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Part IE+W+S+N.I. Immigration: General

Leave to enter, or remain in, the United KingdomE+W+S+N.I.

1 Leave to enter.E+W+S+N.I.

In the 1971 Act, after section 3, insert—

3A Further provision as to leave to enter.

(1)The Secretary of State may by order make further provision with respect to the giving, refusing or varying of leave to enter the United Kingdom.

(2)An order under subsection (1) may, in particular, provide for—

(a)leave to be given or refused before the person concerned arrives in the United Kingdom;

(b)the form or manner in which leave may be given, refused or varied;

(c)the imposition of conditions;

(d)a person’s leave to enter not to lapse on his leaving the common travel area.

(3)The Secretary of State may by order provide that, in such circumstances as may be prescribed—

(a)an entry visa, or

(b)such other form of entry clearance as may be prescribed,

is to have effect as leave to enter the United Kingdom.

(4)An order under subsection (3) may, in particular—

(a)provide for a clearance to have effect as leave to enter—

(i)on a prescribed number of occasions during the period for which the clearance has effect;

(ii)on an unlimited number of occasions during that period;

(iii)subject to prescribed conditions; and

(b)provide for a clearance which has the effect referred to in paragraph (a)(i) or (ii) to be varied by the Secretary of State or an immigration officer so that it ceases to have that effect.

(5)Only conditions of a kind that could be imposed on leave to enter given under section 3 may be prescribed.

(6)In subsections (3), (4) and (5) “prescribed” means prescribed in an order made under subsection (3).

(7)The Secretary of State may, in such circumstances as may be prescribed in an order made by him, give or refuse leave to enter the United Kingdom.

(8)An order under subsection (7) may provide that, in such circumstances as may be prescribed by the order, paragraphs 2, 4, 6, 7, 8, 9 and 21 of Part I of Schedule 2 to this Act are to be read, in relation to the exercise by the Secretary of State of functions which he has as a result of the order, as if references to an immigration officer included references to the Secretary of State.

(9)Subsection (8) is not to be read as affecting any power conferred by subsection (10).

(10)An order under this section may—

(a)contain such incidental, supplemental, consequential and transitional provision as the Secretary of State considers appropriate; and

(b)make different provision for different cases.

(11)This Act and any provision made under it has effect subject to any order made under this section.

(12)An order under this section must be made by statutory instrument.

(13)But no such order is to be made unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

2 Leave to remain.E+W+S+N.I.

In the 1971 Act, after section 3A, insert—

3B Further provision as to leave to remain.

(1)The Secretary of State may by order make further provision with respect to the giving, refusing or varying of leave to remain in the United Kingdom.

(2)An order under subsection (1) may, in particular, provide for—

(a)the form or manner in which leave may be given, refused or varied;

(b)the imposition of conditions;

(c)a person’s leave to remain in the United Kingdom not to lapse on his leaving the common travel area.

(3)An order under this section may—

(a)contain such incidental, supplemental, consequential and transitional provision as the Secretary of State considers appropriate; and

(b)make different provision for different cases.

(4)This Act and any provision made under it has effect subject to any order made under this section.

(5)An order under this section must be made by statutory instrument.

(6)But no such order is to be made unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

3 Continuation of leave pending decision.E+W+S+N.I.

In the 1971 Act, after section 3B, insert—

3C Continuation of leave pending decision.

(1)This section applies if—

(a)a person who has limited leave to enter or remain in the United Kingdom applies to the Secretary of State, before his leave expires, for it to be varied; and

(b)when it expires, no decision has been taken on the application.

(2)His leave is to be treated as continuing until the end of the period allowed under rules made under paragraph 3 of Schedule 4 to the Immigration and Asylum Act 1999 for bringing an appeal against a decision on the application.

(3)An application for variation of a person’s leave to enter or remain in the United Kingdom may not be made while that leave is treated as continuing as a result of this section.

(4)But subsection (3) does not prevent the variation of an application mentioned in subsection (1).

4[F1Accommodation]E+W+S+N.I.

[F2(1)]The Secretary of State may provide, or arrange for the provision of, facilities for the accommodation of persons—

(a)temporarily admitted to the United Kingdom under paragraph 21 of Schedule 2 to the 1971 Act;

(b)released from detention under that paragraph; or

(c)released on bail from detention under any provision of the Immigration Acts.

[F3(2)The Secretary of State may provide, or arrange for the provision of, facilities for the accommodation of a person if—

(a)he was (but is no longer) an asylum-seeker, and

(b)his claim for asylum was rejected.

(3)The Secretary of State may provide, or arrange for the provision of, facilities for the accommodation of a dependant of a person for whom facilities may be provided under subsection (2).

(4)The following expressions have the same meaning in this section as in Part VI of this Act (as defined in section 94)—

(a)asylum-seeker,

(b)claim for asylum, and

(c)dependant.]

Annotations:

Amendments (Textual)

F2S. 4 renumbered (7.11.2002) as s. 4(1) by Nationality, Immigration and Asylum Act 2002 (c. 41), s. 49(2) (with s. 159)

Modifications etc. (not altering text)

Prospective

5 Charges.E+W+S+N.I.

(1)The Secretary of State may, with the approval of the Treasury, make regulations prescribing fees to be paid in connection with applications for—

(a)leave to remain in the United Kingdom;

(b)the variation of leave to enter, or remain in, the United Kingdom;

(c)an indefinite leave stamp to be fixed on the applicant’s passport (or travel document) as the result of the renewal or replacement of his previous passport (or travel document).

(2)If a fee prescribed in connection with an application of a particular kind is payable, no such application is to be entertained by the Secretary of State unless the fee has been paid in accordance with the regulations.

(3)But—

(a)a fee prescribed in connection with such an application is not payable if the basis on which the application is made is that the applicant is—

(i)a person making a claim for asylum which claim either has not been determined or has been granted; or

(ii)a dependant of such a person; and

(b)the regulations may provide for no fee to be payable in prescribed circumstances.

(4)If no fee is payable in respect of some part of the application, the Secretary of State must entertain that part of the application.

(5)Indefinite leave stamp” means a stamp which indicates that the applicant has been granted indefinite leave to enter, or remain in, the United Kingdom.

(6)Claim for asylum” has the meaning given in subsection (1) of section 94; and subsection (3) of that section applies for the purposes of this section as it applies for the purposes of Part VI.

(7)Dependant” has such meaning as may be prescribed.

Exemption from immigration controlE+W+S+N.I.

6 Members of missions other than diplomatic agents.E+W+S+N.I.

In the 1971 Act, in section 8 (exceptions for certain categories of person), for subsection (3A) (members of diplomatic missions) substitute—

(3A)For the purposes of subsection (3), a member of a mission other than a diplomatic agent (as defined by the 1964 Act) is not to count as a member of a mission unless—

(a)he was resident outside the United Kingdom, and was not in the United Kingdom, when he was offered a post as such a member; and

(b)he has not ceased to be such a member after having taken up the post.

7 Persons ceasing to be exempt.E+W+S+N.I.

In the 1971 Act, after section 8, insert—

8A Persons ceasing to be exempt.

(1)A person is exempt for the purposes of this section if he is exempt from provisions of this Act as a result of section 8(2) or (3).

(2)If a person who is exempt—

(a)ceases to be exempt, and

(b)requires leave to enter or remain in the United Kingdom as a result,

he is to be treated as if he had been given leave to remain in the United Kingdom for a period of 90 days beginning on the day on which he ceased to be exempt.

(3)If—

(a)a person who is exempt ceases to be exempt, and

(b)there is in force in respect of him leave for him to enter or remain in the United Kingdom which expires before the end of the period mentioned in subsection (2),

his leave is to be treated as expiring at the end of that period.

8 Persons excluded from the United Kingdom under international obligations.E+W+S+N.I.

In the 1971 Act, after section 8A, insert—

8B Persons excluded from the United Kingdom under international obligations.

(1)An excluded person must be refused—

(a)leave to enter the United Kingdom;

(b)leave to remain in the United Kingdom.

(2)A person’s leave to enter or remain in the United Kingdom is cancelled on his becoming an excluded person.

(3)A persons’s exemption from the provisions of this Act as a result of section 8(1), (2) or (3) ceases on his becoming an excluded person.

(4)Excluded person” means a person—

(a)named by or under, or

(b)of a description specified in,

a designated instrument.

(5)The Secretary of State may by order designate an instrument if it is a resolution of the Security Council of the United Nations or an instrument made by the Council of the European Union and it—

(a)requires that a person is not to be admitted to the United Kingdom (however that requirement is expressed); or

(b)recommends that a person should not be admitted to the United Kingdom (however that recommendation is expressed).

(6)Subsections (1) to (3) are subject to such exceptions (if any) as may specified in the order designating the instrument in question.

(7)An order under this section must be made by statutory instrument.

(8)Such a statutory instrument shall be laid before Parliament without delay.

Removal from the United KingdomE+W+S+N.I.

9 Treatment of certain overstayers.E+W+S+N.I.

(1)During the regularisation period overstayers may apply, in the prescribed manner, for leave to remain in the United Kingdom.

(2)The regularisation period begins on the day prescribed for the purposes of this subsection and is not to be less than three months.

(3)The regularisation period ends—

(a)on the day prescribed for the purposes of this subsection; or

(b)if later, on the day before that on which section 65 comes into force.

(4)Section 10 and paragraph 12 of Schedule 15 come into force on the day after that on which the regularisation period ends

(5)The Secretary of State must publicise the effect of this section in the way appearing to him to be best calculated to bring it to the attention of those affected.

(6)Overstayer” means a person who, having only limited leave to enter or remain in the United Kingdom, remains beyond the time limited by the leave.

10 Removal of certain persons unlawfully in the United Kingdom.E+W+S+N.I.

(1)A person who is not a British citizen may be removed from the United Kingdom, in accordance with directions given by an immigration officer, if—

(a)having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave;

(b)he has obtained leave to remain by deception; or

(c)directions (“the first directions”) have been given for the removal, under this section, of a person (“the other person”) to whose family he belongs.

(2)Directions may not be given under subsection (1)(a) if the person concerned has made an application for leave to remain in accordance with regulations made under section 9.

(3)Directions may not be given under subsection (1)(c) unless the Secretary of State has given the person concerned written notice, not more than eight weeks after the other person left the United Kingdom in accordance with the first directions, that he intends to remove the person concerned from the United Kingdom.

(4)If such a notice is sent by the Secretary of State by first class post, addressed to the person concerned’s last known address, it is to be taken to have been received by that person on the second day after the day on which it was posted.

(5)Directions for the removal of a person under subsection (1)(c) cease to have effect if he ceases to belong to the family of the other person.

(6)Directions under this section—

(a)may be given only to persons falling within a prescribed class;

(b)may impose any requirements of a prescribed kind.

(7)In relation to any such directions, paragraphs 10, 11, 16 to 18, 21 and 22 to 24 of Schedule 2 to the 1971 Act (administrative provisions as to control of entry), apply as they apply in relation to directions given under paragraph 8 of that Schedule.

(8)Directions for the removal of a person given under this section invalidate any leave to enter or remain in the United Kingdom given to him before the directions are given or while they are in force.

(9)The costs of complying with a direction given under this section (so far as reasonably incurred) must be met by the Secretary of State.

Annotations:

Modifications etc. (not altering text)

C2S. 10 extended (14.12.2001) by 2001 c. 24, ss. 22(1)(2)(i)(3), 127(2)

C3S. 10 restricted (2.10.2000) by S.I. 2000/2444, art. 3, Sch. 2 para. 1(2)

S. 10 applied (2.10.2000) by S.I. 2000/2326, regs. 9, 26(2)

S. 10 restricted (2.10.2000) by S.I. 2000/2326, reg. 34(2)(10) (with application as mentioned in regs. 9, 28 of the said S.I.)

Commencement Information

I1S. 10 wholly in force at 2.10.2000; s. 10 not in force at Royal Assent see s. 170(4); s. 10(6) in force at 22.5.2000 by S.I. 2000/1282, art. 2, Sch.; s. 10 in force so far as not already in force at 2.10.2000 by virtue of S.I. 2000/265, reg. 3 and S.I. 2000/2444, art. 2, Sch. 1 (subject to arts. 3,4, Sch. 2)

[F411 Removal of asylum claimant under standing arrangement with member StatesE+W+S+N.I.

(1)In determining whether a person in relation to whom a certificate has been issued under subsection (2) may be removed from the United Kingdom, a member State is to be regarded as—

(a)a place where a person’s life and liberty is not threatened by reason of his race, religion, nationality, membership of a particular social group, or political opinion; and

(b)a place from which a person will not be sent to another country otherwise than in accordance with the Refugee Convention.

(2)Nothing in section 77 of the Nationality, Immigration and Asylum Act 2002 prevents a person who has made a claim for asylum (“the claimant”) from being removed from the United Kingdom to a member State if the Secretary of State has certified that—

(a)the member State has accepted that, under standing arrangements, it is the responsible State in relation to the claimant’s claim for asylum; and

(b)in his opinion, the claimant is not a national or citizen of the member State to which he is to be sent.

(3)Subsection (4) applies where a person who is the subject of a certificate under subsection (2)—

(a)has instituted or could institute an appeal under section 82(1) of the Nationality, Immigration and Asylum Act 2002 (immigration appeal), and

(b)has made a human rights claim (within the meaning of section 113 of that Act).

(4)The person may not be removed from the United Kingdom in reliance upon this section unless—

(a)the appeal is finally determined, withdrawn or abandoned (within the meaning of section 104 of that Act) or can no longer be brought (ignoring any possibility of an appeal out of time with permission), or

(b)the Secretary of State has issued a certificate in relation to the human rights claim under section 93(2)(b) of that Act (clearly unfounded claim).

(5)In this section “standing arrangements” means arrangements in force between two or more member States for determining which State is responsible for considering applications for asylum.]

Annotations:

Amendments (Textual)

12 Removal of asylum claimants in other circumstances.E+W+S+N.I.

(1)Subsection (2) applies if the Secretary of State intends to remove a person who has made a claim for asylum (“the claimant”) from the United Kingdom to—

(a)a member State, or a territory which forms part of a member State, otherwise than under standing arrangements; or

(b)a country other than a member State which is designated by order made by the Secretary of State for the purposes of this section.

(2)Nothing in section 15 prevents the claimant’s removal if—

(a)the Secretary of State has certified that, in his opinion, the conditions set out in subsection (7) are fulfilled;

(b)the certificate has not been set aside on an appeal under section 65.

(3)Unless a certificate has been issued under section 72(2)(a) in relation to a person, he is not to be removed from the United Kingdom—

(a)if he has an appeal under section 65 against the decision to remove him in accordance with subsection (2) pending; or

(b)before the time for giving notice of such an appeal has expired.

(4)Subsection (5) applies if the Secretary of State intends to remove a person who has made a claim for asylum (“the claimant”) from the United Kingdom to a country which is not—

(a)a member State; or

(b)a country designated under subsection (1)(b).

(5)Nothing in section 15 prevents the claimant’s removal if—

(a)the Secretary of State has certified that, in his opinion, the conditions set out in subsection (7) are fulfilled;

(b)the certificate has not been set aside on an appeal under section 65 or 71; and

(c)the time for giving notice of such an appeal has expired and no such appeal is pending.

(6)For the purposes of subsection (5)(c), an appeal under section 65 is not to be regarded as pending if the Secretary of State has issued a certificate under section 72(2)(a) in relation to the allegation on which it is founded.

(7)The conditions are that—

(a)he is not a national or citizen of the country to which he is to be sent;

(b)his life and liberty would not be threatened there by reason of his race, religion, nationality, membership of a particular social group, or political opinion; and

(c)the government of that country would not send him to another country otherwise than in accordance with the Refugee Convention.

(8)Standing arrangements” has the same meaning as in section 11.

Annotations:

Commencement Information

I2S. 12 wholly in force; s. 12 not in force at Royal Assent see s. 170(4); s. 12(1) in force for certain purposes at 22.5.2000 by S.I. 2000/1282, art. 2, Sch.; s. 12 in force so far as not already in force at 2.10.2000 by S.I. 2000/2444, art. 2, Sch. 1 (subject to arts. 3, 4, Sch. 2)

13 Proof of identity of persons to be removed or deported.E+W+S+N.I.

(1)This section applies if a person—

(a)is to be removed from the United Kingdom to a country of which he is a national or citizen; but

(b)does not have a valid passport or other document establishing his identity and nationality or citizenship and permitting him to travel.

(2)If the country to which the person is to be removed indicates that he will not be admitted to it unless identification data relating to him are provided by the Secretary of State, he may provide them with such data.

(3)In providing identification data, the Secretary of State must not disclose whether the person concerned has made a claim for asylum.

(4)For the purposes of paragraph 4(1) of Schedule 4 to the M1Data Protection Act 1998, the provision under this section of identification data is a transfer of personal data which is necessary for reasons of substantial public interest.

(5)Identification data” means—

(a)fingerprints taken under section 141; or

(b)data collected in accordance with regulations made under section 144.

(6)Removed” means removed as a result of directions given under section 10 or under Schedule 2 or 3 to the 1971 Act.

Annotations:

Marginal Citations

14 Escorts for persons removed from the United Kingdom under directions.E+W+S+N.I.

(1)Directions for, or requiring arrangements to be made for, the removal of a person from the United Kingdom may include or be amended to include provision for the person who is to be removed to be accompanied by an escort consisting of one or more persons specified in the directions.

(2)The Secretary of State may by regulations make further provision supplementing subsection (1).

(3)The regulations may, in particular, include provision—

(a)requiring the person to whom the directions are given to provide for the return of the escort to the United Kingdom;

(b)requiring him to bear such costs in connection with the escort (including, in particular, remuneration) as may be prescribed;

(c)as to the cases in which the Secretary of State is to bear those costs;

(d)prescribing the kinds of expenditure which are to count in calculating the costs incurred in connection with escorts.

15 Protection of claimants from removal or deportation.E+W+S+N.I.

(1)During the period beginning when a person makes a claim for asylum and ending when the Secretary of State gives him notice of the decision on the claim, he may not be removed from, or required to leave, the United Kingdom.

(2)Subsection (1) does not prevent—

(a)directions for his removal being given during that period;

(b)a deportation order being made against him during that period.

(3)But no such direction or order is to have effect during that period.

(4)This section is to be treated as having come into force on 26 July 1993.

Prospective

Provision of financial securityE+W+S+N.I.

16 Security on grant of entry clearance.E+W+S+N.I.

(1)In such circumstances as may be specified, the Secretary of State may require security to be given, with respect to a person applying for entry clearance, before clearance is given.

(2)In such circumstances as may be specified—

(a)the Secretary of State may accept security with respect to a person who is applying for entry clearance but for whom security is not required; and

(b)in determining whether to give clearance, account may be taken of any security so provided.

(3)Security” means—

(a)the deposit of a sum of money by the applicant, his agent or any other person, or

(b)the provision by the applicant, his agent or any other person of a financial guarantee of a specified kind,

with a view to securing that the applicant will, if given leave to enter the United Kingdom for a limited period, leave the United Kingdom at the end of that period.

(4)Immigration rules must make provision as to the circumstances in which a security provided under this section—

(a)is to be repaid, released or otherwise cancelled; or

(b)is to be forfeited or otherwise realised by the Secretary of State.

(5)No security provided under this section may be forfeited or otherwise realised unless the person providing it has been given an opportunity, in accordance with immigration rules, to make representations to the Secretary of State.

(6)Immigration rules may, in particular—

(a)fix the maximum amount that may be required, or accepted, by way of security provided under this section;

(b)specify the form and manner in which such a security is to be given or may be accepted;

(c)make provision, where such a security has been forfeited or otherwise realised, for the person providing it to be reimbursed in such circumstances as may be specified;

(d)make different provision for different cases or descriptions of case.

(7)Specified” means specified by immigration rules.

(8)Any security forfeited or otherwise realised by the Secretary of State under this section must be paid into the Consolidated Fund.

17 Provision of further security on extension of leave.E+W+S+N.I.

(1)This section applies if security has been provided under section 16(1) or (2) with respect to a person who, having entered the United Kingdom (with leave to do so), applies—

(a)to extend his leave to enter the United Kingdom; or

(b)for leave to remain in the United Kingdom for a limited period.

(2)The Secretary of State may refuse the application if security of such kind as the Secretary of State considers appropriate is not provided, or continued, with respect to the applicant.

(3)Immigration rules must make provision as to the circumstances in which a security provided under this section—

(a)is to be repaid, released or otherwise cancelled; or

(b)is to be forfeited or otherwise realised by the Secretary of State.

(4)No security provided under this section may be forfeited or otherwise realised unless the person providing it has been given an opportunity, in accordance with immigration rules, to make representations to the Secretary of State.

(5)Subsection (7) of section 16 applies in relation to this section as it applies in relation to that section.

(6)Any security forfeited or otherwise realised by the Secretary of State under this section must be paid into the Consolidated Fund.

InformationE+W+S+N.I.

18 Passenger information.E+W+S+N.I.

In the 1971 Act, in Schedule 2, after paragraph 27, insert—

Passenger information

27B(1)This paragraph applies to ships or aircraft—

(a)which have arrived, or are expected to arrive, in the United Kingdom; or

(b)which have left, or are expected to leave, the United Kingdom.

(2)If an immigration officer asks the owner or agent (“the carrier”) of a ship or aircraft for passenger information, the carrier must provide that information to the officer.

(3)The officer may ask for passenger information relating to—

(a)a particular ship or particular aircraft of the carrier;

(b)particular ships or aircraft (however described) of the carrier; or

(c)all of the carrier’s ships or aircraft.

(4)The officer may ask for—

(a)all passenger information in relation to the ship or aircraft concerned; or

(b)particular passenger information in relation to that ship or aircraft.

(5)A request under sub-paragraph (2)—

(a)must be in writing;

(b)must state the date on which it ceases to have effect; and

(c)continues in force until that date, unless withdrawn earlier by written notice by an immigration officer.

(6)The date may not be later than six months after the request is made.

(7)The fact that a request under sub-paragraph (2) has ceased to have effect as a result of sub-paragraph (5) does not prevent the request from being renewed.

(8)The information must be provided—

(a)in such form and manner as the Secretary of State may direct; and

(b)at such time as may be stated in the request.

(9)Passenger information” means such information relating to the passengers carried, or expected to be carried, by the ship or aircraft as may be specified.

(10)Specified” means specified in an order made by statutory instrument by the Secretary of State.

(11)Such an instrument shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Annotations:

Commencement Information

I3S. 18 wholly in force; s. 18 not in force at Royal Assent see s. 170(4); s. 18 in force for certain purposes at 1.3.2000 and 3.4.2000 insofar as not already in force by S.I. 2000/464, art. 2, Sch.

19 Notification of non-EEA arrivals.E+W+S+N.I.

In the 1971 Act, in Schedule 2, after paragraph 27B, insert—

Notification of non-EEA arrivals

27C(1)If a senior officer, or an immigration officer authorised by a senior officer, gives written notice to the owner or agent (“the carrier”) of a ship or aircraft, the carrier must inform a relevant officer of the expected arrival in the United Kingdom of any ship or aircraft—

(a)of which he is the owner or agent; and

(b)which he expects to carry a person who is not an EEA national.

(2)The notice may relate to—

(a)a particular ship or particular aircraft of the carrier;

(b)particular ships or aircraft (however described) of the carrier; or

(c)all of the carrier’s ships or aircraft.

(3)The notice—

(a)must state the date on which it ceases to have effect; and

(b)continues in force until that date, unless withdrawn earlier by written notice given by a senior officer.

(4)The date may not be later than six months after the notice is given.

(5)The fact that a notice under sub-paragraph (1) has ceased to have effect as a result of sub-paragraph (3) does not prevent the notice from being renewed.

(6)The information must be provided—

(a)in such form and manner as the notice may require; and

(b)before the ship or aircraft concerned departs for the United Kingdom.

(7)If a ship or aircraft travelling to the United Kingdom stops at one or more places before arriving in the United Kingdom, it is to be treated as departing for the United Kingdom when it leaves the last of those places.

(8)Senior officer” means an immigration officer not below the rank of chief immigration officer.

(9)Relevant officer” means—

(a)the officer who gave the notice under sub-paragraph (1); or

(b)any immigration officer at the port at which the ship or aircraft concerned is expected to arrive.

(10)EEA national” means a national of a State which is a Contracting Party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 as it has effect for the time being.

20 Supply of information to Secretary of State.E+W+S+N.I.

(1)This section applies to information held by—

(a)a chief officer of police;

(b)the Director General of the National Criminal Intelligence Service;

(c)the Director General of the National Crime Squad;

(d)the Commissioners of Customs and Excise, or a person providing services to them in connection with the provision of those services;

(e)a person with whom the Secretary of State has made a contract or other arrangements under section 95 or 98 or a sub-contractor of such a person; or

(f)any specified person, for purposes specified in relation to that person.

(2)The information may be supplied to the Secretary of State for use for immigration purposes.

(3)Immigration purposes” means any of the following—

(a)the administration of immigration control under the Immigration Acts;

(b)the prevention, detection, investigation or prosecution of criminal offences under those Acts;

(c)the imposition of penalties or charges under Part II;

(d)the provision of support for asylum-seekers and their dependants under Part VI;

(e)such other purposes as may be specified.

(4)Chief officer of police” means—

(a)the chief officer of police for a police area in England and Wales;

(b)the chief constable of a police force maintained under the M2Police (Scotland) Act 1967;

(c)the Chief Constable of the Royal Ulster Constabulary.

(5)Specified” means specified in an order made by the Secretary of State.

(6)This section does not limit the circumstances in which information may be supplied apart from this section.

Annotations:

Marginal Citations

21 Supply of information by Secretary of State.E+W+S+N.I.

(1)This section applies to information held by the Secretary of State in connection with the exercise of functions under any of the Immigration Acts.

(2)The information may be supplied to—

(a)a chief officer of police, for use for police purposes;

(b)the Director General of the National Criminal Intelligence Service, for use for NCIS purposes;

(c)the Director General of the National Crime Squad, for use for NCS purposes;

(d)the Commissioners of Customs and Excise, or a person providing services to them, for use for customs purposes; or

(e)any specified person, for use for purposes specified in relation to that person.

(3)Police purposes” means any of the following—

(a)the prevention, detection, investigation or prosecution of criminal offences;

(b)safeguarding national security;

(c)such other purposes as may be specified.

(4)NCIS purposes” means any of the functions of the National Criminal Intelligence Service mentioned in section 2 of the M3Police Act 1997.

(5)NCS purposes” means any of the functions of the National Crime Squad mentioned in section 48 of that Act.

(6)Customs purposes” means any of the Commissioners’ functions in relation to—

(a)the prevention, detection, investigation or prosecution of criminal offences;

(b)the prevention, detection or investigation of conduct in respect of which penalties which are not criminal penalties are provided for by or under any enactment;

(c)the assessment or determination of penalties which are not criminal penalties;

(d)checking the accuracy of information relating to, or provided for purposes connected with, any matter under the care and management of the Commissioners or any assigned matter (as defined by section 1(1) of the M4Customs and Excise Management Act 1979);

(e)amending or supplementing any such information (where appropriate);

(f)legal or other proceedings relating to anything mentioned in paragraphs (a) to (e);

(g)safeguarding national security; and

(h)such other purposes as may be specified.

(7)Chief officer of police” and “specified” have the same meaning as in section 20.

(8)This section does not limit the circumstances in which information may be supplied apart from this section.

Annotations:

Marginal Citations

Employment: code of practiceE+W+S+N.I.

22 Restrictions on employment: code of practice.E+W+S+N.I.

In the M5Asylum and Immigration Act 1996, after section 8, insert—

8A Code of practice.

(1)The Secretary of State must issue a code of practice as to the measures which an employer is to be expected to take, or not to take, with a view to securing that, while avoiding the commission of an offence under section 8, he also avoids unlawful discrimination.

(2)Unlawful discrimination” means—

(a)discrimination in contravention of section 4(1) of the M6Race Relations Act 1976 (“the 1976 Act”); or

(b)in relation to Northern Ireland, discrimination in contravention of Article 6(1) of the M7Race Relations (Northern Ireland) Order 1997 (“the 1997 Order”).

(3)Before issuing the code, the Secretary of State must—

(a)prepare and publish a draft of the proposed code; and

(b)consider any representations about it which are made to him.

(4)In preparing the draft, the Secretary of State must consult—

(a)the Commission for Racial Equality;

(b)the Equality Commission for Northern Ireland; and

(c)such organisations and bodies (including organisations or associations of organisations representative of employers or of workers) as he considers appropriate.

(5)If the Secretary of State decides to proceed with the code, he must lay a draft of the code before both Houses of Parliament.

(6)The draft code may contain modifications to the original proposals made in the light of representations to the Secretary of State.

(7)After laying the draft code before Parliament, the Secretary of State may bring the code into operation by an order made by statutory instrument.

(8)An order under subsection (7)—

(a)shall be subject to annulment in pursuance of a resolution of either House of Parliament;

(b)may contain such transitional provisions or savings as appear to the Secretary of State to be necessary or expedient in connection with the code.

(9)A failure on the part of any person to observe a provision of the code does not of itself make him liable to any proceedings.

(10)But the code is admissible in evidence—

(a)in proceedings under the 1976 Act before an employment tribunal;

(b)in proceedings under the 1997 Order before an industrial tribunal.

(11)If any provision of the code appears to the tribunal to be relevant to any question arising in such proceedings, that provision is to be taken into account in determining the question.

(12)The Secretary of State may from time to time revise the whole or any part of the code and issue the code as revised.

(13)The provisions of this section also apply (with appropriate modifications) to any revision, or proposed revision, of the code.

Annotations:

Commencement Information

I4S. 22 wholly in force at 22.5.2001; s. 22 not in force at royal assent; S. 22 in force for certain purposes at 19.2.2001 by S.I. 2001/239, art. 2, Sch. and s. 22 in force so far as not already in force at 22.5.2001 by S.I. 2001/1394, art. 2, Sch.

Marginal Citations

Monitoring entry clearanceE+W+S+N.I.

23 Monitoring refusals of entry clearance.E+W+S+N.I.

(1)The Secretary of State must appoint a person to monitor, in such a manner as the Secretary of State may determine, refusals of entry clearance in cases where there is, as a result of section 60(5), no right of appeal.

(2)But the Secretary of State may not appoint a member of his staff.

(3)The monitor must make an annual report on the discharge of his functions to the Secretary of State.

(4)The Secretary of State must lay a copy of any report made to him under subsection (3) before each House of Parliament.

(5)The Secretary of State may pay to the monitor such fees and allowances as he may determine.

Reporting suspicious marriagesE+W+S+N.I.

24 Duty to report suspicious marriages.E+W+S+N.I.

(1)Subsection (3) applies if—

(a)a superintendent registrar to whom a notice of marriage has been given under section 27 of the M8Marriage Act 1949,

(b)any other person who, under section 28(2) of that Act, has attested a declaration accompanying such a notice,

(c)a district registrar to whom a marriage notice or an approved certificate has been submitted under section 3 of the M9Marriage (Scotland) Act 1977, or

(d)a registrar or deputy registrar to whom notice has been given under section 13 of the M10Marriages (Ireland) Act 1844 or section 4 of the M11Marriage Law (Ireland) Amendment Act 1863,

has reasonable grounds for suspecting that the marriage will be a sham marriage.

(2)Subsection (3) also applies if—

(a)a marriage is solemnized in the presence of a registrar of marriages or, in relation to Scotland, an authorised registrar (within the meaning of the Act of 1977); and

(b)before, during or immediately after solemnization of the marriage, the registrar has reasonable grounds for suspecting that the marriage will be, or is, a sham marriage.

(3)The person concerned must report his suspicion to the Secretary of State without delay and in such form and manner as may be prescribed by regulations.

(4)The regulations are to be made—

(a)in relation to England and Wales, by the Registrar General for England and Wales with the approval of the Chancellor of the Exchequer;

(b)in relation to Scotland, by the Secretary of State after consulting the Registrar General of Births, Deaths and Marriages for Scotland;

(c)in relation to Northern Ireland, by the Secretary of State after consulting the Registrar General in Northern Ireland.

(5)Sham marriage” means a marriage (whether or not void)—

(a)entered into between a person (“A”) who is neither a British citizen nor a national of an EEA State other than the United Kingdom and another person (whether or not such a citizen or such a national); and

(b)entered into by A for the purpose of avoiding the effect of one or more provisions of United Kingdom immigration law or the immigration rules.

Annotations:

Commencement Information

I5S. 24 wholly in force at 1.1.2001, see s. 170(4) and S.I. 2000/2698, art. 2, Sch. (as amended by S.I. 2000/3099, art. 4) subject to the transitional provision in art. 3 (as also inserted by art. 4 of the said S.I. 2000/3099)

Marginal Citations

Prospective

Immigration control: facilities and chargesE+W+S+N.I.

25 Provision of facilities for immigration control at ports.E+W+S+N.I.

(1)The person responsible for the management of a control port (“the manager”) must provide the Secretary of State free of charge with such facilities at the port as the Secretary of State may direct as being reasonably necessary for, or in connection with, the operation of immigration control there.

(2)Before giving such a direction, the Secretary of State must consult such persons likely to be affected by it as he considers appropriate.

(3)If the Secretary of State gives such a direction, he must send a copy of it to the person appearing to him to be the manager.

(4)If the manager persistently fails to comply with the direction (or part of it), the Secretary of State may—

(a)in the case of a control port which is not a port of entry, revoke any approval in relation to the port given under paragraph 26(1) of Schedule 2 to the 1971 Act;

(b)in the case of a control port which is a port of entry, by order revoke its designation as a port of entry.

(5)A direction under this section is enforceable, on the application of the Secretary of State—

(a)by injunction granted by a county court; or

(b)in Scotland, by an order under section 45 of the M12Court of Session Act 1988.

(6)Control port” means a port in which a control area is designated under paragraph 26(3) of Schedule 2 to the 1971 Act.

(7)Facilities” means accommodation, facilities, equipment and services of a class or description specified in an order made by the Secretary of State.

Annotations:

Marginal Citations

26 Charges: immigration control.E+W+S+N.I.

(1)The Secretary of State may, at the request of any person and in consideration of such charges as he may determine, make arrangements—

(a)for the provision at any control port of immigration officers or facilities in addition to those (if any) needed to provide a basic service at the port;

(b)for the provision of immigration officers or facilities for dealing with passengers of a particular description or in particular circumstances.

(2)Control port” has the same meaning as in section 25.

(3)Facilities” includes equipment.

(4)Basic service” has such meaning as may be prescribed.

Charges: travel documentsE+W+S+N.I.

27 Charges: travel documents.E+W+S+N.I.

(1)The Secretary of State may, with the approval of the Treasury, make regulations prescribing fees to be paid in connection with applications to him for travel documents.

(2)If a fee is prescribed in connection with an application of a particular kind, no such application is to be entertained by the Secretary of State unless the fee has been paid in accordance with the regulations.

(3)In respect of any period before the coming into force of this section, the Secretary of State is to be deemed always to have had power to impose charges in connection with—

(a)applications to him for travel documents; or

(b)the issue by him of travel documents.

(4)“Travel document” does not include a passport.

OffencesE+W+S+N.I.

28 Deception.E+W+S+N.I.

In the 1971 Act, after section 24, insert—

24A Deception.

(1)A person who is not a British citizen is guilty of an offence if, by means which include deception by him—

(a)he obtains or seeks to obtain leave to enter or remain in the United Kingdom; or

(b)he secures or seeks to secure the avoidance, postponement or revocation of enforcement action against him.

(2)Enforcement action”, in relation to a person, means—

(a)the giving of directions for his removal from the United Kingdom (“directions”) under Schedule 2 to this Act or section 10 of the Immigration and Asylum Act 1999;

(b)the making of a deportation order against him under section 5 of this Act; or

(c)his removal from the United Kingdom in consequence of directions or a deportation order.

(3)A person guilty of an offence under this section is liable—

(a)on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both; or

(b)on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine, or to both.

(4)The extended time limit for prosecutions which is provided for by section 28 applies to an offence under this section.

29 Facilitation of entry.E+W+S+N.I.

(1)Section 25 of the 1971 Act (assisting illegal entry) is amended as follows.

(2)In subsection (1), for “seven” substitute “ ten ”.

(3)For subsection (1A) substitute—

(1A)Nothing in subsection (1)(b) applies to anything done in relation to a person who—

(a)has been detained under paragraph 16 of Schedule 2 to this Act; or

(b)has been granted temporary admission under paragraph 21 of that Schedule.

(1B)Nothing in subsection (1)(b) applies to anything done by a person otherwise than for gain.

(1C)Nothing in subsection (1)(b) applies to anything done to assist an asylum claimant by a person in the course of his employment by a bona fide organisation, if the purposes of that organisation include assistance to persons in the position of the asylum claimant.

(1D)Asylum claimant” means a person who intends to make a claim that it would be contrary to the United Kingdom’s obligations under the Refugee Convention or the Human Rights Convention for him to be removed from, or required to leave, the United Kingdom.

(1E)Refugee Convention” and “Human Rights Convention” have the meaning given in the Immigration and Asylum Act 1999.

(4)In subsection (5), for “Subsection (1)(a)” substitute “ Paragraphs (a) and (b) of subsection (1) ”.

Annotations:

Commencement Information

I6S. 29 wholly in force; s. 29 not in force at Royal Assent see s. 170(4); s. 29(2)(4) wholly in force and s. 29(1) in force for certain purposes at 14.2.2000 by S.I. 2000/168, art. 2, Sch. (with transitional provisions in art. 3); s. 29 in force so far as not already in force 2.10.2000 by S.I. 2000/2444, art. 2, Sch. 1 (subject to arts. 3, 4, Sch. 2)

30 False statements etc.E+W+S+N.I.

(1)Section 26 of the 1971 Act (general offences in connection with administration of the Act) is amended as follows.

(2)In subsection (1)(c), for “this Act” substitute “ a relevant enactment ”.

(3)After subsection (2), insert—

(3)Relevant enactment” means—

(a)this Act;

(b)the M13Immigration Act 1988;

(c)the M14Asylum and Immigration Appeals Act 1993 (apart from section 4 or 5); or

(d)the Immigration and Asylum Act 1999 (apart from Part VI).

Annotations:

Marginal Citations

31 Defences based on Article 31(1) of the Refugee Convention.E+W+S+N.I.

(1)It is a defence for a refugee charged with an offence to which this section applies to show that, having come to the United Kingdom directly from a country where his life or freedom was threatened (within the meaning of the Refugee Convention), he—

(a)presented himself to the authorities in the United Kingdom without delay;

(b)showed good cause for his illegal entry or presence; and

(c)made a claim for asylum as soon as was reasonably practicable after his arrival in the United Kingdom.

(2)If, in coming from the country where his life or freedom was threatened, the refugee stopped in another country outside the United Kingdom, subsection (1) applies only if he shows that he could not reasonably have expected to be given protection under the Refugee Convention in that other country.

(3)In England and Wales and Northern Ireland the offences to which this section applies are any offence, and any attempt to commit an offence, under—

(a)Part I of the M15Forgery and Counterfeiting Act 1981 (forgery and connected offences);

(b)section 24A of the 1971 Act (deception); or

(c)section 26(1)(d) of the 1971 Act (falsification of documents).

(4)In Scotland, the offences to which this section applies are those—

(a)of fraud,

(b)of uttering a forged document,

(c)under section 24A of the 1971 Act (deception), or

(d)under section 26(1)(d) of the 1971 Act (falsification of documents),

and any attempt to commit any of those offences.

(5)A refugee who has made a claim for asylum is not entitled to the defence provided by subsection (1) in relation to any offence committed by him after making that claim.

(6)Refugee” has the same meaning as it has for the purposes of the Refugee Convention.

(7)If the Secretary of State has refused to grant a claim for asylum made by a person who claims that he has a defence under subsection (1), that person is to be taken not to be a refugee unless he shows that he is.

(8)A person who—

(a)was convicted in England and Wales or Northern Ireland of an offence to which this section applies before the commencement of this section, but

(b)at no time during the proceedings for that offence argued that he had a defence based on Article 31(1),

may apply to the Criminal Cases Review Commission with a view to his case being referred to the Court of Appeal by the Commission on the ground that he would have had a defence under this section had it been in force at the material time.

(9)A person who—

(a)was convicted in Scotland of an offence to which this section applies before the commencement of this section, but

(b)at no time during the proceedings for that offence argued that he had a defence based on Article 31(1),

may apply to the Scottish Criminal Cases Review Commission with a view to his case being referred to the High Court of Justiciary by the Commission on the ground that he would have had a defence under this section had it been in force at the material time.

(10)The Secretary of State may by order amend—

(a)subsection (3), or

(b)subsection (4),

by adding offences to those for the time being listed there.

(11)Before making an order under subsection (10)(b), the Secretary of State must consult the Scottish Ministers.

Annotations:

Marginal Citations

Part IIE+W+S+N.I. Carriers’ Liability

Annotations:

Modifications etc. (not altering text)

C4Pt. II (ss. 32-43) modified (7.2.2001 for certain purposes and otherwise 1.3.2001) by S.I. 2001/280, arts. 1, 2 (with art. 5)

Clandestine entrantsE+W+S+N.I.

32 Penalty for carrying clandestine entrants.E+W+S+N.I.

(1)A person is a clandestine entrant if—

(a)he arrives in the United Kingdom concealed in a vehicle, ship or aircraft,

[F5(aa)he arrives in the United Kingdom concealed in a rail freight wagon,]

(b)he passes, or attempts to pass, through immigration control concealed in a vehicle, or

(c)he arrives in the United Kingdom on a ship or aircraft, having embarked—

(i)concealed in a vehicle; and

(ii)at a time when the ship or aircraft was outside the United Kingdom,

and claims, or indicates that he intends to seek, asylum in the United Kingdom or evades, or attempts to evade, immigration control.

[F6(2)The Secretary of State may require a person who is responsible for a clandestine entrant to pay—

(a)a penalty in respect of the clandestine entrant;

(b)a penalty in respect of any person who was concealed with the clandestine entrant in the same transporter.

(2A)In imposing a penalty under subsection (2) the Secretary of State—

(a)must specify an amount which does not exceed the maximum prescribed for the purpose of this paragraph,

(b)may, in respect of a clandestine entrant or a concealed person, impose separate penalties on more than one of the persons responsible for the clandestine entrant, and

(c)may not impose penalties in respect of a clandestine entrant or a concealed person which amount in aggregate to more than the maximum prescribed for the purpose of this paragraph.]

(3)A penalty imposed under this section must be paid to the Secretary of State before the end of the prescribed period.

[F7(4)Where a penalty is imposed under subsection (2) on the driver of a vehicle who is an employee of the vehicle’s owner or hirer—

(a)the employee and the employer shall be jointly and severally liable for the penalty imposed on the driver (irrespective of whether a penalty is also imposed on the employer), and

(b)a provision of this Part about notification, objection or appeal shall have effect as if the penalty imposed on the driver were also imposed on the employer (irrespective of whether a penalty is also imposed on the employer in his capacity as the owner or hirer of the vehicle).

(4A)In the case of a detached trailer, subsection (4) shall have effect as if a reference to the driver were a reference to the operator.]

(5)In the case of a clandestine entrant to whom subsection (1)(a) applies, each of the following is a responsible person—

(a)if the transporter is a ship or aircraft, the owner [F8and] captain;

(b)if it is a vehicle (but not a detached trailer), the owner, hirer [F9and] driver of the vehicle;

(c)if it is a detached trailer, the owner, hirer [F9and] operator of the trailer.

[F10(5A)In the case of a clandestine entrant to whom subsection (1)(aa) applies, the responsible person is—

(a)where the entrant arrived concealed in a freight train, the train operator who, at the train’s last scheduled stop before arrival in the United Kingdom, was responsible for certifying it as fit to travel to the United Kingdom, or

(b)where the entrant arrived concealed in a freight shuttle wagon, the operator of the shuttle-train of which the wagon formed part.]

(6)In the case of a clandestine entrant to whom subsection (1)(b) or (c) applies, each of the following is a responsible person—

(a)if the transporter is a detached trailer, the owner, hirer [F11and] operator of the trailer;

(b)if it is not, the owner, hirer [F11and] driver of the vehicle.

[F12(6A)Where a person falls within the definition of responsible person in more than one capacity, a separate penalty may be imposed on him under subsection (2) in respect of each capacity.]

(7)Subject to any defence provided by section 34, it is immaterial whether a responsible person knew or suspected—

(a)that the clandestine entrant was concealed in the transporter; or

(b)that there were one or more other persons concealed with the clandestine entrant in the same transporter.

(8)Subsection (9) applies if a transporter (“the carried transporter”) is itself being carried in or on another transporter.

(9)If a person is concealed in the carried transporter, the question whether any other person is concealed with that person in the same transporter is to be determined by reference to the carried transporter and not by reference to the transporter in or on which it is carried.

(10)Immigration control” means United Kingdom immigration control and includes any United Kingdom immigration control operated in a prescribed control zone outside the United Kingdom.

Annotations:

Amendments (Textual)

F5S. 32(1)(aa) inserted (14.11.2002 for certain purposes, 8.12.2002 for certain further purposes and otherwise prosp.) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 162(1), Sch. 8 para. 2(2) (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4)

F6S. 32(2)(2A) substituted (14.11.2002 for certain purposes, 8.12.2002 for certain further purposes and otherwise prosp.) for s. 32(2) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 162(1), Sch. 8 para. 2(3) (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4)

F7S. 32(4)(4A) substituted (14.11.2002 for certain purposes, 8.12.2002 for certain further purposes and otherwise prosp.) for s. 32(4) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 162(1), Sch. 8 para. 2(4) (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4)

F8Word in s. 32(5)(a) substituted (14.11.2002 for certain purposes, 8.12.2002 for certain further purposes and otherwise prosp.) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 162(1), Sch. 8 para. 2(5)(a) (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4)

F9Words in s. 32(5)(b)(c) substituted (14.11.2002 for certain purposes, 8.12.2002 for certain further purposes and otherwise prosp.) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 162(1), Sch. 8 para. 2(5)(b) (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4)

F10S. 32(5A) inserted (14.11.2002 for certain purposes, 8.12.2002 for certain further purposes and otherwise prosp.) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 162(1), Sch. 8 para. 2(6) (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4)

F11Words in s. 32(6)(a)(b) substituted (14.11.2002 for certain purposes, 8.12.2002 for certain further purposes and otherwise prosp.) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 162(1), Sch. 8 para. 2(7) (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4)

F12S. 32(6A) inserted (14.11.2002 for certain purposes, 8.12.2002 for certain further purposes and otherwise prosp.) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 162(1), Sch. 8 para. 2(8) (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4)

Modifications etc. (not altering text)

C5S. 32(2)-(5)(7)(10) applied (with modifications) (7.2.2001 for certain purposes and otherwise 1.3.2001) by S.I. 2001/280, arts. 1-4 (with art. 5)

Commencement Information

I7S. 32 partly in force; s. 32 not in force at Royal Assent, see s. 170(4); s. 32(2)(a)(3)(10) in force for certain purposes at 6.12.1999 by S.I. 1999/3190, art. 2, Sch.; s. 32 in force for certain purposes at: 3.4.2000 by S.I. 2000/464, art. 2, Sch.; 18.9.2000 by S.I. 2000/2444, art. 2, Sch. 1 (subject to arts. 3, 4, Sch. 2); 8.12.2002 by S.I. 2002/2815, art. 2, Sch.

[F1332A Level of penalty: code of practiceE+W+S+N.I.

(1)The Secretary of State shall issue a code of practice specifying matters to be considered in determining the amount of a penalty under section 32.

(2)The Secretary of State shall have regard to the code (in addition to any other matters he thinks relevant)—

(a)when imposing a penalty under section 32, and

(b)when considering a notice of objection under section 35(4).

(3)Before issuing the code the Secretary of State shall lay a draft before Parliament.

(4)After laying the draft code before Parliament the Secretary of State may bring the code into operation by order.

(5)The Secretary of State may from time to time revise the whole or any part of the code and issue the code as revised.

(6)Subsections (3) and (4) also apply to a revision or proposed revision of the code.]

Annotations:

Amendments (Textual)

F13S. 32A inserted (14.11.2002 for certain purposes, 8.12.2002 for certain further purposes and otherwise prosp.) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 162(1), Sch. 8 para. 3 (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4)

33[F14Prevention of clandestine entrants: code of practice]E+W+S+N.I.

(1)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.

(2)Before issuing the code, the Secretary of State must—

(a)consult such persons as he considers appropriate; and

(b)lay a draft before F15. . . Parliament.

(3)The requirement of subsection (2)(a) may be satisfied by consultation before the passing of this Act.

(4)After laying the draft code before Parliament, the Secretary of State may bring the code into operation by an order.

(5)The Secretary of State may from time to time revise the whole or any part of the code and issue the code as revised.

(6)Subsections (2) and (4) also apply to any revision, or proposed revision, of the code.

Annotations:

Amendments (Textual)

F14S. 33 heading substituted (8.12.2002 for certain purposes, otherwise prosp.) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 162(1), Sch. 8 para. 4 (with s. 159, Sch. 8 para. 17); S.I. 2002/2811, art. 2, Sch. (with art. 4)

Modifications etc. (not altering text)

C6S. 33 applied (with modifications) (7.2.2001 for certain purposes and otherwise 1.3.2001) by S.I. 2001/208, arts. 1(2), 3, 4 (with art. 5)

34 Defences to claim that penalty is due under section 32.E+W+S+N.I.

[F16(1)A person (“the carrier”) shall not be liable to the imposition of a penalty under section 32(2) if he has a defence under this section.]

(2)It is a defence for the carrier to show that he, or an employee of his who was directly responsible for allowing the clandestine entrant to be concealed, was acting under duress.

(3)It is also a defence for the carrier to show that—

(a)he did not know, and had no reasonable grounds for suspecting, that a clandestine entrant was, or might be, concealed in the transporter;

(b)an effective system for preventing the carriage of clandestine entrants was in operation in relation to the transporter; and

(c)F17. . . on the occasion in question the person or persons responsible for operating that system did so properly.

[F18(3A)It is also a defence for the carrier to show that—

(a)he knew or suspected that a clandestine entrant was or might be concealed in a rail freight wagon, having boarded after the wagon began its journey to the United Kingdom;

(b)he could not stop the train or shuttle-train of which the wagon formed part without endangering safety;

(c)an effective system for preventing the carriage of clandestine entrants was in operation in relation to the train or shuttle-train; and

(d)on the occasion in question the person or persons responsible for operating the system did so properly.]

(4)In determining, for the purposes of this section, whether a particular system is effective, regard is to be had to the code of practice issued by the Secretary of State under section 33.

(5)F19. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F20(6)Where a person has a defence under subsection (2) in respect of a clandestine entrant, every other responsible person in respect of the clandestine entrant is also entitled to the benefit of the defence.]

Annotations:

Amendments (Textual)

F16S. 34(1) substituted (8.12.2002 for certain purposes, otherwise prosp.) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 162(1), Sch. 8 para. 6(2) (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4)

F18S. 34(3A) inserted (8.12.2002 for certain purposes, otherwise prosp.) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 162(1), Sch. 8 para. 6(4) (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4)

F20S. 34(6) substituted (8.12.2002 for certain purposes, otherwise prosp.) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 162(1), Sch. 8 para. 6(6) (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4)

Modifications etc. (not altering text)

C7S. 34 applied (with modifications) (7.2.2001 for certain purposes and otherwise 1.3.2001) by S.I. 2001/280, arts. 1-4 (with art. 5)

Commencement Information

I8S. 34 partly in force; s. 34 not in force at Royal Assent, see s. 170(4); s. 34 in force for certain purposes at: 3.4.2000 by S.I. 2000/464, art. 2, Sch.; 18.9.2000 by S.I. 2000/2444, art. 2, Sch. 1 (subject to arts. 3, 4, Sch. 2); 8.12.2002 by S.I. 2002/2815, art. 2, Sch.

35 Procedure.E+W+S+N.I.

(1)If the Secretary of State decides that a person (“P”) is liable to one or more penalties under section 32, he must notify P of his decision.

(2)A notice under subsection (1) (a “penalty notice”) must—

(a)state the Secretary of State’s reasons for deciding that P is liable to the penalty (or penalties);

(b)state the amount of the penalty (or penalties) to which P is liable;

(c)specify the date before which, and the manner in which, the penalty (or penalties) must be paid; and

(d)include an explanation of the steps—

(i)that P [F21may] take if he objects to the penalty;

(ii)that the Secretary of State may take under this Part to recover any unpaid penalty.

[F22(3)Subsection (4) applies where a person to whom a penalty notice is issued objects on the ground that—

(a)he is not liable to the imposition of a penalty, or

(b)the amount of the penalty is too high.

(4)The person may give a notice of objection to the Secretary of State.

(5)A notice of objection must—

(a)be in writing,

(b)give the objector’s reasons, and

(c)be given before the end of such period as may be prescribed.

(6)Where the Secretary of State receives a notice of objection to a penalty in accordance with this section he shall consider it and—

(a)cancel the penalty,

(b)reduce the penalty,

(c)increase the penalty, or

(d)determine to take no action under paragraphs (a) to (c).

(7)Where the Secretary of State considers a notice of objection under subsection (6) he shall—

(a)inform the objector of his decision before the end of such period as may be prescribed or such longer period as he may agree with the objector,

(b)if he increases the penalty, issue a new penalty notice under subsection (1), and

(c)if he reduces the penalty, notify the objector of the reduced amount.]

(9)The Secretary of State may by regulations provide, in relation to detached trailers, for a penalty notice which is [F23issued] in such manner as may be prescribed to have effect as a penalty notice properly [F24issued to] the responsible person or persons concerned under this section.

(10)Any sum payable to the Secretary of State as a penalty under section 32 may be recovered by the Secretary of State as a debt due to him.

[F25(11)In proceedings for enforcement of a penalty under subsection (10) no question may be raised as to—

(a)liability to the imposition of the penalty, or

(b)its amount.

(12)A document which is to be issued to or served on a person outside the United Kingdom for the purpose of subsection (1) or (7) or in the course of proceedings under subsection (10) may be issued or served—

(a)in person,

(b)by post,

(c)by facsimile transmission, or

(d)in another prescribed manner.

(13)The Secretary of State may by regulations provide that a document issued or served in a manner listed in subsection (12) in accordance with the regulations is to be taken to have been received at a time specified by or determined in accordance with the regulations.]

Annotations:

Amendments (Textual)

F21Word in s. 35(2)(d)(i) substituted (14.11.2002 for certain purposes, 8.12.2002 for certain further purposes and otherwise prosp.) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 162(1), Sch. 8 para. 7(2) (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4)

F22S. 35(3)-(7) substituted (14.11.2002 for certain purposes, 8.12.2002 for certain further purposes and otherwise prosp.) for s. 35(3)-(8) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 162(1), Sch. 8 para. 7(3) (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4)

F23Word in s. 35(9) substituted (14.11.2002 for certain purposes, 8.12.2002 for certain further purposes and otherwise prosp.) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 162(1), Sch. 8 para. 7(4)(a) (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4)

F24Words in s. 35(9) substituted (14.11.2002 for certain purposes, 8.12.2002 for certain further purposes and otherwise prosp.) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 162(1), Sch. 8 para. 7(4)(b) (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4)

F25S. 35(11)-(13) added (14.11.2002 for certain purposes, 8.12.2002 for certain further purposes and otherwise prosp.) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 162(1), Sch. 8 para. 7(5) (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4)

Modifications etc. (not altering text)

C8S. 35(1)(2)(6)-(8)(10) applied (with modifications) (7.2.2001 for certain purposes and otherwise 1.3.2001) by S.I. 2001/280, arts. 1-4 (with art. 5)

Commencement Information

I9S. 35 partly in force; s. 35 not in force at Royal Assent, see s. 170(4); s. 35(7)-(9) in force for certain purposes at 6.12.1999 by S.I. 1999/3190, art. 2, Sch.; s. 35 in force for certain purposes at: 3.4.2000 by S.I. 2000/464, art. 2, Sch.; 18.9.2000 by S.I. 2000/2444, art. 2, Sch. 1 (subject to arts. 3, 4, Sch. 2); 8.12.2002 by S.I. 2002/2815, art. 2, Sch.

[F2635A AppealE+W+S+N.I.

(1)A person may appeal to the court against a penalty imposed on him under section 32 on the ground that—

(a)he is not liable to the imposition of a penalty, or

(b)the amount of the penalty is too high.

(2)On an appeal under this section the court may—

(a)allow the appeal and cancel the penalty,

(b)allow the appeal and reduce the penalty, or

(c)dismiss the appeal.

(3)An appeal under this section shall be a re-hearing of the Secretary of State’s decision to impose a penalty and shall be determined having regard to—

(a)any code of practice under section 32A which has effect at the time of the appeal,

(b)the code of practice under section 33 which had effect at the time of the events to which the penalty relates, and

(c)any other matters which the court thinks relevant (which may include matters of which the Secretary of State was unaware).

(4)Subsection (3) has effect despite any provision of Civil Procedure Rules.

(5)An appeal may be brought by a person under this section against a penalty whether or not—

(a)he has given notice of objection under section 35(4);

(b)the penalty has been increased or reduced under section 35(6).]

Annotations:

Amendments (Textual)

F26S. 35A inserted (8.12.2002 for certain purposes, otherwise prosp.) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 162(1), Sch. 8 para. 8 (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4)

36 Power to detain vehicles etc. in connection with penalties under section 32.E+W+S+N.I.

(1)If a penalty notice has been [F27issued] under section 35, a senior officer may detain any relevant—

(a)vehicle,

(b)small ship, F28. . .

(c)small aircraft,[F29 or

(d)rail freight wagon,]

until all penalties to which the notice relates, and any expenses reasonably incurred by the Secretary of State in connection with the detention, have been paid.

(2)That power—

(a)may be exercised only if, in the opinion of the senior officer concerned, there is a significant risk that the penalty (or one or more of the penalties) will not be paid before the end of the prescribed period if the transporter is not detained; and

(b)may not be exercised if alternative security which the Secretary of State considers is satisfactory, has been given.

[F30(2A)A vehicle may be detained under subsection (1) only if—

(a)the driver of the vehicle is an employee of its owner or hirer,

(b)the driver of the vehicle is its owner or hirer, or

(c)a penalty notice is issued to the owner or hirer of the vehicle.

(2B)A senior officer may detain a relevant vehicle, small ship, small aircraft or rail freight wagon pending—

(a)a decision whether to issue a penalty notice,

(b)the issue of a penalty notice, or

(c)a decision whether to detain under subsection (1).

(2C)That power may not be exercised in any case—

(a)for longer than is necessary in the circumstances of the case, or

(b)after the expiry of the period of 24 hours beginning with the conclusion of the first search of the vehicle, ship, aircraft or wagon by an immigration officer after it arrived in the United Kingdom.]

(3)If a transporter is detained under this section, the owner, consignor or any other person who has an interest in any freight or other thing carried in or on the transporter may remove it, or arrange for it to be removed, at such time and in such way as is reasonable.

(4)The detention of a transporter under this section is lawful even though it is subsequently established that the penalty notice on which the detention was based was ill-founded in respect of all or any of the penalties to which it related.

(5)But subsection (4) does not apply if the Secretary of State was acting unreasonably in issuing the penalty notice.

Annotations:

Amendments (Textual)

F27Word in s. 36(1) substituted (8.12.2002 for certain purposes, otherwise prosp.) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 162(1), Sch. 8 para. 9(2)(a) (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4)

F29S. 36(1)(d) and preceding word inserted (8.12.2002 for certain purposes, otherwise prosp.) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 162(1), Sch. 8 para. 9(2)(c) (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4)

F30S. 36(2A)-(2C) inserted (8.12.2002 for certain purposes, otherwise prosp.) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 162(1), Sch. 8 para. 9(3) (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4)

Modifications etc. (not altering text)

C9S. 36 applied (with modifications) (7.2.2001 for certain purposes and otherwise 1.3.2001) by S.I. 2001/280, arts. 1-4 (with art. 5))

Commencement Information

I10S. 36 partly in force; s. 36 not in force at Royal Assent, see s. 170(4); s. 36(2)(a) in force for certain purposes at 6.12.1999 by S.I. 1999/3190, art. 2, Sch.; s. 36 in force for certain purposes at: 3.4.2000 by S.I. 2000/464, art. 2, Sch.; 18.9.2000 by S.I. 2000/2444, art. 2, Sch. 1 (subject to arts. 3, 4, Sch. 2); 8.12.2002 by S.I. 2002/2815, art. 2, Sch.

[F3136A Detention in default of paymentE+W+S+N.I.

(1)This section applies where a person to whom a penalty notice has been issued under section 35 fails to pay the penalty before the date specified in accordance with section 35(2)(c).

(2)The Secretary of State may make arrangements for the detention of any vehicle, small ship, small aircraft or rail freight wagon which the person to whom the penalty notice was issued uses in the course of a business.

(3)A vehicle, ship, aircraft or wagon may be detained under subsection (2) whether or not the person to whom the penalty notice was issued owns it.

(4)But a vehicle may be detained under subsection (2) only if the person to whom the penalty notice was issued—

(a)is the owner or hirer of the vehicle, or

(b)was an employee of the owner or hirer of the vehicle when the penalty notice was issued.

(5)The power under subsection (2) may not be exercised while an appeal against the penalty under section 35A is pending or could be brought (ignoring the possibility of an appeal out of time with permission).

(6)The Secretary of State shall arrange for the release of a vehicle, ship, aircraft or wagon detained under this section if the person to whom the penalty notice was issued pays—

(a)the penalty, and

(b)expenses reasonably incurred in connection with the detention.]

Annotations:

Amendments (Textual)

F31S. 36A inserted (8.12.2002 for certain purposes, otherwise prosp.) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 162(1), Sch. 8 para. 10 (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4)

37 Effect of detention.E+W+S+N.I.

(1)This section applies if a transporter is detained under [F32section 36(1)].

(2)The person to whom the penalty notice was addressed, or the owner or any other person [F33whose interests may be affected by detention of the transporter,] may apply to the court for the transporter to be released.

(3)The court may release the transporter if it considers that—

(a)satisfactory security has been tendered in place of the transporter for the payment of the penalty alleged to be due and connected expenses;

(b)there is no significant risk that the penalty (or one or more of the penalties) and any connected expenses will not be paid; or

(c)there is a significant doubt as to whether the penalty is payable F34. . .

[F35(3A)The court may also release the transporter on the application of the owner of the transporter under subsection (2) if—

(a)a penalty notice was not issued to the owner or an employee of his, and

(b)the court considers it right to release the transporter.

(3B)In determining whether to release a transporter under subsection (3A) the court shall consider—

(a)the extent of any hardship caused by detention,

(b)the extent (if any) to which the owner is responsible for the matters in respect of which the penalty notice was issued, and

(c)any other matter which appears to the court to be relevant (whether specific to the circumstances of the case or of a general nature).]

(4)If the court has not ordered the release of the transporter, the Secretary of State may sell it if the penalty in question and connected expenses are not paid before the end of the period of 84 days beginning with the date on which the detention began.

(5)Connected expenses” means expenses reasonably incurred by the Secretary of State in connection with the detention.

[F36(5A)The power of sale under subsection (4) may be exercised only when no appeal against the imposition of the penalty is pending or can be brought (ignoring the possibility of an appeal out of time with permission).

(5B)The power of sale under subsection (4) shall lapse if not exercised within a prescribed period.]

(6)Schedule 1 applies to the sale of transporters under this section.

[F37(7)This section applies to a transporter detained under section 36A as it applies to a transporter detained under section 36(1); but for that purpose—

(a)the court may release the transporter only if the court considers that the detention was unlawful or under subsection (3A)(and subsection (3) shall not apply), and

(b)the reference in subsection (4) to the period of 84 days shall be taken as a reference to a period prescribed for the purpose of this paragraph.]

Annotations:

Amendments (Textual)

F32Words in s. 37(1) substituted (14.11.2002 for certain purposes, 8.12.2002 for certain further purposes and otherwise prosp.) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 162(1), Sch. 8 para. 11(2) (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4)

F33Words in s. 37(2) substituted (14.11.2002 for certain purposes, 8.12.2002 for certain further purposes and otherwise prosp.) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 162(1), Sch. 8 para. 11(3) (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4)

F34Words in s. 37(3)(c) repealed (14.11.2002 for certain purposes and otherwise 8.12.2002) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 161, 162(2), Sch. 8 para. 11(4), Sch. 9 (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4)

F35S. 37(3A)(3B) inserted (14.11.2002 for certain purposes, 8.12.2002 for certain further purposes and otherwise prosp.) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 162(1), Sch. 8 para. 11(5) (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4)

F36S. 37(5A)(5B) inserted (14.11.2002 for certain purposes, 8.12.2002 for certain further purposes and otherwise prosp.) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 162(1), Sch. 8 para. 11(6) (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4)

F37S. 37(7) added (14.11.2002 for certain purposes, 8.12.2002 for certain further purposes and otherwise prosp.) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 162(1), Sch. 8 para. 11(7) (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4)

Modifications etc. (not altering text)

C10S. 37 (and Sch. 1) applied (with modifications) (7.2.2001 for certain purposes and otherwise 1.3.2001) by S.I. 2001/280, arts. 1-4 (with art. 5)

Commencement Information

I11S. 37 partly in force; s. 37 not in force at Royal Assent, see s. 170(4); s. 37(6) in force for certain purposes at 6.12.1999 by S.I. 1999/3190, art. 2, Sch.; s. 37 in force for certain purposes at: 3.4.2000 by S.I. 2000/464, art. 2, Sch.; 18.9.2000 by S.I. 2000/2444, art. 2, Sch. 1 (subject to arts. 3, 4, Sch. 2); 8.12.2002 by S.I. 2002/2815, art. 2, Sch.

38 Assisting illegal entry and harbouring.E+W+S+N.I.

(1)In section 25 of the 1971 Act (assisting illegal entry and harbouring), at the end of paragraph (c) of subsection (6), insert—

or

(d)the driver of any such vehicle;.

(2)After section 25, insert—

25A Detention of ships, aircraft and vehicles in connection with offences under section 25(1).

(1)If a person has been arrested for an offence under section 25(1)(a) or (b), a senior officer or a constable may detain a relevant ship, aircraft or vehicle—

(a)until a decision is taken as to whether or not to charge the arrested person with that offence; or

(b)if the arrested person has been charged—

(i)until he is acquitted, the charge against him is dismissed or the proceedings are discontinued; or

(ii)if he has been convicted, until the court decides whether or not to order forfeiture of the ship, aircraft or vehicle.

(2)A ship, aircraft or vehicle is a relevant ship, aircraft or vehicle, in relation to an arrested person, if it is one which the officer or constable concerned has reasonable grounds for believing could, on conviction of the arrested person for the offence for which he was arrested, be the subject of an order for forfeiture made under section 25(6).

(3)A person (other than the arrested person) who claims to be the owner of a ship, aircraft or vehicle which has been detained under this section may apply to the court for its release.

(4)The court to which an application is made under subsection (3) may, on such security or surety being tendered as it considers satisfactory, release the ship, aircraft or vehicle on condition that it is made available to the court if—

(a)the arrested person is convicted; and

(b)an order for its forfeiture is made under section 25(6).

(5)In the application to Scotland of subsection (1), for paragraphs (a) and (b) substitute—

“(a)until a decision is taken as to whether or not to institute criminal proceedings against the arrested person for that offence; or

(b)if criminal proceedings have been instituted against the arrested person—

(i)until he is acquitted or, under section 65 or 147 of the M16Criminal Procedure (Scotland) Act 1995, discharged or liberated or the trial diet is desertedsimpliciter;

(ii)if he has been convicted, until the court decides whether or not to order forfeiture of the ship, aircraft or vehicle,

and for the purposes of this subsection, criminal proceedings are instituted against a person at whichever is the earliest of his first appearance before the sheriff on petition, or the service on him of an indictment or complaint. ”

(6)Court” means—

(a)in England and Wales—

(i)if the arrested person has not been charged, the magistrates’ court for the petty sessions area in which he was arrested;

(ii)if he has been charged but proceedings for the offence have not begun to be heard, the magistrates’ court for the petty sessions area in which he was charged;

(iii)if he has been charged and proceedings for the offence are being heard, the court hearing the proceedings;

(b)in Scotland, the sheriff; and

(c)in Northern Ireland—

(i)if the arrested person has not been charged, the magistrates’ court for the county court division in which he was arrested;

(ii)if he has been charged but proceedings for the offence have not begun to be heard, the magistrates’ court for the county court division in which he was charged;

(iii)if he has been charged and proceedings for the offence are being heard, the court hearing the proceedings.

(7)Owner” has the same meaning as it has in section 25(6).

(8)Senior officer” means an immigration officer not below the rank of chief immigration officer.

(3)Subsection (1) has effect in relation to offences committed after the coming into force of that subsection.

(4)Subsection (2) has effect in relation to persons arrested for offences alleged to have been committed after the coming into force of that subsection.

Annotations:

Marginal Citations

39 Rail freight.E+W+S+N.I.

F38. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Annotations:

Amendments (Textual)

Passengers without proper documentsE+W+S+N.I.

[F3940 Charge in respect of passenger without proper documentsE+W+S+N.I.

(1)This section applies if an individual requiring leave to enter the United Kingdom arrives in the United Kingdom by ship or aircraft and, on being required to do so by an immigration officer, fails to produce—

(a)an immigration document which is in force and which satisfactorily establishes his identity and his nationality or citizenship, and

(b)if the individual requires a visa, a visa of the required kind.

(2)The Secretary of State may charge the owner of the ship or aircraft, in respect of the individual, the sum of £2,000.

(3)The charge shall be payable to the Secretary of State on demand.

(4)No charge shall be payable in respect of any individual who is shown by the owner to have produced the required document or documents to the owner or his employee or agent when embarking on the ship or aircraft for the voyage or flight to the United Kingdom.

(5)For the purpose of subsection (4) an owner shall be entitled to regard a document as—

(a)being what it purports to be unless its falsity is reasonably apparent, and

(b)relating to the individual producing it unless it is reasonably apparent that it does not relate to him.

(6)For the purposes of this section an individual requires a visa if—

(a)under the immigration rules he requires a visa for entry into the United Kingdom, or

(b)as a result of section 41 he requires a visa for passing through the United Kingdom.

(7)The Secretary of State may by order amend this section for the purpose of applying it in relation to an individual who—

(a)requires leave to enter the United Kingdom, and

(b)arrives in the United Kingdom by train.

(8)An order under subsection (7) may provide for the application of this section—

(a)except in cases of a specified kind;

(b)subject to a specified defence.

(9)In this section “immigration document” means—

(a)a passport, and

(b)a document which relates to a national of a country other than the United Kingdom and which is designed to serve the same purpose as a passport.

(10)The Secretary of State may by order substitute a sum for the sum in subsection (2).]

Annotations:

Amendments (Textual)

F39Ss. 40-40B substituted (14.11.2002 for certain purposes and otherwise 8.12.2002) for s. 40 by Nationality, Immigration and Asylum Act 2002 (c. 41), s. 125, Sch. 8 para. 13 (with s. 159); S.I. 2002/2811, art. 2, Sch.

Modifications etc. (not altering text)

C11Ss. 40-43: power to apply (with modifications) or amend conferred (prosp.) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 124(6)(7), 162(1) (with s. 159)

[F4040A Notification and objectionE+W+S+N.I.

(1)If the Secretary of State decides to charge a person under section 40, the Secretary of State must notify the person of his decision.

(2)A notice under subsection (1)(a “charge notice”) must—

(a)state the Secretary of State’s reasons for deciding to charge the person,

(b)state the amount of the charge,

(c)specify the date before which, and the manner in which, the charge must be paid,

(d)include an explanation of the steps that the person may take if he objects to the charge, and

(e)include an explanation of the steps that the Secretary of State may take under this Part to recover any unpaid charge.

(3)Where a person on whom a charge notice is served objects to the imposition of the charge on him, he may give a notice of objection to the Secretary of State.

(4)A notice of objection must—

(a)be in writing,

(b)give the objector’s reasons, and

(c)be given before the end of such period as may be prescribed.

(5)Where the Secretary of State receives a notice of objection to a charge in accordance with this section, he shall—

(a)consider it, and

(b)determine whether or not to cancel the charge.

(6)Where the Secretary of State considers a notice of objection, he shall inform the objector of his decision before the end of—

(a)such period as may be prescribed, or

(b)such longer period as he may agree with the objector.

(7)Any sum payable to the Secretary of State as a charge under section 40 may be recovered by the Secretary of State as a debt due to him.

(8)In proceedings for enforcement of a charge under subsection (7) no question may be raised as to the validity of the charge.

(9)Subsections (12) and (13) of section 35 shall have effect for the purpose of this section as they have effect for the purpose of section 35(1), (7) and (10).]

Annotations:

Amendments (Textual)

F40Ss. 40-40B substituted (14.11.2002 for certain purposes and otherwise 8.12.2002) for s. 40 by Nationality, Immigration and Asylum Act 2002 (c. 41), s. 125, Sch. 8 para. 13 (with s. 159); S.I. 2002/2811, art. 2, Sch.

Modifications etc. (not altering text)

C12Ss. 40-43: power to apply (with modifications) or amend conferred (prosp.) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 124(6)(7), 162(1) (with s. 159)

[F4140B AppealE+W+S+N.I.

(1)A person may appeal to the court against a decision to charge him under section 40.

(2)On an appeal under this section the court may—

(a)allow the appeal and cancel the charge, or

(b)dismiss the appeal.

(3)An appeal under this section—

(a)shall be a re-hearing of the Secretary of State’s decision to impose a charge, and

(b)may be determined having regard to matters of which the Secretary of State was unaware.

(4)Subsection (3)(a) has effect despite any provision of Civil Procedure Rules.

(5)An appeal may be brought by a person under this section against a decision to charge him whether or not he has given notice of objection under section 40A(3).]

Annotations:

Amendments (Textual)

F41Ss. 40-40B substituted (14.11.2002 for certain purposes and otherwise 8.12.2002) for s. 40 by Nationality, Immigration and Asylum Act 2002 (c. 41), s. 125, Sch. 8 para. 13 (with s. 159); S.I. 2002/2811, art. 2, Sch.

Modifications etc. (not altering text)

C13Ss. 40-43: power to apply (with modifications) or amend conferred (prosp.) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 124(6)(7), 162(1) (with s. 159)

41 Visas for transit passengers.E+W+S+N.I.

(1)The Secretary of State may by order require transit passengers to hold a transit visa.

(2)Transit passengers” means persons of any description specified in the order who on arrival in the United Kingdom pass through to another country without entering the United Kingdom; and “transit visa” means a visa for that purpose.

(3)The order—

(a)may specify a description of persons by reference to nationality, citizenship, origin or other connection with any particular country but not by reference to race, colour or religion;

(b)may not provide for the requirement imposed by the order to apply to any person who under the 1971 Act has the right of abode in the United Kingdom;

(c)may provide for any category of persons of a description specified in the order to be exempt from the requirement imposed by the order;

(d)may make provision about the method of application for visas required by the order.

Annotations:

Modifications etc. (not altering text)

C14Ss. 40-43: power to apply (with modifications) or amend conferred (prosp.) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 124(6)(7), 162(1) (with s. 159)

42 Power to detain vehicles etc. in connection with charges under section 40.E+W+S+N.I.

F42. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

InterpretationE+W+S+N.I.

43 Interpretation of Part II.E+W+S+N.I.

[F43(1)]In this Part—

[F51(2)A reference in this Part to “the court” is a reference—

(a)in England and Wales, to a county court,

(b)in Scotland, to the sheriff, and

(c)in Northern Ireland, to a county court.

(3)But—

(a)a county court may transfer proceedings under this Part to the High Court, and

(b)the sheriff may transfer proceedings under this Part to the Court of Session.]

Annotations:

Amendments (Textual)

F44S. 43(1): words in definition of "concealed" substituted (8.12.2002) by Nationality, Immigration and Asylum Act 2002 (c. 41), s. 125, Sch. 8 para. 15(a) (with s. 159); S.I. 2002/2811, art. 2, Sch.

F46S. 43(1): definitions of "freight shuttle wagon" and "freight train" inserted (8.12.2002) by Nationality, Immigration and Asylum Act 2002 (c. 41), s. 125, Sch. 8 para. 15(c) (with s. 159); S.I. 2002/2811, art. 2, Sch.

F47S. 43(1): in definition of "owner" paragraph (b) and preceding word repealed (8.12.2002) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 161, Sch. 8 para. 15(d), Sch. 9 (with s. 159); S.I. 2002/2811, art. 2, Sch.

F48S. 43(1): definition of "rail freight wagon" substituted (8.12.2002) by Nationality, Immigration and Asylum Act 2002 (c. 41), s. 125, Sch. 8 para. 15(e) (with s. 159); S.I. 2002/2811, art. 2, Sch.

F50S. 43(1): words in definition of "transporter" substituted (8.12.2002) by Nationality, Immigration and Asylum Act 2002 (c. 41), s. 125, Sch. 8 para. 15(g) (with s. 159); S.I. 2002/2811, art. 2, Sch.

Modifications etc. (not altering text)

C15S. 43 applied (with modifications) (7.2.2001 for certain purposes and otherwise 1.3.2001) by S.I. 2001/280, arts. 1-4 (with art. 5)

C16Ss. 40-43: power to apply (with modifications) or amend conferred (prosp.) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 124(6)(7), 162(1) (with s. 159)

Marginal Citations

Prospective

Part IIIE+W+S+N.I. Bail

Routine bail hearingsE+W+S+N.I.

44 Bail hearings for detained persons.E+W+S+N.I.

(1)This section applies if a person is detained under any provision of the 1971 Act.

(2)The Secretary of State must arrange a reference to the court for it to determine whether the detained person should be released on bail.

(3)The duty under this section to arrange a reference does not apply if the detained person—

(a)is also detained otherwise than under a provision of the 1971 Act;

(b)is liable (under section 3(6) of that Act) to deportation as a result of the recommendation of a court; or

(c)has given to the Secretary of State, and has not withdrawn, written notice that he does not wish his case to be referred to a court under this section.

(4)The Secretary of State must secure that a first reference to the court is made—

(a)in the case of a reference to the Commission, in accordance with rules; and

(b)in any other case, no later than the eighth day following that on which the detained person was detained.

(5)If the detained person remains in detention, the Secretary of State must secure that a second reference to the court is made—

(a)in the case of a reference to the Commission, in accordance with rules; and

(b)in any other case, no later than the thirty-sixth day following that on which the detained person was detained.

(6)A reference under subsection (5) may not be heard by the court before the thirty-third day following that on which the detained person was detained.

(7)The court hearing a case referred to it under this section must proceed as if the detained person had made an application to it for bail.

(8)The court must determine the matter—

(a)in the case of a reference to the Commission, in accordance with rules; and

(b)in any other case—

(i)on a first reference, before the tenth day following that on which the person concerned was detained; and

(ii)on a second reference, before the thirty-eighth day following that on which he was detained.

(9)Subsection (8) does not apply if the detained person has been released or has given notice under subsection (3)(c).

(10)If it appears to the Secretary of State that there has been a failure to comply with subsection (4) or (5), he must refer the matter to the court, and the court must deal with the reference, as soon as is reasonably practicable.

(11)If it appears to the Secretary of State that there has been a failure to comply with subsection (8), he must notify the court concerned, and the court must deal with the matter, as soon as is reasonably practicable.

(12)In this Part “court” means—

(a)if the detained person has brought an appeal under the Immigration Acts, the court or other appellate authority dealing with his appeal;

(b)in the case of a detained person to whom section 3(2) of the M18Special Immigration Appeals Commission Act 1997 applies (jurisdiction in relation to bail for persons detained on grounds of national security), the Commission; and

(c)in any other case, such magistrates’ court as the Secretary of State considers appropriate or, in Scotland, an adjudicator.

(13)Rules made by the Lord Chancellor under section 5 of the Special Immigration Appeals Commission Act 1997 may include provision made for the purposes of this section; and in subsections (4), (5) and (8) “rules” means rules made by virtue of this subsection.

(14)The Secretary of State may by regulations make provision modifying the application of this section in relation to cases where the proceedings on a reference under this section are adjourned to enable medical or other reports to be obtained or for any other reason.

(15)The regulations may, in particular, provide for the requirement for there to be a second reference not to apply in prescribed circumstances.

(16)This section does not affect any other provision under which the detained person may apply for, or be released on, bail.

Annotations:

Marginal Citations

45 Location of bail hearings.E+W+S+N.I.

(1)The Secretary of State may, in relation to a particular case or class of case, direct that the hearing of a reference under section 44 is to be at a specified place.

(2)The places that may be specified include, in particular—

(a)any place at which a court sits;

(b)any place at which appeals under this Act are heard;

(c)detention centres;

(d)prisons; or

(e)any particular premises or rooms within a place of a kind mentioned in paragraphs (a) to (d).

(3)A direction under subsection (1) has effect notwithstanding any other direction which may be given as to the place in which the court is to sit.

(4)A direction under subsection (1) requires the approval of the Lord Chancellor.

(5)Specified” means specified in the direction.

46 General right to be released on bail.E+W+S+N.I.

(1)On a reference under section 44, the court must release the detained person on bail unless—

(a)subsection (2), (3) or (4) applies; or

(b)the court has imposed a requirement under section 47(1) which has not been complied with.

(2)The detained person need not be granted bail if the court is satisfied that there are substantial grounds for believing that if released on bail he would—

(a)fail to comply with one or more of the conditions of bail or of any recognizance or bail bond;

(b)commit an offence while on bail which is punishable with imprisonment;

(c)be likely to cause danger to public health; or

(d)alone or with others, be a serious threat to the maintenance of public order.

(3)The detained person need not be granted bail if the court is satisfied that—

(a)he is or has been knowingly involved with others in a concerted attempt by all or some of them to enter the United Kingdom in breach of immigration law;

(b)he is suffering from mental disorder and his continued detention is necessary in his own interests or for the protection of any other person;

(c)he is under the age of 18 and, while arrangements ought to be made for his care in the event of his release from detention, no satisfactory arrangements have been made;

(d)he is required to submit to an examination by an immigration officer under paragraph 2 or 2A of Schedule 2 to the 1971 Act and there is no relevant decision which the officer is in a position to take; or

(e)directions for his removal from the United Kingdom are in force.

(4)The detained person need not be granted bail if the court is satisfied that he is a person to whom section 3(2) of the M19Special Immigration Appeals Commission Act 1997 (national security cases) applies.

(5)For the purposes of this section, the question whether an offence is one which is punishable with imprisonment is to be determined without regard to any enactment prohibiting or restricting the imprisonment of young offenders or first offenders.

(6)Immigration law” means any provision of the Immigration Acts or any similar provision in force in any part of the British Islands.

(7)Each of the following is a relevant decision—

(a)a decision as to whether, and if so how, to exercise the powers conferred by paragraph 21 of Schedule 2 to the 1971 Act;

(b)a decision as to whether to grant the person concerned leave to enter, or remain in, the United Kingdom;

(c)a decision as to whether to cancel his leave to enter the United Kingdom under paragraph 2A(8) of that Schedule.

(8)The Secretary of State may by order amend subsection (2) or (3) by adding to or restricting the circumstances in which the subsection applies.

(9)If bail is granted under this section, the appropriate court may, on an application by or on behalf of the person released, vary any condition on which it was granted.

(10)If bail is granted under this section, the appropriate court may, on an application by or on behalf of the Secretary of State, vary any condition on which it was granted or impose conditions on it.

(11)Appropriate court” means—

(a)if the person released has brought an appeal under the Immigration Acts, the court or other appellate body dealing with his appeal;

(b)in any other case, the court which released the person concerned on bail.

Annotations:

Marginal Citations

47 Powers exercisable on granting bail.E+W+S+N.I.

(1)Before releasing a person on bail under section 46, the court may require—

(a)a recognizance or, in Scotland, a bail bond to be entered into; or

(b)security to be given by the person bailed or on his behalf.

(2)The court may impose a requirement under subsection (1) only if it considers that its imposition is necessary to secure compliance with any condition to which bail granted under section 46 will be subject as a result of subsection (3), (4) or (5).

(3)Bail granted under section 46 by the Commission is subject to a condition requiring the person bailed to appear before it at a specified time and place.

(4)Bail granted under section 46 by a court or other appellate authority (other than the Commission) dealing with an appeal by the person bailed is subject to a condition requiring him—

(a)to appear before the court or authority at a time and place specified by it; and

(b)if the appeal is dismissed, withdrawn or abandoned, to appear before an immigration officer at such time and place as may be notified to him in writing by an immigration officer.

(5)In any other case, bail granted under section 46 is subject to a condition requiring the person bailed to appear before an immigration officer—

(a)at a time and place specified by the court; or

(b)at such other time and place as may be notified to him in writing by an immigration officer.

(6)Bail granted under section 46 may be subject to such other conditions as appear to the court to be likely to result in the appearance of the person bailed at the required time and place.

(7)A recognizance taken under this section may be with or without sureties, as the court may determine.

(8)Subsections (9) and (10) apply if, on a reference under section 44, the court has power to release the detained person on bail but is not required to do so by section 46.

(9)The court may, instead of releasing him—

(a)fix the amount of any recognizance, bail bond or security to be taken on his release on bail (including the amount in which any sureties are to be bound); and

(b)settle the terms of any conditions to be imposed on his release on bail.

(10)The person concerned must be released on bail on the recognizance or bond being taken, or the security being given.

(11)A person released on bail under section 46 is to be subject to such restrictions (if any) as to his employment or occupation while he is in the United Kingdom as may from time to time be notified to him in writing by an immigration officer.

(12)Any restriction imposed on a person under subsection (11) has effect for the purposes of this Part as a condition of his bail.

48 Forfeiture.E+W+S+N.I.

(1)If it appears to a court that a mandatory bail condition has been broken, it may—

(a)by order declare the recognizance to be forfeited; and

(b)order any person bound by the recognizance (whether as principal or surety) to pay the sum in which he is bound or such part of that sum, if any, as the court thinks fit.

(2)Mandatory bail condition” means a condition—

(a)to which bail granted under section 46 is subject as a result of section 47(3), (4) or (5); and

(b)in relation to which the court has taken a recognizance under section 47.

(3)If the court which makes an order under subsection (1) is not a magistrates’ court, it must—

(a)specify a magistrates’ court which is, for the purposes of collection, enforcement and remission of the sum forfeited, to be treated as the court which ordered the forfeiture; and

(b)as soon as practicable give particulars of the recognizance to—

(i)in England and Wales, the justices’ chief executive appointed by the magistrates’ court committee whose area includes the petty sessions area, or

(ii)in Northern Ireland, the clerk of petty sessions for the petty sessions district,

for which the specified court acts.

(4)Any sum collected as a result of subsection (3)(a) must be paid to the Lord Chancellor.

(5)The Lord Chancellor may, with the approval of the Treasury, make regulations as to the times at which and the manner in which accounts for, and payments of, sums collected as a result of subsection (3)(a) must be made and for the keeping and auditing of accounts in relation to such sums.

(6)If a person fails to comply with any of the conditions of a bail bond taken by a court under section 47, the court may declare the bail to be forfeited.

(7)Any bail forfeited by a court under subsection (6)—

(a)must be transmitted to the sheriff court having jurisdiction in the area where the proceedings took place; and

(b)is to be treated as having been forfeited by that court.

49 Forfeiture of securities.E+W+S+N.I.

(1)If a court is satisfied that a person (“A”) by whom, or on whose behalf, security has been given under section 47 has broken a mandatory bail condition, it may order the security to be forfeited unless it appears that A had reasonable cause for breaking the condition.

(2)The order may provide for the forfeiture to extend to a specified amount which is less than the value of the security.

(3)An order under subsection (1) takes effect, unless previously revoked, at the end of the period of 21 days beginning with the day on which it is made.

(4)Any sum forfeited as a result of this section must be paid to the Lord Chancellor.

(5)Subsection (6) applies if a court which has made an order under subsection (1) is satisfied, on an application made by or on behalf of the person who gave the security, that A did after all have reasonable cause for breaking the condition.

(6)The court may by order—

(a)remit the forfeiture; or

(b)provide for it to extend to a specified amount which is less than the value of the security.

(7)An application under subsection (5)—

(a)may be made before or after the order for forfeiture has taken effect; but

(b)may not be entertained unless the court is satisfied that the Secretary of State was given reasonable notice of the applicant’s intention to make the application.

(8)The Lord Chancellor may, with the approval of the Treasury, make regulations as to the times at which and the manner in which accounts for, and payments of, sums forfeited as a result of this section must be made and for keeping and auditing of accounts in relation to such sums.

(9)Mandatory bail condition” means a condition—

(a)to which bail granted under section 46 is subject as a result of section 47(3), (4) or (5); and

(b)in relation to which a person has given security under section 47.

50 Power of arrest.E+W+S+N.I.

(1)An immigration officer or constable who has reasonable grounds for believing that a person released on a reference under section 44 has broken or is likely to break any condition on which he was bailed, may arrest him without a warrant.

(2)Subsection (3) applies if a person other than the person bailed (“a third party”)—

(a)has agreed to act as a surety in relation to a recognizance entered into under section 47; or

(b)has given security on behalf of the person bailed under that section.

(3)If an immigration officer or constable is notified in writing by a third party—

(a)of his belief that a person released on a reference under section 44 is likely to break the condition that he must appear at the time and place required; and

(b)of the third party’s wish, for that reason, to be relieved of his obligations as a surety or to have the security given returned to him,

the officer or constable may arrest the person released without a warrant.

(4)Subsection (5) applies if—

(a)a justice of the peace is, by written information on oath, satisfied that there are reasonable grounds for suspecting that a person liable to be arrested under this section is to be found on any premises;

(b)in Scotland, the sheriff or a justice of the peace is by evidence on oath so satisfied; or

(c)in Northern Ireland, a justice of the peace is by written complaint on oath so satisfied.

(5)The justice of the peace or the sheriff may grant a warrant authorising any immigration officer or constable to enter, if need be by reasonable force, the premises named in the warrant for the purpose of searching for and arresting the person concerned.

(6)A person arrested under this section must, if required by a condition on which he was released to appear before an immigration officer within 24 hours after his arrest, be brought before an immigration officer within that period.

(7)A person arrested under this section must, if he was released under section 46 by the Commission, be brought before it within twenty-four hours after his arrest.

(8)Subsection (9) applies if a person has been arrested under this section and—

(a)neither subsection (6) nor subsection (7) applies to him; or

(b)he has been brought before an immigration officer under subsection (6) but has not been released.

(9)The arrested person must be brought before—

(a)a justice of the peace acting for the petty sessions area in which he was arrested;

(b)in Scotland, an adjudicator or, if that is not practicable within 24 hours after his arrest, the sheriff; or

(c)in Northern Ireland, a magistrates’ court acting for the county court division in which he was arrested.

(10)If subsection (9) applies, the arrested person must be brought before the person or court concerned—

(a)as soon as is practicable after his arrest; and

(b)if subsection (9)(a) or (c) applies, in any event within 24 hours after his arrest.

(11)Subsections (12) and (13) apply in relation to an arrested person dealt with under subsection (7) or (9).

(12)The court or person dealing with the matter may, if of the opinion that the arrested person has broken or is likely to break any condition on which he was released—

(a)give a direction that the arrested person be detained under the authority of the person by whom he was arrested;

(b)release him on his original bail; or

(c)release him on a new recognizance (with or without sureties) or on new bail.

(13)If not of that opinion, that court or person must release the arrested person on his original bail.

(14)In reckoning any period of 24 hours for the purposes of this section, no account is to be taken of Christmas Day, Good Friday or any Sunday.

ProcedureE+W+S+N.I.

51 Procedure.E+W+S+N.I.

(1)Any rules made in connection with bail hearings resulting from any provision of, or made under, this Part must include provision requiring the Secretary of State to notify—

(a)the detained person who is the subject of the hearing of a reference under section 44, and

(b)if the Secretary of State is aware that that person will be represented at the hearing (whether or not by an authorised advocate), the person who will be representing him at the hearing,

of the date, place and time of the hearing as soon as is reasonably practicable after the Secretary of State is given that information by the magistrates’ court.

(2)If a person has been refused bail—

(a)on a reference under section 44, or

(b)on an application under the 1971 Act, the M20Asylum and Immigration Appeals Act 1993 or the M21Special Immigration Appeals Commission Act 1997,

he may, on the first subsequent such reference or application, advance any argument as to fact or law.

(3)But on any subsequent such reference or application the court need not hear any argument as to fact or law that that court has heard previously.

(4)A magistrates’ court dealing with a reference under section 44 must sit in open court unless—

(a)the detained person has made a claim for asylum and the court considers that there are compelling reasons why it should sit in private; or

(b)the court considers that the interests of the administration of justice require it to sit in private.

(5)Any proceedings before a magistrates’ court or the sheriff under this Part may be conducted—

(a)on behalf of the Secretary of State, by a person authorised by him, or

(b)on behalf of the detained person, by a person nominated by him,

even though that person is not an authorised advocate.

(6)“Authorised advocate”—

(a)in relation to England and Wales, has the meaning given by section 119 of the M22Courts and Legal Services Act 1990;

(b)in relation to Scotland, means an advocate or solicitor;

(c)in relation to Northern Ireland, means a barrister or solicitor.

(7)Rules” means rules made by the Lord Chancellor under section 144 of the M23Magistrates’ Courts Act 1980 or under any corresponding provision having effect in Northern Ireland.

Annotations:

Marginal Citations

52 Use of live television links at bail hearings.E+W+S+N.I.

(1)On a reference under section 44, the court may, after hearing representations from the parties, direct that the detained person is to be treated as being present in the court if he is able (whether by means of a live television link or otherwise) to see and hear the court and to be seen and heard by it.

(2)If the detained person wishes to make representations under subsection (1) he must do so by using the facilities that will be used if the court decides to give the proposed direction.

(3)If, after hearing representations from the parties, the court decides not to give a direction, it must give its reasons for refusing.

(4)The court may not give a direction unless—

(a)it has been notified by the Secretary of State that facilities are available in the relevant institution which will enable the detained person to see and hear the court and to be seen and heard by it; and

(b)the notice has not been withdrawn.

(5)Relevant institution” means the institution in which the detained person will be detained at the time of the bail hearing.

Bail hearings under other enactmentsE+W+S+N.I.

53 Applications for bail in immigration cases.E+W+S+N.I.

(1)The Secretary of State may by regulations make new provision in relation to applications for bail by persons detained under the 1971 Act.

(2)The regulations may confer a right to be released on bail in prescribed circumstances.

(3)The regulations may, in particular, make provision—

(a)creating or transferring jurisdiction to hear an application for bail by a person detained under the 1971 Act;

(b)as to the places in which such an application may be held;

(c)as to the procedure to be followed on, or in connection with, such an application;

(d)as to circumstances in which, and conditions (including financial conditions) on which, an applicant may be released on bail;

(e)amending or repealing any enactment so far as it relates to such an application.

(4)The regulations must include provision for securing that an application for bail made by a person who has brought an appeal under any provision of this Act or the M24Special Immigration Appeals Commission Act 1997 is heard by the appellate authority hearing that appeal.

(5)When exercising his power under subsection (1), the Secretary of State must have regard to the desirability, in relation to applications for bail by persons detained under the 1971 Act, of making provision similar to that which is made by this Part in relation to references to the court under section 44.

(6)Regulations under this section require the approval of the Lord Chancellor.

(7)In so far as regulations under this section relate to the sheriff or the Court of Session, the Lord Chancellor must obtain the consent of the Scottish Ministers before giving his approval.

Annotations:

Marginal Citations

54 Extension of right to apply for bail in deportation cases.E+W+S+N.I.

(1)Paragraph 2 of Schedule 3 to the 1971 Act (detention or control pending deportation) is amended as follows.

(2)In sub-paragraph (1), at the end insert “ or he is released on bail ”.

(3)In sub-paragraph (3), after “unless” insert “ he is released on bail or ”.

(4)After sub-paragraph (4) insert—

(4A)Paragraphs 22 to 25 of Schedule 2 to this Act apply in relation to a person detained under sub-paragraph (1), (2) or (3) as they apply in relation to a person detained under paragraph 16 of that Schedule.

GrantsE+W+S+N.I.

55 Grants to voluntary organisations.E+W+S+N.I.

(1)The Secretary of State may, with the approval of the Treasury, make grants to any voluntary organisation which provides advice or assistance for detained persons in connection with proceedings under this Part.

(2)Grants may be made on such terms, and subject to such conditions, as the Secretary of State may determine.

Part IVE+W+S+N.I. Appeals

The appellate authoritiesE+W+S+N.I.

56 The Immigration Appeal Tribunal.E+W+S+N.I.

(1)There is to continue to be an Immigration Appeal Tribunal.

(2)Schedule 2 makes further provision about the Tribunal.

Annotations:

Modifications etc. (not altering text)

C17S. 56 modified (14.2.2000) by S.I. 2000/168, art. 3

57 Adjudicators.E+W+S+N.I.

(1)There are to be such number of adjudicators for the purposes of this Act as the Lord Chancellor may determine.

(2)The Lord Chancellor must appoint one of the adjudicators as Chief Adjudicator.

(3)Schedule 3 makes further provision about the adjudicators.

Annotations:

Modifications etc. (not altering text)

C18S. 57 modified (14.2.2000) by S.I. 2000/168, art. 3

AppealsE+W+S+N.I.

58 General.E+W+S+N.I.

(1)The right of appeal given by a particular provision of this Part is to be read with any other provision of this Part which restricts or otherwise affects that right.

(2)Part I of Schedule 4 makes provision with respect to the procedure applicable in relation to appeals under this Part.

(3)Part II of Schedule 4 makes provision as to the effect of appeals.

(4)Part III of Schedule 4 makes provision—

(a)with respect to the determination of appeals under this Part; and

(b)for further appeals.

(5)For the purposes of the Immigration Acts, an appeal under this Part is to be treated as pending during the period beginning when notice of appeal is given and ending when the appeal is finally determined, withdrawn or abandoned.

(6)An appeal is not to be treated as finally determined while a further appeal may be brought.

(7)If such a further appeal is brought, the original appeal is not to be treated as finally determined until the further appeal is determined, withdrawn or abandoned.

(8)A pending appeal under this Part is to be treated as abandoned if the appellant leaves the United Kingdom.

(9)A pending appeal under any provision of this Part other than section 69(3) is to be treated as abandoned if the appellant is granted leave to enter or remain in the United Kingdom.

(10)A pending appeal under section 61 is to be treated as abandoned if a deportation order is made against the appellant.

Annotations:

Modifications etc. (not altering text)

C19S. 58(2) modified (1.8.2000) by S.I. 2000/1985, art. 3(1)(3)

Commencement Information

I12S. 58 wholly in force at 2.10.2000; s. 58 not in force at Royal Assent see s. 170(4); s. 58(2) in force for certain purposes at 14.2.2000 by S.I. 2000/168, art. 2, Sch. (with transitional provisions in art. 3); s. 58(2) in force for certain purposes at 22.5.2000 by S.I. 2000/1282, art. 2, Sch.; s. 58 in force, so far as not already in force at 2.10.2000 by S.I. 2000/2444, art. 2, Sch.(subject to transitional provisions in arts. 3, 4, Sch. 2)

Leave to enterE+W+S+N.I.

59 Leave to enter the United Kingdom.E+W+S+N.I.

(1)A person who is refused leave to enter the United Kingdom under any provision of the 1971 Act may appeal to an adjudicator against—

(a)the decision that he requires leave; or

(b)the refusal.

(2)A person who, on an application duly made, is refused a certificate of entitlement or an entry clearance may appeal to an adjudicator against the refusal.

(3)Subsection (4) applies if a person appeals under this section on being refused leave to enter the United Kingdom and—

(a)before he appeals, directions have been given for his removal from the United Kingdom; or

(b)before or after he appeals, the Secretary of State or an immigration officer serves on him notice that any directions which may be given for his removal as a result of the refusal will be for his removal to a country or one of several countries specified in the notice.

(4)The appellant may—

(a)object to the country to which he would be removed in accordance with the directions, or

(b)object to the country specified in the notice (or to one or more of those specified),

and claim that he ought to be removed (if at all) to a different country specified by him.

Annotations:

Modifications etc. (not altering text)

C20S. 59 restricted (2.10.2000) by S.I. 2000/2444, art. 3, Sch. 2 para. 1(4)

S. 59 applied (2.10.2000) by S.I. 2000/2444, art. 3, Sch. 2 para. 1(10)

Commencement Information

I13S. 59 wholly in force at 2.10.2000 by S.I. 2000/2444, art. 2, Sch. 1 (subject to the transitional provisions in arts. 3, 4, Sch. 2)

60 Limitations on rights of appeal under section 59.E+W+S+N.I.

(1)Section 59 does not entitle a person to appeal, on the ground that he has a right of abode in the United Kingdom, against a decision that he requires leave to enter the United Kingdom if he does not hold—

(a)a United Kingdom passport describing him as a British citizen or as a citizen of the United Kingdom and Colonies having the right of abode in the United Kingdom; or

(b)a certificate of entitlement.

(2)Section 59 does not entitle a person to appeal, on the ground that he does not require leave to enter the United Kingdom, against a decision that he does require such leave if he is required by immigration rules or an order under section 8(2) of the 1971 Act to hold a specified document but does not do so.

(3)Section 59 does not entitle a person to appeal against a refusal of leave to enter while he is in the United Kingdom unless, at the time of the refusal, he held a current entry clearance or was a person named in a current work permit.

(4)Subsection (5) applies to a person who seeks to enter the United Kingdom—

(a)as a visitor;

(b)in order to follow a course of study of not more than six months’ duration for which he has been accepted;

(c)with the intention of studying but without having been accepted for any course of study; or

(d)as a dependant of a person within paragraph (a), (b) or (c).

(5)That person—

(a)is not entitled to appeal under section 59 against a refusal of an entry clearance unless he is a family visitor; and

(b)is not entitled to appeal against a refusal of leave to enter if he does not hold a current entry clearance at the time of the refusal.

(6)The Secretary of State may by regulations make provision—

(a)requiring a family visitor appealing under section 59 to pay such fee as may be fixed by the regulations;

(b)for such an appeal not to be entertained unless the required fee has been paid by the appellant;

(c)for the repayment of any such fee if the appeal is successful.

(7)Section 59 does not entitle a person to appeal against a refusal of leave to enter, or against a refusal of an entry clearance, if the refusal is on the ground that he or any person whose dependant he is—

(a)does not hold a relevant document required by the immigration rules;

(b)does not satisfy a requirement of the immigration rules as to age or nationality or citizenship; or

(c)seeks entry for a period exceeding that permitted by the immigration rules.

(8)The following are relevant documents—

(a)entry clearances;

(b)passports or other identity documents; and

(c)work permits.

(9)Section 59 does not entitle a person to appeal against a refusal of leave to enter, or against a refusal of an entry clearance, if—

(a)the Secretary of State certifies that directions have been given by the Secretary of State (and not by a person acting under his authority) for the appellant not to be given entry to the United Kingdom on the ground that his exclusion is conducive to the public good; or

(b)the leave to enter, or entry clearance, was refused in compliance with any such directions.

(10)Family visitor” has such meaning as may be prescribed.

Annotations:

Commencement Information

I14S. 60 wholly in force at 2.10.2000; s. 60 not in force at Royal Assent see s. 170(4); s. 60(6)(10) in force at 22.5.2000 by S.I. 2000/1282, art. 2, Sch.; s. 60 in force, so far as not already in force, at 2.10.2000 by S.I. 2000/2444, art. 2, Sch. 1 (subject to arts. 3, 4, Sch. 2).

Variation of limited leave to enter or remainE+W+S+N.I.

61 Variation of limited leave to enter or remain.E+W+S+N.I.

A person may appeal against a decision to vary, or to refuse to vary, any limited leave to enter or remain in the United Kingdom which he has if, as a result of that decision, he may be required to leave the United Kingdom within 28 days of being notified of the decision.

Annotations:

Modifications etc. (not altering text)

C21S. 61 restricted (2.10.2000) by S.I. 2000/2444, art. 3, Sch. 2 para. 1(5)

Commencement Information

I15Ss. 61-65 wholly in force at 2.10.2000 by S.I. 2000/2444, art. 2, Sch. 1 (subject to the transitional provisions in arts. 3, 4, Sch. 2 (as amended by S.I. 2000/3099, art. 5))

62 Limitations on rights of appeal under section 61.E+W+S+N.I.

(1)Section 61 does not entitle a person or a person whose dependant he is to appeal against a refusal to vary leave if the refusal is on the ground that—

(a)a relevant document which is required by the immigration rules has not been issued;

(b)the person does not satisfy a requirement of the immigration rules as to age or nationality or citizenship;

(c)the variation would result in the duration of a person’s leave exceeding that permitted by the immigration rules; or

(d)any fee required by or under any enactment has not been paid.

(2)The following are relevant documents—

(a)entry clearances;

(b)passports or other identity documents; and

(c)work permits or equivalent documents issued after entry.

(3)Section 61 does not entitle a person to appeal against a refusal to vary leave if either of the following conditions is satisfied.

(4)The conditions are—

(a)that the Secretary of State has certified that the appellant’s departure from the United Kingdom would be conducive to the public good as being in the interests of national security, the relations between the United Kingdom and any other country or for other reasons of a political nature; or

(b)that the decision questioned by the appeal was taken on that ground by the Secretary of State (and not by a person acting under his authority).

(5)A person is not entitled to appeal under section 61 against—

(a)a variation made by statutory instrument; or

(b)a refusal of the Secretary of State to make a statutory instrument.

Annotations:

Commencement Information

I16Ss. 61-65 wholly in force at 2.10.2000 by S.I. 2000/2444, art. 2, Sch. 1 (subject to the transitional provisions in arts. 3, 4, Sch. 2)

DeportationE+W+S+N.I.

63 Deportation orders.E+W+S+N.I.

(1)A person may appeal to an adjudicator against—

(a)a decision of the Secretary of State to make a deportation order against him under section 5(1) of the 1971 Act as a result of his liability to deportation under section 3(5) of that Act; or

(b)a refusal by the Secretary of State to revoke a deportation order made against him.

(2)A deportation order is not to be made against a person under section 5(1) of the 1971 Act while an appeal may be brought against the decision to make it.

(3)Subsection (4) applies if—

(a)a person appeals under this section; and

(b)before or after he appeals, the Secretary of State serves on him notice that any directions which may be given for his removal as a result of the deportation order will be for his removal to a country or one of several countries specified in the notice.

(4)The appellant may object to the country specified in the notice (or to one or more of those specified), and claim that he ought to be removed (if at all) to a different country specified by him.

Annotations:

Modifications etc. (not altering text)

C22S. 63 restricted (2.10.2000) by S.I. 2000/2444, art. 3, Sch. 2 para. 1(6)

S. 63 applied (2.10.2000) by S.I. 2000/2444, art. 3, Sch. 2 para. 1(10)

Commencement Information

I17Ss. 61-65 wholly in force at 2.10.2000 by S.I. 2000/2444, art. 2, Sch. 1 (subject to the transitional provisions in arts. 3, 4, Sch. 2)

64 Limitations on rights of appeal under section 63.E+W+S+N.I.

(1)Section 63 does not entitle a person to appeal against a decision to make a deportation order against him if the ground of the decision was that his deportation is conducive to the public good as being in the interests of national security or of the relations between the United Kingdom and any other country or for other reasons of a political nature.

(2)Section 63 does not entitle a person to appeal against a refusal to revoke a deportation order, if—

(a)the Secretary of State has certified that the appellant’s exclusion from the United Kingdom would be conducive to the public good; or

(b)revocation was refused on that ground by the Secretary of State (and not by a person acting under his authority).

(3)Section 63 does not entitle a person to appeal against a refusal to revoke a deportation order while he is in the United Kingdom, whether because he has not complied with the requirement to leave or because he has contravened the prohibition on entering.

(4)Subsection (5) applies to—

(a)an appeal against a decision to make a deportation order against a person as belonging to the family of another person; or

(b)an appeal against a refusal to revoke a deportation order so made.

(5)The appellant is not to be allowed, for the purpose of showing that he does not or did not belong to another person’s family, to dispute any statement made with a view to obtaining leave for the appellant to enter or remain in the United Kingdom (including any statement made to obtain an entry clearance).

(6)But subsection (5) does not apply if the appellant shows—

(a)that the statement was not so made by him or by any person acting with his authority; and

(b)that, when he took the benefit of the leave, he did not know any such statement had been made to obtain it or, if he did know, he was under the age of eighteen.

Annotations:

Commencement Information

I18Ss. 61-65 wholly in force at 2.10.2000 by S.I. 2000/2444, art. 2, Sch. 1 (subject to the transitional provisions in arts. 3, 4, Sch. 2)

Human rightsE+W+S+N.I.

65[F52Racial discrimination and breach of human rights.]E+W+S+N.I.

(1)A person who alleges that an authority has, in taking any decision under the Immigration Acts relating to that person’s entitlement to enter or remain in the United Kingdom, [F53racially discriminated against him or] acted in breach of his human rights may appeal to an adjudicator against that decision unless he has grounds for bringing an appeal against the decision under the M25Special Immigration Appeals Commission Act 1997.

(2)For the purposes of this Part [F54

(a)an authority racially discriminates against a person if he acts, or fails to act, in relation to that other person in a way which is unlawful by virtue of section 19B of the M26Race Relations Act 1976; and

(b)]an authority acts in breach of a person’s human rights if he acts, or fails to act, in relation to that other person in a way which is made unlawful by section 6(1) of the M27Human Rights Act 1998.

(3)Subsections (4) and (5) apply if, in proceedings before an adjudicator or the Immigration Appeal Tribunal on an appeal, a question arises as to whether an authority has, in taking any decision under the Immigration Acts relating to the appellant’s entitlement to enter or remain in the United Kingdom, [F55racially discriminated against the appellant or] acted in breach of the appellant’s human rights.

(4)The adjudicator, or the Tribunal, has jurisdiction to consider the question.

(5)If the adjudicator, or the Tribunal, decides that the authority concerned [F56

(a)racially discriminated against the appellant; or

(b)]acted in breach of the appellant’s human rights, the appeal may be allowed on [F57the ground in question].

(6)No appeal may be brought under this section by any person in respect of a decision if—

(a)that decision is already the subject of an appeal brought by him under the Special Immigration Appeals Commission Act 1997; and

(b)the appeal under that Act has not been determined.

(7)Authority” means—

(a)the Secretary of State;

(b)an immigration officer;

(c)a person responsible for the grant or refusal of entry clearance.

Annotations:

Amendments (Textual)

F52Side-note to s. 65 substituted (2.4.2001) by 2000 c. 34, s. 9(1), Sch. 2 para. 34 (with s. 10(5)); S.I. 2001/566, art. 2(1)

F53Words in s. 65(1) inserted (2.4.2001) by 2000 c. 34, s. 6(3) (with s. 10(5)); S.I. 2001/566, art. 2(1)

F54S. 65(2)(a) and word “(b)" inserted (2.4.2001) by 2000 c. 34, s. 6(4), (with s. 10(5)); S.I. 2001/566, art. 2(1)

F55Words in s. 65(3) inserted (2.4.2001) by 2000 c. 34, s. 9(1), Sch. 2 para. 32 (with S. 10(5)); S.I. 2001/566, art. 2(1)

F56S. 65(5)(a) and word “(b)" inserted (2.4.2001) by 2000 c. 34, s. 9(1), Sch. 2 para. 33(a) (with s. 10(5)); S.I. 2001/566, art. 2(1)

F57Words in s. 65(5) substituted (2.4.2001) by 2000 c. 34, s. 9(1), Sch. 2 para. 33(b) (with s. 10(5)); S.I. 2001/566, art. 2(1)

Modifications etc. (not altering text)

C23S. 65 restricted (2.10.2000) by S.I. 2000/2444, art. 3, Sch. 2 para. 1(7)

Commencement Information

I19Ss. 61-65 wholly in force at 2.10.2000 by S.I. 2000/2444, art. 2, Sch. 1 (subject to the transitional provisions in arts. 3, 4, Sch. 2)

Marginal Citations

Directions for removalE+W+S+N.I.

66 Validity of directions for removal.E+W+S+N.I.

(1)This section applies if directions are given for a person’s removal from the United Kingdom—

(a)on the ground that he is an illegal entrant;

(b)under section 10; or

(c)under the special powers conferred by Schedule 2 to the 1971 Act in relation to members of the crew of a ship or aircraft or persons coming to the United Kingdom to join a ship or aircraft as a member of the crew.

(2)That person may appeal to an adjudicator against the directions on the ground that on the facts of his case there was in law no power to give them on the ground on which they were given.

(3)This section does not entitle a person to appeal while he is in the United Kingdom unless he is appealing under section 65 or 69(5).

(4)If a person appeals under this section against directions given by virtue of a deportation order, he may not dispute the original validity of that order.

Annotations:

Modifications etc. (not altering text)

C24S. 66 restricted (2.10.2000) by S.I. 2000/2444, art. 3, Sch. 2 para.1(8)

Commencement Information

I20Ss. 66-71 wholly in force at 2.10.2000 by S.I. 2000/2444, art. 2, Sch. 1 (subject to the transitional provisions in arts. 3, 4, Sch. 2)

Objection to destinationE+W+S+N.I.

67 Removal on objection to destination.E+W+S+N.I.

(1)This section applies if directions are given under the 1971 Act for a person’s removal from the United Kingdom—

(a)on his being refused leave to enter,

(b)on a deportation order being made against him, or

(c)on his having entered the United Kingdom in breach of a deportation order.

(2)That person may appeal to an adjudicator against the directions on the ground that he ought to be removed (if at all) to a different country specified by him.

Annotations:

Modifications etc. (not altering text)

C25S. 67 restricted (2.10.2000) by S.I. 2000/2444, art. 3, Sch. 2 para. 1(9)

C26S. 67 applied (2.10.2000) by S.I. 2000/2326, regs. 9, 25

Commencement Information

I21Ss. 66-71 wholly in force at 2.10.2000 by S.I. 2000/2444, art. 2, Sch. 1 (subject to the transitional provisions in arts. 3, 4, Sch. 2)

68 Limitations on rights of appeal under section 67.E+W+S+N.I.

(1)Section 67 does not entitle a person to appeal against directions given on his being refused leave to enter the United Kingdom unless—

(a)he is also appealing under section 59(1) against the decision that he requires leave to enter; or

(b)he was refused leave at a time when he held a current entry clearance or was a person named in a current work permit.

(2)If a person is entitled to object to a country on an appeal under section 59 or 63 and—

(a)he does not object to it on that appeal, or

(b)his objection to it on that appeal is not sustained,

section 67 does not entitle him to appeal against any directions subsequently given as a result of the refusal or order in question, if their effect will be his removal to that country.

(3)A person who claims that he ought to be removed to a country other than one he has objected to on an appeal under section 59, 63 or 67 must produce evidence, if he is not a national or citizen of that other country, that that country will admit him.

Annotations:

Modifications etc. (not altering text)

C27S. 68 applied (with modifications) (2.10.2000) by S.I. 2000/2326, regs. 9, 25

C28S. 68(2) modified (2.10.2000) by S.I. 2000/2444, art. 3, Sch. 2 para. 1(10)

Commencement Information

I22Ss. 66-71 wholly in force at 2.10.2000 by S.I. 2000/2444, art. 2, Sch. 1 (subject to the transitional provisions in arts. 3, 4, Sch. 2)

AsylumE+W+S+N.I.

69 Claims for asylum.E+W+S+N.I.

(1)A person who is refused leave to enter the United Kingdom under the 1971 Act may appeal against the refusal to an adjudicator on the ground that his removal in consequence of the refusal would be contrary to the Convention.

(2)If, as a result of a decision to vary, or to refuse to vary, a person’s limited leave to enter or remain in the United Kingdom, he may be required to leave the United Kingdom within 28 days of being notified of the decision, he may appeal against the decision to an adjudicator on the ground that such a requirement would be contrary to the Convention.

(3)A person who—

(a)has been refused leave to enter or remain in the United Kingdom on the basis of a claim for asylum made by him, but

(b)has been granted (whether before or after the decision to refuse leave) limited leave to enter or remain,

may, if that limited leave will not expire within 28 days of his being notified of the decision, appeal to an adjudicator against the refusal on the ground that requiring him to leave the United Kingdom after the time limited by that leave would be contrary to the Convention.

(4)If the Secretary of State—

(a)has decided to make a deportation order against a person under section 5(1) of the 1971 Act, or

(b)has refused to revoke such an order,

that person may appeal to an adjudicator against the decision or refusal on the ground that his removal in pursuance of the order would be contrary to the Convention.

(5)If directions are given as mentioned in section 66(1) for the removal of a person from the United Kingdom, he may appeal to an adjudicator on the ground that his removal in pursuance of the directions would be contrary to the Convention.

(6)Contrary to the Convention” means contrary to the United Kingdom’s obligations under the Refugee Convention.

Annotations:

Modifications etc. (not altering text)

C29S. 69(1)-(5) restricted (2.10.2000) by S.I. 2000/2444, art. 3, Sch. 2 para. 1(11)

Commencement Information

I23Ss. 66-71 wholly in force at 2.10.2000 by S.I. 2000/2444, art. 2, Sch. 1 (subject to the transitional provisions in arts. 3, 4, Sch. 2, as amended by S.I. 2000/3099, art. 5 )

70 Limitations on rights of appeal under section 69.E+W+S+N.I.

(1)Section 69(1) does not entitle a person to appeal against a refusal of leave to enter if—

(a)the Secretary of State certifies that directions have been given by the Secretary of State (and not by a person acting under his authority) for the appellant not to be given entry to the United Kingdom on the ground that his exclusion is in the interests of national security; or

(b)the leave to enter was refused in compliance with any such directions.

(2)Section 69(2) does not entitle a person to appeal against—

(a)a variation of his leave which reduces its duration, or

(b)a refusal to enlarge or remove the limit on its duration,

if either of the following conditions is satisfied.

(3)The conditions are—

(a)that the Secretary of State has certified that the appellant’s departure from the United Kingdom would be in the interests of national security; or

(b)that the decision questioned by the appeal was taken on that ground by the Secretary of State (and not by a person acting under his authority).

(4)Section 69(3) does not entitle a person to appeal against a refusal mentioned in paragraph (a) of that subsection if—

(a)the reason for the refusal was that he was a person to whom the Refugee Convention did not apply by reason of Article 1(F) of that Convention; and

(b)the Secretary of State has certified that the disclosure of material on which the refusal was based is not in the interests of national security.

(5)Section 69(4)(a) does not entitle a person to appeal against a decision to make a deportation order against him if the ground of the decision was that his deportation is in the interests of national security.

(6)Section 69(4)(b) does not entitle a person to appeal against a refusal to revoke a deportation order, if—

(a)the Secretary of State has certified that the appellant’s exclusion from the United Kingdom would be in the interests of national security; or

(b)if revocation was refused on that ground by the Secretary of State (and not by a person acting under his authority).

(7)A person may not bring an appeal on any of the grounds mentioned in subsections (1) to (5) of section 69—

(a)if, before the time of the refusal, variation, decision or directions (as the case may be) he has not made a claim for asylum;

(b)otherwise than under that section.

(8)A person may not appeal under section 69(4)(b) if he has had the right to appeal under section 69(4)(a) (whether or not he has exercised it).

Annotations:

Modifications etc. (not altering text)

C30S. 70(8) applied (2.10.2000) by S.I. 2000/2444, art. 3, Sch. 2 para. 1(12)

Commencement Information

I24Ss. 66-71 wholly in force at 2.10.2000 by S.I. 2000/2444, art. 2, Sch. 1 (subject to the transitional provisions in arts. 3, 4, Sch. 2)

Removal to safe countriesE+W+S+N.I.

71 Removal of asylum claimants to safe third countries.E+W+S+N.I.

(1)This section applies if a certificate has been issued under section 11 or 12.

(2)The person in respect of whom the certificate was issued may appeal against it to an adjudicator on the ground that any of the conditions applicable to that certificate was not satisfied when it was issued, or has since ceased to be satisfied.

Annotations:

Commencement Information

I25Ss. 66-71 wholly in force at 2.10.2000 by S.I. 2000/2444, art. 2, Sch. 1 (subject to the transitional provisions in arts. 3, 4, Sch. 2)

MiscellaneousE+W+S+N.I.

72 Miscellaneous limitations on rights of appeal.E+W+S+N.I.

(1)Unless a certificate issued under section 11 or 12 has been set aside on an appeal under section 65 or 71 or otherwise ceases to have effect, the person in respect of whom the certificate was issued is not entitled to appeal under this Act as respects any matter arising before his removal from the United Kingdom.

(2)A person who has been, or is to be, sent to a member State or to a country designated under section 12(1)(b) is not, while he is in the United Kingdom, entitled to appeal—

(a)under section 65 if the Secretary of State certifies that his allegation that a person acted in breach of his human rights [F58or racially discriminated against him] is manifestly unfounded; or

(b)under section 71.

(3)No appeal under this Part may be made in relation to a decision made on an application if—

(a)the application was required to be made in a prescribed form but was not made in that form; or

(b)the applicant was required to take prescribed steps in relation to the application, or to take such steps at a prescribed time or within a prescribed period, but failed to do so.

Annotations:

Amendments (Textual)

Commencement Information

I26S. 72 wholly in force at 2.10.2000; s. 72 not in force at Royal Assent see s. 170(4); s. 72(3) in force for certain purposes at 22.5.2000 by S.I. 2000/1282, art. 2, Sch.; s. 72 in force at 2.10.2000 so far as not already in force by S.I. 2000/2444, art. 2, Sch. 1 (subject to arts. 3, 4, Sch. 2)

73 Limitation on further appeals.E+W+S+N.I.

(1)This section applies where a person (“the appellant”) has appealed under the M28Special Immigration Appeals Commission Act 1997 or this Act and that appeal (“the original appeal”) has been finally determined.

(2)If the appellant serves a notice of appeal making a claim that [F59in taking a decision, a decision-maker racially discriminated against the appellant or that] a decision of a decision-maker was in breach of the appellant’s human rights, the Secretary of State may certify that in his opinion—

(a)the appellant’s claim—

(i)could reasonably have been included in a statement required from him under section 74 but was not so included, or

(ii)could reasonably have been made in the original appeal but was not so made;

(b)one purpose of such a claim would be to delay the removal from the United Kingdom of the appellant or of any member of his family; and

(c)the appellant had no other legitimate purpose for making the claim.

(3)On the issuing of a certificate by the Secretary of State under subsection (2), the appeal, so far as relating to that claim, is to be treated as finally determined.

(4)Subsection (5) applies if a notice under section 74 was served on the appellant before the determination of his original appeal and the appellant has served a further notice of appeal.

(5)The Secretary of State may certify that grounds contained in the notice of appeal were considered in the original appeal.

(6)On the issuing of a certificate by the Secretary of State under subsection (5), the appeal, so far as relating to those grounds, is to be treated as finally determined.

(7)Subsection (8) applies if, on the application of the appellant, an immigration officer or the Secretary of State makes a decision in relation to the appellant.

(8)The immigration officer or, as the case may be, the Secretary of State may certify that in his opinion—

(a)one purpose of making the application was to delay the removal from the United Kingdom of the appellant or any member of his family; and

(b)the appellant had no other legitimate purpose for making the application.

(9)No appeal may be brought under the M29Special Immigration Appeals Commission Act 1997 or this Act against a decision on an application in respect of which a certificate has been issued under subsection (8).

(10)Nothing in section 58(6) affects the operation of subsections (3) and (6).

Annotations:

Amendments (Textual)

F59Words in s. 73(2) inserted (2.4.2001) by 2000 c. 34, s. 9(1), Sch. 2 para. 36 (with s. 10(5)); S.I. 2001/566, art. 2(1)

Modifications etc. (not altering text)

C31S. 73 applied (with modifications) (2.10.2000) by S.I. 2000/2244, reg. 5(3)(4)

Commencement Information

I27S. 73 wholly in force at 2.10.2000 by S.I. 2000/2444, art. 2, Sch. 1 (subject to the transitional provisions in arts. 3, 4, Sch. 2)

Marginal Citations

“One-stop procedure”E+W+S+N.I.

74 Duty to disclose grounds for appeal etc.E+W+S+N.I.

(1)This section applies if—

(a)the decision on an application for leave to enter or remain in the United Kingdom is that the application be refused; and

(b)the applicant, while he is in the United Kingdom, is entitled to appeal against the refusal under the Special Immigration Appeals Commission Act 1997 or this Act.

(2)This section also applies if—

(a)as a result of a decision to vary, or to refuse to vary, any limited leave to enter or remain in the United Kingdom which a person has, he may be required to leave the United Kingdom within 28 days of being notified of the decision; and

(b)that person is entitled to appeal against the decision under the Special Immigration Appeals Commission Act 1997 or this Act.

(3)This section also applies if—

(a)the Secretary of State has decided to make a deportation order against a person under section 5(1) of the 1971 Act as a result of his liability to deportation under section 3(5) of that Act; and

(b)that person, while he is in the United Kingdom, is entitled to appeal against that decision under the Special Immigration Appeals Commission Act 1997 or this Act.

(4)The decision-maker must serve on the applicant and on any relevant member of his family a notice requiring the recipient of the notice to state any additional grounds which he has or may have for wishing to enter or remain in the United Kingdom.

(5)Decision-maker” means the Secretary of State or (as the case may be) an immigration officer.

(6)The statement must be—

(a)in writing; and

(b)served on the Secretary of State before the end of such period as may be prescribed.

(7)A statement required under this section must—

(a)if the person making it wishes to claim asylum, include a claim for asylum;

[F60(aa)if he claims that he was racially discriminated against, include notice of that claim;] and

(b)if he claims that an act breached his human rights, include notice of that claim.

(8)Regulations may prescribe the persons who, in relation to an applicant, are relevant members of his family.

(9)Regulations may prescribe the procedure to be followed in connection with notices given and statements made in accordance with this section and, in particular, may prescribe the form in which such notices and statements are to be given or made.

Annotations:

Amendments (Textual)

F60S. 74(7)(aa) inserted (2.4.2001) by 2000 c. 34, s. 9(1), Sch. 2 para. 37 (with s. 10(5)); 2001/566, art. 2(1)

Commencement Information

I28S. 74 wholly in force at 2.10.2000; s. 74 not in force at Royal Assent see s. 170(4); s. 74 in force for certain purposes at 22.5.2000 by S.I. 2000/1282, art. 2, Sch.; S. 74 in force so far as not already in force at 2.10.2000 by S.I. 2000/2444, art. 2, Sch. 1 (subject to arts. 3, 4, Sch. 2)

75 Duty to disclose grounds for entering etc. the United Kingdom.E+W+S+N.I.

(1)This section applies if a person who—

(a)is an illegal entrant,

(b)is liable to be removed under section 10, or

(c)has arrived in the United Kingdom without—

(i)leave to enter;

(ii)an entry clearance; or

(iii)a current work permit in which he is named,

makes a claim for asylum or a claim that it would be contrary to the United Kingdom’s obligations under the Human Rights Convention for him to be removed from, or required to leave, the United Kingdom.

(2)The person responsible for the determination of the claim must serve on the claimant and on any relevant member of his family a notice requiring the recipient of the notice to state any additional grounds which he has or may have for wishing to enter or remain in the United Kingdom.

(3)The statement must be—

(a)in writing; and

(b)served on the person who is responsible for the determination of the claim before the end of such period as may be prescribed.

(4)Regulations may prescribe the procedure to be followed in connection with notices given and statements made in accordance with this section and, in particular, may prescribe the form in which such notices and statements are to be given or made.

(5)Regulations may prescribe the persons who, in relation to a claimant, are relevant members of his family.

(6)Regulations may provide that, if a claim is determined against the claimant, prescribed provisions of section 73, 76, or 77 are to apply to an appeal against that determination by a person on whom a notice has been served under subsection (2), with such modifications (if any) as may be prescribed.

Annotations:

Commencement Information

I29S. 75 wholly in force at 2.10.2000; s. 75 not in force at Royal Assent see s. 170(4); s. 75 in force for certain purposes at 22.5.2000 by S.I. 2000/1282, art. 2, Sch.; s. 75 in force so far as not already in force at 2.10.2000 by S.I. 2000/2444, art. 2, Sch. 1 (subject to arts. 3, 4, Sch. 2)

76 Result of failure to comply with section 74.E+W+S+N.I.

(1)In this section—

(a)the applicant” means the person on whom a notice has been served under section 74(4);

(b)notice” means a notice served under that section; and

(c)statement” means the statement which the notice requires the applicant to make to the Secretary of State.

(2)If the applicant’s statement does not mention a particular ground—

(a)on which he wishes to enter or remain in the United Kingdom, and

(b)of which he is aware at the material time,

he may not rely on that ground in any appeal under the M30Special Immigration Appeals Commission Act 1997 or this Part.

(3)Subsection (2) does not apply if—

(a)the ground is a claim for asylum or a claim that an act [F61racially discriminated against the applicant or breached his] human rights; or

(b)the Secretary of State considers that the applicant had a reasonable excuse for the omission.

(4)Subsection (5) applies if the applicant’s statement does not include a claim for asylum.

(5)If the applicant claims asylum after the end of the period prescribed under section 74(6)(b), no appeal may be made under section 69 if the Secretary of State has certified that in his opinion —

(a)one purpose of making the claim for asylum was to delay the removal from the United Kingdom of the applicant or of any member of his family; and

(b)the applicant had no other legitimate purpose for making the application.

(6)Member of the family” has such meaning as may be prescribed.

Annotations:

Amendments (Textual)

F61Words in s. 76(3)(a) substituted (2.4.2001) by 2000 c. 34, s. 9(1), Sch. 2 para. 38 (with s. 10(5)); S.I. 2001/566, art. 2(1)

Modifications etc. (not altering text)

C32S. 76 applied (with modifications) (2.10.2000) by S.I. 2000/2244, reg. 5(5)

Commencement Information

I30S. 76 wholly in force at 2.10.2000; s. 76 not in force at Royal Assent see s. 170(4); s. 76(6) in force at 22.5.2000 by S.I. 2000/1282, art. 2, Sch.; S. 76 in force so far as not already in force at 2.10.2000 by S.I. 2000/2444, art. 2, Sch. 1 (subject to arts. 3, 4, Sch. 2)

Marginal Citations

77“One-stop” appeals.E+W+S+N.I.

(1)This section applies in relation to—

(a)an appeal brought on any of the grounds mentioned in section 69;

(b)any other appeal against a decision—

(i)to refuse an application for leave to enter or remain in the United Kingdom;

(ii)to vary, or to refuse to vary, any limited leave to enter or remain in the United Kingdom, which has the result mentioned in section 74(2)(a); or

(iii)to make a deportation order against a person under section 5(1) of the 1971 Act as a result of his liability to deportation under section 3(5) of that Act.

(2)Subject to section 72(2), the appellant is to be treated as also appealing on any additional grounds—

(a)which he may have for appealing against the refusal, variation, decision or directions in question under any other provision of this Act; and

(b)which he is not prevented (by any provision of section 76) from relying on.

(3)In considering—

(a)any ground mentioned in section 69, or

(b)any question relating to the appellant’s rights under Article 3 of the Human Rights Convention,

the appellate authority may take into account any evidence which it considers to be relevant to the appeal (including evidence about matters arising after the date on which the decision appealed against was taken).

(4)In considering any other ground, the appellate authority may take into account only evidence—

(a)which was available to the Secretary of State at the time when the decision appealed against was taken; or

(b)which relates to relevant facts as at that date.

(5)Additional grounds”, in relation to an appeal, means any grounds specified in a statement made to the Secretary of State under section 74(4) other than those on which the appeal has been brought.

(6)Appellate authority” means an adjudicator, the Tribunal or the Special Immigration Appeals Commission.

Annotations:

Modifications etc. (not altering text)

C33S. 77 applied (with modifications) (2.10.2000) by S.I. 2000/2244, reg. 5(6)

Commencement Information

I31S. 77 wholly in force at 2.10.2000 by S.I. 2000/2444, art. 2, Sch. 1 (subject to the transitional provisions in arts. 3, 4, Sch. 2)

78 Transfer of appellate proceedings.E+W+S+N.I.

(1)Subsection (3) applies if—

(a)a person who has brought an appeal under this Part has been notified of the Secretary of State’s decision to make a deportation order against him; and

(b)as a result of section 64(1), he is not entitled to appeal against that decision under section 63.

(2)Subsection (3) also applies if—

(a)a person who has brought an appeal under this Part has been notified of the Secretary of State’s decision to refuse to revoke a deportation order made against him; and

(b)as a result of section 64(2), he is not entitled to appeal against that refusal under section 63.

(3)If he appeals against that decision under section 2(1) or 2A of the M31Special Immigration Appeals Commission Act 1997, any appeal under this Part is transferred to, and must be heard by, the Commission.

(4)Subsection (5) applies if a person, in a statement required by a notice under section 74 or 75, states an additional ground which relates to a matter which may be the subject of an appeal under section 2(1) or 2A of the Special Immigration Appeals Commission Act 1997.

(5)The appeal under this Part is transferred to, and must be heard by, the Commission.

Annotations:

Commencement Information

I32S. 78 wholly in force at 2.10.2000 by S.I. 2000/2444, art. 2, Sch. 1 (subject to the transitional provisions in arts. 3, 4, Sch. 2)

Marginal Citations

Prospective

Appeals without meritE+W+S+N.I.

79 Penalty on continuing an appeal without merit.E+W+S+N.I.

(1)If, at any time before it determines an appeal, the Immigration Appeal Tribunal considers that the appeal has no merit it may notify the appellant of its opinion.

(2)A notice under subsection (1) must—

(a)include an explanation of the Tribunal’s powers under this section; and

(b)be made in such form as may be required by rules made under paragraph 3 of Schedule 4.

(3)Subsection (1) does not apply if leave for appeal to the Tribunal was required.

(4)Subsection (5) applies if an appeal which has been continued by the appellant after he has been given a notice under subsection (1) is dismissed.

(5)The Tribunal may impose on the appellant, or on his representative, a penalty of the specified amount.

(6)Specified” means specified by an order made by the Lord Chancellor.

(7)The Lord Chancellor may by order make such provision as he considers appropriate as to—

(a)the enforcement in England and Wales and Northern Ireland, and

(b)the payment and application,

of penalties imposed under this section.

(8)Such an order may, in particular, make provision similar to that made by sections 129 and 130 of the M32County Courts Act 1984.

(9)An order imposing a penalty under subsection (5) may be enforced in Scotland as if it were an extract registered decree arbitral bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland.

Annotations:

Marginal Citations

EEA nationalsE+W+S+N.I.

80 EEA nationals.E+W+S+N.I.

(1)The Secretary of State may by regulations make provision for appeals against any immigration decision in relation to—

(a)an EEA national;

(b)a member of the family of an EEA national;

(c)a member of the family of a United Kingdom national who is neither such a national nor an EEA national.

(2)Immigration decision” means a decision concerning a person’s removal from the United Kingdom or his entitlement—

(a)to be admitted to the United Kingdom;

(b)to reside, or to continue to reside, in the United Kingdom; or

(c)to be issued with, or not to have withdrawn, a residence permit.

(3)The regulations may also make provision for appeals against any decision concerning the matters mentioned in subsection (1) taken in relation to a citizen of any other State on whom any such entitlement has been conferred by an agreement to which the United Kingdom is a party or by which it is bound.

(4)An appeal under the regulations lies to an adjudicator or, in such circumstances as may be prescribed, to the Commission.

(5)The regulations may provide for appeals from the adjudicator or the Commission.

(6)The regulations may prescribe cases, or classes of case, in which a person is not entitled to appeal while he is in the United Kingdom.

(7)The regulations may make provision under which an appellant may be required to state, in such manner as may be prescribed, any grounds he has or may have for wishing to be admitted to, or to remain in, the United Kingdom additional to those on which he is appealing and for the consequences of such a requirement.

(8)The regulations may—

(a)amend sections 2 and 2A of the M33Special Immigration Appeals Commission Act 1997 (appellate jurisdiction of the Commission);

(b)amend or revoke the M34Immigration (European Economic Area) Order 1994.

(9)Part IV has effect subject to any regulations made under this section.

(10)EEA national” means a person who is, or claims to be, a national of an EEA State (other than the United Kingdom).

(11)United Kingdom national” means a person who falls to be treated as a national of the United Kingdom for the purposes of the Community Treaties.

(12)If a person claims to be an EEA national, he may not appeal under the regulations unless he produces—

(a)a valid national identity card, or

(b)a valid passport,

issued by an EEA State other than the United Kingdom.

(13)For the purposes of subsection (12), a document—

(a)is to be regarded as being what it purports to be unless its falsity is reasonably apparent; and

(b)is to be regarded as relating to the person producing it unless it is reasonably apparent that it relates to another person.

(14)The regulations may—

(a)prescribe the persons who, for the purposes of this section, are the members of a person’s family; and

(b)make provision as to the manner in which membership of a person’s family is to be established.

(15)Residence permit” means any permit or other document issued by the Secretary of State as proof of the holder’s right of residence in the United Kingdom.

Annotations:

Marginal Citations

GrantsE+W+S+N.I.

81 Grants to voluntary organisations.E+W+S+N.I.

(1)The Secretary of State may, with the approval of the Treasury, make grants to any voluntary organisation which provides advice or assistance for, or other services for the welfare of, persons who have rights of appeal under this Act.

(2)Grants may be made on such terms, and subject to such conditions, as the Secretary of State may determine.

Annotations:

Modifications etc. (not altering text)

C34S. 81 modified (14.12.2001) 2001 c. 24, ss. 27(10), 127(2)

Commencement Information

I33S 81 wholly in force at 2.10.2000 by S.I. 2000/2444, art. 2, Sch. 1 (subject to the transitional provisions in arts. 3, 4, Sch. 2)

Part VE+W+S+N.I. Immigration Advisers and Immigration Service Providers

InterpretationE+W+S+N.I.

82 Interpretation of Part V.E+W+S+N.I.

(1)In this Part—

(2)In this Part, references to the provision of immigration advice or immigration services are to the provision of such advice or services by a person—

(a)in the United Kingdom (regardless of whether the persons to whom they are provided are in the United Kingdom or elsewhere); and

(b)in the course of a business carried on (whether or not for profit) by him or by another person.

Annotations:

Marginal Citations

The Immigration Services CommissionerE+W+S+N.I.

83 The Commissioner.E+W+S+N.I.

(1)There is to be an Immigration Services Commissioner (referred to in this Part as “the Commissioner”).

(2)The Commissioner is to be appointed by the Secretary of State after consulting the Lord Chancellor and the Scottish Ministers.

(3)It is to be the general duty of the Commissioner to promote good practice by those who provide immigration advice or immigration services.

(4)In addition to any other functions conferred on him by this Part, the Commissioner is to have the regulatory functions set out in Part I of Schedule 5.

(5)The Commissioner must exercise his functions so as to secure, so far as is reasonably practicable, that those who provide immigration advice or immigration services—

(a)are fit and competent to do so;

(b)act in the best interests of their clients;

(c)do not knowingly mislead any court, tribunal or adjudicator in the United Kingdom;

(d)do not seek to abuse any procedure operating in the United Kingdom in connection with immigration or asylum (including any appellate or other judicial procedure);

(e)do not advise any person to do something which would amount to such an abuse.

(6)The Commissioner—

(a)must arrange for the publication, in such form and manner and to such extent as he considers appropriate, of information about his functions and about matters falling within the scope of his functions; and

(b)may give advice about his functions and about such matters.

(7)Part II of Schedule 5 makes further provision with respect to the Commissioner.

Annotations:

Commencement Information

I34S. 83 wholly in force at 30.10.2000; s. 83 not in force at Royal Assent see s. 170(4); s. 83(1)-(3)(6)(7) wholly in force and s. 83(4)(5) in force for certain purposes at 22.5.2000 by S.I. 2000/1282, art. 2, Sch.; s. 83(4)(5) in force at 30.10.2000 insofar as not already in force by S.I. 2000/1985, art. 2, Sch. (with transitional provisions in art. 3)

The general prohibitionE+W+S+N.I.

84 Provision of immigration services.E+W+S+N.I.

(1)No person may provide immigration advice or immigration services unless he is a qualified person.

(2)A person is a qualified person if—

(a)he is registered with the Commissioner or is employed by, or works under the supervision of, such a person;

(b)he is a member or employee of a body which is a registered person, or works under the supervision of such a member or employee;

(c)he is authorised by a designated professional body to practise as a member of the profession whose members are regulated by that body, or works under the supervision of such a person;

(d)he is registered with, or authorised by, a person in another EEA State responsible for regulating the provision in that EEA State of advice or services corresponding to immigration advice or immigration services or would be required to be so registered or authorised were he not exempt from such a requirement;

(e)he is authorised by a body regulating the legal profession, or any branch of it, in another EEA State to practise as a member of that profession or branch; or

(f)he is employed by a person who falls within paragraph (d) or (e) or works under the supervision of such a person or of an employee of such a person.

(3)If a registered person’s registration has limited effect (by virtue of paragraph 2(2) of Schedule 6), neither paragraph (a) nor (b) of subsection (2) authorises the provision of advice or services falling outside the scope of that registration.

(4)Subsection (1) does not apply to a person who—

(a)is certified by the Commissioner as exempt (“an exempt person”);

(b)is employed by an exempt person;

(c)works under the supervision of an exempt person or an employee of an exempt person; or

(d)who falls within a category of person specified in an order made by the Secretary of State for the purposes of this subsection.

(5)A certificate under subsection (4)(a) may relate only to a specified description of immigration advice or immigration services.

(6)Subsection (1) does not apply to a person—

(a)holding an office under the Crown, when acting in that capacity;

(b)employed by, or for the purposes of, a government department, when acting in that capacity;

(c)acting under the control of a government department; or

(d)otherwise exercising functions on behalf of the Crown.

(7)An exemption given under subsection (4) may be withdrawn by the Commissioner.

Annotations:

Modifications etc. (not altering text)

C35S. 84(1) excluded (temp. from 30.4.2001 to the end of January 2002) by S.I. 2001/1393, arts. 1, 3, 4

S. 84(1) excluded (30.4.2001) by S.I. 2001/1403, arts. 2-4, Schs. 1-3

S. 84(1) excluded (temp. from 1.2.2002 to 31.12.2002) by The Immigration and Asylum Act 1999 (Part V Exemption: Relevant Employers) Order 2002 (S.I. 2002/9), arts. 1, 3

S. 84(1) excluded (temp. from 1.1.2003 to 31.12.2003) by The Immigration and Asylum Act 1999 (Part V Exemption: Relevant Employers) Order 2002 (S.I. 2002/3025), arts. 1, 3

Commencement Information

I35S. 84 wholly in force at 30.4.2001; s. 84 not in force at Royal Assent see s. 170(4); s. 84(5)(7) wholly in force and s. 84(2)(a)(b)(4)(a)(d) in force for certain purposes at 30.10.2000 by S.I. 2000/1985, art. 2, Sch. (with transitional provisions in art. 3); s. 84 in force so far as not already in force at 30.4.2001 by S.I. 2001/1394, art. 2, Sch.

85 Registration and exemption by the Commissioner.E+W+S+N.I.

(1)The Commissioner must prepare and maintain a register for the purposes of section 84(2)(a) and (b).

(2)The Commissioner must keep a record of the persons to whom he has issued a certificate of exemption under section 84(4)(a).

(3)Schedule 6 makes further provision with respect to registration.

Annotations:

Commencement Information

I36S. 85 wholly in force at 30.10.2000; s. 85 not in force at Royal Assent see s. 170(4); s. 85(3) in force for certain purposes at 1.8.2000 and s. 85 in force at 30.10.2000 insofar as not already in force by S.I. 2000/1985, art. 2, Sch. (with transitional provisions in art. 3)

86 Designated professional bodies.E+W+S+N.I.

(1)Designated professional body” means—

(a)The Law Society;

(b)The Law Society of Scotland;

(c)The Law Society of Northern Ireland;

(d)The Institute of Legal Executives;

(e)The General Council of the Bar;

(f)The Faculty of Advocates; or

(g)The General Council of the Bar of Northern Ireland.

(2)If the Secretary of State considers that a designated professional body has consistently failed to provide effective regulation of its members in their provision of immigration advice or immigration services, he may by order amend subsection (1) to remove the name of that body.

(3)If a designated professional body asks the Secretary of State to amend subsection (1) so as to remove its name, the Secretary of State may by order do so.

(4)If the Secretary of State is proposing to act under subsection (2) he must, before doing so—

(a)consult the Commissioner;

(b)consult the Legal Services Ombudsman, if the proposed order would affect a designated professional body in England and Wales;

(c)consult the Scottish Legal Services Ombudsman, if the proposed order would affect a designated professional body in Scotland;

(d)consult the lay observers appointed under Article 42 of the M38Solicitors (Northern Ireland) Order 1976, if the proposed order would affect a designated professional body in Northern Ireland;

(e)notify the body concerned of his proposal and give it a reasonable period within which to make representations; and

(f)consider any representations so made.

(5)An order under subsection (2) requires the approval of—

(a)the Lord Chancellor, if it affects a designated professional body in England and Wales or Northern Ireland;

(b)the Scottish Ministers, if it affects a designated professional body in Scotland.

(6)Before deciding whether or not to give his approval under subsection (5)(a), the Lord Chancellor must consult—

(a)the designated judges, if the order affects a designated professional body in England and Wales;

(b)the Lord Chief Justice of Northern Ireland, if it affects a designated professional body in Northern Ireland.

(7)Before deciding whether or not to give their approval under subsection (5)(b), the Scottish Ministers must consult the Lord President of the Court of Session.

(8)If the Secretary of State considers that a body which—

(a)is concerned (whether wholly or in part) with regulating the legal profession, or a branch of it, in an EEA State,

(b)is not a designated professional body, and

(c)is capable of providing effective regulation of its members in their provision of immigration advice or immigration services,

ought to be designated, he may by order amend subsection (1) to include the name of that body.

(9)The Commissioner must—

(a)keep under review the list of designated professional bodies set out in subsection (1); and

(b)report to the Secretary of State if he considers that a designated professional body is failing to provide effective regulation of its members in their provision of immigration advice or immigration services.

(10)For the purpose of meeting the costs incurred by the Commissioner in discharging his functions under this Part, each designated professional body must pay to the Commissioner, in each year and on such date as may be specified, such fee as may be specified.

(11)Any unpaid fee for which a designated professional body is liable under subsection (10) may be recovered from that body as a debt due to the Commissioner.

(12)Specified” means specified by an order made by the Secretary of State.

Annotations:

Commencement Information

I37S. 86 wholly in force at 30.4.2001; s. 86 not in force at Royal Assent see s. 170(4); s. 86(1)-(9) in force at 22.5.2000 by S.I. 2000/1282, art. 2, Sch.; s. 86(10)-(12) in force for certain purposes at 30.10.2000 by S.I. 2000/1985, art. 2, Sch. (with transitional provisions in art. 3); S. 86 in force so far as not already in force at 30.4.2001 by S.I. 2001/1394, art. 2, Sch.

Marginal Citations

The Immigration Services TribunalE+W+S+N.I.

87 The Tribunal.E+W+S+N.I.

(1)There is to be a tribunal known as the Immigration Services Tribunal (referred to in this Part as “the Tribunal”).

(2)Any person aggrieved by a relevant decision of the Commissioner may appeal to the Tribunal against the decision.

(3)Relevant decision” means a decision—

(a)to refuse an application for registration made under paragraph 1 of Schedule 6;

(b)to withdraw an exemption given under section 84(4)(a);

(c)under paragraph 2(2) of that Schedule to register with limited effect;

(d)to refuse an application for continued registration made under paragraph 3 of that Schedule;

(e)to vary a registration on an application under paragraph 3 of that Schedule;

[F62(ea)to vary a registration under paragraph 3A of that Schedule;] or

(f)which is recorded under paragraph 9(1)(a) of Schedule 5.

(4)The Tribunal is also to have the function of hearing disciplinary charges laid by the Commissioner under paragraph 9(1)(e) of Schedule 5.

(5)Schedule 7 makes further provision with respect to the Tribunal and its constitution and functions.

Annotations:

Amendments (Textual)

Commencement Information

I38S. 87 wholly in force at 30.10.2000; s. 87 not in force at Royal Assent see s. 170(4); s. 87(5) in force for certain purposes at 1.8.2000 and s. 87 in force at 30.10.2000 insofar as not already in force by S.I. 2000/1985, art. 2, Sch. (with transitional provisions in art. 3)

88 Appeal upheld by the Tribunal.E+W+S+N.I.

(1)This section applies if the Tribunal allows an appeal under section 87.

(2)If the Tribunal considers it appropriate, it may direct the Commissioner—

(a)to register the applicant or to continue the applicant’s registration;

(b)to make or vary the applicant’s registration so as to have limited effect in any of the ways mentioned in paragraph 2(2) of Schedule 6;

(c)to restore an exemption granted under section 84(4)(a); or

(d)to quash a decision recorded under paragraph 9(1)(a) of Schedule 5 and the record of that decision.

89 Disciplinary charge upheld by the Tribunal.E+W+S+N.I.

(1)This section applies if the Tribunal upholds a disciplinary charge laid by the Commissioner under paragraph 9(1)(e) of Schedule 5 against a person (“the person charged”).

(2)Subsection (3) applies if the person charged is—

(a)a registered person;

(b)a person employed by, or working under the supervision of, a registered person;

(c)a member or employee of a body which is a registered person; or

(d)a person working under the supervision of such a member or employee.

(3)The Tribunal may—

(a)direct the Commissioner to record the charge and the Tribunal’s decision on it for consideration when the registered person next applies for continued registration; or

(b)direct the registered person to apply to the Commissioner for continued registration without delay.

(4)If the person charged is certified by the Commissioner as exempt under section 84(4)(a), the Tribunal may direct the Commissioner to consider whether to withdraw his exemption.

(5)If the person charged is found to have charged unreasonable fees for immigration advice or immigration services, the Tribunal may direct him to repay to the clients concerned such portion of those fees as it may determine.

(6)The Tribunal may direct the person charged to pay a penalty to the Commissioner of such sum as it considers appropriate.

(7)A direction given by the Tribunal under subsection (5) (or under subsection (6)) may be enforced by the clients concerned (or by the Commissioner)—

(a)as if it were an order of a county court; or

(b)in Scotland, as if it were an extract registered decree arbitral bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland.

(8)The Tribunal may direct that the person charged or any person employed by him or working under his supervision is to be—

(a)subject to such restrictions on the provision of immigration advice or immigration services as the Tribunal considers appropriate;

(b)suspended from providing immigration advice or immigration services for such period as the Tribunal may determine; or

(c)prohibited from providing immigration advice or immigration services indefinitely.

(9)The Commissioner must keep a record of the persons against whom there is in force a direction given by the Tribunal under subsection (8).

90 Orders by disciplinary bodies.E+W+S+N.I.

(1)A disciplinary body may make an order directing that a person subject to its jurisdiction is to be—

(a)subject to such restrictions on the provision of immigration advice or immigration services as the body considers appropriate;

(b)suspended from providing immigration advice or immigration services for such period as the body may determine; or

(c)prohibited from providing immigration advice or immigration services indefinitely.

(2)Disciplinary body” means any body—

(a)appearing to the Secretary of State to be established for the purpose of hearing disciplinary charges against members of a designated professional body; and

(b)specified in an order made by the Secretary of State.

(3)The Secretary of State must consult the designated professional body concerned before making an order under subsection (2)(b).

(4)For the purposes of this section, a person is subject to the jurisdiction of a disciplinary body if he is an authorised person or works under the supervision of an authorised person.

(5)Authorised person” means a person who is authorised by the designated professional body concerned to practise as a member of the profession whose members are regulated by that body.

Annotations:

Commencement Information

I39S. 90 wholly in force at 30.4.2001; s. 90 not in force at Royal Assent see s. 170(4); s. 90 in force for certain purposes at 1.8.2000 by S.I. 2000/1985, art. 2, Sch. (with transitional provisions in art. 3); S. 90 in force so far as not already in force at 30.4.2001 by S.I. 2001/1394, art. 2, Sch.

EnforcementE+W+S+N.I.

91 Offences.E+W+S+N.I.

(1)A person who provides immigration advice or immigration services in contravention of section 84 or of a restraining order is guilty of an offence and liable—

(a)on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both; or

(b)on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine, or to both.

(2)Restraining order” means—

(a)a direction given by the Tribunal under section 89(8) or paragraph 9(3) of Schedule 5; or

(b)an order made by a disciplinary body under section 90(1).

(3)If an offence under this section committed by a body corporate is proved—

(a)to have been committed with the consent or connivance of an officer, or

(b)to be attributable to neglect on his part,

the officer as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.

(4)Officer”, in relation to a body corporate, means a director, manager, secretary or other similar officer of the body, or a person purporting to act in such a capacity.

(5)If the affairs of a body corporate are managed by its members, subsection (3) applies in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.

(6)If an offence under this section committed by a partnership in Scotland is proved—

(a)to have been committed with the consent or connivance of a partner, or

(b)to be attributable to neglect on his part,

the partner as well as the partnership is guilty of the offence and liable to be proceeded against and punished accordingly.

(7)Partner” includes a person purporting to act as a partner.

92 Enforcement.E+W+S+N.I.

(1)If it appears to the Commissioner that a person—

(a)is providing immigration advice or immigration services in contravention of section 84 or of a restraining order, and

(b)is likely to continue to do so unless restrained,

the Commissioner may apply to a county court for an injunction, or to the sheriff for an interdict, restraining him from doing so.

(2)If the court is satisfied that the application is well-founded, it may grant the injunction or interdict in the terms applied for or in more limited terms.

(3)Restraining order” has the meaning given by section 91.

MiscellaneousE+W+S+N.I.

93 Information.E+W+S+N.I.

(1)No enactment or rule of law prohibiting or restricting the disclosure of information prevents a person from—

(a)giving the Commissioner information which is necessary for the discharge of his functions; or

(b)giving the Tribunal information which is necessary for the discharge of its functions.

(2)No relevant person may at any time disclose information which—

(a)has been obtained by, or given to, the Commissioner under or for purposes of this Act,

(b)relates to an identified or identifiable individual or business, and

(c)is not at that time, and has not previously been, available to the public from other sources,

unless the disclosure is made with lawful authority.

(3)For the purposes of subsection (2), a disclosure is made with lawful authority only if, and to the extent that—

(a)it is made with the consent of the individual or of the person for the time being carrying on the business;

(b)it is made for the purposes of, and is necessary for, the discharge of any of the Commissioner’s functions under this Act or any Community obligation of the Commissioner;

(c)it is made for the purposes of any civil or criminal proceedings arising under or by virtue of this Part, or otherwise; or

(d)having regard to the rights and freedoms or legitimate interests of any person, the disclosure is necessary in the public interest.

(4)A person who knowingly or recklessly discloses information in contravention of subsection (2) is guilty of an offence and liable—

(a)on summary conviction, to a fine not exceeding the statutory maximum; or

(b)on conviction on indictment, to a fine.

(5)Relevant person” means a person who is or has been—

(a)the Commissioner;

(b)a member of the Commissioner’s staff; or

(c)an agent of the Commissioner.

Part VIE+W+S+N.I. Support for Asylum-Seekers

InterpretationE+W+S+N.I.

94 Interpretation of Part VI.E+W+S+N.I.

(1)In this Part—

(2)References in this Part to support provided under section 95 include references to support which is provided under arrangements made by the Secretary of State under that section.

(3)For the purposes of this Part, a claim for asylum is determined at the end of such period beginning—

(a)on the day on which the Secretary of State notifies the claimant of his decision on the claim, or

(b)if the claimant has appealed against the Secretary of State’s decision, on the day on which the appeal is disposed of,

as may be prescribed.

(4)An appeal is disposed of when it is no longer pending for the purposes of the Immigration Acts or the M40Special Immigration Appeals Commission Act 1997.

(5)If an asylum-seeker’s household includes a child who is under 18 and a dependant of his, he is to be treated (for the purposes of this Part) as continuing to be an asylum-seeker while—

(a)the child is under 18; and

(b)he and the child remain in the United Kingdom.

(6)Subsection (5) does not apply if, on or after the determination of his claim for asylum, the asylum-seeker is granted leave to enter or remain in the United Kingdom (whether or not as a result of that claim).

(7)For the purposes of this Part, the Secretary of State may inquire into, and decide, the age of any person.

(8)A notice under subsection (3) must be given in writing.

(9)If such a notice is sent by the Secretary of State by first class post, addressed—

(a)to the asylum-seeker’s representative, or

(b)to the asylum-seeker’s last known address,

it is to be taken to have been received by the asylum-seeker on the second day after the day on which it was posted.

Annotations:

Marginal Citations

Provision of supportE+W+S+N.I.

95 Persons for whom support may be provided.E+W+S+N.I.

(1)The Secretary of State may provide, or arrange for the provision of, support for—

(a)asylum-seekers, or

(b)dependants of asylum-seekers,

who appear to the Secretary of State to be destitute or to be likely to become destitute within such period as may be prescribed.

(2)In prescribed circumstances, a person who would otherwise fall within subsection (1) is excluded.

(3)For the purposes of this section, a person is destitute if—

(a)he does not have adequate accommodation or any means of obtaining it (whether or not his other essential living needs are met); or

(b)he has adequate accommodation or the means of obtaining it, but cannot meet his other essential living needs.

(4)If a person has dependants, subsection (3) is to be read as if the references to him were references to him and his dependants taken together.

(5)In determining, for the purposes of this section, whether a person’s accommodation is adequate, the Secretary of State—

(a)must have regard to such matters as may be prescribed for the purposes of this paragraph; but

(b)may not have regard to such matters as may be prescribed for the purposes of this paragraph or to any of the matters mentioned in subsection (6).

(6)Those matters are—

(a)the fact that the person concerned has no enforceable right to occupy the accommodation;

(b)the fact that he shares the accommodation, or any part of the accommodation, with one or more other persons;

(c)the fact that the accommodation is temporary;

(d)the location of the accommodation.

(7)In determining, for the purposes of this section, whether a person’s other essential living needs are met, the Secretary of State—

(a)must have regard to such matters as may be prescribed for the purposes of this paragraph; but

(b)may not have regard to such matters as may be prescribed for the purposes of this paragraph.

(8)The Secretary of State may by regulations provide that items or expenses of such a description as may be prescribed are, or are not, to be treated as being an essential living need of a person for the purposes of this Part.

(9)Support may be provided subject to conditions.

[F63(9A)A condition imposed under subsection (9) may, in particular, relate to—

(a)any matter relating to the use of the support provided, or

(b)compliance with a restriction imposed under paragraph 21 of Schedule 2 to the 1971 Act (temporary admission or release from detention) or paragraph 2 or 5 of Schedule 3 to that Act (restriction pending deportation).]

(10)The conditions must be set out in writing.

(11)A copy of the conditions must be given to the supported person.

(12)Schedule 8 gives the Secretary of State power to make regulations supplementing this section.

(13)Schedule 9 makes temporary provision for support in the period before the coming into force of this section.

Annotations:

Amendments (Textual)

Modifications etc. (not altering text)

C38S. 95(3)(5)-(8) applied (with modifications) (6.12.1999) by 1948 c. 29, s. 21(1B) (as inserted by 1999 c. 33, ss. 116, 169(2), Sch. 15 para. 5; S.I. 1999/3190, art. 2, Sch.)

S. 95(3)(5)-(8) applied (with modifications) (6.12.1999) by 1968 c. 46, s. 45(4B) (as inserted by 1999 c. 33, ss. 117(1), 169(2), Sch. 15 para. 6; S.I. 1999/3190, art. 2, Sch.)

S. 95(3)(5)-(8) applied (with modifications) (6.12.1999) by 1977 c. 49, Sch. 8 para 2 (2B) (as inserted by 1999 c. 33, ss. 117(2), 169(2), Sch. 15 para. 9; S.I. 1999/3190, art. 2, Sch.)

S. 95(3)(5)-(8) applied (with modifications) (prosp.) by 1968 c. 49, ss. 12(2B), 13A(5), 13B(4) (as inserted (prosp.) by 1999 c. 33, ss. 120(1)-(3), 169(2), 170(4), Sch. 15 para. 7)

S. 95(3)(5)-(8) applied (with modifications) (prosp.) by 1984 c. 36, ss. 7(4), 8(5) (as inserted (prosp.) by 1999 c. 33, ss. 120(4)(5), 169(2), 170(4), Sch. 15 para. 10)

Commencement Information

I40S. 95 wholly in force at 3.4.2000; s. 95(13) in force at Royal Assent see s. 170(3)(g); s. 95(3)-(8) in force for certain purposes at 6.12.1999 and s. 95 in force for certain purposes at 1.1.2000 insofar as not already in force by S.I. 1999/3190, art. 2, Sch.; s. 95 in force at 3.4.2000 insofar as not already in force by S.I. 2000/464, art. 2, Sch.

96 Ways in which support may be provided.E+W+S+N.I.

(1)Support may be provided under section 95—

(a)by providing accommodation appearing to the Secretary of State to be adequate for the needs of the supported person and his dependants (if any);

(b)by providing what appear to the Secretary of State to be essential living needs of the supported person and his dependants (if any);

(c)to enable the supported person (if he is the asylum-seeker) to meet what appear to the Secretary of State to be expenses (other than legal expenses or other expenses of a prescribed description) incurred in connection with his claim for asylum;

(d)to enable the asylum-seeker and his dependants to attend bail proceedings in connection with his detention under any provision of the Immigration Acts; or

(e)to enable the asylum-seeker and his dependants to attend bail proceedings in connection with the detention of a dependant of his under any such provision.

(2)If the Secretary of State considers that the circumstances of a particular case are exceptional, he may provide support under section 95 in such other ways as he considers necessary to enable the supported person and his dependants (if any) to be supported.

(3)F64. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)

[F65But the Secretary of State may by order provide for subsection (3) not to apply—

(a)in all cases, for such period as may be specified;

(b)in such circumstances as may be specified;

(c)in relation to specified categories of person; or

(d)in relation to persons whose accommodation is in a specified locality.]

(5)

[F65The Secretary of State may by order repeal subsection (3).]

(6)

[F65Specified” means specified in an order made under subsection (4).]

Annotations:

Amendments (Textual)

F65S. 96(4)-(6) cease to have effect (7.11.2002) and repealed (prosp.) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 61(a), 161, Sch. 9 (with s. 159)

Modifications etc. (not altering text)

C39S. 96(1)(b): power to restrict conferred (7.11.2002) by Nationality, Immigration and Asylum Act 2002 (c. 41), s. 43 (with s. 159)

97 Supplemental.E+W+S+N.I.

(1)When exercising his power under section 95 to provide accommodation, the Secretary of State must have regard to—

(a)the fact that the accommodation is to be temporary pending determination of the asylum-seeker’s claim;

(b)the desirability, in general, of providing accommodation in areas in which there is a ready supply of accommodation; and

(c)such other matters (if any) as may be prescribed.

(2)But he may not have regard to—

(a)any preference that the supported person or his dependants (if any) may have as to the locality in which the accommodation is to be provided; or

(b)such other matters (if any) as may be prescribed.

(3)The Secretary of State may by order repeal all or any of the following—

(a)subsection (1)(a);

(b)subsection (1)(b);

(c)subsection (2)(a).

(4)When exercising his power under section 95 to provide essential living needs, the Secretary of State—

(a)must have regard to such matters as may be prescribed for the purposes of this paragraph; but

(b)may not have regard to such other matters as may be prescribed for the purposes of this paragraph.

(5)In addition, when exercising his power under section 95 to provide essential living needs, the Secretary of State may limit the overall amount of the expenditure which he incurs in connection with a particular supported person—

(a)to such portion of the income support applicable amount provided under section 124 of the M41Social Security Contributions and Benefits Act 1992, or

(b)to such portion of any components of that amount,

as he considers appropriate having regard to the temporary nature of the support that he is providing.

(6)For the purposes of subsection (5), any support of a kind falling within section 96(1)(c) is to be treated as if it were the provision of essential living needs.

(7)In determining how to provide, or arrange for the provision of, support under section 95, the Secretary of State may disregard any preference which the supported person or his dependants (if any) may have as to the way in which the support is to be given.

Annotations:

Commencement Information

I41S. 97 wholly in force at 3.4.2000; s. 97 not in force at Royal Assent see s. 170(4); s. 97 in force for certain purposes at 1.1.2000 by S.I. 1999/3190, art. 2, Sch.; s. 97 in force at 3.4.2000 insofar as not already in force by S.I. 2000/464, art. 2, Sch.

Marginal Citations

98 Temporary support.E+W+S+N.I.

(1)The Secretary of State may provide, or arrange for the provision of, support for—

(a)asylum-seekers, or

(b)dependants of asylum-seekers,

who it appears to the Secretary of State may be destitute.

(2)Support may be provided under this section only until the Secretary of State is able to determine whether support may be provided under section 95.

(3)Subsections (2) to (11) of section 95 apply for the purposes of this section as they apply for the purposes of that section.

Annotations:

Modifications etc. (not altering text)

Commencement Information

I42S. 98 partly in force; s. 98 not in force at Royal Assent see s. 170(4); s. 98(3) in force for certain purposes at 1.3.2000 by S.I. 2000/464, art. 2, Sch.

Support and assistance by local authorities etc.E+W+S+N.I.

99 Provision of support by local authorities.E+W+S+N.I.

(1)A local authority [F66or Northern Ireland authority] may provide support for asylum-seekers and their dependants (if any) in accordance with arrangements made by the Secretary of State under section 95 [F67or 98].

[F68(2)Support may be provided by an authority in accordance with arrangements made with the authority or with another person.

(3)Support may be provided by an authority in accordance with arrangements made under section 95 only in one or more of the ways mentioned in section 96(1) and (2).]

(4)[F69An authority] may incur reasonable expenditure in connection with the preparation of proposals for entering into arrangements under section 95 [F70or 98].

(5)The powers conferred on [F71an authority] by this section include power to—

(a)provide services outside their area;

(b)provide services jointly with one or more [F72other bodies];

(c)form a company for the purpose of providing services;

(d)tender for contracts (whether alone or with any other person).

Annotations:

Amendments (Textual)

Commencement Information

I43S. 99 wholly in force at 3.4.2000; s. 99(4)(5) in force at Royal Assent see s. 170(3)(h); S. 99 in force at 3.4.2000 insofar as not already in force by S.I. 2000/464, art. 2, Sch.

100 Local authority and other assistance for Secretary of State.E+W+S+N.I.

(1)This section applies if the Secretary of State asks—

(a)a local authority,

(b)a registered social landlord,

(c)a registered housing association in Scotland or Northern Ireland, or

(d)the Executive,

to assist him to exercise his power under section 95 to provide accommodation.

(2)The person to whom the request is made must co-operate in giving the Secretary of State such assistance in the exercise of that power as is reasonable in the circumstances.

(3)Subsection (2) does not require a registered social landlord to act beyond its powers.

(4)A local authority must supply to the Secretary of State such information about their housing accommodation (whether or not occupied) as he may from time to time request.

(5)The information must be provided in such form and manner as the Secretary of State may direct.

(6)Registered social landlord” has the same meaning as in Part I of the M42Housing Act 1996.

(7)Registered housing association” has the same meaning—

(a)in relation to Scotland, as in the M43Housing Associations Act 1985; and

(b)in relation to Northern Ireland, as in Part II of the M44Housing (Northern Ireland) Order 1992.

Annotations:

Marginal Citations

101 Reception zones.E+W+S+N.I.

(1)The Secretary of State may by order designate as reception zones—

(a)areas in England and Wales consisting of the areas of one or more local authorities;

(b)areas in Scotland consisting of the areas of one or more local authorities;

(c)Northern Ireland.

(2)Subsection (3) applies if the Secretary of State considers that—

(a)a local authority whose area is within a reception zone has suitable housing accommodation within that zone; or

(b)the Executive has suitable housing accommodation.

(3)The Secretary of State may direct the local authority or the Executive to make available such of the accommodation as may be specified in the direction for a period so specified—

(a)to him for the purpose of providing support under section 95; or

(b)to a person with whom the Secretary of State has made arrangements under section 95.

(4)A period specified in a direction under subsection (3)—

(a)begins on a date so specified; and

(b)must not exceed five years.

(5)A direction under subsection (3) is enforceable, on an application made on behalf of the Secretary of State, by injunction or in Scotland an order under section 45(b) of the M45Court of Session Act 1988.

(6)The Secretary of State’s power to give a direction under subsection (3) in respect of a particular reception zone must be exercised by reference to criteria specified for the purposes of this subsection in the order designating that zone.

(7)The Secretary of State may not give a direction under subsection (3) in respect of a local authority in Scotland unless the Scottish Ministers have confirmed to him that the criteria specified in the designation order concerned are in their opinion met in relation to that authority.

(8)Housing accommodation is suitable for the purposes of subsection (2) if it—

(a)is unoccupied;

(b)would be likely to remain unoccupied for the foreseeable future if not made available; and

(c)is appropriate for the accommodation of persons supported under this Part or capable of being made so with minor work.

(9)If housing accommodation for which a direction under this section is, for the time being, in force—

(a)is not appropriate for the accommodation of persons supported under this Part, but

(b)is capable of being made so with minor work,

the direction may require the body to whom it is given to secure that that work is done without delay.

(10)The Secretary of State must make regulations with respect to the general management of any housing accommodation for which a direction under subsection (3) is, for the time being, in force.

(11)Regulations under subsection (10) must include provision—

(a)as to the method to be used in determining the amount of rent or other charges to be payable in relation to the accommodation;

(b)as to the times at which payments of rent or other charges are to be made;

(c)as to the responsibility for maintenance of, and repairs to, the accommodation;

(d)enabling the accommodation to be inspected, in such circumstances as may be prescribed, by the body to which the direction was given;

(e)with respect to the condition in which the accommodation is to be returned when the direction ceases to have effect.

(12)Regulations under subsection (10) may, in particular, include provision—

(a)for the cost, or part of the cost, of minor work required by a direction under this section to be met by the Secretary of State in prescribed circumstances;

(b)as to the maximum amount of expenditure which a body may be required to incur as a result of a direction under this section.

(13)The Secretary of State must by regulations make provision (“the dispute resolution procedure”) for resolving disputes arising in connection with the operation of any regulations made under subsection (10).

(14)Regulations under subsection (13) must include provision—

(a)requiring a dispute to be resolved in accordance with the dispute resolution procedure;

(b)requiring the parties to a dispute to comply with obligations imposed on them by the procedure; and

(c)for the decision of the person resolving a dispute in accordance with the procedure to be final and binding on the parties.

(15)Before—

(a)designating a reception zone in Great Britain,

(b)determining the criteria to be included in the order designating the zone, or

(c)making regulations under subsection (13),

the Secretary of State must consult such local authorities, local authority associations and other persons as he thinks appropriate.

(16)Before—

(a)designating Northern Ireland as a reception zone, or

(b)determining the criteria to be included in the order designating Northern Ireland,

the Secretary of State must consult the Executive and such other persons as he thinks appropriate.

(17)Before making regulations under subsection (10) which extend only to Northern Ireland, the Secretary of State must consult the Executive and such other persons as he thinks appropriate.

(18)Before making any other regulations under subsection (10), the Secretary of State must consult—

(a)such local authorities, local authority associations and other persons as he thinks appropriate; and

(b)if the regulations extend to Northern Ireland, the Executive.

Annotations:

Marginal Citations

AppealsE+W+S+N.I.

102 Asylum Support Adjudicators.E+W+S+N.I.

(1)There are to be adjudicators to hear appeals under this Part.

(2)A person appointed as an adjudicator under this Part is to be known as an Asylum Support Adjudicator (but is referred to in this Part as “an adjudicator”).

(3)Schedule 10 makes further provision with respect to adjudicators.

103 Appeals.E+W+S+N.I.

(1)If, on an application for support under section 95, the Secretary of State decides that the applicant does not qualify for support under that section, the applicant may appeal to an adjudicator.

(2)If the Secretary of State decides to stop providing support for a person under section 95 before that support would otherwise have come to an end, that person may appeal to an adjudicator.

(3)On an appeal under this section, the adjudicator may—

(a)require the Secretary of State to reconsider the matter;

(b)substitute his decision for the decision appealed against; or

(c)dismiss the appeal.

(4)The adjudicator must give his reasons in writing.

(5)The decision of the adjudicator is final.

(6)If an appeal is dismissed, no further application by the appellant for support under section 95 is to be entertained unless the Secretary of State is satisfied that there has been a material change in the circumstances.

(7)The Secretary of State may by regulations provide for decisions as to where support provided under section 95 is to be provided to be appealable to an adjudicator under this Part.

(8)Regulations under subsection (7) may provide for any provision of this section to have effect, in relation to an appeal brought by virtue of the regulations, subject to such modifications as may be prescribed.

(9)The Secretary of State may pay any reasonable travelling expenses incurred by an appellant in connection with attendance at any place for the purposes of an appeal under this section.

Annotations:

Modifications etc. (not altering text)

104 Secretary of State’s rules.E+W+S+N.I.

(1)The Secretary of State may make rules regulating—

(a)the bringing of appeals under this Part; and

(b)the practice and procedure of the adjudicators.

(2)The rules may, in particular, make provision—

(a)for the period within which an appeal must be brought;

(b)as to the burden of proof on an appeal;

(c)as to the giving and admissibility of evidence;

(d)for summoning witnesses;

(e)for an appeal to be heard in the absence of the appellant;

(f)for determining an appeal without a hearing;

(g)requiring reports of decisions of adjudicators to be published;

(h)conferring such ancillary powers on adjudicators as the Secretary of State considers necessary for the proper discharge of their functions.

(3)In making the rules, the Secretary of State must have regard to the desirability of securing, so far as is reasonably practicable, that appeals are brought and disposed of with the minimum of delay.

OffencesE+W+S+N.I.

105 False representations.E+W+S+N.I.

(1)A person is guilty of an offence if, with a view to obtaining support for himself or any other person under any provision made by or under this Part, he—

(a)makes a statement or representation which he knows is false in a material particular;

(b)produces or gives to a person exercising functions under this Part, or knowingly causes or allows to be produced or given to such a person, any document or information which he knows is false in a material particular;

(c)fails, without reasonable excuse, to notify a change of circumstances when required to do so in accordance with any provision made by or under this Part; or

(d)without reasonable excuse, knowingly causes another person to fail to notify a change of circumstances which that other person was required to notify in accordance with any provision made by or under this Part.

(2)A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding three months or to a fine not exceeding level 5 on the standard scale, or to both.

Annotations:

Modifications etc. (not altering text)

106 Dishonest representations.E+W+S+N.I.

(1)A person is guilty of an offence if, with a view to obtaining any benefit or other payment or advantage under this Part for himself or any other person, he dishonestly—

(a)makes a statement or representation which is false in a material particular;

(b)produces or gives to a person exercising functions under this Part, or causes or allows to be produced or given to such a person, any document or information which is false in a material particular;

(c)fails to notify a change of circumstances when required to do so in accordance with any provision made by or under this Part; or

(d)causes another person to fail to notify a change of circumstances which that other person was required to notify in accordance with any provision made by or under this Part.

(2)A person guilty of an offence under this section is liable—

(a)on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both; or

(b)on conviction on indictment, to imprisonment for a term not exceeding seven years or to a fine, or to both.

(3)In the application of this section to Scotland, in subsection (1) for “dishonestly” substitute “ knowingly ”.

Annotations:

Modifications etc. (not altering text)

107 Delay or obstruction.E+W+S+N.I.

(1)A person is guilty of an offence if, without reasonable excuse, he—

(a)intentionally delays or obstructs a person exercising functions conferred by or under this Part; or

(b)refuses or neglects to answer a question, give any information or produce a document when required to do so in accordance with any provision made by or under this Part.

(2)A person guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Annotations:

Modifications etc. (not altering text)

108 Failure of sponsor to maintain.E+W+S+N.I.

(1)A person is guilty of an offence if, during any period in respect of which he has given a written undertaking in pursuance of the immigration rules to be responsible for the maintenance and accommodation of another person—

(a)he persistently refuses or neglects, without reasonable excuse, to maintain that person in accordance with the undertaking; and

(b)in consequence of his refusal or neglect, support under any provision made by or under this Part is provided for or in respect of that person.

(2)A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding 3 months or to a fine not exceeding level 4 on the standard scale, or to both.

(3)For the purposes of this section, a person is not to be taken to have refused or neglected to maintain another person by reason only of anything done or omitted in furtherance of a trade dispute.

Annotations:

Modifications etc. (not altering text)

109 Supplemental.E+W+S+N.I.

(1)If an offence under section 105, 106, 107 or 108 committed by a body corporate is proved—

(a)to have been committed with the consent or connivance of an officer, or

(b)to be attributable to neglect on his part,

the officer as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.

(2)Officer”, in relation to a body corporate, means a director, manager, secretary or other similar officer of the body, or a person purporting to act in such a capacity.

(3)If the affairs of a body corporate are managed by its members, subsection (1) applies in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.

(4)If an offence under section 105, 106, 107 or 108 committed by a partnership in Scotland is proved—

(a)to have been committed with the consent or connivance of a partner, or

(b)to be attributable to neglect on his part,

the partner as well as the partnership is guilty of the offence and liable to be proceeded against and punished accordingly.

(5)Partner” includes a person purporting to act as a partner.

Annotations:

Modifications etc. (not altering text)

ExpenditureE+W+S+N.I.

110 Payments to local authorities.E+W+S+N.I.

(1)The Secretary of State may from time to time pay to any local authority or Northern Ireland authority such sums as he considers appropriate in respect of expenditure incurred, or to be incurred, by the authority in connection with—

(a)persons who are, or have been, asylum-seekers; and

(b)their dependants.

(2)The Secretary of State may from time to time pay to any—

(a)local authority,

(b)local authority association, or

(c)Northern Ireland authority,

such sums as he considers appropriate in respect of services provided by the authority or association in connection with the discharge of functions under this Part.

(3)The Secretary of State may make payments to any local authority towards the discharge of any liability of supported persons or their dependants in respect of council tax payable to that authority.

(4)The Secretary of State must pay to a body to which a direction under section 101(3) is given such sums as he considers represent the reasonable costs to that body of complying with the direction.

(5)The Secretary of State must pay to a directed body sums determined to be payable in relation to accommodation made available by that body under section 101(3)(a).

(6)The Secretary of State may pay to a directed body sums determined to be payable in relation to accommodation made available by that body under section 101(3)(b).

(7)In subsections (5) and (6)—

(8)Payments under subsection (1), (2) or (3) may be made on such terms, and subject to such conditions, as the Secretary of State may determine.

(9)Northern Ireland authority” means—

(a)the Executive; or

(b)a Health and Social Services Board established under Article 16 of the M46Health and Personal Social Services (Northern Ireland) Order 1972.

Annotations:

Modifications etc. (not altering text)

Commencement Information

I44S. 110 wholly in force at 3.4.2000; s. 110(1)(2) (and (8) so far as relating thereto) in force at Royal Assent, see s. 170(3)(j); s. 110(9) in force at 6.12.1999 by S.I. 1999/3190, art, 2, Sch.; s. 110 in force at 3.4.2000 insofar as not already in force by S.I. 2000/464, art. 2, Sch.

Marginal Citations

111 Grants to voluntary organisations.E+W+S+N.I.

(1)The Secretary of State may make grants of such amounts as he thinks appropriate to voluntary organisations in connection with—

(a)the provision by them of support (of whatever nature) to persons who are, or have been, asylum-seekers and to their dependants; and

(b)connected matters.

(2)Grants may be made on such terms, and subject to such conditions, as the Secretary of State may determine.

Annotations:

Modifications etc. (not altering text)

112 Recovery of expenditure on support: misrepresentation etc.E+W+S+N.I.

(1)This section applies if, on an application made by the Secretary of State, the court determines that—

(a)a person (“A”) has misrepresented or failed to disclose a material fact (whether fraudulently or otherwise); and

(b)as a consequence of the misrepresentation or failure, support has been provided under section 95 or 98 (whether or not to A).

(2)If the support was provided by the Secretary of State, the court may order A to pay to the Secretary of State an amount representing the monetary value of the support which would not have been provided but for A’s misrepresentation or failure.

(3)If the support was provided by another person (“B”) in accordance with arrangements made with the Secretary of State under section 95 or 98, the court may order A to pay to the Secretary of State an amount representing the payment to B which would not have been made but for A’s misrepresentation or failure.

(4)Court” means a county court or, in Scotland, the sheriff.

Annotations:

Modifications etc. (not altering text)

C49S. 112 applied (with modifications) (prosp.) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 35(1)(f)(2), 162(1) (with s. 159)

113 Recovery of expenditure on support from sponsor.E+W+S+N.I.

(1)This section applies if—

(a)a person (“the sponsor”) has given a written undertaking in pursuance of the immigration rules to be responsible for the maintenance and accommodation of another person; and

(b)during any period in relation to which the undertaking applies, support under section 95 is provided to or in respect of that other person.

(2)The Secretary of State may make a complaint against the sponsor to a magistrates’ court for an order under this section.

(3)The court—

(a)must have regard to all the circumstances (and in particular to the sponsor’s income); and

(b)may order him to pay to the Secretary of State such sum (weekly or otherwise) as it considers appropriate.

(4)But such a sum is not to include any amount attributable otherwise than to support provided under section 95.

(5)In determining—

(a)whether to order any payments to be made in respect of support provided under section 95 for any period before the complaint was made, or

(b)the amount of any such payments,

the court must disregard any amount by which the sponsor’s current income exceeds his income during that period.

(6)An order under this section is enforceable as a magistrates’ court maintenance order within the meaning of section 150(1) of the M47Magistrates’ Courts Act 1980.

(7)In the application of this section to Scotland—

(a)omit subsection (6);

(b)for references to a complaint substitute references to an application; and

(c)for references to a magistrates’ court substitute references to the sheriff.

(8)In the application of this section to Northern Ireland, for references to a magistrates’ court substitute references to a court of summary jurisdiction and for subsection (6) substitute—

(6)An order under this section is an order to which Article 98(11) of the M48Magistrates’ Courts (Northern Ireland) Order 1981 applies.

Annotations:

Modifications etc. (not altering text)

C50S. 113 applied (with modifications) (prosp.) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 35(1)(g)(2), 162(1) (with s. 159)

Marginal Citations

114 Overpayments.E+W+S+N.I.

(1)Subsection (2) applies if, as a result of an error on the part of the Secretary of State, support has been provided to a person under section 95 or 98.

(2)The Secretary of State may recover from a person who is, or has been, a supported person an amount representing the monetary value of support provided to him as a result of the error.

(3)An amount recoverable under subsection (2) may be recovered as if it were a debt due to the Secretary of State.

(4)The Secretary of State may by regulations make provision for other methods of recovery, including deductions from support provided under section 95.

Annotations:

Commencement Information

I45S. 114 wholly in force at 3.4.2000; s. 114 not in force at Royal Assent see s. 170(4); s. 114 in force for certain purposes at 1.1.2000 by S.I. 1999/3190, art. 2, Sch.; s. 114 in force at 3.4.2000 insofar as not already in force by S.I. 2000/464, art. 2, Sch.

ExclusionsE+W+S+N.I.

115 Exclusion from benefits.E+W+S+N.I.

(1)No person is entitled to income-based jobseeker’s allowance under the M49Jobseekers Act 1995 [F73or to state pension credit under the State Pension Credit Act 2002] or to—

(a)attendance allowance,

(b)severe disablement allowance,

(c)[F74carer’s allowance],

(d)disability living allowance,

(e)income support,

(f)working families’ tax credit,

(g)disabled person’s tax credit,

(h)a social fund payment,

(i)child benefit,

(j)housing benefit, or

(k)council tax benefit,

under the M50Social Security Contributions and Benefits Act 1992 while he is a person to whom this section applies.

(2)No person in Northern Ireland is entitled to [F75state pension credit under the State Pension Credit Act (Northern Ireland) 2002, or to]

(a)income-based jobseeker’s allowance under the M51Jobseekers (Northern Ireland) Order 1995, or

(b)any of the benefits mentioned in paragraphs (a) to (j) of subsection (1),

under the M52Social Security Contributions and Benefits (Northern Ireland) Act 1992 while he is a person to whom this section applies.

(3)This section applies to a person subject to immigration control unless he falls within such category or description, or satisfies such conditions, as may be prescribed.

(4)Regulations under subsection (3) may provide for a person to be treated for prescribed purposes only as not being a person to whom this section applies.

(5)In relation to the benefits mentioned in subsection (1)(f) or (g), “prescribed” means prescribed by regulations made by the Treasury.

(6)In relation to the matters mentioned in subsection (2) (except so far as it relates to the benefits mentioned in subsection (1)(f) or (g)), “prescribed” means prescribed by regulations made by the Department.

(7)Section 175(3) to (5) of the Social Security Contributions and Benefits Act 1992 (supplemental powers in relation to regulations) applies to regulations made by the Secretary of State or the Treasury under subsection (3) as it applies to regulations made under that Act.

(8)Sections 133(2), 171(2) and 172(4) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 apply to regulations made by the Department under subsection (3) as they apply to regulations made by the Department under that Act.

(9)A person subject to immigration control” means a person who is not a national of an EEA State and who—

(a)requires leave to enter or remain in the United Kingdom but does not have it;

(b)has leave to enter or remain in the United Kingdom which is subject to a condition that he does not have recourse to public funds;

(c)has leave to enter or remain in the United Kingdom given as a result of a maintenance undertaking; or

(d)has leave to enter or remain in the United Kingdom only as a result of paragraph 17 of Schedule 4.

(10)Maintenance undertaking”, in relation to any person, means a written undertaking given by another person in pursuance of the immigration rules to be responsible for that person’s maintenance and accommodation.

Annotations:

Amendments (Textual)

F73Words in s. 115(1) inserted (2.7.2002 for certain purposes, otherwise prosp.) by State Pension Credit Act 2002 (c. 16), ss. 4(2), 22(3); S.I. 2002/1691, art. 2(d)

F74Words in s. 115(1)(c) substituted (1.9.2002 for certain purposes, otherwise 1.4.2003) by The Regulatory Reform (Carer's Allowance) Order 2002 (S.I. 2002/1457), arts. 1(b), 2(2), Sch. paras. 1, 3(c)

F75Words in s. 115(2) inserted (N.I.) (2.12.2002 for certain purposes, otherwise prosp.) by State Pension Credit Act (Northern Ireland) 2002 (c. 14 (N.I.)), ss. 4(2), 21(2); S.R. 2002/366, art. 2(1)(d)

Commencement Information

I46S. 115 wholly in force at 3.4.2000; s. 115 not in force at Royal Assent see s. 170(2)(4); s. 115 in force for certain purposes at 1.1.2000 by S.I. 1999/3190, art. 2, Sch.; s. 115(1)(2) in force at 3.4.2000 by virtue of S.I. 2000/704 (see s. 170(2)); s. 115 in force at 3.4.2000 insofar as not already in force by S.I. 2000/464, art. 2, Sch.

Marginal Citations

116 Amendment of section 21 of the National Assistance Act 1948.E+W+S+N.I.

In section 21 of the M53National Assistance Act 1948 (duty of local authorities to provide accommodation), after subsection (1), insert—

(1A)A person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies may not be provided with residential accommodation under subsection (1)(a) if his need for care and attention has arisen solely—

(a)because he is destitute; or

(b)because of the physical effects, or anticipated physical effects, of his being destitute.

(1B)Subsections (3) and (5) to (8) of section 95 of the Immigration and Asylum Act 1999, and paragraph 2 of Schedule 8 to that Act, apply for the purposes of subsection (1A) as they apply for the purposes of that section, but for the references in subsections (5) and (7) of that section and in that paragraph to the Secretary of State substitute references to a local authority.

Annotations:

Marginal Citations

117 Other restrictions on assistance: England and Wales.E+W+S+N.I.

(1)In section 45 of the M54Health Services and Public Health Act 1968 (promotion by local authorities of the welfare of old people), after subsection (4), insert—

(4A)No arrangements under this section may be given effect to in relation to a person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies solely—

(a)because he is destitute; or

(b)because of the physical effects, or anticipated physical effects, of his being destitute.

(4B)Subsections (3) and (5) to (8) of section 95 of the Immigration and Asylum Act 1999, and paragraph 2 of Schedule 8 to that Act, apply for the purposes of subsection (4A) as they apply for the purposes of that section, but for the references in subsections (5) and (7) of that section and in that paragraph to the Secretary of State substitute references to a local authority.

(2)In paragraph 2 of Schedule 8 to the M55National Health Service Act 1977 (arrangements by local authorities for the prevention of illness and for care and after-care), after sub-paragraph (2), insert—

(2A)No arrangements under this paragraph may be given effect to in relation to a person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies solely—

(a)because he is destitute; or

(b)because of the physical effects, or anticipated physical effects, of his being destitute.

(2B)Subsections (3) and (5) to (8) of section 95 of the Immigration and Asylum Act 1999, and paragraph 2 of Schedule 8 to that Act, apply for the purposes of subsection (2A) as they apply for the purposes of that section, but for the references in subsections (5) and (7) of that section and in that paragraph to the Secretary of State substitute references to a local social services authority.

(3)

[F76In section 161 of the M56Housing Act 1996 (allocation of housing accommodation only to qualifying persons), after subsection (2), insert—

(2A)Regulations may not be made under subsection (2) so as to include in a prescribed class any person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies.]

(4)

[F77In section 185 of the 1996 Act (persons from abroad not eligible for housing assistance), after subsection (2), insert—

(2A)Regulations may not be made under subsection (2) so as to include in a prescribed class any person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies.]

(5)In the 1996 Act, omit section 186 (asylum-seekers and their dependants).

(6)In section 187(1) of the 1996 Act (provision of information by Secretary of State), in paragraph (a), for “or has become an asylum-seeker, or a dependant of an asylum-seeker” substitute “ a person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies ”.

Annotations:

Amendments (Textual)

F76S. 117(3) repealed (E.W.) (31.7.2002 for E., 27.1.2003 for W.) by Homelessness Act 2002 (c. 7), s. 18, Sch. 2 (with s. 20(4)); S.I. 2002/1799, art. 2; S.I. 2002/1736, art. 2(2), Sch. Pt. 2

F77S. 117(4) repealed (E.W.) (31.7.2002 for E., 30.9.2002 for W.) by Homelessness Act 2002 (c. 7), s. 18, Sch. 2 (with s. 20(4)); S.I. 2002/1799, art. 2; S.I. 2002/1736, art. 2(1), Sch. Pt. 1

Commencement Information

I47S. 117 partly in force; s. 117 not in force at Royal Assent see s. 170(4); s. 117(1)(2) in force at 6.12.1999 by S.I. 1999/3190, art. 2, Sch.; s. 117(1)-(4)(6) in force at 3.4.2000 insofar as not already in force by S.I. 2000/464, art. 2, Sch.

Marginal Citations

118 Housing authority accommodation.E+W+S+N.I.

(1)Each housing authority must secure that, so far as practicable, a tenancy of, or licence to occupy, housing accommodation provided under the accommodation provisions is not granted to a person subject to immigration control unless—

(a)he is of a class specified in an order made by the Secretary of State; or

(b)the tenancy of, or licence to occupy, such accommodation is granted in accordance with arrangements made under section 95.

(2)Housing authority” means—

(a)in relation to England and Wales, a local housing authority within the meaning of the M57Housing Act 1985;

(b)in relation to Scotland, a local authority within the meaning of the M58Housing (Scotland) Act 1987; and

(c)in relation to Northern Ireland, the Executive.

(3)Accommodation provisions” means—

(a)in relation to England and Wales, Part II of the Housing Act 1985;

(b)in relation to Scotland, Part I of the Housing (Scotland) Act 1987;

(c)in relation to Northern Ireland, Part II of the M59Housing (Northern Ireland) Order 1981.

(4)Licence to occupy”, in relation to Scotland, means a permission or right to occupy.

(5)Tenancy”, in relation to England and Wales, has the same meaning as in the M60Housing Act 1985.

(6)Person subject to immigration control” means a person who under the 1971 Act requires leave to enter or remain in the United Kingdom (whether or not such leave has been given).

(7)This section does not apply in relation to any allocation of housing to which Part VI of the M61Housing Act 1996 (allocation of housing accommodation) applies.

Annotations:

Commencement Information

I48S. 118 wholly in force at 1.3.2000; s. 118 not in force at Royal Assent see s. 170(4); s. 118 in force for certain purposes at 1.1.2000 by S.I. 1999/3190, art. 2, Sch.; s. 118 in force at 1.3.2000 insofar as not already in force by S.I. 2000/464, art. 2, Sch.

Marginal Citations

119 Homelessness: Scotland and Northern Ireland.E+W+S+N.I.

(1)A person subject to immigration control—

(a)is not eligible for accommodation or assistance under the homelessness provisions, and

(b)is to be disregarded in determining for the purposes of those provisions, whether another person—

(i)is homeless or is threatened with homelessness, or

(ii)has a priority need for accommodation,

unless he is of a class specified in an order made by the Secretary of State.

(2)An order under subsection (1) may not be made so as to include in a specified class any person to whom section 115 applies.

(3)The homelessness provisions” means—

(a)in relation to Scotland, Part II of the M62Housing (Scotland) Act 1987; and

(b)in relation to Northern Ireland, Part II of the M63Housing (Northern Ireland) Order 1988.

(4)Person subject to immigration control” has the same meaning as in section 118.

Annotations:

Commencement Information

I49S. 119 wholly in force at 1.3.2000; s. 119 not in force at Royal Assent see s. 170(4); s. 119 in force for certain purposes at 1.1.2000 by S.I. 1999/3190, art. 2, Sch.; s. 119 in force at 1.3.2000 insofar as not already in force by S.I. 2000/464, art. 2, Sch.

Marginal Citations

120 Other restrictions on assistance: Scotland.E+W+S+N.I.

(1)In section 12 of the M64Social Work (Scotland) Act 1968 (general social welfare services of local authorities), after subsection (2) insert—

(2A)A person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies is not to receive assistance under subsection (1) of this section (whether by way of residential accommodation or otherwise) if his need for assistance has arisen solely—

(a)because he is destitute; or

(b)because of the physical effects, or anticipated physical effects, of his being destitute.

(2B)Subsections (3) and (5) to (8) of section 95 of the Immigration and Asylum Act 1999, and paragraph 2 of Schedule 8 to that Act, apply for the purposes of subsection (2A) as they apply for the purposes of that section, but for the references in subsections (5) and (7) of that section and in that paragraph to the Secretary of State substitute references to a local authority.

(2)In section 13A of that Act (provision of residential accommodation with nursing), after subsection (3) insert—

(4)No arrangements under subsection (1) above may be given effect to in relation to a person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies solely—

(a)because he is destitute; or

(b)because of the physical effects, or anticipated physical effects, of his being destitute.

(5)Subsections (3) and (5) to (8) of section 95 of the Immigration and Asylum Act 1999, and paragraph 2 of Schedule 8 to that Act, apply for the purposes of subsection (4) above as they apply for the purposes of that section, but for the references in subsections (5) and (7) of that section and in that paragraph to the Secretary of State substitute references to a local authority.

(3)In section 13B of that Act (provision of care and after-care), after subsection (2) insert—

(3)No arrangements under subsection (1) above may be given effect to in relation to a person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies solely—

(a)because he is destitute; or

(b)because of the physical effects, or anticipated physical effects, of his being destitute.

(4)Subsections (3) and (5) to (8) of section 95 of the Immigration and Asylum Act 1999, and paragraph 2 of Schedule 8 to that Act, apply for the purposes of subsection (3) above as they apply for the purposes of that section, but for the references in subsections (5) and (7) of that section and in that paragraph to the Secretary of State substitute references to a local authority.

(4)In section 7 of the M65Mental Health (Scotland) Act 1984 (functions of local authorities), after subsection (2) insert—

(3)No arrangements under paragraph (a) or (c) of subsection (1) above may be given effect to in relation to a person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies solely—

(a)because he is destitute; or

(b)because of the physical effects, or anticipated physical effects, of his being destitute.

(4)Subsections (3) and (5) to (8) of section 95 of the Immigration and Asylum Act 1999, and paragraph 2 of Schedule 8 to that Act, apply for the purposes of subsection (3) above as they apply for the purposes of that section, but for the references in subsection (5) and (7) of that section and in that paragraph to the Secretary of State substitute references to a local authority.

(5)In section 8 of that Act (provision of after-care services), after subsection (3) insert—

(4)After care services may not be provided under subsection (1) above in respect of any person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies solely—

(a)because he is destitute; or

(b)because of the physical effects, or anticipated physical effects, of his being destitute.

(5)Subsections (3) and (5) to (8) of section 95 of the Immigration and Asylum Act 1999, and paragraph 2 of Schedule 8 to that Act, apply for the purposes of subsection (4) above as they apply for the purposes of that section, but for the references in subsection (5) and (7) of that section and in that paragraph to the Secretary of State substitute references to a local authority.

(6)In the M66Asylum and Immigration Appeals Act 1993, omit sections 4 and 5 and Schedule 1 (provisions relating to housing of asylum-seekers).

Annotations:

Commencement Information

I50S. 120 wholly in force at 3.4.2000; s. 120 not in force at Royal Assent see s. 170(4); s. 120 in force for certain purposes at 1.3.2000 by S.I. 2000/464, art. 2, Sch.; s. 120 in force at 3.4.2000 insofar as not already in force by S.I. 2000/464, art. 2, Sch.

Marginal Citations

121 Other restrictions on assistance: Northern Ireland.E+W+S+N.I.

(1)In Article 7 of the M67Health and Personal Social Services (Northern Ireland) Order 1972 (prevention of illness, care and after-care), after paragraph (2) insert—

(3)No arrangements made under paragraph (1) may be given effect to in relation to a person to whom section 115 of the Immigration and Asylum Act 1999 applies solely—

(a)because he is destitute; or

(b)because of the physical effects, or anticipated physical effects, of his being destitute.

(3A)Subsections (3) and (5) to (8) of section 95 of the Immigration and Asylum Act 1999, and paragraph 2 of Schedule 8 to that Act, apply for the purposes of paragraph (3) as they apply for the purposes of that section, but for the references in subsections (5) and (7) of that section and in paragraph 2 of that Schedule to the Secretary of State substitute references to the Department.

(2)In Article 15 of that Order (general social welfare), after paragraph (5) insert—

(6)Assistance may not be provided under paragraph (1) in respect of any person to whom section 115 of the Immigration and Asylum Act 1999 applies if his need for assistance has arisen solely—

(a)because he is destitute, or

(b)because of the physical effects, or anticipated physical effects, of his being destitute.

(7)Subsections (3) to (8) of section 95 of the Immigration and Asylum Act 1999, and paragraph 2 of Schedule 8 to that Act, apply for the purposes of paragraph (6) as they apply for the purposes of that section, but for references to the Secretary of State in subsections (5) and (7) of that section and in paragraph 2 of that Schedule substitute references to the Department.

(3)In the Asylum and Immigration Appeals Act 1993, omit sections 4 and 5 and Schedule 1 (provisions relating to housing of asylum-seekers).

Annotations:

Commencement Information

I51S. 121 wholly in force at 3.4.2000; s. 121 not in force at Royal Assent see s. 170(4); s. 121 in force for certain purposes at 1.3.2000 by S.I. 2000/464, art. 2, Sch.; s. 121 in force at 3.4.2000 insofar as not already in force by S.I. 2000/464, art. 2, Sch.

Marginal Citations

122 Support for children.E+W+S+N.I.

(1)In this section “eligible person” means a person who appears to the Secretary of State to be a person for whom support may be provided under section 95.

(2)Subsections (3) and (4) apply if an application for support under section 95 has been made by an eligible person whose household includes a dependant under the age of 18 (“the child”).

(3)If it appears to the Secretary of State that adequate accommodation is not being provided for the child, he must exercise his powers under section 95 by offering, and if his offer is accepted by providing or arranging for the provision of, adequate accommodation for the child as part of the eligible person’s household.

(4)If it appears to the Secretary of State that essential living needs of the child are not being met, he must exercise his powers under section 95 by offering, and if his offer is accepted by providing or arranging for the provision of, essential living needs for the child as part of the eligible person’s household.

(5)No local authority may provide assistance under any of the child welfare provisions in respect of a dependant under the age of 18, or any member of his family, at any time when—

(a)the Secretary of State is complying with this section in relation to him; or

(b)there are reasonable grounds for believing that—

(i)the person concerned is a person for whom support may be provided under section 95; and

(ii)the Secretary of State would be required to comply with this section if that person had made an application under section 95.

(6)Assistance” means the provision of accommodation or of any essential living needs.

(7)The child welfare provisions” means—

(a)section 17 of the M68Children Act 1989 (local authority support for children and their families);

(b)section 22 of the M69Children (Scotland) Act 1995 (equivalent provision for Scotland); and

(c)Article 18 of the M70Children (Northern Ireland) Order 1995 (equivalent provision for Northern Ireland).

(8)Subsection (9) applies if accommodation provided in the discharge of the duty imposed by subsection (3) has been withdrawn.

(9)Only the relevant authority may provide assistance under any of the child welfare provisions in respect of the child concerned.

(10)Relevant authority” means—

(a)in relation to Northern Ireland, the authority within whose area the withdrawn accommodation was provided;

(b)in any other case, the local authority within whose area the withdrawn accommodation was provided.

(11)In such circumstances as may be prescribed, subsection (5) does not apply.

Annotations:

Commencement Information

I52S. 122 wholly in force at 3.4.2000; s. 122 not in force at Royal Assent see s. 170(4); s. 122 in force for certain purposes at 1.3.2000 by S.I. 2000/464, art. 2, Sch.; s. 122 in force at 3.4.2000 insofar as not already in force by S.I. 2000/464, art. 2, Sch.

Marginal Citations

123 Back-dating of benefits where person recorded as refugee.E+W+S+N.I.

(1)This section applies if—

(a)a person is recorded by the Secretary of State as a refugee within the meaning of the Refugee Convention; and

(b)before the refugee was so recorded, he or his dependant was a person to whom section 115 applied.

(2)Regulations may provide that a person mentioned in subsection (1)(b) may, within a prescribed period, claim the whole, or any prescribed proportion, of any benefit to which he would have been entitled had the refugee been so recorded when he made his claim for asylum.

(3)Subsections (5) and (6) apply if the refugee has resided in the areas of two or more local authorities and he or his dependant makes a claim under the regulations in relation to housing benefit.

(4)Subsections (5) and (6) also apply if the refugee has resided in the areas of two or more local authorities in Great Brit