Nationality, Immigration and Asylum Act 2002

• (c) provide that arrangements must be made in a specified manner or in accordance with specified principles;

• (d) provide that arrangements may not be made in a specified manner;

• (e) require a local authority or another person to have regard to guidance issued by the Secretary of State in making arrangements;

• (f) require a local authority or another person to comply with a direction of the Secretary of State in making arrangements.

12

• (1) Regulations may, in particular, provide that if a person refuses an offer of arrangements under paragraph 8 or fails to implement or cooperate with arrangements made for him under that paragraph—

• (a) new arrangements may be made for him under paragraph 8, but

• (b) new arrangements may not be made for him under paragraph 9.

• (2) Regulations by virtue of this paragraph may include exceptions in the case of a person who—

• (a) has a reason of a kind specified in the regulations for failing to implement or cooperate with arrangements made under paragraph 8, and

• (b) satisfies any requirements of the regulations for proof of the reason.

Offences

13

• (1) A person who leaves the United Kingdom in accordance with arrangements made under paragraph 8 commits an offence if he—

• (a) returns to the United Kingdom, and

• (b) requests that arrangements be made for him by virtue of paragraph 8, 9 or 10.

• (2) A person commits an offence if he—

• (a) requests that arrangements be made for him by virtue of paragraph 8, 9 or 10, and

• (b) fails to mention a previous request by him for the making of arrangements under any of those paragraphs.

• (3) A person who is guilty of an offence under this paragraph shall be liable on summary conviction to imprisonment for a term not exceeding six months.

Information

14

• (1) If it appears to a local authority that paragraph 1 applies or may apply to a person in the authority’s area by virtue of paragraph 6, 7 or 7A , the authority must inform the Secretary of State.

• (2) A local authority shall act in accordance with any relevant guidance issued by the Secretary of State for the purpose of determining whether paragraph 1 applies or may apply to a person in the authority’s area by virtue of paragraph 6, 7 or 7A .

Power to amend Schedule

15

The Secretary of State may by order amend this Schedule so as—

• (a) to provide for paragraph 1 to apply or not to apply to a class of person;

• (b) to add or remove a provision to or from the list in paragraph 1(1);

• (c) to add, amend or remove a limitation of or exception to paragraph 1.

Orders and regulations

16

• (1) An order or regulations under this Schedule must be made by statutory instrument.

• (2) An order or regulations under this Schedule may—

• (a) make provision which applies generally or only in specified cases or circumstances or only for specified purposes;

• (b) make different provision for different cases, circumstances or purposes;

• (c) make transitional provision;

• (d) make consequential provision (which may include provision amending a provision made by or under this or another Act).

• (3) An order under this Schedule, regulations under paragraph 2(1)(d) or (e) or other regulations which include consequential provision amending an enactment shall not be made unless a draft has been laid before and approved by resolution of each House of Parliament.

• (4) Regulations under this Schedule to which sub-paragraph (3) does not apply shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Interpretation

17

• (1) In this Schedule—

• “asylum-seeker” means a person—who is at least 18 years old,who has made a claim for asylum (within the meaning of section 18(3)), andwhose claim has been recorded by the Secretary of State but not determined,

• “Convention rights” has the same meaning as in the Human Rights Act 1998 (c. 42),

• “child” means a person under the age of eighteen,

• “dependant” and “dependent” shall have such meanings as may be prescribed by regulations made by the Secretary of State,

• “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 from time to time),

• “local authority”—in relation to England and Wales, has the same meaning as in section 129(3),in relation to Scotland, has the same meaning as in section 129(4), andin relation to Northern Ireland, means a health service body within the meaning of section 133(4)(d) and the Northern Ireland Housing Executive (for which purpose a reference to the authority’s area shall be taken as a reference to Northern Ireland),

• “the Refugee Convention” means the Convention relating to the status of Refugees done at Geneva on 28th July 1951 and its Protocol, and

• “removal directions” means directions under Schedule 2 to the Immigration Act 1971 (c. 77) (control of entry, &c.), under Schedule 3 to that Act (deportation) or under section 10 of the Immigration and Asylum Act 1999 (c. 33) (removal of person unlawfully in United Kingdom).

• (2) For the purpose of the definition of “asylum-seeker” in sub-paragraph (1) a claim is determined if—

• (a) the Secretary of State has notified the claimant of his decision,

• (b) no appeal against the decision can be brought (disregarding the possibility of an appeal out of time with permission), and

• (c) any appeal which has already been brought has been disposed of.

• (2A) For the purposes of the definition of “asylum-seeker” in sub-paragraph (1), a claim is also determined if the Secretary of State has notified the claimant that it has been declared inadmissible under section 80A or 80B.

• (2B) But if a claim is—

• (a) declared inadmissible under section 80B, and

• (b) nevertheless considered by the Secretary of State in accordance subsection (7) of that section,

the claim ceases to be treated as determined from the time of the decision to consider the claim.

• (3) For the purpose of sub-paragraph (2)(c) an appeal is disposed of when it is no longer pending for the purpose of—

• (a) Part 5 of this Act, or

• (b) the Special Immigration Appeals Commission Act 1997 (c. 68).

• (4) The giving of directions in respect of a person under a provision of the Immigration Acts is not the provision of assistance to him for the purposes of this Schedule.

Schedule 4

Term of office

1

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Proceedings

2

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Staff

5

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Money

6

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

7

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

SCHEDULE 5

Membership

1

The Lord Chancellor shall appoint the members of the Tribunal.

2

• (1) A member—

• (a) may resign by notice in writing to the Lord Chancellor,

• (b) shall cease to be a member on reaching the age of 70, and

• (c) otherwise, shall hold and vacate office in accordance with the terms of his appointment.

• (2) Sub-paragraph (1)(b) is subject to section 26(4) to (6) of the Judicial Pensions and Retirement Act 1993 (c. 8) (extension to age 75).

Presidency

3

The Lord Chancellor shall appoint as President of the Tribunal a member who holds or has held high judicial office within the meaning of the Appellate Jurisdiction Act 1876 (c. 59).

4

• (1) The Lord Chancellor shall appoint one legally qualified member of the Tribunal as its Deputy President.

• (2) The Deputy President—

• (a) may act for the President if the President is unable to act or unavailable, and

• (b) shall perform such functions as the President may delegate or assign to him.

Proceedings

5

The Tribunal shall sit at times and places determined by the Lord Chancellor.

6

The Tribunal may sit in more than one division.

7

• (1) The jurisdiction of the Tribunal may be exercised by such number of its members as the President may direct.

• (2) A direction under this sub-paragraph—

• (a) may relate to specified proceedings or proceedings of a specified kind,

• (b) may enable jurisdiction to be exercised by a single member,

• (c) may require the member hearing proceedings, or a specified number of the members hearing proceedings, to be legally qualified, and

• (d) may be varied or revoked by a further direction.

Staff

8

The Lord Chancellor may appoint staff for the Tribunal.

Money

9

The Lord Chancellor—

• (a) may pay remuneration and allowances to members of the Tribunal,

• (b) may pay remuneration and allowances to staff of the Tribunal, and

• (c) may defray expenses of the Tribunal.

10

The Lord Chancellor may pay compensation to a person who ceases to be a member of the Tribunal if the Lord Chancellor thinks it appropriate because of special circumstances.

Interpretation: legally qualified member

11

• (1) For the purpose of this Schedule a member of the Tribunal is legally qualified if he—

• (a) has a seven year general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990 (c. 41),

• (b) is an advocate or solicitor in Scotland of at least seven years’ standing,

• (c) is a member of the Bar of Northern Ireland, or a solicitor of the Court of Judicature of Northern Ireland , of at least seven years’ standing, or

• (d) is appointed by the Lord Chancellor as a legally qualified member.

• (2) A person may be appointed by the Lord Chancellor under sub-paragraph (1)(d) only if he has legal or other experience which in the Lord Chancellor’s opinion makes him suitable for appointment as a legally qualified member.

SCHEDULE 6

“Commencement”

1

In this Schedule “commencement” means the coming into force of Part 5 of this Act.

Adjudicator

2

Where a person is an adjudicator under section 57 of the Immigration and Asylum Act 1999 (c. 33) immediately before commencement his appointment shall have effect after commencement as if made under section 81 of this Act.

Tribunal

3

• (1) Where a person is a member of the Immigration Appeal Tribunal immediately before commencement his appointment shall have effect after commencement as if made under Schedule 5.

• (2) Where a person is a member of staff of the Immigration Appeal Tribunal immediately before commencement his appointment shall have effect after commencement as if made under Schedule 5.

Earlier appeal

4

In the application of section 96—

• (a) a reference to an appeal or right of appeal under a provision of this Act includes a reference to an appeal or right of appeal under the Immigration and Asylum Act 1999,

• (b) a reference to a requirement imposed under this Act includes a reference to a requirement of a similar nature imposed under that Act,

• (c) a reference to a statement made in pursuance of a requirement imposed under a provision of this Act includes a reference to anything done in compliance with a requirement of a similar nature under that Act, and

• (d) a reference to notification by virtue of this Act includes a reference to notification by virtue of any other enactment.

Saving

5

• (1) This Schedule is without prejudice to the power to include transitional provision in an order under section 162.

• (2) An order under that section may, in particular, provide for a reference to a provision of Part 5 of this Act to be treated as being or including a reference (with or without modification) to a provision of the Immigration and Asylum Act 1999 (c. 33).

SCHEDULE 7

Immigration Act 1971 (c. 77)

1

In section 33(4) of the Immigration Act 1971 (c. 77) (pending appeal: interpretation) for paragraphs (a) and (b) substitute “in accordance with section 104 of the Nationality, Immigration and Asylum Act 2002 (pending appeals)”.

2

In paragraph 2A(9) of Schedule 2 to that Act (control of entry: person with continuing leave) for “Part IV of the Immigration and Asylum Act 1999” substitute “ Part 5 of the Nationality, Immigration and Asylum Act 2002 (immigration and asylum appeals) ”.

3

In paragraph 4(4) of that Schedule (examination and detention of documents) for “an appeal under this Act” substitute “ an appeal under the Nationality, Immigration and Asylum Act 2002 ”.

4

In paragraph 8(2) of that Schedule (time within which directions may be given) after “United Kingdom” insert “ (ignoring any period during which an appeal by him under the Immigration Acts is pending) ”.

5

In paragraph 25 of that Schedule (rules) for “section 22 of this Act” substitute “ section 106 of the Nationality, Immigration and Asylum Act 2002 (appeals) ”.

6

In paragraph 29 of that Schedule (bail pending appeal)—

• (a) in sub-paragraph (1), for the words from “section” to “1999” substitute “ Part 5 of the Nationality, Immigration and Asylum Act 2002 ”, and

• (b) for the words “Appeal Tribunal” substitute, in each place, “ Immigration Appeal Tribunal ”.

7

In paragraph 2(2) of Schedule 3 to that Act (deportation) for “section 18 of this Act” substitute “ section 105 of the Nationality, Immigration and Asylum Act 2002 (notice of decision) ”.

8

For paragraph 3 of that Schedule (deportation: effect of appeal) substitute—

(3) So far as they relate to an appeal under section 82(1) of the Nationality, Immigration and Asylum Act 2002 against a decision of the kind referred to in section 82(2)(j) or (k) of that Act (decision to make deportation order and refusal to revoke deportation order), paragraphs 29 to 33 of Schedule 2 to this Act shall apply for the purposes of this Schedule as if the reference in paragraph 29(1) to Part I of that Schedule were a reference to this Schedule.

House of Commons Disqualification Act 1975 (c. 24)

9

In Part III of Schedule 1 to the House of Commons Disqualification Act 1975 (disqualifying offices) for “Adjudicator appointed for the purposes of the Immigration and Asylum Act 1999.” substitute “ Adjudicator appointed for the purposes of Part 5 of the Nationality, Immigration and Asylum Act 2002. ”.

Northern Ireland Assembly Disqualification Act 1975 (c. 25)

10

In Part III of Schedule 1 to the Northern Ireland Assembly Disqualification Act 1975 (disqualifying offices) for “Adjudicator appointed for the purposes of the Immigration and Asylum Act 1999.” substitute “ Adjudicator appointed for the purposes of Part 5 of the Nationality, Immigration and Asylum Act 2002. ”.

Race Relations Act 1976 (c. 74)

11

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

12

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

13

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

14

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

15

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Courts and Legal Services Act 1990 (c. 41)

16

In Schedule 11 to the Courts and Legal Services Act 1990 (judges &c. barred from legal practice) for “Adjudicator for the purposes of the Immigration and Asylum Act 1999 (other than Asylum Support Adjudicator)” substitute “ Adjudicator appointed for the purposes of Part 5 of the Nationality, Immigration and Asylum Act 2002 ”.

Tribunals and Inquiries Act 1992 (c. 53)

17

In paragraph 22 of Schedule 1 to the Tribunals and Inquiries Act 1992 (tribunals under the supervision of the Council on Tribunals)—

• (a) in sub-paragraph (a), for “section 57 of the Immigration and Asylum Act 1999” substitute “ section 81 of the Nationality, Immigration and Asylum Act 2002 ”, and

• (b) in sub-paragraph (b), for “section 56 of that Act” substitute “ section 100 of that Act ”.

Judicial Pensions and Retirement Act 1993 (c. 8)

18

In Part II of Schedule 1 to the Judicial Pensions and Retirement Act 1993 (offices which may be qualifying judicial offices) for “Adjudicator for the purposes of the Immigration and Asylum Act 1999 (other than Asylum Support Adjudicator)” substitute “Adjudicator appointed for the purposes of Part 5 of the Nationality, Immigration and Asylum Act 2002”.

19

In Schedule 5 to that Act (retirement provisions: the relevant offices) for “Adjudicator for the purposes of the Immigration and Asylum Act 1999 (other than Asylum Support Adjudicator)” substitute “Adjudicator appointed for the purposes of Part 5 of the Nationality, Immigration and Asylum Act 2002”.

Special Immigration Appeals Commission Act 1997 (c. 68)

20

The following shall be substituted for section 2 of the Special Immigration Appeals Commission Act 1997 (jurisdiction: appeals)—

(2) (1) A person may appeal to the Special Immigration Appeals Commission against a decision if— (a) he would be able to appeal against the decision under section 82(1) or 83(2) of the Nationality, Immigration and Asylum Act 2002 but for a certificate of the Secretary of State under section 97 of that Act (national security, &c.), or (b) an appeal against the decision under section 82(1) or 83(2) of that Act lapsed under section 99 of that Act by virtue of a certificate of the Secretary of State under section 97 of that Act. (2) The following provisions shall apply, with any necessary modifications, in relation to an appeal against an immigration decision under this section as they apply in relation to an appeal under section 82(1) of the Nationality, Immigration and Asylum Act 2002— (a) section 3C of the Immigration Act 1971 (c. 77) (continuation of leave pending variation decision), (b) section 78 of the Nationality, Immigration and Asylum Act 2002 (no removal while appeal pending), (c) section 79 of that Act (deportation order: appeal), (d) section 82(3) of that Act (variation or revocation of leave to enter or remain: appeal), (e) section 84 of that Act (grounds of appeal), (f) section 85 of that Act (matters to be considered), (g) section 86 of that Act (determination of appeal), (h) section 87 of that Act (successful appeal: direction), (i) section 96 of that Act (earlier right of appeal), (j) section 104 of that Act (pending appeal), (k) section 105 of that Act (notice of immigration decision), and (l) section 110 of that Act (grants). (3) The following provisions shall apply, with any necessary modifications, in relation to an appeal against the rejection of a claim for asylum under this section as they apply in relation to an appeal under section 83(2) of the Nationality, Immigration and Asylum Act 2002— (a) section 85(4) of that Act (matters to be considered), (b) section 86 of that Act (determination of appeal), (c) section 87 of that Act (successful appeal: direction), and (d) section 110 of that Act (grants). (4) An appeal against the rejection of a claim for asylum under this section shall be treated as abandoned if the appellant leaves the United Kingdom. (5) A person may bring or continue an appeal against an immigration decision under this section while he is in the United Kingdom only if he would be able to bring or continue the appeal while he was in the United Kingdom if it were an appeal under section 82(1) of that Act. (6) In this section “immigration decision” has the meaning given by section 82(2) of the Nationality, Immigration and Asylum Act 2002.

21

Section 2A of that Act (human rights) shall cease to have effect.

22

Section 4 of that Act (determination of appeals) shall cease to have effect.

23

In section 5 of that Act (procedure)—

• (a) in subsections (1)(a) and (b) and (2) omit “or 2A”, and

• (b) after subsection (2) insert—

(2A) Rules under this section may, in particular, do anything which may be done by rules under section 106 of the Nationality, Immigration and Asylum Act 2002 (appeals: rules).

24

Section 7A of that Act (pending appeals) shall cease to have effect.

25

In paragraph 5 of Schedule 1 to that Act—

• (a) in sub-paragraph (b)(i), for “section 57(2) of the Immigration and Asylum Act 1999” substitute “ section 81(3)(a) of the Nationality, Immigration and Asylum Act 2002 ”, and

• (b) in sub-paragraph (b)(ii), for “paragraph 1(3) of Schedule 2” substitute “ paragraph 11 of Schedule 5 ”.

26

Schedule 2 to that Act shall cease to have effect.

Immigration and Asylum Act 1999 (c. 33)

27

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

28

In section 53(4) of that Act (bail) for “this Act” there shall be substituted “ the Nationality, Immigration and Asylum Act 2002 ”.

29

• (1) Paragraph 9 of Schedule 4 to that Act (appeals: procedure: Convention cases) shall be amended as follows—

• (a) in sub-paragraph (1)(a), omit “(4), (5)”, and

• (b) omit sub-paragraphs (4) and (5).

• (2) This paragraph is without prejudice to—

• (a) the effect after commencement of this paragraph of a certificate issued before commencement, or

• (b) the power of the Secretary of State after the commencement of this paragraph to issue a certificate in respect of a claim made before commencement.

Anti-terrorism, Crime and Security Act 2001 (c. 24)

30

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Proceeds of Crime Act 2002 (c. 29)

31

The following shall be substituted for paragraph 4 of Schedule 2 to the Proceeds of Crime Act 2002 (lifestyle offences: England and Wales: people trafficking)—

(4) (1) An offence under section 25, 25A or 25B of the Immigration Act 1971 (c. 77) (assisting unlawful immigration etc.). (2) An offence under section 145 of the Nationality, Immigration and Asylum Act 2002 (traffic in prostitution).

32

In paragraph 4 of Schedule 4 to that Act (lifestyle offences: Scotland: people trafficking) for “section 25(1) of the Immigration Act 1971 (assisting illegal entry etc.)” there shall be substituted “ section 25, 25A or 25B of the Immigration Act 1971 (assisting unlawful immigration etc.) ”.

33

The following shall be substituted for paragraph 4 of Schedule 5 to that Act (lifestyle offences: Northern Ireland: people trafficking)—

(4) (1) An offence under section 25, 25A or 25B of the Immigration Act 1971 (assisting unlawful immigration etc.). (2) An offence under section 145 of the Nationality, Immigration and Asylum Act 2002 (traffic in prostitution).

SCHEDULE 8

1

The Immigration and Asylum Act 1999 (c. 33) shall be amended as follows.

2

• (1) Section 32 (penalty for carrying clandestine entrant) shall be amended as follows.

• (2) After subsection (1)(a) insert—

(aa) he arrives in the United Kingdom concealed in a rail freight wagon,

.

• (3) For subsection (2) substitute—

(2) The Secretary of State may require a person who is responsible for a clandestine entrant to pay— (a) a penalty in respect of the clandestine entrant; (b) a penalty in respect of any person who was concealed with the clandestine entrant in the same transporter. (2A) In imposing a penalty under subsection (2) the Secretary of State— (a) must specify an amount which does not exceed the maximum prescribed for the purpose of this paragraph, (b) may, in respect of a clandestine entrant or a concealed person, impose separate penalties on more than one of the persons responsible for the clandestine entrant, and (c) may not impose penalties in respect of a clandestine entrant or a concealed person which amount in aggregate to more than the maximum prescribed for the purpose of this paragraph.

• (4) For subsection (4) substitute—

(4) Where a penalty is imposed under subsection (2) on the driver of a vehicle who is an employee of the vehicle’s owner or hirer— (a) the employee and the employer shall be jointly and severally liable for the penalty imposed on the driver (irrespective of whether a penalty is also imposed on the employer), and (b) a provision of this Part about notification, objection or appeal shall have effect as if the penalty imposed on the driver were also imposed on the employer (irrespective of whether a penalty is also imposed on the employer in his capacity as the owner or hirer of the vehicle). (4A) In the case of a detached trailer, subsection (4) shall have effect as if a reference to the driver were a reference to the operator.

• (5) In subsection (5)—

• (a) in paragraph (a) for the second “or” substitute “ and ”, and

• (b) in paragraphs (b) and (c) for “or” substitute “ and ”.

• (6) After subsection (5) insert—

(5A) In the case of a clandestine entrant to whom subsection (1)(aa) applies, the responsible person is— (a) where the entrant arrived concealed in a freight train, the train operator who, at the train’s last scheduled stop before arrival in the United Kingdom, was responsible for certifying it as fit to travel to the United Kingdom, or (b) where the entrant arrived concealed in a freight shuttle wagon, the operator of the shuttle-train of which the wagon formed part.

• (7) In subsection (6)(a) and (b) for “or” substitute “ and ”.

• (8) After subsection (6) insert—

(6A) Where a person falls within the definition of responsible person in more than one capacity, a separate penalty may be imposed on him under subsection (2) in respect of each capacity.

3

After section 32 insert—

(32A) (1) The Secretary of State shall issue a code of practice specifying matters to be considered in determining the amount of a penalty under section 32. (2) The Secretary of State shall have regard to the code (in addition to any other matters he thinks relevant)— (a) when imposing a penalty under section 32, and (b) when considering a notice of objection under section 35(4). (3) Before issuing the code the Secretary of State shall lay a draft before Parliament. (4) After laying the draft code before Parliament the Secretary of State may bring the code into operation by order. (5) The Secretary of State may from time to time revise the whole or any part of the code and issue the code as revised. (6) Subsections (3) and (4) also apply to a revision or proposed revision of the code.

4

The heading of section 33 (code of practice) becomes “ Prevention of clandestine entrants: code of practice ”.

5

In section 33(2)(b) omit “both Houses of”.

6

• (1) Section 34 (defence) shall be amended as follows.

• (2) For subsection (1) substitute—

(1) A person (“the carrier”) shall not be liable to the imposition of a penalty under section 32(2) if he has a defence under this section.

• (3) In subsection (3)(c) omit the first “that”.

• (4) After subsection (3) insert—

(3A) It is also a defence for the carrier to show that— (a) he knew or suspected that a clandestine entrant was or might be concealed in a rail freight wagon, having boarded after the wagon began its journey to the United Kingdom; (b) he could not stop the train or shuttle-train of which the wagon formed part without endangering safety; (c) an effective system for preventing the carriage of clandestine entrants was in operation in relation to the train or shuttle-train; and (d) on the occasion in question the person or persons responsible for operating the system did so properly.

• (5) Omit subsection (5).

• (6) For subsection (6) substitute—

(6) Where a person has a defence under subsection (2) in respect of a clandestine entrant, every other responsible person in respect of the clandestine entrant is also entitled to the benefit of the defence.

7

• (1) Section 35 (notification and objection) shall be amended as follows.

• (2) In subsection (2)(d)(i) for “must” substitute “ may ”.

• (3) For subsections (3) to (8) substitute—

(3) Subsection (4) applies where a person to whom a penalty notice is issued objects on the ground that— (a) he is not liable to the imposition of a penalty, or (b) the amount of the penalty is too high. (4) The person may give a notice of objection to the Secretary of State. (5) A notice of objection must— (a) be in writing, (b) give the objector’s reasons, and (c) be given before the end of such period as may be prescribed. (6) Where the Secretary of State receives a notice of objection to a penalty in accordance with this section he shall consider it and— (a) cancel the penalty, (b) reduce the penalty, (c) increase the penalty, or (d) determine to take no action under paragraphs (a) to (c). (7) Where the Secretary of State considers a notice of objection under subsection (6) he shall— (a) inform the objector of his decision before the end of such period as may be prescribed or such longer period as he may agree with the objector, (b) if he increases the penalty, issue a new penalty notice under subsection (1), and (c) if he reduces the penalty, notify the objector of the reduced amount.

• (4) In subsection (9)—

• (a) for the first “served” substitute “ issued ”, and

• (b) for “served on” substitute “ issued to ”.

• (5) At the end add—

(11) In proceedings for enforcement of a penalty under subsection (10) no question may be raised as to— (a) liability to the imposition of the penalty, or (b) its amount. (12) A document which is to be issued to or served on a person outside the United Kingdom for the purpose of subsection (1) or (7) or in the course of proceedings under subsection (10) may be issued or served— (a) in person, (b) by post, (c) by facsimile transmission, or (d) in another prescribed manner. (13) The Secretary of State may by regulations provide that a document issued or served in a manner listed in subsection (12) in accordance with the regulations is to be taken to have been received at a time specified by or determined in accordance with the regulations.

8

After section 35 insert—

(35A) (1) A person may appeal to the court against a penalty imposed on him under section 32 on the ground that— (a) he is not liable to the imposition of a penalty, or (b) the amount of the penalty is too high. (2) On an appeal under this section the court may— (a) allow the appeal and cancel the penalty, (b) allow the appeal and reduce the penalty, or (c) dismiss the appeal. (3) An appeal under this section shall be a re-hearing of the Secretary of State’s decision to impose a penalty and shall be determined having regard to— (a) any code of practice under section 32A which has effect at the time of the appeal, (b) the code of practice under section 33 which had effect at the time of the events to which the penalty relates, and (c) any other matters which the court thinks relevant (which may include matters of which the Secretary of State was unaware). (4) Subsection (3) has effect despite any provision of Civil Procedure Rules. (5) An appeal may be brought by a person under this section against a penalty whether or not— (a) he has given notice of objection under section 35(4); (b) the penalty has been increased or reduced under section 35(6).

9

• (1) Section 36 (detention of vehicle) shall be amended as follows.

• (2) In subsection (1)—

• (a) for “given” substitute “ issued ”,

• (b) after paragraph (b) omit “or”, and

• (c) after paragraph (c) insert

or (d) rail freight wagon,

.

• (3) After subsection (2) insert—

(2A) A vehicle may be detained under subsection (1) only if— (a) the driver of the vehicle is an employee of its owner or hirer, (b) the driver of the vehicle is its owner or hirer, or (c) a penalty notice is issued to the owner or hirer of the vehicle. (2B) A senior officer may detain a relevant vehicle, small ship, small aircraft or rail freight wagon pending— (a) a decision whether to issue a penalty notice, (b) the issue of a penalty notice, or (c) a decision whether to detain under subsection (1). (2C) That power may not be exercised in any case— (a) for longer than is necessary in the circumstances of the case, or (b) after the expiry of the period of 24 hours beginning with the conclusion of the first search of the vehicle, ship, aircraft or wagon by an immigration officer after it arrived in the United Kingdom.

10

After section 36 insert—

(36A) (1) This section applies where a person to whom a penalty notice has been issued under section 35 fails to pay the penalty before the date specified in accordance with section 35(2)(c). (2) The Secretary of State may make arrangements for the detention of any vehicle, small ship, small aircraft or rail freight wagon which the person to whom the penalty notice was issued uses in the course of a business. (3) A vehicle, ship, aircraft or wagon may be detained under subsection (2) whether or not the person to whom the penalty notice was issued owns it. (4) But a vehicle may be detained under subsection (2) only if the person to whom the penalty notice was issued— (a) is the owner or hirer of the vehicle, or (b) was an employee of the owner or hirer of the vehicle when the penalty notice was issued. (5) The power under subsection (2) may not be exercised while an appeal against the penalty under section 35A is pending or could be brought (ignoring the possibility of an appeal out of time with permission). (6) The Secretary of State shall arrange for the release of a vehicle, ship, aircraft or wagon detained under this section if the person to whom the penalty notice was issued pays— (a) the penalty, and (b) expenses reasonably incurred in connection with the detention.

11

• (1) Section 37 (effect of detention of transporter) shall be amended as follows.

• (2) In subsection (1) for “section 36” substitute “ section 36(1) ”.

• (3) In subsection (2) for “claiming an interest in the transporter,” substitute “ whose interests may be affected by detention of the transporter, ”.

• (4) In subsection (3)(c) omit “and the applicant has a compelling need to have the transporter released”.

• (5) After subsection (3) insert—

(3A) The court may also release the transporter on the application of the owner of the transporter under subsection (2) if— (a) a penalty notice was not issued to the owner or an employee of his, and (b) the court considers it right to release the transporter. (3B) In determining whether to release a transporter under subsection (3A) the court shall consider— (a) the extent of any hardship caused by detention, (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).

• (6) After subsection (5) insert—

(5A) The power of sale under subsection (4) may be exercised only when no appeal against the imposition of the penalty is pending or can be brought (ignoring the possibility of an appeal out of time with permission). (5B) The power of sale under subsection (4) shall lapse if not exercised within a prescribed period.

• (7) After subsection (6) add—

(7) This section applies to a transporter detained under section 36A as it applies to a transporter detained under section 36(1); but for that purpose— (a) the court may release the transporter only if the court considers that the detention was unlawful or under subsection (3A) (and subsection (3) shall not apply), and (b) the reference in subsection (4) to the period of 84 days shall be taken as a reference to a period prescribed for the purpose of this paragraph.

12

Section 39(rail freight) shall cease to have effect.

13

For section 40 (charge in respect of passenger without proper documents) substitute—

(40) (1) This section applies if an individual requiring leave to enter the United Kingdom arrives in the United Kingdom by ship or aircraft and, on being required to do so by an immigration officer, fails to produce— (a) an immigration document which is in force and which satisfactorily establishes his identity and his nationality or citizenship, and (b) if the individual requires a visa, a visa of the required kind. (2) The Secretary of State may charge the owner of the ship or aircraft, in respect of the individual, the sum of £2,000. (3) The charge shall be payable to the Secretary of State on demand. (4) No charge shall be payable in respect of any individual who is shown by the owner to have produced the required document or documents to the owner or his employee or agent when embarking on the ship or aircraft for the voyage or flight to the United Kingdom. (5) For the purpose of subsection (4) an owner shall be entitled to regard a document as— (a) being what it purports to be unless its falsity is reasonably apparent, and (b) relating to the individual producing it unless it is reasonably apparent that it does not relate to him. (6) For the purposes of this section an individual requires a visa if— (a) under the immigration rules he requires a visa for entry into the United Kingdom, or (b) as a result of section 41 he requires a visa for passing through the United Kingdom. (7) The Secretary of State may by order amend this section for the purpose of applying it in relation to an individual who— (a) requires leave to enter the United Kingdom, and (b) arrives in the United Kingdom by train. (8) An order under subsection (7) may provide for the application of this section— (a) except in cases of a specified kind; (b) subject to a specified defence. (9) In this section “immigration document” means— (a) a passport, and (b) 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. (10) The Secretary of State may by order substitute a sum for the sum in subsection (2). (40A) (1) If the Secretary of State decides to charge a person under section 40, the Secretary of State must notify the person of his decision. (2) A notice under subsection (1) (a “charge notice”) must— (a) state the Secretary of State’s reasons for deciding to charge the person, (b) state the amount of the charge, (c) specify the date before which, and the manner in which, the charge must be paid, (d) include an explanation of the steps that the person may take if he objects to the charge, and (e) include an explanation of the steps that the Secretary of State may take under this Part to recover any unpaid charge. (3) Where a person on whom a charge notice is served objects to the imposition of the charge on him, he may give a notice of objection to the Secretary of State. (4) A notice of objection must— (a) be in writing, (b) give the objector’s reasons, and (c) be given before the end of such period as may be prescribed. (5) Where the Secretary of State receives a notice of objection to a charge in accordance with this section, he shall— (a) consider it, and (b) determine whether or not to cancel the charge. (6) Where the Secretary of State considers a notice of objection, he shall inform the objector of his decision before the end of— (a) such period as may be prescribed, or (b) such longer period as he may agree with the objector. (7) Any sum payable to the Secretary of State as a charge under section 40 may be recovered by the Secretary of State as a debt due to him. (8) In proceedings for enforcement of a charge under subsection (7) no question may be raised as to the validity of the charge. (9) Subsections (12) and (13) of section 35 shall have effect for the purpose of this section as they have effect for the purpose of section 35(1), (7) and (10). (40B) (1) A person may appeal to the court against a decision to charge him under section 40. (2) On an appeal under this section the court may— (a) allow the appeal and cancel the charge, or (b) dismiss the appeal. (3) An appeal under this section— (a) shall be a re-hearing of the Secretary of State’s decision to impose a charge, and (b) may be determined having regard to matters of which the Secretary of State was unaware. (4) Subsection (3)(a) has effect despite any provision of Civil Procedure Rules. (5) An appeal may be brought by a person under this section against a decision to charge him whether or not he has given notice of objection under section 40A(3).

14

Section 42(power to detain vehicle, &c. carrying person without proper travel documents) shall cease to have effect.

15

In section 43 (interpretation) (which becomes subsection (1))—

• (a) in the definition of “concealed” for “or aircraft” substitute “ , aircraft or rail freight wagon ”,

• (b) omit the definition of “court”,

• (c) after the definition of “equipment” insert—

“freight shuttle wagon” means a wagon which— (a) forms part of a shuttle-train, and (b) is designed to carry commercial goods vehicles; “freight train” means any train other than— (a) a train engaged on a service for the carriage of passengers, or (b) a shuttle-train;

,

• (d) in the definition of “owner” omit paragraph (b) and the word “and” immediately preceding it,

• (e) for the definition of “rail freight wagon” substitute—

“rail freight wagon” means— (a) any rolling stock, other than a locomotive, which forms part of a freight train, or (b) a freight shuttle wagon, and for the purpose of this definition, “rolling stock” and “locomotive” have the meanings given by section 83 of the Railways Act 1993 (c.43);

,

• (f) after the definition of “ship” insert—

“shuttle-train” has the meaning given by section 1(9) of the Channel Tunnel Act 1987 (c. 53);

,

• (g) in the definition of “transporter” for “or aircraft” substitute “ , aircraft or rail freight wagon ”, and

• (h) at the end insert—

(2) A reference in this Part to “the court” is a reference— (a) in England and Wales, to a county court, (b) in Scotland, to the sheriff, and (c) in Northern Ireland, to a county court. (3) But— (a) a county court may transfer proceedings under this Part to the High Court, and (b) the sheriff may transfer proceedings under this Part to the Court of Session.

16

• (1) Schedule 1 (sale of transporter) shall be amended as follows.

• (2) In paragraph 1(2)(a) omit “or charge”.

• (3) After paragraph 2 insert—

(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).

• (4) In paragraph 5(1) omit “or 42”.

• (5) In paragraph 5(2)(d) omit “or charge”.

17

• (1) This paragraph applies to a code of practice which—

• (a) has effect, before the coming into force of paragraph 12 of this Schedule, by virtue of sections 33 and 39 of the Immigration and Asylum Act 1999 (c. 33) (power to apply provisions about carriers’ liability to rail freight), and

• (b) could be issued under section 33 of that Act after the coming into force of paragraph 2 of this Schedule.

• (2) A code of practice to which this paragraph applies—

• (a) shall continue to have effect after the coming into force of paragraph 12 of this Schedule, and

• (b) shall be treated after that time as if made and brought into operation under section 33 alone.

SCHEDULE 9

Naturalisation: knowledge of language and society

Naturalisation: spouse of citizen

Deprivation of citizenship

Nationality decision: discrimination

Nationality decision: reasons and review

Legitimacy of child

Right of abode: certificate of entitlement

Repeal of spent provisions

British citizenship: registration of certain persons without other citizenship

British citizenship: registration of certain persons born between 1961 and 1983

Person subject to United Kingdom entrance control

Advisory Groups

Provisional assistance

The Monitor of Accommodation Centres

Education: special cases

Destitute asylum-seeker

Asylum-seeker: form of support

Section 44: supplemental

Failed asylum-seeker

Young asylum-seeker

Failed asylum-seeker

Choice of form of support

Asylum-seeker: appeal against refusal to support

Provision of support by local authority

Application for support: false or incomplete information

Voluntary departure from United Kingdom

Repeal of spent provisions

Detention by Secretary of State

Detention centres: custodial functions

Serious criminal

Family

Revocation of leave to enter or remain

Induction

Deception

Appeal: asylum claim

Appeal: asylum claim

European Common List of Safe Countries of Origin

Appeal from outside United Kingdom: removal

National security: deportation

Entry clearance

European Common List of Safe Countries of Origin

83A

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Repeal

85A

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

88A

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Appeal from within United Kingdom: unfounded human rights or asylum claim: transitional provision

94A

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

National security: deportation

Northern Ireland appeals: legal aid

97A

• (1) This section applies where the Secretary of State certifies that the decision to make a deportation order in respect of a person was taken on the grounds that his removal from the United Kingdom would be in the interests of national security.

• (1A) This section also applies where the Secretary of State certifies, in the case of a person in respect of whom a deportation order has been made which states that it is made in accordance with section 32(5) of the UK Borders Act 2007, that the person's removal from the United Kingdom would be in the interests of national security.

• (2) Where this section applies—

• (a) section 79 shall not apply,

• (b) the Secretary of State shall be taken to have certified the decision to make the deportation order under section 97, and

• (c) section 2(5) of the Special Immigration Appeals Commission Act 1997 (whether appeals brought against decisions certified under section 97 may be brought from within the United Kingdom) does not apply, but see instead the following provisions of this section.

• (2A) The person while in the United Kingdom may not bring or continue an appeal under section 2 of the Special Immigration Appeals Commission Act 1997—

• (a) against the decision to make the deportation order, or

• (b) against any refusal to revoke the deportation order,

unless the person has made a human rights claim while in the United Kingdom.

• (2B) Subsection (2A) does not allow the person while in the United Kingdom to bring or continue an appeal if the Secretary of State certifies that removal of the person—

• (a) to the country or territory to which the person is proposed to be removed, and

• (b) despite the appeals process not having been begun or not having been exhausted,

would not be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention) .

• (2C) The grounds upon which a certificate may be given under subsection (2B) include (in particular)—

• (a) that the person would not, before the appeals process is exhausted, face a real risk of serious irreversible harm if removed to the country or territory to which the person is proposed to be removed;

• (b) that the whole or part of any human rights claim made by the person is clearly unfounded.

• (2D) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (2E) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (2F) If a certificate in respect of a person is given under subsection (2B), the person may apply to the Special Immigration Appeals Commission to set aside the certificate.

• (2G) If a person makes an application under subsection (2F) then the Commission, in determining whether the certificate should be set aside, must apply the principles that would be applied in judicial review proceedings.

• (2H) The Commission's determination of a review under subsection (2F) is final.

• (2J) The Commission may direct that a person who has made and not withdrawn an application under subsection (2F) is not to be removed from the United Kingdom at a time when the review has not been finally determined by the Commission.

• (2K) Sections 5 and 6 of the Special Immigration Appeals Commission Act 1997 apply in relation to reviews under subsection (2F) (and to applicants for such reviews) as they apply in relation to appeals under section 2 or 2B of that Act (and to persons bringing such appeals).

• (2L) Any exercise of power to make rules under section 5 of that Act in relation to reviews under subsection (2F) is to be with a view to securing that proceedings on such reviews are handled expeditiously.

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (4) The Secretary of State may repeal this section by order.

Leave pending decision on variation application

103A

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

103B

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

103C

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

103D

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

103E

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Requirement to state additional grounds for application

Advice about work permit, &c.

Repeal

Northern Ireland appeals: legal aid

Physical data: voluntary provision

Local authority

Inland Revenue

Supply of document, &c. to Secretary of State

Advice about work permit, &c.

Carriers’ liability

Inland Revenue

Data collection under Immigration and Asylum Act 1999

Local authority

Local authority

EEA ports: juxtaposed controls

Medical inspectors

Advisory Panel on Country Information

Advisory Panel on Country Information

Immigration stamp

Section 145: supplementary

Immigration stamp

False information

Power of entry

Sections 153 and 154: supplemental

Interpretation: “the Immigration Acts”

Ineligibility for support

Exceptions

First class of ineligible person: refugee status abroad

Second class of ineligible person: citizen of other EEA State

Third class of ineligible person: failed asylum-seeker

Fourth class of ineligible person: person unlawfully in United Kingdom

Fifth class of ineligible person: failed asylum-seeker with family

7A

• (1) Paragraph 1 applies to a person if—

• (a) he—

• (i) is treated as an asylum-seeker for the purposes of Part VI of the Immigration and Asylum Act 1999 (c. 33) (support) by virtue only of section 94(3A) (failed asylum-seeker with dependent child), or

• (ii) is treated as an asylum-seeker for the purposes of Part 2 of this Act by virtue only of section 18(2),

• (b) the Secretary of State has certified that in his opinion the person has failed without reasonable excuse to take reasonable steps—

• (i) to leave the United Kingdom voluntarily, or

• (ii) to place himself in a position in which he is able to leave the United Kingdom voluntarily,

• (c) the person has received a copy of the Secretary of State’s certificate, and

• (d) the period of 14 days, beginning with the date on which the person receives the copy of the certificate, has elapsed.

• (2) Paragraph 1 also applies to a dependant of a person to whom that paragraph applies by virtue of sub-paragraph (1).

• (3) For the purpose of sub-paragraph (1)(d) if the Secretary of State sends a copy of a certificate by first class post to a person’s last known address, the person shall be treated as receiving the copy on the second day after the day on which it was posted.

• (4) The Secretary of State may by regulations vary the period specified in sub-paragraph (1)(d).

Travel assistance

Temporary accommodation

Assistance and accommodation: general

Offences

Information

Power to amend Schedule

Orders and regulations

Interpretation

Schedule 4

Judicial assistance

5A

• (1) The Senior President of Tribunals, with the consent of the President of the Tribunal, may assign—

• (a) a relevant tribunal judge to act as a legally qualified member of the Tribunal;

• (b) a relevant other tribunal member to act as a member of the Tribunal who is not a legally qualified member.

• (2) In this paragraph—

• (a) “relevant tribunal judge” means—

• (i) a person who is a judge of the First-tier Tribunal by virtue of appointment under paragraph 1(1) of Schedule 2 to the Tribunals, Courts and Enforcement Act 2007,

• (ii) a transferred-in judge of the First-tier Tribunal,

• (iii) a person who is a judge of the Upper Tribunal by virtue of appointment under paragraph 1(1) of Schedule 3 to that Act,

• (iv) a transferred-in judge of the Upper Tribunal,

• (v) a deputy judge of the Upper Tribunal, or

• (vi) a person who is the Chamber President of a chamber of the First-tier Tribunal, or of a chamber of the Upper Tribunal, and does not fall within any of sub-paragraphs (i) to (v);

• (b) “relevant other tribunal member” means—

• (i) a person who is a member of the First-tier Tribunal by virtue of appointment under paragraph 2(1) of Schedule 2 to the Tribunals, Courts and Enforcement Act 2007,

• (ii) a transferred-in other member of the First-tier Tribunal,

• (iii) a person who is a member of the Upper Tribunal by virtue of appointment under paragraph 2(1) of Schedule 3 to that Act, or

• (iv) a transferred-in other member of the Upper Tribunal.

• (3) A relevant tribunal judge within sub-paragraph (2)(a)(i) or (ii) who is assigned under sub-paragraph (1) may, when acting under his assignment, exercise any function or jurisdiction which is exercisable by a legally qualified member of the Tribunal who—

• (a) has the title of Immigration Judge, and

• (b) is neither the President, nor a Deputy President, of the Tribunal.

• (4) A relevant tribunal judge within sub-paragraph (2)(a)(iii), (iv) or (v) who is assigned under sub-paragraph (1) may, when acting under his assignment, exercise—

• (a) any function or jurisdiction which is exercisable by a legally qualified member of the Tribunal who—

• (i) has the title of Immigration Judge, and

• (ii) is neither the President, nor a Deputy President, of the Tribunal, and

• (b) any function or jurisdiction which is exercisable by a legally qualified member of the Tribunal who—

• (i) has the title of Senior Immigration Judge, and

• (ii) is neither the President, nor a Deputy President, of the Tribunal.

• (5) A relevant other tribunal member who is assigned under sub-paragraph (1) may, when acting under his assignment, exercise any function or jurisdiction which is exercisable by a member of the Tribunal who—

• (a) is appointed under paragraph 2(1)(e), and

• (b) is neither the President, nor a Deputy President, of the Tribunal.

5B

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Proceedings

8

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Staff

9

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Money

10

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

11

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Delegation

12

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Training etc.

13

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Oaths

14

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

SCHEDULE 4

Term of office

Proceedings

Staff

Money

Membership

Presidency

Proceedings

Staff

Money

Interpretation: legally qualified member

“Commencement”

Adjudicator

Tribunal

Earlier appeal

Saving

Immigration Act 1971 (c. 77)

House of Commons Disqualification Act 1975 (c. 24)

Northern Ireland Assembly Disqualification Act 1975 (c. 25)

...

Courts and Legal Services Act 1990 (c. 41)

Tribunals and Inquiries Act 1992 (c. 53)

Judicial Pensions and Retirement Act 1993 (c. 8)

Special Immigration Appeals Commission Act 1997 (c. 68)

Immigration and Asylum Act 1999 (c. 33)

Anti-terrorism, Crime and Security Act 2001 (c. 24)

Proceeds of Crime Act 2002 (c. 29)

Editorial notes