Section 10: Grants

27.      Section 10 provides that section 110 of the 2002 Act, which allowed grants to be made to organisations giving advice in relation to appeals, shall cease to have effect. The section has become redundant since funding for this purpose is now the responsibility of the Legal Services Commission.

Section 11: Continuation of leave

28.      Section 11 amends section 3C of the Immigration Act 1971 (the 1971 Act), which currently extends leave to enter or remain in the United Kingdom if it would expire while an application is being considered and for such time as an appeal against a decision to curtail or refuse to vary leave could be brought or is pending. The minor amendments to subsections (2) and (3) make it clear that leave shall only be continued when an in country appeal may be brought or is pending.

29.     Section 3C(6) of the 1971 Act defines when an application is decided for the purposes of section 3C as when a notice of decision is given in accordance with regulations made under section 105 of the 2002 Act, but non-appealable decisions do not properly come within the terms of those Regulations. Subsection (3) replaces section 3C(6) with a provision enabling the Secretary of State to make regulations which will better define the types of notice which terminate leave extended by section 3C.

30.     Subsection (5) creates a new section 3D in the Immigration Act 1971. This provides that leave shall be continued while an in country appeal against revocation or curtailment of leave may be brought or is pending. It also prevents the making of an application to vary leave while leave is continued in this way. This replaces the provisions in section 82(3) of the Nationality, Immigration and Asylum Act, and accordingly that section is repealed.

Section 12: Asylum and human rights claims: definition

31.     Section 12 amends section 113 of the Nationality, Immigration and Asylum Act 2002. In particular it removes from the definitions of "asylum claim" and "human rights claim" the requirement for the claim to be made in person at a place designated by the Secretary of State. It is proposed instead to specify the circumstances where asylum and human rights claims would need to be made in person in Immigration Rules made under section 47.

32.     The section also clarifies that further submissions that follow the refusal of an asylum or human rights claim will only attract a right of appeal if the Secretary of State considers they amount to a fresh claim.

Section 13: Appeal from within United Kingdom: certification of unfounded claims

33.     Section 94 of the Nationality, Immigration and Asylum Act 2002 provides that a clearly unfounded human rights or asylum claim may be certified, with the effect that any appeal against refusal to vary or curtailment of leave may only be brought once the appellant has left the United Kingdom. Section 13 provides a regulation making power to limit the scope to certify clearly unfounded claims. Under this section the Secretary of State may make regulations to limit his power to certify clearly unfounded claims on the basis of the type of leave that the person has when the claim is made.

Section 14: Consequential amendments

34.     Section 14 causes the consequential amendments listed in Schedule 1 to have effect.

Schedule 1: Immigration and Asylum Appeals: Consequential Amendments

35.      Paragraphs 2 through 10 amend sections 72(9); 85(4); 86(1); 87(1); 97(1); 97(3); 103A(1); 103E(1); 106(1)(a), 106(1)(b) and 108(1)(a) of the Nationality, Immigration and Asylum Act 2002 to include reference to the new right of appeal created by section 1. Paragraphs 13 and 14 similarly amend the British Nationality Act 1981 and the Special Immigration Appeals Commission Act 1997 to incorporate the new right of appeal. Paragraph 11 amends section 112 of the 2002 Act to incorporate the new regulation making power under section 13.

36.      Paragraph 12 amends the Race Relations Act 1976 to update the definition of 'immigration appellate body' from 'Immigration Appeal Tribunal' to 'Asylum and Immigration Tribunal'.

EMPLOYMENT

Section 15: Penalty

37.      Section 15 provides that a person is liable to a civil penalty if he employs an adult subject to immigration control who has not been granted leave to enter or remain in the United Kingdom or whose leave is invalid, has ceased to have effect (whether by reason of curtailment, revocation, cancellation, passage of time or otherwise), or is subject to a condition preventing him from accepting the employment. An employer is excused from paying a penalty if he complies with the requirements of an order made by the Secretary of State. The excuse does not apply where the employer knew that his employment of the individual was unlawful. The section describes the matters to be covered in the penalty notice and sets out the parameters of the requirements which may be provided for in an order of the Secretary of State. Those are the requirements which, if complied with, will excuse the employer from paying the penalty.

38.      Subsection (1) sets out the circumstances in which an employer may be liable to a penalty. Subsection (2) provides the Secretary of State's power to impose a penalty.

39.      Subsection (3) sets out the circumstances in which an employer is excused from paying a penalty. Subsection (4) provides that the employer loses the excuse if he knew at any time during the employment that it was contrary to this section. Subsection (5) provides that as a matter of law, the onus is on the employer to satisfy the Secretary of State that he can establish an excuse under subsection (3), rather than on the Secretary of State to establish this prior to the service of a penalty notice.

40.      Subsection (6) sets out the specific matters to be covered in a penalty notice, including the reason why the Secretary of State thinks the employer is liable, the amount of the penalty, the date before it should be paid, and other practical points.

41.      Subsection (7) sets out the parameters of the requirements which may be placed on employers by way of an order of the Secretary of State. The requirements, if complied with, will excuse the employer from paying a penalty. They relate to the checking, copying and retention of specified documents.

Section 16: Objection

42.      Section 16 sets out the procedure for employers to object to the Secretary of State in relation to a penalty notice, and for the Secretary of State to consider objections.

43.      Subsections (1) and (2) provide that an employer may object to his liability to the imposition of a penalty and to the amount. He may also object on the grounds that he is excused payment because he has complied with the requirements of an order under section 11 subsection (7).

44.      Subsection (3) sets out the form the objection must take. It enables the Secretary of State to prescribe the manner and time period in which the objection should be made.

45.      Subsections (4) and (5) cover the actions to be carried out by the Secretary of State on receipt of an objection, and the possible outcomes of his consideration. Subsection (4) provides that the Secretary of State must consider an objection and may cancel, reduce, increase it or take no action. Subsection (5) provides that where the Secretary of State considers a notice of objection, he must have regard to the code of practice issued under section 19 specifying the criteria to be applied in determining the amount. The Secretary of State must inform the objector of his decision within a prescribed or agreed period. If the penalty is increased, a new notice must be issued. If the penalty is reduced, the Secretary of State must inform the objector of the reduced amount.

Section 17: Appeal

46.      Section 17 sets out the arrangements for an employer wishing to appeal to the court against a penalty.

47.      Subsection (1) provides that an employer on whom a penalty is served may appeal to the court on the grounds that he is not liable to the penalty, the amount is too high, or he is excused payment having complied with the specified requirements.

48.      Subsection (2) covers the actions that may be taken by the court. Subsection (3) clarifies the nature of the appeal and the matters to which the court must have regard in determining the case. Subsection (4) specifies the time period within which an appeal may be brought. The 28 day period runs from the specified date upon which the notice is given, including where the Secretary of State imposes a new notice increasing the penalty following his consideration of an objection under section 16. The 28 day period also runs from the date on which, having considered an objection under section 16, the Secretary of State gives the employer notice that the penalty is reduced or that he intends to make no change to the penalty. Subsection (5) provides that an appeal may be brought by an employer irrespective of whether he has objected to the Secretary of State under section 16 and the outcome of any objection. Subsection (6) defines "court" for the purpose of the section.

Section 18: Enforcement

49.      Section 18 covers the arrangements for enforcing a penalty imposed by the Secretary of State. Subsection (1) provides that the amount may be recovered as a debt. Subsection (2) restricts the matters that may be raised in proceedings for the enforcement of the penalty. In such proceedings, no question may be raised as to the employer's liability to the penalty or its amount, because the legislation provides a separate right of action in relation to these matters in section 17. Subsection (3) provides that any penalty money paid to the Secretary of State shall be paid into the Consolidated Fund.

Section 19: Code of practice

50.      Section 19 requires the Secretary of State to issue a code of practice specifying the criteria to be applied in determining whether to impose a penalty and the amount. The code must be laid before Parliament in draft before it can come into force by order of the Secretary of State, who must review the code from time to time.

Section 20: Orders

51.      Section 20 elaborates on the Secretary of State's order-making powers under sections 15, 16 and 19. An order under section 15(2) is subject to the affirmative resolution procedure. The other order-making powers under section 15, 16 and 19 are subject to the negative resolution procedure.

Section 21: Offence

52.      Section 21 creates a new criminal offence of employing a person knowing that they are an adult subject to immigration control who has not been granted leave to enter or remain (unless granted permission to work by the Secretary of State), or whose leave to remain is invalid, has ceased to have effect (whether by reason of curtailment, revocation, cancellation, passage of time or otherwise) or subject to a condition preventing him from accepting the employment. On conviction following indictment, the maximum penalty is two years imprisonment and/or a fine. On summary conviction, the maximum penalty is 12 months imprisonment in England and Wales (once section 154(1) of the Criminal Justice Act 2003 is commenced), 6 months in Scotland or Northern Ireland, or a fine up to the statutory maximum, or both.

53.      Subsection (3) provides that the offence is to be treated as a relevant offence for the purpose of sections 28B and 28D of the Immigration Act 1971 and an offence under Part III of that Act for the purposes of sections 28E, 28G and 28H. The practical effect of this is to provide immigration officers with arrest, entry and search powers in relation to the offence.

Section 22: Offence: bodies corporate, &c

54.      Section 22 defines the liability of bodies corporate, officers of bodies, and members of partnerships in relation to the criminal offence in section 21. Subsection (1) provides that a body shall be treated as knowing a fact about an employee if a person who has responsibility within that body for an aspect of the employment knows the fact. Subsection (2) provides that where an offence under section 20 is committed by a body corporate with the consent or connivance of an officer of the body, the officer as well as the body shall be treated as having committed the offence. Subsection (3) defines an officer of a body for the purpose of the section, and subsection (4) relates to partnerships.

Section 23: Discrimination: code of practice

55.      Section 23 requires the Secretary of State to issue a code of practice to employers specifying how to avoid contravening the Race Relations Act 1976 or the Race Relations (Northern Ireland) Order 1996 while avoiding liability for a civil penalty under section 15 or the commission of a criminal offence under section 21.

56.      Subsection (2) sets out the steps the Secretary of State must take to consult certain bodies before issuing the code. Subsection (3) provides that the code shall be brought into operation following an order made by the Secretary of State. Subsection (4) provides that a breach of the code does not make a person liable to civil or criminal proceedings, but may be taken into account by a court of tribunal. Subsection (5) provides that the Secretary of State shall review the code and may revise and re-issue a new code following the review. Subsection (6) provides that until the dissolution of the Commission for Racial Equality, reference to the Commission for Equality and Human Rights in subsection (2)(a)(i) shall be treated as a reference to the Commission for Racial Equality.

Section 24: Temporary admission, &c.

57.      Section 24 provides that where a person is at large in the United Kingdom by virtue of having been granted temporary admission or release from detention under paragraph 21(1) of Schedule 2 to the Immigration Act 1971, he is to be treated for the purpose of the employer's liability to a penalty in section 15 or the commission of an offence in section 21 as if the person had been granted leave to enter the United Kingdom and any restriction as to employment shall be treated as a condition of leave. The practical effect of this is that an employer is not liable to a penalty under section 15 and commits no offence under section 21 if he employs someone who does not have leave to enter or remain, but has been granted temporary admission or release together with permission to take employment under paragraph 21(1) of Schedule 2 to the Immigration Act 1971.

INFORMATION

Section 27: Documents produced or found

58.      This section amends paragraph 4 of Schedule 2 to the Immigration Act 1971 by deleting paragraph 4(2A), substituting paragraph 4(4) and adding a new paragraph 4(5). It makes two substantive changes. First, it brings together the provisions on detention and examination of passports and other documents produced by passengers, or found on them, while being examined under Schedule 2 and provides that the same conditions govern detention and examination for all documents. Second, it provides a new power to enable immigration officers to require passengers being examined under Schedule 2 to provide biometric information (such as fingerprints) for the purpose of ascertaining whether a passenger in question is the rightful holder of the passport or other document he produces.

Section 28: fingerprinting

59.     Section 28 amends section 141 of the Immigration and Asylum Act 1999 to enable fingerprints to be taken and stored from people who are detained under paragraph 16 of Schedule 2 of the Immigration Act 1971.

60.     Section 141 sets out a number of categories of person from whom fingerprints can be taken and stored by the Immigration and Nationality Directorate. It sets out the period during which fingerprints can be taken, and makes provision for destruction. Section 141(7)(d) currently permits fingerprints to be taken and stored from a person who has been arrested under paragraph 17 of Schedule 2 to the 1971 Act.

61.     Subsection (2) amends section 141(7)(d) of the 1999 Act to enable fingerprints to be taken and stored from a person who has been detained as well as arrested under Schedule 2 of the 1971 Act.

62.     Subsection (3) makes a consequential amendment to include detention as well as arrest for the purposes of calculating the relevant period when fingerprints can be taken under section 141 of the 1999 Act.

Section 29: Attendance for fingerprinting

63.      Section 29 amends section 142 of the Immigration and Asylum Act 1999.

64.      Section 141 of the Immigration and Asylum Act 1999 allows an authorized person (as defined) to take fingerprints from a person to whom the section applies. The section applies to, amongst others, asylum-seekers and their dependants. Section 142 of that Act allows the Secretary of State, by notice in writing, to require a person to whom section 141 applies to attend a specified place for fingerprinting. Section 142(2) currently states that the notice must give the person a period of at least seven days within which to attend. Further, that period cannot begin until at least seven days have passed since the date of the notice. The notice may also require the person to attend on a specified time of day or during specified hours. In relation to asylum-seekers and their dependants only, this section seeks to amend section 142 so that a notice under the section:

• may require the person to attend during a specified period, beginning with a day not less than three days after the date given in the notice as its date of issue,

• may require the person to attend on a specified day not less than three days after the date given in the notice as its date of issue, and

• may require the person to attend at a specified time of day or during specified hours.

Section 30: Proof of right of abode

65.      Section 30 makes a series of amendments to section 3(9) of the Immigration Act 1971 which relates to the means by which a person seeking leave to enter the UK and claiming to have the right of abode there shall prove that right. The documents which can be used for this include a United Kingdom passport describing him as a British citizen, but not a United Kingdom passport describing him as a British subject with the right of abode in the United Kingdom. These individuals are, instead, able to evidence their right of abode by production of a certificate of entitlement as mentioned in s.3(9)(b) of the Immigration Act 1971. Section 30, sub-section (1)(b) remedies this by adding the passport issued to a British subject and endorsed with the right of abode in the United Kingdom to s.3(9).

66.      Sub-sections (1)(c) and (d) add to the documents which may be used as evidence the identity cards issued to British citizens and to British subjects with a right of abode in the United Kingdom under the provisions in the current Identity Cards Bill. This will enable these cards to be used for travel within the European Economic Area in the same way as other Member States' national identity cards are used now.

67.      Section 30, by replacing section 3(9) in its entirety, removes the now redundant reference to a passport issued to a "citizen of the United Kingdom and Colonies", as this category has not existed since 1 January 1983 when the British Nationality Act 1981 came into force.

Section 31: Provision of information to immigration officers

68.      Section 31(2) amends Paragraph 27 of Schedule 2 to the Immigration Act 1971 to enable the collection of passenger lists and crew information on or before the arrival of a ship or aircraft into the United Kingdom. As it stands paragraph 27(2) allows passenger lists or crew information to be requested for ships or aircraft arriving in the UK but this allows information to be collected in advance. Section 31(2) also introduces a new power to request passenger lists or crew information from a ship or aircraft which is leaving or is expected to leave the United Kingdom.

69.      Paragraph 27(2) is amended to apply to the owners or agents of ship or aircraft as well as the captain.

70.      It also amends paragraph 27(2) to enable the Secretary of State to require the information to be provided in the form and manner that he directs for example by electronic means.

71.      Section 31(3) amends Paragraph 27(B) of Schedule 2 to the Immigration Act 1971 to enable an immigration officer also to request service information about the voyage or flight relating to ships or aircraft of the carrier. Service information will be specified in secondary legislation.

72.      Section 31(3) also makes consequential amendments to offences under section 27 of the Immigration Act 1971.

Section 32: Passenger and crew information: police powers

73.      This section provides information acquisition powers for the Police in respect of ships and aircraft arriving (or expected to arrive) in or leaving (or expected to leave) the UK. A constable of at least the rank of superintendent may request passenger or crew information from the owner or agent of a ship or aircraft. Passenger and crew information will be specified in secondary legislation. It is also possible for the constable of at least the rank of superintendent to request service information which will also be specified in secondary legislation.

74.      Secondary legislation will also specify the form and manner in which information is to be provided.

75.      The section requires passengers and crew members to provide the owner or agent of a ship or aircraft with any information that he requires for the purposes of complying with a requirement to provide information.

76.      Requests shall be in writing, may apply generally throughout a specified period (not exceeding six months) or only to one or more specified ships or aircraft and must state the information required and the date or time by which the information must be provided.

77.      Since police functions in Scotland are devolved, Scottish Police will be able to capture information for police purposes if they are or relate to reserved matters e.g. national security.

Section 33: Freight information: police powers

78.      This section provides freight information acquisition powers for the Police in respect of ships, aircraft and vehicles arriving (or expected to arrive) in or leaving (or expected to leave) the UK. A constable of at least the rank of superintendent may request freight data from an owner or agent of a ship or aircraft, the owner or hirer or a vehicle, or any other person responsible for the import or export of goods.

79.     Freight information will be specified in secondary legislation.

80.     Requests shall be in writing, may apply generally throughout a specified period (not exceeding six months) or only to one or more specified ships, aircraft or vehicles and must state the information required and the date or time by which the information must be provided.

81.     It makes comparable provision to that in section 32.

Section 34: Offence

82.      This section explains the penalties that can be applied in England, Wales, Northern Ireland and Scotland for non-compliance with a requirement to provide information under section 32 or 33.

Section 35: Power of Revenue and Customs to obtain information

83.      This section amends section 35(2) and (3) of the Customs & Excise Management Act to mean that the report provisions which these sections empower the Commissioners to direct apply to every ship and aircraft arriving or expected to arrive in the UK. The effect of this change is to allow the Commissioners' Directions made under section 35 to be amended to require the provision of the passenger data they direct to be made in advance of the arrival of the means of transport.

Section 36: Duty to share information

84.      Section 36 introduces a new power which provides for information obtained or held by the Border Agencies (Immigration Service, Police Service and HM Revenue and Customs) in the course of their functions to be shared, to the extent that the information is likely to be of use for immigration, police or Revenue and Customs purposes (which are terms defined in sections 20 and 21 of the Immigration and Asylum Act 1999).

85.      Subsection (4) provides for the Secretary of State and the Treasury to issue jointly an order specifying the type of information to which this duty to share applies. Subsection (7) specifies that an order made under subsection (4) will exclude information collected by HM Revenue and Customs under the former Inland Revenue's powers.

The duty on a chief officer of police in Scotland to share information only applies to information which is likely to be of use for immigration, revenue and customs purposes and police purposes in so far as they are or relate to reserved matters (within the meaning of the Scotland Act 1998).

Section 37: Information sharing: code of practice

86.      Section 37 will require the Secretary of State and the Treasury jointly to issue a Code or Codes of Practice governing use of information shared in accordance with section 36(2) and the extent to which, or form and manner in which, shared information is to be made available with those sections.

87.      Subsections (2) and (4) provide that a draft of the Code of Practice will be laid before Parliament before being issued and that the code of practice will come into force by means of an order, subject to the negative resolution procedure. Subsection (3) provides that a Code of Practice may be reviewed but that any revision will be subject to the procedures set out in subsections (2) and (4).