Asylum and Immigration (Treatment of Claimants, etc. ) Act 2004

Offences

Assisting unlawful immigration

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• (1) At the end of section 25 of the Immigration Act 1971 (c. 77) (offence of assisting unlawful immigration to member State) add—

(7) In this section— (a) a reference to a member State includes a reference to a State on a list prescribed for the purposes of this section by order of the Secretary of State (to be known as the “Section 25 List of Schengen Acquis States”), and (b) a reference to a citizen of the European Union includes a reference to a person who is a national of a State on that list. (8) An order under subsection (7)(a)— (a) may be made only if the Secretary of State thinks it necessary for the purpose of complying with the United Kingdom’s obligations under the EU Treaties, (b) may include transitional, consequential or incidental provision, (c) shall be made by statutory instrument, and (d) shall be subject to annulment in pursuance of a resolution of either House of Parliament.

• (2) In section 25C(9)(a) of that Act (forfeiture of vehicle, ship or aircraft) for “(within the meaning of section 25)” substitute

(for which purpose member State and >“immigration law have the meanings given by section 25(2) and (7))

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Unfounded human rights or asylum claim

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• (1) A person commits an offence if at a leave or asylum interview he does not have with him an immigration document which—

• (a) is in force, and

• (b) satisfactorily establishes his identity and nationality or citizenship.

• (2) A person commits an offence if at a leave or asylum interview he does not have with him, in respect of any dependent child with whom he claims to be travelling or living, an immigration document which—

• (a) is in force, and

• (b) satisfactorily establishes the child’s identity and nationality or citizenship.

• (3) But a person does not commit an offence under subsection (1) or (2) if—

• (a) the interview referred to in that subsection takes place after the person has entered the United Kingdom, and

• (b) within the period of three days beginning with the date of the interview the person provides to an immigration officer or to the Secretary of State a document of the kind referred to in that subsection.

• (4) It is a defence for a person charged with an offence under subsection (1)—

• (a) to prove that he is —

• (i) an Irish citizen,

• (ii) has leave to enter or remain in the United Kingdom which was granted by virtue of residence scheme immigration rules, or

• (iii) is a frontier worker within the meaning of regulation 3 of the Citizens’ Rights (Frontier Workers) (EU Exit) Regulations 2020,

• (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (c) to prove that he has a reasonable excuse for not being in possession of a document of the kind specified in subsection (1),

• (d) to produce a false immigration document and to prove that he used that document as an immigration document for all purposes in connection with his journey to the United Kingdom, or

• (e) to prove that he travelled to the United Kingdom without, at any stage since he set out on the journey, having possession of an immigration document.

• (5) It is a defence for a person charged with an offence under subsection (2) in respect of a child—

• (a) to prove that the child is—

• (i) an Irish citizen,

• (ii) has leave to enter or remain in the United Kingdom which was granted by virtue of residence scheme immigration rules, or

• (iii) is a frontier worker within the meaning of regulation 3 of the Citizens’ Rights (Frontier Workers) (EU Exit) Regulations 2020,

• (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (c) to prove that the person has a reasonable excuse for not being in possession of a document of the kind specified in subsection (2),

• (d) to produce a false immigration document and to prove that it was used as an immigration document for all purposes in connection with the child’s journey to the United Kingdom, or

• (e) to prove that he travelled to the United Kingdom with the child without, at any stage since he set out on the journey, having possession of an immigration document in respect of the child.

• (6) Where the charge for an offence under subsection (1) or (2) relates to an interview which takes place after the defendant has entered the United Kingdom—

• (a) subsections (4)(c) and (5)(c) shall not apply, but

• (b) it is a defence for the defendant to prove that he has a reasonable excuse for not providing a document in accordance with subsection (3).

• (7) For the purposes of subsections (4) to (6)—

• (a) the fact that a document was deliberately destroyed or disposed of is not a reasonable excuse for not being in possession of it or for not providing it in accordance with subsection (3), unless it is shown that the destruction or disposal was—

• (i) for a reasonable cause, or

• (ii) beyond the control of the person charged with the offence, and

• (b) in paragraph (a)(i) “reasonable cause” does not include the purpose of—

• (i) delaying the handling or resolution of a claim or application or the taking of a decision,

• (ii) increasing the chances of success of a claim or application, or

• (iii) complying with instructions or advice given by a person who offers advice about, or facilitates, immigration into the United Kingdom, unless in the circumstances of the case it is unreasonable to expect non-compliance with the instructions or advice.

• (8) A person shall be presumed for the purposes of this section not to have a document with him if he fails to produce it to an immigration officer or official of the Secretary of State on request.

• (9) 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 the general limit in a magistrates’ court, to a fine not exceeding the statutory maximum or to both.

• (10) If a constable oran immigration officer reasonably suspects that a person has committed an offence under this section he may arrest the person without warrant.

• (11) An offence under this section shall be treated as—

• (a) a relevant offence for the purposes of sections 28B and 28D of the Immigration Act 1971 (c. 77) (search, entry and arrest), and

• (b) an offence under Part III of that Act (criminal proceedings) for the purposes of sections 28(4), 28E, 28G and 28H (search after arrest, &c.) of that Act.

• (12) In this section—

• ...

• “immigration document” means—a passport, anda document which relates to a national of a State other than the United Kingdom and which is designed to serve the same purpose as a passport, ...

• “leave or asylum interview” means an interview with an immigration officer or an official of the Secretary of State at which a person—seeks leave to enter or remain in the United Kingdom, orclaims that to remove him from or require him to leave the United Kingdom would breach the United Kingdom’s obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 (c. 42) as being incompatible with his Convention rights.

• “residence scheme immigration rules” has the meaning given by section 17 of the European Union (Withdrawal Agreement) Act 2020.

• (13) For the purposes of this section—

• (a) a document which purports to be, or is designed to look like, an immigration document, is a false immigration document, and

• (b) an immigration document is a false immigration document if and in so far as it is used—

• (i) outside the period for which it is expressed to be valid,

• (ii) contrary to provision for its use made by the person issuing it, or

• (iii) by or in respect of a person other than the person to or for whom it was issued.

• (14) Section 11 of the Immigration Act 1971 (c. 77) shall have effect for the purpose of the construction of a reference in this section to entering the United Kingdom.

• (15) In so far as this section extends to England and Wales, subsection (9)(b) shall, until 2 May 2022, have effect as if the reference to the general limit in a magistrates’ court were a reference to six months.

• (16) In so far as this section extends to Scotland, subsection (9)(b) shall have effect as if the reference to twelve months were a reference to six months.

• (17) In so far as this section extends to Northern Ireland, subsection (9)(b) shall have effect as if the reference to twelve months were a reference to six months.

Immigration documents: forgery

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Trafficking people for exploitation

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Section 4: supplemental

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• (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

• (2A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (2B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

• (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (6) After paragraph 2(n) of Schedule 4 to the Criminal Justice and Court Services Act 2000 (c. 43) (offence against child) insert—

(o) an offence under section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (trafficking people for exploitation).

• (7) At the end of paragraph 4 of Schedule 2 to the Proceeds of Crime Act 2002 (c. 29) (lifestyle offences: England and Wales: people trafficking) add—

(3) An offence under section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (exploitation).

• (8) At the end of paragraph 4 of Schedule 4 to the Proceeds of Crime Act 2002 (lifestyle offences: Scotland: people trafficking) add “or under section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (exploitation)”.

• (9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (11) In so far as section 4 extends to England and Wales, subsection (5)(b) shall, until 2 May 2022, have effect as if the reference to twelve months were a reference to six months.

• (12) In so far as section 4 extends to Scotland, subsection (5)(b) shall have effect as if the reference to twelve months were a reference to six months.

• (13) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Employment

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• (1) For section 8(4) of the Asylum and Immigration Act 1996 (c. 49) (employment: penalty) substitute—

(4) A person guilty of an offence under this section shall be liable— (a) on conviction on indictment, to a fine, or (b) on summary conviction, to a fine not exceeding the statutory maximum.

• (2) Section 8(9) of that Act (extension of time limit for prosecution) shall cease to have effect.

Advice of Director of Public Prosecutions

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In section 3(2) of the Prosecution of Offences Act 1985 (c. 23) (functions of Director of Public Prosecutions) after paragraph (eb) insert—

(ec) to give, to such extent as he considers appropriate, advice to immigration officers on matters relating to criminal offences;

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Treatment of claimants

Claimant’s credibility

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• (1) In determining whether to believe a statement made by or on behalf of a person who makes an asylum claim or a human rights claim, a deciding authority shall take account, as damaging the claimant’s credibility, of any behaviour to which this section applies.

• (2) This section applies to any behaviour by the claimant that the deciding authority thinks—

• (a) is designed or likely to conceal information,

• (b) is designed or likely to mislead, or

• (c) is designed or likely to obstruct or delay the handling or resolution of the claim or the taking of a decision in relation to the claimant.

• (3) Without prejudice to the generality of subsection (2) the following kinds of behaviour shall be treated as designed or likely to conceal information or to mislead—

• (a) failure without reasonable explanation to produce an identity document on request to an immigration officer or to the Secretary of State,

• (b) the production of a document which is not a valid identity document as if it were,

• (c) the destruction, alteration or disposal, in each case without reasonable explanation, of an identity document,

• (d) the destruction, alteration or disposal, in each case without reasonable explanation, of a ticket or other document connected with travel,

• (da) failure to provide to an immigration officer or the Secretary of State, on request, any information or anything else required in order to access any information stored in electronic form on a thing in the possession of an immigration officer or the Secretary of State that—

• (i) was found on the claimant, or

• (ii) appears to an immigration officer or the Secretary of State to have been in the possession of the claimant, and

• (e) failure without reasonable explanation to answer a question asked by a deciding authority.

• (4) This section also applies to failure by the claimant to take advantage of a reasonable opportunity to make an asylum claim or human rights claim while in a safe country.

• (5) This section also applies to failure by the claimant to make an asylum claim or human rights claim before being notified of an immigration decision, unless the claim relies wholly on matters arising after the notification.

• (6) This section also applies to failure by the claimant to make an asylum claim or human rights claim before being arrested under an immigration provision, unless—

• (a) he had no reasonable opportunity to make the claim before the arrest, or

• (b) the claim relies wholly on matters arising after the arrest.

• (7) In this section—

• “asylum claim” has the meaning given by section 113(1) of the Nationality, Immigration and Asylum Act 2002 (c. 41) (subject to subsection (9) below),

• “deciding authority” means—an immigration officer,the Secretary of State,the First-tier Tribunal, orthe Special Immigration Appeals Commission,

• “document” includes information recorded in any form;

• “human rights claim” has the meaning given by section 113(1) of the Nationality, Immigration and Asylum Act 2002 (subject to subsection (9) below),

• “identity document” means any document that may be used (whether by itself or otherwise and with or without modifications) to establish, or provide evidence of, a person’s identity or address;

• “immigration decision” means—refusal of leave to enter the United Kingdom,refusal to vary a person’s leave to enter or remain in the United Kingdom,grant of leave to enter or remain in the United Kingdom,a decision that a person is to be removed from the United Kingdom by way of directions under section 10... of the Immigration and Asylum Act 1999 (c. 33) (removal of persons unlawfully in United Kingdom),a decision that a person is to be removed from the United Kingdom by way of directions under paragraphs 8 to 12 of Schedule 2 to the Immigration Act 1971 (c. 77) (control of entry: removal),a decision to make a deportation order under section 5(1) of that Act, anda decision to take action in relation to a person in connection with extradition from the United Kingdom,

• “immigration provision” means—sections 28A, 28AA, 28B, 28C and 28CA of the Immigration Act 1971 (immigration offences: enforcement),paragraph 17 of Schedule 2 to that Act (control of entry),section 14 of this Act, anda provision of the Extradition Act 1989 (c. 33) or 2003 (c. 41),

• “notified” means notified in such manner as may be specified by regulations made by the Secretary of State,

• ...

• “safe country” means a country to which Part 2 of Schedule 3 applies.

• (8) An identity document produced by or on behalf of a person is valid for the purposes of subsection (3)(b) if it—

• (a) relates to the person by whom or on whose behalf it is produced,

• (b) has not been altered otherwise than by or with the permission of the authority who issued it, and

• (c) was not obtained by deception.

• (9) In subsection (4) a reference to an asylum claim or human rights claim shall be treated as including a reference to a claim of entitlement to remain in a country other than the United Kingdom made by reference to the rights that a person invokes in making an asylum claim or a human rights claim in the United Kingdom.

• (9A) In paragraph (c) of the definition of a “deciding authority” in subsection (7) the reference to the First-tier Tribunal includes a reference to the Upper Tribunal when acting under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007.

• (10) Regulations under subsection (7) specifying a manner of notification may, in particular—

• (a) apply or refer to regulations under section 105 of the Nationality, Immigration and Asylum Act 2002 (c. 41) (notice of immigration decisions);

• (b) make provision similar to provision that is or could be made by regulations under that section;

• (c) modify a provision of regulations under that section in its effect for the purpose of regulations under this section;

• (d) provide for notice to be treated as received at a specified time if sent to a specified class of place in a specified manner.

• (11) Regulations under subsection (7) specifying a manner of notification—