41 Repeal of certain provisions of the Illegal Migration Act 2023
(1) The following provisions of the Illegal Migration Act 2023 are repealed—
(a) sections 1 to 6 and Schedule 1;
(b) sections 7 to 11;
(c) sections 13 to 15 and Schedule 2;
(d) sections 16 to 28;
(e) sections 30 to 51;
(f) sections 53 to 58;
(g) section 61;
(h) section 66.
(2) Section 8AA of the Immigration Act 1971 (persons ineligible for leave to enter and remain, entry clearance and ETA) (inserted by section 30(3) of the Illegal Migration Act 2023) is to be treated as never having been in force.
(1) In the Immigration Act 1971—
(a) in section 8(1) (exceptions for seamen and aircrews) omit paragraph (d) and the “or” before it;
(b) omit section 8AA (persons ineligible for leave to enter and remain, entry clearance and ETA);
(c) in paragraph 17A of Schedule 2 (periods for which persons may be detained)—
(i) in sub-paragraph (2) omit “(2C),”;
(ii) in sub-paragraph (3) omit paragraph (d).
(2) In the British Nationality Act 1981—
(a) in section 3 (acquisition of British citizenship by registration: minors) omit subsection (7);
(b) in section 4 (acquisition of British citizenship by registration: British overseas territories citizens etc) omit subsection (7);
(c) in section 4A (acquisition of British citizenship by registration: further provision for British overseas territories citizens) omit subsection (3);
(d) in section 4AA (acquisition of British citizenship by registration: Irish citizens) (as inserted by section 1(2) of the British Nationality (Irish Citizens) Act 2024) omit subsection (4);
(e) in section 5 (acquisition of British citizenship by registration: British overseas territories citizens having connection with Gibraltar) omit “Subject to sections 31, 32 and 36 of the Illegal Migration Act 2023 (restriction of eligibility for citizenship etc),”;
(f) in section 6 (acquisition of British citizenship by naturalisation) omit subsection (3);
(g) in section 10 (registration as British citizen following renunciation of citizenship of UK etc) omit subsection (5);
(h) in section 13 (resumption of British citizenship) omit subsection (4);
(i) in section 17 (acquisition of British overseas territories citizenship by registration: minors) omit subsection (7);
(j) in section 18 (acquisition of British overseas territories citizenship by naturalisation) omit subsection (4);
(k) in section 22 (right to registration as British overseas territories citizen replacing right to resume citizenship of UK etc) omit subsection (5);
(l) in section 24 (renunciation and resumption of British overseas territories citizenship) omit “Subject to sections 31, 33 and 36 of the Illegal Migration Act 2023 (restriction of eligibility for citizenship etc),”;
(m) in section 27 (registration of minors as British overseas citizens), in subsection (1), omit “Subject to sections 31, 34 and 36 of the Illegal Migration Act 2023 (restriction of eligibility for citizenship etc),”;
(n) in section 32 (registration of minors as British subjects) omit “Subject to sections 31, 35 and 36 of the Illegal Migration Act 2023 (restriction of eligibility for citizenship etc),”.
(3) In section 62 of the Nationality, Immigration and Asylum Act 2002 (detention by Secretary of State)—
(a) in subsection (2O), for “to (2A)” substitute “and (2)”;
(b) in subsection (2P) omit paragraph (b).
(4) In section 61(2) of the UK Borders Act 2007 (meaning of “the Immigration Acts”), omit paragraph (o).
43 Immigration advisers and immigration service providers
Schedule 1 contains amendments of Part 5 of the Immigration and Asylum Act 1999 (immigration advisers and immigration service providers) and certain related amendments of other provision.
44 Detention and exercise of functions pending deportation
(1) Paragraph 2 of Schedule 3 to the Immigration Act 1971 (detention or control pending deportation) is amended in accordance with subsections (2) to (5).
(2) For sub-paragraph (2) substitute—
(2) A person (“P”) who is not detained in pursuance of the sentence or order of a court may be detained under the authority of the Secretary of State—
(a) while the Secretary of State considers whether to make a deportation order against P, and
(b) where the Secretary of State decides to make a deportation order against P, pending the making of the deportation order.
(2A) Sub-paragraph (2) applies only if—
(a) the Secretary of State has notified P in writing that the Secretary of State is considering whether to make a deportation order against P, or
(b) where no notice has been given under paragraph (a), the Secretary of State has notified P in writing that the Secretary of State has decided to make a deportation order against P.
(3) In sub-paragraph (3A), for “the deportation order” substitute “the decision whether to make a deportation order, or the deportation order,”.
(4) In sub-paragraph (3B), after “prevents” insert “the decision or”.
(5) In sub-paragraph (3D), after “considers that” insert “the decision or”.
(6) Section 141 of the Immigration and Asylum Act 1999 (fingerprinting) is amended in accordance with subsections (7) to (9).
(7) In subsection (7)—
(a) in paragraph (c), for the words from “has decided” to the end of the paragraph substitute
—
(i) is considering whether to make a deportation order,
(ii) is considering whether section 32(5) of the UK Borders Act 2007 (automatic deportation of foreign criminals) applies,
(iii) has decided to make a deportation order, or
(iv) has decided that section 32(5) of that Act applies;
, and
(b) in paragraph (f)(ii), after “(c)(i)” insert “or (iii)”.
(8) In subsection (8), in paragraph (c), for the words from “, when” to the end of the paragraph substitute
—
(i) when C is notified of the matter mentioned in subsection (7)(c)(i) or (ii), or
(ii) if no such notification is given to C, when C is notified of the decision mentioned in subsection (7)(c)(iii) or (iv);
.
(9) In subsection (9)(c)—
(a) before sub-paragraph (i) insert—
(zi) the time when C is notified of the Secretary of State’s decision not to make a deportation order against C or that section 32(5) of the UK Borders Act 2007 does not apply in respect of C,
, and
(b) in sub-paragraph (i), after “(7)(c)” insert “(iii) or (iv)”.
(10) Regulation 2 of the Immigration (Collection, Use and Retention of Biometric Information and Related Amendments) Regulations 2021 (S.I. 2021/772) (photographs) is amended in accordance with subsections (11) to (13).
(11) In paragraph (7)—
(a) for sub-paragraph (c) substitute—
(c) any person (“C”) in respect of whom the Secretary of State—
(i) is considering whether to make a deportation order,
(ii) is considering whether section 32(5) of the UK Borders Act 2007 (automatic deportation of foreign criminals) applies,
(iii) has decided to make a deportation order, or
(iv) has decided that section 32(5) of that Act applies;
, and
(b) in sub-paragraph (g)(ii), after “(c)(i)” insert “or (iii)”.
(12) In paragraph (11), in sub-paragraph (c), for the words from “, when” to the end of the sub-paragraph substitute
—
(i) when C is notified of the matter mentioned in paragraph (7)(c)(i) or (ii), or
(ii) if no such notification is given to C, when C is notified of the decision mentioned in paragraph (7)(c)(iii) or (iv);
.
(13) In paragraph (12)(a)(iii)—
(a) before sub-paragraph (aa) insert—
(zaa) the time when C is notified of the Secretary of State’s decision not to make a deportation order against C or that section 32(5) of the UK Borders Act 2007 does not apply in respect of C;
, and
(b) in sub-paragraph (aa), for “(7)(c)(i)” substitute “(7)(c)(iii) or (iv)”.
(14) Section 51 of the Immigration Act 2016 (search for nationality documents by detainee custody officers etc) is amended in accordance with subsections (15) and (16).
(15) In subsection (2)—
(a) for paragraph (b) substitute—
(b) in respect of whom the Secretary of State—
(i) is considering whether to make a deportation order under section 5(1) of that Act,
(ii) has decided to make such a deportation order, or
(iii) has made such a deportation order, or
,
(b) omit paragraph (c) and the “or” at the end of that paragraph, and
(c) for paragraph (d) substitute—
(d) in respect of whom the Secretary of State—
(i) is considering whether section 32(5) of the UK Borders Act 2007 (automatic deportation of foreign criminals) applies,
(ii) has decided that section 32(5) of that Act applies, or
(iii) has made such a deportation order in accordance with section 32(5) of that Act.
(16) After subsection (4) insert—
(4A) The Secretary of State may give a direction as mentioned in subsection (2)(b)(i) or (ii) in relation to a person detained in a prison or young offender institution only if—
(a) the Secretary of State has notified the person in writing that the Secretary of State is considering whether to make a deportation order under section 5(1) of the Immigration Act 1971 against the person, or
(b) where no notice has been given as mentioned in paragraph (a), the Secretary of State has notified the person in writing that the Secretary of State has decided to make such a deportation order against the person.
(4B) The Secretary of State may give a direction as mentioned in subsection (2)(d)(i) or (ii) in relation to a person detained in a prison or young offender institution only if—
(a) the Secretary of State has notified the person in writing that the Secretary of State is considering whether section 32(5) of the UK Borders Act 2007 applies in respect of the person, or
(b) where no notice has been given as mentioned in paragraph (a), the Secretary of State has notified the person in writing that the Secretary of State has decided that section 32(5) of that Act applies in respect of the person.
(17) The amendments made by subsections (1) to (13) are to be treated as always having had effect.
45 EU Settlement Scheme: rights of entry and residence etc
(1) For the purposes of this section “relevant citizens’ rights” means the rights, powers, liabilities, obligations, restrictions, remedies and procedures which—
(a) are recognised and available in domestic law by virtue of section 7A or 7B of the European Union (Withdrawal) Act 2018, and
(b) are derived from—
(i) Title 2 of Part 2 of the withdrawal agreement or Title 1 or 4 of Part 2 of that agreement so far as relating to Title 2 of that Part,
(ii) Title 2 of Part 2 of the EEA EFTA separation agreement or Title 1 or 4 of Part 2 of that agreement so far as relating to Title 2 of that Part, or
(iii) Article 4(2), 7 or 8 or Chapter 1 of Title 2 of Part 2 of the Swiss citizens’ rights agreement or Title 1 of Part 2 of that agreement so far as relating to Chapter 1 of Title 2 of that Part.
(2) Subsection (5) applies to a person (“P”) where—
(a) P has leave to enter or remain in the United Kingdom granted by virtue of residence scheme immigration rules,
(b) the leave was granted to P on the basis of requirements which included that P is a relevant national or is (or was) a family member of a person who is (or was) a relevant national,
(c) each of the requirements on the basis of which P’s leave was granted was in fact met,
(d) either—
(i) in a case where P’s leave was not granted on the basis that P is (or was) a joining family member of a relevant sponsor, P was resident in the United Kingdom or the Islands immediately before the end of the implementation period, or
(ii) in a case where P’s leave was granted on the basis that P is (or was) a joining family member of a relevant sponsor, the relevant sponsor was resident in the United Kingdom or the Islands immediately before the end of the implementation period, and
(e) the residency mentioned in paragraph (d) was not relevant residency.
(3) For the purposes of subsection (2)—
(a) a person is to be treated as a family member of another person if they are treated as the family member of that person by residence scheme immigration rules;
(b) “joining family member” and “relevant sponsor” have the same meaning as in residence scheme immigration rules;
(c) a person is to be treated as resident in the United Kingdom or the Islands immediately before the end of the implementation period even if they were temporarily absent from the United Kingdom or the Islands at that time if their absence was permitted for the purposes of establishing or maintaining eligibility for leave under residence scheme immigration rules;
(d) “relevant national” means a national of Austria, Belgium, Bulgaria, Croatia, Republic of Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden or Switzerland.
(4) In this section “relevant residency” means—
(a) residency in accordance with Union law (within the meaning of the withdrawal agreement),
(b) residency in accordance with the EEA Agreement (within the meaning of the EEA EFTA separation agreement), or
(c) residency in accordance with the FMOPA (within the meaning of the Swiss citizens’ rights agreement).
(5) Relevant citizens' rights—
(a) are capable of accruing and applying to a person to whom this subsection applies notwithstanding that the residency mentioned in subsection (2)(d) was not relevant residency, and
(b) are to be enforced, allowed and followed accordingly.
(6) Every enactment (including an enactment contained in this Act) is to be read and has effect subject to subsection (5).
(7) In this section—
“EEA EFTA separation agreement” has the same meaning as in the European Union (Withdrawal Agreement) Act 2020 (see section 39(1) of that Act);
“enactment” has the same meaning as in the European Union (Withdrawal) Act 2018 (see section 20(1) of that Act);
“the implementation period” has the same meaning as in the European Union (Withdrawal) Act 2018 (see section 1A(6) of that Act);
“the Islands” means the Bailiwick of Guernsey, the Bailiwick of Jersey or the Isle of Man;
“residence scheme immigration rules” has the same meaning as in Part 3 of the European Union (Withdrawal Agreement) Act 2020 (see section 17 of that Act);
“Swiss citizens’ rights agreement” has the same meaning as in the European Union (Withdrawal Agreement) Act 2020 (see section 39(1) of that Act);
“withdrawal agreement” has the same meaning as in the European Union (Withdrawal Agreement) Act 2020 (see section 39(1) and (6) of that Act).
46 Conditions on limited leave to enter or remain and immigration bail
(1) The Immigration Act 1971 is amended in accordance with subsections (2) and (3).
(2) In section 3 (general provisions for regulation and control)—
(a) in subsection (1)(c)—
(i) omit the “and” at the end of sub-paragraph (iv), and
(ii) at the end of sub-paragraph (v) insert—
(vi) an electronic monitoring condition (see Schedule 1A);
(vii) a condition requiring the person to be at a particular place between particular times, either on particular days or on any day;
(viii) a condition requiring the person to remain within a particular area;
(ix) a condition prohibiting the person from being in a particular area;
(x) such other conditions as the Secretary of State thinks fit.
, and
(b) after subsection (1) insert—
(1A) A condition under any of sub-paragraphs (vi) to (x) of subsection (1)(c) may be attached to limited leave to enter or remain in the United Kingdom given to a person only if the Secretary of State considers that—
(a) the person poses a threat to national security,
(b) the person poses a threat to the safety of the public, a section of the public, a particular individual or particular individuals,
(c) the person has committed an offence that is specified, or falls within a description specified, in Schedule 1 to the Serious Crime Act 2007 (serious offences),
(d) the person has committed—
(i) an offence that is specified in Part 2 of Schedule 18 to the Sentencing Code (specified sexual offences),
(ii) a sexual offence for the purposes of section 210A of the Criminal Procedure (Scotland) Act 1995 (extended sentences), or
(iii) an offence that is specified in Part 2 of Schedule 2 to the Criminal Justice (Northern Ireland) Order 2008 (S.I. 2008/1216 (N.I. 1)) (specified sexual offences), or
(e) the person—
(i) has committed, or is suspected of having committed, an offence outside the United Kingdom, and
(ii) the act constituting the offence would, if it had been done in any part of the United Kingdom, have constituted an offence within paragraph (c) or (d) (other than an offence within paragraph (xxviii) of the definition of “sexual offence” in section 210A(10) of the Criminal Procedure (Scotland) Act 2010).
(1B) For the purposes of subsection (1A)(e) an act punishable under the law in force in a country or territory outside the United Kingdom constitutes an offence under that law however it is described in that law.
(3) Before Schedule 2 insert—
Schedule 1A
Electronic monitoring conditions
Section 3(1)(c)(vi)
1 For the purposes of section 3(1)(c)(vi), an “electronic monitoring condition” means a condition requiring the person on whom it is imposed (“P”) to co-operate with such arrangements as the Secretary of State may specify for detecting and recording by electronic means one or more of the following—
(a) P’s location at specified times, during specified periods of time or while the arrangements are in place;
(b) P’s presence in a location at specified times, during specified periods of time or while the arrangements are in place;
(c) P’s absence from a location at specified times, during specified periods of time or while the arrangements are in place.
2 The arrangements may in particular—
(a) require P to wear a device;
(b) require P to make specified use of a device;
(c) require P to communicate in a specified manner and at specified times or during specified periods;
(d) involve the exercise of functions by persons other than the Secretary of State.
3 If the arrangements require P to wear, or make specified use of, a device they must—
(a) prohibit P from causing or permitting damage to, or interference with, the device, and
(b) prohibit P from taking or permitting action that would or might prevent the effective operation of the device.
4 An electronic monitoring condition may not be imposed on a person unless the person is at least 18 years old.
5 In this Schedule “specified” means specified in the arrangements.
(4) In Schedule 10 to the Immigration Act 2016 (immigration bail), in paragraph 2(1) (conditions of bail), after paragraph (e) insert—
(ea) a condition requiring the person to be at a particular place between particular times, either on particular days or on any day;
(eb) a condition requiring the person to remain within a particular area;
(ec) a condition prohibiting the person from being in a particular area;
.
(1) Section 141 of the Immigration and Asylum Act 1999 (fingerprinting) is amended in accordance with subsections (2) to (5).
(2) In subsection (5)—
(a) omit the “or” at the end of paragraph (d), and
(b) after paragraph (e) insert—
(f) a person who is employed by a contractor in connection with the discharge of the contractor’s duties under a short-term holding facility contract; or
(g) a person of a description specified in regulations made by the Secretary of State.
(3) After subsection (6) insert—
(6A) In this section—
(a) “short-term holding facility” has the same meaning as in Part 8,
(b) “short-term holding facility contract” means a contract entered into by the Secretary of State under section 149 as extended to short-term holding facilities by regulations under section 157(1), and
(c) “contractor”, in relation to a short-term holding facility which is being run in accordance with a short-term holding facility contract, means the person who has contracted to run it.
(4) In subsection (12)—
(a) in paragraph (b), for “or (e)” substitute “, (e) or (f)”, and
(b) after paragraph (d) insert—
(e) if the authorised person is specified in regulations made by the Secretary of State under subsection (5)(g), by a person, or a person of a description, specified in such regulations.
(5) Omit subsection (17).
(6) In section 144(1) of the Immigration and Asylum Act 1999 (power to make provision equivalent to sections 141 and 142 in relation to other biometric information), after “142” insert “, or to provision made under section 141,”.
48 Extension of prohibition on employment to other working arrangements
(1) The Immigration, Asylum and Nationality Act 2006 is amended as follows.
(2) In the italic heading before section 15, after “Employment” insert “and other working arrangements”.
(3) Before section 15, after the italic heading insert—
Application of sections 15 to 24 to other working arrangements
14A (1) In sections 15 to 24, a reference to a person employing another person includes a reference to—
(a) a person (“person A”) engaging an individual (“individual A”) under a worker’s contract,
(b) a person (“person B”) engaging an individual sub-contractor (“individual B”), and
(c) an online matching service (“person C”) providing the details of an individual who is a service provider (“individual C”) to potential clients or customers.
(2) Accordingly—
(a) references in sections 15 to 24 to employment include engagement of the kind mentioned in paragraph (a) or (b) of subsection (1) or the provision of details as mentioned in paragraph (c) of that subsection;
(b) references in those sections to an employer include person A, person B or person C;
(c) references in those sections to an employee include individual A, individual B or individual C.
(3) In this section—
“worker’s contract” means a contract, other than a contract of service or apprenticeship, under which—
individual A undertakes to do or perform personally work or services for person A or another person (whether or not that other person is specified in the contract), and
person A is neither a client nor customer of any profession or business undertaking carried on by individual A;
“individual sub-contractor” means an individual (“individual B”) who has entered into a contract with person B to provide work or services in circumstances where person B has entered into a contract with a third party to provide, or arrange for the provision of, the work or services but individual B has not;
“online matching service” means a person who, in the course of a business—
keeps a register of service providers for the purpose of matching them with potential clients or customers,
provides an online service by which potential clients or customers can submit enquiries for the purpose of being matched with suitable service providers, and
charges a fee or commission in return for making such matches;
“service provider” means a person providing, or seeking to provide, work or services for remuneration.
(4) Subsection (1)(a), and subsection (2) so far as it has effect in consequence of subsection (1)(a), do not apply if and to the extent that—
(a) under the worker’s contract, individual A undertakes to do or perform personally work or services for a person other than person A (whether or not that other person is specified in the contract), and
(b) the status of a person for whom individual A does or performs work or services under the contract is that of a client or customer of a profession or business undertaking carried on by individual A.
(5) In this section a reference to a contract includes a contract that is express or implied and (if it is express) whether oral or in writing.
(6) This section is subject to subsection (2) of section 15A (which provides for subsection (1)(a) of that section not to apply in relation to an online matching service).
(4) After section 15 insert—
Extension of liability under section 15
15A (1) Subsection (4) applies where a person (“A”)—
(a) employs an individual to provide work or services, or
(b) is contracted to provide, or arrange for the provision of, work or services and enters into a contract under which another person is to provide, or arrange for the provision of, the work or services (or part of the work or services).
(2) The reference in subsection (1)(a) to A employing an individual does not include A doing so as mentioned in section 14A(1)(c) (online matching services).
(3) Subsection (4) also applies where—
(a) a person (“A”) is an online matching service who provides the details of another person who is a service provider to potential clients or customers, and
(b) as a result of being matched by person A, the service provider enters into a contract with a client or customer for the provision of work or services.
(4) For the purposes of section 15, and where this would not otherwise be the case, A is to be treated as employing any individual (“B”) who personally provides the work or services (or any part of the work or services), including where—
(a) A is not in a contractual relationship with B, or
(b) A does not know that B is providing the work or services (or part of the work or services).
(5) Subsection (4) applies where A is contracted to provide, or arrange for the provision of, the work or services regardless of whether that contract is the first or any other contract in a chain of contracts to provide, or arrange for the provision of, the work or services (or part of the work or services).
(6) This section does not affect the liability of any other employer under section 15.
(7) In sections 15, 16, 17, 23 and 24 a reference to a person employing another person includes a reference to a person who is treated as doing so by virtue of subsection (4); and references in those sections to employment, employers and employees are to be construed accordingly.
(8) In this section “online matching service” and “service provider” have the same meaning as in section 14A.
(5) In section 25—
(a) in paragraph (b), at the beginning insert “subject to sections 14A and 15A,”,
(b) in paragraph (b), omit from “whether” to the end of the paragraph, and
(c) after that paragraph insert—
(ba) a reference to a contract includes a contract that is express or implied and (if it is express) whether oral or in writing,
.
49 Timeframe for determination of appeal brought by appellant receiving accommodation support
After section 86 of the Nationality, Immigration and Asylum Act 2002 insert—
Timeframe for determination of appeal under section 82(1)(a) where appellant is receiving accommodation support
86A (1) This section applies on an appeal under section 82(1)(a) brought by a person to whom, at the time the appeal is instituted, accommodation is being provided under section 95 or 98 of the Immigration and Asylum Act 1999.
(2) The Tribunal must, except where the Tribunal considers that it is not reasonably practicable to do so, determine the appeal and give notice of its determination to the parties before the end of the period of 24 weeks beginning with the day after that on which the appeal is instituted.
(3) But subsection (2) does not apply or, as the case may be, ceases to apply, if the appeal must be brought, or must be continued, from outside the United Kingdom.
50 Timeframe for determination of certain appeals brought by non-detained appellants liable to deportation
(1) After section 86A of the Nationality, Immigration and Asylum Act 2002 (as inserted by section 49) insert—
Timeframe for determination of appeal brought by certain non-detained appellants liable to deportation
86B (1) This section applies on an appeal under section 82(1) where the appeal is brought by a person falling within subsection (2).
(2) A person falls within this subsection if, at the time the appeal mentioned in subsection (1) is instituted, the person—
(a) is not detained (whether under any provision of the Immigration Acts or otherwise),
(b) has been convicted of an offence (whether in or outside the United Kingdom), and
(c) is liable to deportation under section 3(5)(a) of the Immigration Act 1971 (Secretary of State deeming deportation conducive to public good).
(3) The Tribunal must, except where the Tribunal considers that it is not reasonably practicable to do so, determine the appeal and give notice of its determination to the parties before the end of the period of 24 weeks beginning with the day after that on which the appeal is instituted.
(4) But subsection (3) does not apply or, as the case may be, ceases to apply, if the appeal must be brought, or must be continued, from outside the United Kingdom.
(2) In Schedule 2 to the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 (S.I. 2020/61) (application of the 2002 Act to appeals to the Tribunal)—
(a) in paragraph 1, after paragraph (b) insert—
(ba) section 86B;
;
(b) in paragraph 3, after sub-paragraph (5) insert—
(5A) Section 86B has effect as if for subsection (4) there were substituted—
(4) But subsection (3) does not apply or, as the case may be, ceases to apply, if the appeal is brought, or is continued, from outside the United Kingdom.
(3) In Schedule 2 to the Immigration (European Economic Area) Regulations 2016 (S.I. 2016/1052) (appeals to the First-tier Tribunal), as it continues to have effect following its revocation, after paragraph 1 insert—
1A Section 86B of the 2002 Act (timeframe for determination of appeal brought by certain non-detained appellants liable to deportation) applies in relation to an appeal under these Regulations to the First-tier Tribunal as it applies in relation to an appeal under section 82(1) of the 2002 Act but as if for subsection (4) there were substituted—
(4) But subsection (3) does not apply or, as the case may be, ceases to apply, if the appeal is brought, or is continued, from outside the United Kingdom.
(1) Section 72 of the Nationality, Immigration and Asylum Act 2002 (construction and application of Article 33(2) of Refugee Convention) is amended as follows.
(2) After subsection (5) insert—
(5ZA) A person is to be presumed to have been convicted by a final judgment of a particularly serious crime if—
(a) the person is convicted in the United Kingdom of an offence listed in Schedule 3 to the Sexual Offences Act 2003, and
(b) the person is not, by virtue of the conviction, a person falling within subsection (2).
(5ZB) A person is to be presumed to have been convicted by a final judgment of a particularly serious crime if—
(a) the person is convicted outside the United Kingdom of an offence,
(b) the act constituting the offence would have constituted an offence listed in Schedule 3 to the Sexual Offences Act 2003 had it been done in any part of the United Kingdom, and
(c) the person is not, by virtue of the conviction, a person falling within subsection (3).
(3) After subsection (5A) insert—
(5B) A person presumed to have been convicted of a particularly serious crime by virtue of subsection (5ZA) or (5ZB) is to be presumed to constitute a danger to the community of the United Kingdom.
(4) In subsection (6), for “subsection (5A)” substitute “subsection (5ZA) or (5ZB) that a person has been convicted by a final judgment of a particularly serious crime or under subsection (5A) or (5B)”.
(5) In subsection (7), for “(5A)” substitute “(5ZA), (5ZB), (5A) or (5B)”.
(6) In subsection (8), after “(5A)” insert “or (5B)”.
(7) In subsection (9)(b), for “(5A)” substitute “(5ZA), (5ZB), (5A) or (5B)”.
(8) In subsection (10)(b), for “(5A)” substitute “(5ZA), (5ZB), (5A) or (5B)”.
(1) The Serious Crime Act 2007 is amended as follows.
(2) After section 5A insert—
Electronic monitoring requirements
Electronic monitoring requirements
5B (1) A serious crime prevention order made by a court in England and Wales may require an individual (including a partner in a partnership) to submit to electronic monitoring of their compliance with prohibitions, restrictions or other requirements imposed by the order.
(2) A requirement imposed under subsection (1) is referred to in this Part as an “electronic monitoring requirement”.
(3) A serious crime prevention order that includes an electronic monitoring requirement must specify the person who is to be responsible for the monitoring.
(4) The person specified under subsection (3) (“the responsible person”) must be of a description specified in regulations made by the Secretary of State.
(5) Where a serious crime prevention order imposes an electronic monitoring requirement on a person, the person must (among other things)—
(a) submit, as required from time to time by the responsible person, to—
(i) being fitted with, or the installation of, any necessary apparatus, and
(ii) the inspection or repair of any apparatus fitted or installed for the purpose of the monitoring;
(b) not interfere with, or with the working of, any apparatus fitted or installed for the purpose of the monitoring;
(c) take any steps required by the responsible person for the purpose of keeping in working order any apparatus fitted or installed for the purpose of the monitoring.
These obligations have effect as requirements of the order.
(6) A serious crime prevention order may not provide for an electronic monitoring requirement to have effect for more than 12 months (but this does not limit any power of a court to extend that period).
Conditions for imposing electronic monitoring requirements
5C (1) This section applies for the purpose of determining whether a court may impose an electronic monitoring requirement on a person (“P”) under section 5B.
(2) The requirement may not be imposed in P’s absence.
(3) If there is a person (other than P) without whose co-operation it would be impracticable to secure the monitoring in question, the requirement may not be imposed without that person’s consent.
(4) A court may impose the requirement in relation to a relevant police area or areas only if—
(a) it has been notified by the Secretary of State that electronic monitoring arrangements are available in the area or areas, and
(b) it is satisfied that the necessary provision can be made under the arrangements currently available.
(5) For the purposes of subsection (4)—
“relevant police area” means—
the police area in England or Wales in which it appears to the court that P resides or will reside, and
in a case where it is proposed to include in the order—
a requirement that P must remain, for specified periods, at a specified place, or
a provision prohibiting P from entering a specified place or area,
the police area in England or Wales in which the place or area proposed to be specified is situated;
“specified” means specified in the order.
Data from electronic monitoring: code of practice
5D (1) The Secretary of State must issue a code of practice relating to the processing of data gathered in the course of electronic monitoring of individuals under electronic monitoring requirements imposed by serious crime prevention orders.
(2) A failure to act in accordance with a code issued under this section does not of itself make a person liable to any criminal or civil proceedings.
(3) In section 17 (variation of orders), after subsection (8) insert—
(9) But, in the case of an order made by a court in England and Wales, the High Court in England and Wales may not extend the period for which an electronic monitoring requirement has effect by more than 12 months at a time.
(4) In section 20 (powers of Crown Court to vary orders on conviction), after subsection (7) insert—
(8) But, in the case of an order made by a court in England and Wales, the Crown Court in England and Wales may not extend the period for which an electronic monitoring requirement has effect by more than 12 months at a time.
(5) In section 21 (powers of Crown Court to vary or replace orders on breach), after subsection (7) insert—
(7A) But, in the case of an order made by a court in England and Wales, the Crown Court in England and Wales may not extend the period for which an electronic monitoring requirement has effect by more than 12 months at a time.
(6) In section 89 (orders)—
(a) in the heading, after “Orders” insert “and regulations”;
(b) in each of subsections (1) and (2), after “order” insert “or regulations”.
57 Applicants for making of orders and interim orders
(1) The Serious Crime Act 2007 is amended as follows.
(2) For section 8 substitute—
Limited class of applicants for making of orders
8 (1) A serious crime prevention order may be made by the High Court in England and Wales—
(a) only on an application by—
(i) the Director of Public Prosecutions,
(ii) the Director of the Serious Fraud Office,
(iii) the Director General of the National Crime Agency,
(iv) the Commissioners for His Majesty’s Revenue and Customs,
(v) the chief officer of police of a police force in England and Wales,
(vi) the Chief Constable of the British Transport Police Force, or
(vii) the Chief Constable of the Ministry of Defence Police, and
(b) in the case of an application by a person listed in paragraph (a)(iii) to (vii), only if the person has consulted the Director of Public Prosecutions.
(2) A serious crime prevention order may be made by the Crown Court in England and Wales—
(a) only on an application by—
(i) the Director of Public Prosecutions,
(ii) the Director of the Serious Fraud Office, or
(iii) the chief officer of police of a police force in England and Wales, and
(b) in the case of an application by the chief officer of police of such a police force, only if—
(i) it is an application for an order under section 19 or 19A that is terrorism-related (see section 8A), and
(ii) the chief officer has consulted the Director of Public Prosecutions.
(3) A serious crime prevention order may be made by a court or sheriff in Scotland—
(a) only on an application by—
(i) the Lord Advocate, or
(ii) the chief constable of the Police Service of Scotland, and
(b) in the case of an application by the chief constable, only if—
(i) it is an application for an order under section 1 that is terrorism-related (see section 8A),
(ii) the chief constable has consulted the Lord Advocate, and
(iii) it is an application made to the Court of Session (and not to the sheriff).
(4) A serious crime prevention order may be made by a court in Northern Ireland—
(a) only on an application by—
(i) the Director of Public Prosecutions for Northern Ireland, or
(ii) the Chief Constable of the Police Service of Northern Ireland, and
(b) in the case of an application by the Chief Constable, only if—
(i) it is an application for an order under section 1 that is terrorism-related (see section 8A), and
(ii) the Chief Constable has consulted the Director of Public Prosecutions for Northern Ireland.
(3) In section 10(4)(a) (notice requirements: England and Wales)—
(a) omit sub-paragraphs (i) and (iii);
(b) after sub-paragraph (iv) insert—
(v) in any other case, the person who applied for the order;
.
(4) In section 27 (power to wind up companies: England and Wales)—
(a) for subsection (1A) substitute—
(1A) A person mentioned in section 8(1)(a)(iii) to (vii) may present a petition to the court for the winding up of a company, partnership or relevant body if—
(a) the company, partnership or relevant body has been convicted of an offence under section 25 in relation to a serious crime prevention order or an interim serious crime prevention order made on an application by a person of the same description, and
(b) the person considers that it would be in the public interest for the company, partnership or (as the case may be) relevant body to be wound up.
;
(b) in subsection (3), for the words from “the Director of Public Prosecutions” to the end substitute “a person who is authorised to present a petition in accordance with subsection (1) or (1A)”;
(c) in subsection (12) omit the definition of “police-initiated serious crime prevention order”.
(5) In Schedule 2 (functions of applicant authorities)—
(a) after paragraph 15 insert—
Director General of the National Crime Agency
15ZA The functions of the Director General of the National Crime Agency under this Part are—
(a) to have the conduct of applications for serious crime prevention orders and interim serious crime prevention orders in England and Wales or for their variation or discharge,
(b) to appear on any application made under section 17 or 18 by another person for the variation or discharge of a serious crime prevention order or an interim serious crime prevention order in England and Wales,
(c) to have the conduct of, or (as the case may be) appear in, any other proceedings in connection with serious crime prevention orders or interim serious crime prevention orders (whether proceedings on appeal, by virtue of section 27 or otherwise),
(d) to give advice in connection with any proceedings or possible proceedings in connection with serious crime prevention orders or interim serious crime prevention orders, and
(e) to do anything for the purposes of, or in connection with, the functions in paragraphs (a) to (d).
Commissioners for His Majesty’s Revenue and Customs
15ZB The functions of the Commissioners for His Majesty’s Revenue and Customs under this Part are—
(a) to have the conduct of applications for serious crime prevention orders and interim serious crime prevention orders in England and Wales or for their variation or discharge,
(b) to appear on any application made under section 17 or 18 by another person for the variation or discharge of a serious crime prevention order or an interim serious crime prevention order in England and Wales,
(c) to have the conduct of, or (as the case may be) appear in, any other proceedings in connection with serious crime prevention orders or interim serious crime prevention orders (whether proceedings on appeal, by virtue of section 27 or otherwise),
(d) to give advice in connection with any proceedings or possible proceedings in connection with serious crime prevention orders or interim serious crime prevention orders, and
(e) to do anything for the purposes of, or in connection with, the functions in paragraphs (a) to (d).
;
(b) in paragraph 15A—
(i) in paragraphs (a), (c) and (d) omit “that are terrorism-related”;
(ii) in paragraph (b) omit “that is terrorism-related”;
(c) after paragraph 15B insert—
Chief Constable of British Transport Police Force
15BA The functions of the Chief Constable of the British Transport Police Force under this Part are—
(a) to have the conduct of applications for serious crime prevention orders and interim serious crime prevention orders in England and Wales or for their variation or discharge,
(b) to appear on any application made under section 17 or 18 by another person for the variation or discharge of a serious crime prevention order or an interim serious crime prevention order in England and Wales,
(c) to have the conduct of, or (as the case may be) appear in, any other proceedings in connection with serious crime prevention orders or interim serious crime prevention orders in England and Wales (whether proceedings on appeal, by virtue of section 27 or otherwise),
(d) to give advice in connection with any proceedings or possible proceedings in connection with serious crime prevention orders or interim serious crime prevention orders in England and Wales, and
(e) to do anything for the purposes of, or in connection with, the functions in paragraphs (a) to (d).
15BB (1) The Chief Constable of the British Transport Police Force may, to such extent as they may decide, delegate the exercise of their functions under this Part to any member of the British Transport Police Force of at least the rank of superintendent.
(2) References in this Part to the Chief Constable of the British Transport Police Force are accordingly to be read, so far as necessary for the purposes of sub-paragraph (1), as references to the Chief Constable or any member of the British Transport Police Force of at least the rank of superintendent.
Chief Constable of the Ministry of Defence Police
15BC The functions of the Chief Constable of the Ministry of Defence Police under this Part are—
(a) to have the conduct of applications for serious crime prevention orders and interim serious crime prevention orders in England and Wales or for their variation or discharge,
(b) to appear on any application made under section 17 or 18 by another person for the variation or discharge of a serious crime prevention order or an interim serious crime prevention order in England and Wales,
(c) to have the conduct of, or (as the case may be) appear in, any other proceedings in connection with serious crime prevention orders or interim serious crime prevention orders in England and Wales (whether proceedings on appeal, by virtue of section 27 or otherwise),
(d) to give advice in connection with any proceedings or possible proceedings in connection with serious crime prevention orders or interim serious crime prevention orders in England and Wales, and
(e) to do anything for the purposes of, or in connection with, the functions in paragraphs (a) to (d).
15BD (1) The Chief Constable of the Ministry of Defence Police may, to such extent as they may decide, delegate the exercise of their functions under this Part to any member of the Ministry of Defence Police of at least the rank of superintendent.
(2) References in this Part to the Chief Constable of the Ministry of Defence Police are accordingly to be read, so far as necessary for the purposes of sub-paragraph (1), as references to the Chief Constable or any member of the Ministry of Defence Police of at least the rank of superintendent.
(1) The Serious Crime Act 2007 is amended as follows.
(2) After section 15 insert—
Notification requirements: England and Wales
Notification requirements: England and Wales
15A (1) Schedule 1A contains provision about notifications to be given by a person who is subject to a serious crime prevention order in England and Wales (a “relevant order”).
(2) A relevant order—
(a) must specify a person listed in section 8(1)(a) as the person to whom a notification under Schedule 1A is to be given;
(b) may make provision about how a notification under Schedule 1A is to be given (including provision requiring a person to give a notification in person or otherwise).
(3) In this Part references to a “specified person” are to a person specified under subsection (2)(a).
(3) After Schedule 1 insert—
Schedule 1A
Relevant orders: notification requirements
Section 15A
Notification requirements for persons other than individuals
1 (1) Where a person other than an individual is subject to a relevant order that person (“P”) must, within the period of three days beginning with the first day on which any provision of the order comes into force, notify the specified person of the name of an authorised individual.
(2) In this paragraph “authorised individual” means an individual who—
(a) is authorised by P to communicate with the specified person in relation to P’s compliance with the order, and
(b) has consented to act in that capacity.
(3) P may, at any time after notifying the specified person of the name of an authorised individual under this paragraph, notify the specified person of the name of a replacement authorised individual.
(4) Where an individual whose name is notified by P under this paragraph ceases to be an authorised individual P must, within the period of 28 days beginning with the day on which the individual ceases to be an authorised individual, notify the specified person of the name of a replacement authorised individual.
Notification requirements for individuals
2 (1) An individual who is subject to a relevant order must, within the period of three days beginning with the first day on which any of the provisions of the order comes into force, notify the specified person of the notifiable information relating to the individual.
(2) If there is a change in any of the notifiable information relating to an individual who has given a notification under this paragraph the individual must, within the period of three days beginning with the day on which the change occurs, notify the specified person of the change.
(3) A requirement to notify information under sub-paragraph (1) or (2) does not apply to an individual by virtue of a relevant order whilst the individual is required to notify that information to that person by virtue of an earlier relevant order.
(4) If the earlier order ceases to be in force on a day on which the later order remains in force, the reference in sub-paragraph (1) to the first day on which any of the provisions of the order comes into force is to be read as a reference to that day.
(5) In this paragraph “the notifiable information” relating to an individual means—
(a) their name and, if they use one or more other names, each of those names;
(b) the address of their sole or main residence in the United Kingdom and the address of any other premises in the United Kingdom at which they regularly reside or stay;
(c) each of their telephone numbers and email addresses (if any);
(d) any name which they use to access a social media service or the function of which is to identify the user of such a service;
(e) any name—
(i) which they use to access a video game that is a user-to-user service or that is available as part of a user-to-user service, or
(ii) the function of which is to identify them as the user of such a game;
(f) identifying information relating to any motor vehicle of which they are the registered keeper, or which they have a right to use (whether routinely or on specific occasions or for specific purposes);
(g) specified financial information;
(h) specified information about identification documents;
(i) the name and address of each of their employers (if any);
(j) any information of a description specified in regulations made by the Secretary of State.
(6) For the purposes of sub-paragraph (5)—
(a) where the individual does not have a sole or main residence in the United Kingdom, paragraph (b) of that sub-paragraph is to be read as if it refers to the address or location of a place in the United Kingdom where they can regularly be found (and, if there is more than one such place, the address or location of each of those places);
(b) “social media service” means an online service that meets the following conditions—
(i) the main purpose, or one of the main purposes, of the service is to promote interaction between users (including interaction between users and user-generated content), and
(ii) making content generated by users available to other users is a significant feature of the service;
(c) “specified financial information” means the information specified in paragraph 1(1)(a) and (b) of Schedule 3A to the Counter-Terrorism Act 2008;
(d) “specified information about identification documents” means the information specified in paragraph 2(a) and (b) of that Schedule;
(e) “user-to-user service” has the meaning given by section 3 of the Online Safety Act 2023.
Offences
3 (1) A person commits an offence under the law of England and Wales if the person fails, without reasonable excuse, to comply with a requirement imposed by paragraph 1(1) or (4).
(2) A person guilty of an offence under sub-paragraph (1) is liable on summary conviction to a fine.
(3) A person commits an offence under the law of England and Wales if the person—
(a) fails, without reasonable excuse, to comply with a requirement imposed by paragraph 2;
(b) gives a notification, in purported compliance with such a requirement, of any information which the person knows to be false.
(4) A person guilty of an offence under sub-paragraph (3) is liable—
(a) on summary conviction, to imprisonment for a term not exceeding the general limit in a magistrates’ court or a fine, or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years or a fine, or both.
(4) In section 10 (notice requirements in relation to orders), after subsection (1) insert—
(1A) For the purposes of subsection (1)(b) and sections 30(1), 31(4) and 32(3), the requirements imposed on a person by Schedule 1A are to be treated as terms of the order.
(5) In each of the following sections, after “section 25” insert “or Schedule 1A”—
section 30(2);
section 31(5), (7) and (8);
section 32(4), (6) and (7).
(6) In section 43 (index of defined expressions), in the appropriate place insert the following—
relevant order | section 15A(1)
specified person | section 15A(3)
.
(7) In section 89 (orders), for subsection (3) substitute—
(3) A statutory instrument containing an order or regulations under any of the following provisions may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament—
section 4(4);
section 49(6);
section 63(3);
section 69;
section 90;
paragraph 2(5)(j) of Schedule 1A;
paragraph 102 of Schedule 8.
60 Validation of fees charged in relation to qualifications
(1) A fee charged at any time before the day on which this Act is passed by a person to whom this section applies is taken to have been lawfully charged if condition A, B or C is met.
(2) Condition A is that the fee was charged in connection with services relating to the comparability, recognition or assessment for immigration or nationality purposes of a UK qualification or a non-UK qualification.
(3) Condition B is that the fee was charged in connection with services relating to the comparability, recognition or assessment of a non-UK qualification obtained by a person where—
(a) the person was employed or seeking employment with an early years provider within the meaning of Part 3 of the Childcare Act 2006, and
(b) the status of the person’s non-UK qualification was relevant to the welfare requirements imposed on early years providers under section 39(1)(b) of that Act.
(4) Condition C is that the fee was charged in connection with—
(a) the provision of a service pursuant to an international agreement or arrangement requiring services to be provided relating to—
(i) the comparability, recognition or assessment of UK qualifications or non-UK qualifications, or
(ii) the provision of information or advice about such qualifications or the systems for awarding them, or
(b) any associated services provided by a person providing services mentioned in paragraph (a).
(5) This section applies to—
(a) the Secretary of State, and
(b) a person other than the Secretary of State who charged the fee pursuant to arrangements between that person and the Secretary of State.
(6) In this section—
“fee” includes charge;
“non-UK qualification” means a qualification issued by a body located outside the United Kingdom;
“UK qualification” means a qualification issued by a body located in the United Kingdom.
(7) This section binds the Crown.
The following are to be paid out of money provided by Parliament—
(a) any expenditure incurred under or by virtue of this Act by a Minister of the Crown, by a person holding office under His Majesty or by a government department, and
(b) any increase attributable to this Act in the sums payable under or by virtue of any other Act out of money so provided.
(1) The Secretary of State may by regulations make provision that is consequential on this Act.
(2) Regulations under subsection (1) may, in particular, amend, repeal or revoke any enactment passed or made before, or in the same Session as, this Act.
(3) In subsection (2) “enactment” includes—
(a) an enactment contained in subordinate legislation within the meaning of the Interpretation Act 1978;
(b) an enactment contained in, or in an instrument made under, an Act of the Scottish Parliament;
(c) an enactment contained in, or in an instrument made under, a Measure or Act of Senedd Cymru;
(d) an enactment contained in, or in an instrument made under, Northern Ireland legislation.
(4) In section 61(2) of the UK Borders Act 2007 (meaning of “the Immigration Acts”), after the “and” at the end of paragraph (n) insert—
(p) the Border Security, Asylum and Immigration Act 2025, other than sections 30 to 36, Part 3 and section 60.
(1) A power to make regulations under any provision of this Act includes power to make—
(a) consequential, supplementary, incidental, transitional or saving provision;
(b) different provision for different purposes or areas.
(2) Regulations under this Act are to be made by statutory instrument.
(3) A statutory instrument containing any of the following (whether alone or with other provision) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament—
(a) regulations under section 15(3);
(b) regulations under section 36(8);
(c) regulations under section 53(3);
(d) regulations under section 62(1) which amend, repeal or revoke primary legislation.
(4) Any other statutory instrument containing regulations under this Act is subject to annulment in pursuance of a resolution of either House of Parliament.
(5) This section does not apply to regulations under section 65.
(6) In this section “primary legislation” means—
(a) an Act of Parliament,
(b) an Act of the Scottish Parliament,
(c) a Measure or Act of Senedd Cymru, or
(d) Northern Ireland legislation.
(1) This Act extends to England and Wales, Scotland and Northern Ireland, subject to subsection (2).
(2) An amendment or repeal made by this Act has the same extent within the United Kingdom as the provision amended or repealed.
(3) The following provisions also extend to the Channel Islands and the Isle of Man and the British overseas territories—
(a) section 41(1)(a) so far as it repeals section 4(7) to (10) of the Illegal Migration Act 2023 as it extends to the Channel Islands and the Isle of Man and the British overseas territories by virtue of section 67(5) of that Act;
(b) section 41(1)(e) so far as it repeals sections 31 to 37 of that Act;
(c) section 42(2).
(4) His Majesty may by Order in Council provide for any of the provisions of this Act other than sections 1 to 12, 27, 30 to 36, 39 to 42 and 45 and Part 3 to extend, with or without modifications, to any of the Channel Islands or the Isle of Man.
(5) A power under any provision listed in subsection (6) may be exercised so as to extend (with or without modifications) to any of the Channel Islands or the Isle of Man any amendment or repeal made by or under this Act of any part of an Act to which the provision listed in subsection (6) relates.
(6) Those provisions are—
(a) section 36 of the Immigration Act 1971,
(b) section 170(7) of the Immigration and Asylum Act 1999,
(c) section 163(4) of the Nationality, Immigration and Asylum Act 2002,
(d) section 63(3) of the Immigration, Asylum and Nationality Act 2006,
(e) section 60(4) of the UK Borders Act 2007, and
(f) section 95(5) of the Immigration Act 2016.
(1) Subject to subsections (3) and (4), this Act comes into force on such day as the Secretary of State may by regulations appoint.
(2) Different days may be appointed for different purposes or areas.
(3) The following provisions come into force on the day on which this Act is passed—
(a) sections 40 to 42;
(b) section 44(1) to (13) and (17);
(c) section 45;
(d) this Part;
(e) paragraphs 16 to 18 of Schedule 1 (and section 43 and paragraph 1 of that Schedule so far as relating to those paragraphs);
(f) any other provision of this Act (including provision modifying other legislation) so far as it confers power to make regulations or an order or is otherwise necessary for enabling the exercise of such a power on or after the day on which this Act is passed.
(4) Sections 37, 38 and 47 (except as brought into force by subsection (3)(f)) come into force at the end of the period of two months beginning with the day on which this Act is passed.
(5) The Secretary of State may by regulations make transitional or saving provision in connection with the coming into force of any provision of this Act.
(6) The power to make regulations under subsection (5) includes power to make different provision for different purposes or areas.
(7) Regulations under this section are to be made by statutory instrument.
Schedule 1 Immigration advisers and immigration service providers
Section 43
Introductory
1 The Immigration and Asylum Act 1999 is amended as follows.
Power to amend definition of “relevant matters”
2 In section 82 (interpretation of Part 5), after subsection (3) insert—
(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.
3 (1) In section 166(5) (regulations subject to the affirmative procedure), after paragraph (c) insert—
(cza) section 82(4),
.
(2) If sub-paragraph (1) comes into force before the coming into force of paragraph 24(2) of Schedule 11 to the Immigration Act 2016, sub-paragraph (1) has effect as if after “procedure),” there were inserted “omit the “or” at the end of paragraph (c) and”.
8 After section 84 insert—
Limitations on acting under supervision: sanctions under this Part
84A (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.
Limitations on acting under supervision: other sanctions
84B (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.
Monetary penalties
9 After section 92B insert—
Power to impose monetary penalties
92C (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).
Procedure for imposing penalties
92D (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.
Appeals against penalties
92E (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.
Enforcement of penalty notices
92F (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.
Guidance about penalties
92G (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.
Penalties imposed in relation to commission of offence: convictions
92H 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.
10 (1) In section 166(5) (regulations subject to the affirmative procedure), after paragraph (cza) (as inserted by paragraph 3) insert—
(czb) section 92C(3)(a) or (8),
.
(2) If sub-paragraph (1) comes into force before the coming into force of paragraph 24(2) of Schedule 11 to the Immigration Act 2016, paragraph 24(2) of that Schedule has effect on its coming into force as if for “for the “or” at the end of paragraph (c) substitute” there were substituted “after paragraph (czb) insert”.
11 (1) Schedule 5 is amended as follows.
(2) In paragraph 6(3) (investigations under the complaints scheme), after paragraph (c) (and on a new line) insert—
(See also section 92C (which confers a power to impose monetary penalties for breaching the duty imposed by paragraph 6(2)).)
(3) In paragraph 9(1) (determination of complaints), after paragraph (f) (as inserted by paragraph 14(4)) (and on a new line) insert—
(See also section 92C (which confers a power to impose monetary penalties for breaching the Code or otherwise failing to comply with requirements imposed by or under this Part).)
Fees
12 After section 93 insert—
Fees
93A (1) The Secretary of State may by order provide for fees to be charged by the Commissioner in respect of the exercise of the Commissioner’s functions.
(2) The order may, in particular, make provision—
(a) for fees (including fees for the taking of examinations) to be charged in respect of the assessment of a person’s competence to provide immigration advice or immigration services;
(b) for fees to be charged in respect of a person’s registration or continued registration;
(c) for fees to be charged for making changes to a person’s registration;
(d) for fees to be charged in respect of the provision by the Commissioner of training for persons providing or seeking to provide immigration advice or immigration services;
(e) for fees to be charged in respect of the provision by the Commissioner of, or of access to, training or other material for such persons;
(f) for fees to be charged in respect of the provision by the Commissioner of events for such persons;
(g) for fees to be charged in respect of the accreditation by the Commissioner of training or events for such persons;
(h) for fees to be charged in respect of the provision of advice by the Commissioner;
(i) for, and in connection with, requiring or authorising the Commissioner to waive all or part of a fee in particular cases.
(3) The order may result in the charging of a fee in respect of the exercise of a function in a particular case which exceeds the costs of exercising the function in that case.
(4) But in specifying the amount of a fee by virtue of subsection (3) the Secretary of State may have regard only to either or both of the following—
(a) the costs of exercising the function in question;
(b) the costs of exercising any other function of the Commissioner.
(5) References in subsection (4) to the costs of exercising a function are to the costs of doing so in a particular class of case or in all cases.
(6) In this section “registration” means registration with the Commissioner under section 85.
13 In Schedule 6, for paragraph 5 substitute—
5 No application under paragraph 1 or 3 is to be entertained by the Commissioner unless it is accompanied by the fee specified for that application by order under section 93A (but this is subject to any waiver in accordance with provision by virtue of subsection (2)(i) of that section).
The complaints scheme
14 (1) Schedule 5 is amended as follows.
(2) In paragraph 5(3), after paragraph (b) insert—
(ba) the provision of immigration advice or immigration services by a person in contravention of section 84,
.
(3) In paragraph 6—
(a) in sub-paragraph (2) for “is the subject of an investigation under the scheme” substitute “falls within sub-paragraph (2A)”;
(b) after sub-paragraph (2) insert—
(2A) A person (“P”) falls within this sub-paragraph if—
(a) P is the subject of an investigation under the scheme, or
(b) in a case where the person who is the subject of an investigation under the scheme is a relevant body, P—
(i) was an officer, member or partner of the body when the body provided the immigration advice or immigration services to which the complaint relates, but
(ii) is no longer such an officer, member or partner.
(2B) In sub-paragraph (2A)—
(a) “relevant body” means a body which was a registered person at the time to which the complaint relates;
(b) “officer”, in relation to a body corporate, means a director, manager, secretary or other similar officer of the body.
(4) In paragraph 9—
(a) in sub-paragraph (1), after paragraph (e) insert—
(f) if the person to whom the complaint relates (“P”) was not, at the time to which the complaint relates, a relevant authorised person, order P or a relevant body in relation to P—
(i) to refund all or any part of the fees charged by P or the relevant body for the immigration advice or immigration services to which the complaint relates;
(ii) to pay to the person to whom the advice or services were provided an amount specified in the order by way of compensation in respect of any loss, inconvenience or distress suffered by the person as a result of the provision of the advice or services.
;
(b) after sub-paragraph (1B) insert—
(1C) For the purposes of sub-paragraph (1)(f) and this sub-paragraph—
(a) a person is a “relevant authorised person” if—
(i) the person falls within section 84(2)(b), or
(ii) the person falls within section 84(2)(e) because the person acts on behalf of, and under the supervision of, a person falling within section 84(2)(b);
(b) a body is a “relevant body” in relation to P if P was acting as the employee, officer, member or partner of the body when providing the immigration advice or immigration services to which the complaint relates;
(c) “officer”, in relation to a body corporate, means a director, manager, secretary or other similar officer of the body.
(1D) The total amount that may be ordered to be refunded or paid by virtue of sub-paragraph (1)(f) in respect of a complaint must not exceed £250,000.
(1E) The Secretary of State may by regulations amend the amount for the time being specified in sub-paragraph (1D).
(1F) An order under sub-paragraph (1)(f) may specify the time by which the refund or payment must be made.
(5) After paragraph 9 insert—
Order on determination of complaint to refund fees or pay compensation: procedure, appeals and enforcement
9A The complaints scheme must include provision securing that, where the Commissioner proposes to make an order under paragraph 9(1)(f) against a person—
(a) the Commissioner must give the person a notice of what is proposed (a “notice of intent”),
(b) the person may, within the period specified in the notice of intent, make written representations and objections to the Commissioner in relation to the proposed order,
(c) the Commissioner must, at the end of the period for making representations and objections, consider any representations and objections made and—
(i) determine to make the proposed order,
(ii) determine not to make an order under paragraph 9(1)(f) against the person,
(iii) determine to make an order under paragraph 9(1)(f) against the person requiring the person to refund or pay an amount which is less than the amount mentioned in the notice of intent, or
(iv) provisionally determine to make an order under paragraph 9(1)(f) against the person requiring the person to refund or pay an amount which is greater than the amount mentioned in the notice of intent, and
(d) where the Commissioner makes a provisional determination as mentioned in paragraph (c)(iv), the person is given an opportunity to make written representations and objections in relation to the provisional determination which must be considered by the Commissioner before the order is made.
9B Where the Commissioner makes an order under paragraph 9(1)(f) against a person, the person may appeal to the First-tier Tribunal against the making of the order.
9C (1) This paragraph applies where—
(a) on determining a complaint under the complaints scheme, the Commissioner makes an order under paragraph 9(1)(f) for an amount to be refunded or paid to a person (“P”), and
(b) the appeal rights in relation to the order are exhausted.
(2) For the purposes of sub-paragraph (1)(b) the appeal rights in relation to an order are exhausted at a time when—
(a) it is no longer possible for an appeal against the order to be made under paragraph 9B (ignoring any possibility of an appeal out of time), and
(b) there is no appeal against the order which is pending.
(3) On the application of P or the Commissioner, a court may order that the amount to be refunded or paid under the order is recoverable as if it were payable under an order of that court.
(4) The Commissioner may make an application under sub-paragraph (3) only—
(a) in the circumstances specified in the complaints scheme, and
(b) with P’s consent.
(5) If a court makes an order under sub-paragraph (3) on the application of the Commissioner, the Commissioner may, in the circumstances specified in the complaints scheme and with P’s consent, recover the amount mentioned in that sub-paragraph on behalf of P.
(6) For the purposes of this paragraph—
(a) an appeal is pending during the period—
(i) starting when the appeal is brought, and
(ii) ending when the appeal is finally determined, abandoned or withdrawn;
(b) “court” means—
(i) in England and Wales, the High Court or the county court;
(ii) in Scotland, the Court of Session or the sheriff;
(iii) in Northern Ireland, the High Court or a county court.
15 (1) In section 166(5) (regulations subject to the affirmative procedure), at the end of paragraph (d) insert
or
(e) paragraph 9(1E) of Schedule 5,
.
(2) If sub-paragraph (1) comes into force before the coming into force of paragraph 24(2) of Schedule 11 to the Immigration Act 2016, paragraph 24(2) of that Schedule has effect on its coming into force as if the “or” at the end of paragraph (ca) as inserted by paragraph 24(2) were omitted.
(3) If sub-paragraph (1) comes into force at the same time as or after the coming into force of paragraph 24(2) of Schedule 11 to the Immigration Act 2016, omit the “or” at the end of section 166(5)(ca) of the Immigration and Asylum Act 1999 (as inserted by paragraph 24(2) of that Schedule).
Appointment of Immigration Services Commissioner
16 In Schedule 5, in paragraph 12(1)(a) (period of office) for “of five years” substitute “not exceeding five years”.
Appointment of Deputy Immigration Services Commissioner
17 In Schedule 5, in paragraph 16(1) (Deputy Commissioner) for “must” substitute “may”.
Acting as Commissioner during vacancy etc
18 In Schedule 5, after paragraph 17 insert—
Acting as Commissioner in event of vacancy etc
17A (1) Sub-paragraph (2) applies at any time when—
(a) there is a vacancy in the office of Commissioner or the Commissioner is unable to exercise the Commissioner’s functions, and
(b) no person has been appointed as Deputy Commissioner under paragraph 16(1) or the Deputy Commissioner is unable to act in the Commissioner’s place under paragraph 16(2).
(2) A member of the Commissioner’s staff nominated by the Secretary of State for the purposes of this paragraph may act in the Commissioner’s place.