Explanatory Notes
UK Borders Act 2007
2007 CHAPTER 30
Contents
30th October 2007
Introduction
1.These explanatory notes relate to the UK Borders Act which received Royal Assent on 30th October 2007. They have been prepared by the Home Office in order to assist the reader 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.
Summary
Powers at ports
3.Sections 1-4 provide for the Secretary of State to designate immigration officers acting at ports in England and Wales and Northern Ireland to have the power to detain an individual pending the arrival of a police constable and create offences of absconding from detention, and assaulting or obstructing an immigration officer in the course of exercising this power and the punishments associated with each. The meaning of “port” for these purposes is also defined.
Biometric registration
4.Sections 5 and 6 confer a power to make regulations to require those subject to immigration control to apply for a document recording external physical characteristics - a "biometric immigration document" - and to require a biometric immigration document to be used for specified immigration purposes, in connection with specified immigration procedures, and in specified circumstances where a question arises about a person's status in relation to nationality or immigration.
5.Sections 7 to 15 deal with the effects and consequences of non-compliance with compulsory registration, including associated penalties, appeal rights and also provide for the use and destruction of an individual's biometric records.
Treatment of claimants
6.Section 16 amends section 3(1)(c) of the Immigration Act 1971 to provide that reporting and residency conditions may be imposed on those with limited leave to enter or remain in the UK.
7.Section 17 provides that an asylum-seeker remains eligible for support during an appeal related to his asylum claim. Support will be available also for those qualifying as dependants for support purposes.
8.Section 18 provides for a power of arrest without warrant for an immigration officer in connection with offences under sections 105 and 106 of the Immigration and Asylum Act 1999 (offences relating to asylum support fraud). It also provides that certain associated powers for immigration officers shall apply to those offences.
9.Section 19 defines the conditions under which late evidence may not be included in an appeal against the refusal of a Points-based application.
10.Section 20 amends section 42 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 and in doing so provides new powers to (i) over-cost charge in respect of applications or processes in connection with the sponsorship of migrants and (ii) to cross-subsidise between certain in-country services and between certain in-country and overseas services.
11.Section 21 makes provision for the Secretary of State to issue a code of practice to keep children safe from harm while they are in the United Kingdom. The provision imposes a duty on the Border and Immigration Agency to have regard to the code in the exercise of its functions.
Enforcement
12.Sections 22-23 create an offence of assaulting an immigration officer and give immigration officers the power to arrest a person who has committed or is about to commit such an offence.
13.Sections 24 to 26 deal with the conditions under which cash may be seized and detained property forfeited and disposed of.
14.Sections 27 and 28 cover the arrest of individuals who knowingly employ an illegal worker and searches that may be made by immigration officers for personnel records.
15.Section 29 is an amendment that ensures that acts committed after an asylum seeker has arrived in the United Kingdom but before they have entered will be covered by the offence of facilitating an asylum-seeker’s entry to the United Kingdom.
16.Section 30 is an amendment that ensures that those non-UK citizens who commit acts of facilitation whilst outside of the UK in order to secure the illegal entry of individuals to the UK fall within the scope of the various facilitation offences.
17.Section 31 amends existing trafficking for exploitation offences to ensure that acts committed after a person has arrived in the United Kingdom, but before they have entered, will be covered by the offences. This section will also extend the extraterritorial application of the trafficking offences to cover acts of facilitation carried out overseas, irrespective of the nationality of the person carrying out the acts.
Deportation of criminals
18.Sections 32-39 detail the conditions and procedure under which a foreign national prisoner will be automatically deported. They specify those foreign nationals subject to compulsory deportation and the sentences that will trigger it. They also detail permissible appeals, timings of deportation and detention beyond the end of sentence. Clarity around the sentences and the definitions of key phrases in these sections is given in section 38.
Information
19.Sections 40 to 43 deal with the information sharing arrangements between the Border and Immigration Agency, HM Revenue and Customs (HMRC) and Revenue and Customs Prosecution Office. This includes confidentiality and wrongful disclosure.
20.Sections 44 to 46 allow an immigration officer or a police constable to search premises for evidence of an arrested individual’s nationality and to retain and copy these documents. Section 47 enables a designated police civilian to exercise these powers.
Border and Immigration Inspectorate
21.Sections 48 to 56 establish a single independent inspectorate for the Border and Immigration Agency. This will replace the existing inspecting bodies.
Background
22.The UK Borders Act will implement elements of the IND (Immigration and Nationality Directorate) Review ‘Fair, Effective, Transparent and Trusted: Rebuilding Confidence in our Immigration System’, published in July 2006. The Act is part of a package of measures to underpin the Border and Immigration Agency which consists of new powers, a substantial increase in enforcement resource and exploitation of identity technology, in particular to tackle illegal working.
Territorial Extent
23.The Act extends to the whole of the UK, except for sections 1-4 relating to powers of immigration officers at ports and section 25 relating to forfeiture of property and section 31(1) and (2) relating to trafficking offences. These extend only to England, Wales and Northern Ireland.
Commentary on Sections
Part 1: Powers at ports
Section 1 to 4: Designated immigration officers with powers to detain
24.Sections 1 and 2 allow the Secretary of State to designate individual immigration officers acting in a port in England and Wales or Northern Ireland as having the power to detain a person where the immigration officer considers him someone who a constable could arrest without a warrant pursuant to section 24(1), (2) or (3) of the Police and Criminal Evidence Act 1984 (or the equivalent powers in Northern Ireland) or where a warrant is outstanding for the individual. This detention will be pending the arrival of a constable and is subject to a maximum detention period of three hours. The immigration officer may search a person detained under section 2 for anything that could be used to assist escape or to cause physical injury and may pursue a person and return him to the port if the person attempts to abscond from detention. Section 2 also enables Detainee Custody Officers to provide detention services in respect of individuals detained under this section. A detainee custody officer is a person who has been authorised by the Secretary of State (under section 154 of Immigration and Asylum Act 1999) to perform escort and or custodial functions in connection with persons detained under the Immigration Act 1971 and the Nationality Immigration and Asylum Act 2002.
25.Section 3 creates offences of absconding from detention, and assaulting or obstructing an immigration officer in the course of exercising this power and the sanctions associated with each.
26.Section 4 defines “port” for the purpose of this power.
Part 2: Biometric Registration
Section 5 to 15: Registration of those subject to immigration control
27.Section 5(1)(a) enables the Secretary of State to make regulations requiring a person subject to immigration control to apply for the issue of a document recording information about his external physical characteristics. This document is called a "biometric immigration document". Regulations may require a biometric immigration document to be used for specified immigration purposes, in connection with specified immigration procedures or in specified circumstances where a question arises about a person's status in relation to nationality and immigration (subsection (1)(b)). The regulations may also provide that a person who produces a biometric immigration document pursuant to a requirement imposed under the regulations may be required to provide information to enable a comparison to be made between that information and information provided in connection with the application for the document (e.g. fingerprints) (subsection(1)(c). "External physical characteristics" includes fingerprints and features of the iris or any other part of the eye (section 15(1)(c))). "Document" includes a card or sticker and any other method of recording information, whether in writing, by the use of electronic or other technology, or by a combination of methods (section 15(1)(d)). A "person subject to immigration control" means a person who, under the Immigration Act 1971, requires leave to enter or remain in the United Kingdom, whether or not leave has been given (section 15(1)(a)).
28.Section 5(2) provides that the regulations requiring a person subject to immigration control to apply for the issue of a biometric immigration document (under section 5(1)(a)) may, in particular, apply generally or to a specific class of persons subject to immigration control. A specific class may include persons making or seeking to make a specified kind of application for immigration purposes. The regulations may specify a period within which the person is required to apply for the biometric immigration document (subsection(2)(b)). They may make provision about the issue and contents of a biometric immigration document, for a biometric immigration document to be combined with another document, and for a biometric immigration document to begin to have effect and cease to have effect (subsection (2)(c), (d), (e) and (f)). Regulations may also provide for the surrender of the biometric immigration document (subsection 5(2)(g) and (h)). The regulations may enable the Secretary of State to require the surrender of other documents connected with immigration or nationality on issuing a biometric immigration document (subsection (2)(i)).
29.Section 5(3) provides that regulations may allow the Secretary of State to cancel a Biometric Immigration Document in specified circumstances.
30.Section 5(4) provides that the holder of a Biometric Immigration Document may be required by regulations to notify the Secretary of State in specified circumstances.
31.Section 5(5) provides that a person applying for a biometric immigration document may be required by regulations to provide information, (which may include biographical and or other non-biometric information). In particular, the regulations may require or enable an authorised person to require the provision of information in a specified form (subsection (5)(a)). The regulations may require an individual to submit, or enable an authorised person to require an individual to submit, to a specified process by means of which biometric information is obtained or recorded (subsection (5)(b)). The regulations may confer a function on an authorised person, which may include the exercise of a discretion (subsection (5)(c)). They may permit the Secretary of State, instead of requiring the provision of information, to use or retain information which she already has in her possession (subsection (5)(d)). An "authorised person" means a constable, an immigration officer, a prison officer, an officer of the Secretary of State authorised for the purpose, or a person who is employed by a contractor in connection with the discharge of the contractor's duties under a removal centre contract (section 15(1)(e)).
32.Section 5(6) provides that regulations made under section 5(1)(b) may require the production or use of a biometric immigration document that is combined with another document, including an identity card. If a biometric immigration document were to be combined with an identity card this provision also makes it clear that section 5 take precedence over section 16 of the Identity Card Act 2006 (prohibition of requirement to produce an ID card).
33.Section 5(7) prevents the Secretary of State from making regulations that would in effect require a person issued with a biometric immigration document having to carry it with them at all times.
34.Clause 5(8) allows for regulations made under subsection (1)(c) (requiring a person producing a biometric immigration document to provide information for the purposes of allowing a comparison to be made) to (a) require, or permit an authorised person to require, the provision of information in a specified form and (b) require an individual to submit, or an authorised person to require a person to submit to a specified process by means of which biometric information is obtained or recorded. Subsection 5(9) provides that immigration rules made under section 3 of the Immigration Act 1971 may require a person applying for a biometric immigration document to provide non-biometric information to be recorded in it or retained by the Secretary of State.
35.Section 5(10) provides that subsections (5) to (9) are without prejudice to the generality of section 50 of the Immigration, Asylum, and Nationality Act 2006.
36.Section 6 makes supplementary provision in respect of regulations under section 5. Regulations amending or replacing earlier regulations may require a person who holds a biometric immigration document issued under the earlier regulations to apply under the new regulations (subsection (2)). Provision must be made, where a person under the age of 16 is required by or in accordance with regulations to submit to a process for recording biometric information, which is similar to sections 141(3) to (5) and (13) of the Immigration and Asylum Act 1999 (section 6(3)). Section 141(3) to (5) provides that fingerprints may not be taken from a person under 16 except in the presence of an adult who is the child's parent or guardian, or a person who takes responsibility for the child for the time being. An authorised person may not act as the responsible adult in this situation.
37.Section 6(4) provides that rules made under section 3 of the Immigration Act 1971 (the Immigration Rules) may make provision by reference to the compliance or non-compliance with regulations. Under section 6(5), information which is in the possession of the Secretary of State which is used or retained in accordance with section 5(3)(d) shall be treated for the purposes of requirements about treatment and destruction as having been provided in accordance with the regulations at the time which it is used or retained in accordance with them.
38.Section 6(6) provides that regulations may make provision having effect generally or in specific cases and circumstances, may make different provision for different cases and circumstances, may include incidental, consequential or transitional provision, shall be made by statutory instrument, and shall not be made unless laid in draft before Parliament and approved by a resolution of each House.
39.Section 7 makes provision for the effect of non-compliance. Regulations made under section 5(1) shall include provision about the effect of failure to comply with a requirement of the regulations. In particular, regulations may provide for an application for a biometric immigration document to be refused, an application or claim in connection with immigration to be disregarded or refused, the cancellation or variation of leave to enter or remain in the United Kingdom, the Secretary of State to consider giving a penalty notice, or the consequence of failure to be at the discretion for the Secretary of State (section 7(2)). In addition, section 7(3) allows the Secretary of State to make regulations designating an adult as the person responsible for ensuring that child complies with requirements of the regulations. Where a child fails to comply, the designated adult will be liable to a civil penalty notice on their behalf.
40.Section 8(1) makes provision about the use and retention of biometric information. Regulations made under section 5(1) must make provision about use and retention of biometric information provided in accordance with regulations.
41.Section 8(2) sets out the purposes for which biometric information collected under regulations made under section 5(1) can be used. Section 8(2) also includes provision to specify further uses for biometric information collected.
42.Section 8(3) provides that regulations under section 5(1) must include provision about the destruction of biometric information held by the Secretary of State which has been obtained or recorded by virtue of the regulations. They must require the destruction of information if the Secretary of State thinks that it is no longer likely to be of use in accordance with regulations made by virtue of section 8(1). The regulations must include provision similar to section 143(2) and (10) to (13) of the Immigration and Asylum Act 1999 (which makes provision about the destruction of fingerprint data taken under section 141 of that Act).
43.Section 8(4) provides that a requirement to destroy information shall not apply if and in so far as the information is retained in accordance with and for the purposes of another enactment.
44.Sections 9 to 14 make provision for a civil penalty scheme for failure to comply with a requirement under regulations made under section 5. Under section 9 the Secretary of State may by notice require a person to pay a penalty for failing to comply with a requirement of the regulations. The notice must specify the amount of the penalty and the date before which the penalty must be paid (which must not be fewer than 14 days after the date on which the notice is given) (subsection 9(2)(a) and (b) and (4)). The notice must specify methods by which the penalty must be paid and explain the grounds on which the Secretary of State thinks the person has failed to comply with the regulations (subsection (2)(c) and (d)). The penalty notice must explain how the person can object to the penalty and appeal the penalty, and how the penalty may be enforced (subsection (2)(e)).
45.Section 9(3) sets the maximum amount of penalty that may be levied, £1,000. The Secretary of State may, by order, change this limit to reflect a change in the value of money (section 9(6)).
46.Section 9(5) provides that a person who has been given a penalty notice may be given a further penalty notice in the case of continued failure. However, the further notice may not be given during the time available for objection or appeal against the previous notice, nor while an objection or appeal is pending.
47.Section 10(1) provides that a person who has been given a penalty notice may by notice object to the Secretary of State on the grounds that she has not failed to comply with a requirement of the regulations, it is unreasonable to expect him to pay the penalty or the amount of the penalty is excessive. A notice of objection must specify the grounds of objection and the person's reasons for objecting (subsection (2)(a)). It must comply with any prescribed requirements as to form and content (subsection (2)(b)). The notice must also be given within a prescribed period (subsection (2)(c)). Under section 10(3) the Secretary of State shall consider the notice of objection and cancel the penalty notice, reduce the penalty by varying the original penalty notice, increase the penalty by issuing a new penalty notice, or confirm the penalty notice. The Secretary of State shall do so in accordance with any prescribed requirements and within a prescribed period, unless the person and the Secretary of State agree a longer time period (subsection (4)).
48.Section 11(1) provides that a person given a penalty notice may appeal that notice to a county court in England and Wales or Northern Ireland, or to the sheriff in Scotland. An appeal may be brought on the grounds that the person has not failed to comply with a requirement of the regulations, it is unreasonable to expect the person to pay the penalty, or the amount of the penalty is excessive. The court may then cancel the penalty notice, reduce the penalty by varying the penalty notice, increase the penalty notice, or confirm the penalty notice (subsection (3)). An appeal may be brought whether or not the person has objected, and irrespective of the Secretary of State's decision on any notice of objection (subsection (4)). The court may consider matters of which the Secretary of State was not and could not have been aware before giving the penalty notice (subsection (5)).
49.Section 12 makes provision for enforcement of a penalty. Where a penalty has not been paid before the specified date, it may be recovered as a debt due to the Secretary of State (subsection (1)). However where an objection notice is given in respect of a penalty notice, the Secretary of State may not take steps to enforce the penalty notice before she has decided what to do in respect of the objection, and has informed the objector (subsection (2)). Additionally, the Secretary of State may not take steps to enforce the penalty notice while an appeal under section 11 could be brought (disregarding the possibility of an appeal out of time) or has been brought and has not been determined or abandoned (subsection (3)). In proceedings for the recovery of a penalty, no question may be raised in respect of matters which are grounds for objection or for appeal (section 12(3)).
50.Section 12(5) requires that any money received by the Secretary of State in respect of a penalty under section 9 is paid into the Consolidated Fund.
51.Section 13 makes provision for a code of practice in respect of the civil penalty scheme. Under subsection (1) the Secretary of State shall issue a code of practice setting out the matters to be considered in determining whether to give a penalty notice and the amount of the penalty. The code may, in particular, require the Secretary of State to consider any decision already taken in respect of non-compliance with a requirement of the regulations (subsection (2)). The Secretary of State may revise and re-issue the code (subsection (4)). Subsection (5) provides that before issuing or re-issuing the code the Secretary of State must publish proposals, consult members of the public and lay a draft before Parliament. Subsection (6) provides that the code shall come into force at the prescribed time.
52.Where a matter is "prescribed" under the civil penalty scheme, this means prescribed by order (section 14(1)). An order may make provision generally or only for specified purposes, may make different provision for different purposes, shall be made by statutory instrument and is subject to annulment in pursuance of a resolution of either House of Parliament.
53.Section 15(1) makes provision for the interpretation of section 5. Section 15(1)(g) provides that regulations may (but need not) enable something to be done by the Secretary of State only where the Secretary of State is of a specified opinion.
54.Section 15(2) enables further provision to be made concerning the procedure to be followed, and for the charging of fees for an application for a biometric immigration document.
Part 3: Treatment of claimants
Section 16: Conditional leave to enter or remain
55.This section amends section 3(1)(c) of the Immigration Act 1971. Section 3(1)(c) already provides that a person who is given limited leave to enter/remain in the UK may be subject to any or all of the following conditions, namely –
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a condition restricting his employment or occupation in the UK;
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a condition requiring him to maintain and accommodate himself, and any dependants of his, without recourse to public funds; and
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a condition requiring him to register with the police.
56.This section simply adds two new conditions under section 3(1)(c), namely -
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a condition requiring him to report to an immigration officer or the Secretary of State;
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a condition about residence.
Section 17: Support for failed asylum-seekers
57.Section 17 provides that a person whose claim for asylum has been determined and who can bring or has brought an in-country appeal against an immigration decision will remain an asylum-seeker for the purposes of section 4 and Part 6 of the Immigration and Asylum Act 1999 (the 1999 Act), Part 2 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) and Schedule 3 to the 2002 Act. The effect of this provision is that, whilst an in-country appeal against the immigration decision can be brought or is pending, such a person will be eligible for support on the same basis as asylum-seekers who have not yet received a decision on their claim. Support will continue for a prescribed period after the appeal ceases to be pending.
58.A judgment by the Court of Appeal in May 2006 (in the case of Slough Borough Council v M) held that, for the purposes of Schedule 3 to the 2002 Act, save for when a right of appeal arises under section 83 of that Act, a person ceases to be an asylum-seeker at the time at which the Secretary of State notifies his decision on the claim and not when the appeal related to his asylum claim had been disposed of. Section 17(3) defines an in country appeal as one brought while the appellant is in the United Kingdom and specifies that the possibility of bringing an appeal out of time with permission is to be ignored for the purpose of this section.
59.The purpose of section 17 is to avoid a situation where a person has made a claim for asylum and an in-country appeal against an immigration decision can be brought or is pending but support under Part 6 of the 1999 Act or Part 2 of the 2002 Act (currently not in force) is not available because the claim for asylum is deemed to be determined on conclusion of the prescribed period after the Secretary of State has notified his decision on the claim. Further, the section ensures that such a person will not fall within any of the classes of ineligible person within Schedule 3 of the 2002 Act.
Section 18: Support for asylum-seekers: enforcement
60.This section applies existing immigration officer powers of arrest, entry, search and seizure in the Immigration Act 1971 (the 1971 Act) to the offences of dishonestly obtaining asylum support.
61.New section 109A (arrest) gives an immigration officer the power to arrest a person, without warrant, where the officer has reasonable grounds for suspecting that the person has committed an offence under section 105 or section 106 of the Immigration and Asylum Act 1999 (the 1999 Act) (false or dishonest representations in order to obtain support for asylum-seekers, respectively).
62.New section 109B (entry, search and seizure) extends the relevant powers of entry, search and seizure under sections 28B, 28D, 28E and 28G to 28L of the 1971 Act after a person has been arrested for an offence under section 105 or section 106 of the 1999 Act.
Section 19: Points-based applications: no new evidence on appeal
63.Section 85(4) of the Nationality, Immigration and Asylum Act 2002 allows the Asylum and Immigration Tribunal (AIT) to consider any evidence that is relevant to the substance of the decision, including any evidence which arises after the date of decision. This does not apply to an appeal against the refusal of an entry clearance or a certificate of entitlement: in these cases the AIT can only consider the circumstances as they were at the time of the decision to refuse.
64.This section inserts a new section 85A into the 2002 Act which lists the exceptions to the general rule that the AIT can consider any evidence that is relevant to the substance of the decision, including any evidence which arises after the date of decision. It re-enacts the existing evidential restriction in appeals against the refusal of an entry clearance or a certificate of entitlement (subsection (2)), and adds a new restriction in relation to appeals against a refusal of leave to enter or a variation of leave to enter or remain. In appeals against a refusal of leave to enter or a variation of leave to enter or remain the AIT will be prevented from considering evidence adduced by the appellant which was not submitted at the time of making the original application, where that application was one made under a Points-based immigration rule. The point in time during the application process after which further evidence is excluded will be defined in the AIT Procedure Rules. This exclusionary rule will not, however, apply insofar as the appeal is brought on the grounds that the decision was racially discriminatory or in breach of the appellant's rights under the Community Treaties, the Refugee Convention or section 6 of the Human Rights Act 1998. Additionally, evidence which was not submitted with the original application may still be adduced to rebut any reason for refusing an application which does not relate to the attainment of points under a Points-based immigration rule or in order to prove that a document is genuine or valid.
Section 20: Fees
65.Section 20(2) provides a power when setting the fees for applications or processes in connection with sponsorship of persons seeking leave to enter or remain in the UK under section 51(3) of the Immigration, Asylum and Nationality Act 2006 (‘the 2006 Act’), to set them at above administrative cost recovery levels. It does so by allowing the Secretary of State to prescribe an amount which exceeds the administrative cost of the relevant application or process, based upon the benefits that he 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.
66.It does so by inserting a new paragraph, (da), in subsection (2) of section 42 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (‘the 2004 Act’). This will mean that fees specified in regulations which are to be made under section 51(3) of the 2006 Act in reliance on section 42(1) of the 2004 Act, for applications or processes in connection with sponsorship of the relevant persons, will, by virtue of section 42(7) of the 2004 Act, be subject to approval by resolution of each House of Parliament.
67.Section 20(3) provides the Secretary of State with a power when setting the fee for an in-country service in connection with immigration or nationality under section 51 of the 2006 Act to take into account the costs of:
Other such services which are charged under section 51 of that Act; and
Certain out-of-country services, in particular applications for entry clearance, transit visas and certificates of entitlement to the right of abode in the United Kingdom, which are charged under section 1 of the Consular Fees Act 1980.
68.The effect of this is to enable the Secretary of State when setting the fees for immigration or nationality services under section 51 of the 2006 Act, to cross-subsidise between different in-country services in connection with immigration or nationality and between in-country and certain out-of country services in connection with immigration or nationality. This will mean that the Secretary of State can prescribe an amount which exceeds the administrative cost of the relevant service by taking into account the administrative cost of certain other services.
69.It does so by inserting a new subsection, (2A), into section 42 of the 2004 Act. By virtue of section 42(7) of that Act therefore, a draft of the regulations which are to be made under section 51(3) of the 2006 Act in reliance on this new power will be subject to approval by resolution of both Houses of Parliament.
70.Section 20(4) provides a power when setting the amount of a fee under section 1 of the Consular Fees Act 1980 in respect of certain visa services, in particular applications for entry clearance, transit visas and certificates of entitlement to the right of abode in the United Kingdom, to set an amount which takes into account the costs of any in-country services in connection with immigration or nationality which are charged for under section 51 of the 2006 Act.
71.Again, it does so by inserting a new subsection, (3A), into section 42 of the 2004 Act. Therefore by virtue of section 42(7) of that Act, an Order in Council may not be made in reliance on this new power unless a draft of that Order has been laid before and approved by resolution of each House of Parliament.
72.In addition, by virtue of section 42(6) of the 2004 Act, an instrument, i.e. regulations or an Order in Council, may not be made in reliance on these new powers unless the Secretary of State has consulted with such persons as appear to him to be appropriate.
Section 21: Children
73.Section 21 requires the Secretary of State to issue a code of practice to ensure that in exercising its functions in the United Kingdom the Border and Immigration Agency takes appropriate steps to ensure that while children are in the United Kingdom they are safe from harm. Subsection (2) requires the Border and Immigration Agency to have regard to the code in the exercise of its functions.