Bill; amendment 312A



60.  Amendment 145A introduces a new power to prescribe the day on which the interim period ends. This power is intended to operate alongside amendment 312A which makes transitional provisions for Schedule 8. At the moment, it is intended to move asylum seekers and their dependants from Schedule 8 to Part VI support on a phased basis starting from 1 April 2000. Amendment 145A will be used to set a long stop date for the ending of the interim regulations. Current intentions are for this to be set as 1 April 2001. In the meantime, the Secretary of State will use his power to direct under amendment 312A to move groups of asylum seekers from Schedule 8 to Part VI support.

61.  The long stop date may need to be changed, for example, if not enough accommodation is available under Part VI by 1 April 2001 and therefore the flexibility of a power is necessary. It is submitted that the negative procedure provides an appropriate level of Parliamentary control.

AMENDMENT 165: POWER TO MAKE REGULATIONS ABOUT THE COST OF MINOR WORK REQUIRED UNDER CLAUSE 97(6)(C)


Power conferred on:The Secretary of State
Power exercisable by:Statutory instrument
Parliamentary Procedure:Negative resolution (either House of Parliament)
Other relevant provisions:Clause 97, clause 160(6) and Schedule 8 of the Bill



62.  Amendment 165 contains two regulation making powers. The first is a power to provide that, in prescribed circumstances, the Secretary of State is to bear the cost of minor work required to make accommodation habitable (see clause 97(6)(c)). We expect that the Secretary of State will bear these costs in most cases, although there may be circumstances in which the minor works will improve the quality of the property on a long-term basis. In such cases, the local authority would probably be expected to pay for the minor works, since it will benefit from the improvements.

63.  The second regulation making power covers the situation where the local authority, rather than the Secretary of State, is to bear the costs of the minor works. It provides a power to set the maximum amount of expenditure which the local authority is required to incur.

64.  Neither of these matters would appropriately be placed on the face of the statute. The first power will require a high level of detail to cover the different type of circumstances that might arise. Flexibility is needed in the context of the second power, given that it will require the setting of a figure which will inevitably need to change over time. It is submitted that, in both cases, the negative procedure provides an appropriate level of Parliamentary control.

AMENDMENT 166: POWER TO MAKE REGULATIONS FOR THE RESOLUTION OF DISPUTES OVER THE OPERATION OF REGULATIONS UNDER CLAUSE 97(7)


Power conferred on:The Secretary of State
Power exercisable by:Statutory instrument
Parliamentary Procedure:Negative resolution (either House of Parliament)
Other relevant provisions:Clause 97 and clause 160(6) of the Bill



65.  Amendment 166 puts the Secretary of State under a duty to make regulations for resolving disputes over the operation of regulations under clause 97(7). Such disputes may arise between the body whose accommodation is subject to a direction and the person to whom the accommodation is provided (ie the Secretary of State or somebody he nominates) and might concern disputes as to the amounts to be paid or matters relating to the maintenance and management of the property. We are considering setting up the dispute resolution mechanism under the auspices of a body such as the Royal Institute of Chartered Surveyors. It is submitted that it is appropriate for the mechanism to be set up by regulations, given that a substantial amount of detail will be required.

AMENDMENT 175: POWER TO MAKE REGULATIONS TO EXTEND THE REMIT OF ASYLUM SUPPORT ADJUDICATORS TO COVER DECISIONS AS TO THE LOCATION OF SUPPORT


Power conferred on:The Secretary of State
Power exercisable by:Statutory instrument
Parliamentary Procedure:Negative resolution (either House of Parliament)
Other relevant provisions:Clause 99 and clause 160(6) of the Bill



66.  Clause 99 provides for an appeal to an asylum support adjudicator against a decision of the Secretary of State that a person does not qualify for support or that a his support should be discontinued. Amendment 175 introduces a power to extend the remit of the adjudicators to cover decisions of the Secretary of State about where support should be provided.

67.  It is appropriate that this should be a power rather than being placed on the face of the legislation because it is intended to held in reserve. This power would only be used if there were a substantial number of challenges on the issue of location that could not be satisfactorily resolved by the internal review procedure. It is submitted that the negative procedure provides an appropriate level of Parliamentary scrutiny.

AMENDMENT 186: POWER TO PROVIDE THAT A PERSON IS TO BE TREATED FOR PRESCRIBED PURPOSES ONLY AS NOT BEING A PERSON TO WHOM CLAUSE 111 APPLIES


Power conferred on:The Secretary of State
Power exercisable by:Statutory instrument
Parliamentary Procedure:Negative resolution (either House of Parliament)
Other relevant provisions:Clause 111 and clause 160(6) of the Bill



68.  Subsections (3B) to (3E) provide for different bodies to make regulations under clause 111(3) in different circumstances. For example, the Treasury is to make regulations (rather than the Secretary of State) in relation to the working families' tax credit and the disabled person's tax credit. This is consequential on the coming into force of the Tax Credits Act 1999. Regulations under clause 111(3) have the effect of removing the exclusions that would otherwise apply to those subject to immigration control in respect of benefits set out in clause 111 and also in respect of legislation referred to in clauses 112,113, 116 and 117. Once different bodies have the power to make regulations under clause 111(3) (the Department of Health and Social Services for Northern Ireland will have such power, as well as the Treasury and the Secretary of State), there is a need for a power which can operate to restrict the impact of the regulations on other benefits/legislation. It may be, for example, that the Treasury wishes to remove the exclusion from the working families' tax credit in respect of a particular class of person but that the Department of Health does not want to remove the exclusion from section 21 of the National Assistance Act 1921 in respect of the same class of person. Subsection (3A) provides a way out of this difficulty.

PART VII

AMENDMENTS 226 AND 228: POWER TO AMEND THE PERIOD FOR WHICH FINGERPRINTS ARE RETAINED


Power conferred on:The Secretary of State
Power exercisable by:Statutory instrument
Parliamentary Procedure:Draft affirmative (each House of Parliament)
Other relevant provisions:Clause 139 and 140 of the Bill; amendment 270



69.  Clause 139 provides that fingerprints must be destroyed within ten years of the day on which they were taken, unless one of the exceptions set out in clause 139 applies, in which case the fingerprints must be destroyed earlier. Amendments 226 and 228 provide a power to amend the ten year period so that fingerprints can be retained either for a longer or a shorter period. Taking a power for this purpose provides flexibility. The provisions on fingerprinting are intended to be in place for the foreseeable future (hence the need for clause 140 which allows regulations to be made in the event that new, more sophisticated methods of establishing identity become available). Evidence may emerge that casts doubt on the efficacy of keeping fingerprints for ten years, either because the period is too long or too short. This power would enable the necessary change to be made.

70.  This power is subject to the affirmative resolution procedure. It is submitted that this is appropriate, given the sensitivities involved in taking and retaining fingerprints. Also, the only other fingerprinting power in the Bill (clause 140) is subject to the affirmative resolution procedure.

PART VIII

AMENDMENT 255: POWER TO EXTEND ANY PROVISION MADE BY OR UNDER PART VIII IN RELATION TO DETENTION CENTRES TO SHORT-TERM HOLDING FACILITIES


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



71.  Amendment 255 allows the Secretary of State by regulations to extend any provision made by or under Part VIII of the Bill in relation to detention centres to short-term holding facilities (other than clause 146, which already so extends). This will allow the Secretary of State to make detailed provision about the regulation and management of short-term holding facilities, which are places used for detention of no more than seven days' duration.

72.  The power to extend the provisions of Part VIII to short-term holding facilities is required so as to allow the possibility of tighter regulation of such facilities in the future. Although short-term holding facilities are presently small facilities which are not best subjected to Part VIII-type regulation, it is possible that in future larger scale short-term holding facilities will be established, in which case such facilities would be more amenable to stricter regulation.

73.  It is submitted that the negative procedure will provide an appropriate level of Parliamentary control of this power since Parliament will already have endorsed the provisions of Part VIII in the context of detention centres and the power will simply allow the Secretary of State to extend those provisions to short-term holding facilities as appropriate.

AMENDMENT 255: POWER TO MAKE RULES FOR THE REGULATION AND MANAGEMENT OF SHORT-TERM HOLDING FACILITIES


Power conferred on:The Secretary of State
Power exercisable by:Statutory instrument
Parliamentary procedure:Negative resolution (either House of Parliament)
Other relevant provisions:Clauses 149 and 160(6) of the Bill and section 47 of the Prison Act 1952



74.  Amendment 255 also allows the Secretary of State to make rules for the regulation and management of short-term holding facilities. This is slightly different to the power relating to detention centres contained within clause 149, which requires the Secretary of State to make rules for the regulation and management of such centres. The new power will replace the power contained within clause 149(3) to extend the provisions of detention centre rules to short-term holding facilities.

75.  It is envisaged that the rules made under the new power may provide, inter alia, for the safety, care, activities, discipline and control of detained persons at short-term holding facilities. They will essentially serve the same purpose as prison rules made under section 47 of the Prison Act 1952, although due to the nature of short-term holding facilities they will probably be less complex than the prison rules.

76.  The new power is complementary to the separate amendment 255 power referred to above. This is because an integral part of tighter regulation and management of short-term holding facilities will be the drafting of rules specifically tailored to such facilities.

77.  It is submitted that rules for the regulation and management of short-term holding facilities should be made by way of delegated legislation due to the flexibility which is required as regards the level of regulation and management required. If, for example, larger scale short-term holding facilities are established in the future then it may become necessary to make more detailed provision about their regulation and management. The need to amend any rules made from time to time will be similar to the need which also arises as regards prison rules made under the Prison Act 1952.

78.  It is further submitted that the negative procedure will provide an appropriate level of Parliamentary control, as is the case in relation to the prison rules made under the 1952 Act and the detention centre rules to be made under clause 149. As persons are only currently detained in short-term holding facilities for up to seven days, it would be illogical for any short-term holding facility rules to be subject to a higher level of Parliamentary control than prison rules or detention centre rules, which are both designed to cater for more prolonged periods of detention.

PART X

AMENDMENT 267: POWER TO PRESCRIBE TYPES OF APPLICATION FORMS AND PROCEDURAL STEPS TO BE USED IN CONNECTION WITH ANY APPLICATION UNDER THE 1971 ACT.


Power conferred on:The Secretary of State
Power exercisable by:Regulations
Parliamentary Procedure:Negative resolution (either House of Parliament)



79.  The Government's original memorandum referred (paragraphs 141 and 142) to the provisions of what is now Clause 66(3) of the Bill in relation to powers to prescribe the form in which an application must be made and to prescribe the steps an applicant must take or the timescale within which they must be taken in order to enjoy a right of appeal.

80.  The Government has concluded that it is necessary to include separate additional provisions to achieve the purpose originally indicated. Amendment 267 achieves this by inserting a new clause 31A into the Immigration Act 1971.

81.  Currently, forms are required to be made in a prescribed form under rule 32 of the Immigration Rules (HC 395 as amended by HC 329), which must be completed in the manner specified in the form and be accompanied by the documents and photographs required by the form. There is no Parliamentary procedure for prescription of the forms and requirements; changes are however given appropriate publicity and are made know through the answer to Parliamentary questions. Forms are prescribed in order that all the required information is available to take the decision, in the interests of the person concerned and also in the interests of the efficient processing of cases. It is inefficient to have cases held up whilst further information is elucidated.

82.  The forms regime under the Immigration Rules has been held to be lawful by the Courts; but from time to time difficulties have been experienced in the interpretation of the forms.

83.  The Government has concluded that conferring a statutory power to prescribe forms, in place of that in the Immigration Rules, would be in the interests of transparency and certainty. The forms concerned would be prescribed in the secondary legislation.

84.  Accordingly, clauses 31A(1) and (2) enable forms, as well as procedural steps to be taken, to be "prescribed", by means of regulations, in connection with any application under the Immigration Act 1971.

85.  The regulations are to be made subject to negative procedure. It is submitted that this provides an appropriate level of Parliamentary control, given the detailed nature of forms regulations.

AMENDMENT 312: POWER TO MODIFY THE PROVISIONS OF THE HOMELESSNESS LEGISLATION IN RESPECT OF PERSONS SUBJECT TO IMMIGRATION CONTROL


Power conferred on:The Secretary of State
Power exercisable by:Statutory instrument
Parliamentary Procedure:Negative resolution (either House of Parliament)
Other relevant provisions:Clause 160(6) and Schedule 8 of the Bill; Part VII of the Housing Act 1996



86.  Amendment 312 would enable the Secretary of State to modify the provisions of the homelessness legislation in respect of applicants who are persons subject to immigration control. It is intended that the power would be exercised in respect of asylum seekers only, and would have force for an interim period only (until asylum seekers' eligibility under the homelessness legislation is removed).

87.  It is intended that the power would be used to enable local housing authorities to (1) transfer responsibility for asylum seeker applicants to another housing authority, by agreement with that authority; (2) modify the factors pertaining to suitability of accommodation so that regard may be had to the fact that accommodation is to be temporary and regard may not be had to any preference of the applicant as to its location; and (3) set aside the requirement to consider whether accommodation is available in its district if it has the agreement of another authority to place the applicant in accommodation in the district of the other authority.

88.  It is submitted that a power is necessary for this purpose to give local housing authorities, particularly hard pressed authorities in London and the South East, the flexibility to disperse asylum seekers to local authorities in other regions where the pressure on housing accommodation and other local services is less acute. This power complements the interim arrangements under Schedule 8.

89.  It is submitted that a power is appropriate for this purpose since the modifications to the homelessness legislation will have effect for a short period only, and it would not be appropriate to amend the fundamental structure of the legislation for this purpose. It is submitted that the negative resolution procedure provides an appropriate level of Parliamentary control.

SCHEDULE 13 PARAGRAPH 57: POWER TO EXTEND THE PURPOSES FOR WHICH IMMIGRATION OFFICERS MAY IMPOSE RESIDENCE CONDITIONS PURSUANT TO SCHEDULE 2 PARAGRAPH 21 OF THE IMMIGRATION ACT 1971 AND TO REQUIRE/PROHIBIT RESIDENCE IN PARTICULAR GEOGRAPHICAL AREAS OR TYPES OF ACCOMMODATION.


Power conferred on:The Secretary of State
Power exercisable by:Statutory Instrument
Parliamentary Procedure:Negative Resolution (either House of Parliament)
Other relevant provisions:Clause 160(6)



90.  Under the current provisions of paragraph 21 of Schedule 2 to the 1971 Act, the purposes for which residence conditions may be placed on those granted temporary admission are limited to those of ensuring that an asylum seeker remains available for interview by the immigration authorities and does not abscond.

91.  The present amendment enables the making of regulations to extend the description of residence condition that may be imposed. In particular, they may allow residence conditions of the description set out in new sub-paragraph (2C). These are conditions prohibiting residence in a particular description of accommodation; prohibiting residence in one or more areas; requiring residence in accommodation of a particular kind (including accommodation provided by the Secretary of State); and prohibiting the person concerned being absent from the accommodation concerned except in accordance with restrictions.

92.  Temporary admission under paragraph 21 of Schedule 2 is given as an alternative to detention to those who are being examined under that Schedule on entry, where a decision cannot be made on their claim immediately. It is also given to illegal entrants, those refused entry and will (under clause 8 of the Bill) be given to overstayers.

93.  The proposed power will enable several purposes to be achieved. It will enable residence conditions to be imposed to avoid public order disturbances. It will allow conditions aimed at ensuring those on temporary admission do not use social accommodation which is not made available for persons of their description. It will also allow those awaiting examination to be required to reside at accommodation provided by the Secretary of State for the purpose of the expeditious consideration of their application (such accommodation would incorporate interviewing facilities as well as facilities for legal advice); if a claim for asylum, for example, will be determined in a matter of a few days, it may make sense to require the person concerned to be near at hand.

94.  The reason for leaving the matter to delegated legislation is that it is only desired to confer this power on immigration officers to the extent that it is reasonably necessary to do so. It is recognised that this is a sensitive area and that appropriate safeguards are needed. Moreover, as ECHR rights may be engaged there is a need to ensure that conditions that may be imposed are carefully defined. This will be done through the medium of the Regulations. What is appropriate here (and justifiable under the ECHR) may very well vary over time.

95.  It is submitted that the negative resolution procedure provides an appropriate level of Parliamentary control. The Regulations will, once the Human Rights Act 1998 comes into force, be patrolled by that Act. Both the Regulations and individual applications of conditions may be challenged in judicial review proceedings.

Home Office

19 October 1999


 
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