2004 Chapter 19

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These notes refer to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (c.19) which received Royal Assent on 22 July 2004

ASYLUM AND IMMIGRATION (TREATMENT OF CLAIMANTS, ETC.) ACT

EXPLANATORY NOTES

INTRODUCTION

1.     These explanatory notes relate to the Asylum and Immigration (Treatment of Claimants, etc.) Act which received Royal Assent on 22 July 2004. They have been prepared by the Home Office in order to assist the reader in understanding the Act. They do not form part of the Act and have not been endorsed by Parliament.

2.     The notes need to be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or part of a section does not seem to require any explanation or comment, none is given.

BACKGROUND

3.     The Minister of State for Citizenship, Immigration and Counter-Terrorism announced proposals on asylum reform to Parliament on 27 October 2003. Ministers from the Home Office and the Department for Constitutional Affairs published a letter on 27 October 2003 outlining the Government's proposals on asylum reform. This letter provides the background to the Act. The letter set out a range of proposals which are intended to:

• streamline the immigration and asylum appeals system;

• deal with undocumented arrivals;

• deal with situations where it is deemed that a country other than the United Kingdom is best placed to consider someone's asylum or human rights claim substantively;

• withdraw family support after appeal from those who are in a position to leave the UK; and

• enhance the powers of the Office of the Immigration Services Commissioner ("OISC").

4.     During the passage of the Bill through the Lords a number of new policy proposals were put forward which are intended to:

• enable the provision of accommodation to failed asylum seekers to be made conditional upon the participation in community activities;

• establish a local connection, for housing purposes, for an asylum seeker who is provided with accommodation under section 95 of the Immigration and Asylum Act 1999;

• replace the current system of backpayments of income support and related benefits with a system of loans to refugees; and

• tackle sham marriages.

OVERVIEW

5.     The Act is arranged under 9 headings:

• Offences

• Treatment of claimants

• Enforcement powers

• Procedure for marriage

• Appeals

• Removal and detention

• Immigration services

• Fees

• General

SUMMARY

6.     The Act includes provisions which unify the immigration and asylum appeals system into a single tier of appeal with limited onward review or appeal, deal with undocumented arrivals and those who fail to comply with steps to co-operate with the re-documentation process, provide additional powers to the OISC, provide for failed asylum seekers to participate in community activities, create a system of integration loans for refugees and tackle sham marriages.

OFFENCES

7.     The provisions:

• amend the existing offence of facilitating the commissioning of a breach of immigration law;

• create a new offence to deal with those arriving in the UK without a valid immigration document and who cannot show that they have a reasonable excuse;

• amend the offence of the forgery of immigration documents;

• create a new offence of trafficking a person for non-sexual exploitation;

• amend the offence prohibiting the employment of illegal migrant workers; and

• impose a duty on the Director of Public Prosecutions to give advice to immigration officers on matters relating to criminal offences.

TREATMENT OF CLAIMANTS

8.     The provisions:

• provide that when a deciding authority is deciding whether to believe a statement made by an asylum or human rights claimant they are required to take into account certain behaviour designed to conceal information or mislead or which is deemed to damage his/her credibility;

• add a new class of person who will cease to be eligible for support under Paragraph 1 of Schedule 3 to the Nationality, Immigration and Asylum Act 2002;

• amend section 4 of the Immigration and Asylum Act 1999 to enable the criteria to be used in determining when accommodation should be provided to be set out in regulations and to permit the continuation of the provision of accommodation to be made conditional upon the performance of or participation in community activities;

• amend Part 7 of the Housing Act 1996 to establish a local connection for an asylum seeker who is provided with accommodation under section 95 of the Immigration and Asylum Act 1999;

• abolish the entitlement to backpayments of income support, housing benefit and council tax benefit for those who are recorded as refugees; and

• enable the Secretary of State to make regulations enabling him to make loans to refugees.

ENFORCEMENT POWERS

9.     The provisions:

• provide immigration officers with powers of arrest, entry and search for a number of additional offences;

• allow fingerprints to be taken at the beginning of the enforcement process;

• allow an immigration officer to require a carrier to provide either a full or partial copy of any document relating to a passenger and containing information about that passenger;

• provide the Secretary of State or an immigration officer with the power to retain documents whilst it is suspected that the person the document relates to is liable to removal, and that retention of the document may facilitate their removal from the United Kingdom; and

• provide immigration officers with the power to cancel leave, where entry clearance has effect as leave to enter, where the person's purpose in arriving in the United Kingdom is different from the purpose specified in the entry clearance.

PROCEDURE FOR MARRIAGE

10.     The provisions:

• require the parties to a marriage which involves a non-EEA national(s) and which is to take place in the United Kingdom to give notice of the marriage only at a designated registration centre;

• require both parties giving notice of such a marriage in England and Wales to give notice together and in person, and give the Secretary of State the power, by regulations, to require this in prescribed cases in Northern Ireland;

• require non-EEA nationals who are party to such a marriage to hold entry clearance for the purpose of marriage, written permission from the Home Office (a certificate of approval) or be in an exempt category before notice of the marriage in the United Kingdom can be accepted; and

• give the Secretary of State the power to require applications for a certificate of approval to be made in writing and to charge a fee.

APPEALS

11.     The provisions:

• unify the immigration and asylum appeals system into a single tier of appeal with limited onward review or appeal;

• amend Section 94 of the Nationality, Immigration and Asylum Act 2002 to allow the Secretary of State to add a state or part of a state to the list in section 94(4) in respect of particular groups of people only or to exclude particular groups from a state added to the list;

• limit the circumstances in which a person who arrives in the United Kingdom with entry clearance may appeal from within the United Kingdom against a refusal of leave to enter and remove the right to appeal from within the United Kingdom against a refusal of leave to enter for those persons who arrive with a work permit but no entry clearance and do not fall within a listed category of persons;

• provide an order-making power to specify a requirement in the immigration rules and where entry clearance is refused because that requirement is not met, there will be no right of appeal against that refusal;

• revise section 96 of the Nationality, Immigration and Asylum Act 2002 which sets out when a new claim or application may be certified under the "one-stop" system;

• restore the right of appeal for crew members of ships and aircraft who are to be removed from the United Kingdom under 1971 Immigration Act powers relating specifically to crew members of ships and aircraft; and

• create a right of appeal where the Special Immigration Appeals Commission has made a determination in respect of an application for bail by someone who has been certified as a suspected international terrorist under Part 4 of the Anti-terrorism, Crime and Security Act 2001.

REMOVAL AND DETENTION

12.     The provisions:

• replace and extend the existing provisions on removal to safe third countries;

• amend existing provisions so that release on bail by a court will no longer prevent the detention under immigration powers of a person who is the subject of deportation action;

• introduce an offence if a person fails without reasonable excuse to comply with steps that he/she may be required to take with a view to obtaining a travel document; and

• allow for the electronic monitoring of persons subject to immigration control.

IMMIGRATION SERVICES

13.     The provisions:

• amend the categories of advisers qualified to provide immigration advice or services under section 84 of the 1999 Act;

• give the Immigration Services Commissioner a power of entry to premises where he suspects there is material likely to be of substantial value to an investigation of a criminal offence under section 91 of the 1999 Act;

• create a new criminal offence of advertising or offering to provide immigration advice or services when unqualified;

• remove the right of appeal to the Immigration Services Tribunal where the Commissioner has left the determined complaint on file; and

• place an obligation on designated professional bodies to comply with any request for information from the Immigration Services Commissioner.

FEES

14.     The provisions:

• provide that the Secretary of State may set a fee for specific types of non-asylum immigration applications at a level which exceeds the administrative cost of determining or processing the application in question and reflects the benefits that the Secretary of State believes are likely to accrue to the successful applicant; and

• extend the scope of the existing power to prescribe fees for applications to transfer an indefinite leave stamp into a new passport, to cover applications to transfer limited leave stamps.

GENERAL

15.     General provisions on interpretation, repeals, commencement, the title of the Act and extent.

COMMENTARY ON SECTIONS

OFFENCES

Section 1 : Assisting Unlawful Immigration

16.     Section 1 amends section 25 of the Immigration Act 1971 which creates an offence of facilitating the commission of a breach of immigration law. "Immigration law" means a law which has effect in a member State and which controls entitlement to enter the State, transit across the State or be in the State.

17.     The amendment allows the Secretary of State to make an order prescribing additional States which are to be regarded as "member States" for the purposes of the section if he considers it necessary for the purpose of complying with the United Kingdom's EU obligations. The nationals of these states are also to be deemed to be citizens of the European Union for the purposes of section 25 of the 1971 Act. This is necessary to comply with the EU Council Directive (2002/90/EC) and EU Council Framework Decision (2002/946/JHA). The Directive and associated Framework Decision require member States to create the offence of assisting a person who is not a national of a member State to enter or reside in a member State contrary to the laws of that member State. This offence must apply in relation to Norway and Iceland as well as the member States.

18.     Subsection (2) makes a minor amendment to section 25C of the 1971 Act to make clear that the references to "member State" and "immigration law" in subsection (9)(a) thereof have the same meaning as in section 25.

Section 2 : Entering the UK without a passport, &c.

19.     Section 2 creates two new criminal offences. If a person is unable to produce an immigration document at a leave or asylum interview in respect of either himself or a child with whom he claims to be living or travelling then he will commit an offence. A person does not commit the offence if the interview takes place after the person has entered the United Kingdom and within the period of three days beginning with the date of that interview the person provides an immigration document to an immigration officer or to the Secretary of State

20.     There are various defences to the charges. In respect of a person's failure to produce his own document it will be a defence for the him to prove that: (a) he is an EEA national, (b) he is a member of the family of an EEA national and he is exercising a right under the Community Treaties in respect of entry to or residence in the United Kingdom, (c) he has a reasonable excuse for not being in possession of an immigration document, or (d) he travelled to the United Kingdom without, at any stage since he set out on that journey, having possession of an immigration document. It is also a defence for a person to produce a false immigration document and to prove that he used that document as an immigration document for all purposes in connection with his journey to the United Kingdom.

21.     In respect of a person's failure to produce a document for a child with whom he claims to be living or travelling it will be a defence for him to prove that: (a) the child is an EEA national, (b) the child is a member of the family of an EEA national and that he is exercising a right under Community Treaties in respect of entry to or residence in the United Kingdom, (c) the person has a reasonable excuse for not being in possession of an immigration document in respect of the child, or (d) that he travelled to the United Kingdom with the child without, at any stage since he set out on the journey, having possession of an immigration document in respect of the child. It is also a defence for a person to produce a false immigration document and to prove that it was used as an immigration document for all purposes in connection with the child's journey to the United Kingdom.

22.     The burden of proving the defence on the balance of probabilities rests with the defendant.

23.     A person will not be able to rely on the deliberate destruction or disposal of a document as their excuse for not being in possession of it unless it was done for a reasonable cause or was beyond his control. It will not be reasonable cause, however, if the document was destroyed or disposed of with a view to delaying a claim or increasing its chances of success or on the instructions or advice of a facilitator - unless it would have been unreasonable to expect non-compliance.

24.     An immigration officer or a police constable who has a reasonable suspicion that an offence under the section has been committed may arrest the person without a warrant. Immigration officers and police constables also have various other powers of search and entry common to other immigration-type offences.

25.     The offences may be tried summarily or on indictment. On summary conviction the maximum penalty is six months imprisonment, a fine up to the statutory maximum or both. On conviction on indictment the maximum penalty is two years imprisonment, a fine or both. When section 154 of the Criminal Justice Act 2003 is commenced the sentence that may be passed on summary conviction will increase to twelve months in England and Wales. It is expected that at the same time a similar amendment will be made in respect of Scotland and Northern Ireland.

Section 3 : Immigration documents: forgery

26.     Section 3 amends section 5 of the Forgery and Counterfeiting Act 1981 so that "immigration documents" become instruments to which section 5 of the 1981 Act applies. "Immigration documents" are cards or stickers (or other instruments) either: (i) designed to be given to persons who have been granted leave to enter or remain in the UK and which carry information about the leave granted (such as duration or entitlement to employment), or (ii) given to persons to confirm rights under the Community Treaties to enter or reside in the UK. Cards and stickers will increasingly be used instead of ink stamps in future. Possession of ink stamps (both genuine and replica), without reasonable excuse, is already an offence under section 26B of the Immigration Act 1971 (as inserted by section 149 of the Nationality Immigration and Asylum Act 2002). As a result of the amendment, the possession of a false card or sticker, or equipment with which such things may be made will be an offence in the circumstances set out in section 5 of the 1981 Act.

Section 4 : Trafficking people for exploitation

27.     Section 4 introduces new criminal offences of trafficking people into, within or out of the UK for the purpose of exploitation. A person found guilty of an offence under section 4 is liable, on conviction on indictment, to imprisonment for up to fourteen years, to a fine or to both, or on summary conviction, to imprisonment for up to twelve months, to a fine not exceeding the statutory maximum or to both. A person commits an offence if he arranges for a person to arrive in or depart from the UK and he intends to exploit that person or believes that another person is likely to do so. The offence is also committed if a person arranges travel within the UK by a person if he believes that the person has been brought into the UK to be exploited, and he intends to exploit that person or believes that another person is likely to do so. For the purposes of the offence, a person is exploited if he is:

• the victim of behaviour contravening Article 4 of the ECHR (slavery or forced labour);

• encouraged, required or expected to do something which would mean an offence is committed concerning organ removal;

• subjected to force, threats or deception designed to induce him to provide services or benefits or enable another person to acquire benefits; or

• requested or induced to do something, having been chosen on the grounds that he is ill, disabled, young or related to a person, in circumstances where a person without the illness, disability, youth or family relationship would be likely to refuse or resist.

Section 5: Section 4: supplemental

28.     Section 5 is supplemental to section 4.

29.     Subsection (1) provides that the offences in subsections (1) to (3) of section 4 apply to anything done: (i) in the United Kingdom; or (ii) outside the United Kingdom by: (a) a person to whom subsection (2) applies (e.g. a British citizen), or (b) a body incorporated under the law of a part of the United Kingdom.

30.     Subsection (4) provides that sections 25C and 25D of the Immigration Act 1971 shall apply in relation to an offence under section 4, as they apply in relation to an offence under section 25 of the 1971 Act. Sections 25C and 25D of the 1971 Act provide for the forfeiture and detention respectively of vehicles, ships or aircraft in certain circumstances.

31.     Subsection (6) amends the Criminal Justice and Court Services Act 2000 to make each of the offences in section 4 capable of being an "offence against a child" for the purposes of the 2000 Act. Under the 2000 Act, in certain circumstances a court must disqualify a person convicted of such an offence from working with children. Subsection (10) makes a similar provision in relation to Northern Ireland.

32.     Subsection (7) adds the offences in section 4 to the list of lifestyle offences in paragraph 4 of Schedule 2 to the Proceeds of Crime Act 2002. This has the effect that a person who has been convicted of an offence under section 4 is held to have a criminal lifestyle for the purposes of the Proceeds of Crime Act 2002. Subsections (8) and (9) make equivalent provision in relation to Scotland and Northern Ireland.

33.     Subsection (11) provides that until the commencement of section 154 of the Criminal Justice Act 2003, the reference to twelve months in section 5(5)(b) should be read as if it were a reference to six months. Subsections (12) and (13) also provide that the reference to twelve months in section 5(5)(b) shall be read as a reference to six months in Scotland and Northern Ireland respectively. It is anticipated that at the time section 154 of the Criminal Justice Act 2003 comes into force a similar amendment will be made by the devolved administrations.

Section 6: Employment

34.     Subsection (1) amends section 8 of the Asylum and Immigration Act 1996, the principal statutory control on illegal migrant working, to make the offence in that section, which was previously triable summarily only, triable either way. It is a criminal offence under section 8 of the 1996 Act to employ a person subject to immigration control who has attained the age of 16, if (a) the employee has not been granted leave to enter or remain, or (b) the employee's leave is not valid and subsisting or is subject to a condition precluding him from taking up the employment. As a summary offence, the maximum penalty on conviction was a fine of up to level 5 on the standard scale. By enabling more serious cases to be tried on indictment (following conviction on which there is no limit to the level of fine that can be imposed), this provision effectively increases the maximum penalty which the courts may impose in these cases.

35.     Subsection (2) makes a consequential change to the time limit for prosecution of the section 8 offence. The normal rule in relation to offences which are triable summarily only is that proceedings must be instituted within 6 months of the commission of the offence. Section 8(9) of the 1996 Act (inserted by section 147 of the Nationality, Immigration and Asylum Act 2002) applies the extended three year time limit for prosecutions contained in section 28(1) of the Immigration Act 1971 to the section 8 offence. However, it is a general principle of law that there is no time limit for the commencement of criminal proceedings in respect of offences which are triable either way. Subsection (2) therefore disapplies the extended time limit for prosecutions in relation to the section 8 offence.

Section 7: Advice of Director of Public Prosecutions

36.     Section 164 of the Immigration and Asylum Act 1999 amended section 3(2) of the Prosecution of Offences Act 1985 to enable the Director of Public Prosecutions (DPP) to take over the conduct of any criminal proceedings instituted by an immigration officer. Section 7 makes a further amendment to section 3(2) of the 1985 Act to make it the duty of the DPP to give advice to immigration officers on matters relating to criminal offences. This will allow the DPP to give immigration officers advice on criminal offences for which the latter have a power of arrest prior to proceedings being instituted in respect of those offences.

TREATMENT OF CLAIMANTS

Section 8: Claimant's credibility

37.     Section 8 sets out various behaviours which a deciding authority is required to take account of (as being damaging to credibility) when deciding whether to believe a statement made by or on behalf of a person making an asylum or human rights claim. A "deciding authority" is an immigration officer, the Secretary of State, the Asylum and Immigration Tribunal (or an adjudicator and the Immigration Appeal Tribunal until such time as the Asylum and Immigration Tribunal is established) and the Special Immigration Appeals Commission.

38.     Subsection (2) provides that behaviour which a deciding authority thinks:

a)      is designed or likely to conceal information,

b)      is designed or likely to mislead, or

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

is behaviour which damages the claimant's credibility and should be taken into account when determining whether to believe a statement made by a person who makes an asylum or human rights claim.

39.     Subsection (3) provides that various behaviours relating to the non production of passports (without reasonable explanation), the production of false passports as if they were valid, and the failure to answer questions (without reasonable explanation), will be treated as behaviours which damage credibility.

40.     Subsection (4) similarly provides that a person's failure to take a reasonable opportunity to make an asylum or human right claim whilst in a safe third country will be treated as behaviour that damages his credibility. For the purposes of this section a "safe country" means a country to which Part 2 of Schedule 3 applies.

41.     Subsections (5) and (6) provide that it is also behaviour which damages credibility where a person makes an asylum or human rights claim only after they have been notified of an immigration decision or extradition proceedings and that claim does not rely wholly on matters arising after the notification; or where the claim is made after a person has been arrested under an immigration provision and there was a reasonable opportunity to make the claim before arrest and the claim does not rely wholly on matters arising after the arrest. Subsection (7) sets out the meaning of an "immigration decision" and an "immigration provision".

42.     Subsection (12) provides that section 8 does not prevent a deciding authority from determining not to believe a statement on the grounds of behaviour to which the section does not apply.