Section 9: Failed asylum seekers: withdrawal of support

43.     Section 9 creates a fifth class of person (failed asylum seeker with family) who will cease to be eligible for support under Paragraph 1 of Schedule 3 to the Nationality, Immigration and Asylum Act 2002 (withholding and withdrawal of support). The section adds a new paragraph, Paragraph 7A, to the Schedule.

44.     Failed asylum seekers with dependent children receive asylum support until such time as they leave the United Kingdom or fail to comply with a removal direction if sooner. However, under this provision, if the Secretary of State certifies that, in his opinion , such a person has failed without reasonable excuse to take reasonable steps to leave the United Kingdom voluntarily or place himself in a position in which he is able to leave the United Kingdom voluntarily (by, for example, co operating with steps taken to obtain a travel document on his behalf) then asylum support for the family will cease. The family is also rendered ineligible for various other types of support or assistance, although the children in the family may still be supported by, for example, the local authority. There is a right of appeal to the Asylum Support Adjudicator under section 103 of the Immigration and Asylum Act 1999 against the Secretary of State's certification.

Section 10 : Failed asylum seekers: accommodation

45.     Section 10 amends section 4 of the Immigration and Asylum Act 1999 (as amended by section 49 of the Nationality, Immigration and Asylum Act 2002) which gives the Secretary of State power to provide, or arrange for the provision of accommodation to certain categories of person including failed asylum seekers. The amendments make provision for the criteria to be used in determining when accommodation should be provided to be set out in regulations (until now, the criteria have been set out in the Secretary of State's policy bulletins). The amendments also permit the continuation of the provision of accommodation to be made conditional upon the performance of or participation in community activities.

46.     Subsection (1) adds subsections (5), (6), (7), (8) and (9) to section 4 of the 1999 Act. The new subsection (5) provides for the Secretary of State to make regulations specifying the criteria to be used when determining whether or not the Secretary of State should provide, or continue to provide, accommodation to a person under section 4.

47.     Under new subsection (6) of section 4 the regulations may provide for the continuation of the provision of accommodation to be conditional upon the performance of or participation in community activities or to be subject to other conditions.

48.     New subsections (7)-(9) of section 4 set out further details on the arrangements in relation to community activities.

49.     Subsection (2) provides that the regulations made pursuant to new subsection 5 of section 4 will be subject to the affirmative resolution procedure,

50.     Subsections (3) to (5) amend section 103 of the 1999 Act so as to provide for a right of appeal to the Asylum Support Adjudicator from decisions of the Secretary of State not to provide accommodation to a person or not to continue to provide accommodation to a person under section 4 of the 1999 Act. Section 103 of the 1999 Act has been amended by section 53 of the 2002 Act but that provision has not yet been brought into force. Subsection (3) deals with the position before section 53 comes into force; subsection (4) deals with the position after it comes into force.

51.     Subsection (7) makes clear that the regulations to be made under section 4(5)(b) of the 1999 Act will apply equally to those persons receiving support at the time the regulations come into force as those receiving support after the regulations come into force.

Section 11 : Accommodation for asylum seekers: local connection

52.     Subsection (1) amends section 199 of the Housing Act 1996, such that asylum seekers who are provided with accommodation under section 95 of the Immigration and Asylum Act 1999 establish a local connection (for the purposes of Part 7 of the Housing Act 1996) with the district of the local housing authority where the accommodation is provided. Where accommodation is provided in more than one district, a local connection is established only with the district where accommodation was most recently provided. However, this provision does not apply where accommodation is provided in an accommodation centre. The Housing Act 1996 extends only to England and Wales.

53.     Subsection (2) provides that section 193 of the Housing Act 1996 does not apply in respect of homeless applicants who have formerly been provided with accommodation under section 95 of the 1999 Act in a place in Scotland, and who do not have a local connection with a district in England, Wales or Scotland.

54.     Subsection (3) provides that, in cases where the section 193 duty does not apply, local housing authorities in England and Wales may secure that accommodation is available for occupation by the person for a period that will give him a reasonable opportunity of securing accommodation for himself, and may provide the person (or secure that he is provided with) advice and assistance in any attempts he may make to secure that accommodation becomes available for his occupation.

Section 12: Refugee: backdating of benefits

55.     This section abolishes the entitlement to backpayments of income support, housing benefit and council tax benefit for those who are recorded as refugees.

56.     Asylum seekers are not eligible for mainstream benefits by virtue of section 115 of the Immigration and Asylum Act 1999. Where relevant, they may be supported by the Secretary of State under section 95 of the 1999 Act. Regulations have been made under section 123 in relation to backpayments of income support, housing benefit and council tax benefit.

57.     Subsection (1) repeals section 123 of the 1999 Act which gives the Secretary of State power to make regulations permitting those who are recorded as refugees to claim backpayments of benefits including income support, housing benefit and council tax benefit.

58.     Subsection (2) revokes the regulations made under the power of section 123 of the 1999 Act to make backpayments of income support, housing benefit and council tax benefit to refugees. These regulations would lapse in any event on repeal of section 123 of the 1999 Act, but for the sake of clarity and certainty the legislation confirms that these regulations cease to have effect.

59.     Subsection (3) revokes the regulations which preserve, for transitional purposes, an earlier backpayments scheme made under section 11(2) of the Asylum and Immigration Act 1996.

60.     Subsection (4) confirms that on commencing the provision, it may be applied to those who have outstanding asylum claims. Backpayments will therefore cease for all those recorded as refugees after a specified date, irrespective of when they made their claim for asylum.

Section 13 : Integration loan for refugees

61.     Section 13 makes provision for the Secretary of State to make regulations enabling him to make loans to refugees. For these purposes a refugee is a person who is granted refugee status and given indefinite leave to enter or remain in the United Kingdom. It is intended that these loans will be made for integration purposes and will be known as refugee integration loans.

62.     The regulations will prevent a person from receiving a loan if s/he is under 18, is insolvent (within the meaning given by the regulations) or has already received a refugee integration loan.

63.     The regulations will also include:

• matters which the Secretary of State must take into account when deciding whether to make a loan and in particular may relate to a person's income or assets; likely ability to repay a loan; or the length of time since a person was recorded as a refugee

• provision for the Secretary of State to specify the minimum and/or maximum amount of a loan

• provision about repayment of the loan which may include interest payable and repayment by deduction from a Social Security benefit

• provision for the Secretary of State to attach conditions to a loan which might include conditions about the use of the loan

• provision about how an application is to be made and what information must be provided

64.     The regulations may also:

• make provision about steps that the Secretary of State might take to establish an applicant's ability to repay

• provide for a loan to be made jointly

• confer a discretion on the Secretary of State

65.     Regulations made under this section are subject to the affirmative procedure.

ENFORCEMENT POWERS

Section 14 : Immigration officer: power of arrest

66.     Section 14 provides immigration officers with the power of arrest - and ancillary powers of entry, search and seizure - in respect of a number of specified offences. Their powers of arrest are currently restricted to offences under the Immigration Acts. The new power is only to be available where an immigration officer forms a reasonable suspicion that one of the specified offences has been committed in the course of exercising a function under the Immigration Acts. In other words, immigration officers must uncover the evidence of the offences in the course of their usual duties investigating immigration matters. The offences are specified in subsection (2).

67.     Subsection (3) provides that certain powers of entry, search and seizure which immigration officers already have in relation to offences under the Immigration Act 1971, shall also apply in relation to the specified offences.

Section 15 : Fingerprinting

68.     Section 15 amends section 141 of the Immigration and Asylum Act 1999 which allows fingerprints to be taken from specified persons during specified periods. Section 141 applies to any person in respect of whom removal directions have been given and permits fingerprints to be taken between the time the directions are given and the time when the person is removed or deported (or, if a deportation order has been made against him, its revocation or otherwise ceasing to have effect).

69.     As the setting of removal directions no longer attracts a right of appeal (by virtue of changes introduced by the Nationality, Immigration and Asylum Act 2002), directions are now set at the end of the enforcement process, shortly before removal is due to take place. This means that there is now only a short period of time within which fingerprints can be taken. Section 15 amends section 141 of the 1999 Act to allow fingerprints to be taken at the beginning of the enforcement process, notwithstanding that removal directions will not be set until the end of that process. In that respect, it restores the pre-2002 Act position.

Section 16: Information about passengers

70.     Section 16 amends paragraph 27B of Schedule 2 to the Immigration Act 1971 to make it clear that an immigration officer may ask a carrier to provide a copy of a document (or part of a document) that relates to a passenger and contains "passenger information" (as that term is defined in paragraph 27B). In particular, this means that the owner of a ship or aircraft which is expected to arrive in the United Kingdom could be requested to provide a copy of the biodata page of the passport (containing a photograph of the holder), of each passenger to be carried to the United Kingdom on that ship or aircraft. An officer may ask for copies of documents relating to: (a) a particular ship or aircraft of the carrier, (b) particular ships or aircraft of the carrier, or (c) all of the carrier's ships or aircraft. A request must be in writing and must state the date on which it ceases to have effect (which cannot be more than six months from the date on which it is made).

Section 17: Retention of documents

71.     Section 17 provides the Secretary of State and an immigration officer with the power to retain documents (which could include a passport or birth certificate) whilst it is suspected that the person the document relates to is liable to removal, and that retention of the document may facilitate their removal from the United Kingdom. It complements current powers, such as those in paragraphs 4(2A) and 18(2) of Schedule 2 to the Immigration Act 1971, which already permit the seizure and retention of documents in certain circumstances.

Section 18: Control of entry

72.     Section 18 amends paragraph 2A of Schedule 2 to the Immigration Act 1971. It provides immigration officers with the power to examine a person who arrives with entry clearance that takes effect as leave to enter for the purpose of establishing whether the leave should be cancelled on the grounds that the person's purpose in arriving in the United Kingdom is different from the purpose specified in the entry clearance.

PROCEDURE FOR MARRIAGE

Section 19: Person subject to immigration control: procedure for marriage: England and Wales

73.     Section 19 applies to a marriage to be solemnised in England and Wales on the authority of certificates issued by a superintendent registrar under Part III of the Marriage Act 1949 where a party to the marriage is subject to immigration control.

74.     Section 19(2) requires that the notices which are required to be given of such a marriage must be given to a superintendent registrar of a registration district specified in regulations made by the Secretary of State (after consultation with the Registrar General) and must be given in person by both parties to the marriage together.

75.     Under section 19(3) registrars may only accept notice of such a marriage where satisfied that the party subject to immigration control holds either entry clearance for the purpose of marriage, written permission from the Secretary of State or is in an exempt category (to be specified in regulations).

76.     Section 19(4) gives definitions of the terms "person subject to immigration control", "EEA National", "entry clearance" and "specified evidence".

Section 20: Section 19: supplemental

77.     Section 20 provides that the Marriage Act 1949 will have effect in relation to a marriage to which the section 19 applies with any necessary consequential modifications.

Sections 21 and 22: Persons subject to immigration control: procedure for marriage: Scotland and supplemental

78.     Sections 21 and 22 relate to a marriage where a party to the marriage is subject to immigration control and the marriage is to be solemnised in Scotland.

79.     Under section 21(2) notice of such a marriage may only be given to the district registrar of a registration district prescribed in regulations made by the Secretary of State (after consultation with the Registrar General for Scotland).

80.     As with section 19(3), under section 21(3) registrars may only accept notice of such a marriage if satisfied that the party subject to immigration control holds either entry clearance for the purpose of marriage, written permission from the Secretary of State or is in an exempt category (to be specified in regulations).

Sections 23 and 24: Person subject to immigration control: procedure for marriage: Northern Ireland and supplemental

81.     Sections 23 and 24 relate to a marriage which is to be solemnised in Northern Ireland where a party to the marriage is subject to immigration control.

82.     Under section 23(2)(a) notice of such a marriage can only be given to a registrar prescribed in regulations made by the Secretary of State (after consultation with the Registrar General for Northern Ireland).

83.     Section 23(2)(b) allows the Secretary of State, after consultation with the Registrar General for Northern Ireland, to prescribe in regulations cases in which notices must be given in person at a prescribed register office.

84.     As with section 19(3), under section 23(3) registrars may only accept notice of such a marriage if satisfied that the party subject to immigration control holds either entry clearance for the purpose of marriage, written permission from the Secretary of State or is in an exempt category (to be specified in regulations).

Section 25: Application for permission under section 19(3)(b), 21(3)(b) or 23(3)(b)

85.     Section 25 makes provision in relation to applications for permission to marry. The Secretary of State may by regulations require persons seeking permission to make an application in writing and pay a fee. The regulations will specify the information to be contained in this application, the amount of the fee and the manner of the payment. The regulations may specify persons exempt from payment, permit specified persons to pay a reduced fee, and specify circumstances that would lead to a refund of all or part of the fee.

APPEALS

Section 26: Unification of appeal system

86.     Section 26 (1) replaces section 81 of the Nationality, Immigration and Asylum Act 2002, which made provision for the appointment of asylum adjudicators under the two-tier system. Section 26 establishes a single-tier tribunal called the Asylum and Immigration Tribunal, which is referred to in the rest of this part of the Act as "the Tribunal".

87.     Section 26 (2) amends section 82(1) of the 2002 Act. Section 82 lists the immigration decisions that attract a right of appeal to an adjudicator. This amendment is consequential upon the merger of the two-tier system. With the amendment, the appeal is to the new Tribunal.

88.     Section 26 (3) makes a similar consequential amendment to section 83(2) of the 2002 Act which states the circumstances in which a person has a right of appeal from rejection of an asylum claim. Appeals will be to the new Tribunal.

89.     Section 26(4) substitutes a new Schedule (found at Schedule 1 ) for Schedule 4 of the 2002 Act. The old Schedule 4 made provision for the terms of office, staffing, remuneration and sitting arrangements for adjudicators. It is replaced by a Schedule making similar provision in respect of Tribunal members, and related matters.

90.     Section 26(5) repeals sections 100 to 103 and Schedule 5 of the 2002 Act, thereby abolishing the Immigration Appeal Tribunal (IAT), the second tier of the current system. As a consequence of this, this section also removes the right of appeal to the IAT, the right to seek statutory review of a refusal by the IAT to grant permission to appeal to itself, and the right to appeal from the IAT to the higher appellate courts. Schedule 5 made provision as to the membership, staffing and sitting arrangements of the IAT.

91.     Section 26(6) inserts new sections 103A to 103E into the 2002 Act.

92.     Section 103A enables a party to an appeal to the Tribunal to apply to the appropriate court for an order requiring the Tribunal to reconsider its decision on appeal on the grounds that the Tribunal made an error of law. If the appropriate court thinks the Tribunal may have made an error of law it will order the case to be reconsidered by the Tribunal.

93.     The application must be made within 5 working days of receipt of the Tribunal determination but if made from abroad the application must be made within 28 days. An application will be determined by reference to the written submissions of the applicant, and where rules of court permit, other written submissions. The decision of the appropriate court will be final.

94.     In this section the 'appropriate court' is: in relation an appeal decided in England and Wales, the High Court; in relation to an appeal decided in Scotland, the Outer House of the Court of Session; in relation to an appeal decided in Northern Ireland, the High Court in Northern Ireland.

95.     This section does not apply to a decision of the Tribunal where its jurisdiction is exercised by three or more legally qualified members. In such cases, higher court oversight would be by way of appeal on a point of law under section 103E.

96.     Section 103B provides for a party to an appeal, where an appeal has been reconsidered, to bring a further appeal on a point of law to the appropriate appellate court. An appeal may only be brought with the permission of the Tribunal, or if the Tribunal refuses permission, the appropriate appellate court.

97.     The reference to 'reconsideration' is to a reconsideration following an order under section 103A(1) or a remittal to the Tribunal under section 103C or 103E.

98.     In this section the 'appropriate appellate court' is: in relation to an appeal decided in England and Wales, the Court of Appeal; in relation to an appeal decided in Scotland, the Inner House of the Court of Session; in relation to an appeal decided in Northern Ireland, the Court of Appeal in Northern Ireland.

99.     Section 103C enables the appropriate court, on consideration of an application under section 103A(1), to refer a case straight to the appropriate appellate court if it thinks the case raises a question of law of such importance that it should be decided by that court.

100.     In this section 'appropriate court' has the same meaning as in section 103A and 'appropriate appellate court' has the same meaning as in section 103B.

101.     Section 103D provides for an enabling power to make regulations for an appellant's costs for review and reconsideration under section 103A to be paid out of the Community Legal Service Fund. This type of legal aid remuneration will apply only where it is the appellant who is the party applying for review and reconsideration.

102.     Section 103D(1) enables the appropriate court to order an appellant's costs to be paid in respect of the review application. Section 103D(3) enables the Tribunal to order an appellant's costs to be paid in respect of both the review application and the reconsideration

103.     The power to make regulations about the exercise of the power in subsections (1) and (3) would be exercised by the Secretary of State for Constitutional Affairs. Regulations made under this section are subject to the affirmative resolution procedure.

104.     The regulation-making power enables restrictions to be placed upon the exercise of the power in 103D(1) and (3) by reference to the appellant's prospects of success at the time the application under section 103A(1) was made. Regulations will also govern detailed matters such as the manner of determining the amount payable. Regulations can also add to the Legal Services Commission's statutory functions and apply, modify or disapply other enactments relating to the funding (in England, Wales or Northern Ireland) the funding of legal services.

105.     In this section 'appropriate court' has the same meaning as in section 103A.

106.     This Section only has effect in relation to an appeal decided in England, Wales or Northern Ireland.

107.     Section 103E provides that a party to an appeal that has been decided by the Tribunal exercising its jurisdiction by three or more legally qualified members may bring an appeal to the appropriate appellate court. An appeal may only be brought with the permission of the Tribunal, or if the Tribunal refuses permission, the appropriate appellate court.

108.     In this section 'appropriate appellate court' has the same meaning as in section 103B.

109.     Section 26(7) gives effect to Schedule 2, which makes consequential amendments and transitional provisions.

110.     Section 26(8) enables the Lord Chancellor to vary time limits specified in section 103A(3)(a), (b) or (c) or paragraph 29(5)(b) of Schedule 2, by order. An order made under this section is subject to the negative resolution procedure and the Lord Chancellor is required to consult the heads of judiciary in the parts of the United Kingdom affected by the order.

Schedule 1: New Schedule 4 to the Nationality, Immigration and Asylum Act 2002

111.     Schedule 1 replaces Schedule 4 of the 2002 Act, as specified in section 26(4).

112.     Schedule 4 made provision for the appointment of asylum adjudicators and related matters. As the two-tier system of adjudicators and the Immigration Appeal Tribunal is replaced by the single tier Asylum and Immigration Tribunal, the new Schedule makes provision for the appointment of members of the new Tribunal and related matters instead.

113.     Paragraph 1 imposes on the Lord Chancellor the duty and responsibility for appointing the members of the new Tribunal.

114.     Paragraph 2 specifies the qualifications required to become a member of the new Tribunal. There will be legally qualified members and non-legal members.

115.     Paragraph 3 specifies when the appointment of a Tribunal member shall end, including specifying a retirement age of 70, and otherwise makes the holding of office subject to the terms of the holder's appointment. The terms and conditions may make provision for removal from office, and also about the training, appraisal and mentoring of members the Tribunal by other members.

116.     Paragraph 4 allows the Lord Chancellor to make provision for the title of members of the Tribunal. Read together with paragraph 23 of Schedule 2, the order is subject to the negative resolution procedure.

117.     Paragraph 5 provides for the Lord Chancellor to appoint a President of the Tribunal, and one or more Deputy Presidents, and specifies the qualifications for appointment as President. It also makes provision for the powers and functions of the Deputy Presidents.

118.     Paragraphs 6 to 8 are provisions for the sitting arrangements, constitution of the Tribunal composition and allocation of proceedings to members of the Tribunal. In particular, paragraph 7 provides that it is for the President to determine, having regard to various factors, whether cases are heard by a single Tribunal judge or a panel of members, and when non-legal members will sit. The direction making power is subject to rules.

119.     Paragraph 9 allows the Lord Chancellor to appoint Tribunal staff. Paragraphs 10 and 11 make provision for the remuneration and allowances to members and staff of the Tribunal.