SCHEDULE 10 continued PART 4 continued
(10) No fingerprints may be taken from A if the immigration officer considers that A has a reasonable excuse for the failure concerned.
(11) No fingerprints may be taken from B unless the decision to take them has been confirmed by a chief immigration officer.
(12) An authorised person may not take fingerprints from a person under the age of sixteen unless his decision to take them has been confirmed—
(a) if he is a constable, by a person designated for the purpose by the chief constable;
(b) if he is a person mentioned in subsection (5)(b), by a chief immigration officer;
(c) if he is a prison officer, by a person designated for the purpose by the governor of the prison;
(13) Neither subsection (3) nor subsection (12) prevents an authorised person from taking fingerprints if he reasonably believes that the person from whom they are to be taken is aged sixteen or over.
(14) For the purposes of subsection (7)(f), a person is a dependant of another person if—
(a) he is that person’s spouse or child under the age of eighteen; and
(b) he does not have a right of abode in the Isle of Man or indefinite leave to enter or remain in the Isle of Man.
(16) “Relevant immigration decision” means a decision of the kind mentioned in section 82(2)(g), (h), (i), (j) or (k) of the Nationality, Immigration and Asylum Act 2002.
(1) The Governor may, by notice in writing, require a person to whom section 141 applies to attend at a specified place for fingerprinting.
(2) In the case of a notice given to a person of a kind specified in section 141(7)(a) to (d) or (f) (in so far as it applies to a dependant of a person of a kind specified in section 141(7)(a) to (d)), the notice—
(a) must require him to attend during a specified period of at least seven days beginning with a day not less than seven days after the date given in the notice as its date of issue, and
(b) may require him to attend at a specified time of day or during specified hours.
(3) A constable or immigration officer may arrest without warrant a person who has failed to comply with a requirement imposed on him under this section (unless the requirement has ceased to have effect).
(4) Before a person arrested under subsection (3) is released—
(a) he may be removed to a place where his fingerprints may conveniently be taken; and
(b) his fingerprints may be taken (whether or not he is so removed).
(5) A requirement imposed under subsection (1) ceases to have effect at the end of the relevant period (as defined by section 141).
(1) If they have not already been destroyed, fingerprints must be destroyed before the end of the specified period beginning with the day on which they were taken.
(2) If a person from whom fingerprints were taken proves that he is—
(a) a British citizen, or
(b) a Commonwealth citizen who has a right of abode in the Isle of Man as a result of section 2(1)(b) of the 1971 Act,
the fingerprints must be destroyed as soon as reasonably practicable.
(9) Fingerprints taken from F (within the meaning of section 141(7)) must be destroyed when fingerprints taken from the person whose dependant he is have to be destroyed.
(10) The obligation to destroy fingerprints under this section applies also to copies of fingerprints.
(11) The Governor must take all reasonably practicable steps to secure—
(a) that data which are held in electronic form and which relate to fingerprints which have to be destroyed as a result of this section are destroyed or erased; or
(b) that access to such data is blocked.
(12) The person to whom the data relate is entitled, on request, to a certificate issued by the Governor to the effect that he has taken the steps required by subsection (11).
(13) A certificate under subsection (12) must be issued within three months of the date of the request for it.
(15) “Specified period” means—
(a) such period as the Governor may specify by order;
(b) if no period is so specified, ten years.
(1) The Governor may make regulations containing provisions equivalent to sections 141, 142 and 143 in relation to such other methods of collecting data about external physical characteristics as may be prescribed.
(2) In subsection (1) “external physical characteristics” includes, in particular, features of the iris or any other part of the eye.
(1) An immigration officer exercising any specified power to—
(a) arrest, question, search or take fingerprints from a person,
(b) enter and search premises, or
(c) seize property found on persons or premises,
must have regard to such provisions of a code as may be specified.
(2) Subsection (1) also applies to an authorised person exercising the power to take fingerprints conferred by section 141.
(2A) A person exercising a power under regulations made by virtue of section 144 must have regard to such provisions of a code as may be specified.
(3) Any specified provision of a code may have effect for the purposes of this section subject to such modifications as may be specified.
(4) “Specified” means specified in a direction given by the Governor.
(5) “Authorised person” has the same meaning as in section 141.
(6) “Code” means any code of practice for the time being in force under the Police Powers and Procedures Act 1998 (an Act of Tynwald).
(1) An immigration officer exercising any power conferred on him by the 1971 Act or this Act may, if necessary, use reasonable force.
(2) A person exercising a power under any of the following may if necessary use reasonable force—
(a) section 28CA, 28FA or 28FB of the 1971 Act (business premises: entry to arrest or search),
(b) section 141 or 142 of this Act, and
(c) regulations under section 144 of this Act.
(3) Any rules, regulations or orders made under the Immigration Acts may—
(a) contain such incidental, supplemental, consequential and transitional provision as the person making it considers appropriate;
(b) make different provision for different cases or descriptions of case; and
(c) make different provision for different areas.
(4) Rules, regulations and orders made under the Immigration Acts by the Governor, the Council of Ministers, the Deemsters, the Clerk of the Rolls or any Department of the Isle of Man Government shall be laid before Tynwald as soon as practicable after they are made, and if Tynwald at the sitting at which they are laid or at the next following sitting resolves that they shall be annulled, they shall cease to have effect.
(1) In this Act—
“the 1971 Act” means the Immigration Act 1971;
“adjudicator” means an adjudicator designated by section 81 of the Nationality, Immigration and Asylum Act 2002;
“country” includes any territory;
“EEA State” means a State which is a Contracting Party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 as it has effect for the time being;
“the Human Rights Convention” means the Convention for the Protection of Human Rights and Fundamental Freedoms, agreed by the Council of Europe at Rome on 4th November 1950 as it has effect for the time being in relation to the Isle of Man;
“prescribed” means prescribed by regulations made by the Governor;
(2) The following expressions have the same meaning as in the 1971 Act—
“certificate of entitlement”;
“entry clearance”;
“illegal entrant”;
“immigration officer”;
“immigration rules”;
“port”;
“United Kingdom passport”;
“work permit”.
(1) There is to be paid out of money provided by Tynwald—
(a) any expenditure incurred by the Governor in consequence of this Act; and
(b) any increase attributable to this Act in the sums so payable by virtue of any other Act.
(2) Sums received under this Act shall be paid into the General Revenue of the Isle of Man.
(1) This Act may be cited as the Immigration and Asylum Act 1999.
1.—(1) The sale of a transporter requires the leave of the court.
(2) The court is not to give its leave except on proof—
(a) that the penalty is or was due;
(b) that the person liable to pay it or any connected expenses has failed to do so; and
(c) that the transporter which the Governor seeks leave to sell is liable to sale.
2. Before applying for leave to sell a transporter, the Governor must take such steps as may be prescribed—
(a) for bringing the proposed sale to the notice of persons whose interests may be affected by a decision of the court to grant leave; and
(b) for affording to any such person an opportunity of becoming a party to the proceedings if the Governor applies for leave.
2A. Where the owner of a transporter is a party to an application for leave to sell it, in determining whether to give leave the court shall consider—
(a) the extent of any hardship likely to be caused by sale,
(b) the extent (if any) to which the owner is responsible for the matters in respect of which the penalty notice was issued, and
(c) any other matter which appears to the court to be relevant (whether specific to the circumstances of the case or of a general nature).
3. If leave for sale is given, the Governor must secure that the transporter is sold for the best price that can reasonably be obtained.
4. Failure to comply with any requirement of paragraph 2 or 3 in respect of any sale—
(a) is actionable against the Governor at the suit of any person suffering loss in consequence of the sale; but
(b) after the sale has taken place, does not affect its validity.
5.—(1) Any proceeds of sale arising from a sale under section 37 must be applied—
(a) in making prescribed payments; and
(b) in accordance with such provision as to priority of payments as may be prescribed.
(2) The regulations may, in particular, provide for proceeds of sale to be applied in payment—
(a) of customs or excise duty,
(b) of value added tax,
(c) of expenses incurred by the Governor,
(d) of any penalty which the court has found to be due,
(e) in the case of the sale of an aircraft, of charges due as a result of regulations made under section 73 of the Civil Aviation Act 1982,
(f) of any surplus to or among the person or persons whose interests in the transporter have been divested as a result of the sale,
but not necessarily in that order of priority.”
Article 17
(1) The Governor may by regulations make provision for the issue to a person of a certificate that he has the right of abode in the Isle of Man.
(2) The regulations may, in particular—
(a) specify to whom an application must be made;
(b) specify the place (which may be outside the United Kingdom) to which an application must be sent;
(c) provide that an application must be made in a specified form;
(d) provide that an application must be accompanied by specified documents;
(f) specify the consequences of failure to comply with a requirement under any of paragraphs (a) to (d) above;
(g) provide for a certificate to cease to have effect after a period of time specified in or determined in accordance with the regulations;
(h) make provision about the revocation of a certificate.
(3) The regulations may—
(a) make provision which applies generally or only in specified cases or circumstances;
(b) make different provision for different purposes;
(c) include consequential, incidental or transitional provision.
(6) Regulations under this section may, in particular, include provision saving, with or without modification, the effect of a certificate which is issued before the regulations come into force.
(1) A person may be detained under the authority of the Governor pending—
(a) a decision by the Governor whether to give directions in respect of the person under paragraph 10, 10A or 14 of Schedule 2 to the Immigration Act 1971 (control of entry: removal), or
(b) removal of the person from the Isle of Man in pursuance of directions given by the Governor under any of those paragraphs.
(2) Where the Governor is empowered under section 3A of that Act (powers of Governor) to examine a person or to give or refuse a person leave to enter the Isle of Man, the person may be detained under the authority of the Governor pending—
(a) the person’s examination by the Governor,
(b) the Governor’s decision to give or refuse the person leave to enter,
(c) a decision by the Governor whether to give directions in respect of the person under paragraph 8 or 9 of Schedule 2 to that Act (removal), or
(d) removal of the person in pursuance of directions given by the Governor under either of those paragraphs.
(3) A provision of Schedule 2 to that Act about a person who is detained or liable to detention under that Schedule shall apply to a person who is detained or liable to detention under this section: and for that purpose—
(a) a reference to paragraph 16 of that Schedule shall be taken to include a reference to this section,
(b) a reference in paragraph 21 of that Schedule to an immigration officer shall be taken to include a reference to the Governor, and
(c) a reference to detention under that Schedule or under a provision or Part of that Schedule shall be taken to include a reference to detention under this section.
(4) In the case of a restriction imposed under paragraph 21 of that Schedule by virtue of this section—
(a) a restriction imposed by an immigration officer may be varied by the Governor, and
(b) a restriction imposed by the Governor may be varied by an immigration officer.
(5) In subsection (1) the reference to paragraph 10 of that Schedule includes a reference to that paragraph as applied by virtue of section 10 of the Immigration and Asylum Act 1999 (persons unlawfully in Isle of Man: removal).
(6) Subsection (5) is without prejudice to the generality of section 159.
(7) A power under this section which is exercisable pending a decision of a particular kind by the Governor is exercisable where the Governor has reasonable grounds to suspect that he may make a decision of that kind.
(1) This section applies for the purpose of the construction and application of Article 33(2) of the Refugee Convention (exclusion from protection).
(2) A person shall be presumed to have been convicted by a final judgment of a particularly serious crime and to constitute a danger to the community of the Isle of Man if he is—
(a) convicted in the Isle of Man of an offence, and
(b) sentenced to a period of custody of at least two years.
(3) A person shall be presumed to have been convicted by a final judgment of a particularly serious crime and to constitute a danger to the community of the Isle of Man if—
(a) he is convicted outside the Isle of Man of an offence,
(b) he is sentenced to a period of custody of at least two years, and
(c) he could have been sentenced to a period of custody of at least two years had his conviction been a conviction in the Isle of Man of a similar offence.
(4) A person shall be presumed to have been convicted by a final judgment of a particularly serious crime and to constitute a danger to the community of the Isle of Man if—
(a) he is convicted of an offence specified by order of the Governor, or
(b) he is convicted outside the Isle of Man of an offence and the Governor certifies that in his opinion the offence is similar to an offence specified by order under paragraph (a).
(6) A presumption under subsection (2), (3) or (4) that a person constitutes a danger to the community is rebuttable by that person.
(7) A presumption under subsection (2), (3) or (4) does not apply while an appeal against conviction or sentence—
(a) is pending, or
(b) could be brought (disregarding the possibility of appeal out of time with leave).
(9) Subsection (10) applies where—
(a) a person appeals under section 82 of this Act wholly or partly on the ground that to remove him from or to require him to leave the Isle of Man would breach the United Kingdom’s obligations under the Refugee Convention, and
(b) the Governor issues a certificate that presumptions under subsection (2), (3) or (4) apply to the person (subject to rebuttal).
(10) The adjudicator hearing the appeal—
(a) must begin substantive deliberation on the appeal by considering the certificate, and
(b) if in agreement that presumptions under subsection (2), (3) or (4) apply (having given the appellant an opportunity for rebuttal) must dismiss the appeal in so far as it relies on the ground specified in subsection (9)(a).
(11) For the purposes of this section—
(a) “the Refugee Convention” means the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and its Protocol, and
(b) a reference to a person who is sentenced to a period of custody of at least two years—
(i) does not include a reference to a person who receives a suspended sentence (unless at least two years of the sentence are not suspended),
(ii) 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), and
(iii) includes a reference to a person who is sentenced to custody or detention, or ordered or directed to be detained, for an indeterminate period (provided that it may last for two years).
(1) The Governor may revoke a person’s indefinite leave to enter or remain in the Isle of Man if the person—
(a) is liable to deportation, but
(b) cannot be deported for legal reasons.
(2) The Governor may revoke a person’s indefinite leave to enter or remain in the Isle of Man if—
(a) the leave was obtained by deception,
(b) the person would be liable to removal because of the deception, but
(c) the person cannot be removed for legal or practical reasons.
(3) The Governor may revoke a person’s indefinite leave to enter or remain in the Isle of Man if the person, or someone of whom he is a dependant, ceases to be a refugee as a result of—
(a) voluntarily availing himself of the protection of his country of nationality,
(b) voluntarily re-acquiring a lost nationality,
(c) acquiring the nationality of a country other than the United Kingdom and availing himself of its protection, or
(d) voluntarily establishing himself in a country in respect of which he was a refugee.
(4) In this section—
“indefinite leave” has the meaning given by section 33(1) of the Immigration Act 1971 (interpretation),
“liable to deportation” has the meaning given by section 3(5) and (6) of that Act (deportation),
“refugee” has the meaning given by the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and its Protocol, and
“removed” means removed from the Isle of Man under—
paragraph 9 or 10 of Schedule 2 to the Immigration Act 1971 (control of entry: directions for removal), or
section 10(1)(b) of the Immigration and Asylum Act 1999 (removal of persons unlawfully in Isle of Man: deception).
(5) A power under subsection (1) or (2) to revoke leave may be exercised—
(a) in respect of leave granted before this section comes into force;
(b) in reliance on anything done before this section comes into force.
(6) A power under subsection (3) to revoke leave may be exercised—
(a) in respect of leave granted before this section comes into force, but
(b) only in reliance on action taken after this section comes into force.
(1) While a person’s appeal under section 82(1) is pending he may not be—
(a) removed from the Isle of Man in accordance with a provision of the Immigration Acts, or
(b) required to leave the Isle of Man in accordance with a provision of the Immigration Acts.
(2) In this section “pending” has the meaning given by section 104.
(3) Nothing in this section shall prevent any of the following while an appeal is pending—
(a) the giving of a direction for the appellant’s removal from the Isle of Man,
(b) the making of a deportation order in respect of the appellant (subject to section 79), or
(c) the taking of any other interim or preparatory action.
(4) This section applies only to an appeal brought while the appellant is in the Isle of Man in accordance with section 92.
(1) A deportation order may not be made in respect of a person while an appeal under section 82(1) against the decision to make the order—
(a) could be brought (ignoring any possibility of an appeal out of time with permission), or
(b) is pending.
(2) In this section “pending” has the meaning given by section 104.
The High Bailiff and any Deputy High Bailiff shall be adjudicators for the purposes of this Part.
(1) Where an immigration decision is made in respect of a person he may appeal to an adjudicator.
(2) In this Part “immigration decision” means—
(a) refusal of leave to enter the Isle of Man,
(b) refusal of entry clearance,
(c) refusal of a certificate of entitlement under section 10 of this Act,
(d) refusal to vary a person’s leave to enter or remain in the Isle of Man if the result of the refusal is that the person has no leave to enter or remain,
(e) variation of a person’s leave to enter or remain in the Isle of Man if when the variation takes effect the person has no leave to enter or remain,
(f) revocation under section 76 of this Act of indefinite leave to enter or remain in the Isle of Man,
(g) a decision that a person is to be removed from the Isle of Man by way of directions under section 10(1)(a), (b), (ba) or (c) of the Immigration and Asylum Act 1999 (removal of person unlawfully in Isle of Man),
(h) a decision that an illegal entrant is to be removed from the Isle of Man by way of directions under paragraphs 8 to 10 of Schedule 2 to the Immigration Act 1971 (control of entry: removal),
(i) a decision that a person is to be removed from the Isle of Man by way of directions given by virtue of paragraph 10A of that Schedule (family),
(ia) a decision that a person is to be removed from the Isle of Man by way of directions under paragraph 12(2) of Schedule 2 to the Immigration Act 1971 (seamen and aircrews),
(ib) a decision to make an order under section 2A of that Act (deprivation of right of abode),
(j) a decision to make a deportation order under section 5(1) of that Act, and
(k) refusal to revoke a deportation order under section 5(2) of that Act.
(4) The right of appeal under subsection (1) is subject to the exceptions and limitations specified in this Part.
(1) An appeal under section 82(1) against an immigration decision must be brought on one or more of the following grounds—
(a) that the decision is not in accordance with immigration rules;
(b) that the decision is unlawful by virtue of section 1 or 2 of the Race Relations Act 2004 (an Act of Tynwald) (public authorities: general statutory duty);
(c) that the decision is unlawful under section 6 of the Human Rights Act 2001 (an Act of Tynwald) (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant’s Convention rights;
(d) that the appellant is an EEA national or a member of the family of an EEA national and the decision breaches the appellant’s rights under the Community Treaties in respect of entry to or residence in the Isle of Man;
(e) that the decision is otherwise not in accordance with the law;
(f) that the person taking the decision should have exercised differently a discretion conferred by immigration rules;
(g) that removal of the appellant from the Isle of Man in consequence of the immigration decision would breach the United Kingdom’s obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 2001 (an Act of Tynwald) as being incompatible with the appellant’s Convention rights.
(2) In subsection (1)(d) “EEA national” means a national of a State which is a contracting party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 (as it has effect from time to time).
(1) An appeal under section 82(1) against a decision shall be treated by the adjudicator as including an appeal against any decision in respect of which the appellant has a right of appeal under section 82(1).
(2) If an appellant under section 82(1) makes a statement under section 120, the adjudicator shall consider any matter raised in the statement which constitutes a ground of appeal of a kind listed in section 84(1) against the decision appealed against.
(3) Subsection (2) applies to a statement made under section 120 whether the statement was made before or after the appeal was commenced.
(4) On an appeal under section 82(1) against a decision an adjudicator may consider evidence about any matter which he thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision.
(5) But in relation to an appeal under section 82(1) against refusal of entry clearance or refusal of a certificate of entitlement under section 10—
(a) subsection (4) shall not apply, and
(b) the adjudicator may consider only the circumstances appertaining at the time of the decision to refuse.
(1) This section applies on an appeal under section 82(1).
(2) The adjudicator must determine—
(a) any matter raised as a ground of appeal (whether or not by virtue of section 85(1)), and
(b) any matter which section 85 requires him to consider.
(3) The adjudicator must allow the appeal in so far as he thinks that—
(a) a decision against which the appeal is brought or is treated as being brought was not in accordance with the law (including immigration rules), or
(b) a discretion exercised in making a decision against which the appeal is brought or is treated as being brought should have been exercised differently.
(4) For the purposes of subsection (3) a decision that a person should be removed from the Isle of Man under a provision shall not be regarded as unlawful if it could have been lawfully made by reference to removal under another provision.
(5) In so far as subsection (3) does not apply, the adjudicator shall dismiss the appeal.
(6) Refusal to depart from or to authorise departure from immigration rules is not the exercise of a discretion for the purposes of subsection (3)(b).
(1) If an adjudicator allows an appeal under section 82 he may give a direction for the purpose of giving effect to his decision.
(2) A person responsible for making an immigration decision shall act in accordance with any relevant direction under subsection (1).
(1) This section applies to an immigration decision of a kind referred to in section 82(2)(a), (b), (d) or (e).
(2) A person may not appeal under section 82(1) against an immigration decision which is taken on the grounds that he or a person of whom he is a dependant—
(a) does not satisfy a requirement as to age, nationality or citizenship specified in immigration rules,
(b) does not have an immigration document of a particular kind (or any immigration document),
(ba) has failed to supply a medical report or a medical certificate in accordance with a requirement of immigration rules,
(c) is seeking to be in the Isle of Man for a period greater than that permitted in his case by immigration rules, or
(d) is seeking to enter or remain in the Isle of Man for a purpose other than one for which entry or remaining is permitted in accordance with immigration rules.
(3) In subsection (2)(b) “immigration document” means—
(a) entry clearance,
(b) a passport,
(c) an immigration employment document, and
(d) a document which relates to a national of a country other than the United Kingdom and which is designed to serve the same purpose as a passport.
(4) Subsection (2) does not prevent the bringing of an appeal on any or all of the grounds referred to in section 84(1)(b), (c) and (g).
(5) In subsection (3)(c), “immigration employment document” means—
(a) a work permit, and
(b) any other document which relates to employment and is issued for a purpose of immigration rules or in connection with leave to enter or remain in the Isle of Man.
(1) A person may not appeal under section 82(1) against refusal of entry clearance if the decision to refuse is taken on grounds which—
(a) relate to a provision of immigration rules, and
(b) are specified for the purpose of this section by order of the Governor.
(2) Subsection (1)—
(a) does not prevent the bringing of an appeal on either or both of the grounds referred to in section 84(1)(b) and (c), and
(b) is without prejudice to the effect of section 88 in relation to an appeal under section 82(1) against refusal of entry clearance.
(1) A person may not appeal under section 82(1) against refusal of leave to enter the Isle of Man unless—
(a) on his arrival in the Isle of Man he had entry clearance, and
(b) the purpose of entry specified in the entry clearance is the same as that specified in his application for leave to enter.
(2) Subsection (1) does not prevent the bringing of an appeal on any or all of the grounds referred to in section 84(1)(b), (c) and (g).
(1) A person who applies for entry clearance for the purpose of entering the Isle of Man as a visitor may appeal under section 82(1) against refusal of entry clearance only if the application was made for the purpose of visiting a member of the applicant’s family.