The Immigration (Jersey) Order 2021

1.—(1) The following definitions have effect for the purposes of this Schedule.

(1A) “Minister” means Minister for Home Affairs.

(2) “Immigration officer” means a person who is appointed as an immigration officer under paragraph 1 of Schedule 2 to the Immigration Act 1971.

(3) “Customs official” means a person who is designated as an officer of the Impôts within the meaning of Article 4 of the Customs and Excise (Jersey) Law 1999.

(4) “Qualified officer” means an immigration officer or customs official who is designated by the Minister for the purposes of this Schedule.

(5) “Senior police officer” means a police officer of at least the rank of chief inspector.

(6) “Travel document” means anything that is or appears to be –

(a) a passport, or

(b) a ticket or other document that permits a person to make a journey by any means from Jersey to a place outside Great Britain or Guernsey or the Isle of Man.

(7) “Passport” means –

(a) a United Kingdom passport (within the meaning of the Immigration Act 1971,

(b) a passport issued by or on behalf of the authorities of a country or territory outside the British Islands, or by or on behalf of an international organisation, or

(c) a document that can be used (in some or all circumstances) instead of a passport.

(8) “Port” means –

(a) an airport,

(b) a sea port,

(f) any other place at which a person is able, or attempting, to get on or off any craft, vessel or vehicle in connection with entering or leaving Jersey.

(10) “Involvement in terrorism-related activity” is any one or more of the following –

(a) the commission, preparation or instigation of acts of terrorism;

(b) conduct that facilitates the commission, preparation or instigation of such acts, or is intended to do so;

(c) conduct that gives encouragement to the commission, preparation or instigation of such acts, or is intended to do so;

(d) conduct that gives support or assistance to individuals who are known or believed by the person concerned to be involved in conduct falling within paragraph (a).

It is immaterial whether the acts of terrorism in question are specific acts of terrorism or acts of terrorism in general.

(11) “Terrorism” and “terrorist” have the same meaning as in the Terrorism (Jersey) Law 2002 (see Articles 2 and 36 of that Law).

(12) “Judicial authority” means the Magistrate and includes any person exercising the functions of the Magisrate.

(15) “The 14-day period” and “the 30-day period” have the meanings given by paragraphs 5(2) and 8(7) respectively.

2.—(1) This paragraph applies in the case of a person at a port in Jersey if a police officer has reasonable grounds to suspect that the person –

(a) is there with the intention of leaving Jersey for the purpose of involvement in terrorism-related activity outside the British Islands, or

(b) has arrived in Jersey with the intention of leaving it soon for that purpose.

(3) The police officer may –

(a) exercise any of the powers in sub-paragraph (5) in the case of the person, or

(b) direct a qualified officer to do so.

(4) A qualified officer must (if able to do so) comply with any direction given by a police officer under sub-paragraph (3)(b).

(5) The powers are –

(a) to require the person to hand over all travel documents in his or her possession to the police officer or (as the case may be) the qualified officer;

(b) to search for travel documents relating to the person and to take possession of any that the police officer or the qualified officer finds;

(c) to inspect any travel document relating to the person;

(d) to retain any travel document relating to the person that is lawfully in the possession of the police officer or the qualified officer.

(6) The power in sub-paragraph (5)(b) is a power to search –

(a) the person;

(b) anything that the person has with him or her;

(c) any vehicle in which the officer believes the person to have been travelling or to be about to travel.

(7) A police officer or qualified officer –

(a) may stop a person or vehicle for the purpose of exercising a power in sub-paragraph (5)(a) or (b);

(b) may if necessary use reasonable force for the purpose of exercising a power in sub-paragraph (5)(a) or (b);

(c) may authorise a person to carry out on the police officer’s or qualified officer’s behalf a search under sub-paragraph (5)(b).

(8) A police officer or qualified officer exercising a power in sub-paragraph (5)(a) or (b) must tell the person that –

(a) the person is suspected of intending to leave Jersey for the purpose of involvement in terrorism-related activity outside the British Islands, and

(b) the police officer or the qualified officer is therefore entitled under this Schedule to exercise the power.

(9) Where a travel document relating to the person is in the possession of an immigration officer or customs official (whether a qualified officer or not), the police officer may direct the officer or official –

(a) to pass the document to a police officer as soon as practicable, and

(b) in the meantime to retain it.

The immigration officer or customs official must comply with any such direction.

Travel documents in possession of immigration officers or customs

3.—(1) Where –

(a) a travel document lawfully comes into the possession of an immigration officer or customs official (whether a qualified officer or not) without a power under paragraph 2 being exercised, and

(b) as soon as possible after taking possession of the document, the officer or official asks a police officer whether the police officer wishes to give a direction under paragraph 2(9) in relation to the document,

the officer or official may retain the document until the police officer tells him or her whether or not the police officer wishes to give such a direction.

(2) A request under sub-paragraph (1) must be considered as soon as possible.

Authorisation by senior police officer for retention of travel

4.—(1) Where a travel document is in the possession of a police officer or qualified officer as a result of the exercise of a power under paragraph 2, the relevant police officer must as soon as possible either –

(a) seek authorisation from a senior police officer for the document to be retained, or

(b) ensure that the document is returned to the person to whom it relates.

“The relevant police officer” means the police officer by whom, or on whose direction, the power was exercised.

(2) The document may be retained while an application for authorisation is considered.

Any such application must be considered as soon as possible.

(3) A police officer or qualified officer retaining a travel document under sub-paragraph (2) must tell the person to whom the document relates that –

(a) the person is suspected of intending to leave Jersey for the purpose of involvement in terrorism-related activity outside the British Islands, and

(b) the police officer or qualified officer is therefore entitled under this Schedule to retain the document while the matter is considered by a senior police officer.

This does not apply if the police officer or qualified officer expects the application for authorisation to be dealt with immediately, or if sub-paragraph (4) has been complied with.

(4) An immigration officer or customs official to whom a direction is given under paragraph 2(9) must tell the person to whom the travel document in question relates that –

(a) the person is suspected of intending to leave Jersey for the purpose of involvement in terrorism-related activity outside the British Islands, and

(b) a police officer is therefore entitled under this Schedule to retain the document while the matter is considered by a senior police officer.

This does not apply if the immigration officer or customs official expects the application for authorisation to be dealt with immediately.

(5) If an application for authorisation is granted –

(a) the travel document must be passed to a police officer if it is not already in the possession of a police officer, and

(b) paragraph 5 applies.

(6) If an application for authorisation is refused, the travel document must be returned to the person as soon as possible.

(7) A senior police officer may grant an application for authorisation only if satisfied that there are reasonable grounds for the suspicion referred to in paragraph 2(1) or (2).

(8) An authorisation need not be in writing.

(9) Sub-paragraphs (1)(b) and (6) are subject to paragraph 7 and to any power or provision not in this Schedule under which the document may be lawfully retained or otherwise dealt with.

5.—(1) Where authorisation is given under paragraph 4 for a travel document relating to a person to be retained, it may continue to be retained—

(a) while consideration is given to whether to cancel the person’s passport,

(b) while consideration is given to charging the person with an offence,

(c) while consideration is given to making the person subject to any order or measure to be made or imposed by a court, or by the Minister, for purposes connected with protecting members of the public from a risk of terrorism, or

(d) while steps are taken to carry out any of the actions mentioned in paragraphs (a) to (c).

(2) But a travel document may not be retained under this Schedule after the end of the period of 14 days beginning with the day after the document was taken (“the 14-day period”), unless that period is extended under paragraph 8 or 11(3).

(3) The travel document must be returned to the person as soon as possible –

(a) once the 14-day period (or the 14-day period as extended under paragraph 8 or 11(3)) expires;

(b) once the power in sub-paragraph (1) ceases to apply, if that happens earlier.

This is subject to paragraph 7 and to any power or provision not in this Schedule under which the document may be lawfully retained or otherwise dealt with.

(4) The police officer to whom a travel document is passed under paragraph 2(9) or 4(5)(a), or who is in possession of it when authorisation is given under paragraph 4, must explain to the person the effect of sub-paragraphs (1) to (3).

(5) The police officer must also tell the person, if he or she has not been told already under paragraph 2(8) or 4(3) or (4), that the person is suspected of intending to leave Jersey for the purpose of involvement in terrorism-related activity outside the British Islands.

6.—(1) This paragraph applies where –

(a) authorisation is given under paragraph 4 for a travel document relating to a person to be retained, and

(b) the document is still being retained by a police officer at the end of the period of 72 hours beginning when the document was taken from the person (“the 72-hour period”).

(2) A police officer who is –

(a) of at least the rank of superintendent, and

(b) of at least as high a rank as the senior police officer who gave the authorisation,

must carry out a review of whether the decision to give authorisation was flawed.

(3) The reviewing officer must –

(a) begin carrying out the review within the 72-hour period,

(b) complete the review as soon as possible, and

(c) communicate the findings of the review in writing to the Chief Officer.

(4) The Chief Officer must consider those findings and take whatever action seems appropriate.

(5) If a power under paragraph 2 was exercised in relation to the travel document by an immigration officer or customs official designated under paragraph 17, the reviewing officer must also communicate the findings of the review in writing to the Minister.

(6) In this paragraph –

“reviewing officer” means the officer carrying out a review under this paragraph;

“Chief Officer” means the Chief Officer of the States of Jersey Police Force.

Detention of document for criminal proceedings etc.

7.—(1) A requirement under paragraph 4 or 5 to return a travel document in the possession of a police officer or qualified officer does not apply while either officer has power to detain it under sub-paragraph (2).

(2) Either officer may detain the document –

(a) while he or she believes that it may be needed for use as evidence in criminal proceedings, or

(b) while he or she believes that it may be needed in connection with a decision by the Minister whether to make a deportation order under the Immigration Act 1971.

Extension of 14-day period by judicial authority

8.—(1) A senior police officer may apply to a judicial authority for an extension of the 14-day period.

(2) An application must be made before the end of the 14-day period.

(3) An application may be heard only if reasonable efforts have been made to give to the person to whom the application relates a notice stating –

(a) the time when the application was made;

(b) the time and place at which it is to be heard.

(4) On an application –

(a) the judicial authority must grant an extension if satisfied that the relevant persons have been acting diligently and expeditiously in relation to the matters and steps referred to in sub-paragraph (5);

(b) otherwise, the judicial authority must refuse to grant an extension.

(5) In sub-paragraph (4) “the relevant persons” means –

(a) the persons responsible for considering whichever of the matters referred to in paragraph 5(1)(a) to (c) are under consideration, and

(b) the persons responsible for taking whichever of the steps referred to in paragraph 5(1)(d) are being taken or are intended to be taken.

(6) An extension must be for a further period ending no later than the end of the 30-day period.

(7) “The 30-day period” means the period of 30 days beginning with the day after the document in question was taken.

9.—(1) The person to whom an application under paragraph 8 relates –

(a) must be given an opportunity to make oral or written representations to the judicial authority about the application;

(b) subject to sub-paragraph (3), is entitled to be legally represented at the hearing.

(2) A judicial authority must adjourn the hearing of an application to enable the person to whom the application relates to obtain legal representation where the person –

(a) is not legally represented,

(b) is entitled to be legally represented, and

(c) wishes to be legally represented.

(3) A judicial authority may exclude any of the following persons from any part of the hearing –

(a) the person to whom the application relates;

(b) anyone representing that person.

10.—(1) A person who has made an application under paragraph 8 may apply to the judicial authority for an order that specified information upon which he or she intends to rely be withheld from –

(a) (the person to whom the application relates, and

(b) anyone representing that person.

(2) A judicial authority may make an order under sub-paragraph (1) in relation to specified information only if satisfied that there are reasonable grounds for believing that if the information was disclosed –

(a) evidence of an offence under any of the provisions mentioned in Article 36(a) of the Terrorism (Jersey) Law 2002 would be interfered with or harmed,

(b) the recovery of property obtained as a result of an offence under any of those provisions would be hindered,

(c) the recovery of property in respect of which a forfeiture order could be made under Article 27 of (and Schedule 3 to) that Law would be hindered,

(d) the apprehension, prosecution or conviction of a person who is suspected of being a terrorist would be made more difficult as a result of the person being alerted,

(e) the prevention of an act of terrorism would be made more difficult as a result of a person being alerted,

(f) the gathering of information about the commission, preparation or instigation of an act of terrorism would be interfered with,

(g) a person would be interfered with or physically injured, or

(h) national security would be put at risk.

(3) The judicial authority must direct that the following be excluded from the hearing of an application under this paragraph –

(a) the person to whom the application under paragraph 8 relates;

(b) anyone representing that person.

11.—(1) A judicial authority may adjourn the hearing of an application under paragraph 8 only if the hearing is adjourned to a date before the expiry of the 14-day period.

(2) Sub-paragraph (1) does not apply to an adjournment under paragraph 9(2).

(3) If an application is adjourned under paragraph 9(2) to a date after the expiry of the 14-day period, the judicial authority must extend the period until that date.

12.—(1) If an extension is granted under paragraph 8 for a period ending before the end of the 30-day period, one further application may be made under that paragraph.

(2) Paragraphs 8 to 11 apply to a further application as if references to the 14-day period were references to that period as previously extended.

13.—(1) Where –

(a) a power under paragraph 4 or 5 to retain a document relating to a person is exercised, and

(b) powers under this Schedule have been exercised in the same person’s case on two or more occasions in the previous 6 months,

this Schedule has effect with the following modifications.

(2) References to 14 days (in paragraph 5(2) and elsewhere) are to be read as references to 5 days.

(3) Paragraph 8 has effect as if the following were substituted for sub-paragraph (4) –

“(4) On an application, the judicial authority must grant an extension if satisfied that –

(a) the relevant persons have been acting diligently and expeditiously in relation to the matters and steps referred to in sub-paragraph (5), and

(b) there are exceptional circumstances justifying the further use of powers under this Schedule in relation to the same person.

Otherwise, the judicial authority must refuse to grant an extension.”

14.—(1) This paragraph applies where a person’s travel documents are retained under this Schedule with the result that, for the period during which they are so retained (“the relevant period”), the person is unable to leave Jersey.

(2) The Minister may make whatever arrangements he or she thinks appropriate in relation to the person –

(a) during the relevant period;

(b) on the relevant period coming to an end.

(3) If at any time during the relevant period the person does not have leave to enter or remain in Jersey, the person’s presence in Jersey at that time is nevertheless not unlawful for the purposes of the Immigration Act 1971.

15.—(1) A person who is required under paragraph 2(5)(a) to hand over all travel documents in the person’s possession commits an offence if he or she fails without reasonable excuse to do so.

(2) A person who intentionally obstructs, or seeks to frustrate, a search under paragraph 2 commits an offence.

(3) A person guilty of an offence under this paragraph is liable to imprisonment for a term not exceeding 6 months, or to a fine not exceeding level 3 on the standard scale, or to both.

16. A qualified officer exercising a power under paragraph 2 has the same powers of arrest without warrant as a police officer in relation to an offence under paragraph 15.

Accredited immigration officers and customs officials

17.—(1) For the purposes of this paragraph, a qualified officer is an “accredited” immigration officer or customs official if designated as such by the Minister.

(2) Sub-paragraphs (1), (2) and (3)(a) of paragraph 2 apply to an accredited immigration officer or customs official as they apply to a police officer.

(3) In paragraph 2(3)(b) and (4) “qualified officer” does not include an accredited immigration officer or customs official.

(4) In paragraphs 2(9) and 3 “immigration officer or customs official” does not include an accredited immigration officer or customs official.

(5) Paragraph 4(1) has effect, in relation to a travel document that is in the possession of an accredited immigration officer or customs official as a result of the exercise of a power under paragraph 2 by that officer or official, as if the reference to the relevant police officer were a reference to that officer or official.

18.—(1) The Minister must issue a code of practice with regard to the exercise of functions under this Schedule.

(2) The code of practice must in particular deal with the following matters –

(a) the procedure for making designations under paragraphs 1(4) and 17;

(b) training to be undertaken by persons who are to exercise powers under this Schedule;

(c) the exercise by police officers, immigration officers and customs officials of functions conferred on them by virtue of this Schedule;

(d) information to be given to a person in whose case a power under this Schedule is exercised;

(e) how and when that information is to be given;

(f) reviews under paragraph 6.

(3) A police officer, immigration officer or customs official must perform functions conferred on him or her by virtue of this Schedule in accordance with any relevant provision included in the code by virtue of sub-paragraph (2)(c) to (e).

(4) The failure by a police officer, immigration officer or customs official to observe any such provision does not of itself make him or her liable to criminal or civil proceedings.

(5) The code of practice –

(a) is admissible in evidence in criminal and civil proceedings;

(b) is to be taken into account by a court or tribunal in any case in which it appears to the court or tribunal to be relevant.