1999 Chapter 33

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These notes refer to the Immigration and Asylum Act 1999
which received Royal Assent on 11 November 1999 (c. 33)

Immigration And Asylum Act

EXPLANATORY NOTES

1.     These explanatory notes relate to the Immigration and Asylum Act 1999 which received Royal Assent on 11 November 1999. They have been prepared by the Home Office in order to assist the reader in understanding the Act. They do not form part of the Act and have not been endorsed by Parliament.

2.     The notes need to be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or part of a section does not seem to require any explanation or comment, none is given.

BACKGROUND

3.     The Government's White Paper Fairer, Faster And Firmer - A Modern Approach To Immigration And Asylum, published on 27 July 1998, provides the background to the Act. The White Paper (to which all later references in these explanatory notes to "the White Paper" refer, unless otherwise stated) set out a range of proposals to modernise and integrate the immigration and asylum system. The overall aim of the planned reforms is to develop a more flexible and streamlined system of immigration control capable of providing an improved quality of service to British citizens and those who qualify to enter or remain in the United Kingdom, as well as strengthening the necessary controls on those who do not.

SUMMARY

4.     The Act includes provisions which touch on all areas of the immigration and asylum system. There are provisions which address the conditions which will apply to persons before they come to the United Kingdom; provisions which will affect the way in which persons are dealt with at ports when arriving in the United Kingdom; and provisions which will affect how they are dealt with once they are here. The Act contains provisions which are intended to contribute to genuine travellers being dealt with more quickly and, on the other hand, provisions for combating illegal entry and strengthening powers to deal with other persons not entitled to enter or remain in the country. The Act contains new support arrangements for asylum seekers in genuine need and includes other safeguards in the form of the regulation of immigration advisers and new provisions for the grant of bail to persons detained under immigration legislation. The Act also clarifies or strengthens some existing powers and offences.

Provisions applying to persons before arrival

5.     Among the provisions in the Act which apply to persons before they come to the United Kingdom is one for a streamlined right of appeal for visitors who are refused an entry clearance to visit a family member in the United Kingdom.

6.     The Act also includes a provision for applicants for an entry clearance to be required to provide, or arrange for the provision of, a financial security (eg a bond) to be provided before entry clearance is given. Immigration rules will specify the circumstances in which a financial security will be required, the maximum amount and the circumstances in which the financial security must be repaid or forfeited. A pilot will be run to test the merits of such a scheme before consideration is given to its wider introduction.

Provisions applying to persons on arrival

7.     The Act provides for greater flexibility in the way permission to enter the United Kingdom may be granted. Instead of leave to enter always having to be given in writing at a port of entry the Act will allow the making of an order under which additional ways of giving leave to enter are specified. Also, the Secretary of State may stipulate that a visa or other entry clearance is to be treated as leave to enter. This will mean that holders of visas, for example, will be able to pass through the port control with only a quick check on identity and on the rightful ownership of the travel document and entry clearance, unless there is a need to examine for, among other matters, change of circumstances. The power will enable other changes to be made in future, for example to exploit new technology, to speed the clearance of passengers through the immigration controls, and to facilitate the more efficient use of resources.

8.     There are other provisions in the Act relating to the operation of controls at ports of entry. These include:

• a provision to extend the present power to require information from carriers about their passengers and a new power to require advance notification by carriers of the arrival of passengers who are not nationals of the European Economic Area;

• a provision to create "statutory gateways" to allow information to be exchanged for specified purposes between the Immigration Service, police and HM Customs and Excise. The Act will enable further purposes to be specified by order and additional gateways with other agencies to be established in future;

• strengthening existing carriers' liability legislation to facilitate the collection of any charges incurred by carriers by bringing inadequately documented passengers to the United Kingdom.

Clandestine entrants

9.     The Act contains provisions for a new power to impose a civil penalty on persons responsible for the transport of clandestine entrants to the United Kingdom. The new civil penalty is additional to and separate from carriers' liability legislation, which the Act is strengthening and replacing. The civil penalty will apply to all vehicles, ships, or aircraft bringing clandestine entrants to the United Kingdom. The Act provides the power to detain vehicles, ships or aircraft as security until all charges for the carriage of illegal entrants have been paid. The Act requires the Secretary of State to issue a code of practice (after consultation and laying a draft before Parliament) setting out the procedures that should be followed by persons such as road hauliers to prevent their vehicles being used for the purpose of clandestine entry.

Immigration and asylum appeals

10.     The White Paper set out details of the multiplicity of appeal rights under the current system and the delays that this engenders. The Act includes provisions to reform the immigration and asylum appeals system to address these issues. The current system, which provides for successive avenues of appeal, will be replaced by a comprehensive one-stop right of appeal for those who were lawfully present (or, in the case of an applicant for leave to enter, held a valid entry clearance). Persons making an asylum or human rights claim who are refused and required to leave the United Kingdom will have a right of appeal even if they made their claim when not lawfully present here; they too will be expected to raise all relevant issues at the time of application. The Act also contains provisions to replace section 2 of the Asylum and Immigration Act 1996 regarding the certification of asylum claims by the Secretary of State in third country cases, and gives a right of appeal to all those refused asylum who have been granted exceptional leave to remain. Otherwise, rights of appeal are limited to those who are to be removed from the United Kingdom: there will no longer be a right of appeal for those who are given leave to remain on ceasing to be exempt from control, or those who are given less favourable leave than that which they had requested.

11.     The Act provides that for those applicants who are lawfully present when seeking leave to remain or hold a valid entry clearance or work permit when they make their claim for entry, the comprehensive one-stop appeal will address all factors in a case falling under the Immigration Rules which appellants will be expected to set out with the grounds of appeal. By the time Part IV of the Act is brought into force, many immigration matters currently dealt with as published extra-statutory concessions will have been incorporated into the Rules. In most cases, those who are in the United Kingdom unlawfully (ie overstayers and illegal entrants) will have no right of appeal and will be subject to administrative removal under section 10 rather than deportation.

12.     The Act makes provision for people who have overstayed their leave to enter or remain to make applications for leave to remain within a prescribed period of at least three months before section 10 comes into force. The effect for those who apply is to preserve the current deportation process and ensuing appeal rights if necessary after section 10 comes into force.

Support for asylum seekers

13.     The Act will create new support arrangements for asylum seekers. The Act will:

• remove from the main benefits system those subject to immigration control in certain respects, including those whose only status here is as an asylum seeker. Unaccompanied children seeking asylum will continue to be dealt with under current arrangements;

• create a new safety net support scheme for asylum seekers in genuine need. The scheme will be funded and administered nationally by the Home Office, thus lifting the current burden on local authorities;

• allow for accommodation to be provided with no choice about location. Other support will predominantly be provided in kind (eg vouchers or directly) rather than by cash payments;

• create a system for the review of decisions to refuse or to withdraw support.

Other provisions applying to persons after arrival

14.     The Act contains other provisions affecting persons after they have entered the United Kingdom. These include:

• a provision for a power to set out in regulations the fees to be paid for Home Office travel documents and for the processing of applications for extensions of stay, changes in conditions of stay, leave to remain and the entry of duplicate stamps in new passports;

• a provision clarifying which members of diplomatic missions are exempt from immigration control; and providing for the imposition of leave to remain on certain people who cease to be exempt;

• a provision for a code of practice on the measures that employers are to take in order to avoid unlawful discrimination when making checks under section 8 of the Asylum and Immigration Act 1996 to establish that applicants for employment are entitled to work in the United Kingdom; and

• a provision for a statutory defence for asylum seekers based on Article 31(1) of the 1951 United Nations Convention on the Status of Refugees (the Refugee Convention) in the context of certain fraud related offences.

Immigration advisers and immigration service providers

15.     The Act sets out provisions for the regulation of immigration advisers. They provide for the appointment of an Immigration Services Commissioner to administer this. Only persons who register with the Commissioner, or persons authorised by the various legal professional bodies (such as the Law Society or Bar Council), or who fall into certain other categories, will be able to give immigration advice or provide immigration services. The Act sets out the criteria for the appointment of the Commissioner, his deputy and staff and their funding. It makes provision for an Immigration Services Tribunal before which the Commissioner may lay disciplinary charges and to which aggrieved persons may appeal against certain findings of the Commissioner. It also creates an offence of giving immigration advice or providing immigration services when not permitted to do so; and gives the courts power to restrain unauthorised persons from giving immigration advice or providing immigration services.

Marriage abuse for immigration purposes

16.     The Act contains procedural measures to increase the effectiveness of existing provisions in the Immigration Rules to prevent the abuse of the immigration system by those who are prepared to enter into marriage simply as a means to obtain settlement in the United Kingdom. Registrars will be given the power to request evidence of name, age, marital status and nationality from couples. This will be underpinned by a power for the registrar to refuse to give authority for the marriage where the registrar is not satisfied that a person is free, legally, to contract the marriage. The existing procedure under which a superintendent registrar may authorise a marriage by a certificate with a licence is to be abolished. At the same time, the existing notice period for a superintendent registrar to issue a certificate without a licence is to be reduced from 21 days to 15 days. In addition, notice will need to be given personally by each party before the superintendent registrar in the registration district where they reside, and the notice will have to state their nationality. A duty is also to be placed on registrars to report to the Home Office those marriages suspected of having been arranged for the purpose of evading immigration controls.

Enforcement

17.     The Act contains a number of measures to strengthen powers of enforcement of the immigration law. The measures include:

• extending the powers of immigration officers to enable them to undertake more operations without the presence of police officers;

• extending existing criminal offences under the Immigration Act 1971 (the 1971 Act) regarding deception, facilitation and the making of false statements;

• extending existing powers to place residence conditions on temporary admission;

• extending the powers to fingerprint to, for example: people who are to be removed or deported; some inadequately documented passengers; and persons arrested under Schedule 2 to the 1971 Act; and

• providing a clear statutory basis for excluding, in compliance with the United Kingdom's international obligations, certain persons who appear on a European Union or United Nations travel ban.

Detention

18.     The Act includes provisions for reform of the arrangements for detaining persons under immigration legislation. It introduces a system of bail hearings and a statutory presumption in favour of bail for persons detained for immigration purposes and provides for certain bail hearings to be heard by magistrates. The Act also puts on a statutory footing the arrangements for the management and operation of immigration detention centres, including provisions setting out the powers of detainee custody officers.

OVERVIEW

19.     The Act is divided into 10 parts:

• Part I deals with various provisions to simplify the way in which the immigration control is to be operated, including to enable charges for travel documents and for after-entry applications to be levied in certain circumstances to be specified in secondary legislation; to clarify responsibility for the provision of facilities for immigration control at ports free of charge; to strengthen some existing powers regarding access to and exchange of information; to extend existing offences of deception, facilitation and the making of false statements; and to provide for the removal of certain persons unlawfully in the United Kingdom;

• Part II deals with penalties for carrying clandestine entrants to the United Kingdom and also carriers' liability for inadequately documented passengers. It also makes further provision with regard to forfeiture of transporters used in an offence of facilitation;

• Part III deals with bail hearings for detained persons;

• Part IV deals with immigration and asylum appeals;

• Part V deals with the regulation of immigration advisers;

• Part VI deals with support arrangements for asylum seekers;

• Part VII creates powers for immigration officers to arrest and search and for the fingerprinting of certain persons;

• Part VIII deals with the management and operation of detention centres;

• Part IX deals with the marriage registrar's certificates procedures; and

• Part X contains miscellaneous and supplemental provisions and provisions on the making of subordinate legislation, interpretation, the title of the Act, commencement and extent.

COMMENTARY ON SECTIONS

Part I: Immigration: general

Sections 1 and 2: Leave to enter or remain in the United Kingdom

20.     Under the current provisions of the 1971 Act, anyone who is not a British citizen, or a national of a Member State of the European Union (EU) (and other nationals of the European Economic Area (EEA)) exercising their European free movement rights, needs to be granted leave to enter or leave to remain (permission to stay) in order lawfully to enter into, or remain in, the United Kingdom (unless exempt). At present, leave to enter has to be given in writing by an immigration officer at a port of entry or, in cases where the individual is already in the country, leave to remain has to be given by the Secretary of State, in practice by Immigration and Nationality Directorate (IND) caseworkers acting on his behalf.

21.     In addition, once a person requiring leave departs from the Common Travel Area (CTA - an area of free movement which comprises the United Kingdom, the Republic of Ireland, the Channel Islands and the Isle of Man), any leave that they may have been granted lapses. If such an individual wishes to come back to the United Kingdom then they have to be granted fresh leave to enter by an immigration officer on their return.

22.     At present under section 4(1) of the 1971 Act a person can only be notified of the conditions and time limits attached to their stay by way of a written notice. This normally takes the form of a stamp in their passport. The effect of the powers conferred under sections 1 and 2 is that, while an individual will still need to obtain either leave to enter the United Kingdom or leave to remain in the United Kingdom, this leave need not necessarily be granted in writing and, in the case of leave to enter, may be granted in advance of arrival. By providing for a more flexible legislative framework, the sections provide the scope for existing procedures to be revised and updated and will also allow technological developments to be utilised in the future.

Section 1: Leave to enter

23.     Section 1 introduces a new section 3A into the 1971 Act. Subsection (1) of the new section enables the Secretary of State by order to make additional provision about the giving, refusing, or varying of leave to enter the United Kingdom. The order is to be made by statutory instrument subject to affirmative resolution procedure. This means that a draft of the order has to be laid before Parliament, debated and approved by both Houses before it is made. Taking a power to make secondary legislation will enable the Secretary of State to respond to future developments, in particular technological changes.

24.     Subsection (2) of the new section sets out what may in particular be contained in an order under subsection (1). Subsection (2)(a) enables provision to be made allowing individuals to be granted or refused leave to enter before their arrival in the United Kingdom. It is envisaged that this power might be used, for example, for applications made at British Embassies or High Commissions overseas. A person with advance leave would be able to pass through the control without further detailed examination by an immigration officer on arrival.

25.     Subsection (2)(b) will allow the Secretary of State to specify the form or manner in which leave to enter will be granted, refused or varied. It is anticipated that technological developments will allow other ways of granting leave in the future that do not rely on the traditional passport endorsement, for example, smart card technology which could be used to give and record leave.

26.     Subsection (2)(c) will allow the Secretary of State to impose conditions with respect to leave given by reason an order under subsection (1) of the new section. It may be necessary, for example, if leave is given in a particular form, to specify conditions which are to be treated as applying to that leave by operation of law, such as a requirement to report to the police, or not to take employment.

27.     Subsection (2)(d) would allow an individual to leave the United Kingdom and then re-enter it using his continuing leave to enter (for the duration of its validity), without having to obtain fresh leave to enter from the immigration officer.

28.     At present, many passengers arriving at United Kingdom sea and airports have a visa or an entry clearance in their passport that has been issued (following completion of an interview with the holder) by an entry clearance officer working at a British Embassy or High Commission abroad. Each holder of a visa or an entry clearance is then re-interviewed by an immigration officer on arrival and given a stamp in their passport giving them leave to enter the United Kingdom. This re-examination at the ports takes time and in many cases is unnecessary. Subsection (3) will allow an order to be laid before Parliament which will provide that in certain specified circumstances the issue of a visa (or another form of entry clearance) will also confer leave to enter on the holder.

29.     Subsection (4) enables an order under subsection (3) to make provision about the number of times the clearance is to have such effect as leave to enter; and the conditions which are to be taken to apply to the conferred leave. Subsection (4)(b) enables the order to provide that such an entry clearance can be varied, either by the Secretary of State or an immigration officer, so that the entry clearance no longer has the effect of leave to enter.

30.     Subsection (5) provides that only the conditions which can be imposed under section 3 of the 1971 Act, as amended by paragraph 1(1) of Schedule 2 to the Asylum and Immigration Act 1996, can be applied to visas that are acting as leave to enter. Among these conditions are:

• a condition restricting an individual's employment or occupation in the United Kingdom;

• a condition requiring an individual to maintain and accommodate himself and his dependants without recourse to public funds; and

• a condition requiring him to register with the police.

31.     Under section 4(1) of the 1971 Act the power to grant or refuse leave to enter the United Kingdom can only be exercised by an immigration officer; the power to give or refuse leave to remain, or to vary an individual's leave to enter or remain, can only be exercised by the Secretary of State. Subsection (7) enables the Secretary of State, in circumstances to be set out in an order, also to grant or refuse leave to enter. The aim is to enable IND's procedures (particularly in asylum cases) to be more efficient, to minimise duplication of effort and to give greater operational flexibility. For example, under the current system one person, a caseworking officer in IND, takes the decision whether to grant or refuse asylum and another, the immigration officer at a port, then has to take a separate decision to grant or refuse leave to enter. It is envisaged that under this new power a single caseworking officer would be able to take both decisions.

32.     Subsection (8) provides that when an order is made under subsection (7) above, certain paragraphs in Part I of Schedule 2 to the 1971 Act can be applied in order to give the Secretary of State related powers, for example, to examine an individual to determine whether he required leave to enter the United Kingdom.

Section 2: Leave to remain

33.     Section 2 introduces a new section 3B into the 1971 Act. It is designed to allow greater flexibility in the way in which foreign nationals (ie non-British and non-EU/EEA nationals) are given or refused leave to remain.

34.     Subsection (1) gives the Secretary of State the power by order to make further provision with respect to the grant or refusal or varying of leave to remain. The power is designed to enable the use in future of new technology to grant, refuse or vary such leave.

35.     There are a variety of categories in the Immigration Rules under which people can apply for leave to remain. Where someone has been granted leave as, for example, a visitor and then applies to stay as a student, the length of their leave and the conditions attached to it would have to be changed to enable the individual to stay here as a student. That is, their leave would have to be varied.

36.     Under subsection (2), the order may specify the form or manner in which leave to remain may be granted, refused or varied. Paragraph (b) allows the Secretary of State to deem conditions to be attached to leave to remain which has been granted in a particular way under the order. For example, a requirement to report to the police or not to take employment may be imposed.

37.     Under the current system, any leave that has been granted to an individual lapses if he leaves the CTA (see paragraph 21 above and section 3(4) of the 1971 Act). Subsection (2)(c) (with subsection (3)) will allow the order to provide that the individual may leave the United Kingdom and then re-enter the United Kingdom, using his continuing permission to stay (for the duration of its validity), without having to obtain a new visa or fresh leave to enter from the immigration officer.

Schedule 14: Consequential amendments

38.     Paragraph 2(1) of Schedule 2 to the 1971 Act gives an immigration officer the power to examine any person who arrives in the United Kingdom and sets out the purpose for which such an examination is conducted. At present, if it is concluded that a person is a British citizen, the immigration officer takes no further action. If he is not a British citizen, however, he will be examined to determine whether or not he requires permission to enter the United Kingdom. This permission is called leave to enter. If a person qualifies for leave to enter then the immigration officer will go on to decide the length of the leave and any conditions, such as permission to work, which will apply. Finally, if a person does not qualify for leave to enter then the immigration officer may refuse leave to enter.

39.     Paragraph 56 of Schedule 14 will enable an immigration officer to examine those who arrive in the United Kingdom to establish whether they already have leave to enter, either because they have a valid visa which has conferred leave to enter, because they have extant leave (leave which is still valid from a previous entry), or because it has otherwise been granted in advance of arrival.

40.     Paragraph 57 amends Schedule 2 to the 1971 Act to give an immigration officer a power to examine those persons who arrive in the United Kingdom with extant leave and extends to them the requirement to submit to further examination (and medical examination in circumstances where a person is seeking leave to enter for a period in excess of six months, or where the individual appears to be in ill-health), where necessary. The immigration officer may re-examine a person to ascertain whether there has been a change of circumstances, among other matters, and may cancel leave where it is found that the holder no longer qualifies, or suspend it until the examination is complete.

41.     Paragraph 58 amends Schedule 2 to the 1971 Act to give the immigration officer a power to require someone who is being examined under paragraph 2A of that Schedule to provide any information that the immigration officer considers necessary in order to conduct the examination.

42.     In addition, the person who is being examined under the provisions of paragraph 2A is required to produce a passport or some other form of identity document. They are also required to declare whether they are carrying any documents which may be specified by the immigration officer, for example, a student may be required to produce a letter confirming enrolment at a college.

43.     Paragraph 59 extends the power to require a person to submit to medical examination after leave to enter has been granted to include those persons who arrive in the United Kingdom with extant leave.

Section 3: Continuation of leave pending decision

44.     Section 3 replaces the equivalent provisions of the Immigration (Variation of Leave) Order 1976 SI 1976/1572 (as amended). When a person applies for variation of his leave before that leave expires, but it then expires before a decision is taken, the leave is automatically extended to the point at which the appropriate period for appealing a refusal expires. This will protect the immigration status of that person and prevent him from becoming an overstayer. A person will not be able to submit further applications during the leave as extended under this section, although they would be able to vary their original application: this is to ensure that all issues raised are covered by one decision and consequently one appeal.