The Independent Police Complaints Commission (Immigration and Asylum Enforcement Functions) Regulations 2008

Regulation 5(a)

SCHEDULE 1MODIFICATION OF PART 2 OF THE 2002 ACT

1.—(1) Section 10 of the 2002 Act (general functions of the Commission)(1) is modified as follows.

(2) In subsection (1), after “the functions of the Commission” insert “in relation to the exercise by immigration officers of specified enforcement functions and officials of the Secretary of State of specified enforcement functions relating to immigration or asylum”.

(3) In subsection (1)(a), for “police authorities and chief officers” substitute “the appropriate authority”.

(4) In subsection (1)(e)(2) omit “and also of police practice in relation to other matters,”.

(5) Omit subsections (1)(f), (1)(g) and (1)(h)(3).

(6) For subsection (3)(4), substitute—

“(3) In carrying out its functions under subsection (1)(d) and (e) the Commission shall only have regard to the following matters—

(a)the handling of complaints which—

(i)fall within regulation 2(2) of the Complaints Regulations;

(ii)the Commission has notified the appropriate authority that it requires to be referred to it for its consideration; or

(iii)the appropriate authority has referred to the Commission on the grounds that it would be appropriate to do so by reason of—

(aa)the gravity of the subject matter of the complaint; or

(bb)any exceptional circumstances;

(b)the recording of conduct matters which—

(i)fall within regulation 5(1) of the Complaints Regulations;

(ii)the Commission has notified the appropriate authority that it requires to be referred to it for its consideration;

(iii)the appropriate authority has referred to the Commission on the grounds that it would be appropriate to do so by reason of—

(aa)the gravity of the subject matter of the complaint; or

(bb)any exceptional circumstances;

(c)the recording of a DSI matter; and

(d)the manner in which any such complaints or any such matters as are mentioned in paragraph (b) or (c) are investigated or otherwise handled and dealt with.”.

(7) In subsection (4), for “subsections (1) and (3)” substitute “subsection (1)”.

(8) After subsection (4) insert—

“(4A) It shall be the duty of the Commission to carry out its functions under subsection (1) in relation to the following:

(a)any DSI matter;

(b)those complaints falling within paragraph 2(2) of the Complaints Regulations;

(c)those conduct matters falling within paragraph 5(1) of the Complaints Regulations;

(d)those complaints or recordable conduct matters which the Commission has notified the appropriate authority that it requires to be referred to it for its consideration;

(e)those complaints or recordable conduct matters that the appropriate authority has referred to the Commission on the grounds that it would be appropriate to do so by reason of —

(i)the gravity of the subject-matter of the complaint; or

(ii)any exceptional circumstances; and

(f)any matter that is subject to any of the appeal rights set out in Schedule 3.”

(9) In subsection (5)(a)—

(a)for “the chief inspector of constabulary” substitute “the Chief Inspector of the Border and Immigration Agency(5), Her Majesty’s Chief Inspector of Prisons, the Prison and Probation Ombudsman”; and

(b)for “between the Commission and the inspectors of constabulary” substitute “in relation to the exercise by immigration officers of specified enforcement functions and officials of the Secretary of State of specified enforcement functions in relation to immigration or asylum”.

(10) After subsection (5) insert—

“(5A) Until such time as the chief inspector of the Border and Immigration Agency is appointed under section 48 of the UK Borders Act 2007 (establishment of Border and Immigration Inspectorate)(6), subsection (5) shall be read as if his name is omitted.”.

(11) For subsection (7)(7), substitute—

“(7) The Commission may, in connection with the making of any recommendation or the giving of any advice to any person for the carrying out of its function under subsection (1)(e) impose any such charge on that person for anything done by the Commission for the purposes of, or in connection with, the carrying out of that function as it thinks fit.”.

(12) Omit subsections (8) and (9).

2.—(1) Section 11 of the 2002 Act (reports to the Secretary of State)(8) is modified as follows.

(2) For subsection (4) substitute—

“(4) The Commission shall prepare such reports containing advice and recommendations as it thinks appropriate for the purpose of carrying out its function under subsection (1)(e) of section 10.”.

(3) Omit subsections (6)(9), (7), (8)(10), (9) and (9A)(11).

(4) In subsection (10)(12), from the words “under subsection (4)” to the end substitute “under subsection (4) to the Secretary of State and the appropriate authority”.

3.—(1) Section 12 of the 2002 Act (complaints, matters and persons to which Part 2 applies)(13) is modified as follows.

(2) In subsections (1) and (2), for “a person serving with the police” substitute “an immigration officer exercising specified enforcement functions or an official of the Secretary of State exercising specified enforcement functions in relation to immigration or asylum”.

(3) In subsections (2B), (2C) and (2D)(14), for “a person serving with the police” (in each place that it occurs) substitute “an immigration officer exercising specified enforcement functions or an official of the Secretary of State exercising specified enforcement functions in relation to immigration or asylum”.

(4) Omit subsection (7).

4.—(1) Section 14 of the 2002 Act (direction and control matters) is modified as follows.

(2) For subsection (1) substitute—

“(1) Nothing in Part 2 or Schedule 3 shall have effect with respect to so much of any complaint as relates to the direction and control of immigration officers exercising specified enforcement functions or officials of the Secretary of State exercising specified enforcement functions in relation to immigration or asylum by the Secretary of State.”.

(3) For subsection (2) substitute—

“(2) The Secretary of State may issue guidance to any person he sees fit about the handling of so much of any complaint as relates to the direction and control of immigration officers exercising specified enforcement functions or officials of the Secretary of State exercising specified enforcement functions in relation to immigration or asylum.”.

(4) In subsection (3) for “a chief officer and of a police authority” substitute “the appropriate authority”.

5.—(1) Section 15 of the 2002 Act (general duties of police authorities, chief officers and inspectors)(15) is modified as follows.

(2) For the heading of this section substitute “General duties of the appropriate authority and the Secretary of State in relation to immigration or asylum functions”.

(3) For subsection (1) substitute—

“(1) It shall be the duty of the appropriate authority, the Chief Inspector of the Border and Immigration Agency, Her Majesty’s Chief Inspector of Prisons and the Prisons and Probation Ombudsman to ensure that they are kept informed, in relation to the exercise by immigration officers of specified enforcement functions and officials of the Secretary of State of specified enforcement functions in relation to immigration or asylum, about all matters falling within subsection (2).”.

(4) For subsections (1A) and (1B)(16) substitute—

“(1A) Until such time as the Chief Inspector of the Border and Immigration Agency is appointed under section 48 of the UK Borders Act 2007, subsection (5) shall be read as if his name is omitted from those sections.”.

(5) For subsection (3)(17) substitute—

“(3) Where the appropriate authority or the Commission requires the chief officer of a police force to provide a member of his force for appointment under paragraph 17A or 18A of Schedule 3 it shall be the duty of the chief officer to whom the requirement is addressed to comply with it.”.

(6) For subsection (4)(18) substitute—

“(4) It shall be the duty of—

(a)the Secretary of State,

(b)the appropriate authority,

(c)a police authority maintaining a police force, and

(d)the chief officer of police of a police force

to provide the Commission and every member of the Commission’s staff with all such assistance as the Commission or that member of staff may reasonably require for the purposes of, or in connection with, the carrying out of any investigation by the Commission under this Part.”.

(7) For subsection (5)(19) substitute—

“(5) It shall be the duty of the appropriate authority to ensure that a person appointed under paragraph 16, 17, 17A, 18, or 18A of Schedule 3 to carry out an investigation is given all such assistance and co-operation in the carrying out of that investigation as that person may reasonably require.”.

(8) Omit subsections (6) to (10)(20).

6.—(1) Section 16 of the 2002 Act (payment for assistance with investigations)(21) is modified as follows.

(2) In subsection (1)—

(a)in paragraph (a)—

(i)for “one” substitute “a”;

(ii)for “to another” substitute “to the appropriate authority”; and

(iii)omit “or”;

(b)at the end of paragraph (b) insert “or”; and

(c)after paragraph (b) insert—

“(c)a police force provides assistance by agreement under paragraph 17A(2) or 18A(2) of Schedule 3.”.

(3) In subsection (2)(a)(22)—

(a)for “one police force to another” substitute “a police force to the appropriate authority”;

(b)for “the first force (“the assisting force”)” substitute “that force”;

(c)in sub-paragraph (i) for “a member of the other force” substitute “an immigration officer exercising specified enforcement functions or an official of the Secretary of State exercising specified enforcement functions in relation to immigration or asylum”; and

(d)in sub-paragraph (ii)—

(i)for “relevant officer” substitute “person being investigated”; and

(ii)for “a member of the other force” substitute “an immigration officer exercising specified enforcement functions or an official of the Secretary of State exercising specified enforcement functions in relation to immigration or asylum”.

(4) In subsection (2)(b)(23)—

(a)omit “(“the assisting force”)”;

(b)in sub-paragraph (i), for “not a member of that force” substitute “an immigration officer exercising specified enforcement functions or an official of the Secretary of State exercising specified functions in relation to immigration or asylum”; and

(c)in sub-paragraph (ii)—

(i)for “relevant officer” substitute “person being investigated”; and

(ii)for “not a member of that force” substitute “an immigration officer exercising specified enforcement functions or an official of the Secretary of State exercising specified enforcement functions in relation to immigration or asylum” (in each place that it occurs).

(5) In subsection (3)—

(a)for “one police force to another, the police authority maintaining that other police force” substitute “a police force to the appropriate authority or to the Commission or where a police force provides assistance by agreement under paragraph 17A(2) or 18A(2) of Schedule 3, the Secretary of State”;

(b)for “the assisting force” substitute “that force”;

(c)omit “(if any)”; and

(d)in paragraph (b)(ii) omit “, by one police force to another”.

(6) Omit subsection (4) to (7)(24).

7.  Section 16A of the 2002 Act (investigations: National Policing Improvement Agency involvement)(25) is omitted.

8.—(1) Section 17 of the 2002 Act (provision of information to the Commission)(26) is modified as follows.

(2) In subsection (1) for paragraphs (a) and (b) substitute “the appropriate authority”.

(3) In subsection (2)—

(a)for “every police authority and of every chief officer” substitute “the appropriate authority”; and

(b)in paragraph (a) omit “or chief officer”.

(4) In subsection (4)—

(a)for “a police authority or chief officer” substitute “the appropriate authority”; and

(b)in paragraphs (a) and (b) for “that authority, or chief officer” substitute “the appropriate authority”.

(5) Subsection (6) is omitted.

9.—(1) Section 18 of the 2002 Act (inspections of police premises on behalf of the Commission)(27) is modified as follows.

(2) In the heading omit “police”.

(3) In subsection (1)—

(a)in paragraph (a), for sub-paragraphs (i) and (ii) substitute “the appropriate authority”;

(b)for “that force” substitute “immigration officers exercising specified enforcement functions and officials of the Secretary of State exercising specified enforcement functions in relation to immigration or asylum”; and

(c)for “authority or, as the case may be, of the chief officer” substitute “appropriate authority”.

(4) In subsection (2)(28), for “force in question” substitute the “appropriate authority”.

(5) In subsection (3), for “authority or chief officer” substitute “appropriate authority”.

(6) In subsection (5)(b), for “police authorities and chief officers” substitute “the appropriate authority”.

10.—(1) Section 20 of the 2002 Act (duty to keep the complainant informed) is modified as follows.

(2) After subsection (3) insert—

“(3A) The Commission shall consult the appropriate authority before deciding whether or not to disclose that information to the complainant in accordance with subsection (1) or to give directions under subsection (3), and shall have regard to any representations made to it by the appropriate authority.”.

(3) In subsection (8), for “any police authority of chief officer” substitute “the appropriate authority”.

11.—(1) Section 21 of the 2002 Act (duty to provide information for other persons)(29) is modified as follows.

(2) In subsection (1)(30), in paragraph (a) for “an appropriate authority” substitute “the appropriate authority”.

(3) In subsection (3)(q) for “an appropriate authority” substitute “the appropriate authority”.

(4) After subsection (9)(31) insert—

“(9A) The Commission shall consult the appropriate authority before deciding whether or not to disclose that information to the complainant in accordance with subsection (6) or to give directions under subsection (8), and shall have regard to any representations made to it by the appropriate authority.”.

12.—(1) Section 22 of the 2002 Act (power of the Commission to issue guidance)(32) is modified as follows.

(2) For subsection (1) substitute—

“(1) The Commission may issue guidance to the appropriate authority and any person it sees fit concerning the exercise or performance, by the persons to whom the guidance is issued, of any of the powers or duties specified in subsection (2).”.

(3) In subsection (2), in paragraph (b)(iii)—

“(b)(iii)for “persons serving with the police” substitute “immigration officers exercising specified enforcement functions or officials of the Secretary of State exercising enforcement functions in relation to immigration or asylum”.

(4) For subsection (3)(33) substitute—

“(3) Before issuing any guidance under this section, the Commission shall consult the appropriate authority and any person it sees fit.”.

13.—(1) Section 23 of the 2002 Act (regulations)(34) is modified as follows.

(2) In subsection (2)(k)(35), for “a person serving with the police” substitute “an immigration officer exercising specified enforcement functions or an official of the Secretary of State exercising specified enforcement functions in relation to immigration or asylum ”.

(3) In subsection (2)(n), for “police authorities and chief officers” substitute “the Secretary of State”.

(4) In subsection (2)(p)—

(a)for “chief officers” substitute “the appropriate authority”; and

(b)for “them” substitute “it”.

14.—(1) Section 24 (consultation on regulations)(36) is modified as follows.

(2) At the end of paragraph (a) insert “and”;

(3) Omit paragraphs (b) and (c).

15.  Sections 26 (forces maintained otherwise than by police authorities), 26A (Serious Organised Crime Agency)(37) and 26B (National Policing Improvement Agency)(38) of the 2002 Act are omitted.

16.—(1) Section 29 of the 2002 Act (interpretation of Part 2)(39) is modified as follows.

(2) In subsection (1)—

(a)for the definition of “the appropriate authority” substitute—

““the appropriate authority” means a person nominated by the Secretary of State;”;

(b)after the definition of “complaint” insert—

““Complaints Regulations” means the Police (Complaints and Misconduct) Regulations 2004(40);”;

(c)for the definition of “disciplinary proceedings” substitute—

““disciplinary proceedings” means, in relation to an immigration officer exercising specified enforcement functions or an official of the Secretary of State exercising specified enforcement functions in relation to immigration or asylum, any proceedings or management process, other than criminal proceedings or an investigation under paragraphs 16 to 19 of Schedule 3, in which the conduct of such a person is considered in order to determine whether a sanction or punitive measure is to be imposed against him in relation to that conduct;”;

(d)after the definition of “document” insert—

““immigration decision” has the meaning given in section 82(2) of the Nationality, Immigration and Asylum Act 2002;”;

(e)for the definition of “local resolution” substitute—

““local resolution” in relation to a complaint, means the handling of that complaint in accordance with a procedure which does not involve a formal investigation by the Secretary of State,”;

(f)omit the definition of “relevant force”.

(g)omit the definition of “senior officer”.

(h)omit the definition of “serving with the police”.

(3) For (1A) and (1B) insert—

“(1A) In this Part “specified enforcement functions” means, subject to subsections (1B) and (1C)—

(a)powers of entry;

(b)powers to search persons and property;

(c)powers to seize or detain property;

(d)powers to arrest persons;

(e)powers to detain persons;

(f)powers to examine persons or otherwise obtain information (including powers to take fingerprints or to acquire other personal data); and

(g)powers in connection with the removal of persons from the United Kingdom.

(1B) The following shall not be regarded as an enforcement function—

(i)the making of an immigration decision;

(ii)the making of any decision to grant or refuse asylum; or

(iii)the giving of any directions to remove persons from the United Kingdom.

(1C) For the avoidance of doubt, references to “specified enforcement functions” in subsection (1A) include their exercise in connection with any authorisation granted under Part 2 of the Regulation of Investigatory Powers Act 2000.”.

(4) In subsection (3)—

(a)for paragraph (a) substitute—

“(a)an immigration officer exercising specified enforcement functions; or”;

(b)for paragraph (b) substitute—

“(b)an official of the Secretary of State exercising specified enforcement functions in relation to immigration or asylum”; and

(c)omit paragraphs (c) and (d).

(5) In subsection (4)—

(a)in paragraph (a) for “chief officer” substitute “person”; and

(b)for “to (d)” substitute “or (b)”.

(6) In subsection (6), for “17, 18” substitute “17, 17A, 18, 18A”.

(7) Omit subsection (7).