Summary
Part 1 – Border functions
4.The intention of Part 1 is to provide the legislative framework for immigration officers and officials of the Secretary of State to exercise revenue and customs functions which have to date been exercised by Her Majesty’s Revenue and Customs (“HMRC”). Part 1 also provides for the Secretary of State to exercise certain HMRC functions, and provides for the appointment of a Director of Border Revenue who will be responsible for “customs revenue functions” (the term used in the Act to describe functions relating to taxes, duties and levies). In practice the Government intends that officials of the UK Border Agency (“UKBA”), an executive agency of the Home Office, will exercise these functions on behalf of the Secretary of State and the Director of Border Revenue (“the Director”) respectively. Non-revenue customs functions, for example the prevention of drugs smuggling, will be a matter for the Secretary of State and general customs officials. Customs revenue functions, for example the collection of duties and taxes from passengers and on postal packets, and the prevention of smuggling of goods where such duties and taxes have not been paid, will be a matter for the Director and customs revenue officials. The Director, like HMRC, will exercise revenue functions independently of Ministers, subject only to the general direction of the Treasury. Ministers intend that in this way they will remain at arm’s length from tax-related decisions, although UKBA officials may have functions in relation to both tax and non-tax matters.
5.The Government intends that UKBA’s customs role will be focused on border-related matters, such as the importation and exportation of goods, while HMRC will continue to exercise revenue and customs functions inland. The latter includes inland checks on excise goods and customs checks and audits at business premises. The processing of customs freight declarations and the collection of duties is a centralised function which will remain with HMRC. Certain non-revenue regimes which are business-based, will also remain with HMRC such as strategic export controls and protecting intellectual property rights. UKBA will carry out physical examinations at the frontier although some of those interventions may be carried out at the request of HMRC. For example HMRC may ask UKBA to examine a consignment suspected to contain counterfeit goods to ensure the goods are legitimate. Responsibility for overall revenue and customs policy will stay with HMRC.
6.HMRC and UKBA will work closely together in the discharge of their respective customs functions. UKBA may support HMRC’s inland investigations into revenue smuggling and HMRC investigators will attend at the border in response to revenue smuggling detected by UKBA. The concurrent exercise of customs functions is therefore necessary.
7.Sections 1 to 13 enable the Secretary of State and the Director of Border Revenue to exercise concurrently with the Commissioners for HMRC (“the Commissioners”) functions which are currently exercised by the Commissioners and which relate to general customs matters and customs revenue matters. These sections also enable the Secretary of State to designate officials for the purpose of carrying out functions relating to general customs matters and the Director to designate officials of the Secretary of State for the purpose of carrying out functions relating to customs revenue matters. They set out the framework within which designations will be made and require designated officials to comply with relevant directions issued by the Secretary of State and the Director.
8.Sections 14 to 21 explain how customs information may be used and disclosed and amend the duty to share information in section 36 of the Immigration, Asylum and Nationality Act 2006 (“IANA 2006”).
9.Section 22 applies provisions of the Police and Criminal Evidence Act 1984 (PACE) and the Police and Criminal Evidence (Northern Ireland) Order 1989 (PACE (NI)) to criminal investigations conducted by designated customs officials in relation to a general customs or customs revenue matter, and to persons detained by such designated customs officials. The provisions of PACE and PACE (NI) to be applied broadly mirror the provisions applied to those officers of HMRC who carry out equivalent functions currently.
10.Section 23 provides that the Secretary of State may by order apply provisions of PACE and PACE (NI) to persons detained by immigration officers or designated customs officials as part of a criminal investigation, as well as to any such investigation conducted by those officers or officials. As the provisions of PACE do not apply in Scotland section 24 amends the Criminal Law (Consolidation) (Scotland) Act 1995 so that in Scotland the current provisions will apply to UKBA as they apply currently to HMRC.
11.Section 25 amends the definition of a short-term holding facility in section 147 of the Immigration and Asylum Act 1999 (“the 1999 Act”).
12.Section 26 provides for a scheme, or schemes, to enable the transfer of certain property, rights and liabilities between the Commissioners or officers of Revenue and Customs and the Secretary of State, the Director or designated customs officials. Section 27 provides for the sharing of facilities and services between HMRC and those exercising immigration, asylum, nationality or customs functions, for the purposes of the exercise of any of those functions.
13.Sections 28 to 30 make provision for a framework for inspections (conferring functions on the Chief Inspector of the UK Border Agency and enabling the Secretary of State to confer functions on Her Majesty’s Inspectors of Constabulary, the Scottish inspectors and the Northern Ireland inspectors in relation to the exercise of customs functions). Section 31 allows the Attorney General to assign to the Director of Revenue and Customs Prosecutions functions of prosecuting and advising on criminal investigations carried out by officials of the Secretary of State and other persons, such as constables. Section 32 makes provision for the payment to the Commissioners of revenue received by the Secretary of State and the Director of Border Revenue as a result of exercising, respectively, a general customs function or a customs revenue function, while section 33 allows for provision to be made in the future for such revenue to be paid into the Consolidated Fund. Section 34 makes interim provision for the duty regarding the welfare of children until section 55 of the Act comes into force.
Part 2 – Citizenship
14.Sections 39 to 41 amend section 6 and parts of Schedule 1 to the British Nationality Act 1981 (“BNA 1981”), which relate to naturalisation as a British citizen. Section 6 of the BNA 1981 sets out the circumstances in which the Secretary of State may grant a certificate of naturalisation as a British citizen, and amended paragraphs 1 to 4B of Schedule 1 contain the revised qualifying criteria.
15.Section 42 amends section 1 of the BNA 1981, to provide that children born in the UK or a qualifying territory on or after the commencement of that section to members of the armed forces will automatically become British citizens if their father or mother is a member of the armed forces at the time of their birth. It also provides for a child born in the UK or a qualifying territory on or after the commencement of the section to be registered as a British citizen if the child’s father or mother becomes a member of the armed forces while the child is a minor.
16.Section 43 amends section 3(2) of the BNA 1981 to remove the requirement that an application for the registration of a child under that subsection must be made within twelve months of the child’s birth. This will enable an application to be made at any time before the child’s 18th birthday.
17.Section 44 amends section 4B of the BNA 1981. This adds British Nationals (Overseas) to those who are eligible to apply for registration under this section, which currently includes British Overseas citizens, British subjects and British protected persons. The amendment will allow British Nationals (Overseas) to be registered as British citizens if they do not hold any other citizenship or nationality, and have not done anything to effect the loss of another citizenship or nationality since 19 March 2009.
18.Section 45 amends section 4C of the BNA 1981 to remove the requirement that an applicant for registration under that section must be born after 7 February 1961. This will enable applicants born before 7 February 1961 to be able to register as British citizens, if they would have become British had the previous nationality law allowed their mother to pass on nationality in the same way as their father could. The amendments made by the section also widen the scope of section 4C so that it is no longer restricted to the case where the applicant would otherwise have become a citizen of the United Kingdom and Colonies (“CUKC”) under section 5 of the British Nationality Act 1948 (“BNA 1948”).
19.Section 46 creates a new registration route in the BNA 1981 for children of members of the armed forces born outside the UK and the qualifying territories on or after the commencement of the section to become British citizens.
20.Section 47 moves the requirement for nationality applicants applying for registration to be “of good character” from section 58 of the Immigration, Asylum and Nationality Act 2006 (“IANA 2006”) into each of the Acts which contain the relevant registration routes. It also adds a “good character” requirement in the case of an application for registration under section 1(3A), 3(2) or 4D of the BNA 1981.
21.Section 48 moves the definition of being “in breach of the immigration laws” from section 11 of the Nationality, Immigration and Asylum Act 2002 (“NIAA 2002”) to the BNA 1981, and updates the references to being a qualified person under European Community law.
22.Section 49 creates various new definitions for the purposes of the BNA 1981 which are relevant to the amendments made to that Act by sections 40 to 43 and 47.
Part 3 – Immigration
23.Section 50 amends section 3(1)(c) of the Immigration Act 1971 (“IA 1971”) to allow a condition to be imposed on a migrant’s limited leave to enter or remain in the UK restricting his or her studies whilst here.
24.Section 51 extends existing powers to take fingerprints in section 141 of the 1999 Act to include “foreign criminals” subject to the automatic deportation provisions in sections 32 to 38 of the UK Borders Act 2007 (“UKBA 2007”).
25.Section 52 extends the permissive detention power in section 2 of the UKBA 2007 to designated immigration officers in Scotland and amends section 60(1) of that Act to reflect that sections 1 to 4 extend to Scotland.
Part 4 – Miscellaneous and General
26.Section 53 relates to judicial review applications in asylum, immigration and nationality matters, and provides for judicial review cases concerning “fresh claims applications” to be transferred from the High Court, Court of Session or High Court of Northern Ireland to the Upper Tribunal, subject to other conditions.
27.Section 54 widens the definition of exploitation in the offence of human trafficking (for non-sexual purposes) in section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (“AITCA 2004”) to ensure that the use of certain categories of person by another to gain a benefit is conduct which is captured by that offence.
28.Section 55 imposes a duty on the Secretary of State to make arrangements to ensure that certain specified functions are carried out having regard to the need to safeguard and promote the welfare of children who are in the UK. It also imposes a similar duty on the Director in relation to the Director’s functions.
29.Sections 56 to 59 make general provision on repeals, extent, commencement and the short title of the Act. Section 58 in particular sets out certain transitional provisions which must be included in a commencement order giving effect to sections 39 to 41 of the Act (that is the provisions for earned citizenship and amendments to the BNA 1981.
