|Immigration And Asylum Bill - continued||House of Lords|
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Clause 124: Entry and search of premises following an arrest under section 25(1) of the 1971 Act
315. This clause gives an immigration officer the power, with the written consent of a senior immigration officer (except where obtaining such consent would impede the effectiveness of the investigation), to enter and search any premises occupied or controlled by a person arrested for the offence in section 25(1) of the 1971 Act. As with other similar powers, this power may be exercised only if the officer has reasonable grounds for suspecting that there is relevant evidence on the premises and only to the extent that it is reasonably required for the purpose of discovering such evidence.
Clause 125: Searching arrested persons
316. This clause adds a new section 28G to Part III of the 1971 Act and a new paragraph 25B to Schedule 2 to that Act. Where someone has been arrested, other than at a police station, for an offence under Part III or has been arrested under Schedule 2 of the 1971 Act, an immigration officer will be allowed to search them if the immigration officer has reasonable grounds for believing that the arrested person may present a danger to himself or others. In addition, the arrested person may be searched for anything which might be used to assist his escape from lawful custody or anything which might be evidence relating to the offence under Part III or, in the case of Schedule 2, which might establish his identity, nationality or citizenship or indicate the place from which he has travelled to the United Kingdom or to which he is proposing to go. The power may be used only if the officer has reasonable grounds for believing that the arrested person may have these things concealed on him and only to the extent that it is reasonably required for the purpose of discovering that thing. Items which may be searched for under these powers may be seized and retained apart from items subject to legal privilege. Items which might be used to inflict injury or assist in an escape which were seized under Schedule 2 powers must be returned once the person is either no longer in custody or in the custody of a court but released on bail.
Clause 126: Searching persons in police custody
317. This clause will allow an immigration officer to search somebody who has been arrested for an offence under either Part III or Schedule 2 of the 1971 Act and is in custody at a police station (or, additionally, in the case of Part III, in police detention at a place other than a police station). The arrested person may be searched at any time to see whether he has with him anything which he might use to cause physical injury to himself or others, to damage property, to interfere with evidence or to assist his escape. He may also be searched under Part III for anything the officer has reasonable grounds for believing is evidence relating to the offence or (in the case of Schedule 2) a document which might establish his identity, nationality or citizenship or indicate the place from which he has travelled to the United Kingdom or to which he is proposing to go. The intention is not to duplicate searches but to allow an immigration officer to carry out a search where he is the arresting officer.
318. This power of search may be exercised only to the extent considered necessary for the purpose of discovering such items, must be carried out by a person of the same sex as the person being searched and does not permit an "intimate search" (as defined by section 65 of PACE). If any items of the kind described are found they may be seized. The person from whom something is seized must be told why it is being taken unless he is violent, or appears likely to become violent, or is incapable of understanding what is said to him. Anything that is seized under these powers may be retained either by the police or by an immigration officer (depending on the nature of the item). However, an immigration officer may not retain anything seized under Schedule 2 powers for longer than is necessary or when the person from whom it was seized is either no longer in custody or has been released on bail.
Clause 127: Access and copying
319. This clause lays down certain conditions relating to the handling of material which has been seized by an immigration officer under the new powers. The occupier of the premises on which the material was seized - or the person who had custody or control of material immediately before it was seized - must be given a record of what was seized within a reasonable time if they ask for this to be done. The clause goes on to provide that the person who had custody or control of seized material immediately before it was seized or someone acting on their behalf must also be given access (under supervision) to the seized material and, if they so request, a photograph or copy of the material unless there are reasonable grounds for believing that to do so would prejudice any investigation being conducted under the 1971 Act or any criminal proceedings or the exercise of any functions in connection which the material was seized.
Clause 132: Fingerprinting
320. This clause extends the current power to fingerprint those subject to immigration control contained in paragraph 18(2) of Schedule 2 and paragraph 2(4) of Schedule 3 to the 1971 Act and section 3 of the Asylum and Immigration Appeals Act 1993 (which is repealed by this Bill and consolidated with the new powers).
321. Subsection (3) provides that fingerprints cannot be taken from a child under the age of sixteen unless an adult is present who fulfils one of the criteria set out in the remainder of the subsection. Subsection (3)(a) specifies that the adult can be the child's parent or guardian. Subsection (3)(b) specifies that the person can be an adult who has temporarily taken responsibility for the child, for example, a social worker.
322. Subsection (5) sets out those categories of person who are authorised to take fingerprints. They are:
(a) a constable (this includes all police ranks);
(b) an immigration officer (which includes a chief immigration officer or an inspector);
(c) a prison officer (of any rank);
(d) an officer of the Secretary of State authorised for this purpose (IND staff at Croydon might be authorised for this purpose); or
(e) a person employed by a contractor in connection with the discharge of the contractor's duties under a detention centre contract. In effect, this means that the staff who are employed to manage the day-to-day running of a detention centre would be able to take the fingerprints of detainees if they were liable to be fingerprinted under this clause.
323. Subsection (7)(a) provides that fingerprints can be taken from an individual (category A) who, when required on arrival to produce a valid passport or some other form of documentation (eg a national identity card) that establishes their identity and nationality or citizenship, fails to do so. But subsection (10) provides that fingerprints can only be taken under subsection (7)(a) if an immigration officer considers that the person concerned did not have a reasonable excuse for failing to produce the documentation.
324. Subsection (7)(b) provides that fingerprints can be taken from any person (category B) who has been refused leave to enter the United Kingdom but is given temporary admission pending removal from the United Kingdom where the immigration officer reasonably suspects that the individual concerned will not comply with the reporting or residence requirements of that temporary admission. Subsection (11) provides that fingerprints cannot be taken from a person in category B unless this has been approved by a chief immigration officer.
325. Subsection (7)(c)(i) provides that fingerprints can be taken where an immigration officer has given removal directions in respect of illegal entrants, overstayers, those who breach the conditions of their temporary admission, those who have obtained leave to remain by deception, and the dependants of any of these (category C). Subsection (7)(c)(ii) provides that fingerprints can be taken where the Secretary of State gives directions in respect of illegal entrants and subsection (7)(c)(iii) provides for fingerprints to be taken where removal directions have been given in respect of someone who is subject to a deportation order.
326. Subsection (7)(d) provides for fingerprints to be taken from those individuals (category D) who have been arrested under paragraph 17 of Schedule 2 to the Immigration Act 1971 Act.
327. Subsection (7)(e) provides for an asylum seeker's (category E) fingerprints to be taken.
328. Subsection (7)(f) provides that dependants (category F), as defined by subsection (12), of those persons in categories A to E can have their fingerprints taken. Subsection (12) defines the term dependant for these purposes as a spouse or child under the age of eighteen who does not have right of abode or indefinite leave to enter or remain in the United Kingdom. This means, for example, that where a person in category A - E has a spouse or child who is a British citizen, the British citizen will not have their fingerprints taken under this clause.
Clause 133: Attendance for fingerprinting
329. This clause provides for a person who is liable to be fingerprinted to attend for fingerprinting at a specified place. It also gives certain time limits within which this must take place. In addition, it also provides a constable or immigration officer with the power to arrest without warrant anyone who fails to comply with the conditions as set out in this section.
Clause 134: Destruction of fingerprints 330. This clause provides for the destruction of fingerprint records and sets out the time frame within which this must happen.
331. Subsection (5) provides that where a person has failed to comply with the conditions imposed on him under paragraph 21(2) of Schedule 2, then subsection (4) will not apply. This means that where an individual has absconded from temporary admission his fingerprints can be retained.
332. Subsection (8) provides for the destruction of fingerprints taken from those arrested under Schedule 2 of the 1971 Act (referred to as "D" in clause 132) once they are released.
Clause 135: Other methods of collecting data about physical characteristics333. This clause provides the Secretary of State with a power to make regulations to enable data to be collected about people's external physical characteristics other than by taking fingerprints. By virtue of clause 154(3), these regulations are to be made by the affirmative resolution procedure. This clause has been included to take account of the new systems of identification that are currently being developed which will eventually provide an alternative means of uniquely identifying individuals to replace fingerprinting.
Clause 136: Use of force
334. This clause confers on immigration officers the power to use reasonable force, if necessary, in the exercise of the powers under the 1971 Act or the provisions of this Bill. In addition, it provides for immigration officers, prison officers, constables, authorised officers of the Secretary of State and employees at detention centres to use reasonable force when exercising the power to take fingerprints under section 132 or 133 of this Bill.
335. Paragraph 54 makes it clear that the powers of immigration officers, prison officers and the police, contained in paragraph 18(2) of Schedule 2 to the 1971 Act, to take all "reasonable necessary" steps to confirm the identity of someone who is detained under paragraph 16 of Schedule 2 or paragraph 2 of Schedule 3 to the 1971 Act includes the power to take fingerprints. Paragraph 63(4) amends PACE to provide that the power to fingerprint under the PACE does not affect the power to fingerprint under this Bill.
336. Paragraph 73(4) amends the Police and Criminal Evidence (Northern Ireland) Order 1989 to provide that the power to fingerprint under the Order does not affect the power to fingerprint under this Bill.
Part VIII: Detention centres and detained persons
337. This part of the Bill is concerned with placing on a statutory footing the operation and management of immigration detention centres which are used solely to hold those detained under the provisions of the 1971 Act. In particular, it sets out the powers and responsibilities of detainee custody officers and requires the introduction of statutory rules for the regulation and management of detention centres.
Clause 138: Management of detention centres
338. This clause requires the appointment of a detention centre manager at every detention centre. In the case of contracted-out centres, the appointed person must be a detainee custody officer whose appointment is approved by the Secretary of State. In appointing a manager of a contracted-out centre the Secretary of State will have regard to the experience and qualities necessary for running a custodial institution. The clause also provides that the functions of detention centre managers will be set out in detention centre rules.
339. The clause requires that detention centre managers who are private contractors must not deal with disciplinary matters in relation to detainees, nor may they authorise segregation or restraint of detainees other than in an emergency. These powers are similar to those given to Directors of private prisons.
Clause 139: Contracting-out of certain detention centres
340. The clause allows the Secretary of State to contract out the provision or running of detention centres or parts of detention centres. The clause also provides for the Secretary of State to appoint a contract monitor, who will be a Crown servant, for each contracted-out centre; sets out the key functions of the monitor; and requires the contractor to assist the monitor in the exercise of these functions.
Clause 140: Contracted-out functions at directly managed detention centres
341. This clause allows the Secretary of State to enter into a contract for the fulfilment of specific functions at a detention centre which is being directly managed by the Home Office. For example, it will allow medical facilities, catering or sanitation services to be contracted out to the private sector, while the operation and management of the centre would remain the responsibility of the Secretary of State. Equally, it would allow detainee custody officers, or prisoner custody officers, to be provided by another person, while management of the centre would remain a matter for the Secretary of State. There are currently no detention centres that are directly managed, nor are there any plans to introduce any in the foreseeable future, but the Government considers that it would be imprudent to rule out the possibility at some future point.
Clause 141: Intervention by the Secretary of State
342. This clause sets out the circumstances in which the Secretary of State can intervene in the management of a detention centre and the appointment of a Controller. The powers of the Controller are set out and provision is made for termination of his appointment by the Secretary of State. It is envisaged that only a person with sufficient relevant experience will be appointed as a Controller and that this person will take charge of a centre for a temporary period, until order is restored.
Clause 142: Visiting Committees and inspections
343. This clause provides for the appointment of Visiting Committees for every detention centre and makes provision for the functions of those committees to be set out in detention centre rules. In particular, the clause requires that the rules should include functions of the type listed in subsection (3). Every member of a Visiting Committee for a detention centre is entitled to enter the centre at any time and have free access to any part of it and to every person detained there. Visiting Committee members are drawn from a wide range of occupational backgrounds, reflecting the needs of detained persons, and are subject to Home Office departmental security checks before being appointed.
Clause 143: Detention centre rules
344. This clause provides that the Secretary of State must make rules for the operation and management of detention centres. The rules may in part extend to certain other facilities, in particular short-term holding facilities at ports of entry, where detained persons may be held for short periods prior to their transfer to detention centres or removal.
Clause 144: Detainee custody officers
345. This clause sets out the arrangements for the appointment of detainee custody officers. It provides for the Secretary of State to issue certificates of authorisation without which they will not be allowed to perform custodial or escort functions. All detainee custody officers will be subject to pre-employment checks in addition to Home Office departmental security vetting.
Clause 145: Custodial functions and discipline etc. at detention centres
346. This clause establishes that only detainee custody officers or, in certain circumstances, prison officers or prisoner custody officers, may discharge custodial functions at detention centres.
Clause 146: Arrangements for the provision of escorts and custody
347. This clause allows the Secretary of State to make arrangements for the escorting of detained persons by contract or otherwise. It provides a regulatory framework for the movement and escorting of detained persons which is designed to be transparent and to safeguard staff, detainees and members of the public.
Clause 147: Wrongful disclosure of information
348. This clause creates an offence of disclosure, by certain persons employed at detention centres or in accordance with escort arrangements, of information relating to detained persons. The offence will apply to information acquired in the course of employment where disclosure is made outside the course of duty and has not been authorised by the Secretary of State. This will not prevent detainee custody officers from disclosing information when ordered to do so by a court, nor is the offence restricted only to information about those currently detained.
Clause 148: Power of constable to act outside his jurisdiction
349. This clause provides constables who are engaged in undertaking escorts of detainees with the power to conduct such escorts outside their jurisdiction.
Schedule 10: Detainee custody officers
350. This Schedule makes further provision relating to detainee custody officers and, where relevant, has symmetry with provisions in the Criminal Justice Act 1991 relating to prisoner custody officers. Paragraph 1 creates an offence of obtaining a certificate of authorisation by false pretences, and paragraphs 4 and 5 create offences of assaulting or obstructing detainee custody officers acting in the course of their duties. These mirror existing offences in relation to prisoner custody officers at privately manned prisons.
351. Paragraph 2 details the powers and duties of detainee custody officers when exercising custodial functions, and paragraph 3 allows any detainee custody officer to perform functions of a custodial nature at a short-term holding facility. This reflects the limited scope and transitory nature of such facilities. The Schedule also provides in paragraph 6 that detainee custody officers performing escorting functions should be readily identifiable before an offence can be committed in the escort context under paragraphs 4 and 5. It also provides for the suspension and revocation of certificates of authorisation so that the Secretary of State has powers to deal, in appropriate circumstances, with detainee custody officers who are subject to complaints or disciplinary proceedings.
Schedule 11: Discipline etc. at detention centres
352. Paragraph 1 allows detention centre rules to make provision for the measurement and photographing of detained persons. Paragraph 2 provides powers, similar to those available in private prisons, to require detained persons to be tested for drugs and alcohol. Paragraph 3 provides powers to require detained persons to be medically examined where there are reasonable grounds for believing that they are suffering from highly contagious diseases to be specified by order and where an authorisation has been given by the Secretary of State and is in force.
353. The Schedule also creates offences of helping a detainee to escape or attempt to escape from a detention centre and of importing any alcohol or other thing into detention centres, contrary to detention centre rules. These reflect equivalent offences which already exist in respect of prisons.
354. The Schedule also provides for the posting of penalty notices at detention centres, which are intended to draw attention to the penalties to which a person may be liable if he commits an offence under paragraphs 4, 5 or 6 of this Schedule.
Schedule 12: Escort arrangements
355. Paragraph 1 provides for the appointment of a Crown servant as an escort monitor and sets out his various duties. Paragraph 2 details powers and duties of detainee custody officers when escorting detained persons which mirror those available to those exercising custodial functions. Paragraph 3 makes provision in relation to detained persons who breach the disciplinary provisions of detention centre rules while under escort, providing that such persons will be deemed, for the purposes of disciplinary action, to be in the custody of the head of the establishment to which they are being escorted.
Part IX: Registrar's certificates : procedure
356. Part IX of the Bill makes procedural changes designed to tackle abuse of the immigration system by those who are prepared to enter into marriage for the purpose of evading immigration control. There is evidence to show that a large number of sham marriages are being contracted in the United Kingdom every year.
357. Part IX is to be read with clause 20, which places a duty on superintendent registrars to notify immigration authorities of suspected cases of sham marriages. Part IX amends the Marriage Act 1949, which applies to England and Wales, to ensure that both parties attend to give notice of marriage, thus giving the superintendent registrar the opportunity to meet both parties and to obtain suitable documentation from them as to their name, age, marital status (where someone has been previously married) and nationality. The provisions also allow only one procedure for giving notice by reducing the existing 21 day waiting period to a 15 day notice period (which can be reduced on the authority of the Registrar General in exceptional circumstances) and abolishing the existing licence procedure by which parties can currently give one day's notice of their intention to marry. Part IX also applies to Northern Ireland in respect of evidence of name, age, marital status and nationality and amends the Marriages (Ireland) Act 1844 and the Marriage Law (Ireland) Amendment Act 1863.
358. The proposals apply to all civil marriages and to religious marriages after civil preliminaries. The Bill does not extend to marriages after ecclesiastical preliminaries because the procedure involved is considered already sufficiently detailed to ensure that the system is not abused for immigration advantage. There is no evidence that religious marriages after ecclesiastic preliminaries are abused for immigration advantage.
Clause 149: Abolition of certificate by licence
359. At present in England and Wales notice by civil preliminaries may be given either by certificate (which requires a 21 day waiting period) or by licence (where there is a one day waiting period). For England and Wales this clause provides for the existing procedures to be replaced by a single procedure with a 15 day waiting period, with a discretion vested in the Registrar General to reduce in exceptional circumstances.
360. Subsections (1)-(4) remove references in the Marriage Act 1949 to marriages "with licence" and remove references to the notification period of 21 days and substitute 15 days. Subsection (5) amends the Marriage Act 1949 to empower the Registrar General to reduce the 15 day notice period in exceptional circumstances, eg unforeseen work contracts or military service in a foreign country, or serious illness of a close relative. The Registrar General is given power to make procedural regulations and to delegate his authority to a superintendent registrar in prescribed circumstances with provision for an appeal to the Registrar General against the superintendent registrar's refusal to reduce the 15 day waiting period. Provision is made for fees to be prescribed.
Clause 150: Notice of marriage
361. At present in England and Wales, for a certificate without licence where both parties to the marriage reside in the same registration district, only one notice of marriage is required. Where they reside in different registration districts, notice must be given in each district, although there are no restrictions as to which party should give that notice. This clause amends the Marriage Act 1949 so that each party is required to appear personally before the superintendent registrar to give notice of marriage in the registration district where they reside. It also adds to the matters that have to be stated a requirement to state nationality and applies this to Northern Ireland.
362. For marriages in England and Wales, subsection (1) results in a duty on both partners to give notice; subsection (2) results in a duty to give details of nationality; subsection (3) means that marriages may only be solemnised on production of two superintendent registrar's certificates, ie one from each party; and subsection (4) provides for details of nationality to be stated in a notice of marriage given in Northern Ireland.
Clause 151: Power to require evidence
363. At present there is no obligation on parties wishing to be married to produce any documentary evidence to a registrar. This clause empowers registrars to request specified evidence in order to establish the name and surname, age, marital status and nationality of the person giving notice. A superintendent registrar may also request specified evidence relating to the other party to the proposed marriage in exceptional circumstances, for example where the evidence seen leads the registrar to suspect that the information given in respect of that party may be inaccurate. Such evidence may be requested at any time after notice of marriage has been given but only up until the superintendent registrar's certificates for the marriage have been issued. Subsection (1) applies the power to England and Wales and amends the Marriage Act 1949. Subsection (2) applies the power to Northern Ireland and amends the Marriage Law (Ireland) Amendment Act 1863.
|© Parliamentary copyright 1999||Prepared: 21 June 1999|