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(1) Section 94 of the Nationality, Immigration and Asylum Act 2002 (c. 41) (no appeal from within United Kingdom for unfounded human rights or asylum claim) shall be amended as follows.
(2) After subsection (1) insert—
“(1A) A person may not bring an appeal against an immigration decision of a kind specified in section 82(2)(c), (d) or (e) in reliance on section 92(2) if the Secretary of State certifies that the claim or claims mentioned in subsection (1) above is or are clearly unfounded.”
(3) In subsection (2) for “in reliance on section 92(4)” substitute “in reliance on section 92(4)(a)”.
(4) In subsection (4) omit paragraphs (a) to (j).
(5) After subsection (5) insert—
“(5A) If the Secretary of State is satisfied that the statements in subsection (5) (a) and (b) are true of a State or part of a State in relation to a description of person, an order under subsection (5) may add the State or part to the list in subsection (4) in respect of that description of person.
(5B) Where a State or part of a State is added to the list in subsection (4) in respect of a description of person, subsection (3) shall have effect in relation to a claimant only if the Secretary of State is satisfied that he is within that description (as well as being satisfied that he is entitled to reside in the State or part).
(5C) A description for the purposes of subsection (5A) may refer to—
(a) gender,
(b) language,
(c) race,
(d) religion,
(e) nationality,
(f) membership of a social or other group,
(g) political opinion, or
(h) any other attribute or circumstance that the Secretary of State thinks appropriate.”
(6) For subsection (6) substitute—
“(6) The Secretary of State may by order amend the list in subsection (4) so as to omit a State or part added under subsection (5); and the omission may be—
(a) general, or
(b) effected so that the State or part remains listed in respect of a description of person.”
(7) After subsection (6) insert—
“(6A) Subsection (3) shall not apply in relation to an asylum claimant or human rights claimant who—
(a) is the subject of a certificate under section 2 or 70 of the Extradition Act 2003 (c. 41),
(b) is in custody pursuant to arrest under section 5 of that Act,
(c) is the subject of a provisional warrant under section 73 of that Act,
(d) is the subject of an authority to proceed under section 7 of the Extradition Act 1989 (c. 33) or an order under paragraph 4(2) of Schedule 1 to that Act, or
(e) is the subject of a provisional warrant under section 8 of that Act or of a warrant under paragraph 5(1)(b) of Schedule 1 to that Act.”
(8) After section 112(5) of that Act (orders, &c.) insert—
“(5A) If an instrument makes provision under section 94(5) and 94(6)—
(a) subsection (4)(b) above shall apply, and
(b) subsection (5)(b) above shall not apply.”
For section 92(3) of the Nationality, Immigration and Asylum Act 2002 (c. 41) (appeal from within United Kingdom: person with entry clearance or work permit) substitute—
“(3) This section also applies to an appeal against refusal of leave to enter the United Kingdom if—
(a) at the time of the refusal the appellant is in the United Kingdom, and
(b) on his arrival in the United Kingdom the appellant had entry clearance.
(3A) But this section does not apply by virtue of subsection (3) if subsection (3B) or (3C) applies to the refusal of leave to enter.
(3B) This subsection applies to a refusal of leave to enter which is a deemed refusal under paragraph 2A(9) of Schedule 2 to the Immigration Act 1971 (c. 77) resulting from cancellation of leave to enter by an immigration officer—
(a) under paragraph 2A(8) of that Schedule, and
(b) on the grounds specified in paragraph 2A(2A) of that Schedule.
(3C) This subsection applies to a refusal of leave to enter which specifies that the grounds for refusal are that the leave is sought for a purpose other than that specified in the entry clearance.
(3D) This section also applies to an appeal against refusal of leave to enter the United Kingdom if at the time of the refusal the appellant—
(a) is in the United Kingdom,
(b) has a work permit, and
(c) is any of the following (within the meaning of the British Nationality Act 1981 (c. 61))—
(i) a British overseas territories citizen,
(ii) a British Overseas citizen,
(iii) a British National (Overseas),
(iv) a British protected person, or
(v) a British subject.”
(1) After section 88 of the Nationality, Immigration and Asylum Act 2002 (c. 41) (appeal: ineligibility) insert—
(1) A person may not appeal under section 82(1) against refusal of entry clearance if the decision to refuse is taken on grounds which—
(a) relate to a provision of immigration rules, and
(b) are specified for the purpose of this section by order of the Secretary of State.
(2) Subsection (1)—
(a) does not prevent the bringing of an appeal on either or both of the grounds referred to in section 84(1)(b) and (c), and
(b) is without prejudice to the effect of section 88 in relation to an appeal under section 82(1) against refusal of entry clearance.”
(2) In section 112 of that Act (regulations, &c.) after subsection (3) insert—
“(3A) An order under section 88A—
(a) must be made by statutory instrument,
(b) may not be made unless a draft has been laid before and approved by resolution of each House of Parliament, and
(c) may include transitional provision.”
(1) Section 96 of the Nationality, Immigration and Asylum Act 2002 (earlier right of appeal) shall be amended as follows.
(2) For subsections (1) to (3) substitute—
“(1) An appeal under section 82(1) against an immigration decision (“the new decision”) in respect of a person may not be brought if the Secretary of State or an immigration officer certifies—
(a) that the person was notified of a right of appeal under that section against another immigration decision (“the old decision”) (whether or not an appeal was brought and whether or not any appeal brought has been determined),
(b) that the claim or application to which the new decision relates relies on a matter that could have been raised in an appeal against the old decision, and
(c) that, in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that matter not having been raised in an appeal against the old decision.
(2) An appeal under section 82(1) against an immigration decision (“the new decision”) in respect of a person may not be brought if the Secretary of State or an immigration officer certifies—
(a) that the person received a notice under section 120 by virtue of an application other than that to which the new decision relates or by virtue of a decision other than the new decision,
(b) that the new decision relates to an application or claim which relies on a matter that should have been, but has not been, raised in a statement made in response to that notice, and
(c) that, in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that matter not having been raised in a statement made in response to that notice.”
(3) In subsection (5) for “Subsections (1) to (3) apply to prevent or restrict” substitute “Subsections (1) and (2) apply to prevent”.
(4) At the end add—
“(7) A certificate under subsection (1) or (2) shall have no effect in relation to an appeal instituted before the certificate is issued.”
In section 82(2) of the Nationality, Immigration and Asylum Act 2002 (c. 41) after paragraph (i) insert—
“(ia) a decision that a person is to be removed from the United Kingdom by way of directions under paragraph 12(2) of Schedule 2 to the Immigration Act 1971 (c. 77) (seamen and aircrews),”.
(1) At the end of section 24 of the Anti-terrorism, Crime and Security Act 2001 (c. 24) (suspected international terrorist: bail by Special Immigration Appeals Commission) add—
“(4) Where the Special Immigration Appeals Commission determines an application for bail, the applicant or a person who made representations to the Commission about the application may appeal on a question of law to the appropriate appeal court.
(5) Section 7(2) and (3) of the Special Immigration Appeals Commission Act 1997 (c. 68) (appeals from Commission) shall have effect for the purposes of an appeal under subsection (4) above.”
(2) In section 27(5) and (6) of the Anti-terrorism, Crime and Security Act 2001 (suspected international terrorist: Special Immigration Appeals Commission: procedure) for “section 25 or 26 of this Act” substitute “section 24, 25 or 26 of this Act”.
(1) Schedule 3 (which concerns the removal of persons claiming asylum to countries known to protect refugees and to respect human rights) shall have effect.
(2) Sections 11 and 12 of the Immigration and Asylum Act 1999 (c. 33) (removal of asylum claimant to country under standing or other arrangements) shall cease to have effect.
(3) The following provisions of the Nationality, Immigration and Asylum Act 2002 (c. 41) shall cease to have effect—
(a) section 80 (new section 11 of 1999 Act), and
(b) section 93 (appeal from within United Kingdom: “third country” removal).
(1) In paragraph 2(1) of Schedule 3 to the Immigration Act 1971 (c. 77) (detention pending deportation on recommendation by court) for the words “and that person is neither detained in pursuance of the sentence or order of any court nor for the time being released on bail by any court having power so to release him” substitute “and that person is not detained in pursuance of the sentence or order of any court”.
(2) In paragraph 2(2) of that Schedule (detention following notice of deportation) for the words “and he is neither detained in pursuance of the sentence or order of a court nor for the time being released on bail by a court having power so to release him” substitute “and he is not detained in pursuance of the sentence or order of a court”.
(1) The Secretary of State may require a person to take specified action if the Secretary of State thinks that—
(a) the action will or may enable a travel document to be obtained by or for the person, and
(b) possession of the travel document will facilitate the person’s deportation or removal from the United Kingdom.
(2) In particular, the Secretary of State may require a person to—
(a) provide information or documents to the Secretary of State or to any other person;
(b) obtain information or documents;
(c) provide fingerprints, submit to the taking of a photograph or provide information, or submit to a process for the recording of information, about external physical characteristics (including, in particular, features of the iris or any other part of the eye);
(d) make, or consent to or cooperate with the making of, an application to a person acting for the government of a State other than the United Kingdom;
(e) cooperate with a process designed to enable determination of an application;
(f) complete a form accurately and completely;
(g) attend an interview and answer questions accurately and completely;
(h) make an appointment.
(3) A person commits an offence if he fails without reasonable excuse to comply with a requirement of the Secretary of State under subsection (1).
(4) A person guilty of an offence under subsection (3) shall be liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding two years, to a fine or to both, or
(b) on summary conviction, to imprisonment for a term not exceeding twelve months, to a fine not exceeding the statutory maximum or to both.
(5) If a constable or immigration officer reasonably suspects that a person has committed an offence under subsection (3) he may arrest the person without warrant.
(6) An offence under subsection (3) shall be treated as—
(a) a relevant offence for the purposes of sections 28B and 28D of the Immigration Act 1971 (c. 77) (search, entry and arrest), and
(b) an offence under Part III of that Act (criminal proceedings) for the purposes of sections 28(4), 28E, 28G and 28H (search after arrest, &c.) of that Act.
(7) In subsection (1)—
“travel document” means a passport or other document which is issued by or for Her Majesty’s Government or the government of another State and which enables or facilitates travel from the United Kingdom to another State, and
“removal from the United Kingdom” means removal under—
(a) Schedule 2 to the Immigration Act 1971 (control on entry) (including a provision of that Schedule as applied by another provision of the Immigration Acts),
(b) section 10 of the Immigration and Asylum Act 1999 (c. 33) (removal of person unlawfully in United Kingdom), or
(c) Schedule 3 to this Act.
(8) While sections 11 and 12 of the Immigration and Asylum Act 1999 continue to have effect, the reference in subsection (7)(c) above to Schedule 3 to this Act shall be treated as including a reference to those sections.
(9) In so far as subsection (3) extends to England and Wales, subsection (4)(b) shall, until the commencement of section 154 of the Criminal Justice Act 2003 (c. 44) (increased limit on magistrates' power of imprisonment), have effect as if the reference to twelve months were a reference to six months.
(10) In so far as subsection (3) extends to Scotland, subsection (4)(b) shall have effect as if the reference to twelve months were a reference to six months.
(11) In so far as subsection (3) extends to Northern Ireland, subsection (4)(b) shall have effect as if the reference to twelve months were a reference to six months.
(1) In this section—
(a) “residence restriction” means a restriction as to residence imposed under—
(i) paragraph 21 of Schedule 2 to the Immigration Act 1971 (c. 77) (control on entry) (including that paragraph as applied by another provision of the Immigration Acts), or
(ii) Schedule 3 to that Act (deportation),
(b) “reporting restriction” means a requirement to report to a specified person imposed under any of those provisions,
(c) “employment restriction” means a restriction as to employment or occupation imposed under any of those provisions, and
(d) “immigration bail” means—
(i) release under a provision of the Immigration Acts on entry into a recognizance or bail bond,
(ii) bail granted in accordance with a provision of the Immigration Acts by a court, a justice of the peace, the sheriff, the Asylum and Immigration Tribunal, the Secretary of State or an immigration officer (but not by a police officer), and
(iii) bail granted by the Special Immigration Appeals Commission.
(2) Where a residence restriction is imposed on an adult—
(a) he may be required to cooperate with electronic monitoring, and
(b) failure to comply with a requirement under paragraph (a) shall be treated for all purposes of the Immigration Acts as failure to observe the residence restriction.
(3) Where a reporting restriction could be imposed on an adult—
(a) he may instead be required to cooperate with electronic monitoring, and
(b) the requirement shall be treated for all purposes of the Immigration Acts as a reporting restriction.
(4) Immigration bail may be granted to an adult subject to a requirement that he cooperate with electronic monitoring; and the requirement may (but need not) be imposed as a condition of a recognizance or bail bond.
(5) In this section a reference to requiring an adult to cooperate with electronic monitoring is a reference to requiring him to cooperate with such arrangements as the person imposing the requirement may specify for detecting and recording by electronic means the location of the adult, or his presence in or absence from a location—
(a) at specified times,
(b) during specified periods of time, or
(c) throughout the currency of the arrangements.
(6) In particular, arrangements for the electronic monitoring of an adult—
(a) may require him to wear a device;
(b) may require him to make specified use of a device;
(c) may prohibit him from causing or permitting damage of or interference with a device;
(d) may prohibit him from taking or permitting action that would or might prevent the effective operation of a device;
(e) may require him to communicate in a specified manner and at specified times or during specified periods of time;
(f) may involve the performance of functions by persons other than the person imposing the requirement to cooperate with electronic monitoring (and those functions may relate to any aspect or condition of a residence restriction, of a reporting restriction, of an employment restriction, of a requirement under this section or of immigration bail).
(7) In this section “adult” means an individual who is at least 18 years old.
(8) The Secretary of State—
(a) may make rules about arrangements for electronic monitoring for the purposes of this section, and
(b) when he thinks that satisfactory arrangements for electronic monitoring are available in respect of an area, shall notify persons likely to be in a position to exercise power under this section in respect of the area.
(9) Rules under subsection (8)(a) may, in particular, require that arrangements for electronic monitoring impose on a person of a specified description responsibility for specified aspects of the operation of the arrangements.
(10) A requirement to cooperate with electronic monitoring—
(a) shall comply with rules under subsection (8)(a), and
(b) may not be imposed in respect of an adult who is or is expected to be in an area unless the person imposing the requirement has received a notification from the Secretary of State under subsection (8)(b) in respect of that area.
(11) Rules under subsection (8)(a)—
(a) may include incidental, consequential or transitional provision,
(b) may make provision generally or only in relation to specified cases, circumstances or areas,
(c) shall be made by statutory instrument, and
(d) shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(12) Before the commencement of section 26 a reference in this section to the Asylum and Immigration Tribunal shall be treated as a reference to—
(a) a person appointed, or treated as if appointed, as an adjudicator under section 81 of the Nationality, Immigration and Asylum Act 2002 (c. 41) (appeals), and
(b) the Immigration Appeal Tribunal.
(1) For section 84(2) and (3) of the Immigration and Asylum Act 1999 (c. 33) (person qualified to provide immigration services) substitute—
“(2) A person is a qualified person if he is—
(a) a registered person,
(b) authorised by a designated professional body to practise as a member of the profession whose members the body regulates,
(c) the equivalent in an EEA State of—
(i) a registered person, or
(ii) a person within paragraph (b),
(d) a person permitted, by virtue of exemption from a prohibition, to provide in an EEA State advice or services equivalent to immigration advice or services, or
(e) acting on behalf of, and under the supervision of, a person within any of paragraphs (a) to (d) (whether or not under a contract of employment).
(3) Subsection (2)(a) and (e) are subject to any limitation on the effect of a person’s registration imposed under paragraph 2(2) of Schedule 6.”
(2) In section 85(1) of that Act (registration by the Commissioner) omit “and (b)”.
(3) In section 89 of that Act (disciplinary charge upheld by Immigration Services Tribunal)—
(a) for subsections (2) and (3) substitute—
“(2) If the person charged is a registered person or acts on behalf of a registered person, the Tribunal may—
(a) direct the Commissioner to record the charge and the Tribunal’s decision for consideration in connection with the registered person’s next application for continued registration;
(b) direct the registered person to apply for continued registration as soon as is reasonably practicable.”, and
(b) in subsection (8) for “employed by him or working” substitute “acting on his behalf or”.
(4) In section 90(4) of that Act (orders by disciplinary bodies) for “works under the supervision of” substitute “is acting on behalf of”.
(5) In Schedule 5 to that Act (Immigration Services Commissioner)—
(a) for paragraph 1(1)(b) substitute—
“(b) those acting on behalf of registered persons,”,
(b) for paragraph 1(3)(b) substitute—
“(b) any person acting on behalf of that person.”,
(c) for paragraph 3(3)(b) substitute—
“(b) a person who is acting on behalf of a person who is within paragraph (a);”,
(d) for paragraph 4(1)(b) substitute—
“(b) persons acting on behalf of persons who are within paragraph (a).”,
(e) in paragraph 5(3)(b) for “employed by, or working under the supervision of,” substitute “acting on behalf of”,
(f) for paragraph 5(3)(e) substitute—
“(e) an alleged breach of a rule of a relevant regulatory body,”,
(g) for paragraph 6(3)(c) substitute—
“(c) in any other case, refer the matter to any relevant regulatory body.”,
(h) in paragraphs 9(1)(a) and (b) for “or a person employed by, or working under the supervision of,” substitute “or is acting on behalf of”,
(i) for paragraph 9(1)(c) substitute—
“(c) refer the complaint and his decision on it to a relevant regulatory body;”,
(j) for paragraphs 9(3)(a) and (b) substitute—
“(a) imposing restrictions on the provision of immigration advice or immigration services by the relevant person or by a person acting on his behalf or under his supervision;
(b) prohibiting the provision of immigration advice or immigration services by the relevant person or a person acting on his behalf or under his supervision.”, and
(k) for paragraphs 9(4)(b) to (d) substitute—
“(b) a person acting on behalf of a registered person;”.
(6) In Schedule 6 to that Act (registration)—
(a) in paragraph 1(1) omit “or (b)”, and
(b) in paragraph 3(7)(a) for “section 89(3)(b)” substitute “section 89(2)(b)”.
(1) After section 92 of the Immigration and Asylum Act 1999 (c. 33) (offences: enforcement) insert—
(1) On an application made by the Commissioner a justice of the peace may issue a warrant authorising the Commissioner to enter and search premises.
(2) A justice of the peace may issue a warrant in respect of premises only if satisfied that there are reasonable grounds for believing that—
(a) an offence under section 91 has been committed,
(b) there is material on the premises which is likely to be of substantial value (whether by itself or together with other material) to the investigation of the offence, and
(c) any of the conditions specified in subsection (3) is satisfied.
(3) Those conditions are—
(a) that it is not practicable to communicate with a person entitled to grant entry to the premises,
(b) that it is not practicable to communicate with a person entitled to grant access to the evidence,
(c) that entry to the premises will be prevented unless a warrant is produced, and
(d) that the purpose of a search may be frustrated or seriously prejudiced unless the Commissioner can secure immediate entry on arrival at the premises.
(4) The Commissioner may seize and retain anything for which a search is authorised under this section.
(5) A person commits an offence if without reasonable excuse he obstructs the Commissioner in the exercise of a power by virtue of this section.
(6) A person guilty of an offence under subsection (5) shall be liable on summary conviction to—
(a) imprisonment for a term not exceeding six months,
(b) a fine not exceeding level 5 on the standard scale, or
(c) both.
Amended by correction slip on 01 November 2004
Asylum and Immigration (Treatment of Claimants, Etc.) Act 2004