Office of Public Sector Information
(7) In this section—
(a) a reference to the Commissioner includes a reference to a member of his staff authorised in writing by him,
(b) a reference to premises includes a reference to premises used wholly or partly as a dwelling, and
(c) a reference to material—
(i) includes material subject to legal privilege within the meaning of the Police and Criminal Evidence Act 1984 (c. 60),
(ii) does not include excluded material or special procedure material within the meaning of that Act, and
(iii) includes material whether or not it would be admissible in evidence at a trial.
(8) In the application of this section to Scotland—
(a) a reference to a justice of the peace shall be taken as a reference to the sheriff,
(b) for sub-paragraph (i) of subsection (7)(c) there is substituted—
“(i) includes material comprising items subject to legal privilege (as defined by section 412 of the Proceeds of Crime Act 2002 (c. 29)),” and
(c) sub-paragraph (ii) of subsection (7)(c) shall be ignored.
(9) In the application of this section to Northern Ireland the reference to the Police and Criminal Evidence Act 1984 shall be taken as a reference to the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)).”
(2) In paragraph 7 of Schedule 5 to the Immigration and Asylum Act 1999 (c. 33) (investigation of complaints, &c.: power of entry)—
(a) in sub-paragraph (1)(b) after “(b)” insert “, (c)”,
(b) in sub-paragraph (1)(c) for “registered person.” substitute “registered or exempt person.”,
(c) in sub-paragraph (1A)(a) after “(b)” insert “, (c)”,
(d) in sub-paragraph (1A)(b) for “registered person.” substitute “registered or exempt person.”, and
(e) after sub-paragraph (8) insert—
“(9) Sub-paragraphs (7) and (8) shall apply to an exempt person as they apply to a registered person, but with a reference to cancellation of registration being treated as a reference to withdrawal of exemption.
(10) In this paragraph “exempt person” means a person certified by the Commissioner as exempt under section 84(4)(a).”
After section 92A of the Immigration and Asylum Act 1999 (c. 33) (inserted by section 38 above) insert—
(1) A person commits an offence if—
(a) he offers to provide immigration advice or immigration services, and
(b) provision by him of the advice or services would constitute an offence under section 91.
(2) For the purpose of subsection (1) a person offers to provide advice or services if he—
(a) makes an offer to a particular person or class of person,
(b) makes arrangements for an advertisement in which he offers to provide advice or services, or
(c) makes arrangements for an advertisement in which he is described or presented as competent to provide advice or services.
(3) A person guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding level 4 on the standard scale.
(4) Subsections (3) to (7) of section 91 shall have effect for the purposes of this section as they have effect for the purposes of that section.
(5) An information relating to an offence under this section may in England and Wales be tried by a magistrates' court if—
(a) it is laid within the period of six months beginning with the date (or first date) on which the offence is alleged to have been committed, or
(b) it is laid—
(i) within the period of two years beginning with that date, and
(ii) within the period of six months beginning with a date certified by the Immigration Services Commissioner as the date on which the commission of the offence came to his notice.
(6) In Scotland, proceedings for an offence under this section may be commenced—
(a) at any time within the period of six months beginning with the date (or first date) on which the offence is alleged to have been committed, or
(b) at any time within both—
(i) the period of two years beginning with that date, and
(ii) the period of six months beginning with a date specified, in a certificate signed by or on behalf of the procurator fiscal, as the date on which evidence sufficient in his opinion to warrant such proceedings came to his knowledge,
and any such certificate purporting to be so signed shall be deemed so signed unless the contrary is proved and be conclusive as to the facts stated in it.
(7) Subsection (3) of section 136 of the Criminal Procedure (Scotland) Act 1995 (c. 46) (date on which proceedings are deemed commenced) has effect to the purposes of subsection (6) as it has effect for the purposes of that section.
(8) A complaint charging the commission of an offence under this section may in Northern Ireland be heard and determined by a magistrates' court if—
(a) it is made within the period of six months beginning with the date (or first date) on which the offence is alleged to have been committed, or
(b) it is made—
(i) within the period of two years beginning with that date, and
(ii) within the period of six months beginning with a date certified by the Immigration Services Commissioner as the date on which the commission of the offence came to his notice.”
Section 87(3)(f) of the Immigration and Asylum Act 1999 (c. 33) (appeal to Tribunal against deferral of decision) shall cease to have effect.
(1) Section 86 of the Immigration and Asylum Act 1999 (designated professional bodies) shall be amended as follows.
(2) For subsection (2) substitute—
“(2) The Secretary of State may by order remove a body from the list in subsection (1) if he considers that the body—
(a) has failed to provide effective regulation of its members in their provision of immigration advice or immigration services, or
(b) has failed to comply with a request of the Commissioner for the provision of information (whether general or in relation to a particular case or matter).”
(3) For subsection (9)(b) substitute—
“(b) report to the Secretary of State if the Commissioner considers that a designated professional body—
(i) is failing to provide effective regulation of its members in their provision of immigration advice or immigration services, or
(ii) has failed to comply with a request of the Commissioner for the provision of information (whether general or in relation to a particular case or matter).”
(4) After subsection (9) insert—
“(9A) A designated professional body shall comply with a request of the Commissioner for the provision of information (whether general or in relation to a specified case or matter).”
(5) In section 166(2) of the Immigration and Asylum Act 1999 (c. 33) (regulations and orders) after “in relation to” insert “orders made under section 90(1),”.
(6) For paragraph 21(2) of Schedule 5 to the Immigration and Asylum Act 1999 (Commissioner: annual report) substitute—
“(2) The report must, in particular, set out the Commissioner’s opinion as to the extent to which each designated professional body has—
(a) provided effective regulation of its members in their provision of immigration advice or immigration services, and
(b) complied with requests of the Commissioner for the provision of information.”
(1) In prescribing a fee for an application or process under a provision specified in subsection (2) the Secretary of State may, with the consent of the Treasury, prescribe an amount which is intended to—
(a) exceed the administrative costs of determining the application or undertaking the process, and
(b) reflect benefits that the Secretary of State thinks are likely to accrue to the person who makes the application, to whom the application relates or by or for whom the process is undertaken, if the application is successful or the process is completed.
(2) Those provisions are—
(a) section 41(2) of the British Nationality Act 1981 (c. 61) (fees for applications, &c. under that Act),
(b) section 5(1)(a) and (b) of the Immigration and Asylum Act 1999 (fees for application for leave to remain, &c.), and
(c) sections 10 and 122 of the Nationality, Immigration and Asylum Act 2002 (c. 41) (certificate of entitlement to right of abode; and fees for work permit, &c.).
(3) An Order in Council under section 1 of the Consular Fees Act 1980 (c. 23) (fees) which prescribes a fee in relation to an application for the issue of a certificate under section 10 of the Nationality, Immigration and Asylum Act 2002 (right of abode: certificate of entitlement) may prescribe an amount which is intended to—
(a) exceed the administrative costs of determining the application, and
(b) reflect benefits that in the opinion of Her Majesty in Council are likely to accrue to the applicant if the application is successful.
(4) Where an instrument prescribes a fee in reliance on this section it may include provision for the refund, where an application is unsuccessful or a process is not completed, of that part of the fee which is intended to reflect the matters specified in subsection (1)(b) or (3)(b).
(5) Provision included by virtue of subsection (4)—
(a) may determine, or provide for the determination of, the amount to be refunded;
(b) may confer a discretion on the Secretary of State or another person (whether in relation to determining the amount of a refund or in relation to determining whether a refund should be made).
(6) An instrument may not be made in reliance on this section unless the Secretary of State has consulted with such persons as appear to him to be appropriate.
(7) An instrument may not be made in reliance on this section unless a draft has been laid before and approved by resolution of each House of Parliament (and any provision making the instrument subject to annulment in pursuance of a resolution of either House of Parliament shall not apply).
(8) This section is without prejudice to the power to make an order under section 102 of the Finance (No. 2) Act 1987 (c. 51) (government fees and charges) in relation to a power under a provision specified in this section.
(1) Section 5 of the Immigration and Asylum Act 1999 (c. 33) (charges) shall be amended as follows.
(2) For subsection (1)(c) (transfer of indefinite leave stamp to new document) substitute—
“(c) the fixing of a limited leave stamp or indefinite leave stamp on a passport or other document issued to the applicant where the stamp was previously fixed on another passport or document issued to the applicant.”
(3) For subsection (5) substitute—
“(5) In this section—
(a) “limited leave stamp” means a stamp, sticker or other attachment which indicates that a person has been granted limited leave to enter or remain in the United Kingdom, and
(b) “indefinite leave stamp” means a stamp, sticker or other attachment which indicates that a person has been granted indefinite leave to enter or remain in the United Kingdom.”
(1) A reference to “the Immigration Acts” is to—
(a) the Immigration Act 1971 (c. 77),
(b) the Immigration Act 1988 (c. 14),
(c) the Asylum and Immigration Appeals Act 1993 (c. 23),
(d) the Asylum and Immigration Act 1996 (c. 49),
(e) the Immigration and Asylum Act 1999,
(f) the Nationality, Immigration and Asylum Act 2002 (c. 41), and
(g) this Act.
(2) This section has effect in relation to a reference in this Act or any other enactment (including an enactment passed or made before this Act).
(3) For section 158(1) and (2) of the Nationality, Immigration and Asylum Act 2002 (c. 41) substitute—
“(1) A reference to “the Immigration Acts” shall be construed in accordance with section 44 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004.”
(4) In the following provisions for “section 158 of the Nationality, Immigration and Asylum Act 2002” substitute “section 44 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004”—
(a) section 32(5) of the Immigration Act 1971 (c. 77), and
(b) section 167(1) of the Immigration and Asylum Act 1999 (c. 33).
In this Act “immigration officer” means a person appointed by the Secretary of State as an immigration officer under paragraph 1 of Schedule 2 to the Immigration Act 1971.
There shall be paid out of money provided by Parliament—
(a) any expenditure incurred by a Minister of the Crown in connection with this Act, and
(b) any increase attributable to this Act in the sums payable under any other enactment out of money provided by Parliament.
The enactments listed in Schedule 4 are hereby repealed to the extent specified.
(1) Sections 2, 32(2) and 35 shall come into force at the end of the period of two months beginning with the date on which this Act is passed.
(2) Section 32(1) shall have effect in relation to determinations of the Special Immigration Appeals Commission made after the end of the period of two months beginning with the date on which this Act is passed.
(3) The other preceding provisions of this Act shall come into force in accordance with provision made—
(a) in the case of section 26 or Schedule 1 or 2, by order of the Lord Chancellor,
(b) in the case of sections 4 and 5 in so far as they extend to Scotland, by order of the Scottish Ministers, and
(c) in any other case, by order of the Secretary of State.
(4) An order under subsection (3)—
(a) may make transitional or incidental provision,
(b) may make different provision for different purposes, and
(c) shall be made by statutory instrument.
(5) Transitional provision under subsection (4)(a) in relation to the commencement of section 26 may, in particular, make provision in relation to proceedings which, immediately before commencement—
(a) are awaiting determination by an adjudicator appointed, or treated as if appointed, under section 81 of the Nationality, Immigration and Asylum Act 2002 (c. 41),
(b) are awaiting determination by the Immigration Appeal Tribunal,
(c) having been determined by an adjudicator could be brought before the Immigration Appeal Tribunal,
(d) are awaiting the determination of a further appeal brought in accordance with section 103 of that Act,
(e) having been determined by the Immigration Appeal Tribunal could be brought before another court by way of further appeal under that section,
(f) are or could be made the subject of an application under section 101 of that Act (review of decision on permission to appeal to Tribunal), or
(g) are or could be made the subject of another kind of application to the High Court or the Court of Session.
(6) Provision made under subsection (5) may, in particular—
(a) provide for the institution or continuance of an appeal of a kind not generally available after the commencement of section 26,
(b) provide for the termination of proceedings, or
(c) make any other provision that the Lord Chancellor thinks appropriate.
(1) This Act extends (subject to subsection (2)) to—
(a) England and Wales,
(b) Scotland, and
(c) Northern Ireland.
(2) An amendment effected by this Act has the same extent as the enactment, or as the relevant part of the enactment, amended (ignoring extent by virtue of an Order in Council).
(3) Her Majesty may by Order in Council direct that a provision of this Act is to extend, with or without modification or adaptation, to—
(a) any of the Channel Islands;
(b) the Isle of Man.
This Act may be cited as the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004.
Asylum and Immigration (Treatment of Claimants, Etc.) Act 2004