33 Prevention of clandestine entrants: code of practice
(1) The Secretary of State must issue a code of practice to be followed by any person operating a system for preventing the carriage of clandestine entrants.
(2) Before issuing the code, the Secretary of State must—
(a) consult such persons as he considers appropriate; and
(b) lay a draft before both Houses of Parliament.
(3) The requirement of subsection (2)(a) may be satisfied by consultation before the passing of this Act.
(4) After laying the draft code before Parliament, the Secretary of State may bring the code into operation by an 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 (2) and (4) also apply to any revision, or proposed revision, of the code.
34 Defences to claim that penalty is due under section 32.
(1) This section applies if it is alleged that a person (“the carrier”) is liable to a penalty under section 32.
(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.
(2) It is a defence for the carrier to show that he, or an employee of his who was directly responsible for allowing the clandestine entrant to be concealed, was acting under duress.
(3) It is also a defence for the carrier to show that—
(a) he did not know, and had no reasonable grounds for suspecting, that a clandestine entrant was, or might be, concealed in the transporter;
(b) an effective system for preventing the carriage of clandestine entrants was in operation in relation to the transporter; and
(c) that on the occasion in question the person or persons responsible for operating that system did so properly.
(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; and
(c) an effective system for preventing the carriage of clandestine entrants was in operation in relation to the train or shuttle-train; and
(c) the carrier had taken the actions specified in regulations under subsection (3B) in relation to the securing of the wagon against unauthorised access.
(d) on the occasion in question the person or persons responsible for operating the system did so properly.
(3B) The Secretary of State must specify in regulations the actions to be taken for the purposes of subsection (3A)(c) in relation to the securing of a rail freight wagon against unauthorised access.
(3C) The actions that may be specified in regulations under subsection (3B) include, in particular—
(a) actions in relation to checking a person has not gained unauthorised access to the wagon,
(b) actions in relation to the reporting of any unauthorised access to the wagon, and
(c) actions in relation to the keeping of records to establish that other actions specified in the regulations have been taken.
(3D) Before making regulations under subsection (3B), the Secretary of State must consult such persons as the Secretary of State considers appropriate.
(4) In determining, for the purposes of this section, whether a particular system is effective, regard is to be had to the code of practice issued by the Secretary of State under section 33.
(5) If there are two or more persons responsible for a clandestine entrant, the fact that one or more of them has a defence under subsection (3) does not affect the liability of the others.
(6) But if a person responsible for a clandestine entrant has a defence under subsection (2), the liability of any other person responsible for that entrant is discharged.
(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.
(1) If the Secretary of State decides that a person (“P”) is liable to one or more penalties under section 31A or 32, he must notify P of his decision.
(2) A notice under subsection (1) (a “penalty notice”) must—
(a) state the Secretary of State’s reasons for deciding that P is liable to the penalty (or penalties);
(b) state the amount of the penalty (or penalties) to which P is liable;
(c) specify the date before which, and the manner in which, the penalty (or penalties) must be paid; and
(d) include an explanation of the steps—
(i) that P must may take if he objects to the penalty;
(ii) that the Secretary of State may take under this Part to recover any unpaid penalty and
(e) be issued before the end of such period as may be prescribed.
(3) Subsection (4) applies if more than one person is responsible for a clandestine entrant.
(4) If a penalty notice is served on one of the responsible persons, the Secretary of State is to be taken to have served the required penalty notice on each of them.
(5) The Secretary of State must nevertheless take reasonable steps, while the penalty remains unpaid, to secure that the penalty notice is actually served on each of those responsible persons.
(6) If a person on whom a penalty notice is served, or who is treated as having had a penalty notice served on him, alleges that he is not liable for one or more, or all, of the penalties specified in the penalty notice, he may give written notice of his allegation to the Secretary of State.
(7) Notice under subsection (6) (“a notice of objection”) must—
(a) give reasons for the allegation; and
(b) be given before the end of such period as may be prescribed.
(8) If a notice of objection is given before the end of the prescribed period, the Secretary of State must consider it and determine whether or not any penalty to which it relates is payable.
(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.
(9) The Secretary of State may by regulations provide, in relation to detached trailers, for a penalty notice which is served issued in such manner as may be prescribed to have effect as a penalty notice properly served on issued to the responsible person or persons concerned under this section.
(10) Any sum payable to the Secretary of State as a penalty under section 31A or 32 may be recovered by the Secretary of State as a debt due to him.
(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
(ca) by electronic mail, 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.
(1) A person may appeal to the court against a penalty imposed on him under section 31A or 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, and
(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).
36 Power to detain vehicles etc. in connection with penalties under section 31A or 32.
(1) If a penalty notice has been given issued under section 35, a senior officer may detain any relevant—
(a) vehicle,
(b) small ship, or
(c) small aircraft, or
(d) rail freight wagon,
until all penalties to which the notice relates, and any expenses reasonably incurred by the Secretary of State in connection with the detention, have been paid.
(2) That power—
(a) may be exercised only if, in the opinion of the senior officer concerned, there is a significant risk that the penalty (or one or more of the penalties) will not be paid before the end of the prescribed period if the transporter is not detained; and
(b) may not be exercised if alternative security which the Secretary of State considers is satisfactory, has been given.
(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 drives the vehicle pursuant to a contract (whether or not a contract of employment) with the owner or hirer of the vehicle,
(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.
(2AA) In the case of a detached trailer, subsection (2A) has effect as if—
(a) a reference to the driver were a reference to the operator, and
(b) the reference to driving the vehicle were a reference to operating it.
(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.
(3) If a transporter is detained under this section, the owner, consignor or any other person who has an interest in any freight or other thing carried in or on the transporter may remove it, or arrange for it to be removed, at such time and in such way as is reasonable.
(4) The detention of a transporter under this section is lawful even though it is subsequently established that the penalty notice on which the detention was based was ill-founded in respect of all or any of the penalties to which it related.
(5) But subsection (4) does not apply if the Secretary of State was acting unreasonably in issuing the penalty notice.
(6) A document which is to be issued to or served on a person outside the United Kingdom for the purposes of this section may be issued or served—
(a) in person,
(b) by post,
(c) by facsimile transmission,
(d) by electronic mail, or
(e) in another prescribed manner.
(7) The Secretary of State may by regulations provide that a document issued or served in a manner listed in subsection (6) 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.
(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 drove the vehicle pursuant to a contract (whether or not a contract of employment) with the owner or hirer of the vehicle when the penalty notice was issued.
(4A) In the case of a detached trailer, subsection (4)(b) has effect as if the reference to driving the vehicle were a reference to operating it.
(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.
(7) If a transporter is detained under this section, the owner, consignor or any other person who has an interest in any freight or other thing carried in or on the transporter may remove it, or arrange for it to be removed, at such time and in such way as is reasonable.
(8) The detention of a transporter under this section is lawful even though it is subsequently established that the penalty notice on which the detention was based was ill-founded in respect of all or any of the penalties to which it related.
(9) But subsection (8) does not apply if the Secretary of State was acting unreasonably in issuing the penalty notice.
(10) A document which is to be issued to or served on a person outside the United Kingdom for the purposes of this section may be issued or served—
(a) in person,
(b) by post,
(c) by facsimile transmission,
(d) by electronic mail, or
(e) in another prescribed manner.
(11) The Secretary of State may by regulations provide that a document issued or served in a manner listed in subsection (10) 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.
(1) This section applies if a transporter is detained under section 36 section 36(1).
(2) The person to whom the penalty notice was addressed, or the owner or any other person claiming an interest in the transporter, whose interests may be affected by detention of the transporter, may apply to the court for the transporter to be released.
(3) The court may release the transporter if it considers that—
(a) satisfactory security has been tendered in place of the transporter for the payment of the penalty alleged to be due and connected expenses;
(b) there is no significant risk that the penalty (or one or more of the penalties) and any connected expenses will not be paid; or
(c) there is a significant doubt as to whether the penalty is payable and the applicant has a compelling need to have the transporter released.
(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).
(4) If the court has not ordered the release of the transporter, the Secretary of State may sell it if the penalty in question and connected expenses are not paid before the end of the period of 84 days beginning with the date on which the detention began.
(5) “Connected expenses” means expenses reasonably incurred by the Secretary of State in connection with the detention.
(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.
(6) Schedule 1 applies to the sale of transporters under this section.
(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.
(1) In section 25 of the 1971 Act (assisting illegal entry and harbouring), at the end of paragraph (c) of subsection (6), insert—
or
(d) the driver of any such vehicle;
.
(2) After section 25, insert—
Detention of ships, aircraft and vehicles in connection with offences under section 25(1).
25A (1) If a person has been arrested for an offence under section 25(1)(a) or (b), a senior officer or a constable may detain a relevant ship, aircraft or vehicle—
(a) until a decision is taken as to whether or not to charge the arrested person with that offence; or
(b) if the arrested person has been charged—
(i) until he is acquitted, the charge against him is dismissed or the proceedings are discontinued; or
(ii) if he has been convicted, until the court decides whether or not to order forfeiture of the ship, aircraft or vehicle.
(2) A ship, aircraft or vehicle is a relevant ship, aircraft or vehicle, in relation to an arrested person, if it is one which the officer or constable concerned has reasonable grounds for believing could, on conviction of the arrested person for the offence for which he was arrested, be the subject of an order for forfeiture made under section 25(6).
(3) A person (other than the arrested person) who claims to be the owner of a ship, aircraft or vehicle which has been detained under this section may apply to the court for its release.
(4) The court to which an application is made under subsection (3) may, on such security or surety being tendered as it considers satisfactory, release the ship, aircraft or vehicle on condition that it is made available to the court if—
(a) the arrested person is convicted; and
(b) an order for its forfeiture is made under section 25(6).
(5) In the application to Scotland of subsection (1), for paragraphs (a) and (b) substitute—
“(a) until a decision is taken as to whether or not to institute criminal proceedings against the arrested person for that offence; or
(b) if criminal proceedings have been instituted against the arrested person—
(i) until he is acquitted or, under section 65 or 147 of the Criminal Procedure (Scotland) Act 1995, discharged or liberated or the trial diet is desertedsimpliciter;
(ii) if he has been convicted, until the court decides whether or not to order forfeiture of the ship, aircraft or vehicle,
and for the purposes of this subsection, criminal proceedings are instituted against a person at whichever is the earliest of his first appearance before the sheriff on petition, or the service on him of an indictment or complaint. ”
(6) “Court” means—
(a) in England and Wales—
(i) if the arrested person has not been charged, the magistrates’ court for the petty sessions area in which he was arrested;
(ii) if he has been charged but proceedings for the offence have not begun to be heard, the magistrates’ court for the petty sessions area in which he was charged;
(iii) if he has been charged and proceedings for the offence are being heard, the court hearing the proceedings;
(b) in Scotland, the sheriff; and
(c) in Northern Ireland—
(i) if the arrested person has not been charged, the magistrates’ court for the county court division in which he was arrested;
(ii) if he has been charged but proceedings for the offence have not begun to be heard, the magistrates’ court for the county court division in which he was charged;
(iii) if he has been charged and proceedings for the offence are being heard, the court hearing the proceedings.
(7) “Owner” has the same meaning as it has in section 25(6).
(8) “Senior officer” means an immigration officer not below the rank of chief immigration officer.
(3) Subsection (1) has effect in relation to offences committed after the coming into force of that subsection.
(4) Subsection (2) has effect in relation to persons arrested for offences alleged to have been committed after the coming into force of that subsection.
40 Charge in respect of individual without proper documents or authorisation
(1) The Secretary of State may charge the owner of a ship or aircraft the sum of £2,000 where—
(a) an individual who would not, on arrival in the United Kingdom, be entitled to enter without leave arrives by travelling on the ship or aircraft, and
(b) at least one of the Cases set out in subsections (1A) to (1C) applies.
(1A) Case 1 is where, on being required to do so by an immigration officer, the individual fails to produce an immigration document which is valid and which satisfactorily establishes the individual’s identity and the individual’s nationality or citizenship.
(1B) Case 2 is where—
(a) the individual requires an entry clearance,
(b) an entry clearance in electronic form of the required kind has not been granted, and
(c) if required to do so by an immigration officer, the individual fails to produce an entry clearance in documentary form of the required kind.
(1C) Case 3 is where—
(a) the individual was required not to travel to the United Kingdom unless the individual had an authorisation in electronic form (“an ETA”) under immigration rules made by virtue of section 11C of the Immigration Act 1971 that was valid for the individual’s journey to the United Kingdom, and
(b) the individual did not have such an ETA.
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) The charge shall be payable to the Secretary of State on demand.
(4) No charge shall be payable on the basis that Case 1 applies in respect of any individual if the owner provides evidence that the individual produced an immigration document of the kind mentioned in subsection (1A) to the owner or his employee or agent when embarking on the ship or aircraft for the voyage or flight to the United Kingdom.
(4A) No charge shall be payable on the basis that Case 2 applies in respect of any individual if the owner provides evidence that—
(a) the individual produced an entry clearance in documentary form of the required kind to the owner or an employee or agent of the owner when embarking on the ship or aircraft for the voyage or flight to the United Kingdom,
(b) the owner or an employee or agent of the owner reasonably believed, on the basis of information provided by the Secretary of State in respect of the individual, that the individual did not require an entry clearance of the kind in question,
(c) the owner or an employee or agent of the owner reasonably believed, on the basis of information provided by the Secretary of State, that an entry clearance in electronic form of the required kind had been granted, or
(d) the owner or an employee or agent of the owner was unable to establish whether an entry clearance in electronic form of the required kind had been granted in respect of the individual and had a reasonable excuse for being unable to do so.
(4B) No charge shall be payable on the basis that Case 3 applies in respect of any individual if the owner provides evidence that the owner or an employee or agent of the owner—
(a) reasonably believed, on the basis of information provided by the Secretary of State in respect of the individual, that the individual was not required to have an ETA that was valid for the individual’s journey to the United Kingdom,
(b) reasonably believed, on the basis of information provided by the Secretary of State, that the individual had such an ETA, or
(c) was unable to establish whether the individual had such an ETA and had a reasonable excuse for being unable to do so.
(5) For the purpose of subsection (4) or (4A)(a) 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 an entry clearance if—
(a) under the immigration rules he requires an entry clearance 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 (1).
(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).
(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).
(1) The Secretary of State may by order require transit passengers to hold a transit visa.
(2) “Transit passengers” means persons of any description specified in the order who on arrival in the United Kingdom pass through to another country without entering the United Kingdom; and “transit visa” means a visa for that purpose.
(3) The order—
(a) may specify a description of persons by reference to nationality, citizenship, origin or other connection with any particular country but not by reference to race, colour or religion;
(b) may not provide for the requirement imposed by the order to apply to any person who under the 1971 Act has the right of abode in the United Kingdom;
(c) may provide for any category of persons of a description specified in the order to be exempt from the requirement imposed by the order;
(d) may make provision about the method of application for visas required by the order.
(1) In this Part—
“aircraft” includes hovercraft;
“captain” means the master of a ship or commander of an aircraft;
“concealed” includes being concealed in any freight, stores or other thing carried in or on the vehicle, ship , aircraft or rail freight wagon concerned;
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“detached trailer” means a trailer, semi-trailer, caravan or any other thing which is designed or adapted for towing by a vehicle but which has been detached for transport—
in or on the vehicle concerned; or
in the ship or aircraft concerned (whether separately or in or on a vehicle);
“equipment”, in relation to an aircraft, includes—
any certificate of registration, maintenance or airworthiness of the aircraft;
any log book relating to the use of the aircraft; and
any similar document;
“freight shuttle wagon” means a wagon which—
forms part of a shuttle-train, and
is designed to carry commercial goods vehicles;
“freight train” means any train other than—
a train engaged on a service for the carriage of passengers, or
a shuttle-train;
“goods vehicle” means—
a mechanically propelled vehicle which—
is designed or adapted solely or principally to be used for the carriage or haulage of goods, and
at the time in question, is being used for a commercial purpose, or
any trailer, semi-trailer or other thing which—
is designed or adapted to be towed by a vehicle within paragraph (a)(i), and
at the time in question, is being used for a commercial purpose;
“hirer”, in relation to a vehicle, means any person who has hired the vehicle from another person;
“operating weight”, in relation to an aircraft, means the maximum total weight of the aircraft and its contents at which the aircraft may take off anywhere in the world, in the most favourable circumstances, in accordance with the certificate of airworthiness in force in respect of the aircraft;
“owner” includes—
in relation to a ship or aircraft, the agent or operator of the ship or aircraft; . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
in relation to a transporter which is the subject of a hire-purchase agreement, includes the person in possession of it under that agreement;
“penalty notice” has the meaning given in section 35(2);
“rail freight wagon” means—
any rolling stock, other than a locomotive, which forms part of a freight train, or
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);
“senior officer” means an immigration officer not below the rank of chief immigration officer;
“ship” includes every description of vessel used in navigation;
“shuttle-train” has the meaning given by section 1(9) of the Channel Tunnel Act 1987 (c. 53);
“small aircraft” means an aircraft which has an operating weight of less than 5,700 kilogrammes;
“small ship” means a ship which has a gross tonnage of less than 500 tonnes;
“train” means a train which—
is engaged on an international service as defined by section 13(6) of the Channel Tunnel Act 1987; but
is not a shuttle train as defined by section 1(9) of that Act;
“train operator”, in relation to a person arriving in the United Kingdom on a train, means the operator of trains who embarked that person on that train for the journey to the United Kingdom;
“transporter” means a vehicle (including a goods vehicle), ship , aircraft or rail freight wagon together with—
its equipment; and
any stores for use in connection with its operation;
“vehicle” includes a trailer, semi-trailer, caravan or other thing which is designed or adapted to be towed by another vehicle.
(1A) References in this Part to the securing of a goods vehicle against unauthorised access include references to the securing of any container which is being carried by a goods vehicle against unauthorised access.
(1B) In subsection (1A) “container” means any container or other thing which is designed or adapted to be carried by a goods vehicle.
(2) A reference in this Part to “the court” is a reference—
(a) in England and Wales, to the county court,
(b) in Scotland, to the sheriff, and
(c) in Northern Ireland, to a county court.
(3) But—
(a) a county court in Northern Ireland, or the county court in England and Wales, 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.
(1) The Secretary of State may by regulations make new provision in relation to applications for bail by persons detained under the 1971 Act or under section 62 of the Nationality, Immigration and Asylum Act 2002.
(2) The regulations may confer a right to be released on bail in prescribed circumstances.
(3) The regulations may, in particular, make provision—
(a) creating or transferring jurisdiction to hear an application for bail by a person detained under the 1971 Act or under section 62 of the Nationality, Immigration and Asylum Act 2002;
(b) as to the places in which such an application may be held;
(c) as to the procedure to be followed on, or in connection with, such an application;
(d) as to circumstances in which, and conditions (including financial conditions) on which, an applicant may be released on bail;
(e) amending or repealing any enactment so far as it relates to such an application.
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6) Regulations under this section require the approval of the Lord Chancellor.
(6A) In so far as regulations under this section relate to England and Wales, the Lord Chancellor must consult the Lord Chief Justice of England and Wales before giving his approval.
(6B) In so far as regulations under this section relate to Northern Ireland, the Lord Chancellor must consult the Lord Chief Justice of Northern Ireland and the Department of Justice in Northern Ireland before giving his approval.
(7) In so far as regulations under this section relate to the sheriff or the Court of Session, the Lord Chancellor must obtain the consent of the Scottish Ministers before giving his approval.
(8) The Lord Chief Justice of England and Wales may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise his functions under this section.
(9) The Lord Chief Justice of Northern Ireland may nominate any of the following to exercise his functions under this section—
(a) the holder of one of the offices listed in Schedule 1 to the Justice (Northern Ireland) Act 2002;
(b) a Lord Justice of Appeal (as defined in section 88 of that Act).
54 Extension of right to apply for bail in deportation cases.
(1) Paragraph 2 of Schedule 3 to the 1971 Act (detention or control pending deportation) is amended as follows.
(2) In sub-paragraph (1), at the end insert “ or he is released on bail ”.
(3) In sub-paragraph (3), after “unless” insert “ he is released on bail or ”.
(4) After sub-paragraph (4) insert—
(4A) Paragraphs 22 to 25 of Schedule 2 to this Act apply in relation to a person detained under sub-paragraph (1), (2) or (3) as they apply in relation to a person detained under paragraph 16 of that Schedule.
(1) In this Part—
“claim for asylum” means a claim that it would be contrary to the United Kingdom’s obligations under—
the Refugee Convention, or
Article 3 of the Human Rights Convention,
for the claimant to be removed from, or required to leave, the United Kingdom;
“the Commissioner” means the Immigration Services Commissioner;
“the complaints scheme” means the scheme established under paragraph 5(1) of Schedule 5;
“designated judge” has the same meaning as in section 119(1) of the Courts and Legal Services Act 1990;
“designated professional body” has the meaning given by section 86;
“designated qualifying regulator” has the meaning given by section 86A;
“immigration advice” means advice which—
relates to a particular individual;
is given in connection with one or more relevant matters;
is given by a person who knows that he is giving it in relation to a particular individual and in connection with one or more relevant matters; and
is not given in connection with representing an individual before a court in criminal proceedings or matters ancillary to criminal proceedings;
“immigration services” means the making of representations on behalf of a particular individual—
in civil proceedings before a court, tribunal or adjudicator in the United Kingdom, or
in correspondence with a Minister of the Crown or government department,
in connection with one or more relevant matters;
“Minister of the Crown” has the same meaning as in the Ministers of the Crown Act 1975;
“qualified person” means a person who is qualified for the purposes of section 84;
“registered person” means a person who is registered with the Commissioner under section 85;
“relevant matters” means any of the following—
a claim for asylum;
an application for an ETA (within the meaning of section 11C of the Immigration Act 1971 (electronic travel authorisations));
an application for, or for the variation of, entry clearance or leave to enter or remain in the United Kingdom;
an application for an immigration employment document;
unlawful entry into the United Kingdom;
nationality and citizenship under the law of the United Kingdom;
...
...
...
removal or deportation from the United Kingdom;
an application for bail under the Immigration Acts or under the Special Immigration Appeals Commission Act 1997;
an appeal against, or an application for judicial review in relation to, any decision taken in connection with a matter referred to in paragraphs (a) to (i); ...
...
(2) In this Part, references to the provision of immigration advice or immigration services are to the provision of such advice or services by a person—
(a) in the United Kingdom (regardless of whether the persons to whom they are provided are in the United Kingdom or elsewhere); and
(b) in the course of a business carried on (whether or not for profit) by him or by another person.
(3) In the definition of “relevant matters” in subsection (1) “immigration employment document” means—
(a) a work permit (within the meaning of section 33(1) of the Immigration Act 1971 (interpretation)), 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 United Kingdom.
(4) The Secretary of State may by regulations amend the definition of “relevant matters” in subsection (1).
(5) Regulations under subsection (4) may make consequential amendments to this section.
(1) There is to be an Immigration Services Commissioner (referred to in this Part as “the Commissioner”).
(2) The Commissioner is to be appointed by the Secretary of State after consulting the Lord Chancellor, the Department of Justice in Northern Ireland and the Scottish Ministers.
(3) It is to be the general duty of the Commissioner to promote good practice by those who provide immigration advice or immigration services.
(4) In addition to any other functions conferred on him by this Part, the Commissioner is to have the regulatory functions set out in Part I of Schedule 5.
(5) The Commissioner must exercise his functions so as to secure, so far as is reasonably practicable, that those who provide immigration advice or immigration services—
(a) are fit and competent to do so;
(b) act in the best interests of their clients;
(c) do not knowingly mislead any court, tribunal or adjudicator in the United Kingdom;
(d) do not seek to abuse any procedure operating in the United Kingdom in connection with immigration or asylum (including any appellate or other judicial procedure);
(e) do not advise any person to do something which would amount to such an abuse.
(6) The Commissioner—
(a) must arrange for the publication, in such form and manner and to such extent as he considers appropriate, of information about his functions and about matters falling within the scope of his functions; and
(b) may give advice about his functions and about such matters.
(6A) The duties imposed on the Commissioner by subsections (3) and (5) apply in relation to persons within section 84(2)(ba) only to the extent that those duties have effect in relation to the Commissioner's functions under section 92 or 92A.
(7) Part II of Schedule 5 makes further provision with respect to the Commissioner.
(1) No person may provide immigration advice or immigration services unless he is a qualified person.
(2) A person is a qualified person if he is—
(a) a registered person,
(b) authorised by a designated professional body to practise as a member of the profession whose members the body regulates,
(ba) a person authorised to provide immigration advice or immigration services by a designated qualifying regulator,
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(d) ... or
(e) acting on behalf of, and under the supervision of, a person within any of paragraphs (a) to (ba) (whether or not under a contract of employment).
(3) Subsection (2)(a) and (e) are subject to—
(a) any limitation on the effect of a person’s registration imposed under paragraph 2(2) of Schedule 6.
(b) paragraph 4B(5) of that Schedule (effect of suspension of registration).
(3A) A person's entitlement to provide immigration advice or immigration services by virtue of subsection (2)(ba)—
(a) is subject to any limitation on that person's authorisation imposed by the regulatory arrangements of the designated qualifying regulator in question, and
(b) does not extend to the provision of such advice or services by the person other than in England and Wales (regardless of whether the persons to whom they are provided are in England and Wales or elsewhere).
(3B) In subsection (3A) “regulatory arrangements” has the same meaning as in the Legal Services Act 2007 (see section 21 of that Act).
(4) Subsection (1) does not apply to a person who—
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(d) ... falls within a category of person specified in an order made by the Secretary of State for the purposes of this subsection.
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6) Subsection (1) does not apply to a person—
(a) holding an office under the Crown, when acting in that capacity;
(b) employed by, or for the purposes of, a government department, when acting in that capacity;
(c) acting under the control of a government department; or
(d) otherwise exercising functions on behalf of the Crown.
(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
84A Limitations on acting under supervision: sanctions under this Part
(1) A person (“P”) is not entitled to provide immigration advice or immigration services by virtue of section 84(2)(e) (persons acting under supervision) if—
(a) P is disqualified under paragraph 4 of Schedule 6 (conviction of certain immigration offences) for registration under paragraph 2 of that Schedule or continued registration under paragraph 3 of that Schedule,
(b) P’s registration is suspended under paragraph 4AA of Schedule 6 (suspension on grounds of risk of serious harm), or
(c) P’s registration is suspended under paragraph 4B of Schedule 6 (suspension of persons charged with particular offences).
(2) A person (“P”) is not entitled to provide immigration advice or immigration services by virtue of section 84(2)(e) during the relevant period if—
(a) P’s registration has been cancelled under paragraph 4A(e) of Schedule 6 (cancellation for lack of competence etc), and
(b) the cancellation took effect before the end of the period mentioned in subsection (3A) of section 87 because condition A in subsection (3AB) of that section (risk of serious harm) was met in relation to P.
(3) In subsection (2) “the relevant period” means the period of 12 months beginning with the time specified in the notice under section 87(3AB) as the time at which the decision to cancel P’s registration had effect.
(4) Subsection (2) does not apply if—
(a) the Commissioner decides to register P or to continue P’s registration, or
(b) the cancellation of P’s registration is overturned on appeal (unless the cancellation is subsequently reinstated as a result of a further appeal).
(5) A person (“P”) is not entitled to provide immigration advice or immigration services by virtue of section 84(2)(e) if—
(a) P’s registration has been cancelled under paragraph 4A(e) of Schedule 6, and
(b) the cancellation took effect before the end of the period mentioned in subsection (3A) of section 87 because condition B in subsection (3AC) of that section (conviction of particular offences) was met in relation to P.
(6) Subsection (5) does not apply if—
(a) P’s conviction of the offence mentioned in section 87(3AC) is quashed or set aside,
(b) the Commissioner decides to register P or to continue P’s registration, or
(c) the cancellation of P’s registration is overturned on appeal (unless the cancellation is subsequently reinstated as a result of a further appeal).
(7) A person (“P”) other than a person to whom subsection (1), (2) or (5) applies is not entitled to provide immigration advice or immigration services by virtue of section 84(2)(e) if—
(a) subsection (8) applied to P when P entered into the arrangement for supervision, and
(b) P did not inform the person by whom P was to be supervised of that fact before entering into that arrangement.
(8) This subsection applies to P if—
(a) P is or has previously been subject to a direction by the First-tier Tribunal under section 89(2A)(a) (directions in connection with registration),
(b) P is or has previously been subject to a direction by the First-tier Tribunal under section 89(8)(a) (restrictions on provision of immigration advice or immigration services),
(c) P has previously been subject to a direction by the First-tier Tribunal under section 89(8)(b) (suspension from provision of immigration advice or immigration services),
(d) P is or has previously been subject to an order made by a disciplinary body under section 90(1)(a) (restrictions on provision of immigration advice or immigration services),
(e) P has previously been subject to an order made by a disciplinary body under section 90(1)(b) (suspension from provision of immigration advice or immigration services),
(f) P has at any time been given a penalty notice under section 92C (power to impose monetary penalties),
(g) P’s registration has at any time been cancelled under paragraph 6(3)(a) of Schedule 5 (failure to assist with investigation),
(h) P’s registration has at any time been cancelled under paragraph 10A(7) or (8) of Schedule 5 (failure to allow access to premises etc),
(i) P’s registration has at any time been cancelled under paragraph 4A(d) or (e) of Schedule 6 (cancellation following direction by First-tier Tribunal or for lack of competence etc),
(j) P’s registration has previously been suspended under paragraph 4AA of Schedule 6, or
(k) P’s registration has previously been suspended under paragraph 4B of Schedule 6.
(9) Subsection (7) does not apply if, before the time mentioned in subsection (7)(a), the direction, order, penalty, cancellation or suspension referred to in subsection (8)—
(a) had been reversed, cancelled or quashed,
(b) had been overturned on appeal (and had not subsequently been reinstated as a result of a further appeal), or
(c) in the case of suspension under paragraph 4B of Schedule 6, had ceased to have effect by virtue of sub-paragraph (2) of that paragraph.
84B Limitations on acting under supervision: other sanctions
(1) The Secretary of State may by regulations provide that a person is not entitled to provide immigration advice or immigration services by virtue of section 84(2)(e) where—
(a) the person is subject to a professional sanction of a kind specified in the regulations, or
(b) in the circumstances specified in the regulations, the person is disqualified or suspended from practice as a member of a relevant profession.
(2) The Secretary of State may by regulations provide that a person (“P”) is not entitled to provide immigration advice or immigration services by virtue of section 84(2)(e) where—
(a) when P entered into the arrangement for supervision—
(i) P was or had previously been subject to a professional sanction of a kind specified in the regulations, or
(ii) in the circumstances specified in the regulations, P was or had previously been disqualified or suspended from practice as a member of a relevant profession, and
(b) P did not inform the person by whom P was to be supervised of that fact before entering into the arrangement for supervision.
(3) In this section—
“professional sanction” means an order, direction or decision which is imposed, given or made by, or other action which is taken by—
a designated professional body,
a designated qualifying regulator,
a relevant disciplinary body,
an Inn of Court, or
a judge, court or tribunal in the exercise of a function in relation to the provision of legal services;
“relevant disciplinary body” means a body established wholly or partly for the purpose of exercising disciplinary functions in relation to—
members of a designated professional body, or
persons regulated by a designated qualifying regulator;
“relevant profession” means a profession which is regulated by a designated professional body or a designated qualifying regulator.
(1) “Designated professional body” means—
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) The Law Society of Scotland;
(c) The Law Society of Northern Ireland;
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(f) The Faculty of Advocates; or
(g) The General Council of the Bar of Northern Ireland.
(2) The Secretary of State may by order remove a body from the list in subsection (1) if he considers that the body—
(a) has failed to provide effective regulation of its members in their provision of immigration advice or immigration services, or
(b) has failed to comply with a request of the Commissioner for the provision of information (whether general or in relation to a particular case or matter).
(3) If a designated professional body asks the Secretary of State to amend subsection (1) so as to remove its name, the Secretary of State may by order do so.
(4) If the Secretary of State is proposing to act under subsection (2) he must, before doing so—
(a) consult the Commissioner;
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(c) consult the Scottish Legal Complaints Commission, if the proposed order would affect a designated professional body in Scotland;
(d) consult the Legal Services Oversight Commissioner for Northern Ireland, if the proposed order would affect a designated professional body in Northern Ireland;
(e) notify the body concerned of his proposal and give it a reasonable period within which to make representations; and
(f) consider any representations so made.
(5) An order under subsection (2) requires the approval of—
(a) the Department of Justice in Northern Ireland, if it affects a designated professional body in ... Northern Ireland;
(b) the Scottish Ministers, if it affects a designated professional body in Scotland.
(6) Before deciding whether or not to give its approval under subsection (5)(a), the Department of Justice in Northern Ireland must consult the Lord Chief Justice of Northern Ireland.
(7) Before deciding whether or not to give their approval under subsection (5)(b), the Scottish Ministers must consult the Lord President of the Court of Session.
(8) If the Secretary of State considers that a body (other than a body in England and Wales) which—
(a) is concerned (whether wholly or in part) with regulating the legal profession, or a branch of it, in Scotland or Northern Ireland,
(b) is not a designated professional body, and
(c) is capable of providing effective regulation of its members in their provision of immigration advice or immigration services,
ought to be designated, he may by order amend subsection (1) to include the name of that body.
(9) The Commissioner must—
(a) keep under review the list of designated professional bodies set out in subsection (1); and
(b) report to the Secretary of State if the Commissioner considers that a designated professional body—
(i) is failing to provide effective regulation of its members in their provision of immigration advice or immigration services, or
(ii) has failed to comply with a request of the Commissioner for the provision of information (whether general or in relation to a particular case or matter).
(9A) A designated professional body shall comply with a request of the Commissioner for the provision of information (whether general or in relation to a specified case or matter).
(10) For the purpose of meeting the costs incurred by the Commissioner in discharging his functions under this Part, each designated professional body must pay to the Commissioner, in each year and on such date as may be specified, such fee as may be specified.
(11) Any unpaid fee for which a designated professional body is liable under subsection (10) may be recovered from that body as a debt due to the Commissioner.
(12) “Specified” means specified by an order made by the Secretary of State.
(1) “Designated qualifying regulator” means a body which is a qualifying regulator and is listed in subsection (2).
(2) The listed bodies are—
(a) the Law Society;
(b) the Institute of Legal Executives;
(c) the General Council of the Bar.
(3) The Secretary of State may by order remove a body from the list in subsection (2) if the Secretary of State considers that the body has failed to provide effective regulation of relevant authorised persons in their provision of immigration advice or immigration services.
(4) If a designated qualifying regulator asks the Secretary of State to amend subsection (2) so as to remove its name, the Secretary of State may by order do so.
(5) Where, at a time when a body is listed in subsection (2), the body ceases to be a qualifying regulator by virtue of paragraph 8(1)(a) of Schedule 18 to the Legal Services Act 2007 (loss of approved regulator status), the Secretary of State must, by order, remove it from the list.
(6) If the Secretary of State considers that a body which—
(a) is a qualifying regulator,
(b) is not a designated qualifying regulator, and
(c) is capable of providing effective regulation of relevant authorised persons in their provision of immigration advice or immigration services,
ought to be designated, the Secretary of State may, by order, amend the list in subsection (2) to include the name of that body.
(7) If the Secretary of State is proposing to act under subsection (3) or (6), the Secretary of State must, before doing so, consult the Commissioner.
(8) If the Secretary of State is proposing to act under subsection (3), the Secretary of State must, before doing so, also —
(a) notify the body concerned of the proposal and give it a reasonable period within which to make representations, and
(b) consider any representations duly made.
(9) An order under subsection (3) or (6) requires the approval of the Lord Chancellor.
(10) If the Legal Services Board considers that a designated qualifying regulator is failing to provide effective regulation of relevant authorised persons in their provision of immigration advice or immigration services, the Legal Services Board must make a report to this effect to—
(a) the Secretary of State, and
(b) the Lord Chancellor.
(11) In this section—
“qualifying regulator” means a body which is a qualifying regulator for the purposes of this Part of this Act by virtue of Part 1 of Schedule 18 to the Legal Services Act 2007 (approved regulators approved by the Legal Services Board in relation to immigration matters);
“relevant authorised persons”, in relation to a designated qualifying regulator, means persons who are authorised by the designated qualifying regulator to provide immigration advice or immigration services.
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2) Any person aggrieved by a relevant decision of the Commissioner may appeal to the First-tier Tribunal against the decision.
(3) “Relevant decision” means a decision—
(a) to refuse an application for registration made under paragraph 1 of Schedule 6;
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(c) under paragraph 2(2) of that Schedule to register with limited effect;
(d) to refuse an application for continued registration made under paragraph 3 of that Schedule;
(e) to vary a registration on an application under paragraph 3 of that Schedule;
(ea) to vary a registration under paragraph 3A of that Schedule; or
(eb) to cancel a registration under paragraph 4A(e) of that Schedule.
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3A) A relevant decision of the Commissioner is not to have effect while the period within which an appeal may be brought against the decision is running.
(3B) In the case of an appeal under this section, Tribunal Procedure Rules may include provision permitting the First-tier Tribunal to direct that while the appeal is being dealt with—
(a) no effect is to be given to the decision appealed against; or
(b) only such limited effect is to be given to it as may be specified in the direction.
(3C) If provision is made in Tribunal Procedure Rules by virtue of subsection (3B), the rules must also include provision requiring the First-tier Tribunal to consider applications by the Commissioner for the cancellation or variation of directions given by virtue of that subsection.
(4) For further functions of the First-tier Tribunal under this Part, see paragraph 9(1)(e) of Schedule 5 (disciplinary charges laid by the Commissioner) and paragraph 4B of Schedule 6 (suspension of registration by First-tier Tribunal) .
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(1) This section applies if the First-tier Tribunal allows an appeal under section 87.
(2) If the First-tier Tribunal considers it appropriate, it may direct the Commissioner—
(a) to register the applicant or to continue the applicant’s registration;
(b) to make or vary the applicant’s registration so as to have limited effect in any of the ways mentioned in paragraph 2(2) of Schedule 6;
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(d) to quash a decision recorded under paragraph 9(1)(a) of Schedule 5 and the record of that decision.
89 Disciplinary charge upheld by the First-tier Tribunal.
(1) This section applies if the First-tier Tribunal upholds a disciplinary charge laid by the Commissioner under paragraph 9(1)(e) of Schedule 5 against a person (“the person charged”).
(2) Subsections (2A) and (2B) apply if the person charged was, at the time to which the charge relates, a registered person or a person acting on behalf of a registered person.
(2A) If the registered person mentioned in subsection (2) is still registered, the First-tier Tribunal may direct the Commissioner—
(a) to record the charge and the First-tier Tribunal's decision on it for consideration in connection with that person's next application for continued registration;
(b) to cancel that person's registration.
(2B) If the registered person mentioned in subsection (2) is no longer registered, the First-tier Tribunal may direct the Commissioner to record the charge and the First-tier Tribunal's decision on it for consideration in connection with any application by that person for registration.
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5) If the person charged is found to have charged unreasonable fees for immigration advice or immigration services, the First-tier Tribunal may direct him to repay to the clients concerned such portion of those fees as it may determine.
(6) The First-tier Tribunal may direct the person charged to pay a penalty to the Commissioner of such sum as it considers appropriate.
(7) A direction given by the First-tier Tribunal under subsection (5) (or under subsection (6)) may be enforced by the clients concerned (or by the Commissioner)—
(a) as if it were an order of a county court in Northern Ireland or the county court in England and Wales ; or
(b) in Scotland, as if it were an extract registered decree arbitral bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland.
(8) The First-tier Tribunal may direct that the person charged or any person acting on his behalf or under his supervision is to be—
(a) subject to such restrictions on the provision of immigration advice or immigration services as the First-tier Tribunal considers appropriate;
(b) suspended from providing immigration advice or immigration services for such period as the First-tier Tribunal may determine; or
(c) prohibited from providing immigration advice or immigration services indefinitely.
(9) The Commissioner must keep a record of the persons against whom there is in force a direction given by the First-tier Tribunal under subsection (8).
(1) A disciplinary body may make an order directing that a person subject to its jurisdiction is to be—
(a) subject to such restrictions on the provision of immigration advice or immigration services as the body considers appropriate;
(b) suspended from providing immigration advice or immigration services for such period as the body may determine; or
(c) prohibited from providing immigration advice or immigration services indefinitely.
(2) “Disciplinary body” means any body—
(a) appearing to the Secretary of State to be established for the purpose of hearing disciplinary charges against—
(i) members of a designated professional body, or
(ii) persons regulated by designated qualifying regulators; and
(b) specified in an order made by the Secretary of State.
(3) The Secretary of State must consult the designated professional body or designated qualifying regulator concerned before making an order under subsection (2)(b).
(4) For the purposes of this section, a person is subject to the jurisdiction of a disciplinary body if he is an authorised person or is acting on behalf of an authorised person.
(5) “Authorised person” means —
(a) a person who is authorised by the designated professional body concerned to practise as a member of the profession whose members are regulated by that body, or
(b) a person who is authorised by the designated qualifying regulator concerned to provide immigration advice or immigration services.
(1) A person who provides immigration advice or immigration services in contravention of section 84 or of a restraining order is guilty of an offence and liable—
(a) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both; or
(b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine, or to both.
(2) “Restraining order” means—
(a) a direction given by the First-tier Tribunal under section 89(8) or paragraph 9(3) of Schedule 5; or
(b) an order made by a disciplinary body under section 90(1).
(3) If an offence under this section committed by a body corporate is proved—
(a) to have been committed with the consent or connivance of an officer, or
(b) to be attributable to neglect on his part,
the officer as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.
(4) “Officer”, in relation to a body corporate, means a director, manager, secretary or other similar officer of the body, or a person purporting to act in such a capacity.
(5) If the affairs of a body corporate are managed by its members, subsection (3) applies in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.
(6) If an offence under this section committed by a partnership in Scotland is proved—
(a) to have been committed with the consent or connivance of a partner, or
(b) to be attributable to neglect on his part,
the partner as well as the partnership is guilty of the offence and liable to be proceeded against and punished accordingly.
(7) “Partner” includes a person purporting to act as a partner.
(1) If it appears to the Commissioner that a person—
(a) is providing immigration advice or immigration services in contravention of section 84 or of a restraining order, and
(b) is likely to continue to do so unless restrained,
the Commissioner may apply to a county court in Northern Ireland or the county court in England and Wales for an injunction, or to the sheriff for an interdict, restraining him from doing so.
(2) If the court is satisfied that the application is well-founded, it may grant the injunction or interdict in the terms applied for or in more limited terms.
(3) “Restraining order” has the meaning given by section 91.
(1) On an application made by the Commissioner a justice of the peace may issue a warrant authorising the Commissioner to enter and search premises.
(2) A justice of the peace may issue a warrant in respect of premises only if satisfied that there are reasonable grounds for believing that—
(a) an offence under section 91 has been committed,
(b) there is material on the premises which is likely to be of substantial value (whether by itself or together with other material) to the investigation of the offence, and
(c) any of the conditions specified in subsection (3) is satisfied.
(3) Those conditions are—
(a) that it is not practicable to communicate with a person entitled to grant entry to the premises,
(b) that it is not practicable to communicate with a person entitled to grant access to the evidence,
(c) that entry to the premises will be prevented unless a warrant is produced, and
(d) that the purpose of a search may be frustrated or seriously prejudiced unless the Commissioner can secure immediate entry on arrival at the premises.
(4) The Commissioner may seize and retain anything for which a search is authorised under this section.
(5) A person commits an offence if without reasonable excuse he obstructs the Commissioner in the exercise of a power by virtue of this section.
(6) A person guilty of an offence under subsection (5) shall be liable on summary conviction to—
(a) imprisonment for a term not exceeding six months,
(b) a fine not exceeding level 5 on the standard scale, or
(c) both.
(7) In this section—
(a) a reference to the Commissioner includes a reference to a member of his staff authorised in writing by him,
(b) a reference to premises includes a reference to premises used wholly or partly as a dwelling, and
(c) a reference to material—
(i) includes material subject to legal privilege within the meaning of the Police and Criminal Evidence Act 1984 (c. 60),
(ii) does not include excluded material or special procedure material within the meaning of that Act, and
(iii) includes material whether or not it would be admissible in evidence at a trial.
(8) In the application of this section to Scotland—
(a) a reference to a justice of the peace shall be taken as a reference to the sheriff,
(b) for sub-paragraph (i) of subsection (7)(c) there is substituted—
(i) includes material comprising items subject to legal privilege (as defined by section 412 of the Proceeds of Crime Act 2002 (c. 29)),
and
(c) sub-paragraph (ii) of subsection (7)(c) shall be ignored.
(9) In the application of this section to Northern Ireland the reference to the Police and Criminal Evidence Act 1984 shall be taken as a reference to the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)).
(1) A person commits an offence if—
(a) he offers to provide immigration advice or immigration services, and
(b) provision by him of the advice or services would constitute an offence under section 91.
(2) For the purpose of subsection (1) a person offers to provide advice or services if he—
(a) makes an offer to a particular person or class of person,
(b) makes arrangements for an advertisement in which he offers to provide advice or services, or
(c) makes arrangements for an advertisement in which he is described or presented as competent to provide advice or services.
(3) A person guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding level 4 on the standard scale.
(4) Subsections (3) to (7) of section 91 shall have effect for the purposes of this section as they have effect for the purposes of that section.
(5) An information relating to an offence under this section may in England and Wales be tried by a magistrates' court if—
(a) it is laid within the period of six months beginning with the date (or first date) on which the offence is alleged to have been committed, or
(b) it is laid—
(i) within the period of two years beginning with that date, and
(ii) within the period of six months beginning with a date certified by the Immigration Services Commissioner as the date on which the commission of the offence came to his notice.
(6) In Scotland, proceedings for an offence under this section may be commenced—
(a) at any time within the period of six months beginning with the date (or first date) on which the offence is alleged to have been committed, or
(b) at any time within both—
(i) the period of two years beginning with that date, and
(ii) the period of six months beginning with a date specified, in a certificate signed by or on behalf of the procurator fiscal, as the date on which evidence sufficient in his opinion to warrant such proceedings came to his knowledge,
and any such certificate purporting to be so signed shall be deemed so signed unless the contrary is proved and be conclusive as to the facts stated in it.
(7) Subsection (3) of section 136 of the Criminal Procedure (Scotland) Act 1995 (c. 46) (date on which proceedings are deemed commenced) has effect to the purposes of subsection (6) as it has effect for the purposes of that section.
(8) A complaint charging the commission of an offence under this section may in Northern Ireland be heard and determined by a magistrates' court if—
(a) it is made within the period of six months beginning with the date (or first date) on which the offence is alleged to have been committed, or
(b) it is made—
(i) within the period of two years beginning with that date, and
(ii) within the period of six months beginning with a date certified by the Immigration Services Commissioner as the date on which the commission of the offence came to his notice.
(1) The Commissioner may give a relevant person a penalty notice if the Commissioner is satisfied on the balance of probabilities that the relevant person—
(a) has failed to comply with—
(i) the duty imposed on the person by paragraph 3(4) of Schedule 5 (duty to comply with Code of Standards) or paragraph 6(2) of that Schedule (duty to assist with investigation of complaint), or
(ii) any other requirement imposed on the person by or under this Part, or
(b) has, without reasonable excuse, obstructed the Commissioner in the exercise of the Commissioner’s functions under paragraph 4A of Schedule 5 (power to carry out inspections).
(2) In this section “relevant person”, in relation to the giving of a penalty notice, means a person who was a registered person at the time of the act or omission in relation to which the notice is given.
(3) A penalty notice is a notice requiring the person to whom it is given to pay to the Commissioner—
(a) an amount specified in regulations made by the Secretary of State (a “fixed penalty notice”), or
(b) an amount specified by the Commissioner in the notice (a “variable penalty notice”).
(4) The Commissioner may give a person who is not a relevant person a penalty notice if the Commissioner is satisfied on the balance of probabilities that the person has failed to comply with the duty imposed on the person by paragraph 6(2) of Schedule 5.
(5) The Commissioner may give an unqualified person a penalty notice if the Commissioner is satisfied on the balance of probabilities that the person has committed an offence under section 91 or 92B.
(6) In subsection (5) “unqualified person”, in relation to the giving of a penalty notice, means a person who was not a qualified person at the time of the act or omission in relation to which the notice is given.
(7) An amount specified in regulations under subsection (3)(a), and the amount specified in a variable penalty notice, must not exceed—
(a) in the case of a penalty imposed on a person under subsection (5) in relation to the commission of an offence under section 92B, the maximum amount of the fine that could be imposed on the person on summary conviction for the offence;
(b) in any other case, £15,000.
(8) The Secretary of State may by regulations amend the amount for the time being specified in subsection (7)(b).
(9) In this section and sections 92D to 92H—
“penalty notice” means a notice under this section;
“fixed penalty notice” and “variable penalty notice” have the meanings given by subsection (3).
(1) Before giving a penalty notice to a person the Commissioner must notify the person of the Commissioner’s intention to do so.
(2) The notice under subsection (1) must—
(a) specify the proposed amount of the penalty,
(b) specify the Commissioner’s reasons for proposing to impose the penalty,
(c) specify the period during which the person may make representations about the proposal (“the specified period”), and
(d) specify the way in which those representations may be made.
(3) The specified period must not be less than 28 days beginning with the date on which the notice under subsection (1) is given.
(4) The Commissioner must have regard to any representations made by a person during the specified period in deciding—
(a) whether to give a penalty notice to the person, and
(b) if the Commissioner decides to give a variable penalty notice to the person, the amount of the penalty specified in the notice.
(5) Where the Commissioner gives a penalty notice to a person, the notice must specify—
(a) the amount of the penalty, and
(b) the period within which the penalty must be paid (“the payment period”).
(6) The penalty notice must also contain information as to—
(a) the grounds for the penalty,
(b) how payment may be made,
(c) the details of any early payment discount or late payment penalty included by virtue of subsection (7),
(d) the consequences of non-payment,
(e) rights of appeal, and
(f) the period within which an appeal may be made.
(7) The penalty notice may include provision for the amount payable under the notice—
(a) to reduce in the event of early payment;
(b) to increase in the event of payment after the end of the payment period.
(1) A person to whom a penalty notice has been given may appeal to the First-tier Tribunal against—
(a) the decision to give the person a penalty notice;
(b) where the notice given is a variable penalty notice, the amount of the penalty specified in the notice.
(2) On an appeal under this section, the Tribunal may—
(a) cancel the penalty,
(b) confirm the requirement to pay the penalty, or
(c) in the case of an appeal under subsection (1)(b), amend the amount of the penalty.
(3) The requirement to pay the penalty under the notice is suspended at any time when—
(a) an appeal under this section could be brought by the person in respect of the penalty, or
(b) such an appeal is pending.
(4) But subsection (3)(a) does not prevent the requirement to pay taking effect if the person notifies the Commissioner that the person does not intend to appeal.
(5) No further amount is payable as a result of provision included in the penalty notice by virtue of section 92D(7)(b) in respect of the period during which the requirement to pay is suspended.
(6) For the purposes of subsection (3)(b) an appeal is pending during the period—
(a) starting when the appeal is brought, and
(b) ending when the appeal is finally determined, abandoned or withdrawn.
(1) This section applies if a person who is liable to pay an amount to the Commissioner under a penalty notice has not paid the whole or any part of that amount when it is required to be paid.
(2) In England and Wales the Commissioner may recover the unpaid amount on the order of the county court as if it were payable under an order of that court.
(3) In Scotland payment of the unpaid amount may be enforced in the same manner as an extract registered decree arbitral bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland.
(4) In Northern Ireland the Commissioner may recover the unpaid amount on the order of a county court as if it were payable under an order of that court.
(1) The Commissioner must prepare and publish guidance about the Commissioner’s use of the power to give a penalty notice.
(2) The guidance must, in particular, include information as to—
(a) the circumstances in which the Commissioner is likely to give—
(i) a fixed penalty notice, or
(ii) a variable penalty notice, and
(b) in the case of a variable penalty notice, the matters to which the Commissioner has regard in determining the amount of the penalty.
(3) The Commissioner—
(a) must from time to time review the guidance, and
(b) may revise and republish the guidance following a review.
(4) Before preparing or revising guidance under this section, the Commissioner must consult such persons as the Commissioner considers appropriate.
92H Penalties imposed in relation to commission of offence: convictions
A person who is required to pay a penalty under a penalty notice given under section 92C(5) (penalty in respect of offence under section 91 or 92B) may not at any time be convicted of an offence under section 91 or, as the case may be, 92B in respect of the act or omission in relation to which the notice was given.
(1) No enactment or rule of law prohibiting or restricting the disclosure of information prevents a person from—
(a) giving the Commissioner information which is necessary for the discharge of his functions; or
(b) giving the First-tier Tribunal information which is necessary for the discharge of its functions.
(2) No relevant person may at any time disclose information which—
(a) has been obtained by, or given to, the Commissioner under or for purposes of this Act,
(b) relates to an identified or identifiable individual or business, and
(c) is not at that time, and has not previously been, available to the public from other sources,
unless the disclosure is made with lawful authority.
(3) For the purposes of subsection (2), a disclosure is made with lawful authority only if, and to the extent that—
(a) it is made with the consent of the individual or of the person for the time being carrying on the business;
(b) it is made for the purposes of, and is necessary for, the discharge of any of the Commissioner’s functions under this Act ...;
(c) it is made for the purposes of any civil or criminal proceedings arising under or by virtue of this Part, or otherwise; or
(d) having regard to the rights and freedoms or legitimate interests of any person, the disclosure is necessary in the public interest.
(4) A person who knowingly or recklessly discloses information in contravention of subsection (2) is guilty of an offence and liable—
(a) on summary conviction, to a fine not exceeding the statutory maximum; or
(b) on conviction on indictment, to a fine.
(5) “Relevant person” means a person who is or has been—
(a) the Commissioner;
(b) a member of the Commissioner’s staff; or
(c) an agent of the Commissioner.