Section 38: Disclosure of information for security purposes

88.      Section 38 introduces a discretionary power which supports the disclosure of information relating to travel or freight for security purposes and defines the actors and purposes to whom the provision applies.

89.      The section provides that the Secretary of State in so far as he has functions under the Immigration Acts, a chief officer of the police and HM Revenue and Customs may disclose information which is obtained or held by them in the course of their functions to the Security and Intelligence Agencies (SIAs) to the extent that the information is likely to be of use for a purpose specified in section 1 of the Security Service Act 1989 and sections 1 or 3 of the Intelligence Services Act 1994 (namely, national security, economic well being of the UK and support in combating serious crime). It is not necessary to provide for a reciprocal power for the provision of data by the SIAs to the Border Agencies because such disclosures, where necessary, may be made on the basis of existing legislation.

90.      The Secretary of State and the Treasury will specify jointly by order the information that may be disclosed. Subsection (6) clarifies that the powers specified jointly by the Secretary of State and the Treasury do not apply to information collected by HM Revenue and Customs under the former Inland Revenue's powers.

Section 39: Disclosure to law enforcement agencies

91.      Section 39 provides a power for a police service to disclose information obtained in accordance with sections 32 or 33 to the police services in Jersey, Guernsey, the Isle of Man and a foreign law enforcement agency. A foreign law enforcement agency is defined as a person outside the UK with functions similar to a police force in the UK or SOCA.

92.      The section applies to Scotland.

Section 40: Searches: contracting out

93.      Subsection (1) permits an authorised person to search a ship, aircraft, vehicle or other thing for the purpose of identifying individuals who an immigration officer may wish to examine. The reference to "other thing" reflects the search of things on board ships or aircraft in paragraph 1(5) of Schedule 2.

94.      Subsection (2) defines an authorised person and makes it clear that a ship, aircraft, vehicle or other thing can only be searched if an Immigration Officer would have power to search it under paragraph 1(5) of Schedule 2 to the Immigration Act 1971.

95.      Subsection (3) & (4) states that the Secretary of State may authorise a specified class of constable for the purposes of this section or with the consent of the Commissioners for Her Majesty's Revenue and Customs, authorise an officer or a specified class of officer of Revenue and Customs for the purpose of this section.

96.      Subsection (5) provides that before authorising a person (other than a constable or officer of Revenue and Customs) for the purposes of this section, the Secretary of State must be satisfied that the person is fit and proper for the purpose and properly trained.

97.      Subsection (6) sets out the arrangements which the Secretary of State may make for the exercise by authorised persons of the powers conferred by this section (which include the power to enter into contracts with private contractors for the provision of authorised persons other than constables and officers of Revenue and Customs).

98.      Subsection (7)(a) gives the authorised person ancillary powers of search and detention in relation to any individual who the authorised person discovers while exercising the power to search. It provides for power to search for items that may be used for self-harm, cause harm to others, or to assist in escape from detention. Furthermore powers are provided to search for items establishing information concerning identity, nationality, citizenship or information about the individual's journey.

99.      Subsection (7)(b) gives the power to retain items found during the course of a section (7)(a) search and to deliver them to an Immigration Officer.

100.      Subsection (7)(c)(d) &(e) allows an authorised person to detain an individual for a period of up to three hours, pending the arrival of an Immigration Officer or to deliver the individual to an Immigration Officer as soon as is reasonably practicable. Subsection (e) provides for the authorised person to use reasonable force pursuant to carrying out his duties under paragraphs (a) to (d).

101 Subsection (8)(a) stipulates that searches may not include the removal of clothing other than an outer coat, jacket or glove, but the individual being searched may be required to open his mouth.

102. Subsection (8)(b) excludes items subject to legal privilege from the powers of seizure. Legal privilege is as defined in:

• Police and Criminal Evidence Act 1984 (c.60) (England and Wales)

• Proceeds of Crime Act 2002 (c.29) (Scotland)

• Police and Criminal Evidence (Northern Ireland) Order 1989 (SI.1989/1341 (N.I 12 ))

Section 41: Section 40: supplemental

103.      Section 41 covers the appointment of a Monitor, contractual matters, offences and supplemental provisions.

104. Subsection (1) requires the Secretary of State to appoint a Monitor. This person will be a Crown Servant and his or her role will be to monitor the exercise of powers of authorised persons other than constables or officers of Revenue and Customs and periodically undertake inspections into the exercise of those powers, reporting back to the Secretary of State about any allegation or failings in the exercise or application of those powers.

105. Subsection (2) provides for the Secretary of State to revoke the authorisation given to constables and officers of Revenue and Customs.

106. Subsection (3) permits the Secretary of State to stipulate conditions when granting authorisation to a person other than a constable or officer of Revenue and Customs and provides for the Secretary of State, by written notice, to suspend or revoke the authorisation. The Secretary of State shall stipulate the term of authorisation (by reference to dates or otherwise).

107. Subsection (4) explains what is meant by "specified class" of constable or officer of Revenue and Customs in section 40(3) & 40(4) and provides that the specification may be by reference to named individuals, the functions to be exercised, the location or circumstances in which a person is exercising the function or any other matter.

108. Subsection (5) requires that an Immigration Officer receiving an individual or article delivered by an authorised person shall treat that individual or article as if they had been discovered by an Immigration Officer undertaking a search under schedule 2 of the Immigration Act 1971. This Act does not amend the application of existing procedures applied by an Immigration Officer to individuals or articles discovered.

109. Subsection (6) provides that a person is guilty of an offence if he;

• absconds from detention

• absconds either whilst being transferred to a place or having arrived

• absconds prior to being delivered to an Immigration Officer

• obstructs an authorised person who is exercising his powers under this Act.

• assaults an authorised person who is exercising his powers under this Act.

110. Subsection (7) provides that an offence is not committed under subsection (6) unless the authorised person is be readily identifiable as a constable or officer of Revenue and Customs or as an authorised person (by means of a uniform, badge or other means of identification).

111. Subsection (8) provides that on summary conviction for the offences listed in subsection (6), a person shall be liable to imprisonment for a term not exceeding 51 weeks in England or Wales or 6 months in Scotland or Northern Ireland or to a fine not exceeding level 5 on the standard scale or both a fine and imprisonment.

112. Subsection (9) provides that in relation to a conviction occurring before the commencement of section 281(5) of the Criminal Justice Act 2003 (c.44) (Magistrates Powers') reference in subsection (7)(a) to 51 weeks shall be treated as a reference to 6 months.

Section 42: information: embarking passengers

113.     Section 42 amends paragraphs 3 and 16 of Schedule 2 to the Immigration Act 1971, which currently enables an immigration officer to examine departing passengers to establish nationality and identity.

114.     Subsection (2) amends paragraph 3 so as to extend the powers of examination on embarkation to cover three new kinds of information. An immigration officer will have the power to examine an embarking passenger not only for the purpose of establishing whether he is a British citizen, and if not, his identity, but also to establish whether:

• his entry to the United Kingdom was lawful;

• he has complied with any conditions of leave to enter or remain in the United Kingdom; and

• his return to the United Kingdom is prohibited or restricted.

115.     Subsection 2 also amends paragraph 3 so as to enable an immigration officer to require a person to submit to further examination by giving him written notice that he must do so.

116.     Subsection 3 amends paragraph 16 of Schedule 2 to the 1971 Act by introducing the power for a person to be detained under the authority of an immigration officer where he has been required to submit to further examination on embarkation. The detention can only be for a maximum of 12 hours pending the completion of the further examination.

117.     Subsection 4 is a consequential amendment to make clear that paragraph 21 of Schedule 2 to the 1971 Act, which makes provision for temporary admission, does not apply to detention of departing passengers. As detention is permitted only for a maximum of 12 hours the power to grant temporary admission is not necessary.

CLAIMANTS AND APPLICANTS

Section 43: Accommodation

118. Section 43(1) amends section 99 of the Immigration and Asylum Act 1999 ("the 1999 Act") so that local authorities may now also provide accommodation in accordance with arrangements made by the Secretary of State under section 4 of that Act, as well as in accordance with arrangements made under sections 95 and 98. Under subsection (2), which amends section 99(4), they may also incur reasonable expenditure in connection with the preparation of proposals for entering into those arrangements.

119. Subsection (3) amends section 118(1)(b) of the 1999 Act so as to ensure that where accommodation is provided by a housing authority under its housing powers, this accommodation is not granted to a person subject to immigration control unless the tenancy of, or licence to occupy, such accommodation is granted in accordance with arrangements made under sections 4 and 98. This replicates the position in respect of housing authority accommodation provided in accordance with arrangements made under section 95.

120. Subsection (4) makes amendments in relation to housing legislation. Paragraph (a) removes entitlement to protection under the Protection from Eviction Act 1977 from persons accommodated under section 4; they can therefore be required to leave accommodation provided under section 4 without a court order having been obtained. Paragraph (b) removes those accommodated under section 4 from the ordinary creation of a secure tenancy in Northern Ireland, paragraph (d) makes the same provision in relation to England and Wales and subsections (5) and (6) make similar provision in Scotland. Paragraph (c) removes those accommodated under section 4 from Scottish legislation concerning the prohibition of eviction without due process of law. Paragraph (e) provides that the provision of accommodation under section 4 will not give rise to an assured tenancy in Scotland and paragraph (f) makes similar provision in relation to England and Wales. These amendments broadly replicate the changes made to UK housing legislation, which made provisions in relation to accommodation provided under Part VI of the 1999 Act, as contained in Schedule 14 to that Act.

121.     Subsection (7) amends section 4 of the 1999 Act by inserting a power enabling the Secretary of State to make regulations which permit him to provide services or facilities as prescribed to those who are provided with accommodation under that section. The regulations, which are subject to the negative resolution procedure, may permit provision to be made by vouchers exchangeable for goods or services, may restrict the value or extent of services or facilities that will be provided but may not permit a person to be provided with money.

Section 44: Failed asylum-seekers: withdrawal of support

122. Section 44 enables the Secretary of State to repeal by order paragraph 7A of Schedule 3 to the Nationality, Immigration and Asylum Act 2002 and certain other provisions of section 9 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 by which paragraph 7A was inserted. The order is subject to the negative resolution procedure.

Section 45: Integration loans

123. Section 13 of the Asylum & Immigration (Treatment of Claimants, etc.) Act 2004 as originally enacted enabled the Secretary of State to make regulations enabling him to make loans to those recorded as refugees and given indefinite leave to enter or remain in the United Kingdom. Section 45 amends that provision enabling loans to be made to refugees who have been given limited leave to enter or remain as well as such other classes of migrants as the Secretary of State prescribes in the regulations.

Section 46: Inspection of detention facilities

124. Section 46 amends section 5A(5A) of the Prison Act 1952 so as to regularise HM Chief Inspector of Prisons' (HMCIP) existing voluntary oversight of immigration short-term holding facilities (STHFs) and escort arrangements by placing it on a statutory footing. HMCIP's voluntary oversight of STHFs began in April 2004 and of escort arrangements in May 2005. The amendment brings the basis for the oversight of STHFs and escort arrangements in line with the position on immigration removal centres, which were made subject to statutory HMCIP oversight by section 152(5) of the Immigration and Asylum Act 1999.

Section 47: Removal: persons with statutorily extended leave

125.     Section 47 creates a new power which enables to an appealable decision to remove a person from the United Kingdom to be made during the period in which he enjoys continuing leave. It provides that, while a person has continuing leave where an appeal can be brought against a decision to refuse to vary, to curtail or to revoke leave, during this period a decision may also be taken to remove him from the UK. By virtue of subsection (6) this. removal decision is included within the list of immigration decision defined in section 82 of the Nationality, Immigration and Asylum Act 2002 and will therefore give rise to a right of appeal to the Asylum and Immigration Tribunal. Subsection (7) provides that an appeal against the new removal decision may be brought in the United Kingdom; this means that where an appeal is lodged against such a decision removal would not take place until the end of the appeal proceedings. Subsection (8) includes the removal decision in the list of immigration decisions in relation to which the Secretary of State may certify clearly unfounded asylum or human rights claims.

Section 48: Removal: cancellation of leave

126. Section 48 amends section 10(8) of the Immigration and Asylum Act 1999, so that notification of a decision to remove in accordance with that section invalidates any leave to enter or remain in the United Kingdom which was previously given to the person. Prior to this amendment leave was invalidated only at the point at which removal directions were given under section 10.

127. Under the 1999 Act the giving of removal directions under section 10 could attract an in country right of appeal if the person concerned was appealing under section 65 of that Act on the basis that removal would breach his human rights. Directions would often be given at an early stage in the removal process in order to trigger a right of appeal under section 65. However, as removal directions often had to be cancelled and reset this often gave rise to further rights of appeal against the giving of the second, or subsequent, set of removal directions. This was rectified by section 82 of the Nationality, Immigration and Asylum Act 2002 which provides of a right of appeal against the principal decision to remove by way of directions as opposed to the subsidiary decision to give removal directions. Section 48 makes a corresponding amendment to section 10(8) of the 1999 Act so that the invalidation of leave reverts to the point at which a person is notified of the appealable decision to remove in accordance with section 10, rather than the later decision to give removal directions under that section.

128. Invalidation of the person's leave also has the effect of stopping access to any benefits, financial or otherwise, which may have been conditional on the leave.

Section 49: Capacity to make nationality application

129. Section 49 amends the British Nationality Act 1981 in regard to the requirement under that Act to be "of full capacity". The requirement applies where the applicant is seeking to be naturalised, to renounce citizenship or to resume citizenship following a previous renunciation. The effect of the amendment is to confer on the Secretary of State a discretion to waive the requirement to be of full capacity if, in the circumstances of a particular case, he considers it in the applicant's best interests to do so.

Section 50: Procedure

130. Section 50 (1) enables the Secretary of State to prescribe, in the immigration rules, forms to be used and procedures to be followed when making an immigration-related application. Subsection (2) enables the Secretary of State to prescribe, by administrative means, what information and documents are required to support an application. The section also allows the Secretary of State to set out in the Immigration Rules consequences for failing to comply with any of the prescribed forms and procedures.

Section 51: Fees

131.      Section 51 gives the Secretary of State power to designate, in secondary legislation, any immigration and nationality-related applications and claims, services, processes, advice, and information for which a fee may be charged. The level of fees payable, the consequences of failure to pay a prescribed fee, and any exemptions should be set out in Regulations.

Section 52: Fees: supplemental

132. Section 52(1) preserves the existing arrangement whereby fees for "consular functions" (as defined in the Consular Relations Act 1968) are set under the powers in the Consular Fees Act 1980.

133.     Subsection (2) ensures that any orders already made under section 102 of the Finance (No. 2) Act 1987, with reference to the powers to charge fees for immigration and nationality applications which are repealed in Schedule 2, shall be read as if they referred to the charging powers in section 51.

MISCELLANEOUS

Section 53: Arrest pending deportation

134.     Section 53 amends paragraph 2(4) of schedule 3 to the Immigration Act 1971 in order to clarify the circumstances in which the powers of arrest under paragraph 17 of Schedule 2 to the 1971 Act arise in deportation cases. The amendment makes clear that the powers of arrest - with and without warrant - under paragraph 17 may be exercised in deportation cases when the notice of intention to deport is ready but has not yet been given to the prospective deportee. In particular, it ensures that immigration officers and constables can continue to seek a warrant in such circumstances under paragraph 17(2) to enter named premises in order to give the notice of intention to deport to the prospective deportee and arrest him.

Section 54: Refugee Convention: Construction

135.     Section 54 provides an interpretation of Article 1F (c) in the 1951 Geneva Convention relating to the Status of Refugees. It specifies that "acts contrary to the purposes and principles of the United Nations" which will result in exclusion from asylum include acts of committing, preparing or instigating terrorism and acts of encouraging or inducing others to commit, prepare or instigate terrorism.

Section 55: Refugee Convention: certification

136.      Section 55 allows the Secretary of State to issue a certificate that an appellant is not entitled to the protection of Article 33 (1) of the Refugee Convention because Article 1F applies or Article 33 (2) applies on national security grounds. It requires the Asylum and Immigration Tribunal (AIT) or the Special Immigration Appeals Commission (SIAC) to begin substantive consideration on the asylum appeal by considering the statements in the certificate. If SIAC or the AIT agrees with the statements in the certificate, then it must dismiss the appeal insofar as it relies on the Refugee Convention.

Section 56: Deprivation of Citizenship

137.     Section 56 will replace an existing criterion for deprivation of British nationality that the person concerned had done something which was "seriously prejudicial to the vital interests of the United Kingdom or a British overseas territory" with the criterion that it is conducive to the public good to deprive a person of his or her British nationality. The current limitation that a deprivation order may not be made on this basis if it would make a person stateless would continue to apply.

138.     Subsection (2) will enable the Asylum and Immigration Tribunal, on an appeal against deprivation of nationality under section 40A of the British Nationality Act 1981, to receive in private evidence about forged documents.

Section 57: Deprivation of right of abode

139.     Section 57 will confer on the Secretary of State a power to remove a right of abode in the United Kingdom where such a right derived from possession of citizenship of another Commonwealth country and it is conducive to the public good to remove or exclude the person from the United Kingdom.

140.     Subsection (2) provides a right of appeal against a decision to deprive a person of their right of abode, either to the Asylum and Immigration Tribunal or to the Special Immigration Appeals Commission.

Section 58: Acquisition of British nationality, &c.

141.     Section 58 would require most applicants for British nationality by registration to satisfy the Secretary of State that they were "of good character" before nationality could be granted. At present such a requirement applies only to those seeking to acquire British nationality by naturalisation. Exceptions will continue to be made where the applicant has an entitlement to registration deriving from the 1961 UN Convention on the Reduction of Statelessness or is entitled to registration as a British citizen under section 4B of the British Nationality Act 1981 (certain British Overseas citizens, British subjects and British protected persons without other citizenship) or is aged below 10 on the date of the application.

Section 59: Detained persons: national minimum wage

142.      Section 59 exempts immigration detainees from the national minimum wage in respect of work done in a removal centre. Exemption will allow detainees to be provided with opportunities to engage in paid activity.

GENERAL

143. Section 62 contains provisions relating to the coming into force of the Act on such dates as the Secretary of State appoints.

TERRITORIAL EXTENT

144. Section 63: the Immigration, Asylum and Nationality Act applies to the whole of the United Kingdom, with two exceptions:

145. Amendments to other Acts have the same extent as the amended Act (or the amended part thereof).

146. Provisions relating to nationality have the same extent as the British Nationality Act 1981, disregarding the provisions referred to in section 53(7) of that Act.

147.     Her Majesty may by order in Council direct that a provision of the Act shall extend, with or without modification to any of the Channel Islands and the Isle of Man.

HANSARD REFERENCES

148.     The following table sets out the dates and Hansard references for each stage of the Act's passage through Parliament.