Select Committee on Delegated Powers and Deregulation Twenty-Second Report


ANNEX

IMMIGRATION AND ASYLUM BILL
Memorandum by the Home Office

PART I: IMMIGRATION: GENERAL

CLAUSE 1: POWER TO MAKE FURTHER PROVISION WITH RESPECT TO THE GIVING, REFUSING OR VARYING OF LEAVE TO ENTER THE UNITED KINGDOM
Power conferred on: The Secretary of State
Power exercisable by:Order made by Statutory Instrument
Parliamentary procedure:draft affirmative (both Houses)

63.  Clause 1 inserts a new section 3A into the Immigration Act 1971. This new section contains three related powers to make delegated legislation. The first is set out in subsections (1) and (2), when read with subsections (10) to (13). It permits the Secretary of State by order to make further provision with respect to the giving, refusing or varying of leave to enter the United Kingdom.

64.  Under the 1971 Act as it presently stands, leave to enter must generally be given or refused by an immigration officer at the immigration control in the United Kingdom. The two exceptions are where UK immigration control is being exercised in a control zone in France by virtue of an order made under section 11 of the Channel Tunnel Act 1987 or where arrangements are in place under section 8 of the 1988 Act. Further, leave must be given in writing notified to the person concerned (section 4(1) of the 1971 Act). Generally, leave once given lapses when the holder leaves the Common Travel Area (defined in section 1(3)) of the 1971 Act as meaning the UK, the Channel Islands, the Isle of Man and Ireland); again, there are certain (limited) exceptions to this general rule.

65.  The power conferred by subsection (1) of the new section 3A will enable alternative provision to be made with respect to the giving, refusing or varying of leave to enter the United Kingdom to allow flexibility in the operation of the control and the use of technological developments to make the control more efficient, effective and (in particular for its customers) quicker. The power will enable the control to be targeted on those arriving passengers who present the most risk.

66.  Subsection (2) provides that an order under this power may in particular provide for

  • leave to be given or refused before arrival in the United Kingdom (it is possible, for example, that frequent visitors will be able to obtain leave for a number of visits in advance);
  • the form and manner in which leave may be given (it is possible, for example, that leave might be notified by e-mail and recorded separately on a database);
  • the imposition of conditions ( for example those that may be imposed under section 3 of the 1971 Act; or that a person with extant leave given in advance has to use it within a certain period of time); and
  • a person's leave not to lapse on leaving the Common Travel Area (for example that a foreign student given leave to enter for two years may use it to re-enter the United Kingdom during the two years, so as to facilitate his visits home).

67.  Such alternative provision is to be introduced by subordinate legislation for the following reasons. Alternative provision of the sort envisaged is largely unexplored territory, as it goes well beyond section 8 of the 1988 Act. It is thus considered that the flexibility permitted by the power should be introduced on a phased basis, so that experiences can be learnt and used to refine the measures adopted and introduce any necessary safeguards. The power will be exercised initially with respect to those passengers presenting the least risk to the operation of the immigration control. Moreover, the power is also designed to enable the utilisation of technological change for the future operation of the control. It will enable, for example, the use of SMART cards to record the grant of leave enabling the holders of the same to pass through electronic barriers at the control without the necessity of being examined by an immigration officer. Future changes in technology cannot presently be anticipated.

68.  Subsection (10) allows orders under the subsection (1) to contain incidental, supplemental, consequential and transitional provision and for them to make different provision for different cases.

69.  Subsection (13) provides for any order inter alia in the exercise of this power to be made by laying a draft before Parliament to be approved by both Houses. The use of an affirmative procedure has been adopted following representations made during the Special Standing Committee stage in the House of Commons. It is considered appropriate since the power will enable potentially far reaching provision to be made governing the grant or refusal of leave to enter and therefore United Kingdom immigration control. The 1971 Act is to have effect subject to any order made inter alia under subsection (1) - see subsection (11).

70.   An Order made under section 3A may make provision in respect to leave given before the commencement of clause 1 of the Bill (Paragraph 1 of Schedule 14).

CLAUSE 1: POWER TO ENABLE VISAS AND OTHER FORMS OF ENTRY CLEARANCE TO HAVE EFFECT AS LEAVE TO ENTER
Power conferred on: The Secretary of State
Power exercisable by:Order made by statutory instrument
Parliamentary procedure:draft affirmative (both Houses)

71.  New section 3A(3) of the 1971 Act, inserted by clause 1, enables the Secretary of State by order to provide that, in such circumstances as may be prescribed, an entry visa or such other form of entry clearance as may be prescribed is to have effect as leave to enter the United Kingdom. Subsection (4) provides what, in particular, such an order may contain. Such an order may provide for entry clearance to have effect as leave to enter subject to prescribed conditions or subject to limitations as to the number of occasions for which the clearance is to have this effect and also allows for the variance of entry clearance by the Secretary of State or by an immigration officer so that it ceases to have this effect. Subsection (5) provides that only conditions which may be imposed on leave to enter given under the 1971 Act may be attached to entry clearance by the order.

72.  The idea of the power is to prevent duplication of work as between entry clearance officers at posts overseas and immigration officers in the United Kingdom; and to speed the passage of passengers holding visas and entry clearance through UK immigration control so that they are not held up more than is necessary. At present visas are given after extensive enquiries by an entry clearance officer abroad and usually an interview; yet immigration officers on the holder's arrival in the United Kingdom conduct a further examination of them before granting leave to enter. (Though, under Rule 321 of the Immigration Rules, there is a presumption in favour of granting leave to persons arriving with entry clearance). The power will allow immigration officers to simply check for a valid passport and visa held by the rightful owner before allowing the passenger to proceed. Other provisions in the Bill (paragraph 51 of Schedule 12) will allow re-examination of those arriving with this form of leave if fraud or change of circumstance is suspected.

73.  Under subsection (10) an order made under this power may make incidental, supplemental, consequential and transitional provision and different provision for different classes of case. The 1971 Act has effect subject to any such order as is made (subsection (11)).

74.  The extent to which visas and other forms of entry clearance are to have effect as leave to enter has been left to delegated legislation because it is desired to proceed in a phased manner, with long-term visas and other forms of entry clearance being covered first. Moreover, it is foreseen that there will be a need to change the detail of the arrangements in the light of experience and circumstances. For example, if in the light of experience it is shown that certain categories of entry clearance give rise to a large number of re-examinations for changed circumstances, this would point to that category of entry clearance being removed from the arrangements.

75.  Subsection (13) provides that any order under this provision is subject to affirmative procedure. In the light of representations received during the Special Standing Committee stage on the Bill, it is considered that this level of Parliamentary scrutiny is appropriate, given the implications of an order under the power for the operation of United Kingdom immigration control. Moreover, the 1971 Act and any provision made under it will be subject to any order made under this power.

CLAUSE 1: POWER ENABLING THE SECRETARY OF STATE TO GIVE OR REFUSE LEAVE TO ENTER THE UNITED KINGDOM
Power conferred on: The Secretary of State
Power exercisable by:Order made by statutory instrument
Parliamentary procedure:draft affirmative (both Houses)

76.  New section 3A(7) inserted into the 1971 Act by clause 1 enables the Secretary of State by order (by statutory instrument, subsection (12)) to give himself power to give or refuse leave to enter the United Kingdom, in such circumstances as may be prescribed in the order. Subsection (10) enables incidental, supplemental, consequential and transitional provisions to be made and for different provision to be made for different cases. The 1971 Act and any provision under it has effect subject to any such order (subsection 11). Subsection (8) provides in particular what may be included in the order by way of consequential provision; in that it enables certain powers currently conferred by Schedule 2 of the 1971 Act on immigration officers, in connection with the giving or refusal of leave to enter by them, to be conferred on the Secretary of State.

77.  The purpose of the power is to allow effective use of resources within the Immigration and Nationality Directorate of the Home Office; and thereby provide its customers with faster decisions. At present only immigration officers may give or refuse leave to enter (section 4(1) of the 1971 Act). In certain circumstances, it may be more efficient for other officers of the Secretary of State to do so. For example, at present where a person claims asylum at port, their examination by the immigration officer at the port is suspended whilst the case is referred to the Headquarters of the Immigration and Nationality Directorate for consideration by caseworkers there. If the claim is not accepted and there are no other compassionate circumstances justifying exceptional leave to enter, the case is referred back to the immigration officer at the port for completion of the examination and the refusal of leave to enter. It may be that it is more efficient, and will result in a faster decision for the person concerned, if leave to enter is refused by the caseworker who has considered the claim for asylum and any compassionate circumstances which have been advanced for exceptional leave.

78.  The matter has been left to delegated legislation because the circumstances in which the Secretary of State ought to have this power are likely to change from time to time in the light of experience. Moreover, it is envisaged that the circumstances concerned will be set out in detail in the instrument and after consultation with relevant trade unions and others. It is envisaged that, initially, only the case set out in the example above will be covered by an order under this power.

79.  Subsection (13) provides that an order under this power be subject to affirmative procedure. This is considered appropriate, in the light of the implication of the use of the power for the operation of United Kingdom immigration control. Moreover, the 1971 Act and provisions made under it are to have effect subject to any such order (subsection (11)).

CLAUSE 2 POWER TO MAKE FURTHER PROVISION WITH RESPECT TO THE GIVING, REFUSING OR VARYING OF LEAVE TO REMAIN IN THE UNITED KINGDOM
Power conferred on: The Secretary of State
Power exercisable by:Order made by statutory instrument
Parliamentary procedure:draft affirmative (both Houses)

80.  New section 3B inserted into the 1971 Act by clause 2 empowers the Secretary of State by order to make further provision with respect to the giving, refusing or varying of leave to remain in the United Kingdom. Under subsection (2), such an order may in particular provide: for the form and manner in which leave may be given, refused or varied; the imposition of conditions; and that a person's leave to remain is not to lapse upon his leaving the Common Travel Area. Such an order may also contain incidental, supplemental, consequential and transitional provision and make different provisions for different cases (subsection 3). The 1971 Act and any provision made under it has the effect subject to any such order (subsection (4)).

81.  This power is the equivalent for leave to remain of the power in new section 3A(1) of the 1971 Act, inserted by clause 1 of the Bill, dealing with leave to enter. Under the 1971 Act as it currently stands, leave to remain must be given, refused or varied by notice in writing (section 4(1)) of the 1971 Act (subject to an ability for the Secretary of State to vary leave through statutory instrument for a class of persons). Section 3(4) of the 1971 Act provides that leave to remain is, subject to certain limited exceptions, to lapse upon a person leaving the Common Travel Area.

82.  The present power will allow a measure of flexibility, in that it will allow immigration control to be exercised in the most efficient manner and allow new technology to be taken advantage of; and further will make the operation of the control simpler and quicker for those subject to it. For example, the power will enable the delivery of services electronically. It will also enable the Secretary of State to allow a person with indefinite leave to remain to rely upon that subsisting leave if they travel from the United Kingdom outside the Common Travel Area and seek to return. This will be of benefit to those foreign nationals settled here on a long term basis.

83.  This matter is being left to delegated legislation as it is considered there is a need to take a staged approach to this flexibility. For example, the power to provide for a person's leave to remain in the United Kingdom not to lapse on his leaving the Common Travel Area may first be used for those passengers presenting the least risk to the immigration control, such as persons with indefinite leave to remain. Further, the desire is to enable technological advances to be taken advantage of without the need to return to Parliament for further primary legislation. Whilst some technology exists at present, future technology is of necessity not foreseeable. There will also be a need to adjust the provision made in the light of experience.

84.  Subsection (5) provides that the order is to be made by a statutory instrument; and subsection (6) provides for it to be made subject to affirmative procedure. In the light of representations made during the Special Standing Committee stage on the Bill in the House of Commons, it is considered appropriate that an order under this power be made by subordinate instrument, having regard to the implications of such an order for the operation of United Kingdom immigration control. Subsection (4) provides that the 1971 Act and any provision under it is to have effect subject to any order made under the power.

85.  An Order made under section 3B may make provision in respect to leave given before the commencement of clause 2 of the Bill (Schedule 14, paragraph (1)).

CLAUSE 4: POWER TO PRESCRIBE FEES TO BE PAID IN CONNECTION WITH AFTER ENTRY APPLICATIONS
Power conferred on: The Secretary of State
Power exercisable by:Regulations made by Statutory instrument
Parliamentary procedure:Negative resolution (either House of Parliament)
Other relevant provisions:Clause 154 of the Bill

86.  Clause 4 provides that the Secretary of State may, with the approval of the Treasury, make regulations prescribing fees to be paid in connection with certain applications. These applications are for leave to remain in the United Kingdom; the variation of leave to enter or remain in the United Kingdom; and for an indefinite leave stamp to be fixed on the applicant's passport or travel document following the renewal or replacement of the same. Subsection (2) prevents the Secretary of State from entertaining any application unless the prescribed fee has been paid. Under clause 154 different provision may be made for different cases or descriptions of case; subsection (3) enables the regulations to provide that no fee is to be payable in prescribed circumstances. Subsection (4) goes on to provide that where an application is on more than one ground and no fee is payable in respect of one part of it, the Secretary of State must, despite subsection (2), entertain that part of the application.

87.  It is proposed that applications for asylum under the 1951 Refugee Convention and for protection under Article 3 of the European Convention on Human Rights will be prescribed as applications where no fee is to be payable. These exceptions are not provided for on the face of the Bill because the precise wording of the exception will, at the margins, require to be adjusted in the light of circumstances and experience. For example, to accommodate related applications from dependants. Other circumstances may justify no fee being chargeable in respect of an application, for example where it has been occasioned by a mistake of the Secretary of State. It is envisaged there will be consultation both on the precise wording of the exception for refugee and ECHR cases and these further cases.

88.  The setting of fees is left to delegated legislation so as to enable the fees to be revised from time to time, if only to take into account inflation.

89.  It is considered appropriate for fees to be set by negative procedure, given the limited extent of the power. Section 9(1) of the 1988 Act, which clause 4 extends and replaces, made provision for the charging of fees for settlement in the United Kingdom, including power to provide for cases in which no fee is to be paid. That power is subject to negative resolution (section 9(3) of the 1988 Act). This clause follows that precedent.

CLAUSE 7: POWER TO PRESCRIBE A PERIOD DURING WHICH OVERSTAYERS MAY APPLY IN A PRESCRIBED MANNER FOR LEAVE TO REMAIN IN THE UNITED KINGDOM
Power conferred on: The Secretary of State
Power exercisable by: Statutory instrument
Parliamentary procedure: Draft affirmative (each House of Parliament)
Other relevant provisions: Clauses 8 (2), 154 (1), (2) and (4), 155 (1), 158 (4) and paragraphs 4 and 5 of Schedule 14

90.  This clause requires the Secretary of State to prescribe a period ("the regularisation period") during which persons who have remained beyond the time limited by their leave ("overstayers") may apply, in the prescribed manner, for leave to remain in the United Kingdom. A person who makes such an application cannot be the subject of directions for removal under clause 8. The effect of paragraph 5 of Schedule 14 is that such a person will be liable to deportation (with a right of appeal against deportation) rather than removal under clause 8 if the Secretary of State serves on him a notice of intention to deport (notwithstanding the repeal of the relevant provisions of the 1971 Act dealing with the deportation of overstayers).

91.  It seems appropriate for the regularisation period and the manner of application to be prescribed in regulations since it is presently unclear how long the period should be or the procedure by which overstayers should be required to make an application. The draft affirmative procedure is considered appropriate since the length of the regularisation period will determine the extent of the opportunity overstayers will enjoy to qualify for an in-country right of appeal before being required to leave the United Kingdom.

CLAUSE 8 (6): POWER TO PRESCRIBE REQUIREMENTS IN DIRECTIONS
Power conferred on : The Secretary of State
Power exercisable by: Statutory instrument
Parliamentary Procedure: Negative resolution of either House of Parliament
Other relevant provisions: clauses 154 (1), (2) and (5) and 155 (1)

92.  Clause 8 makes provision for directions to be given for the removal from the United Kingdom of certain categories of persons including those who have remained beyond the time limited by their leave. As in the case of directions given under the 1971 Act, the directions under clause 8 will be given to carriers. Subsection (6) enables the Secretary of State to impose requirements in the directions of a prescribed kind.

93.  It is thought appropriate for these requirements to be contained in regulations since it is thought that they may change over time to meet the particular circumstances of removing those who may have been in the United Kingdom for a long time, possibly years. It is submitted that the negative resolution procedure is adequate since any requirements which are prescribed will merely relate to the details involved in the removal of such persons, including the date, time and destination of removal, rather than the power of removal itself which is set out in clause 8.

CLAUSE 10 (1) (B): POWER TO DESIGNATE BY ORDER A COUNTRY OTHER THAN A MEMBER STATE FOR THE PURPOSES OF REMOVING ASYLUM CLAIMANTS
Power conferred on: The Secretary of State
Power exercisable by: Statutory instrument
Parliamentary Procedure: Negative resolution of either House of Parliament
Other relevant provisions: clauses 61, 62 (1) and (2) and 154 (1), (2) and (5)

94.  Clause 10 (1) (b) re-enacts with modifications section 2 (3) of the 1996 Act. When a country has been designated an asylum claimant can be removed to that country if the Secretary of State certifies that certain conditions, set out in subsection (6) of the clause, are fulfilled and provided the certificate has not been set aside on an appeal under clause 55 (or the time for giving notice of such an appeal has expired and no such appeal is pending). Clause 62 (2) provides that a person who has been or is to be sent to a designated country under clause 10 (1) (b) is not entitled to appeal under clause 55 while he is in the United Kingdom if the Secretary of State certifies that his ECHR allegations are manifestly unfounded. In addition to an appeal under clause 55, such a person has a right of appeal against a certificate under clause 61 (2) but, by virtue of clause 62 (2) this appeal right can only be exercised from outside the United Kingdom.

95.  The reason for conferring the power to designate countries by order is that, because of the limited appeal rights against removal to which such designation gives rise, the Secretary of State will only wish to designate countries when he has up-to-date information on the safety of such countries in terms of their compliance with the 1951 Refugee Convention.

96.  It is submitted that the negative resolution procedure is appropriate. The existing power to designate contained in section 2 (3) of the 1996 Act provides for the affirmative resolution procedure for the first such order and for the negative resolution procedure for subsequent orders. One such order has been made under the 1996 Act (The Asylum (Designated Countries of Destination and Designated Safe Third Countries) Order 1996 (SI 1996/2671)) designating four countries for this purpose. Any subsequent order under the 1996 Act would therefore have been made using the negative resolution procedure and since such orders will now be made under clause 10 (1) (b) it seems appropriate for the negative resolution procedure to apply.

CLAUSE 12: POWER TO REQUIRE FINANCIAL SECURITY TO BE GIVEN WITH RESPECT TO A PERSON APPLYING FOR ENTRY CLEARANCE
Power conferred on: The Secretary of State
Power exercisable by:Statement of changes in Immigration Rules
Parliamentary procedure:Disapproval by resolution of either House of Parliament within the period of 40 days beginning with the date of laying of statement; laying of revised rules within 40 days of resolution
Other relevant provisions:Clause 155(2) of the Bill

97.  Clause 12 provides that the Secretary of State may, through changes to the Immigration Rules, specify circumstances in which a financial security may be required in respect of a person applying for entry clearance before such clearance is given (subsection (1)). Further, the Secretary of State may specify circumstances in which he may accept security with respect to a person who is applying for entry clearance but for whom security is not required, which security will be taken account of in deciding whether or not to give clearance. Under subsection (3), the Secretary of State is given power to provide for different kinds of security other than money which may be so accepted. Subsection (4) requires the Secretary of State to make provision in Immigration Rules as to the circumstances in which the security so provided is to be repaid, released or otherwise cancelled; or is to be forfeited or otherwise realised. Subsection (5) prevents any security being forfeited or realised unless the person concerned has been given an opportunity, in accordance with procedures to be set down in Immigration Rules, to make representations. Subsection (6) provides that, in particular, Immigration Rules under the clause may fix the maximum amount of financial security, the form and manner in which it is to be given or accepted; make provision with regard to its reimbursement; and may make different provision for different descriptions of case.

98.  The purpose of the provision is to allow those seeking to obtain entry clearance and whom the entry clearance officer is not satisfied will abide by the limitation on the period of any leave to enter granted on the basis of the clearance, to provide financial security as a way of showing their bona fides. Pressure for such security to be allowed has arisen in the context of those seeking to visit families in the United Kingdom.

99.  The power has been left to delegated legislation as, whilst it is proposed initially to exercise the powers to enable security to be given in the circumstances set out in the previous paragraph, in the light of experience it is possible that the facility may be found to be potentially useful for others, such as student visitors. As to the circumstances in which an entry clearance officer may require or accept such security, the details may be required to be changed in the light of experience and circumstances, for example if, in order to avoid discrimination, prescribed steps are required to be gone through by the entry clearance officer before requiring provision of the security. The details of the scheme such as the types of security other than money that may be provided, the maximum amount, the form and manner in which it is given or accepted are left to Immigration Rules given the amount of detail that will need to be provided for and the need to enable changes to be made in the light of experience and circumstances. It is proposed that the powers conferred by subsection (4) will be exercised so as to provide for the reimbursement of financial security in the event of a successful claim for asylum under the 1951 Refugee Convention or for protection under the European Convention on Human Rights. These exceptions are not included on the face of the Bill because of the need for the detailed drafting to take account of the rest of the scheme.

100.  Subsection (7) provides for the exercise of the powers conferred under the clause by Immigration Rules. As defined in clause 155(2) of the Bill, this means Immigration Rules made under the 1971 Act. Namely the Rules made under section 3(2) of that Act. Section 3(2) enables the Secretary of State from time to time to lay before Parliament statements of the Rules or of any changes in the Rules laid down by him as the practice to be followed in the administration of the 1971 Act for regulating the entry into and stay in the United Kingdom of persons required by that Act to have leave to enter. Under that section, a statement so laid by the Secretary of State before either House of Parliament may be disapproved by resolution of that House passed within the period of 40 days beginning with the date of laying. If disapproved, the Secretary of State is required as soon as may be to make such changes or further changes in the Rules as it appear to him to be required in the circumstances, so that the statement of those changes is laid before Parliament at the latest by the end of the period of 40 days beginning with the date of the resolution. Special provision is made for periods during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days. It is considered appropriate for the matter to be left to Immigration Rules (as opposed to regulations made by statutory instrument) as entry clearance is essentially a creation of those Rules. The Rules specify when entry clearance is to be given, who is to give it and the consequences of entry clearance given.

CLAUSE 13: POWER TO REQUIRE FURTHER SECURITY ON EXTENSION OF LEAVE GIVEN ON THE BASIS OF ENTRY CLEARANCE OBTAINED BY THE GIVING OF FINANCIAL SECURITY
Power conferred on: The Secretary of State
Power exercisable by:Statement of changes in Immigration Rules
Parliamentary procedure:Disapproval of statement by either House of Parliament within the period of 40 days beginning with date of laying: requirement to lay further changes as a consequence within 40 days of resolution
Other relevant provisions: Clause 155(2) of the Bill

101.  Clause 13 enables the Secretary of State to refuse an application from a person who has obtained limited leave on the basis of the provision of financial security under clause 12 for extension of leave, or for leave to remain for a limited period in the United Kingdom, unless further security of such a kind as he considers appropriate is provided. Subsection (3) provides that Immigration Rules must make provision as to circumstances in which such security is to be paid, released or otherwise cancelled or is to forfeited or otherwise realised by the Secretary of State. Subsection (4) prevents such forfeiture or realisation unless the person concerned has been given the opportunity, under procedures to be set down in Immigration Rules, to make representations.

102.  These powers conferred under subsections (3) and (4) are ancillary to the power to require provision of security under subsection (2).

103.  These matters have been left to delegated legislation because of their detailed nature and the potential need to make adjustments in the light of experience and circumstances.

104.  Subsection (5) applies clause 12(7), so as to provide that the exercise of the powers conferred by the clause are to be by Immigration Rules. By virtue of clause 155(2) "immigration rules" means immigration rules under the 1971 Act, namely under section 3(2) of that Act. Section 3(2) enables the Secretary of State from time to time to lay before Parliament statements of the Rules or of any changes in the Rules laid down by him as the practice to be followed in the administration of the 1971 Act for regulating the entry into and stay in the United Kingdom of persons required by that Act to have leave to enter. Under that section, a statement so laid by the Secretary of State before either House of Parliament may be disapproved by resolution of that House passed within the period of 40 days beginning with the date of laying. If disapproved, the Secretary of State is required as soon as may be to make such changes or further changes in the Rules as it appear to him to be required in the circumstances, so that the statement of those changes is laid before Parliament at the latest by the end of the period of 40 days beginning with the date of the resolution. Special provision is made for periods during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days. It is considered appropriate for the matter to be left to Immigration Rules (as opposed to regulations made by statutory instrument) as entry clearance is essentially a creation of those Rules. The Rules specify when entry clearance is to be given, who is to give it and the consequences of entry clearance given.

CLAUSE 14: POWER TO REQUIRE DISCLOSURE OF PASSENGER INFORMATION
Power conferred on: The Secretary of State
Power exercisable by: Statutory instrument
Parliamentary Procedure: Negative resolution (either House of Parliament)
Other relevant provisions: Clause 154 of the Bill

105.  Clause 14 inserts a new paragraph 27B into Schedule 2 to the 1971 Act. It will allow immigration officers to require owners or agents of ships or aircraft to disclose certain information relating to passengers who are expected to be carried on their ships or aircraft arriving in or departing from the United Kingdom, or which have arrived in or departed from the United Kingdom. New paragraph 27B will complement existing paragraph 27 of Schedule 2 to the 1971 Act, under which the Secretary of State has made an Order requiring captains of ships or aircraft arriving in the United Kingdom to furnish to immigration officers a passenger list showing the names and nationality or citizenship of passengers arriving on board their ships or aircraft and particulars of members of the crew of those ships or aircraft. The types of information about passengers which can be required from owners or agents under new paragraph 27B shall be specified by way of an order made by the Secretary of State (paragraph 27B(9) and (10). The information is to be supplied in such form and manner as the Secretary of State may direct (paragraph (8)(a)), and within such time as is stated in the immigration officer's request (paragraph (8)(b)).

106.  As the types of information about passengers needed for the purposes of effectively operating the United Kingdom's immigration control may be subject to change, it is considered appropriate for delegated legislation to identify them. The Government has made clear that it is not intended that carriers should be required to provide information to which they do not have access. It is further considered that the form and manner in which information is to be provided are proper matters for directions by the Secretary of State, since they are matters of detail.

107.  Paragraph 27B(11) makes an order under this paragraph subject to annulment by either House of Parliament. It is thought negative procedure provides an appropriate level of Parliamentary control, given that the power is limited simply to specifying kinds of information that may be provided.

CLAUSE 16: SUPPLY OF INFORMATION TO THE SECRETARY OF STATE FOR USE FOR IMMIGRATION PURPOSES
Power conferred on: The Secretary of State
Power exercisable by:Order made by Statutory instrument
Parliamentary Procedure:Draft affirmative (each House of Parliament)
Other relevant provisions:Clause 154 of the Bill

108.  Clause 16 will allow information to be supplied to the Secretary of State by the police, the National Criminal Intelligence Service, the National Crime Squad and HM Customs & Excise, in each case for "immigration purposes". Clause 16(3) defines "immigration purposes" and, at (e), allows the Secretary of State by order to add further purposes for which information may be supplied under the clause. The agencies from whom information may be supplied to the Secretary of State under clause 16 are set out in sub-clause (1) which, at (e), also allows the Secretary of State by order to extend the power to supply information to him to other persons holding information for purposes specified in the order.

109.  It is submitted that it is appropriate for such powers to be provided by way of delegated legislation so as to allow the Secretary of State to extend the gateways provided by the clause in the light of developments in the operation of the United Kingdom's immigration control. It is anticipated that there will be other persons and bodies from whom information will be sought by the Secretary of State for "immigration purposes" so as to facilitate effective operation of the control, but it is not possible to identify all of those persons and bodies at this time. Similarly, the Secretary of State may need to use information supplied to him under clause 16 for new immigration-related purposes and it is therefore submitted that it is appropriate to provide him with a power to extend the definition of "immigration purposes" in the way proposed.

110.  Under clause 154(3), this power is subject to the draft affirmative procedure. It is submitted that this affirmative resolution procedure is appropriate for these order-making powers because of their subject matter and the possible implications which any exercise of those powers might have on the rights of the individual, particularly the right to privacy under Article 8 of the European Convention on Human Rights.

CLAUSE 17: DISCLOSURE OF INFORMATION BY THE SECRETARY OF STATE TO OTHER AGENCIES
Power conferred on: The Secretary of State
Power exercisable by:Statutory instrument
Parliamentary procedure:Draft affirmative (each House of Parliament)
Other relevant provisions: Clause 154 of the Bill

111.  Clause 17 will allow for information to be supplied by the Secretary of State to the police, the National Criminal Intelligence Service, the National Crime Squad and the Commissioners of Customs & Excise for the purposes specified in subsections (3), (4), (5) and (6) respectively. Only information held by the Secretary of State in connection with the exercise of functions under immigration legislation will be discloseable by virtue of clause 17.

112.  The clause allows the Secretary of State to extend by order the list of bodies to whom information may be supplied under sub-clause (2). As well as having to specify the person to whom information may be disclosed in that order, the Secretary of State will also need to identify the purposes for which such disclose may be made. The Secretary of State is also to be entitled to extend by order the purposes for which information may be disclosed to a chief officer of police or the Commissioners of Customs & Excise under the clause.

113.  Because the persons to whom certain information should be discloseable by the Secretary of State in the interests of good administration and prevention and detection of crime are subject to change, it is submitted that it is appropriate for the Secretary of State to be able to nominate by order further persons to whom information may be supplied under clause 17 for purposes to be specified in that order. Similarly, as the needs of the police and the Commissioners of Customs & Excise are subject to change from time to time, it is submitted that it is appropriate to allow the Secretary of State by order to specify further purposes for which information may be disclosed to them.

114.  Under subsection (7) "specified" means specified in an order made by the Secretary of State. Under clause 154(1) such an order must be by statutory instrument and under clause 154(3) any such order must be made subject to draft affirmative procedure. It is submitted that this affirmative resolution procedure is appropriate for these order-making powers because of their subject-matter and the possible implications which any exercise of those powers might have on the rights of the individual, particularly the right to privacy under Article 8 of the European Convention on Human Rights.

CLAUSE 18: CODE OF PRACTICE IN CONNECTION WITH SECTION 8 OF ASYLUM AND IMMIGRATION ACT 1996
Power conferred on: The Secretary of State
Power exercisable by:Order made by statutory instrument bringing into effect Code
Parliamentary procedure:Negative resolution

115.  Clause 18 introduces a new section 8A into the 1996 Act. Section 8 of that Act makes it an offence for an employer to employ an employee who is unlawfully in the United Kingdom or whose immigration status does not permit him to work here, if certain conditions are not satisfied. It is a defence for an employer to show that a specified document was produced to him by the employee prior to employment and that a record has been kept of the same. New section 8A requires the Secretary of State to issue a Code of Practice as to the measures which an employer is to be expected to take or not to take to avoid unlawful racial discrimination whilst taking such steps to comply with section 8. Subsections (3) and (4) require the Secretary of State to consult, in preparing a draft of the Code, with the Commission for Racial Equality, the Equality Commission for Northern Ireland and such other organisations and bodies as he considers appropriate; he must then prepare and publish a draft of the proposed Code and consider representations about it. Breach of the Code does not of itself make any person liable to proceedings (subsection (9)) but the Code is admissible in evidence in proceedings under the Race Relations Act 1976 (and in Northern Ireland under the Race Relations (Northern Ireland) Order 1997) before an Employment Tribunal (Industrial Tribunal) (subsection (10)) and may be taken into account in such proceedings so far as relevant (subsection (11)). The Secretary of State is empowered from time to time to revise the Code (subsection (12)).

116.  The purpose of the Code is to give guidance to employers as to their responsibilities under section 8 of the 1996 Act. There is some evidence that, through ignorance or misguided zeal, employers are unlawfully discriminating when carrying out the necessary checks to secure a defence under section 8.

117.  It is considered appropriate to leave the guidance to a Code of Practice given the detail that will be required and the need to revise it from time to time in the light of experience and circumstances. It is also considered appropriate that, given the sensitivities and given the fact that it is to be capable of taking into account in proceedings under the Race Relations Act, for the Code to be brought into force by statutory instrument.

118.  Subsection (5) of the new section 8A requires the Secretary of State, if he decides to proceed with a Code, to lay a draft of the Code before both Houses of Parliament. Such a draft Code may contain modifications to the original proposals made in the light of representations the Secretary of State has received (subsection (6)). Under subsection (7) the Secretary of State may, after laying the draft Code, bring the Code into operation by an Order made by statutory instrument. Under subsection (8), such an Order may contain transitional provisions and savings and is to be subject to annulment in pursuance of a resolution of either House of Parliament.

119.  It is considered appropriate that a negative procedure be adopted, given that the equivalent power in the Race Relations Act 1976 in respect of Codes of Practice drafted by the Commission for Racial Equality and given effect to by the Secretary of State, is subject to a form of negative procedure.

CLAUSE 20: REPORTING SUSPICIOUS MARRIAGES: PROCEDURE
Power conferred on: In England and Wales, the Registrar General with the approval of the Chancellor of the Exchequer; in Scotland, the Registrar General of Births, Deaths and Marriages, with the approval of the Secretary of State; in Northern Ireland, the Secretary of State
Power exercisable by:Regulations made by statutory instrument
Parliamentary procedureNone
Other relevant provisions:Clause 154 of the Bill

120.  Clause 20 imposes a duty on a registration officer to whom notice of marriage is given under the appropriate Marriage Acts in England and Wales, Scotland or Northern Ireland, or before whom a marriage is solemnised, to make a report to the Secretary of State if he has reasonable grounds for suspecting that the marriage will be (or is) a sham marriage. A sham marriage, as defined by subsection (5), is one entered into for immigration purposes. Subsection (3) enables regulations to be made specifying the form and manner in which, and the period within which, the report is to be made.

121.  In England and Wales and in Scotland the regulations are to be made by the relevant Registrar General with the approval of, in England and Wales the Chancellor of the Exchequer and in Scotland the Secretary of State. In relation to Northern Ireland they are to be made by the Secretary of State.

122.  It is considered appropriate that the matter be left to delegated legislation as the regulations will deal with matters of administrative detail as to the form and manner of a report to the Secretary of State and the period in which it is to be given.

123.  Whilst the regulations are to be by statutory instrument, no Parliamentary procedure is to be provided for in accordance with the precedent of the regulations made with regard to other matters concerning the operation of the Registration Service under the Marriage Acts and other relevant legislation by the Registrar General.

CLAUSE 21: POWER TO SPECIFY KINDS OF FACILITIES AT PORTS WHICH THE SECRETARY OF STATE MAY DIRECT TO BE PROVIDED FREE OF CHARGE
Power conferred on: The Secretary of State
Power exercisable by:Order made by statutory instrument
Parliamentary procedure:Negative resolution (either House of Parliament)
Other relevant provisions:Clause 154 of the Bill

124.  Clause 21 provides power for the Secretary of State to direct those responsible for the management of a port to provide him free of charge with such facilities at the port as he may reasonably direct as being necessary for or in connection with the operation of control at the port. Subsection (7) provides that the facilities concerned are accommodation, facilities, equipment and services of a class or description specified in an order made by the Secretary of State.

125.  The purpose of the power is to enable the Secretary of State to set by statutory instrument the parameters within which the power to direct set out in subsection (1) may be exercised, in terms of the extent of the facilities which may be covered.

126.  The matter is considered to be appropriate to be left to subordinate legislation given the level of detail as to what is to be specified as potentially being subject to a direction; and the need to vary the provision in the light of experience and changes in circumstances. For example, orders under new section 3A of the 1971 Act, introduced by clause 1 of the Bill, may make less or more facilities necessary for the operation of the control.

127.  Under clause 154 an order under this power is exercisable by statutory instrument subject to negative resolution. It is considered appropriate to subject orders under this power to negative resolution procedure given that, in many ways, the power is akin to a fee-setting provision. Moreover safeguards exist in subsections (1) (the individual direction must be of such facilities as are reasonably necessary for or in connection with the particular control at the particular port) and subsection (2) (the Secretary of State must consult the person to be affected before giving a direction).


 
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