Select Committee on Delegated Powers and Deregulation Twenty-Second Report


ANNEX

IMMIGRATION AND ASYLUM BILL
Memorandum by the Home Office

PART II: CARRIERS' LIABILITY

CLAUSE 25: POWER TO PRESCRIBE PENALTIES FOR CLANDESTINE ENTRANTS: THE PERIOD WITHIN WHICH SUCH A PENALTY MUST BE PAID; AND CONTROL ZONES OUTSIDE THE UNITED KINGDOM IN WHICH RELEVANT IMMIGRATION CONTROL IS EXERCISED
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:Clauses 154 and 155 of the Bill

128.  Clause 25 imposes a civil penalty on those responsible for carrying a clandestine entrant (as defined) to the United Kingdom. Under subsection (2) the penalty is to be of the prescribed amount. Under subsection (3) the penalty is to be paid before the end of the prescribed period.

129.  A clandestine entrant is a person who: passes or attempts to pass through immigration control concealed in a vehicle; arrives in the United Kingdom concealed in a vehicle, ship or aircraft; or arrives in the United Kingdom on a ship or aircraft having embarked thereon concealed in a vehicle; in each case being a person who claims or intends to seek asylum in the United Kingdom or who evades or attempts to evade immigration control. For these purposes, immigration control means United Kingdom immigration control and any United Kingdom immigration control operated in a prescribed control zone outside the United Kingdom.

130.  By virtue of clause 155(1), "prescribed" means prescribed by regulations made by the Secretary of State. Under clause 154, the regulations are to be made by statutory instrument subject to annulment by either House of Parliament.

131.  Each of these matters to be prescribed may require to be changed in the light of experience and circumstances. In particular the fee will require updating from time to time, if only to take account of inflation. The relevant control zones may from time to time change. At present, the only relevant control zone in which UK immigration control is operated abroad is at Coquelles for the purposes of the "Le Shuttle" train service through the Channel Tunnel (as a result of an order under section 11 of the Channel Tunnel Act 1987). Initially, that will be the only control zone prescribed but it may be that other control zones will exist in future.

132.  It is considered that negative resolution procedure is appropriate for these matters of detail. The power to set the level of the charge under the Immigration (Carriers' Liability) Act 1987 (which is to be replaced by clause 32 of the Bill) is subject to negative procedure.

CLAUSE 26: POWER TO ISSUE CODE OF PRACTICE TO BE FOLLOWED BY PERSON OPERATING SYSTEM TO PREVENT CARRIAGE OF CLANDESTINES
Power conferred on: The Secretary of State
Power exercisable by:Code of Practice to be brought into force by an Order made by statutory instrument
Parliamentary procedure:Negative resolution (either House of Parliament)
Other relevant provisions:Clause 154 of the Bill

133.  Clause 27(3) of the Bill provides a defence against the civil penalty imposed under clause 25, where a carrier can show: that he did not know and had no reasonable grounds for suspecting a clandestine entrant was concealed in his transporter; that an effective system for preventing the carriage of clandestine entrants was in operation in relation to the transporter; and had been carried out on the occasion in question. Clause 26 provides that the Secretary of State must issue a Code of Practice to be followed by any person operating a system for preventing the carriage of clandestine entrants. Under clause 27(4), the Code is to be taken into account for the purpose of considering whether, for the purposes of the defence in section 27(3) a system preventing the carriage of clandestines was "effective".

134.  Under subsection (4) the Secretary of State may revise the Code or any part thereof from time to time.

135.  The matter has been left to a Code of Practice because of the detail to be provided. A code, rather than regulations, is to be used as, whilst the code is to be to be taken into account for the purpose of establishing whether the defence has been made out, it is not to be conclusive of whether a system is effective. That can be shown by other ways; and compliance with the code may in the circumstances of the case not be sufficient in itself. Given, however, the force that the Code is to have under clause 27(4) it is considered appropriate to bring the Code into force by Order.

136.  Under clause 154 of the Bill, the order is to be made by statutory instrument subject to annulment by resolution of either House of Parliament. Given the limited effect of the Code, it is considered that negative procedure is appropriate.

CLAUSE 28: POWER TO PRESCRIBE PERIOD WITHIN WHICH A NOTICE OF OBJECTION TO THE IMPOSITION OF A CIVIL PENALTY MUST BE GIVEN; AND POWER TO PROVIDE FOR DEFAULT SERVICE ON PERSONS IN RELATION TO DETACHED TRAILERS
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:Clauses 31(definition of "detached trailer"), 154 and 155(1) of the Bill

137.  Clause 28 provides the procedure for the imposition of a civil penalty under clause 25. The Secretary of State is required to issue a penalty notice if he concludes that a person is responsible for one or more civil penalties for carrying clandestines. A person on whom a penalty notice is served is permitted to give a notice of objection to the Secretary of State if he considers he is not liable to one or more of the penalties specified in the notice. Such a notice of objection must, under subsection (7)(b) be given before the end of such period as may be prescribed. If such a notice is given then under subsection (8) the Secretary of State is required to consider it and determine whether or not the penalty to which it relates is payable.

138.  Subsection (9) concerns the service of penalty notices where clandestines are found in a detached trailer as defined in clause 31. That is to say any trailer, caravan or other thing designed or adapted for towing by vehicle which has been detached for transport. The Secretary of State may make regulations providing for the notice to be served otherwise than on the responsible person concerned so as to have effect as if it had been properly served on the responsible person. The reason for the power is that such detached trailers may not be accompanied by any person on whom a notice may be served. An immigration officer's powers to detain as security the detached trailer under clause 29 is only triggered if a notice has been served, so the power of detention would be ineffective if service could not be quickly effected. The present power enables regulations allowing service by alternative means, such as the affixing of the notice on the trailer concerned. Whilst there will be consultation of the industry, the current intention is to specify service by the latter means.

139.  The matters are considered appropriate to be left to subordinate legislation as they are matters of detail only; and the provision made may be required to be varied in the light of experience and circumstances.

140.  Clause 155(1) defines "prescribed" as prescribed by regulations. Clause 154(1) provides for regulations to be made under the Act to be made by statutory instrument. As matters of detail, it is considered that the use of the negative resolution, as provided under clause 154, is appropriate.

SCHEDULE 1, PARAGRAPH 2: PRESCRIBED STEPS TO BE TAKEN TO BRING NOTICE OF SALE OF DETAINED TRANSPORTER TO THE NOTICE OF INTERESTED PERSONS
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:Clauses 154 and 155(1) of the Bill

141.  Clauses 29 and 34 allow the detention of vehicles and relevant ships and aircraft as security for the payment of, respectively, the civil penalty imposed under clause 25 of the Bill and charges in respect of inadequately documented passengers under clause 32. If the penalty or (as the case may be) charge is not paid within 84 days the Secretary of State may sell the same (clause 30(4) and 34(4)). Schedule 1 governs sale of such transporters, which require the leave of the Court. Paragraph 2 of the Schedule requires the Secretary of State to take such steps as may be prescribed for bringing the proposed sale to the notice of interested persons and for affording such persons the opportunity to become a party to proceedings.

142.  "Prescribed" means prescribed by regulations made by the Secretary of State (clause 155(1)). Any power is exercisable by statutory instrument (clause 154(1)).

143.  The matter is left to subordinate legislation as a matter of detail and as a matter which may require change from time to time in the light of experience and circumstances.

144.  As a matter of detail, it is considered appropriate to subject Orders to the negative resolution procedure.

SCHEDULE 1, PARAGRAPH 5: POWER TO PROVIDE FOR APPLICATION OF PROCEEDS OF SALE OF TRANSPORTER AND ORDER OF PRIORITY OF PAYMENTS
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 and 155(1) of the Bill

145.  The circumstances in which transporters may come to be sold under Part II of the Bill is explained in the discussion of the previous power. Paragraph 5 of Schedule 1 provides that the proceeds of any sale are to be applied in making prescribed payments and according to such priorities of payments as may be prescribed. Paragraph 5(2) specifies in particular how the proceeds of sale can be applied by the regulations.

146.  The matter is considered to be appropriate to be left to subordinate legislation given the degree of detail which the priority rules and list of payments will have to descend to. For not only are vehicles of every description included but also ships and aircraft. In case of the latter in particular, there are various security interests to be taken account of. The power will have to be exercised rationally; and it would not be rational for the Secretary of State to fail to provide for any surplus to be given to the owner or any persons holding security in the transporter. Nor would an exercise in that way be consistent with Article 1 of Protocol 1 of the ECHR. It is not possible under the power to provide that any of the proceeds are to be simply paid into the Consolidated Fund (Schedule 1 does not refer to in clause 151(2)).

147.  The use of negative procedure is thought appropriate given the limited and detailed nature of the power conferred.

CLAUSE 32: POWER TO PRESCRIBE AMOUNT OF CHARGE FOR CARRYING INADEQUATELY DOCUMENTED PASSENGERS
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:Clauses 154 and 155(1) of the Bill

148.  Clause 32 enables the Secretary of State to impose a charge on the owner of a ship, aircraft or road passenger vehicle or train operator who carries to the United Kingdom a person who is inadequately documented. That is to say a person who, on being required to do so by an immigration officer, fails to produce a valid passport or other document satisfactorily establishing his identity or nationality or citizenship; and, if required a visa of the requisite kind.

149.  Under subsection (2) the amount of the charge is £2,000 or such other sum as may be prescribed.

150.  Under clause 155(1), "prescribed" means prescribed by regulations made by the Secretary of State. Under clause 154(1) such regulations are to be made by statutory instrument.

151.  The purpose of the power is to enable the level of the charge, set at £2,000 in subsection (2) of that clause, to be uplifted in the light of changes in circumstances, in particular to take into account inflation. Clause 32 re-enacts with modifications section 1 of the Immigration (Carriers' Liability) Act 1987. Section 1(1) of that section contains equivalent power to prescribe the amount of the charge.

152.  Under clause 154 the regulations are subject to negative procedure. This follows the precedent of section 1 of the 1987 Act.

CLAUSE 33: POWER TO REQUIRE TRANSIT PASSENGERS TO HOLD TRANSIT VISAS
Power conferred on: The Secretary of State
Power exercisable by:Order made by statutory instrument
Parliamentary procedure:Negative resolution (either House)
Other relevant provisions:Clause 149 of the Bill

153.  Clause 33 enables the Secretary of State by order to require transit passengers, that is persons travelling through the United Kingdom without entering the United Kingdom, to hold a transit visa. Under subsection (3) the order: may specify description of persons who are to hold such visas by reference to nationality, citizenship, origin or other connection with a particular country but not by reference to race, colour or religion; may not provide for the requirement for a transit visa to apply to any person who has the right of abode in the United Kingdom; may provide for exemptions from the requirement to hold a transit visa; and may make provision about the methods for application for the same.

154.  Clause 33 re-enacts without substantive amendment section 1A of the Immigration (Carriers' Liability) Act 1987, inserted by section 12 of the 1993 Act. The power enables transit visas to be required of those nationalities who present the highest risk to the United Kingdom's immigration control.

155.  The matter is appropriate to be left to delegated legislation because the nationalities concerned and the procedures to be adopted will by necessity change from time to time. The list of nationalities is kept under review so as to ensure that transit visas are only required where necessary.

156.  Negative procedure is considered appropriate, given that it may be necessary for transit visa requirements to be imposed at very short notice. This may be because of an urgent threat to the immigration control; or because of the need to avoid too much advance notice triggering very large numbers of last minute travellers.


 
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