2002 Chapter 41

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These notes refer to the Nationality,Immigration and Asylum Act which received Royal Assent on 7 November (c.41)

NATIONALITY, IMMIGRATION AND ASYLUM ACT

EXPLANATORY NOTES

INTRODUCTION

1.     These explanatory notes relate to the Nationality, Immigration and Asylum Act, which received Royal Assent on 7 November 2002. 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.

OVERVIEW

3.     The Act is in eight parts:

• Part 1 contains provisions which amend British nationality legislation, primarily the British Nationality Act 1981 ("BNA 1981"). It includes provision for citizenship ceremonies and a pledge, and imposes a requirement for naturalisation as a British citizen that the applicant has sufficient knowledge about life in the United Kingdom;

• Part 2 contains provisions for the support of asylum-seekers in accommodation centres, built or adapted to accommodate and provide services for a number of asylum-seekers and their dependants on one site;

• Part 3 concerns support arrangements for asylum-seekers and other assistance;

• Part 4 contains provisions relating to detention, temporary release and removal;

• Part 5 contains provisions on immigration and asylum appeals;

• Part 6 contains provisions relating to immigration procedures, including charges for work permits, establishment of an Authority-to-carry scheme, and the provision of information and disclosure;

• Part 7 introduces new offences and powers of entry to business premises; and

• Part 8 contains general provisions.

SUMMARY

Part 1 - Nationality

4.     The provisions:

• Introduce citizenship ceremonies and a citizenship pledge;

• Require those who apply for naturalisation as a British citizen to have sufficient knowledge about life in the United Kingdom; allow for regulations to be made which would specify how this requirement - and the existing requirement in relation to knowledge of English, Welsh or Scottish Gaelic - is to be met; extend the language requirement to those applying for naturalisation as the spouse of a British citizen or a British overseas territories citizen;

• Amend the grounds for deprivation of citizenship, and replace the existing procedure for reviewing the deprivation decision with a new right of appeal against deprivation;

• Remove existing provisions which allow discrimination on the grounds of nationality or ethnic or national origin in the exercise of nationality functions;

• Remove the present distinctions in nationality law between legitimate and illegitimate children;

• Repeal both the present statutory exemptions from the duty to give reasons for nationality decisions and the provisions which restrict the court's ability to review certain decisions. Other nationality provisions which are now spent are also repealed;

• Remove the minimum age requirement for applications for registration as a British citizen or a British overseas territories citizen by stateless children born in the United Kingdom and the British overseas territories;

• Clarify the meaning of the expression "in the United Kingdom in breach of the immigration laws", where it occurs in the BNA 1981;

• Enable men as well as women who renounced British nationality before 1983, and who now wish to re-gain it, to rely on a marital connection with the United Kingdom or a British overseas territory;

• Enable regulation of the procedure for applying for a certificate of entitlement to the right of abode in the United Kingdom;

• Confer an entitlement to registration as a British citizen on certain British Overseas citizens, British subjects and British protected persons; and

• Confer a similar entitlement on certain persons who, but for gender discrimination in the law in force before 1 January 1983, would have acquired British citizenship automatically on that date.

Part 2 - Accommodation Centres

5.     Part 2 of the Act makes provision for the introduction of accommodation centres, built or adapted to accommodate and provide services for a number of asylum-seekers and their dependants on one site. The centres will be introduced on a trial basis. A proportion of new asylum-seekers who request, and are eligible for, support will be offered places in accommodation centres. Those who refuse the offer of a place, voluntarily cease to reside in a centre or breach their conditions of residence will not qualify for other forms of support. The centres may provide for a number of facilities and services, including:

• Food and other essential items;

• Money;

• Assistance with transport and assistance with expenses to pursue purposeful activities;

• Facilities for religious observance;

• Healthcare; and

• Education and training.

Part 3 - Other Support and Assistance

6.     The new asylum system will be based on a network of induction, accommodation and reporting centres as well as existing National Asylum Support Service ("NASS") accommodation. Part 3 of the Act enables reporting and residence requirements to be imposed on all asylum-seekers and allows for the discontinuation of support to asylum-seekers who fail without reasonable cause to report as required. The Act also includes a number of provisions about the way in which those in the asylum system are supported. It also includes a provision for the Secretary of State to make payments to local authorities and voluntary organisations to reimburse them for the support they have provided for Unaccompanied Asylum Seeking Children ("UASCs"). This does not affect the amount paid to local authorities.

7.     Part 3 of the Act also contains provisions making certain categories of person ineligible for support unless provision is made in regulations to the contrary. Examples include those who have refugee status in another EU Member State and persons unlawfully in the UK. Part 3 additionally prohibits, subject to certain exceptions, the provision of support to asylum seekers who fail to make their asylum claim as soon as reasonably practicable after their arrival in the UK.

8.     This Part of the Act also contains provision enabling funding of a voluntary assisted return programme ("VARP") and international projects. The VARP is a means by which assistance is provided to asylum-seekers who wish to return home. The current VARP scheme is administered for the Home Office by the International Organisation for Migration in partnership with Refugee Action. Examples of international projects that may be funded under the power include resettlement and the "interception assisted return programmes". The power would allow funding of a United Kingdom resettlement programme which would allow a scheme to be established whereby those who cannot be protected in their region of origin may be entitled to have their claim for protection considered before they reach the United Kingdom, and enable the cost of their travel and settlement here to be met. Any resettlement programme would operate in addition to the current asylum determination procedures. This provision also enables the Secretary of State to participate in research projects relating to migration, and fund organisations and bodies that are involved in such projects.

Part 4 - Detention and Removal

9.     Part 4 of the Act contains a number of measures designed to simplify the process of removing those who have no right to stay in the United Kingdom. These include:

• Giving detainee custody officers acting as escorts a limited power to enter private premises to search persons being taken into detention;

• Giving the Secretary of State power to detain where he has power to give or refuse leave to enter, or where he has power to set removal directions, and giving the Secretary of State a power to grant bail equivalent to the power of immigration officers;

• The power to remove children born in the United Kingdom, where their parents entered the United Kingdom unlawfully; and

• The power to remove those who attempt to obtain permission to stay by using deception.

10.     This Part also contains a provision allowing a residence restriction to be imposed on an asylum-seeker requiring him to reside for up to 14 days at a specified location at or near a place where an induction programme is to be made available to him. In addition a provision has been included which creates a rebuttable presumption that someone who has been convicted of a crime and given a custodial sentence of two years or more or an offence specified by order has been convicted of a particularly serious crime and is a danger to the community for the purposes of Article 33(2) of the Refugee Convention and accordingly cannot rely on that Convention to prevent their removal.

Part 5 - Appeals

11.     The Immigration and Asylum Act 1999 ("the 1999 Act") introduced a one-stop appeal requiring an adjudicator considering an immigration appeal to deal with any other appealable matters raised by the applicant at the same time. The provisions in Part 5 of the Act aim to re-structure the appeals system and will:

• Define the specific immigration decisions which attract a right of appeal;

• Provide for asylum or human rights claims to be certified where the claim is clearly unfounded or where the person is to be removed to a country of which they are not a national and the Secretary of State has no reason to believe that their rights under the ECHR will be breached in that country. The effect of such certification is that the person cannot, other than in limited cases, appeal against the immigration decision while in the United Kingdom;

• Enable the certification of applications, preventing a further right of appeal where a person could have made the application earlier or raised it at an earlier appeal but did not do so;

• Introduce a statutory review process as an alternative remedy to judicial review for challenges to the Immigration Appeal Tribunal decision to refuse permission to appeal;

• Enable rules to provide a statutory closure date to prevent multiple adjournments of cases at the adjudicator stage; and

• Enable rules to provide wasted cost powers and a 'no merit' certificate which can be issued by the Immigration Appellate Authority.

Part 6 - Immigration Procedure

12.     Part 6 of the Act contains provisions that allow a fee to be set for work permit applications, and bring work permit advice within the remit of the Office of the Immigration Services Commissioner.

13.     The Act also contains provisions to introduce a scheme to require physical data, such as iris or facial images, to accompany applications to enter or remain in the United Kingdom. The Secretary of State may also operate a scheme to allow people voluntarily to provide such data to assist their entry into the United Kingdom. There is also provision which allows the introduction of an Authority- to-carry ("ATC") scheme. This provides for regulations to require carriers to check the details of passengers against a Home Office database to confirm that they pose no known immigration or security risk.

14.     The Secretary of State will also be able to require an employer, financial institution, or local authority to supply him with specified information. The Inland Revenue will be able to supply specified information to the Secretary of State for certain purposes, and port medical inspectors and staff working under their direction will be able to disclose information to specified health service bodies where necessary for certain medical purposes. The disclosure gateway at section 20 of the 1999 Act is also extended.

15.     This Part also introduces Schedule 8, which amends the existing carriers' liability provisions in Part II of the 1999 Act. This establishes a more flexible penalty regime, introduces a statutory right of appeal and modifies the provisions for the detention of transporters. The provisions also apply to the rail freight regime (section 39 of the 1999 Act) and the carriers' liability regime (sections 40 to 42 of the 1999 Act).

16.     Part 6 also includes provision for a power that would allow the UK to operate immigration and other frontier controls at an European Economic Area sea port such as Calais, subject to an international agreement. In addition, it would allow the Secretary of State to make any necessary legislative arrangements to accommodate French immigration control in UK Channel ports such as Dover.

Part 7 - Offences

17.     Part 7 of the Act includes new criminal offences of: assisting unlawful immigration; trafficking of people into, out of or within the UK for the purpose of prostitution; forgery and similar activities relating to the Application Registration Card; failure to comply with a notice requesting information in respect of suspected immigration offending; and an offence relating to the possession of an immigration stamp, whether genuine or a replica, without a reasonable excuse. This part also amends and modifies the law on offences relating to the employment of persons who are subject to immigration control; This Part also contains provisions which give police and immigration officers the power to enter business premises to search for and arrest immigration offenders, and to inspect and seize personnel records following the arrest of an immigration offender on those premises.

COMMENTARY ON SECTIONS

PART 1: NATIONALITY

Section 1: Naturalisation: knowledge of language and society

18.     Section 1 amends the provisions in the BNA 1981 which set out the requirements that an applicant for naturalisation as a British citizen must satisfy. (There is already a requirement, in paragraph 1(1)(c) of Schedule 1 to the BNA 1981, for certain applicants to have a sufficient knowledge of English, Welsh or Scottish Gaelic.)

19.     Subsection (1) adds to Schedule 1 of the BNA 1981 a requirement for the applicant to demonstrate sufficient knowledge about life in the United Kingdom.

20.     Subsection (2) enables the Secretary of State to waive the requirement that an applicant must have sufficient knowledge about life in the United Kingdom where he considers that, because of the applicant's age or physical or mental condition, it would be unreasonable to expect him or her to fulfil it.

21.     Subsection (3) enables provision to be made by regulations for determining whether a person has a sufficient knowledge of a language and whether a person has sufficient knowledge about life in the United Kingdom for the purpose of an application for naturalisation.

22.     By subsection (4) the regulations may make provision about how those requirements of sufficient knowledge of language and about life in the United Kingdom are met (for example, by reference to a specified qualification or attendance on a specified course).

Section 2: Naturalisation: spouse of citizen

23.     Section 2 extends the requirement to have sufficient knowledge of a relevant language to those applying for naturalisation on the basis of marriage to a British citizen or a British overseas territories citizen. This section also requires those applying for naturalisation on the basis of marriage to a British citizen to have sufficient knowledge about life in the United Kingdom.

Section 3: Citizenship ceremony, oath and pledge

24.     Section 3 introduces Schedule 1, which amends the current provisions in the BNA 1981 about naturalisation and registration procedure.

25.     Paragraph 1 of Schedule 1 replaces section 42 of the BNA 1981 with provision requiring persons, except minors, who are naturalised or registered as British citizens, to attend citizenship ceremonies and make a citizenship pledge as well as the existing oath. It also extends to applicants for British overseas territories citizenship the requirement to make a pledge. The Secretary of State is given a discretion to disapply these requirements in particular cases.

26.     Paragraph 2 of Schedule 1 replaces Schedule 5 to the BNA 1981. It introduces a new "citizenship oath and pledge" which is to be taken by applicants for registration or naturalisation as British citizens and British overseas territories citizens. The citizenship oath and pledge consists of the existing oath of allegiance with the addition of a pledge. The pledge for those becoming British citizens states that the person will respect the rights and freedoms of the United Kingdom, and will uphold its democratic values, observe its laws and fulfil the duties and obligations of citizenship. Applicants becoming British overseas territories citizens will instead pledge loyalty to the relevant British overseas territory.

27.     Paragraph 4 of Schedule 1 amends the existing regulation-making power in subsection 41(1)(d) of the BNA 1981 to enable regulation of the timing of attendance at a citizenship ceremony and the taking of the citizenship oath and pledge, the content and conduct of the citizenship ceremony, the completion and grant of a certificate of registration or naturalisation, and certain other related matters.

28.     Paragraph 7 of Schedule 1 enables the Secretary of State to make regulations about the persons who shall be authorised to conduct citizenship ceremonies and to require local authorities in England, Wales and Scotland to provide facilities for the conduct of such ceremonies.

29.     Paragraph 8 allows the Secretary of State to reimburse local authorities for the cost of carrying out citizenship ceremonies.

Section 4: Deprivation of citizenship

30.     Section 4 makes new provision about the deprivation of British nationality or status.

31.     Subsection (1) replaces existing section 40 of the BNA 1981 and inserts a new section 40A.

32.     New section 40(1) of the BNA 1981 lists the categories of persons who are liable to deprivation under the Act. These are British citizens, British overseas territories citizens, British Overseas citizens, British Nationals (Overseas), British subjects and British protected persons.

33.     New section 40(2) provides that a person may be deprived of his citizenship status if he has done anything seriously prejudicial to the vital interests of the United Kingdom or a British overseas territory.

34.     New section 40(3) provides that a person may be deprived of his citizenship status if the registration or naturalisation by virtue of which the status was acquired was obtained by means of fraud, false representation or by concealment of a material fact.

35.     New section 40(4) provides that a person may not be deprived of their citizenship status on the ground mentioned in subsection (2) if this would make him stateless.

36.     New section 40(5) provides that before making a deprivation order the Secretary of State must give the person written notice specifying that a decision has been made to make the order and the reasons for it. The notice must also advise the person of his right to appeal.

37.     New section 40(6) repeats the provision made by subsection (3) in respect of fraudulently obtained registrations and naturalisations effected or granted before 1983.

38.     New section 40A confers a right of appeal to an adjudicator (in the first instance)on a person in respect of whom a decision to deprive him of his citizenship status has been made. There is also provision for both parties to appeal to the Tribunal from the adjudicator on a point of law. From the Tribunal there is a further appeal, again on a point of law, to the Court of Appeal, or the Court of Session (if the adjudicator's decision was in Scotland). Where, however, the Secretary of State has certified that the decision to deprive was based wholly or partly in reliance on information which he believes should not be made public for one of the reasons specified in new section 40A(2), the appeal at first instance will instead be heard by the Special Immigration Appeals Commission. New section 40A(6) prevents the making of an order under section 40 at any time when an appeal against this is pending, or could be brought, under section 40A or under section 2B of the Special Immigration Appeals Commission Act 1997 ("SIAC 1997").

39.     Subsections (2) and (3) make consequential amendments to SIAC 1997.

40.     Subsection (4) makes it clear that, in deciding whether there were grounds for deprivation under new section 40 of the 1981 Act, the Secretary of State would be entitled to have regard to events occurring before the commencement of that section if those events would have justified deprivation under section 40 of the Act as then in force.

Section 5: Resumption of citizenship

41.     Section 5 removes the words "if a woman" from sections 10 and 22 of the BNA 1981, thus allowing either a woman or a man who renounced their United Kingdom and Colonies citizenship before 1983 to qualify for registration on the basis of a connection with the United Kingdom (or a British overseas territory) through marriage.

Section 6: Nationality decision: discrimination

42.     Section 6 repeals the exemption from the general prohibition on discrimination in section 19B of the Race Relations Act 1976 ("the 1976 Act")(as amended by the Race Relations (Amendment) Act 2000), in so far as it applies to discrimination on the grounds of nationality, ethnic or national origins in the exercise of nationality functions. The "nationality functions" are functions exercisable by virtue of the BNA 1981, the British Nationality (Falkland Islands) Act 1983, the British Nationality (Hong Kong) Act 1990, the Hong Kong (War Wives and Widows) Act 1996 and the British Nationality (Hong Kong) Act 1997.

43.     Subsection (2) removes "nationality functions" from the scope of the exemption in subsection 19D(1) of the 1976 Act.

44.     Subsection (3) inserts into section 19D of the 1976 Act new definitions of "immigration functions" and "Immigration Acts", consequent upon the removal from that section of references to nationality functions and statutes relating to nationality.

45.     Subsection (4) removes references to nationality functions from provisions in section 19E of the 1976 Act relating to the review by the Race Monitor of the use of the exemptions from discrimination, since this is made redundant by the other provisions in this section.

46.     Subsection (5) adds a new subsection (1A) to section 71A of the 1976 Act, defining "immigration and nationality functions" for the purpose of that section. The effect is to maintain the present exemption from the duty, under section 71(1)(b) of the Act, to promote equality of opportunity in relation to the carrying out of such functions.

Section 7: Nationality decision: reasons and review

47.     Section 7 repeals the provisions in section 44(2) of the BNA 1981 and corresponding provision in section 1 of the British Nationality (Hong Kong) Act 1990 which exempt the Secretary of State from having to give reasons for granting or refusing applications under the BNA 1981, where these decisions are at his discretion, and which restrict the ability of the courts to review such decisions.

48.     This section also repeals section 44(3) of the BNA 1981 since this is made redundant by the other provisions in this section.

Section 8: Citizenship: registration

49.     Section 8 removes the minimum age restriction for applicants seeking to acquire British citizenship or British overseas territories citizenship by registration on the grounds that they were born stateless in either the United Kingdom or a British overseas territory.

Section 9: Legitimacy of child

50.     Section 9 removes from the nationality legislation the present distinctions between legitimate and illegitimate children and inserts a new definition of "father" into section 50 of the BNA 1981.

51.     Subsection (1) provides that, for the purposes of the BNA 1981, a child's mother is the woman who gives birth to the child. A child's "father" is (a) the husband at the time of the child's birth of the woman who gives birth to the child, (b) a person who falls to be treated as the child's father by virtue of section 28 of the Human Fertilisation and Embryology Act 1990 or (c) any person who satisfies prescribed requirements as to proof of paternity. The Secretary of State may set out in regulations how, in circumstances where proof is required, paternity must be proven.

52.     Subsection (2) amends section 3(6) of the BNA 1981 to allow registration as a British citizen of an illegitimate minor born outside the United Kingdom on the basis of a connection through his father as well as through his mother.

53.     Subsection (3) makes similar provision as subsection (2) but in respect of registration as a British overseas territories citizen under section 17 of the BNA 1981.

54.     Subsection (4) repeals section 47 of the BNA 1981. This enables an illegitimate child of a British citizen father to be legitimated by the subsequent marriage between his mother and father. In view of the prospective abolition of distinctions between the legitimate and the illegitimate in this context, section 47 will be redundant so far as children born after the appointed commencement date are concerned.

55.     Subsection (5) amends paragraph 1(1)(b) of Schedule 2 to the BNA 1981, which provides that an illegitimate child born in the United Kingdom after 1^st January 1983 whose parents hold different British nationality statuses under the BNA 1981, can only acquire the status of the mother. By this subsection, the position of illegitimate children is brought into line with that of legitimate children, who can acquire citizenship or status through either parent.