(1) Section 32(4) and (5)—
(a) do not apply where an exception in this section applies (subject to subsection (7) below), and
(b) are subject to sections 7 and 8 of the Immigration Act 1971 (Commonwealth citizens, Irish citizens, crew and other exemptions).
(2) Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach—
(a) a person’s Convention rights, or
(b) the United Kingdom’s obligations under the Refugee Convention.
(3) Exception 2 is where the Secretary of State thinks that the foreign criminal was under the age of 18 on the date of conviction.
(4) Exception 3 is where the removal of the foreign criminal from the United Kingdom in pursuance of a deportation order would breach rights of the foreign criminal under the Community treaties.
(5) Exception 4 is where the foreign criminal—
(a) is the subject of a certificate under section 2 or 70 of the Extradition Act 2003 (c. 41),
(b) is in custody pursuant to arrest under section 5 of that Act,
(c) is the subject of a provisional warrant under section 73 of that Act,
(d) is the subject of an authority to proceed under section 7 of the Extradition Act 1989 (c. 33) or an order under paragraph 4(2) of Schedule 1 to that Act, or
(e) is the subject of a provisional warrant under section 8 of that Act or of a warrant under paragraph 5(1)(b) of Schedule 1 to that Act.
(6) Exception 5 is where any of the following has effect in respect of the foreign criminal—
(a) a hospital order or guardianship order under section 37 of the Mental Health Act 1983 (c. 20),
(b) a hospital direction under section 45A of that Act,
(c) a transfer direction under section 47 of that Act,
(d) a compulsion order under section 57A of the Criminal Procedure (Scotland) Act 1995 (c. 46),
(e) a guardianship order under section 58 of that Act,
(f) a hospital direction under section 59A of that Act,
(g) a transfer for treatment direction under section 136 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), or
(h) an order or direction under a provision which corresponds to a provision specified in paragraphs (a) to (g) and which has effect in relation to Northern Ireland.
(7) The application of an exception—
(a) does not prevent the making of a deportation order;
(b) results in it being assumed neither that deportation of the person concerned is conducive to the public good nor that it is not conducive to the public good;
but section 32(4) applies despite the application of Exception 1 or 4.
(1) Section 32(5) requires a deportation order to be made at a time chosen by the Secretary of State.
(2) A deportation order may not be made under section 32(5) while an appeal or further appeal against the conviction or sentence by reference to which the order is to be made—
(a) has been instituted and neither withdrawn nor determined, or
(b) could be brought.
(3) For the purpose of subsection (2)(b)—
(a) the possibility of an appeal out of time with permission shall be disregarded, and
(b) a person who has informed the Secretary of State in writing that the person does not intend to appeal shall be treated as being no longer able to appeal.
(4) The Secretary of State may withdraw a decision that section 32(5) applies, or revoke a deportation order made in accordance with section 32(5), for the purpose of—
(a) taking action under the Immigration Acts or rules made under section 3 of the Immigration Act 1971 (c. 77) (immigration rules), and
(b) subsequently taking a new decision that section 32(5) applies and making a deportation order in accordance with section 32(5).
(1) The Nationality, Immigration and Asylum Act 2002 (c. 41) is amended as follows.
(2) At the end of section 79 (no deportation order pending appeal) add—
“(3) This section does not apply to a deportation order which states that it is made in accordance with section 32(5) of the UK Borders Act 2007.
(4) But a deportation order made in reliance on subsection (3) does not invalidate leave to enter or remain, in accordance with section 5(1) of the Immigration Act 1971, if and for so long as section 78 above applies.”
(3) Before section 82(4) (general right of appeal) insert—
“(3A) Subsection (2)(j) does not apply to a decision to make a deportation order which states that it is made in accordance with section 32(5) of the UK Borders Act 2007; but—
(a) a decision that section 32(5) applies is an immigration decision for the purposes of this Part, and
(b) a reference in this Part to an appeal against an automatic deportation order is a reference to an appeal against a decision of the Secretary of State that section 32(5) applies.”
(1) A person who has served a period of imprisonment may be detained under the authority of the Secretary of State—
(a) while the Secretary of State considers whether section 32(5) applies, and
(b) where the Secretary of State thinks that section 32(5) applies, pending the making of the deportation order.
(2) Where a deportation order is made in accordance with section 32(5) the Secretary of State shall exercise the power of detention under paragraph 2(3) of Schedule 3 to the Immigration Act 1971 (c. 77) (detention pending removal) unless in the circumstances the Secretary of State thinks it inappropriate.
(3) A court determining an appeal against conviction or sentence may direct release from detention under subsection (1) or (2).
(4) Provisions of the Immigration Act 1971 which apply to detention under paragraph 2(3) of Schedule 3 to that Act shall apply to detention under subsection (1) (including provisions about bail).
(5) Paragraph 2(5) of Schedule 3 to that Act (residence, occupation and reporting restrictions) applies to a person who is liable to be detained under subsection (1).
(1) Where a deportation order against a foreign criminal states that it is made in accordance with section 32(5) (“the automatic deportation order”) this section shall have effect in place of the words from “A deportation order” to “after the making of the deportation order against him” in section 5(3) of the Immigration Act 1971 (period during which family members may also be deported).
(2) A deportation order may not be made against a person as belonging to the family of the foreign criminal after the end of the relevant period of 8 weeks.
(3) In the case of a foreign criminal who has not appealed in respect of the automatic deportation order, the relevant period begins when an appeal can no longer be brought (ignoring any possibility of an appeal out of time with permission).
(4) In the case of a foreign criminal who has appealed in respect of the automatic deportation order, the relevant period begins when the appeal is no longer pending (within the meaning of section 104 of the Nationality, Immigration and Asylum Act 2002 (c. 41)).
(1) In section 32(2) the reference to a person who is sentenced to a period of imprisonment of at least 12 months—
(a) does not include a reference to a person who receives a suspended sentence (unless a court subsequently orders that the sentence or any part of it (of whatever length) is to take effect),
(b) does not include a reference to a person who is sentenced to a period of imprisonment of at least 12 months only by virtue of being sentenced to consecutive sentences amounting in aggregate to more than 12 months,
(c) includes a reference to a person who is sentenced to detention, or ordered or directed to be detained, in an institution other than a prison (including, in particular, a hospital or an institution for young offenders) for at least 12 months, and
(d) includes a reference to a person who is sentenced to imprisonment or detention, or ordered or directed to be detained, for an indeterminate period (provided that it may last for 12 months).
(2) In section 32(3)(b) the reference to a person who is sentenced to a period of imprisonment—
(a) does not include a reference to a person who receives a suspended sentence (unless a court subsequently orders that the sentence or any part of it is to take effect), and
(b) includes a reference to a person who is sentenced to detention, or ordered or directed to be detained, in an institution other than a prison (including, in particular, a hospital or an institution for young offenders).
(3) For the purposes of section 32 a person subject to an order under section 5 of the Criminal Procedure (Insanity) Act 1964 (c. 84) (insanity, &c.) has not been convicted of an offence.
(4) In sections 32 and 33—
(a) “British citizen” has the same meaning as in section 3(5) of the Immigration Act 1971 (c. 77) (and section 3(8) (burden of proof) shall apply),
(b) “Convention rights” has the same meaning as in the Human Rights Act 1998 (c. 42),
(c) “deportation order” means an order under section 5, and by virtue of section 3(5), of the Immigration Act 1971, and
(d) “the Refugee Convention” means the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and its Protocol.
(1) This section amends section 72(11)(b) of the Nationality, Immigration and Asylum Act 2002 (removal: serious criminal: interpretation).
(2) In sub-paragraph (i) for “(unless at least two years of the sentence are not suspended)” substitute “(unless a court subsequently orders that the sentence or any part of it is to take effect)”.
(3) After sub-paragraph (i) insert—
“(ia) does not include a reference to a person who is sentenced to a period of imprisonment of at least two years only by virtue of being sentenced to consecutive sentences which amount in aggregate to more than two years,”.
(1) Her Majesty’s Revenue and Customs (HMRC) and the Revenue and Customs Prosecutions Office (the RCPO) may each supply the Secretary of State with information for use for the purpose of—
(a) administering immigration control under the Immigration Acts;
(b) preventing, detecting, investigating or prosecuting offences under those Acts;
(c) determining whether to impose, or imposing, penalties or charges under Part 2 of the Immigration and Asylum Act 1999 (c. 33) (carriers' liability);
(d) determining whether to impose, or imposing, penalties under section 15 of the Immigration, Asylum and Nationality Act 2006 (c. 13) (restrictions on employment);
(e) providing facilities, or arranging for the provision of facilities, for the accommodation of persons under section 4 of the Immigration and Asylum Act 1999;
(f) providing support for asylum-seekers and their dependants under Part 6 of that Act;
(g) determining whether an applicant for naturalisation under the British Nationality Act 1981 (c. 61) is of good character;
(h) determining whether an applicant within subsection (1) of section 58 of the Immigration, Asylum and Nationality Act 2006 (acquisition of British nationality, &c. by adult or young person) for registration under a provision listed in subsection (2) of that section is of good character;
(i) determining whether to make an order in respect of a person under section 40 of the British Nationality Act 1981 (deprivation of citizenship);
(j) doing anything else in connection with the exercise of immigration and nationality functions.
(2) This section applies to a document or article which comes into the possession of, or is discovered by, HMRC or the RCPO, or a person acting on behalf of HMRC or the RCPO, as it applies to information.
(3) The Secretary of State—
(a) may retain for a purpose within subsection (1) a document or article supplied by virtue of subsection (2);
(b) may dispose of a document or article supplied by virtue of subsection (2).
(4) In subsection (1) “immigration and nationality functions” means functions exercisable by virtue of—
(a) the Immigration Acts,
(b) the British Nationality Act 1981 (c. 61),
(c) the Hong Kong Act 1985 (c. 15),
(d) the Hong Kong (War Wives and Widows) Act 1996 (c. 41), or
(e) the British Nationality (Hong Kong) Act 1997 (c. 20).
(5) A power conferred by this section on HMRC or the RCPO may be exercised on behalf of HMRC or the RCPO by a person who is authorised (generally or specifically) for the purpose.
(6) The following provisions (which relate to the supply of information to the Secretary of State) shall cease to have effect—
(a) section 20(1)(d) of the Immigration and Asylum Act 1999 (c. 33),
(b) section 130 of the Nationality, Immigration and Asylum Act 2002 (c. 41), and
(c) paragraphs 17 and 20 of Schedule 2 to the Commissioners for Revenue and Customs Act 2005 (c. 11).
(1) A person to whom relevant information is supplied (whether before or after the commencement of this section) may not disclose that information.
(2) Information is relevant information if it is supplied by or on behalf of HMRC or the RCPO under—
(a) section 20 of the Immigration and Asylum Act 1999,
(b) section 130 of the Nationality, Immigration and Asylum Act 2002,
(c) section 36 of the Immigration, Asylum and Nationality Act 2006 (c. 13) (except in so far as that section relates to information supplied to a chief officer of police), or
(d) section 40 of this Act.
(3) But subsection (1) does not apply to a disclosure—
(a) which is made for a purpose within section 40(1),
(b) which is made for the purposes of civil proceedings (whether or not within the United Kingdom) relating to an immigration or nationality matter,
(c) which is made for the purposes of a criminal investigation or criminal proceedings (whether or not within the United Kingdom) relating to an immigration or nationality matter,
(d) which is made in pursuance of an order of a court,
(e) which is made with the consent (which may be general or specific) of HMRC or the RCPO, depending on by whom or on whose behalf the information was supplied, or
(f) which is made with the consent of each person to whom the information relates.
(4) Subsection (1) is subject to any other enactment permitting disclosure.
(5) The reference in subsection (1) to a person to whom relevant information is supplied includes a reference to a person who is or was acting on behalf of that person.
(6) The reference in subsection (2) to information supplied under section 40 of this Act includes a reference to documents or articles supplied by virtue of subsection (2) of that section.
(7) In subsection (3) “immigration or nationality matter” means a matter in respect of which the Secretary of State has immigration and nationality functions (within the meaning given in section 40(4)).
(8) In subsection (4) “enactment” does not include—
(a) an Act of the Scottish Parliament,
(b) an Act of the Northern Ireland Assembly, or
(c) an instrument made under an Act within paragraph (a) or (b).
(1) An offence is committed by a person who contravenes section 41 by disclosing information relating to a person whose identity—
(a) is specified in the disclosure, or
(b) can be deduced from it.
(2) Subsection (1) does not apply to the disclosure of information about internal administrative arrangements of HMRC or the RCPO (whether relating to Commissioners, officers, members of the RCPO or others).
(3) It is a defence for a person (P) charged with an offence under this section of disclosing information to prove that P reasonably believed—
(a) that the disclosure was lawful, or
(b) that the information had already and lawfully been made available to the public.
(4) A person guilty of an offence under this section shall be liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding two years, to a fine or to both, or
(b) on summary conviction, to imprisonment for a term not exceeding 12 months, to a fine not exceeding the statutory maximum or to both.
(5) The reference in subsection (4)(b) to 12 months shall be treated as a reference to six months—
(a) in the application of this section to Northern Ireland;
(b) in the application of this section to England and Wales, in relation to an offence under this section committed before the commencement of section 282 of the Criminal Justice Act 2003 (c. 44) (imprisonment on summary conviction for certain offences in England and Wales);
(c) in the application of this section to Scotland, until the commencement of section 45(1) of the Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6) (corresponding provision in Scotland).
(6) A prosecution for an offence under this section may be instituted—
(a) in England and Wales, only with the consent of the Director of Public Prosecutions;
(b) in Northern Ireland, only with the consent of the Director of Public Prosecutions for Northern Ireland.
In section 131 of the Nationality, Immigration and Asylum Act 2002 (c. 41) (police, etc.), for the words from “determining” to the end substitute “—
(a) determining whether an applicant for naturalisation under the British Nationality Act 1981 is of good character;
(b) determining whether an applicant within subsection (1) of section 58 of the Immigration, Asylum and Nationality Act 2006 for registration under a provision listed in subsection (2) of that section is of good character;
(c) determining whether to make an order in respect of a person under section 40 of the British Nationality Act 1981.”
(1) This section applies where an individual has been arrested on suspicion of the commission of an offence and an immigration officer or a constable suspects—
(a) that the individual may not be a British citizen, and
(b) that nationality documents relating to the individual may be found on—
(i) premises occupied or controlled by the individual,
(ii) premises on which the individual was arrested, or
(iii) premises on which the individual was, immediately before being arrested.
(2) The immigration officer or constable may enter and search the premises for the purpose of finding those documents.
(3) The power of search may be exercised only with the written authority of a senior officer; and for that purpose—
(a) “senior officer” means—
(i) in relation to an immigration officer, an immigration officer of at least the rank of chief immigration officer, and
(ii) in relation to a constable, a constable of at least the rank of inspector, and
(b) a senior officer who gives authority must arrange for a written record to be made of—
(i) the grounds for the suspicions in reliance on which the power of search is to be exercised, and
(ii) the nature of the documents sought.
(4) The power of search may not be exercised where the individual has been released without being charged with an offence.
(5) In relation to an individual “nationality document” means a document showing—
(a) the individual’s identity, nationality or citizenship,
(b) the place from which the individual travelled to the United Kingdom, or
(c) a place to which the individual is proposing to go from the United Kingdom.
(1) This section applies where an individual—
(a) has been arrested on suspicion of the commission of an offence, and
(b) has not been released without being charged with an offence.
(2) If, on an application made by an immigration officer or a constable, a justice of the peace is satisfied that there are reasonable grounds for believing that—
(a) the individual may not be a British citizen,
(b) nationality documents relating to the individual may be found on premises specified in the application,
(c) the documents would not be exempt from seizure under section 46(2), and
(d) any of the conditions in subsection (3) below applies,
the justice of the peace may issue a warrant authorising an immigration officer or constable to enter and search the premises.
(3) The conditions are that—
(a) it is not practicable to communicate with any person entitled to grant entry to the premises;
(b) it is practicable to communicate with a person entitled to grant entry to the premises but it is not practicable to communicate with any person entitled to grant access to the nationality documents;
(c) entry to the premises will not be granted unless a warrant is produced;
(d) the purpose of a search may be frustrated or seriously prejudiced unless an immigration officer or constable arriving at the premises can secure immediate entry.
(4) Sections 28J and 28K of the Immigration Act 1971 (c. 77) (warrants: application and execution) apply, with any necessary modifications, to warrants under this section.
(5) In the application of this section to Scotland a reference to a justice of the peace shall be treated as a reference to the sheriff or a justice of the peace.
(1) An immigration officer or constable searching premises under section 44 or 45 may seize a document which the officer or constable thinks is a nationality document in relation to the arrested individual.
(2) Subsection (1) does not apply to a document which—
(a) in relation to England and Wales or Northern Ireland, is subject to legal professional privilege, or
(b) in relation to Scotland, is an item subject to legal privilege within the meaning of section 412 of the Proceeds of Crime Act 2002 (c. 29).
(3) An immigration officer or constable may retain a document seized under subsection (1) while the officer or constable suspects that—
(a) the individual to whom the document relates may be liable to removal from the United Kingdom in accordance with a provision of the Immigration Acts, and
(b) retention of the document may facilitate the individual’s removal.
(4) Section 28I of the Immigration Act 1971 (c. 77) (seized material: access and copying) shall have effect in relation to a document seized and retained by an immigration officer.
(5) Section 21 of the Police and Criminal Evidence Act 1984 (c. 60) or Article 23 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)) (seized material: access and copying) shall have effect in relation to a document seized and retained by a constable in England and Wales or Northern Ireland.
In Part 2 of Schedule 4 to the Police Reform Act 2002 (c. 30) (powers exercisable by police civilians: investigating officers) after paragraph 18 (entry and search after arrest) insert—
18A Where a designation applies this paragraph to any person—
(a) sections 44 to 46 of the UK Borders Act 2007 (entry, search and seizure after arrest) shall apply to that person (with any necessary modifications) as if a reference to a constable included a reference to that person, and
(b) a provision of the 1984 Act which applies to constables in connection with any of those sections shall apply (with any necessary modifications) to that person.”
(1) The Secretary of State shall appoint a person as Chief Inspector of the Border and Immigration Agency.
(2) The Chief Inspector shall monitor and report on the efficiency and effectiveness of the Border and Immigration Agency; in particular, the Chief Inspector shall consider and make recommendations about—
(a) consistency of approach within the Border and Immigration Agency,
(b) the practice and performance of the Border and Immigration Agency compared to other persons doing similar things,
(c) practice and procedure in making decisions,
(d) the treatment of claimants and applicants,
(e) certification under section 94 of the Nationality, Immigration and Asylum Act 2002 (c. 41) (unfounded claim),
(f) compliance with law about discrimination in the exercise of functions, including reliance on section 19D of the Race Relations Act 1976 (c. 74) (exception for immigration functions),
(g) practice and procedure in relation to the exercise of enforcement powers (including powers of arrest, entry, search and seizure),
(h) the provision of information,
(i) the handling of complaints, and
(j) the content of information about conditions in countries outside the United Kingdom which the Secretary of State compiles and makes available, for purposes connected with immigration and asylum, to immigration officers and other officials.
(3) In this section “the Border and Immigration Agency” means—
(a) immigration officers, and
(b) other officials of the Secretary of State, and the Secretary of State, in respect of functions relating to immigration, asylum or nationality.
(4) The Chief Inspector shall not aim to investigate individual cases (although this subsection does not prevent the Chief Inspector from considering or drawing conclusions about an individual case for the purpose of, or in the context of, considering a general issue).
(1) The Secretary of State shall pay remuneration and allowances to the Chief Inspector.
(2) The Secretary of State—
(a) shall before the beginning of each financial year specify a maximum sum which the Chief Inspector may spend on functions for that year,
(b) may permit that to be exceeded for a specified purpose, and
(c) shall defray the Chief Inspector’s expenditure for each financial year subject to paragraphs (a) and (b).
(3) The Chief Inspector shall hold and vacate office in accordance with terms of appointment (which may include provision about retirement, resignation or dismissal).
(4) The Chief Inspector may appoint staff.
(5) A person who is employed by or in any of the following may not be appointed as Chief Inspector—
(a) a government department,
(b) the Scottish Administration,
(c) the National Assembly for Wales, and
(d) a department in Northern Ireland.