(1) In this Part, “age-disputed person” means a person—
(a) who requires leave to enter or remain in the United Kingdom (whether or not such leave has been given), and
(b) in relation to whom—
(i) a local authority,
(ii) a public authority specified in regulations under section 50(1)(b), or
(iii) the Secretary of State,
has insufficient evidence to be sure of their age.
(2) In this Part—
“decision-maker” means a person who conducts an age assessment under section 50 or 51;
“designated person” means an official of the Secretary of State who is designated by the Secretary of State to conduct age assessments under section 50 or 51;
“immigration functions” means functions exercisable by virtue of the Immigration Acts;
“immigration officer” means a person appointed by the Secretary of State as an immigration officer under paragraph 1 of Schedule 2 to the Immigration Act 1971;
“local authority”—
in relation to England and Wales, means a local authority within the meaning of the Children Act 1989 (see section 105(1) of that Act),
in relation to Scotland, means a council constituted under section 2 of the Local Government etc (Scotland) Act 1994, and
in relation to Northern Ireland, means a Health and Social Care trust established under Article 10 of the Health and Personal Social Services (Northern Ireland) Order 1991 (S.I. 1991/194 (N.I. 1));
“public authority” means a public authority within the meaning of section 6 of the Human Rights Act 1998, other than a court or tribunal;
“specified scientific method” means a method used for assessing a person’s age which is specified in regulations under section 52(1).
(3) In this Part, “relevant children’s legislation” means—
(a) in relation to a local authority in England, any provision of or made under Part 3, 4 or 5 of the Children Act 1989 (support for children and families; care and supervision; protection of children);
(b) in relation to a local authority in Wales, Scotland or Northern Ireland, any statutory provision (including a provision passed or made after the coming into force of this Part) that confers a corresponding function on such an authority.
(4) In subsection (3)—
“corresponding function” means a function that corresponds to a function conferred on a local authority in England by or under Part 3, 4 or 5 of the Children Act 1989;
“statutory provision” means a provision made by or under—
an Act,
an Act of the Scottish Parliament,
an Act or Measure of Senedd Cymru, or
Northern Ireland legislation.
(5) In section 94 of the Immigration and Asylum Act 1999 (support for asylum-seekers: interpretation), for subsection (7) substitute—
(7) For further provision as to the conduct of age assessments, which applies for the purposes of this Part, see Part 4 of the Nationality and Borders Act 2022.
50 Persons subject to immigration control: referral or assessment by local authority etc
(1) The following authorities may refer an age-disputed person to a designated person for an age assessment under this section—
(a) a local authority;
(b) a public authority specified in regulations made by the Secretary of State.
(2) Subsections (3) and (4) apply where—
(a) a local authority needs to know the age of an age-disputed person for the purposes of deciding whether or how to exercise any of its functions under relevant children’s legislation in relation to the person, or
(b) the Secretary of State notifies a local authority in writing that the Secretary of State doubts that an age-disputed person in relation to whom the local authority has exercised or may exercise functions under relevant children’s legislation is the age that they claim (or are claimed) to be.
(3) The local authority must—
(a) refer the age-disputed person to a designated person for an age assessment under this section,
(b) conduct an age assessment on the age-disputed person itself and inform the Secretary of State in writing of the result of its assessment, or
(c) inform the Secretary of State in writing that it is satisfied that the person is the age they claim (or are claimed) to be, without the need for an age assessment.
(4) Where a local authority—
(a) conducts an age assessment itself, or
(b) informs the Secretary of State that it is satisfied that an age-disputed person is the age they claim (or are claimed) to be,
it must, on request from the Secretary of State, provide the Secretary of State with such evidence as the Secretary of State reasonably requires for the Secretary of State to consider the local authority’s decision under subsection (3)(b) or (c).
(5) Where a local authority refers an age-disputed person to a designated person for an age assessment under subsection (1) or (3)(a), the local authority must provide any assistance that the designated person reasonably requires from the authority for the purposes of conducting that assessment.
(6) The standard of proof for an age assessment under this section is the balance of probabilities.
(7) An age assessment of an age-disputed person conducted by a designated person following a referral from a local authority under subsection (1) or (3)(a) is binding—
(a) on the Secretary of State and immigration officers when exercising immigration functions, and
(b) on a local authority that—
(i) has exercised or may exercise functions under relevant children’s legislation in relation to the age-disputed person, and
(ii) is aware of the age assessment conducted by the designated person.
But this is subject to section 54(5) (decision of Tribunal to be binding on Secretary of State and local authorities) and section 56 (new information following age assessment or appeal).
(8) Regulations under subsection (1)(b) are subject to negative resolution procedure.
51 Persons subject to immigration control: assessment for immigration purposes
(1) A designated person may conduct an age assessment on an age-disputed person for the purposes of deciding whether or how the Secretary of State or an immigration officer should exercise any immigration functions in relation to the person.
(2) An assessment under subsection (1) may be conducted—
(a) in a case where subsections (3) and (4) of section 50 do not apply, or
(b) in a case where those subsections do apply—
(i) at any time before a local authority has referred the age-disputed person to a designated person under section 50(3)(a) or has informed the Secretary of State as mentioned in subsection (3)(b) or (c) of that section, or
(ii) if the Secretary of State has reason to doubt a local authority’s decision under subsection (3)(b) or (c) of that section.
(3) An age assessment under this section is binding on the Secretary of State and immigration officers when exercising immigration functions.
But this is subject to section 54(5) (decision of Tribunal to be binding on Secretary of State and local authorities) and section 56 (new information following age assessment or appeal).
(4) The standard of proof for an age assessment under this section is the balance of probabilities.
(1) The Secretary of State may make regulations specifying scientific methods that may be used for the purposes of age assessments under section 50 or 51.
(2) The types of scientific method that may be specified include methods involving—
(a) examining or measuring parts of a person’s body, including by the use of imaging technology;
(b) the analysis of saliva, cell or other samples taken from a person (including the analysis of DNA in the samples).
(3) A method may not be specified in regulations under subsection (1) unless the Secretary of State determines, after having sought scientific advice, that the method is appropriate for assessing a person’s age.
(4) A specified scientific method may be used for the purposes of an age assessment under section 50 or 51 only if the appropriate consent is given.
(5) The appropriate consent is—
(a) where the age-disputed person has the capacity to consent to the use of the scientific method in question, their consent;
(b) where the age-disputed person does not have the capacity to consent to the use of the scientific method in question, the consent of—
(i) the person’s parent or guardian, or
(ii) another person, of a description specified in regulations made by the Secretary of State, who is able to give consent on behalf of the age-disputed person.
(6) Subsection (7) applies where—
(a) the age-disputed person or, in a case where the age-disputed person lacks capacity, a person mentioned in subsection (5)(b), decides not to consent to the use of a specified scientific method, and
(b) there are no reasonable grounds for that decision.
(7) In deciding whether to believe any statement made by or on behalf of the age-disputed person that is relevant to the assessment of their age, the decision-maker must take into account, as damaging the age-disputed person’s credibility (or the credibility of a person who has made a statement on their behalf), the decision not to consent to the use of the specified scientific method.
(8) Regulations under this section are subject to affirmative resolution procedure.
(9) This section does not prevent the use of a scientific method that is not a specified scientific method for the purposes of an age assessment under section 50 or 51 if the decision-maker considers it appropriate to do so and, where necessary, the appropriate consent is given.
(1) The Secretary of State may make regulations about age assessments under section 50 or 51, which may in particular include provision about—
(a) the processes to be followed, including—
(i) the information and evidence that must be considered and the weight to be given to it,
(ii) the circumstances in which an abbreviated age assessment may be appropriate,
(iii) protections or safeguarding measures for the age-disputed person, and
(iv) where consent is required for the use of a specified scientific method, the processes for assessing a person’s capacity to consent, for seeking consent and for recording the decision on consent;
(b) the qualifications or experience necessary for a person to conduct an age assessment;
(c) where an age assessment includes use of specified scientific methods—
(i) the qualifications or experience necessary for a person to conduct tests in accordance with those methods, and
(ii) the settings in which such tests must be carried out;
(d) the content and distribution of reports on age assessments;
(e) the communication of decisions to the age-disputed person and any other person affected by the decision, and notification of appeal rights (see section 54); and
(f) the consequences of a lack of co-operation with the assessment by the age-disputed person, which may include damage to the person’s credibility.
(2) The regulations may also include provision about—
(a) referrals under section 50(1) or (3)(a), including the process for making such a referral and about the withdrawal of a referral;
(b) how and when a local authority must inform the Secretary of State as mentioned in section 50(3)(b) and (c);
(c) evidence that the Secretary of State may require as mentioned in section 50(4).
(3) Regulations under this section are subject to affirmative resolution procedure.
60 Identification of potential victims of slavery or human trafficking
(1) The Modern Slavery Act 2015 is amended as follows.
(2) Section 49 (guidance about identifying and supporting victims) is amended in accordance with subsections (3) and (4).
(3) In subsection (1)—
(a) in paragraph (b)—
(i) for “may be” substitute “are”;
(ii) at the end insert “or who are such victims”;
(b) in paragraph (c) for “may be” substitute “is”;
(c) after paragraph (c) insert—
(d) arrangements for determining whether a person is a victim of slavery or human trafficking.
(4) After that subsection insert—
(1A) Guidance issued under subsection (1) must, in particular, provide that the determination mentioned in paragraph (d) is to be made on the balance of probabilities.
(5) In section 50 (regulations about identifying and supporting victims)—
(a) in subsection (1)(a) for “may be” substitute “are”;
(b) in subsection (2)(a) for “may be” substitute “is”;
(c) after subsection (3) insert—
(4) If regulations under subsection (2) make provision for determining whether a person is a victim of slavery or human trafficking (as mentioned in paragraph (b) of that subsection), they must provide that the determination is to be made on the balance of probabilities.
(6) In section 51 (presumption about age)—
(a) in subsection (1)(a) for “may be” substitute “is”;
(b) in subsection (3), in the opening words, for “may be” substitute “are”.
(7) In section 56 (interpretation)—
(a) before subsection (1) insert—
(A1) For the purposes of sections 48 to 53 (identification and protection of victims), “victim of slavery” and “victim of human trafficking” have the meanings given in regulations made by the Secretary of State under section 69 of the Nationality and Borders Act 2022.
;
(b) in each of subsections (1) and (2), after “purposes of” insert “any other provision of”.
61 Identified potential victims of slavery or human trafficking: recovery period
(1) This section applies to a person (an “identified potential victim”) if—
(a) a decision is made by a competent authority that there are reasonable grounds to believe that the person is a victim of slavery or human trafficking (a “positive reasonable grounds decision”), and
(b) that decision is not a further RG decision (as to which, see section 62).
(2) Subject to section 63(2), the identified potential victim may not be removed from, or required to leave, the United Kingdom during the recovery period.
(3) The “recovery period”, in relation to an identified potential victim, is the period—
(a) beginning with the day on which the positive reasonable grounds decision is made, and
(b) ending with whichever of the following is the later—
(i) the day on which the conclusive grounds decision is made in relation to the identified potential victim;
(ii) the end of the period of 30 days beginning with the day mentioned in paragraph (a).
62 No entitlement to additional recovery period etc
(1) This section applies where—
(a) a competent authority has previously made a positive reasonable grounds decision in relation to a person (the “first RG decision”), and
(b) a further positive reasonable grounds decision is made in relation to the person, in a case where the reasonable grounds for believing that the person is a victim of slavery or human trafficking arise from things done wholly before the first RG decision was made (the “further RG decision”).
(2) If the competent authority considers it appropriate in the circumstances of a particular case, the authority may determine that the person may not be removed from, or required to leave, the United Kingdom during the period—
(a) beginning with the day on which the further RG decision is made, and
(b) ending with whichever of the following is the later—
(i) the day on which the conclusive grounds decision is made in relation to the further RG decision;
(ii) the end of the period of 30 days beginning with the day mentioned in paragraph (a).
This is subject to section 63(2).
63 Identified potential victims etc: disqualification from protection
(1) A competent authority may determine that subsection (2) is to apply to a person in relation to whom a positive reasonable grounds decision has been made if the authority is satisfied that the person—
(a) is a threat to public order, or
(b) has claimed to be a victim of slavery or human trafficking in bad faith.
(2) Where this subsection applies to a person the following cease to apply—
(a) any prohibition on removing the person from, or requiring them to leave, the United Kingdom arising under section 61 or 62, and
(b) any requirement under section 65 to grant the person limited leave to remain in the United Kingdom.
(3) For the purposes of this section, the circumstances in which a person is a threat to public order include, in particular, where—
(a) the person has been convicted of a terrorist offence;
(b) the person has been convicted of any other offence listed in Schedule 4 to the Modern Slavery Act 2015 anywhere in the United Kingdom, or of a corresponding offence;
(c) the person is subject to a TPIM notice (within the meaning given by section 2 of the Terrorism Prevention and Investigation Measures Act 2011);
(d) there are reasonable grounds to suspect that the person is or has been involved in terrorism-related activity within the meaning given by section 4 of that Act (whether or not the terrorism-related activity is attributable to the person being, or having been, a victim of slavery or human trafficking);
(da) the person is subject to a notice under Part 2 of the National Security Act 2023;
(db) there are reasonable grounds to suspect that the person is or has been involved in foreign power threat activity within the meaning given by section 33 of that Act (whether or not the foreign power threat activity is attributable to the person being, or having been, a victim of slavery or human trafficking);
(e) the person is subject to a temporary exclusion order imposed under section 2 of the Counter-Terrorism and Security Act 2015;
(f) the person is a foreign criminal within the meaning given by section 32(1) of the UK Borders Act 2007 (automatic deportation for foreign criminals);
(g) the Secretary of State has made an order in relation to the person under section 40(2) of the British Nationality Act 1981 (order depriving person of citizenship status where to do so is conducive to the public good);
(h) the Refugee Convention does not apply to the person by virtue of Article 1(F) of that Convention (serious criminals etc);
(i) the person otherwise poses a risk to the national security of the United Kingdom.
(4) In subsection (3)(a), “terrorist offence” means any of the following (whenever committed)—
(a) an offence listed in—
(i) Schedule A1 to the Sentencing Code (terrorism offences: England and Wales), or
(ii) Schedule 1A to the Counter-Terrorism Act 2008 (terrorism offences: Scotland and Northern Ireland);
(b) an offence that was determined to have a terrorist connection under—
(i) section 69 of the Sentencing Code (in the case of an offender sentenced in England and Wales), or
(ii) section 30 of the Counter-Terrorism Act 2008 (in the case of an offender sentenced in Northern Ireland, or an offender sentenced in England and Wales before the Sentencing Code applied);
(c) an offence that has been proved to have been aggravated by reason of having a terrorist connection under section 31 of the Counter-Terrorism Act 2008 (in the case of an offender sentenced in Scotland);
(d) an act constituting an offence under the law in force in a country outside the United Kingdom that—
(i) would have constituted an offence within paragraph (a) if it had been committed in any part of the United Kingdom, or
(ii) was, or took place in the course of, an act of terrorism or was done for the purposes of terrorism.
(5) In subsection (3)(b) “corresponding offence” means—
(a) an offence under the law of Scotland or of Northern Ireland which corresponds to an offence listed in Schedule 4 to the Modern Slavery Act 2015;
(b) an act constituting an offence under the law in force in a country outside the United Kingdom that would have constituted an offence listed in that Schedule if it had been committed in England or Wales.
(6) For the purposes of this section an act punishable under the law in force in a country outside the United Kingdom is regarded as constituting an offence under that law however it is described in that law.
(7) In this section—
“act” includes an omission;
“the Refugee Convention” means the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and its Protocol;
“terrorism” has the same meaning as in the Terrorism Act 2000 (see section 1 of that Act).
64 Identified potential victims etc in England and Wales: assistance and support
After section 50 of the Modern Slavery Act 2015 insert—
Identified potential victims etc: assistance and support
50A (1) The Secretary of State must secure that any necessary assistance and support is available to an identified potential victim (within the meaning given by section 61 of the Nationality and Borders Act 2022 (the “2022 Act”)) during the recovery period.
(2) For the purposes of this section, assistance and support is “necessary” if the Secretary of State considers that it is necessary for the purpose of assisting the person receiving it in their recovery from any physical, psychological or social harm arising from the conduct which resulted in the positive reasonable grounds decision in question.
(3) Subsection (4) applies where a further RG decision, within the meaning given by section 62 of the 2022 Act, is made in relation to a person.
(4) If the Secretary of State determines that it is appropriate to do so, the Secretary of State must secure that any necessary assistance and support is available to the person during the period—
(a) beginning with the day on which the further RG decision is made, and
(b) ending with whichever of the following is the later—
(i) the day on which the conclusive grounds decision is made in relation to the further RG decision;
(ii) the end of the period of 30 days beginning with the day mentioned in paragraph (a).
(5) Any duty under subsection (1) or (4) ceases to apply in relation to a person in respect of whom a determination is made under section 63(2) of the 2022 Act (disqualification from protection).
(6) In this section, a reference to assistance and support is to assistance and support provided in accordance with—
(a) arrangements referred to in section 49(1)(b), or
(b) regulations made under section 50.
(7) In this section—
“conclusive grounds decision” has the same meaning as in Part 5 of the 2022 Act (see section 69 of that Act);
“recovery period” has the same meaning as in section 61 of that Act.
65 Leave to remain for victims of slavery or human trafficking
(1) This section applies if a positive conclusive grounds decision is made in respect of a person—
(a) who is not a British citizen, and
(b) who does not have leave to remain in the United Kingdom.
(2) The Secretary of State must grant the person limited leave to remain in the United Kingdom if the Secretary of State considers it is necessary for the purpose of—
(a) assisting the person in their recovery from any physical or psychological harm arising from the relevant exploitation,
(b) enabling the person to seek compensation in respect of the relevant exploitation, or
(c) enabling the person to co-operate with a public authority in connection with an investigation or criminal proceedings in respect of the relevant exploitation.
(3) Subsection (2) is subject to section 63(2).
(4) Leave is not necessary for the purpose mentioned in—
(a) subsection (2)(a) if the Secretary of State considers that the person’s need for assistance is capable of being met in a country or territory within paragraph (a) or (b) of subsection (5) (or both);
(b) subsection (2)(b) if the Secretary of State considers that—
(i) the person is capable of seeking compensation from outside the United Kingdom, and
(ii) it would be reasonable for the person to do so in the circumstances.
(5) A country or territory is within this subsection if—
(a) it is a country of which the person is a national or citizen;
(b) it is one to which the person may be removed in accordance with an agreement between that country or territory and the United Kingdom (which may be, but does not need to be, an agreement contemplated by Article 40(2) of the Trafficking Convention).
(6) Subsection (7) applies if the Secretary of State is satisfied that—
(a) the person is a threat to public order, or
(b) the person has claimed to be a victim of slavery or human trafficking in bad faith.
(7) Where this subsection applies—
(a) the Secretary of State is not required to grant the person leave under subsection (2), and
(b) if such leave has already been granted to the person, it may be revoked.
(8) Leave granted to a person under subsection (2) may be revoked in such other circumstances as may be prescribed in immigration rules.
(9) Subsections (3) to (7) of section 63 apply for the purposes of this section as they apply for the purposes of that section.
(10) In this section—
“positive conclusive grounds decision” means a decision made by a competent authority that a person is a victim of slavery or human trafficking;
“public authority” means any public authority within the meaning of section 6 of the Human Rights Act 1998;
“the relevant exploitation” means the conduct resulting in the positive conclusive grounds decision.
(11) This section is to be treated for the purposes of section 3 of the Immigration Act 1971 as if it were provision made by that Act.
(1) In this Part—
“competent authority” means a person who is a competent authority of the United Kingdom for the purposes of the Trafficking Convention;
“conclusive grounds decision” means a decision by a competent authority as to whether a person is a victim of slavery or human trafficking;
“positive reasonable grounds decision” has the meaning given by section 61(1);
“reasonable grounds decision” means a decision by a competent authority as to whether there are reasonable grounds to believe that a person is a victim of slavery or human trafficking;
the “Trafficking Convention” means the Council of Europe Convention on Action against Trafficking in Human Beings (done at Warsaw on 16 May 2005);
“victim of slavery” and “victim of human trafficking” have the meanings given in regulations made by the Secretary of State.
(2) Regulations under subsection (1) are subject to affirmative resolution procedure.
(1) The immigration rules may make such visa penalty provision as the Secretary of State considers appropriate in relation to a country specified under section 71 or 72.
(2) “Visa penalty provision” is provision that does one or more of the following in relation to applications for entry clearance made by persons as nationals or citizens of a specified country—
(a) requires that entry clearance must not be granted pursuant to such an application before the end of a specified period;
(b) suspends the power to grant entry clearance pursuant to such an application;
(c) requires such an application to be treated as invalid for the purposes of the immigration rules;
(d) requires the applicant to pay £190 in connection with the making of such an application, in addition to any fee or other amount payable pursuant to any other enactment.
(3) The Secretary of State may by regulations substitute a different amount for the amount for the time being mentioned in subsection (2)(d).
(4) Before making visa penalty provision in relation to a specified country, the Secretary of State must give the government of that country reasonable notice of the proposal to do so.
(5) The immigration rules must secure that visa penalty provision does not apply in relation to an application made before the day on which the provision comes into force.
(6) Visa penalty provision may—
(a) make different provision for different purposes;
(b) provide for exceptions or exemptions, whether by conferring a discretion or otherwise;
(c) include incidental, supplementary, transitional, transitory or saving provision.
(7) Regulations under subsection (3)—
(a) are subject to affirmative resolution procedure if they increase the amount for the time being specified in subsection (2)(d);
(b) are subject to negative resolution procedure if they decrease that amount.
(8) Sums received by virtue of subsection (2)(d) must be paid into the Consolidated Fund.
(9) In this section—
“country” includes any territory outside the United Kingdom;
“entry clearance” has the same meaning as in the Immigration Act 1971 (see section 33(1) of that Act);
“immigration rules” means rules under section 3(2) of the Immigration Act 1971;
“specified” means specified in the immigration rules.
71 Visa penalties for countries posing risk to international peace and security etc
(1) A country may be specified under this section if, in the opinion of the Secretary of State, the government of the country has taken action that—
(a) gives, or is likely to give, rise to a threat to international peace and security,
(b) results, or is likely to result, in armed conflict, or
(c) gives, or is likely to give, rise to a breach of international humanitarian law.
(2) In deciding whether to specify a country for the purposes of this section, the Secretary of State must take the following into account—
(a) the extent of the action taken;
(b) the likelihood of further action falling within subsection (1) being taken;
(c) the reasons for the action being taken;
(d) such other matters as the Secretary of State considers appropriate.
(3) In this section—
“action” includes a failure to act;
“country” and “specified” have the same meanings as in section 70.
72 Removals from the UK: visa penalties for uncooperative countries
(1) A country may be specified under this section if, in the opinion of the Secretary of State—
(a) the government of the country is not cooperating in relation to the return to the country from the United Kingdom of any of its nationals or citizens who require leave to enter or remain in the United Kingdom but do not have it, and
(b) as a result, there are nationals or citizens of the country that the Secretary of State has been unable to return to the country, whether or not others have been returned.
(2) In forming an opinion as to whether a country is cooperating in relation to returns, the Secretary of State must take the following into account—
(a) any arrangements (whether formal or informal) entered into by the government of the country with the United Kingdom government or the Secretary of State with a view to facilitating returns;
(b) the extent to which the government of the country is—
(i) taking the steps that are in practice necessary or expedient in relation to facilitating returns, and
(ii) doing so promptly;
(c) such other matters as the Secretary of State considers appropriate.
(3) In determining whether to specify a country for the purposes of this section, the Secretary of State must take the following into account—
(a) the length of time for which the government of the country has not been cooperating in relation to returns;
(b) the extent of the lack of cooperation;
(c) the reasons for the lack of cooperation;
(d) such other matters as the Secretary of State considers appropriate.
(4) In this section—
“cooperating in relation to returns” means cooperating as mentioned in subsection (1)(a);
“country” and “specified” have the same meanings as in section 70;
“facilitating returns” means facilitating the return of nationals or citizens to a country as mentioned in subsection (1)(a).
73 Visa penalties under section 71: review and revocation
(1) This section applies where any visa penalty provision made pursuant to section 71 is in force in relation to a country.
(2) The Secretary of State must, before the end of each relevant period—
(a) review the extent to which the country’s government is continuing to act in a way that, in the opinion of Secretary of State, has or is likely to have any of the consequences mentioned in section 71(1), and
(b) in light of that review, determine whether it is appropriate to amend the visa penalty provision.
(3) If, at any time, the Secretary of State forms the opinion that, despite the fact that the country’s government has taken or is taking action as mentioned in section 71(1), the visa penalty provision is not necessary or expedient in connection with—
(a) the promotion of international peace and security,
(b) the resolution or prevention of armed conflict, or
(c) the promotion of compliance with international humanitarian law,
the Secretary of State must as soon as practicable revoke the visa penalty provision.
(4) Each of the following is a relevant period—
(a) the period of 2 months beginning with the day on which the visa penalty provision came into force;
(b) each subsequent period of 2 months.
(5) In this section, “visa penalty provision” has the same meaning as in section 70.
74 Visa penalties under section 72: review and revocation
(1) This section applies where any visa penalty provision made pursuant to section 72 is in force in relation to a country.
(2) The Secretary of State must, before the end of each relevant period—
(a) review the extent to which the country’s cooperation in relation to returns has improved, and
(b) in light of that review, determine whether it is appropriate to amend the visa penalty provision.
(3) If at any time the Secretary of State is no longer of the opinion mentioned in section 72(1), the Secretary of State must as soon as practicable revoke the visa penalty provision.
(4) Each of the following is a relevant period—
(a) the period of 2 months beginning with the day on which the visa penalty provision came into force;
(b) each subsequent period of 2 months.
(5) In this section—
(a) “visa penalty provision” has the same meaning as in section 70;
(b) “cooperation in relation to returns” means cooperation as mentioned in section 72(1)(a).
(1) The Immigration Act 1971 is amended in accordance with subsections (2) to (4).
(2) After Part 1 insert—
PART 1A Electronic travel authorisations
Electronic travel authorisations
11C (1) In this Act, “an ETA” means an authorisation in electronic form to travel to the United Kingdom.
(2) Immigration rules may require an individual of a description specified in the rules not to travel to the United Kingdom from any place (including a place in the common travel area), whether with a view to entering the United Kingdom or to passing through it without entering, unless the individual has an ETA that is valid for the individual’s journey to the United Kingdom.
(3) The rules may not impose this requirement on an individual if—
(a) the individual is a British citizen, or
(b) the individual would, on arrival in the United Kingdom, be entitled to enter without leave.
(4) In relation to an individual travelling to the United Kingdom on a local journey from a place in the common travel area, subsection (3)(b) applies only if the individual would also be entitled to enter without leave if the journey were instead from a place outside the common travel area.
(5) The rules may impose the requirement mentioned in subsection (2) on an individual who—
(a) travels to the United Kingdom on a local journey from a place in any of the Islands, and
(b) has leave to enter or remain in that island,
only if it appears to the Secretary of State necessary to do so by reason of differences between the immigration laws of the United Kingdom and that island.
(6) The rules must—
(a) provide for the form or manner in which an application for an ETA may be made, granted or refused;
(b) specify the conditions (if any) which must be met before an application for an ETA may be granted;
(c) specify the grounds on which an application for an ETA must or may be refused;
(d) specify the criteria to be applied in determining—
(i) the period for which an ETA is valid;
(ii) the number of journeys to the United Kingdom during that period for which it is valid (which may be unlimited);
(e) require an ETA to include provision setting out the matters mentioned in paragraph (d)(i) and (ii);
(f) provide for the form or manner in which an ETA may be varied or cancelled;
(g) specify the grounds on which an ETA must or may be varied or cancelled.
(7) The rules may also—
(a) provide for exceptions to the requirement described in subsection (2), and
(b) make other provision relating to ETAs.
(8) Rules made by virtue of this section may make different provision for different cases or descriptions of case.
Electronic travel authorisations and the Islands
11D (1) The Secretary of State may by regulations make provision about the effects in the United Kingdom of the grant or refusal under the law of any of the Islands of an authorisation in electronic form to travel to that island.
(2) Regulations under subsection (1) may in particular make provision about—
(a) the recognition in the United Kingdom of an authorisation granted as mentioned in subsection (1);
(b) the conditions or limitations that are to apply in the United Kingdom to such an authorisation;
(c) the effects in the United Kingdom of such an authorisation being varied or cancelled under the law of any of the Islands;
(d) the circumstances in which the Secretary of State or an immigration officer may vary or cancel such an authorisation (so far as it applies in the United Kingdom).
(3) The Secretary of State may, where requested to do so by any of the Islands, carry out functions on behalf of that island in relation to the granting of authorisations in electronic form to travel to that island.
(4) Regulations under subsection (1)—
(a) may make provision modifying the effect of any provision of, or made under, this Act or any other enactment (whenever passed or made);
(b) may make different provision for different purposes;
(c) may make transitional, transitory or saving provision;
(d) may make incidental, supplementary or consequential provision.
(5) Regulations under subsection (1) are to be made by statutory instrument.
(6) A statutory instrument containing regulations under subsection (1) is subject to annulment in pursuance of a resolution of either House of Parliament.
(3) In section 24A (deception), in subsection (1)(a)—
(a) after “obtain” insert “— (i)”;
(b) after “Kingdom” insert
, or
(ii) an ETA
.
(4) In section 33 (interpretation), in subsection (1), at the appropriate place insert—
“an ETA” has the meaning given by section 11C;
.
(5) In section 82 of the Immigration and Asylum Act 1999 (interpretation of Part 5, which relates to immigration advisers and immigration service providers), in subsection (1), in the definition of “relevant matters”, after paragraph (a) insert—
an application for an ETA (within the meaning of section 11C of the Immigration Act 1971 (electronic travel authorisations));
.
(6) In section 126 of the Nationality, Immigration and Asylum Act 2002 (compulsory provision of physical data), in subsection (2), before paragraph (a) insert—
(za) an ETA (within the meaning of section 11C of the Immigration Act 1971 (electronic travel authorisations)),
.
(1) Section 40 of the Immigration and Asylum Act 1999 (liability of carriers in respect of passengers) is amended in accordance with subsections (2) to (8).
(2) For subsection (1) substitute—
(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.
(3) Omit subsection (2).
(4) In subsection (4), for the words from “No charge” to “documents” substitute “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)”.
(5) After subsection (4) insert—
(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.
(6) In subsection (5), for “subsection (4)” substitute “subsection (4) or (4A)(a)”.
(7) In subsection (6), for “a visa”, in the first two places it occurs, substitute “an entry clearance”.
(8) In subsection (10), for “subsection (2)” substitute “subsection (1)”.
(9) In consequence of the amendments made by this section—
(a) for the heading of section 40 of the Immigration and Asylum Act 1999 substitute “Charge in respect of individual without proper documents or authorisation”;
(b) for the italic heading before section 40 of that Act substitute “Individuals without proper documents or authorisation”.
(1) The Special Immigration Appeals Commission Act 1997 is amended in accordance with subsections (2) to (4).
(2) After section 2E insert—
Jurisdiction: review of certain immigration decisions
2F (1) Subsection (2) applies in relation to any decision of the Secretary of State which—
(a) relates to a person’s entitlement to enter, reside in or remain in the United Kingdom, or to a person’s removal from the United Kingdom,
(b) is not subject—
(i) to a right of appeal, or
(ii) to a right under a provision other than subsection (2) to apply to the Special Immigration Appeals Commission for the decision to be set aside, and
(c) is certified by the Secretary of State acting in person as a decision that was made wholly or partly in reliance on information which, in the opinion of the Secretary of State, should not be made public—
(i) in the interests of national security,
(ii) in the interests of the relationship between the United Kingdom and another country, or
(iii) otherwise in the public interest.
(2) The person to whom the decision relates may apply to the Special Immigration Appeals Commission to set aside the decision.
(3) In determining whether the decision should be set aside, the Commission must apply the principles which would be applied in judicial review proceedings.
(4) If the Commission decides that the decision should be set aside, it may make any such order, or give any such relief, as may be made or given in judicial review proceedings.
(3) In section 6A (procedure in relation to jurisdiction under sections 2C to 2E)—
(a) in the heading, for “2E” substitute “2F”,
(b) in subsection (1), for “or 2E” substitute “, 2E or 2F”,
(c) in subsection (2)(a), for “or 2E” substitute “, 2E or 2F”, and
(d) in subsection (2)(b), for “or (as the case may be) 2E(2)” substitute “, 2E(2) or (as the case may be) 2F(2)”.
(4) In section 7 (appeals from the Commission), in subsection (1A), for “or 2E” substitute “, 2E or 2F”.
(5) If subsection (4) comes into force before the day on which paragraph 26(5) of Schedule 9 to the Immigration Act 2014 comes into force, until that day subsection (4) has effect as if, in section 7(1A), for “or 2D” it substituted “, 2D or 2F”.
(6) In section 115(8) of the Equality Act 2010 (immigration cases), for “section 2D and 2E” substitute “section 2D, 2E or 2F”.
78 Counter-terrorism questioning of detained entrants away from place of arrival
(1) Schedule 7 to the Terrorism Act 2000 (port and border controls) is amended as follows.
(2) In paragraph 1(2) (definitions), in the definition of “ship”, after “hovercraft” insert “and any floating vessel or structure”.
(3) In paragraph 2 (power to question person about involvement in terrorism in port or border area or on ship or aircraft), after sub-paragraph (3) insert—
(3A) This paragraph also applies to a person if—
(a) the person is—
(i) being detained under a provision of the Immigration Acts, or
(ii) in custody having been arrested under paragraph 17(1) of Schedule 2 to the Immigration Act 1971,
(b) the period of 5 days beginning with the day after the day on which the person was apprehended has not yet expired, and
(c) the examining officer believes that—
(i) the person arrived in the United Kingdom by sea from a place outside the United Kingdom, and
(ii) the person was apprehended within 24 hours of the person’s arrival on land.
(3B) For the purposes of sub-paragraph (3A)(b) and (c), a person is “apprehended”—
(a) in a case within sub-paragraph (3A)(a)(i) where the person is arrested (and not released) before being detained as mentioned in that provision, when the person is arrested;
(b) in any other case within sub-paragraph (3A)(a)(i), when the person is first detained as mentioned in that provision;
(c) in a case within sub-paragraph (3A)(a)(ii), when the person is arrested as mentioned in that provision.
79 References to justices of the peace in relation to Northern Ireland
(1) In section 33(1) of the Immigration Act 1971 (interpretation) at the appropriate place insert—
“justice of the peace”, in relation to Northern Ireland, means lay magistrate;
.
(2) In section 167(1) of the Immigration and Asylum Act 1999 (interpretation) at the appropriate place insert—
“justice of the peace”, in relation to Northern Ireland, means lay magistrate;
.
(3) In section 45 of the UK Borders Act 2007 (search for evidence of nationality: other premises), after subsection (5) insert—
(6) In the application of this section to Northern Ireland a reference to a justice of the peace is to be treated as a reference to a lay magistrate.
82 Pre-consolidation amendments of immigration legislation
(1) The Secretary of State may by regulations make such amendments and modifications of the Acts relating to immigration as in the Secretary of State’s opinion facilitate, or are otherwise desirable in connection with, the consolidation of the whole or a substantial part of the Acts relating to immigration.
(2) The Acts relating to immigration are—
(a) the Immigration Act 1971;
(b) the Immigration Act 1988;
(c) the Asylum and Immigration Appeals Act 1993;
(d) the Asylum and Immigration Act 1996;
(e) the Special Immigration Appeals Commission Act 1997;
(f) the Immigration and Asylum Act 1999;
(g) the Nationality, Immigration and Asylum Act 2002;
(h) the Asylum and Immigration (Treatment of Claimants, etc) Act 2004;
(i) the Immigration, Asylum and Nationality Act 2006;
(j) the UK Borders Act 2007;
(k) Parts 10 and 12 of the Criminal Justice and Immigration Act 2008;
(l) the Borders, Citizenship and Immigration Act 2009;
(m) section 147 of and Schedule 8 to the Anti-Social Behaviour, Crime and Policing Act 2014;
(n) the Immigration Act 2014;
(o) the Immigration Act 2016;
(p) Parts 1 and 3 of the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020;
(q) this Act, other than Part 1;
(r) any other provision of an Act relating to immigration, whenever passed.
(3) For the purposes of this section, “amend” includes repeal (and similar terms are to be read accordingly).
(4) Regulations made under this section do not come into force unless an Act is passed consolidating the whole or a substantial part of the Acts relating to immigration.
(5) If such an Act is passed, any regulations made under this section come into force immediately before the Act comes into force.
(6) Regulations under this section are subject to affirmative resolution procedure.
The following are to be paid out of money provided by Parliament—
(a) expenditure incurred under or by virtue of this Act by a Minister of the Crown, and
(b) any increase attributable to this Act in the sums payable under any other Act out of money so provided.
(1) The Secretary of State may by regulations make such transitional, transitory or saving provision as the Secretary of State considers appropriate in connection with the coming into force of any provision of this Act.
(2) The Secretary of State may by regulations make such provision as the Secretary of State considers appropriate in consequence of this Act.
(3) The provision that may be made by regulations under subsection (2) includes provision amending, repealing or revoking any enactment.
(4) “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.
(5) Regulations under subsection (2) that amend—
(a) an Act of Parliament,
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(c) an Act of the Scottish Parliament,
(d) a Measure or Act of Senedd Cymru, or
(e) Northern Ireland legislation,
are subject to affirmative resolution procedure.
(6) Otherwise, regulations under subsection (2) are subject to negative resolution procedure.
(7) In section 61(2) of the UK Borders Act 2007 (meaning of “the Immigration Acts”)—
(a) omit the “and” at the end of paragraph (k), and
(b) after paragraph (l) insert
, and
(m) the Nationality and Borders Act 2022.
(1) A power to make regulations under this Act is exercisable by statutory instrument.
(2) Regulations under this Act—
(a) may make different provision for different purposes;
(b) may make transitional, transitory or saving provision;
(c) may make incidental, supplementary or consequential provision.
(3) Where regulations under this Act are subject to “negative resolution procedure” the statutory instrument containing the regulations is subject to annulment in pursuance of a resolution of either House of Parliament.
(4) Where regulations under this Act are subject to “affirmative resolution procedure” the regulations may not be made unless a draft of the instrument containing them has been laid before and approved by a resolution of each House of Parliament.
(5) Any provision that may be made by regulations under this Act subject to negative resolution procedure may instead be made by regulations under this Act subject to affirmative resolution procedure.
(6) Any provision that may be made by regulations under this Act for which no Parliamentary procedure is prescribed may instead be made by regulations subject to negative or affirmative resolution procedure.
(1) This Act extends to England and Wales, Scotland and Northern Ireland, subject as follows.
(2) Any amendment, repeal or revocation made by this Act has the same extent within the United Kingdom as the provision to which it relates.
(3) Part 1 (nationality) also extends to the Channel Islands and the Isle of Man and the British overseas territories within the meaning of the British Nationality Act 1981 (see section 50(1) of that Act).
(4) Her Majesty may by Order in Council provide for any of the provisions of this Act 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 modification) 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 15(1) of the Asylum and Immigration Appeals Act 1993,
(c) section 13(5) of the Asylum and Immigration Act 1996,
(d) section 9(3) of the Special Immigration Appeals Commission Act 1997,
(e) section 170(7) of the Immigration and Asylum Act 1999,
(f) section 163(4) of the Nationality, Immigration and Asylum Act 2002,
(g) section 338 of the Criminal Justice Act 2003,
(h) section 49(3) of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004,
(i) section 63(3) of the Immigration, Asylum and Nationality Act 2006,
(j) section 60(4) of the UK Borders Act 2007,
(k) section 57(5) of the Borders, Citizenship and Immigration Act 2009,
(l) section 76(6) of the Immigration Act 2014,
(m) section 60(6) of the Modern Slavery Act 2015,
(n) section 95(5) of the Immigration Act 2016, and
(o) section 8(2) of the Immigration and Social Security (EU Withdrawal) Act 2020.
(1) Subject to subsections (3) to (5), this Act comes into force on such day as the Secretary of State appoints by regulations.
(2) Regulations under subsection (1) may appoint different days for different purposes or areas.
(3) The following provisions come into force on the day on which this Act is passed—
(a) section 10(1) and (6) to (8) (effect of failure to give notice of pre-commencement decision to deprive a person of citizenship);
(b) sections 70, 71 and 73 (visa penalties in relation to countries posing a risk to international peace and security etc);
(c) this Part.
(4) The following provisions come into force on the day on which this Act is passed for the purposes of making (and, where required, consulting on) regulations—
(a) section 14 (requirement to make asylum claim at “designated place”);
(b) section 27 (accelerated detained appeals);
(c) section 42 and Schedule 5 (penalty for failure to secure goods vehicle etc);
(d) section 43 (working in United Kingdom waters: arrival and entry);
(e) section 50 (persons subject to immigration control: referral or age assessment by local authority);
(f) section 52 (use of scientific methods in age assessments);
(g) section 53 (regulations about age assessments);
(h) section 69 (interpretation of Part 5);
(i) section 82 (pre-consolidation amendments of immigration legislation).
(5) The following provisions come into force at the end of the period of two months beginning with the day on which this Act is passed—
(a) section 28 (claims certified as clearly unfounded: removal of right of appeal);
(b) paragraphs 5 to 19 of Schedule 4, and section 29 so far as it relates to those paragraphs (removal of asylum seeker to safe third country);
(c) section 30(1), (2) and (4) to (6) (Refugee Convention: general);
(d) sections 31 to 36 and 38 (interpretation of Refugee Convention);
(e) section 39 (interpretation of Part 2);
(f) section 44 (power to search container);
(g) section 49(1) to (4) (interpretation of Part 4);
(h) sections 72 and 74 (visa penalties in relation to uncooperative countries);
(i) section 78 (counter-terrorism questioning of detained entrants away from place of arrival).
SCHEDULE 1 Waiver of requirement of presence in UK etc
Section 9
Amendments to the British Nationality Act 1981
1 The British Nationality Act 1981 is amended as follows.
2 (1) Section 4 (acquisition by registration: British overseas territories citizens etc) is amended as follows.
(2) In subsection (4)—
(a) before paragraph (a) insert—
(za) treat the person to whom the application relates as fulfilling the first requirement specified in subsection (2)(a) although the person was not in the United Kingdom at the beginning of the period there mentioned;
;
(b) in paragraph (a), for “requirement specified in subsection (2)(a) or” substitute “second requirement specified in subsection (2)(a) or the requirement specified in”.
(3) After subsection (4) insert—
(4A) Subsection (4B) applies where, on an application for registration as a British citizen made by a person to whom this section applies, the applicant has indefinite leave to enter or remain in the United Kingdom.
(4B) The Secretary of State may for the purposes of subsection (2) treat the applicant as fulfilling the requirement specified in subsection (2)(d), without enquiring into whether or not the applicant was in the United Kingdom in breach of the immigration laws in the period there mentioned.
(4C) The reference in subsection (4A) to having indefinite leave to enter or remain is to be construed in accordance with the Immigration Act 1971.
3 (1) Schedule 1 (requirements for naturalisation) is amended as follows.
(2) In paragraph 2 (naturalisation as a British citizen under section 6(1): waiver of requirements in special circumstances)—
(a) in sub-paragraph (1), before paragraph (a) insert—
(za) treat the applicant as fulfilling the first requirement specified in paragraph 1(2)(a) although the applicant was not in the United Kingdom at the beginning of the period there mentioned;
;
(b) in that sub-paragraph, in paragraph (a), for “requirement specified in paragraph 1(2)(a) or” substitute “second requirement specified in paragraph 1(2)(a) or the requirement specified in”;
(c) after that sub-paragraph insert—
(1A) Sub-paragraph (1B) applies where the applicant has indefinite leave to enter or remain in the United Kingdom.
(1B) The Secretary of State may for the purposes of paragraph 1 treat the applicant as fulfilling the requirement specified in paragraph 1(2)(d), without enquiring into whether or not the applicant was in the United Kingdom in breach of the immigration laws in the period there mentioned.
(1C) The reference in sub-paragraph (1A) to having indefinite leave to enter or remain is to be construed in accordance with the Immigration Act 1971.
;
(d) omit sub-paragraphs (2) and (3).
(3) In paragraph 4, in paragraph (a)—
(a) for “the reference” substitute “the references”;
(b) for “a reference” substitute “references”.
(4) In paragraph 6 (naturalisation as a British overseas territories citizen under section 18(1): waiver of requirements in special circumstances)—
(a) the existing text becomes sub-paragraph (1);
(b) before paragraph (a) of that sub-paragraph insert—
(za) treat the applicant as fulfilling the first requirement specified in paragraph 5(2)(a) although the applicant was not in the relevant territory at the beginning of the period there mentioned;
;
(c) in paragraph (a) of that sub-paragraph, for “requirement specified in paragraph 5(2)(a) or” substitute “second requirement specified in paragraph 5(2)(a) or the requirement specified in”;
(d) after that sub-paragraph insert—
(2) Sub-paragraph (3) applies where the applicant has indefinite leave to enter or remain in the relevant territory.
(3) The Secretary of State may for the purposes of paragraph 5 treat the applicant as fulfilling the requirement specified in paragraph 5(2)(d), without enquiring into whether or not the applicant was in the relevant territory in breach of the immigration laws in the period there mentioned.
(4) The reference in sub-paragraph (2) to having indefinite leave to enter or remain is to be construed as a reference to any status formally granted under the immigration laws in force in the relevant territory which is broadly equivalent to the status of having indefinite leave to enter or remain under the Immigration Act 1971.
(5) In paragraph 8, in paragraph (a)—
(a) for “the reference” substitute “the references”;
(b) for “a reference” substitute “references”.
Consequential amendment
4 In section 1 of the Citizenship (Armed Forces) Act 2014 (applications for citizenship by members or former members of armed forces), omit subsection (3).
SCHEDULE 2 Deprivation of Citizenship without notice: judicial oversight
Section 10(4)
This is the Schedule to be inserted after Schedule 4 to the British Nationality Act 1981—
SCHEDULE 4A
Deprivation of Citizenship without notice: judicial oversight
Section 40(5E)
Deprivation without notice: application to Special Immigration Appeals Commission
1 (1) If the Secretary of State proposes to make a conducive grounds deprivation order without notice, the Secretary of State may apply to the Special Immigration Appeals Commission under this paragraph.
(2) If the Secretary of State makes a conducive grounds deprivation order without notice, the Secretary of State must apply to the Special Immigration Appeals Commission under this paragraph within the period of seven days beginning with the day on which the order is made (unless an application has already been made under sub-paragraph (1)).
(3) The function of the Commission on an application under this paragraph is to determine whether, in respect of each condition in section 40(5A) on which the Secretary of State relies, the Secretary of State’s view is obviously flawed.
(4) In determining that question, the Commission must apply the principles that would be applicable on an application for judicial review.
(5) If the Commission determines that the Secretary of State’s view is obviously flawed in respect of each condition in section 40(5A) on which the Secretary of State relies—
(a) if the order in question has not been made, section 40(5) applies in relation to the order (notwithstanding section 40(5A));
(b) if the order has been made, the Secretary of State must, within the period of 14 days beginning with the day on which the Commission made the determination—
(i) give late notice in respect of the order,
(ii) revoke the order, or
(iii) make an application under sub-paragraph (6).
(6) The Secretary of State may (at any time) make an application to the Special Immigration Appeals Commission for fresh consideration of a decision the Secretary of State has made under section 40(5A) where—
(a) in the opinion of the Secretary of State, circumstances have changed materially since the determination mentioned in sub-paragraph (5), or
(b) the Secretary of State wishes to provide further evidence to the Commission.
Sub-paragraphs (3) to (5) apply to an application under this sub-paragraph.
Deprivation of citizenship without notice: review
2 (1) Sub-paragraphs (2) to (5) apply if—
(a) the Secretary of State makes a conducive grounds deprivation order without notice, and
(b) the Special Immigration Appeals Commission has not made the determination mentioned in paragraph 1(5) (Secretary of State’s decision obviously flawed).
(2) The Secretary of State must, at least once in every review period, review the circumstances of the person in respect of whom the order was made (so far as known) and decide whether to give late notice in respect of the order.
(3) On such a review, the Secretary of State must decide to give late notice to the person unless it appears to the Secretary of State that any of the conditions in section 40(5A) is met (reading any reference in those provisions to notice under section 40(5) as a reference to late notice).
(4) If the Secretary of State decides at any point to give late notice in respect of the order—
(a) the Secretary of State must give the notice as soon as reasonably practicable, and
(b) once the notice is given, sub-paragraph (2) ceases to apply in relation to the person.
(5) If on the expiry of the final review period the Secretary of State has not given, or has not decided to give, late notice in respect of the order, the Secretary of State must make an application to the Special Immigration Appeals Commission within the period of seven days beginning with the day after the final day of that review period.
(6) Sub-paragraphs (3) to (6) of paragraph 1 (except sub-paragraph (5)(a)) apply for the purposes of an application under sub-paragraph (5) as they apply for the purposes of an application under that paragraph.
(7) For the purposes of this paragraph, each of the following is a “review period”—
(a) the period of four months beginning with the day after the day on which the Special Immigration Appeals Commission first determined an application in relation to the order under paragraph 1, and
(b) each of the next five successive periods of four months.
Interpretation
3 (1) In this Schedule, references to making a conducive grounds deprivation order without notice are to making an order under section 40(2) without giving notice under subsection (5) of that section (in reliance on subsection (5A) of that section).
(2) In this Schedule, “late notice”, in respect of an order under section 40(5), means written notice to the person in respect of whom the order was made specifying—
(a) that the Secretary of State has made the order,
(b) the reasons for the order, and
(c) the person’s right of appeal under section 40A(1) or under section 2B of the Special Immigration Appeals Commission Act 1997.
SCHEDULE 4 Removal of asylum seeker to safe country
Section 29
Amendments to section 77 of the Nationality, Immigration and Asylum Act 2002
1 In section 77 of the Nationality, Immigration and Asylum Act 2002 (no removal while claim for asylum pending), after subsection (2) insert—
(2A) This section does not prevent a person being removed to, or being required to leave to go to, a State falling within subsection (2B).
(2B) A State falls within this subsection if—
(a) it is a place where a person’s life and liberty are not threatened by reason of the person’s race, religion, nationality, membership of a particular social group or political opinion,
(b) it is a place from which a person will not be removed elsewhere other than in accordance with the Refugee Convention,
(c) it is a place—
(i) to which a person can be removed without their Convention rights under Article 3 (no torture or inhuman or degrading treatment or punishment) being contravened, and
(ii) from which a person will not be sent to another State in contravention of the person’s Convention rights, and
(d) the person is not a national or citizen of the State.
(2C) For the purposes of this section—
(a) any State to which Part 2 or 3 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 for the time being applies—
(i) is to be presumed to be a State falling within subsection (2B)(a) and (b), and
(ii) is, unless the contrary is shown by a person to be the case in their particular circumstances, to be presumed to be a State falling within subsection (2B)(c)(i) and (ii);
(b) any State to which Part 4 of that Schedule for the time being applies is to be presumed to be a State falling within subsection (2B)(a) and (b);
(c) a reference to anything being done in accordance with the Refugee Convention is a reference to the thing being done in accordance with the principles of the Convention, whether or not by a signatory to it;
(d) “State” includes any territory outside of the United Kingdom.
2 In subsection (3) of that section, for “subsection (2)” substitute “this section, “Convention rights” means the rights identified as Convention rights by section 1 of the Human Rights Act 1998 (whether or not in relation to a State that is a party to the Convention); and”.
Amendments to Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004: introductory
3 Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (the “2004 Act”) (removal of asylum seeker to safe country) is amended as follows.
Amendments consequential on amendments to section 77 of the 2002 Act
4 Omit paragraphs 4, 9, 14 and 18.
Rebuttable presumption of safety of specified countries in relation to Convention rights
5 (1) Paragraph 3 (presumptions of safety) is amended as follows.
(2) In sub-paragraph (1), in the opening words, after “human rights claim” insert “(the “claimant”)”.
(3) After sub-paragraph (1) insert—
(1A) Unless the contrary is shown by the claimant to be the case in their particular circumstances, a State to which this Part applies is to be treated, in so far as relevant to the question mentioned in sub-paragraph (1), as a place—
(a) to which a person can be removed without their Convention rights under Article 3 (no torture or inhuman or degrading treatment or punishment) being contravened, and
(b) from which a person will not be sent to another State in contravention of their Convention rights.
(4) In sub-paragraph (2), omit paragraph (b) (but not the final “and”).
6 In paragraph 5 (in country appeals in cases of removal to safe country)—
(a) in sub-paragraph (3), omit paragraph (b) (together with the preceding “or”);
(b) in sub-paragraph (4), in both places they appear, omit the words “to which this sub-paragraph applies”;
(c) omit sub-paragraph (5).
Safe countries
7 In paragraph 1(1) (definitions), after the definition of “the Refugee Convention”, insert—
“State” includes any territory outside of the United Kingdom.
8 In paragraph 2 (countries to which presumptions of safety in Part 2 of Schedule 3 apply)—
(a) after paragraph (ba) insert—
(bb) Republic of Croatia,
;
(b) after paragraph (o) insert—
(oa) Principality of Liechtenstein,
.
9 In paragraph 20(1) (powers to amend list of safe countries by order)—
(a) the words from “add a State” to the end become paragraph (a);
(b) after that paragraph (a) insert
, or
(b) remove a State from that list.
10 In paragraph 21 (procedure for orders under paragraph 20)—
(a) in sub-paragraph (1), in the opening words, for “20(1)” substitute “20(1)(a)”;
(b) in sub-paragraph (2), in the opening words, for “20(2)(b)” substitute “20(1)(b) or (2)(b)”.
Appeal rights
11 In paragraph 5 (appeal rights where person certified for removal to State to which Part 2 applies) in sub-paragraphs (3) and (4), omit “from within the United Kingdom”.
12 Omit paragraph 6 (no out of country appeal rights).
13 In paragraph 10 (appeal rights where person certified for removal to State to which Part 3 applies), in sub-paragraphs (3) and (4), omit “from within the United Kingdom”.
14 Omit paragraph 11 (no out of country appeal rights).
15 In paragraph 15 (appeal rights where person certified for removal to State to which Part 4 applies), in sub-paragraphs (3) and (4), omit “from within the United Kingdom”.
16 Omit paragraph 16 (no out of country appeal rights).
17 In paragraph 19 (appeal rights where person certified for removal to a State safe for that person)—
(a) in sub-paragraphs (b) and (c), omit “from within the United Kingdom”;
(b) omit sub-paragraph (d).
Consequential amendments
18 In section 92 of the Nationality, Immigration and Asylum Act 2002 (place from which an appeal may be brought), omit—
(a) subsection (2)(b) (and the preceding “or”);
(b) subsection (3)(b) (and the preceding “or”).
Transitional provision
19 (1) The amendments made by paragraph 6 do not apply to a case in which the Secretary of State made the certification under paragraph 5(1) of Schedule 3 to the 2004 Act before the coming into force of paragraph 6 of this Schedule.
(2) The amendments made by paragraphs 11, 13, 15 and 17 to the following provisions of Schedule 3 to the 2004 Act do not apply to a case in which the claim was certified as clearly unfounded by the Secretary of State before the coming into force of those paragraphs—
(a) paragraph 5(4);
(b) paragraph 10(4);
(c) paragraph 15(4);
(d) paragraph 19(c).
SCHEDULE 5 Penalty for failure to secure goods vehicle etc
Section 42
1 Part 2 of the Immigration and Asylum Act 1999 (carriers’ liability) is amended as follows.
2 For the italic heading before section 32 substitute “Penalties for failure to secure goods vehicle and for carrying clandestine entrants”.
3 Before section 32 (but after the italic heading before that section) insert—
Penalty for failure to secure goods vehicle etc
31A (1) The Secretary of State may impose a penalty on a person responsible for a goods vehicle which has arrived at a place mentioned in subsection (2) if—
(a) on its arrival at that place, the vehicle is not adequately secured against unauthorised access (see subsection (4)(a)), and
(b) the person has not taken the actions specified in regulations under subsection (4)(b) as actions to be taken by that person in relation to the securing of the vehicle against unauthorised access before or during its journey to that place.
(2) Those places are—
(a) a place where immigration control is operated, and
(b) in a case where the vehicle previously arrived at a place outside the United Kingdom where immigration control is operated and then journeyed to a place in the United Kingdom, that place in the United Kingdom.
(3) A penalty may be imposed under subsection (1) regardless of whether any person has obtained unauthorised access to the vehicle during its journey to the place mentioned in subsection (2).
(4) The Secretary of State must specify in regulations for the purposes of subsection (1)—
(a) what is meant by a goods vehicle being adequately secured against unauthorised access, and
(b) the actions to be taken by each person responsible for a goods vehicle in relation to the securing of the vehicle against unauthorised access.
(5) The actions that may be specified in regulations under subsection (4)(b) include, in particular—
(a) actions in relation to checking a person has not gained unauthorised access to the vehicle,
(b) actions in relation to the reporting of any unauthorised access to the vehicle, and
(c) actions in relation to the keeping of records to establish that other actions specified in the regulations have been taken.
(6) Before making regulations under subsection (4), the Secretary of State must consult such persons as the Secretary of State considers appropriate.
(7) In imposing a penalty under subsection (1), the Secretary of State—
(a) must specify an amount which does not exceed the maximum prescribed for the purpose of this paragraph,
(b) may impose separate penalties on more than one of the persons responsible for a goods vehicle, and
(c) may not impose penalties which amount in aggregate to more than the maximum prescribed for the purpose of this paragraph.
(8) A penalty imposed under subsection (1) must be paid to the Secretary of State before the end of the prescribed period.
(9) A person is not liable to the imposition of a penalty under subsection (1) if that person’s failure to take the actions specified in regulations under subsection (4)(b) was as a result of duress.
(10) If a penalty is imposed under subsection (1) in relation to the arrival of a goods vehicle in a place outside the United Kingdom where immigration control is operated, a penalty may not be imposed in relation to the vehicle’s arrival in the United Kingdom as part of the same journey.
(11) A penalty may not be imposed on a person under subsection (1) if a penalty is imposed on that person under section 32(2) in respect of the same circumstances.
(12) Where a penalty is imposed under subsection (1) on a person who is the driver of a goods vehicle pursuant to a contract (whether or not a contract of employment) with a person (“P”) who is the vehicle’s owner or hirer—
(a) the driver and P are jointly and severally liable for the penalty imposed on the driver (whether or not a penalty is also imposed on P), and
(b) a provision of this Part about notification, objection or appeal has effect as if the penalty imposed on the driver were also imposed on P (whether or not a penalty is also imposed on P in P’s capacity as the owner or hirer of the vehicle).
(13) In the case of a detached trailer, subsection (12) has effect as if a reference to the driver were a reference to the operator.
(14) For the purposes of this section the persons responsible for a goods vehicle are—
(a) if the goods vehicle is a detached trailer, the owner, hirer and operator of the trailer, and
(b) if it is not, the owner, hirer and driver of the vehicle.
(15) Where by virtue of subsection (14) a person is responsible for a goods vehicle in more than one capacity, a separate penalty may be imposed on the person under subsection (1) in respect of each capacity.
(16) In this section “immigration control” means United Kingdom immigration control and includes any United Kingdom immigration control operated in a prescribed control zone outside the United Kingdom.
4 (1) Section 32 (penalty for carrying clandestine entrants) is amended as follows.
(2) After subsection (2A) insert—
(2B) The Secretary of State may reduce the amount of a penalty under this section if the responsible person can show that they took the actions specified in regulations under subsection (2C) in relation to the securing of the transporter against unauthorised access.
(2C) The Secretary of State must specify in regulations the actions that a responsible person must have taken in order to be eligible for a reduction in the amount of a penalty.
(2D) The actions that may be specified in regulations under subsection (2C) include, in particular—
(a) actions in relation to checking a person has not gained unauthorised access to the transporter,
(b) actions in relation to the reporting of any unauthorised access to the transporter, and
(c) actions in relation to the keeping of records to establish that other actions specified in the regulations have been taken.
(2E) Before making regulations under subsection (2C), the Secretary of State must consult such persons as the Secretary of State considers appropriate.
(3) For subsection (4) substitute—
(4) Where a penalty is imposed under subsection (2) on a person who is the driver of a vehicle pursuant to a contract (whether or not a contract of employment) with a person (“P”) who is the vehicle’s owner or hirer—
(a) the driver and P are jointly and severally liable for the penalty imposed on the driver (whether or not a penalty is also imposed on P), and
(b) a provision of this Part about notification, objection or appeal has effect as if the penalty imposed on the driver were also imposed on P (whether or not a penalty is also imposed on P in P’s capacity as the owner or hirer of the vehicle).
(4) After subsection (6A) insert—
(6B) A penalty may not be imposed on a person under subsection (2) if a penalty is imposed on that person under section 31A(1) in respect of the same circumstances.
5 (1) Section 32A (level of penalty: code of practice) is amended as follows.
(2) Before subsection (1) insert—
(A1) The Secretary of State must issue a code of practice specifying matters to be considered in determining the amount of a penalty under section 31A.
(B1) The Secretary of State must have regard to the code (in addition to any other matters the Secretary of State thinks relevant)—
(a) when imposing a penalty under section 31A, and
(b) when considering a notice of objection under section 35(4) in relation to a penalty under section 31A.
(3) In subsection (2)(b), after “35(4)” insert “in relation to a penalty under section 32”.
(4) In subsection (3) for “the code” substitute “a code under this section”.
(5) In subsection (4) for “the draft code” substitute “a draft code”.
(6) In subsection (5) for “the code” in the first place it occurs substitute “a code under this section”.
(7) In subsection (6) for “the code” substitute “a code”.
6 Omit section 33 (prevention of clandestine entrants: code of practice).
7 (1) Section 34 (defences to claim that penalty is due under section 32) is amended as follows.
(2) Omit subsection (3).
(3) In subsection (3A)—
(a) at the end of paragraph (b) insert “and”,
(b) for paragraph (c) substitute—
(c) the carrier had taken the actions specified in regulations under subsection (3B) in relation to the securing of the wagon against unauthorised access.
, and
(c) omit paragraph (d).
(4) After subsection (3A) insert—
(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.
(5) Omit subsection (4).
8 (1) Section 35 (procedure for penalties and objections against penalties) is amended as follows.
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) In subsection (1) after “section” insert “31A or”.
(4) In subsection (2)—
(a) omit the “and” at the end of paragraph (c), and
(b) at the end of paragraph (d) insert
and
(e) be issued before the end of such period as may be prescribed.
(5) In subsection (10) after “section” insert “31A or”.
(6) In subsection (12)—
(a) omit the “or” at the end of paragraph (c), and
(b) after paragraph (c) insert—
(ca) by electronic mail, or
.
9 (1) Section 35A (appeals) is amended as follows.
(2) In subsection (1) after “section” insert “31A or”.
(3) In subsection (3)—
(a) at the end of paragraph (a) insert “and”, and
(b) omit paragraph (b) and the “and” at the end of that paragraph.
10 (1) Section 36 (power to detain vehicles etc in connection with penalties under section 32) is amended as follows.
(2) In the heading, after “section” insert “31A or”.
(3) In subsection (2A)(a), for “is an employee of its owner or hirer” substitute “drives the vehicle pursuant to a contract (whether or not a contract of employment) with the owner or hirer of the vehicle”.
(4) After subsection (2A) insert—
(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.
(5) After subsection (5) insert—
(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.
11 (1) Section 36A (detention in default of payment) is amended as follows.
(2) In subsection (4)(b), for “was an employee of” substitute “drove the vehicle pursuant to a contract (whether or not a contract of employment) with”.
(3) After subsection (4) insert—
(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.
(4) After subsection (6) insert—
(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.
12 (1) Section 43 (interpretation of Part 2) is amended as follows.
(2) In subsection (1)—
(a) at the appropriate place insert—
“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;
, and
(b) in the definition of “transporter” after “vehicle” insert “(including a goods vehicle)”.
(3) After subsection (1) insert—
(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.
SCHEDULE 6 Working in United Kingdom waters: consequential and related amendments
Section 43(2)
Immigration Act 1971 (c. 77)
1 The Immigration Act 1971 is amended as follows.
2 In section 8 (exceptions for seamen etc), after subsection (1) insert—
(1A) Subsection (1) does not apply in relation to a member of the crew of a ship who is an offshore worker within the meaning of section 11A.
3 In section 11 (references to entry etc), after subsection (1) insert—
(1ZA) See also section 11A (additional means by which persons arriving in United Kingdom waters for work can enter the UK).
4 In section 28 (proceedings for offences)—
(a) before subsection (1) insert—
(A1) Proceedings for an offence under this Part that is committed in the territorial sea adjacent to the United Kingdom may be taken, and the offence may for all incidental purposes be treated as having been committed, in any place in the United Kingdom.
;
(b) in subsection (2A), for “section 25 or 25A” substitute “this Part”.
5 In section 28L (interpretation of Part 3) —
(a) in subsection (1), at the beginning insert “Subject to subsection (1A)”;
(b) after subsection (1) insert—
(1A) In this Part “premises” also includes any artificial island, installation or structure (including one in the territorial sea adjacent to the United Kingdom).
6 In section 28M (enforcement powers in relation to ships: England and Wales), in subsection (2)(a)—
(a) for “section” substitute—
(i) section 24B,
;
(b) for “, and” substitute
, or
(ii) section 21 of the Immigration, Asylum and Nationality Act 2006, and
.
7 In section 28N (enforcement powers in relation to ships: Scotland), in subsection (2)(a)—
(a) for “section” substitute—
(i) section 24B,
;
(b) for “, and” substitute
, or
(ii) section 21 of the Immigration, Asylum and Nationality Act 2006, and
.
8 In section 28O (enforcement powers in relation to ships: Northern Ireland), in subsection (2)(a)—
(a) for “section” substitute—
(i) section 24B,
;
(b) for “, and” substitute
, or
(ii) section 21 of the Immigration, Asylum and Nationality Act 2006, and
.
9 (1) Schedule 2 (administrative provision as to control on entry etc) is amended as follows.
(2) In paragraph 2—
(a) in sub-paragraph (1), for the words from “who have” to “United Kingdom)” substitute “within sub-paragraph (1A)”;
(b) after sub-paragraph (1) insert—
(1A) The persons are—
(a) any person who has arrived in the United Kingdom by ship or aircraft (including transit passengers, members of the crew and others not seeking to enter the United Kingdom);
(b) any person who has arrived in United Kingdom waters by ship or aircraft who the immigration officer has reason to believe is an offshore worker.
(1B) In sub-paragraph (1A), “offshore worker” and “United Kingdom waters” have the same meaning as in section 11A.
(3) In paragraph 27—
(a) after sub-paragraph (1) insert—
(1A) Sub-paragraph (1) also applies to the captain of a ship or aircraft arriving in United Kingdom waters if—
(a) there are offshore workers on board, or
(b) an immigration officer has informed the captain that they wish to examine any person on board in the exercise of the power under paragraph 2.
(1B) In sub-paragraph (1A), “offshore worker” and “United Kingdom waters” have the same meaning as in section 11A.
(4) In paragraph 27B—
(a) after sub-paragraph (1) insert—
(1A) This paragraph also applies to ships or aircraft—
(a) which have offshore workers on board, and
(b) which—
(i) have arrived, or are expected to arrive, in United Kingdom waters, or
(ii) have left, or are expected to leave, United Kingdom waters.
;
(b) after sub-paragraph (9A) insert—
(9B) “Offshore worker” and “United Kingdom waters” have the same meaning in this paragraph as in section 11A.
(5) In paragraph 27BA—
(a) after sub-paragraph (1) insert—
(1A) The Secretary of State may also make regulations requiring responsible persons in respect of ships or aircraft—
(a) which have offshore workers on board, and
(b) which—
(i) have arrived, or are expected to arrive, in United Kingdom waters, or
(ii) have left, or are expected to leave, United Kingdom waters,
to supply information to the Secretary of State or an immigration officer.
;
(b) in sub-paragraph (2), after “(1)” insert “or (1A)”;
(c) after sub-paragraph (5) insert—
(5A) For the purposes of this paragraph, “offshore workers” and “United Kingdom waters” have the same meaning as in section 11A.
10 (1) Schedule 4A (maritime enforcement powers) is amended as follows.
(2) In paragraph 1(2), after the opening words insert—
“the 2006 Act” means the Immigration, Asylum and Nationality Act 2006;
.
(3) In paragraph 2(1)(a), for “25 or 25A” substitute “24B, 25 or 25A of this Act or section 21 of the 2006 Act”.
(4) In paragraph 3(1)(a), for “25, 25A and 25B” substitute “24B, 25, 25A or 25B of this Act or section 21 of the 2006 Act”.
(5) In paragraph 4(1), for “25, 25A or 25B” substitute “24B, 25, 25A or 25B of this Act or section 21 of the 2006 Act”.
(6) In paragraph 12(2), after the opening words insert—
“the 2006 Act” means the Immigration, Asylum and Nationality Act 2006;
.
(7) In paragraph 13(1)(a), for “25 or 25A” substitute “24B, 25 or 25A of this Act or section 21 of the 2006 Act”.
(8) In paragraph 14(1)(a), for “25 or 25A” substitute “24B, 25 or 25A of this Act or section 21 of the 2006 Act”.
(9) In paragraph 15(1), for “25 or 25A” substitute “24B, 25 or 25A of this Act or section 21 of the 2006 Act”.
(10) In paragraph 23(2), after the opening words insert—
“the 2006 Act” means the Immigration, Asylum and Nationality Act 2006;
.
(11) In paragraph 24(1)(a), for “25 or 25A” substitute “24B, 25 or 25A of this Act or section 21 of the 2006 Act”.
(12) In paragraph 25(1)(a), for “25 or 25A” substitute “24B, 25 or 25A of this Act or section 21 of the 2006 Act”.
(13) In paragraph 26(1), for “25 or 25A” substitute “24B, 25 or 25A of this Act or section 21 of the 2006 Act”.
Immigration, Asylum and Nationality Act 2006 (c. 13)
11 In section 21 of the Immigration, Asylum and Nationality Act 2006 (offence of employing a person who is disqualified from employment by their immigration status), after subsection (3) insert—
(3A) Proceedings for an offence under this section that is committed in the territorial sea adjacent to the United Kingdom may be taken, and the offence may for all incidental purposes be treated as having been committed, in any place in the United Kingdom.
(3B) Section 3 of the Territorial Waters Jurisdiction Act 1878 (consent of Secretary of State for certain prosecutions) does not apply to proceedings for an offence under this section.
Section 45
1 Part 3A of the Immigration Act 1971 (maritime enforcement) is amended as follows.
2 Before section 28M insert—
Enforcement powers in relation to ships: United Kingdom
28LA (1) An immigration officer or an enforcement officer may exercise the powers set out in Part A1 of Schedule 4A (“Part A1 powers”) in relation to any of the following in United Kingdom waters, foreign waters or international waters—
(a) a United Kingdom ship;
(b) a ship without nationality;
(c) a foreign ship;
(d) a ship registered under the law of a relevant territory.
(2) But Part A1 powers may be exercised only—
(a) for the purpose of preventing, detecting, investigating or prosecuting a relevant offence, and
(b) in accordance with the rest of this section.
(3) The authority of the Secretary of State is required before an immigration officer or an enforcement officer may exercise Part A1 powers in relation to—
(a) a United Kingdom ship in foreign waters,
(b) a ship without nationality,
(c) a foreign ship, or
(d) a ship registered under the law of a relevant territory.
3 In section 28M (enforcement powers in relation to ships: England and Wales)—
(a) in subsection (1), for the words from “An immigration officer” to “enforcement officer” substitute “An English and Welsh constable”, and
(b) in subsection (3)—
(i) omit “an immigration officer,”, and
(ii) omit “or an enforcement officer”.
4 In section 28N (enforcement powers in relation to ships: Scotland)—
(a) in subsection (1) for the words from “An immigration officer” to “enforcement officer” substitute “A Scottish constable”, and
(b) in subsection (3)—
(i) omit “an immigration officer,”, and
(ii) omit “or an enforcement officer”.
5 In section 28O (enforcement powers in relation to ships: Northern Ireland)—
(a) in subsection (1) for the words from “An immigration officer” to “enforcement officer” substitute “A Northern Ireland constable”, and
(b) in subsection (3)—
(i) omit “an immigration officer,”, and
(ii) omit “or an enforcement officer”.
6 In section 28P (hot pursuit of ships in United Kingdom waters)—
(a) in subsection (1), for the words from “An immigration officer” to “enforcement officer” substitute “An English and Welsh constable”,
(b) in subsection (3), for the words from “An immigration officer” to “enforcement officer” substitute “A Scottish constable”,
(c) in subsection (5), for the words from “An immigration officer” to “enforcement officer” substitute “A Northern Ireland constable”, and
(d) in subsection (10), omit “or an enforcement officer”.
7 After section 28P insert—
Power to seize and dispose of ships etc.
28PA (1) This section applies if—
(a) an immigration officer has reasonable grounds to suspect that a ship has been used in the commission of a relevant offence, and
(b) the ship is in United Kingdom waters or otherwise in the United Kingdom.
(2) Subject to subsection (3), the immigration officer may seize the ship and any property relating to the operation or use of the ship.
(3) The authority of the Secretary of State is required before an immigration officer may seize anything under this section.
(4) If an immigration officer seizes a foreign ship or a ship registered under the law of a relevant territory, the Secretary of State must notify the home state or relevant territory in question that the ship has been seized.
(5) In subsection (4) “home state”, in relation to a foreign ship, means—
(a) the State in which the ship is registered, or
(b) the State whose flag the ship is otherwise entitled to fly.
(6) Where a ship without nationality, or property relating to the operation or use of a ship without nationality, is seized under this section—
(a) section 26 of the UK Borders Act 2007 (disposal of property) and any regulations made under that section do not apply in respect of that ship or other property, and
(b) subsections (7) to (12) apply instead.
(7) The Secretary of State may—
(a) return the ship or other property to the person whom the Secretary of State believes to be its owner, or
(b) after the relevant period—
(i) dispose of the ship or other property, or
(ii) determine that the ship or other property is to be retained to be used in the course of, or in connection with, a function under the Immigration Acts.
(8) On the making of a determination under subsection (7)(b)(ii), the ship or other property vests in the Secretary of State.
(9) The relevant period is the period of 31 days beginning with the date on which the ship or other property was seized.
(10) Before exercising a power under subsection (7)(b), the Secretary of State must make reasonable efforts to—
(a) ascertain the identity of the owner of the ship or other property, and
(b) subject to subsection (11), notify that person that the ship or other property has been seized.
(11) The Secretary of State is not required to notify a person under subsection (10)(b) if to do so may prejudice any criminal investigation or criminal proceedings.
(12) Disposal under this section may be in any manner the Secretary of State thinks fit, including—
(a) by sale;
(b) by dismantling;
(c) by destruction;
(d) by donation of the ship or other property to a charity or other not-for-profit body.
8 In section 28Q (interpretation of Part 3A)—
(a) at the appropriate places insert—
“foreign waters” means the sea and other waters within the seaward limits of the territorial sea adjacent to any relevant territory or any State other than the United Kingdom;
,
“international waters” means waters beyond the territorial sea of the United Kingdom or of any other State or relevant territory;
,
“Part A1 powers” means the powers set out in Part A1 of Schedule 4A;
,
“relevant offence” means—
an offence under section 24(A1), (B1), (D1) or (E1), 24B, 25 or 25A,
an offence under section 25B to the extent that the section continues to apply by virtue of regulation 5(7) of the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 (S.I. 2020/1309),
an offence under section 21 of the Immigration, Asylum and Nationality Act 2006, or
an offence under section 1 of the Criminal Attempts Act 1981 or Article 3 of the Criminal Attempts and Conspiracy (Northern Ireland) Order 1983 (S.I. 1983/1120 (N.I. 13)), or in Scotland at common law, of attempting to commit an offence mentioned in paragraph (a) to (c);”, and
,
“United Kingdom waters” means the sea and other waters within the seaward limits of the United Kingdom’s territorial sea;
, and
(b) for the definition of ship substitute—
“ship” includes—
every description of vessel (including a hovercraft), and
any other structure (whether with or without means of propulsion) constructed or used to carry persons, goods, plant or machinery by water;
.
9 Schedule 4A (enforcement powers in relation to ships) is amended as follows.
10 Before Part 1, insert—
PART A1 United Kingdom
Introductory
A1 (1) This Part of this Schedule sets out the powers exercisable by immigration officers and enforcement officers (referred to in this Part of this Schedule as “relevant officers”) under section 28LA.
(2) In this Part of this Schedule—
“items subject to legal privilege” means items in respect of which a claim to legal professional privilege (in Scotland, to confidentiality of communications) could be maintained in legal proceedings;
“the ship” means the ship in relation to which the powers set out in this Part of this Schedule are exercised.
Power to stop, board, divert and detain
B1 (1) This paragraph applies if a relevant officer has reasonable grounds to suspect that—
(a) a relevant offence is being, or has been, committed on the ship, or
(b) the ship is otherwise being used in connection with the commission of a relevant offence.
(2) The relevant officer may—
(a) stop the ship;
(b) board the ship;
(c) require the ship to be taken to any place (on land or on water) in the United Kingdom or elsewhere and detained there;
(d) require the ship to leave United Kingdom waters.
(3) The relevant officer may require the master of the ship or any member of its crew to take such action as is necessary for the purposes of sub-paragraph (2).
(4) Where a ship is required to be taken to a place under sub-paragraph (2)(c), the relevant officer may require any person on board the ship to take such action as is reasonably necessary to ensure that person is taken to that place or to any other place determined by the relevant officer.
(5) Where a ship is required to leave United Kingdom waters under sub-paragraph (2)(d), the relevant officer may require any person on board the ship to take such action as is reasonably necessary to ensure that person leaves United Kingdom waters.
(6) The authority of the Secretary of State is required before a relevant officer may exercise the power under sub-paragraph (2)(c) to require the ship to be taken to any place—
(a) within a State other than the United Kingdom, or
(b) within a relevant territory.
(7) But a relevant officer acting under authority given under section 28LA(3)(c) or (d) in relation to a foreign ship or a ship registered under the law of a relevant territory may require the ship to be taken to a place mentioned in sub-paragraph (8) without authority under sub-paragraph (6).
(8) Those places are—
(a) a place in the home state or relevant territory in question, or
(b) if the home state or relevant territory requests, a place in any other State or relevant territory willing to receive the ship.
(9) A relevant officer must give notice in writing to the master of any ship detained under this paragraph.
(10) The notice must state that the ship is to be detained until the notice is withdrawn by the giving of a further notice in writing signed by a relevant officer.
(11) The requirement to give notice under sub-paragraph (9) does not apply where it is not reasonably possible to identify who is the master of the ship.
(12) In this paragraph “home state”, in relation to a foreign ship, means—
(a) the State in which the ship is registered, or
(b) the State whose flag the ship is otherwise entitled to fly.
Power to search and obtain information
C1 (1) This paragraph applies if a relevant officer has reasonable grounds to suspect that there is evidence on the ship (other than items subject to legal privilege) relating—
(a) to a relevant offence or,
(b) to an offence that is connected with a relevant offence.
(2) The relevant officer may search—
(a) the ship;
(b) anyone on the ship;
(c) anything on the ship (including cargo).
(3) The relevant officer may require a person on the ship to give information about themselves or about anything on the ship.
(4) The power to search conferred by sub-paragraph (2)—
(a) is only a power to search to the extent that it is reasonably required for the purpose of discovering evidence of the kind mentioned in sub-paragraph (1), and
(b) in the case of a search of a person, does not authorise a relevant officer to require the person to remove any clothing in public other than an outer coat, jacket or gloves.
(5) In exercising a power conferred by sub-paragraph (2) or (3) a relevant officer may—
(a) open any containers;
(b) require the production of documents, books or records relating to the ship or anything on it (but not including anything the relevant officer has reasonable grounds to believe is an item subject to legal privilege);
(c) make photographs or copies of anything the production of which the relevant officer has power to require.
(6) The power in sub-paragraph (5)(b) to require the production of documents, books or records includes, in relation to documents, books or records kept in electronic form, power to require the provision of the documents, books or records in a form in which they are legible and can be taken away.
(7) Sub-paragraph (5) is without prejudice to the generality of the powers conferred by sub-paragraphs (2) and (3).
(8) A power conferred by this paragraph may be exercised on the ship or elsewhere.
Power of arrest and seizure
D1 (1) This paragraph applies if a relevant officer has reasonable grounds to suspect that a relevant offence has been, or is being, committed on the ship.
(2) The relevant officer may arrest without a warrant anyone whom the officer has reasonable grounds for suspecting to be guilty of the offence.
(3) The relevant officer may seize and retain anything found on the ship which appears to the officer to be evidence of the offence (but not including anything that the officer has reasonable grounds to believe to be an item subject to legal privilege).
(4) A power conferred by this paragraph may be exercised on the ship or elsewhere.
Protective searches of persons
E1 (1) A relevant officer may search a person found on the ship for anything which the officer has reasonable grounds to believe the person might use to—
(a) cause physical injury,
(b) cause damage to property, or
(c) endanger the safety of any ship.
(2) The power conferred by sub-paragraph (1) may be exercised—
(a) only if the officer has reasonable grounds to believe that anything of a kind mentioned in that sub-paragraph is concealed on the person, and
(b) only to the extent that it is reasonably required for the purpose of discovering any such thing.
(3) The relevant officer may seize and retain anything which the officer has grounds to believe might—
(a) cause physical injury,
(b) cause damage to property, or
(c) endanger the safety of any ship.
(4) If the person is detained, nothing seized under sub-paragraph (3) may be retained when the person is released from detention.
(5) A power conferred by this paragraph to search a person does not authorise a relevant officer to require the person to remove any clothing in public other than an outer coat, jacket or gloves, but it does authorise the search of a person’s mouth.
(6) A power conferred by this paragraph may be exercised on the ship or elsewhere.
Search for nationality documents
F1 (1) A relevant officer may require a person found on the ship to produce a nationality document.
(2) The relevant officer may search a person found on the ship where the officer has reasonable grounds to believe that a nationality document is concealed on the person.
(3) The power conferred by sub-paragraph (2) may be exercised—
(a) only if the officer has reasonable grounds to believe that a nationality document is concealed on the person, and
(b) only to the extent that it is reasonably required for the purpose of discovering any such document.
(4) Subject as follows, the officer may seize and retain a nationality document for as long as the officer believes the person to whom it relates will arrive in the United Kingdom by virtue of the exercise of the power under paragraph B1.
(5) The power to retain a nationality document under sub-paragraph (4) does not affect any other power of an immigration officer to retain a document.
(6) Where a nationality document has been seized and retained by a relevant officer who is not an immigration officer, the document must be passed to an immigration officer as soon as is practicable after the ship has arrived in the United Kingdom.
(7) The power conferred by this paragraph to search a person does not authorise a relevant officer to—
(a) require the person to remove any clothing in public other than an outer coat, jacket or gloves, or
(b) seize and retain any document the officer has reasonable grounds to believe to be an item subject to legal privilege.
(8) In this paragraph a “nationality document”, in relation to a person, means any document which might—
(a) establish the person’s identity, nationality or citizenship, or
(b) indicate the place from which the person has travelled to the United Kingdom or to which the person is proposing to go.
(9) A power conferred by this paragraph may be exercised on the ship or elsewhere.
Assistants
G1 (1) A relevant officer may—
(a) be accompanied by other persons, and
(b) take equipment or materials,
to assist the officer in the exercise of powers under this Part of this Schedule.
(2) A person accompanying a relevant officer under sub-paragraph (1) may perform any of the officer’s functions under this Part of this Schedule, but only under the officer’s supervision.
Reasonable force
H1 A relevant officer may use reasonable force, if necessary, in the performance of functions under this Part of this Schedule.
Evidence of authority
I1 A relevant officer must produce evidence of the relevant officer’s authority if asked to do so.
Protection of relevant officers
J1 A relevant officer is not liable in any criminal or civil proceedings for anything done in the purported performance of functions under this Part of this Schedule if the court is satisfied that—
(a) the act was done in good faith, and
(b) there were reasonable grounds for doing it.
Offences under the law of England and Wales
K1 (1) A person commits an offence under the law of England and Wales if the person—
(a) intentionally obstructs a relevant officer in the performance of functions under this Part of this Schedule in England and Wales, England and Wales waters, foreign waters or international waters, or
(b) fails without reasonable excuse to comply with a requirement made by a relevant officer in the performance of such functions.
(2) A person who provides information in response to a requirement made by a relevant officer in the performance of functions under this Part of this Schedule in England and Wales, England and Wales waters, foreign waters or international waters commits an offence under the law of England and Wales if—
(a) the information is false in a material particular, and the person either knows it is, or is reckless as to whether it is, or
(b) the person intentionally fails to disclose any material particular.
(3) A relevant officer may arrest without warrant anyone whom the officer has reasonable grounds for suspecting to be guilty of an offence under this paragraph.
(4) A person guilty of an offence under this paragraph is liable on summary conviction to imprisonment for a term not exceeding 51 weeks, to a fine or to both.
(5) In the application of sub-paragraph (4) in relation to an offence committed before the coming into force of section 281(5) of the Criminal Justice Act 2003 the reference to 51 weeks is to be read as a reference to 6 months.
Offences under the law of Scotland
L1 (1) A person commits an offence under the law of Scotland if the person—
(a) intentionally obstructs a relevant officer in the performance of functions under this Part of this Schedule in Scotland, Scotland waters, foreign waters or international waters, or
(b) fails without reasonable excuse to comply with a requirement made by a relevant officer in the performance of such functions.
(2) A person who provides information in response to a requirement made by a relevant officer in the performance of functions under this Part of this Schedule in Scotland, Scotland waters, foreign waters or international waters commits an offence under the law of Scotland if—
(a) the information is false in a material particular, and the person either knows it is, or is reckless as to whether it is, or
(b) the person intentionally fails to disclose any material particular.
(3) A relevant officer may arrest without warrant anyone whom the officer has reasonable grounds for suspecting to be guilty of an offence under this paragraph.
(4) A person guilty of an offence under this paragraph is liable on summary conviction to imprisonment for a term not exceeding 12 months, to a fine not exceeding level 5 on the standard scale or to both.
Offences under the law of Northern Ireland
M1 (1) A person commits an offence under the law of Northern Ireland if the person—
(a) intentionally obstructs a relevant officer in the performance of functions under this Part of this Schedule in Northern Ireland, Northern Ireland waters, foreign waters or international waters, or
(b) fails without reasonable excuse to comply with a requirement made by a relevant officer in the performance of such functions.
(2) A person who provides information in response to a requirement made by a relevant officer in the performance of functions under this Part of this Schedule in Northern Ireland, Northern Ireland waters, foreign waters or international waters commits an offence under the law of Northern Ireland if—
(a) the information is false in a material particular, and the person either knows it is, or is reckless as to whether it is, or
(b) the person intentionally fails to disclose any material particular.
(3) A relevant officer may arrest without warrant anyone whom the officer has reasonable grounds for suspecting to be guilty of an offence under this paragraph.
(4) A person guilty of an offence under this paragraph is liable on summary conviction to a term not exceeding 6 months, to a fine not exceeding level 5 on the standard scale or to both.
11 In paragraph 1(1)—
(a) omit “immigration officers,” and
(b) omit “and enforcement officers”.
12 In paragraph 4—
(a) in sub-paragraph (2) omit “constable or”, and
(b) in sub-paragraph (3) omit “constable or”.
13 In paragraph 6—
(a) omit sub-paragraph (5), and
(b) in sub-paragraph (6), for the words from “Where” to “the document” substitute “A nationality document that has been seized and retained by a relevant officer”.
14 In paragraph 12(1)—
(a) omit “immigration officers,”, and
(b) omit “and enforcement officers”.
15 In paragraph 17—
(a) omit sub-paragraph (5), and
(b) in sub-paragraph (6), for the words from “Where” to “the document” substitute “A nationality document that has been seized and retained by a relevant officer”.
16 In paragraph 23—
(a) omit “immigration officers,” and
(b) omit “and enforcement officers”.
17 In paragraph 26(3) omit “constable or”.
18 In paragraph 28—
(a) omit sub-paragraph (5), and
(b) in sub-paragraph (6), for the words from “Where” to “the document” substitute “A nationality document that has been seized and retained by a relevant officer”.
SCHEDULE 8 Prisoners returning to the UK: Modifications of Criminal Justice Act 2003
Section 47(11)
This is the Schedule to be inserted after Schedule 19A to the Criminal Justice Act 2003—
SCHEDULE 19B
Prisoners returning to the UK: Modifications of Chapter 6 of Part 12
Section 261
Modification of dates for referral to the Board
1 Paragraph 2 applies where section 244ZC(2), 244A(2) or 246A(4) (when read with section 260(4A)) would require the Secretary of State to refer a person’s case to the Board on a day falling before the end of the period of 28 days beginning with the day on which the person is returned to custody.
2 The applicable provision is to be read as requiring the Secretary of State to refer the person’s case to the Board at any time up to the end of the period of 28 days beginning with the day on which the person is returned to custody.
3 For the purposes of paragraphs 1 and 2, a person returns to custody when the person, having returned to the United Kingdom, is detained (whether or not in prison) in pursuance of their sentence.
Person removed after Board had directed release but before being released
4 Paragraphs 5 and 6 apply where, before a person’s removal from the United Kingdom—
(a) the Board had directed their release under section 244ZC, 244A or 246A, but
(b) they had not been released on licence.
5 The direction of the Board is to be treated as having no effect.
6 The person is to be treated as if—
(a) they had been recalled under section 254 on the day on which they returned to the United Kingdom, and
(b) they were not suitable for automatic release (see section 255A).
Person removed after referral to the Board but before disposal of the reference
7 Paragraph 8 applies where—
(a) before a person’s removal from prison their case had been referred to the Board under section 244ZB(3), 244ZC(2), 244A(2) or 246A(4), and
(b) the reference lapsed under section 260(4B) because the person was removed from the United Kingdom before the Board had disposed of the reference.
8 Section 244ZC(2), 244A(2) or 246A(4) (as applicable) is to be read as requiring the Secretary of State to refer the person’s case to the Board before the end of the period of 28 days beginning with the day on which the person is returned to custody.
9 For the purposes of paragraph 8, a person returns to custody when the person, having returned to the United Kingdom, is detained (whether or not in prison) in pursuance of their sentence.
Person removed after having been recalled to prison
10 Paragraphs 11 and 12 apply where, at the time of a person’s removal from prison under section 260, the person was in prison following recall under section 254.
11 Any direction of the Board made in relation to the person under section 255C or 256A before their return to the United Kingdom is to be treated as having no effect.
12 The person is to be treated as if—
(a) they had been recalled under section 254 on the day on which they returned to the United Kingdom, and
(b) they were not suitable for automatic release (see section 255A).