Nationality, Immigration and Asylum Act 2002

(25) (1) A person commits an offence if he— (a) does an act which facilitates the commission of a breach of immigration law by an individual who is not a citizen of the European Union, (b) knows or has reasonable cause for believing that the act facilitates the commission of a breach of immigration law by the individual, and (c) knows or has reasonable cause for believing that the individual is not a citizen of the European Union. (2) In subsection (1) “immigration law” means a law which has effect in a member State and which controls, in respect of some or all persons who are not nationals of the State, entitlement to— (a) enter the State, (b) transit across the State, or (c) be in the State. (3) A document issued by the government of a member State certifying a matter of law in that State— (a) shall be admissible in proceedings for an offence under this section, and (b) shall be conclusive as to the matter certified. (4) Subsection (1) applies to anything done— (a) in the United Kingdom, (b) outside the United Kingdom by an individual to whom subsection (5) applies, or (c) outside the United Kingdom by a body incorporated under the law of a part of the United Kingdom. (5) This subsection applies to— (a) a British citizen, (b) a British overseas territories citizen, (c) a British National (Overseas), (d) a British Overseas citizen, (e) a person who is a British subject under the British Nationality Act 1981 (c. 61), and (f) a British protected person within the meaning of that Act. (6) A person guilty of an offence under this section shall be liable— (a) on conviction on indictment, to imprisonment for a term not exceeding 14 years, to a fine or to both, or (b) on summary conviction, to imprisonment for a term not exceeding six months, to a fine not exceeding the statutory maximum or to both. (25A) (1) A person commits an offence if— (a) he knowingly and for gain facilitates the arrival in the United Kingdom of an individual, and (b) he knows or has reasonable cause to believe that the individual is an asylum-seeker. (2) In this section “asylum-seeker” means a person who intends to claim that to remove him from or require him to leave the United Kingdom would be contrary to the United Kingdom’s obligations under— (a) the Refugee Convention (within the meaning given by section 167(1) of the Immigration and Asylum Act 1999 (c. 33) (interpretation)), or (b) the Human Rights Convention (within the meaning given by that section). (3) Subsection (1) does not apply to anything done by a person acting on behalf of an organisation which— (a) aims to assist asylum-seekers, and (b) does not charge for its services. (4) Subsections (4) to (6) of section 25 apply for the purpose of the offence in subsection (1) of this section as they apply for the purpose of the offence in subsection (1) of that section. (25B) (1) A person commits an offence if he— (a) does an act which facilitates a breach of a deportation order in force against an individual who is a citizen of the European Union, and (b) knows or has reasonable cause for believing that the act facilitates a breach of the deportation order. (2) Subsection (3) applies where the Secretary of State personally directs that the exclusion from the United Kingdom of an individual who is a citizen of the European Union is conducive to the public good. (3) A person commits an offence if he— (a) does an act which assists the individual to arrive in, enter or remain in the United Kingdom, (b) knows or has reasonable cause for believing that the act assists the individual to arrive in, enter or remain in the United Kingdom, and (c) knows or has reasonable cause for believing that the Secretary of State has personally directed that the individual’s exclusion from the United Kingdom is conducive to the public good. (4) Subsections (4) to (6) of section 25 apply for the purpose of an offence under this section as they apply for the purpose of an offence under that section. (25C) (1) This section applies where a person is convicted on indictment of an offence under section 25, 25A or 25B. (2) The court may order the forfeiture of a vehicle used or intended to be used in connection with the offence if the convicted person— (a) owned the vehicle at the time the offence was committed, (b) was at that time a director, secretary or manager of a company which owned the vehicle, (c) was at that time in possession of the vehicle under a hire-purchase agreement, (d) was at that time a director, secretary or manager of a company which was in possession of the vehicle under a hire-purchase agreement, or (e) was driving the vehicle in the course of the commission of the offence. (3) The court may order the forfeiture of a ship or aircraft used or intended to be used in connection with the offence if the convicted person— (a) owned the ship or aircraft at the time the offence was committed, (b) was at that time a director, secretary or manager of a company which owned the ship or aircraft, (c) was at that time in possession of the ship or aircraft under a hire-purchase agreement, (d) was at that time a director, secretary or manager of a company which was in possession of the ship or aircraft under a hire-purchase agreement, (e) was at that time a charterer of the ship or aircraft, or (f) committed the offence while acting as captain of the ship or aircraft. (4) But in a case to which subsection (3)(a) or (b) does not apply, forfeiture may be ordered only— (a) in the case of a ship, if subsection (5) or (6) applies; (b) in the case of an aircraft, if subsection (5) or (7) applies. (5) This subsection applies where— (a) in the course of the commission of the offence, the ship or aircraft carried more than 20 illegal entrants, and (b) a person who, at the time the offence was committed, owned the ship or aircraft or was a director, secretary or manager of a company which owned it, knew or ought to have known of the intention to use it in the course of the commission of an offence under section 25, 25A or 25B. (6) This subsection applies where a ship’s gross tonnage is less than 500 tons. (7) This subsection applies where the maximum weight at which an aircraft (which is not a hovercraft) may take off in accordance with its certificate of airworthiness is less than 5,700 kilogrammes. (8) Where a person who claims to have an interest in a vehicle, ship or aircraft applies to a court to make representations on the question of forfeiture, the court may not make an order under this section in respect of the ship, aircraft or vehicle unless the person has been given an opportunity to make representations. (9) In the case of an offence under section 25, the reference in subsection (5)(a) to an illegal entrant shall be taken to include a reference to— (a) an individual who seeks to enter a member State in breach of immigration law (within the meaning of section 25), and (b) an individual who is a passenger for the purpose of section 145 of the Nationality, Immigration and Asylum Act 2002 (traffic in prostitution). (10) In the case of an offence under section 25A, the reference in subsection (5)(a) to an illegal entrant shall be taken to include a reference to— (a) an asylum-seeker (within the meaning of that section), and (b) an individual who is a passenger for the purpose of section 145(1) of the Nationality, Immigration and Asylum Act 2002. (11) In the case of an offence under section 25B, the reference in subsection (5)(a) to an illegal entrant shall be taken to include a reference to an individual who is a passenger for the purpose of section 145(1) of the Nationality, Immigration and Asylum Act 2002.

Section 143: consequential amendments

144

• (1) The Immigration Act 1971 (c. 77) shall be amended as follows.

• (2) Section 25A (detention of ship, aircraft or vehicle) shall be renumbered as section 25D (and its title becomes “Detention of ship, aircraft or vehicle”) and—

• (a) in subsection (1) for “section 25(1)(a) or (b)” substitute “ section 25, 25A or 25B ”,

• (b) in subsections (2) and (4) for “section 25(6)” substitute “ section 25C ”,

• (c) for subsection (3) substitute—

(3) A person (other than the arrested person) may apply to the court for the release of a ship, aircraft or vehicle on the grounds that— (a) he owns the ship, aircraft or vehicle, (b) he was, immediately before the detention of the ship, aircraft or vehicle, in possession of it under a hire-purchase agreement, or (c) he is a charterer of the ship or aircraft.

,

and

• (d) omit subsection (7).

• (3) In section 28A (arrest without warrant)—

• (a) in subsection (3)(a) for “section 25(1)” substitute “ section 25, 25A or 25B ”,

• (b) omit subsection (4),

• (c) in subsection (10) omit “, (4)(b)”, and

• (d) in subsection (11) omit “, (4)”.

• (4) In section 28B(5) (search and arrest by warrant) for “, section 24A or section 25(2)” substitute “ , 24A ”.

• (5) In section 28C(1) (search and arrest without warrant) for “section 25(1)” substitute “ section 25, 25A or 25B ”.

• (6) In section 28D(4) (entry and search of premises) for “section 24A or section 25” substitute “ 24A, 25, 25A, 25B ”.

• (7) In section 28F (the title to which becomes “Entry and search of premises following arrest under section 25, 25A or 25B”) in subsection (1) for “section 25(1)” substitute “ section 25, 25A, 25B ”.

• (8) After section 33(1) (interpretation) insert—

(1A) A reference to being an owner of a vehicle, ship or aircraft includes a reference to being any of a number of persons who jointly own it.

Traffic in prostitution

145

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Section 145: supplementary

146

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Employment

147

• (1) Section 8 of the Asylum and Immigration Act 1996 (c. 49) (employment: offence) shall be amended as follows.

• (2) For subsection (2) (defence) substitute—

(2) It is a defence for a person charged with an offence under this section to prove that before the employment began any relevant requirement of an order of the Secretary of State under subsection (2A) was complied with. (2A) An order under this subsection may— (a) require the production to an employer of a document of a specified description; (b) require the production to an employer of one document of each of a number of specified descriptions; (c) require an employer to take specified steps to retain, copy or record the content of a document produced to him in accordance with the order; (d) make provision which applies generally or only in specified circumstances; (e) make different provision for different circumstances.

• (3) After subsection (6) insert—

(6A) Where an offence under this section is committed by a partnership (other than a limited partnership) each partner shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly. (6B) Subsection (5) shall have effect in relation to a limited partnership as if— (a) a reference to a body corporate were a reference to a limited partnership, and (b) a reference to an officer of the body were a reference to a partner.

• (4) At the end of the section add—

(9) Section 28(1) of the Immigration Act 1971 (c. 77) (extended time limit for prosecution) shall apply in relation to an offence under this section. (10) An offence under this section shall be treated as— (a) a relevant offence for the purpose of sections 28B and 28D of that Act (search, entry and arrest), and (b) an offence under Part III of that Act (criminal proceedings) for the purposes of sections 28E, 28G and 28H (search after arrest).

Registration card

148

The following shall be inserted after section 26 of the Immigration Act 1971 (general offences)—

(26A) (1) In this section “registration card” means a document which— (a) carries information about a person (whether or not wholly or partly electronically), and (b) is issued by the Secretary of State to the person wholly or partly in connection with a claim for asylum (whether or not made by that person). (2) In subsection (1) “claim for asylum” has the meaning given by section 18 of the Nationality, Immigration and Asylum Act 2002. (3) A person commits an offence if he— (a) makes a false registration card, (b) alters a registration card with intent to deceive or to enable another to deceive, (c) has a false or altered registration card in his possession without reasonable excuse, (d) uses or attempts to use a false registration card for a purpose for which a registration card is issued, (e) uses or attempts to use an altered registration card with intent to deceive, (f) makes an article designed to be used in making a false registration card, (g) makes an article designed to be used in altering a registration card with intent to deceive or to enable another to deceive, or (h) has an article within paragraph (f) or (g) in his possession without reasonable excuse. (4) In subsection (3) “false registration card” means a document which is designed to appear to be a registration card. (5) A person who is guilty of an offence under subsection (3)(a), (b), (d), (e), (f) or (g) shall be liable— (a) on conviction on indictment, to imprisonment for a term not exceeding ten years, to a fine or to both, or (b) on summary conviction, to imprisonment for a term not exceeding six months, to a fine not exceeding the statutory maximum or to both. (6) A person who is guilty of an offence under subsection (3)(c) or (h) shall be liable— (a) on conviction on indictment, to imprisonment for a term not exceeding two years, to a fine or to both, or (b) on summary conviction, to imprisonment for a term not exceeding six months, to a fine not exceeding the statutory maximum or to both. (7) The Secretary of State may by order— (a) amend the definition of “registration card” in subsection (1); (b) make consequential amendment of this section. (8) An order under subsection (7)— (a) must be made by statutory instrument, and (b) may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.

Immigration stamp

149

The following shall be inserted after section 26A of the Immigration Act 1971 (c. 77) (registration card: falsification, &c.) (inserted by section 148 above)—

(26B) (1) A person commits an offence if he has an immigration stamp in his possession without reasonable excuse. (2) A person commits an offence if he has a replica immigration stamp in his possession without reasonable excuse. (3) In this section— (a) “immigration stamp” means a device which is designed for the purpose of stamping documents in the exercise of an immigration function, (b) “replica immigration stamp” means a device which is designed for the purpose of stamping a document so that it appears to have been stamped in the exercise of an immigration function, and (c) “immigration function” means a function of an immigration officer or the Secretary of State under the Immigration Acts. (4) A person who is guilty of an offence under this section shall be liable— (a) on conviction on indictment, to imprisonment for a term not exceeding two years, to a fine or to both, or (b) on summary conviction, to imprisonment for a term not exceeding six months, to a fine not exceeding the statutory maximum or to both.

Sections 148 and 149: consequential amendments

150

• (1) The following shall be inserted after section 28A(9) of the Immigration Act 1971 (arrest without warrant)—

(9A) A constable or immigration officer may arrest without warrant a person— (a) who has committed an offence under section 26A or 26B; or (b) whom he has reasonable grounds for suspecting has committed an offence under section 26A or 26B.

• (2) In section 28B(5) of that Act (search and arrest by warrant) after “, 24A” there shall be inserted “ , 26A or 26B. ”.

• (3) In section 28D(4) of that Act (search of premises) after “, 25B” there shall be inserted “ , 26A or 26B ”.

False information

151

In section 26(3) of the Immigration Act 1971 (general offences: “relevant enactment”)—

• (a) the word “or” after paragraph (c) shall cease to have effect, and

• (b) after paragraph (d) there shall be inserted—

; or (e) the Nationality, Immigration and Asylum Act 2002 (apart from Part 5).

Procedure

Arrest by immigration officer

152

The following shall be inserted after section 28A of the Immigration Act 1971 (c. 77) (arrest without warrant)—

(28AA) (1) This section applies if on an application by an immigration officer a justice of the peace is satisfied that there are reasonable grounds for suspecting that a person has committed an offence under— (a) section 24(1)(d), or (b) section 8 of the Asylum and Immigration Act 1996 (c. 49) (employment: offence). (2) The justice of the peace may grant a warrant authorising any immigration officer to arrest the person. (3) In the application of this section to Scotland a reference to a justice of the peace shall be treated as a reference to the sheriff or a justice of the peace.

Power of entry

153

• (1) The following shall be inserted after section 28C of the Immigration Act 1971 (search and arrest without warrant)—

(28CA) (1) A constable or immigration officer may enter and search any business premises for the purpose of arresting a person— (a) for an offence under section 24, (b) for an offence under section 24A, or (c) under paragraph 17 of Schedule 2. (2) The power under subsection (1) may be exercised only— (a) to the extent that it is reasonably required for a purpose specified in subsection (1), (b) if the constable or immigration officer has reasonable grounds for believing that the person whom he is seeking is on the premises, (c) with the authority of the Secretary of State (in the case of an immigration officer) or a Chief Superintendent (in the case of a constable), and (d) if the constable or immigration officer produces identification showing his status. (3) Authority for the purposes of subsection (2)(c)— (a) may be given on behalf of the Secretary of State only by a civil servant of the rank of at least Assistant Director, and (b) shall expire at the end of the period of seven days beginning with the day on which it is given. (4) Subsection (2)(d) applies— (a) whether or not a constable or immigration officer is asked to produce identification, but (b) only where premises are occupied. (5) Subsection (6) applies where a constable or immigration officer— (a) enters premises in reliance on this section, and (b) detains a person on the premises. (6) A detainee custody officer may enter the premises for the purpose of carrying out a search. (7) In subsection (6)— - “detainee custody officer” means a person in respect of whom a certificate of authorisation is in force under section 154 of the Immigration and Asylum Act 1999 (c. 33) (detained persons: escort and custody), and - “search” means a search under paragraph 2(1)(a) of Schedule 13 to that Act (escort arrangements: power to search detained person).

• (2) The following shall be substituted for section 146(2) of the Immigration and Asylum Act 1999 (use of force)—

(2) A person exercising a power under any of the following may if necessary use reasonable force— (a) section 28CA, 28FA or 28FB of the 1971 Act (business premises: entry to arrest or search), (b) section 141 or 142 of this Act, and (c) regulations under section 144 of this Act.

Power to search for evidence

154

The following shall be inserted after section 28F of the Immigration Act 1971 (c. 77) (entry and search)—

(28FA) (1) This section applies where— (a) a person has been arrested for an offence under section 24(1) or 24A(1), (b) a person has been arrested under paragraph 17 of Schedule 2, (c) a constable or immigration officer reasonably believes that a person is liable to arrest for an offence under section 24(1) or 24A(1), or (d) a constable or immigration officer reasonably believes that a person is liable to arrest under paragraph 17 of Schedule 2. (2) A constable or immigration officer may search business premises where the arrest was made or where the person liable to arrest is if the constable or immigration officer reasonably believes— (a) that a person has committed an immigration employment offence in relation to the person arrested or liable to arrest, and (b) that employee records, other than items subject to legal privilege, will be found on the premises and will be of substantial value (whether on their own or together with other material) in the investigation of the immigration employment offence. (3) A constable or officer searching premises under subsection (2) may seize and retain employee records, other than items subject to legal privilege, which he reasonably suspects will be of substantial value (whether on their own or together with other material) in the investigation of— (a) an immigration employment offence, or (b) an offence under section 105 or 106 of the Immigration and Asylum Act 1999 (c. 33) (support for asylum-seeker: fraud). (4) The power under subsection (2) may be exercised only— (a) to the extent that it is reasonably required for the purpose of discovering employee records other than items subject to legal privilege, (b) if the constable or immigration officer produces identification showing his status, and (c) if the constable or immigration officer reasonably believes that at least one of the conditions in subsection (5) applies. (5) Those conditions are— (a) that it is not practicable to communicate with a person entitled to grant access to the records, (b) that permission to search has been refused, (c) that permission to search would be refused if requested, and (d) that the purpose of a search may be frustrated or seriously prejudiced if it is not carried out in reliance on subsection (2). (6) Subsection (4)(b) applies— (a) whether or not a constable or immigration officer is asked to produce identification, but (b) only where premises are occupied. (7) In this section “immigration employment offence” means an offence under section 8 of the Asylum and Immigration Act 1996 (c. 49) (employment). (28FB) (1) This section applies where on an application made by an immigration officer in respect of business premises a justice of the peace is satisfied that there are reasonable grounds for believing— (a) that an employer has provided inaccurate or incomplete information under section 134 of the Nationality, Immigration and Asylum Act 2002 (compulsory disclosure by employer), (b) that employee records, other than items subject to legal privilege, will be found on the premises and will enable deduction of some or all of the information which the employer was required to provide, and (c) that at least one of the conditions in subsection (2) is satisfied. (2) Those conditions are— (a) that it is not practicable to communicate with a person entitled to grant access to the premises, (b) that it is not practicable to communicate with a person entitled to grant access to the records, (c) that entry to the premises or access to the records will not be granted unless a warrant is produced, and (d) that the purpose of a search may be frustrated or seriously prejudiced unless an immigration officer arriving at the premises can secure immediate entry. (3) The justice of the peace may issue a warrant authorising an immigration officer to enter and search the premises. (4) Subsection (7)(a) of section 28D shall have effect for the purposes of this section as it has effect for the purposes of that section. (5) An immigration officer searching premises under a warrant issued under this section may seize and retain employee records, other than items subject to legal privilege, which he reasonably suspects will be of substantial value (whether on their own or together with other material) in the investigation of— (a) an offence under section 137 of the Nationality, Immigration and Asylum Act 2002 (disclosure of information: offences) in respect of a requirement under section 134 of that Act, or (b) an offence under section 105 or 106 of the Immigration and Asylum Act 1999 (c. 33) (support for asylum-seeker: fraud).

Sections 153 and 154: supplemental

155

The following shall be added at the end of section 28L of the Immigration Act 1971 (c. 77) (interpretation) (which becomes subsection (1))—

(2) In this Part “business premises” means premises (or any part of premises) not used as a dwelling. (3) In this Part “employee records” means records which show an employee’s— (a) name, (b) date of birth, (c) address, (d) length of service, (e) rate of pay, or (f) nationality or citizenship. (4) The Secretary of State may by order amend section 28CA(3)(a) to reflect a change in nomenclature. (5) An order under subsection (4)— (a) must be made by statutory instrument, and (b) shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Time limit on prosecution

156

• (1) In section 28(1) of the Immigration Act 1971 (c. 77) (extended time limit for prosecution) the words “, 24A, 25” shall cease to have effect.

• (2) Section 24A(4) of that Act (deception: application of extended time limit) shall cease to have effect.

Part 8 — General

Consequential and incidental provision

157

• (1) The Secretary of State may by order make consequential or incidental provision in connection with a provision of this Act.

• (2) An order under this section may, in particular—

• (a) amend an enactment;

• (b) modify the effect of an enactment.

• (3) An order under this section must be made by statutory instrument.

• (4) An order under this section which amends an enactment shall not be made unless a draft has been laid before and approved by resolution of each House of Parliament.

• (5) Any other order under this section shall be subject to annulment pursuant to a resolution of either House of Parliament.

Interpretation: “the Immigration Acts”

158

Applied provision

159

• (1) Subsection (2) applies where this Act amends or refers to a provision which is applied by, under or for purposes of—

• (a) another provision of the Act which contains the provision, or

• (b) another Act.

• (2) The amendment or reference shall have effect in relation to the provision as applied.

• (3) Where this Act applies a provision of another Act, a reference to that provision in any enactment includes a reference to the provision as applied by this Act.

Money

160

• (1) Expenditure of the Secretary of State or the Lord Chancellor in connection with a provision of this Act shall be paid out of money provided by Parliament.

• (2) An increase attributable to this Act in the amount payable out of money provided by Parliament under another enactment shall be paid out of money provided by Parliament.

• (3) A sum received by the Secretary of State or the Lord Chancellor in connection with a provision of this Act shall be paid into the Consolidated Fund.

Repeals

161

The provisions listed in Schedule 9 are hereby repealed to the extent specified.

Commencement

162

• (1) Subject to subsections (2) to (5), the preceding provisions of this Act shall come into force in accordance with provision made by the Secretary of State by order.

• (2) The following provisions shall come into force on the passing of this Act—

• (a) section 6,

• (b) section 7,

• (c) section 10(1) to (4) and (6),

• (d) section 11,

• (e) section 15 (and Schedule 2),

• (f) section 16,

• (g) section 35(1)(h),

• (h) section 38,

• (i) section 40(1),

• (j) section 41(1),

• (k) section 42,

• (l) section 43,

• (m) section 48,

• (n) section 49,

• (o) section 50,

• (p) section 56,

• (q) section 58,

• (r) section 59,

• (s) section 61,

• (t) section 67,

• (u) section 69,

• (v) section 70,

• (w) section 115 and paragraph 29 of Schedule 7 (and the relevant entry in Schedule 9),

• (x) section 157, and

• (y) section 160.

• (3) Section 5 shall have effect in relation to—

• (a) an application made after the passing of this Act, and

• (b) an application made, but not determined, before the passing of this Act.

• (4) Section 8 shall have effect in relation to—

• (a) an application made on or after a date appointed by the Secretary of State by order, and

• (b) an application made, but not determined, before that date.

• (5) Section 9 shall have effect in relation to a child born on or after a date appointed by the Secretary of State by order.

• (6) An order under subsection (1) may—

• (a) make provision generally or for a specified purpose only (which may include the purpose of the application of a provision to or in relation to a particular place or area);

• (b) make different provision for different purposes;

• (c) include transitional provision;

• (d) include savings;

• (e) include consequential provision;

• (f) include incidental provision.

• (7) An order under this section must be made by statutory instrument.

Extent

163

• (1) A provision of this Act which amends or repeals a provision of another Act or inserts a provision into another Act has the same extent as the provision amended or repealed or as the Act into which the insertion is made (ignoring, in any case, extent by virtue of an Order in Council).

• (2) Sections 145 and 146 extend only to—

• (a) England and Wales, and

• (b) Northern Ireland.

• (3) A provision of this Act to which neither subsection (1) nor subsection (2) applies extends to—

• (a) England and Wales,

• (b) Scotland, and

• (c) Northern Ireland.

• (4) Her Majesty may by Order in Council direct that a provision of this Act is to extend, with or without modification or adaptation, to—

• (a) any of the Channel Islands;

• (b) the Isle of Man.

• (5) Subsection (4) does not apply in relation to the extension to a place of a provision which extends there by virtue of subsection (1).

Short title

164

This Act may be cited as the Nationality, Immigration and Asylum Act 2002.

SCHEDULE 1

1

The following shall be substituted for section 42 of the British Nationality Act 1981 (c. 61) (registration and naturalisation: fee and oath)—

(42) (1) A person of full age shall not be registered under this Act as a British citizen unless he has made the relevant citizenship oath and pledge specified in Schedule 5 at a citizenship ceremony. (2) A certificate of naturalisation as a British citizen shall not be granted under this Act to a person of full age unless he has made the relevant citizenship oath and pledge specified in Schedule 5 at a citizenship ceremony. (3) A person of full age shall not be registered under this Act as a British overseas territories citizen unless he has made the relevant citizenship oath and pledge specified in Schedule 5. (4) A certificate of naturalisation as a British overseas territories citizen shall not be granted under this Act to a person of full age unless he has made the relevant citizenship oath and pledge specified in Schedule 5. (5) A person of full age shall not be registered under this Act as a British Overseas citizen or a British subject unless he has made the relevant citizenship oath specified in Schedule 5. (6) Where the Secretary of State thinks it appropriate because of the special circumstances of a case he may— (a) disapply any of subsections (1) to (5), or (b) modify the effect of any of those subsections. (7) Sections 5 and 6 of the Oaths Act 1978 (c. 19) (affirmation) apply to a citizenship oath; and a reference in this Act to a citizenship oath includes a reference to a citizenship affirmation. (42A) (1) A person shall not be registered under a provision of this Act as a citizen of any description or as a British subject unless any fee payable by virtue of this Act in connection with the registration has been paid. (2) A certificate of naturalisation shall not be granted to a person under a provision of this Act unless any fee payable by virtue of this Act in connection with the grant of the certificate has been paid. (42B) (1) A person who is registered under this Act as a citizen of any description or as a British subject shall be treated as having become a citizen or subject— (a) immediately on making the required citizenship oath and pledge in accordance with section 42, or (b) where the requirement for an oath and pledge is disapplied, immediately on registration. (2) A person granted a certificate of naturalisation under this Act as a citizen of any description shall be treated as having become a citizen— (a) immediately on making the required citizenship oath and pledge in accordance with section 42, or (b) where the requirement for an oath and pledge is disapplied, immediately on the grant of the certificate. (3) In the application of subsection (1) to registration as a British Overseas citizen or as a British subject the reference to the citizenship oath and pledge shall be taken as a reference to the citizenship oath.

2

The following shall be substituted for Schedule 5 to the British Nationality Act 1981 (c. 61)—

SCHEDULE 5 (1) The form of citizenship oath and pledge is as follows for registration of or naturalisation as a British citizen— “I,[name], swear by Almighty God that, on becoming a British citizen, I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Her Heirs and Successors according to law.” “I will give my loyalty to the United Kingdom and respect its rights and freedoms. I will uphold its democratic values. I will observe its laws faithfully and fulfil my duties and obligations as a British citizen.” (2) The form of citizenship oath and pledge is as follows for registration of or naturalisation as a British overseas territories citizen— “I,[name], swear by Almighty God that, on becoming a British overseas territories citizen, I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Her Heirs and Successors according to law.” “I will give my loyalty to[name of territory] and respect its rights and freedoms. I will uphold its democratic values. I will observe its laws faithfully and fulfil my duties and obligations as a British overseas territories citizen.” (3) The form of citizenship oath is as follows for registration of a British Overseas citizen— “I,[name], swear by Almighty God that, on becoming a British Overseas citizen, I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Her Heirs and Successors according to law.” (4) The form of citizenship oath is as follows for registration of a British subject— “I,[name], swear by Almighty God that, on becoming a British subject, I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Her Heirs and Successors according to law.”.

3

Section 41 of the British Nationality Act 1981 (c. 61) (regulations) shall be amended as follows.

4

For subsection (1)(d) substitute—

(d) for the time within which an obligation to make a citizenship oath and pledge at a citizenship ceremony must be satisfied; (da) for the time within which an obligation to make a citizenship oath or pledge must be satisfied; (db) for the content and conduct of a citizenship ceremony; (dc) for the administration and making of a citizenship oath or pledge; (dd) for the registration and certification of the making of a citizenship oath or pledge; (de) for the completion and grant of a certificate of registration or naturalisation;

.

5

In subsection (2)(c)—

• (a) for “the taking there of any oath of allegiance” substitute “ the making there of a citizenship oath or pledge ”, and

• (b) for “granted or taken” substitute “ or granted ”.

6

In subsection (3)(a) for “taking of oaths of allegiance” substitute “ making of oaths and pledges of citizenship ”.

7

After subsection (3) insert—

(3A) Regulations under subsection (1)(d) to (de) may, in particular— (a) enable the Secretary of State to designate or authorise a person to exercise a function (which may include a discretion) in connection with a citizenship ceremony or a citizenship oath or pledge; (b) require, or enable the Secretary of State to require, a local authority to provide specified facilities and to make specified arrangements in connection with citizenship ceremonies; (c) impose, or enable the Secretary of State to impose, a function (which may include a discretion) on a local authority or on a registrar. (3B) In subsection (3A)— - “local authority” means— 1. in relation to England and Wales, a county council, a county borough council, a metropolitan district council, a London Borough Council and the Common Council of the City of London, and 2. in relation to Scotland, a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 (c. 39), and - “registrar” means— 1. in relation to England and Wales, a superintendent registrar of births, deaths and marriages (or, in accordance with section 8 of the Registration Service Act 1953 (c. 37), a deputy superintendent registrar), and 2. in relation to Scotland, a district registrar within the meaning of section 7(12) of the Registration of Births, Deaths and Marriages (Scotland) Act 1965 (c. 49).

8

The Secretary of State may make a payment to a local authority in respect of anything done by the authority in accordance with regulations made by virtue of section 41(3A) of the British Nationality Act 1981 (c. 61).

9

• (1) A local authority must—

• (a) comply with a requirement imposed on it by regulations made by virtue of that section, and

• (b) carry out a function imposed on it by regulations made by virtue of that section.

• (2) A local authority on which a requirement or function is imposed by regulations made by virtue of that section—

• (a) may provide facilities or make arrangements in addition to those which it is required to provide or make, and

• (b) may make a charge for the provision of facilities or the making of arrangements under paragraph (a) which does not exceed the cost of providing the facilities or making the arrangements.

SCHEDULE 2

1

The following provisions of the British Nationality Act 1981 (c. 61) shall cease to have effect—

• (a) section 7(registration as British citizen by virtue of residence or employment),

• (b) section 8(registration as British citizen by virtue of marriage),

• (c) section 9(registration as British citizen by virtue of father’s status),

• (d) section 19(registration as British Dependent Territories citizen by virtue of residence),

• (e) section 20(registration as British Dependent Territories citizen by virtue of marriage),

• (f) section 21(registration as British Dependent Territories citizen by virtue of father’s status),

• (g) section 27(2)(entitlement of minor to registration as British Overseas citizen),

• (h) section 28(registration as British Overseas citizen by virtue of marriage), and

• (i) section 33(registration as British subject of certain women by virtue of earlier entitlement).

2

Nothing in this Schedule has any effect in relation to a registration made under a provision before its repeal.

SCHEDULE 3

Ineligibility for support

1

• (1) A person to whom this paragraph applies shall not be eligible for support or assistance under—

• (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

• (c) section 12 or 13A of the Social Work (Scotland) Act 1968 (c. 49) (social welfare services),

• (d) Article 7 or 15 of the Health and Personal Social Services (Northern Ireland) Order 1972 (S.I. 1972/1265 (N.I. 14)) (prevention of illness, social welfare, &c.),

• (e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (f) section 29(1)(b) of the Housing (Scotland) Act 1987 (c. 26) (interim duty to accommodate in case of apparent priority need where review of a local authority decision has been requested),

• (g) section 17, 23C, 23CZB, 23CA, 24A or 24B of the Children Act 1989 (c. 41) (welfare and other powers which can be exercised in relation to adults),

• (h) Article 18, 35 or 36 of the Children (Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2)) (welfare and other powers which can be exercised in relation to adults),

• (i) sections 22, 29 and 30 of the Children (Scotland) Act 1995 (c. 36) (provisions analogous to those mentioned in paragraph (g)),

• (j) section 188(3) or 204(4) of the Housing Act 1996 (c. 52) (accommodation pending review or appeal),

• (k) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (ka) section 1 of the Localism Act 2011 (local authority’s general power of competence),

• (l) a provision of the Immigration and Asylum Act 1999 (c. 33), ...

• (m) a provision of this Act , ...

• (n) Part 1 of the Care Act 2014 (care and support provided by local authority) or

• (o) Part 4 (duty of local authority to meet needs) or sections 105 to 116 (leaving care, accommodation and fostering) of the Social Services and Well-being (Wales) Act 2014.

• (2) A power or duty under a provision referred to in sub-paragraph (1) may not be exercised or performed in respect of a person to whom this paragraph applies (whether or not the person has previously been in receipt of support or assistance under the provision).

• (3) An approval or directions given under or in relation to a provision referred to in sub-paragraph (1) shall be taken to be subject to sub-paragraph (2).

Exceptions

2

• (1) Paragraph 1 does not prevent the provision of support or assistance—

• (a) to a British citizen, or

• (b) to a child, or

• (c) under or by virtue of regulations made under paragraph 8, 9 or 10 below, or

• (d) in a case in respect of which, and to the extent to which, regulations made by the Secretary of State disapply paragraph 1, or

• (e) in circumstances in respect of which, and to the extent to which, regulations made by the Secretary of State disapply paragraph 1.

• (2) Regulations under sub-paragraph (1)(d) may confer a discretion on the Secretary of State.

• (3) Regulations under sub-paragraph (1)(e) may, in particular, disapply paragraph 1 to the provision of support or assistance by a local authority to a person where the authority—

• (a) has taken steps in accordance with guidance issued by the Secretary of State to determine whether paragraph 1 would (but for the regulations) apply to the person, and

• (b) has concluded on the basis of those steps that there is no reason to believe that paragraph 1 would apply.

• (4) Regulations under sub-paragraph (1)(d) or (e) may confer a discretion on an authority.

• (5) A local authority which is considering whether to give support or assistance to a person under a provision listed in paragraph 1(1) shall act in accordance with any relevant guidance issued by the Secretary of State under sub-paragraph (3)(a).

• (6) A reference in this Schedule to a person to whom paragraph 1 applies includes a reference to a person in respect of whom that paragraph is disapplied to a limited extent by regulations under sub-paragraph (1)(d) or (e), except in a case for which the regulations provide otherwise.

3

Paragraph 1 does not prevent the exercise of a power or the performance of a duty if, and to the extent that, its exercise or performance is necessary for the purpose of avoiding a breach of—

• (a) a person’s Convention rights, ...

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

First class of ineligible person: refugee status abroad

4

• (1) Paragraph 1 applies to a person if he—

• (a) has refugee status abroad, or

• (b) is the dependant of a person who is in the United Kingdom and who has refugee status abroad.

• (2) For the purposes of this paragraph a person has refugee status abroad if—

• (a) he does not have the nationality of an EEA State and is not a British citizen, and

• (b) the government of an EEA State ... has determined that he is entitled to protection as a refugee under the Refugee Convention.

Second class of ineligible person: citizen of other EEA State

5

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Third class of ineligible person: failed asylum-seeker

6

• (1) Paragraph 1 applies to a person if—

• (a) he was (but is no longer) an asylum-seeker, and

• (b) he fails to cooperate with removal directions issued in respect of him.

• (2) Paragraph 1 also applies to a dependant of a person to whom that paragraph applies by virtue of sub-paragraph (1).

Fourth class of ineligible person: person unlawfully in United Kingdom

7

Paragraph 1 applies to a person if—

• (a) he is in the United Kingdom in breach of the immigration laws within the meaning of section 50A of the British Nationality Act 1981 , and

• (b) he is not an asylum-seeker.

Travel assistance

8

The Secretary of State may make regulations providing for arrangements to be made enabling a person to whom paragraph 1 applies by virtue of paragraph 4 ... to leave the United Kingdom.

Temporary accommodation

9

• (1) The Secretary of State may make regulations providing for arrangements to be made for the accommodation of a person to whom paragraph 1 applies pending the implementation of arrangements made by virtue of paragraph 8.

• (2) Arrangements for a person by virtue of this paragraph—

• (a) may be made only if the person has with him a dependent child, and

• (b) may include arrangements for a dependent child.

10

• (1) The Secretary of State may make regulations providing for arrangements to be made for the accommodation of a person if—

• (a) paragraph 1 applies to him by virtue of paragraph 7, and

• (b) he has not failed to cooperate with removal directions issued in respect of him.

• (2) Arrangements for a person by virtue of this paragraph—

• (a) may be made only if the person has with him a dependent child, and

• (b) may include arrangements for a dependent child.

Assistance and accommodation: general

11

Regulations under paragraph 8, 9 or 10 may—

• (a) provide for the making of arrangements under a provision referred to in paragraph 1(1) or otherwise;

• (b) confer a function (which may include the exercise of a discretion) on the Secretary of State, a local authority or another person;

• (c) provide that arrangements must be made in a specified manner or in accordance with specified principles;

• (d) provide that arrangements may not be made in a specified manner;

• (e) require a local authority or another person to have regard to guidance issued by the Secretary of State in making arrangements;

• (f) require a local authority or another person to comply with a direction of the Secretary of State in making arrangements.

12

• (1) Regulations may, in particular, provide that if a person refuses an offer of arrangements under paragraph 8 or fails to implement or cooperate with arrangements made for him under that paragraph—

• (a) new arrangements may be made for him under paragraph 8, but

• (b) new arrangements may not be made for him under paragraph 9.

• (2) Regulations by virtue of this paragraph may include exceptions in the case of a person who—

• (a) has a reason of a kind specified in the regulations for failing to implement or cooperate with arrangements made under paragraph 8, and

• (b) satisfies any requirements of the regulations for proof of the reason.

Offences

13

• (1) A person who leaves the United Kingdom in accordance with arrangements made under paragraph 8 commits an offence if he—

• (a) returns to the United Kingdom, and

• (b) requests that arrangements be made for him by virtue of paragraph 8, 9 or 10.

• (2) A person commits an offence if he—

• (a) requests that arrangements be made for him by virtue of paragraph 8, 9 or 10, and

• (b) fails to mention a previous request by him for the making of arrangements under any of those paragraphs.

• (3) A person who is guilty of an offence under this paragraph shall be liable on summary conviction to imprisonment for a term not exceeding six months.

Information

14

• (1) If it appears to a local authority that paragraph 1 applies or may apply to a person in the authority’s area by virtue of paragraph 6, 7 or 7A , the authority must inform the Secretary of State.

• (2) A local authority shall act in accordance with any relevant guidance issued by the Secretary of State for the purpose of determining whether paragraph 1 applies or may apply to a person in the authority’s area by virtue of paragraph 6, 7 or 7A .

Power to amend Schedule

15

The Secretary of State may by order amend this Schedule so as—

• (a) to provide for paragraph 1 to apply or not to apply to a class of person;

• (b) to add or remove a provision to or from the list in paragraph 1(1);

• (c) to add, amend or remove a limitation of or exception to paragraph 1.

Orders and regulations

16

• (1) An order or regulations under this Schedule must be made by statutory instrument.

• (2) An order or regulations under this Schedule may—

• (a) make provision which applies generally or only in specified cases or circumstances or only for specified purposes;

• (b) make different provision for different cases, circumstances or purposes;

• (c) make transitional provision;

• (d) make consequential provision (which may include provision amending a provision made by or under this or another Act).

• (3) An order under this Schedule, regulations under paragraph 2(1)(d) or (e) or other regulations which include consequential provision amending an enactment shall not be made unless a draft has been laid before and approved by resolution of each House of Parliament.

• (4) Regulations under this Schedule to which sub-paragraph (3) does not apply shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Interpretation

17

• (1) In this Schedule—

• “asylum-seeker” means a person—who is at least 18 years old,who has made a claim for asylum (within the meaning of section 18(3)), andwhose claim has been recorded by the Secretary of State but not determined,

• “Convention rights” has the same meaning as in the Human Rights Act 1998 (c. 42),

• “child” means a person under the age of eighteen,

• “dependant” and “dependent” shall have such meanings as may be prescribed by regulations made by the Secretary of State,

• “EEA State” means a State which is a contracting party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 (as it has effect from time to time),

• “local authority”—in relation to England and Wales, has the same meaning as in section 129(3),in relation to Scotland, has the same meaning as in section 129(4), andin relation to Northern Ireland, means a health service body within the meaning of section 133(4)(d) and the Northern Ireland Housing Executive (for which purpose a reference to the authority’s area shall be taken as a reference to Northern Ireland),

• “the Refugee Convention” means the Convention relating to the status of Refugees done at Geneva on 28th July 1951 and its Protocol, and

• “removal directions” means directions under Schedule 2 to the Immigration Act 1971 (c. 77) (control of entry, &c.), under Schedule 3 to that Act (deportation) or under section 10 of the Immigration and Asylum Act 1999 (c. 33) (removal of person unlawfully in United Kingdom).

• (2) For the purpose of the definition of “asylum-seeker” in sub-paragraph (1) a claim is determined if—

• (a) the Secretary of State has notified the claimant of his decision,

• (b) no appeal against the decision can be brought (disregarding the possibility of an appeal out of time with permission), and

• (c) any appeal which has already been brought has been disposed of.

• (2A) For the purposes of the definition of “asylum-seeker” in sub-paragraph (1), a claim is also determined if the Secretary of State has notified the claimant that it has been declared inadmissible under section 80A or 80B.

• (2B) But if a claim is—

• (a) declared inadmissible under section 80B, and

• (b) nevertheless considered by the Secretary of State in accordance subsection (7) of that section,

the claim ceases to be treated as determined from the time of the decision to consider the claim.

• (3) For the purpose of sub-paragraph (2)(c) an appeal is disposed of when it is no longer pending for the purpose of—

• (a) Part 5 of this Act, or

• (b) the Special Immigration Appeals Commission Act 1997 (c. 68).

• (4) The giving of directions in respect of a person under a provision of the Immigration Acts is not the provision of assistance to him for the purposes of this Schedule.

Schedule 4

Term of office

1

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Proceedings

2

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Staff

5

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Money

6

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

7

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

SCHEDULE 5

Membership

1

The Lord Chancellor shall appoint the members of the Tribunal.

2

• (1) A member—

• (a) may resign by notice in writing to the Lord Chancellor,

• (b) shall cease to be a member on reaching the age of 70, and

• (c) otherwise, shall hold and vacate office in accordance with the terms of his appointment.

• (2) Sub-paragraph (1)(b) is subject to section 26(4) to (6) of the Judicial Pensions and Retirement Act 1993 (c. 8) (extension to age 75).

Presidency

3

The Lord Chancellor shall appoint as President of the Tribunal a member who holds or has held high judicial office within the meaning of the Appellate Jurisdiction Act 1876 (c. 59).

4

• (1) The Lord Chancellor shall appoint one legally qualified member of the Tribunal as its Deputy President.

• (2) The Deputy President—

• (a) may act for the President if the President is unable to act or unavailable, and

• (b) shall perform such functions as the President may delegate or assign to him.

Proceedings

5

The Tribunal shall sit at times and places determined by the Lord Chancellor.

6

The Tribunal may sit in more than one division.

7

• (1) The jurisdiction of the Tribunal may be exercised by such number of its members as the President may direct.

• (2) A direction under this sub-paragraph—

• (a) may relate to specified proceedings or proceedings of a specified kind,

• (b) may enable jurisdiction to be exercised by a single member,

• (c) may require the member hearing proceedings, or a specified number of the members hearing proceedings, to be legally qualified, and

• (d) may be varied or revoked by a further direction.

Staff

8

The Lord Chancellor may appoint staff for the Tribunal.

Money

9

The Lord Chancellor—

• (a) may pay remuneration and allowances to members of the Tribunal,

• (b) may pay remuneration and allowances to staff of the Tribunal, and

• (c) may defray expenses of the Tribunal.

10

The Lord Chancellor may pay compensation to a person who ceases to be a member of the Tribunal if the Lord Chancellor thinks it appropriate because of special circumstances.

Interpretation: legally qualified member

11

• (1) For the purpose of this Schedule a member of the Tribunal is legally qualified if he—

• (a) has a seven year general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990 (c. 41),

• (b) is an advocate or solicitor in Scotland of at least seven years’ standing,

• (c) is a member of the Bar of Northern Ireland, or a solicitor of the Court of Judicature of Northern Ireland , of at least seven years’ standing, or

• (d) is appointed by the Lord Chancellor as a legally qualified member.

• (2) A person may be appointed by the Lord Chancellor under sub-paragraph (1)(d) only if he has legal or other experience which in the Lord Chancellor’s opinion makes him suitable for appointment as a legally qualified member.

SCHEDULE 6

“Commencement”

1

In this Schedule “commencement” means the coming into force of Part 5 of this Act.

Adjudicator

2

Where a person is an adjudicator under section 57 of the Immigration and Asylum Act 1999 (c. 33) immediately before commencement his appointment shall have effect after commencement as if made under section 81 of this Act.

Tribunal

3

• (1) Where a person is a member of the Immigration Appeal Tribunal immediately before commencement his appointment shall have effect after commencement as if made under Schedule 5.

• (2) Where a person is a member of staff of the Immigration Appeal Tribunal immediately before commencement his appointment shall have effect after commencement as if made under Schedule 5.

Earlier appeal

4

In the application of section 96—

• (a) a reference to an appeal or right of appeal under a provision of this Act includes a reference to an appeal or right of appeal under the Immigration and Asylum Act 1999,

• (b) a reference to a requirement imposed under this Act includes a reference to a requirement of a similar nature imposed under that Act,

• (c) a reference to a statement made in pursuance of a requirement imposed under a provision of this Act includes a reference to anything done in compliance with a requirement of a similar nature under that Act, and

• (d) a reference to notification by virtue of this Act includes a reference to notification by virtue of any other enactment.

Saving

5

• (1) This Schedule is without prejudice to the power to include transitional provision in an order under section 162.

• (2) An order under that section may, in particular, provide for a reference to a provision of Part 5 of this Act to be treated as being or including a reference (with or without modification) to a provision of the Immigration and Asylum Act 1999 (c. 33).

SCHEDULE 7

Immigration Act 1971 (c. 77)

1

In section 33(4) of the Immigration Act 1971 (c. 77) (pending appeal: interpretation) for paragraphs (a) and (b) substitute “in accordance with section 104 of the Nationality, Immigration and Asylum Act 2002 (pending appeals)”.

2

In paragraph 2A(9) of Schedule 2 to that Act (control of entry: person with continuing leave) for “Part IV of the Immigration and Asylum Act 1999” substitute “ Part 5 of the Nationality, Immigration and Asylum Act 2002 (immigration and asylum appeals) ”.

3

In paragraph 4(4) of that Schedule (examination and detention of documents) for “an appeal under this Act” substitute “ an appeal under the Nationality, Immigration and Asylum Act 2002 ”.

4

In paragraph 8(2) of that Schedule (time within which directions may be given) after “United Kingdom” insert “ (ignoring any period during which an appeal by him under the Immigration Acts is pending) ”.

5

In paragraph 25 of that Schedule (rules) for “section 22 of this Act” substitute “ section 106 of the Nationality, Immigration and Asylum Act 2002 (appeals) ”.

6

In paragraph 29 of that Schedule (bail pending appeal)—

• (a) in sub-paragraph (1), for the words from “section” to “1999” substitute “ Part 5 of the Nationality, Immigration and Asylum Act 2002 ”, and

• (b) for the words “Appeal Tribunal” substitute, in each place, “ Immigration Appeal Tribunal ”.

7

In paragraph 2(2) of Schedule 3 to that Act (deportation) for “section 18 of this Act” substitute “ section 105 of the Nationality, Immigration and Asylum Act 2002 (notice of decision) ”.

8

For paragraph 3 of that Schedule (deportation: effect of appeal) substitute—

(3) So far as they relate to an appeal under section 82(1) of the Nationality, Immigration and Asylum Act 2002 against a decision of the kind referred to in section 82(2)(j) or (k) of that Act (decision to make deportation order and refusal to revoke deportation order), paragraphs 29 to 33 of Schedule 2 to this Act shall apply for the purposes of this Schedule as if the reference in paragraph 29(1) to Part I of that Schedule were a reference to this Schedule.

House of Commons Disqualification Act 1975 (c. 24)

9

In Part III of Schedule 1 to the House of Commons Disqualification Act 1975 (disqualifying offices) for “Adjudicator appointed for the purposes of the Immigration and Asylum Act 1999.” substitute “ Adjudicator appointed for the purposes of Part 5 of the Nationality, Immigration and Asylum Act 2002. ”.

Northern Ireland Assembly Disqualification Act 1975 (c. 25)

10

In Part III of Schedule 1 to the Northern Ireland Assembly Disqualification Act 1975 (disqualifying offices) for “Adjudicator appointed for the purposes of the Immigration and Asylum Act 1999.” substitute “ Adjudicator appointed for the purposes of Part 5 of the Nationality, Immigration and Asylum Act 2002. ”.

Race Relations Act 1976 (c. 74)

11

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

12

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

13

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

14

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

15

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Courts and Legal Services Act 1990 (c. 41)

16

In Schedule 11 to the Courts and Legal Services Act 1990 (judges &c. barred from legal practice) for “Adjudicator for the purposes of the Immigration and Asylum Act 1999 (other than Asylum Support Adjudicator)” substitute “ Adjudicator appointed for the purposes of Part 5 of the Nationality, Immigration and Asylum Act 2002 ”.

Tribunals and Inquiries Act 1992 (c. 53)

17

In paragraph 22 of Schedule 1 to the Tribunals and Inquiries Act 1992 (tribunals under the supervision of the Council on Tribunals)—

• (a) in sub-paragraph (a), for “section 57 of the Immigration and Asylum Act 1999” substitute “ section 81 of the Nationality, Immigration and Asylum Act 2002 ”, and

• (b) in sub-paragraph (b), for “section 56 of that Act” substitute “ section 100 of that Act ”.

Judicial Pensions and Retirement Act 1993 (c. 8)

18

In Part II of Schedule 1 to the Judicial Pensions and Retirement Act 1993 (offices which may be qualifying judicial offices) for “Adjudicator for the purposes of the Immigration and Asylum Act 1999 (other than Asylum Support Adjudicator)” substitute “Adjudicator appointed for the purposes of Part 5 of the Nationality, Immigration and Asylum Act 2002”.

19

In Schedule 5 to that Act (retirement provisions: the relevant offices) for “Adjudicator for the purposes of the Immigration and Asylum Act 1999 (other than Asylum Support Adjudicator)” substitute “Adjudicator appointed for the purposes of Part 5 of the Nationality, Immigration and Asylum Act 2002”.

Special Immigration Appeals Commission Act 1997 (c. 68)

20

The following shall be substituted for section 2 of the Special Immigration Appeals Commission Act 1997 (jurisdiction: appeals)—

(2) (1) A person may appeal to the Special Immigration Appeals Commission against a decision if— (a) he would be able to appeal against the decision under section 82(1) or 83(2) of the Nationality, Immigration and Asylum Act 2002 but for a certificate of the Secretary of State under section 97 of that Act (national security, &c.), or (b) an appeal against the decision under section 82(1) or 83(2) of that Act lapsed under section 99 of that Act by virtue of a certificate of the Secretary of State under section 97 of that Act. (2) The following provisions shall apply, with any necessary modifications, in relation to an appeal against an immigration decision under this section as they apply in relation to an appeal under section 82(1) of the Nationality, Immigration and Asylum Act 2002— (a) section 3C of the Immigration Act 1971 (c. 77) (continuation of leave pending variation decision), (b) section 78 of the Nationality, Immigration and Asylum Act 2002 (no removal while appeal pending), (c) section 79 of that Act (deportation order: appeal), (d) section 82(3) of that Act (variation or revocation of leave to enter or remain: appeal), (e) section 84 of that Act (grounds of appeal), (f) section 85 of that Act (matters to be considered), (g) section 86 of that Act (determination of appeal), (h) section 87 of that Act (successful appeal: direction), (i) section 96 of that Act (earlier right of appeal), (j) section 104 of that Act (pending appeal), (k) section 105 of that Act (notice of immigration decision), and (l) section 110 of that Act (grants). (3) The following provisions shall apply, with any necessary modifications, in relation to an appeal against the rejection of a claim for asylum under this section as they apply in relation to an appeal under section 83(2) of the Nationality, Immigration and Asylum Act 2002— (a) section 85(4) of that Act (matters to be considered), (b) section 86 of that Act (determination of appeal), (c) section 87 of that Act (successful appeal: direction), and (d) section 110 of that Act (grants). (4) An appeal against the rejection of a claim for asylum under this section shall be treated as abandoned if the appellant leaves the United Kingdom. (5) A person may bring or continue an appeal against an immigration decision under this section while he is in the United Kingdom only if he would be able to bring or continue the appeal while he was in the United Kingdom if it were an appeal under section 82(1) of that Act. (6) In this section “immigration decision” has the meaning given by section 82(2) of the Nationality, Immigration and Asylum Act 2002.

21

Section 2A of that Act (human rights) shall cease to have effect.

22

Section 4 of that Act (determination of appeals) shall cease to have effect.

23

In section 5 of that Act (procedure)—

• (a) in subsections (1)(a) and (b) and (2) omit “or 2A”, and

• (b) after subsection (2) insert—

(2A) Rules under this section may, in particular, do anything which may be done by rules under section 106 of the Nationality, Immigration and Asylum Act 2002 (appeals: rules).

24

Section 7A of that Act (pending appeals) shall cease to have effect.

25

In paragraph 5 of Schedule 1 to that Act—

• (a) in sub-paragraph (b)(i), for “section 57(2) of the Immigration and Asylum Act 1999” substitute “ section 81(3)(a) of the Nationality, Immigration and Asylum Act 2002 ”, and

• (b) in sub-paragraph (b)(ii), for “paragraph 1(3) of Schedule 2” substitute “ paragraph 11 of Schedule 5 ”.

26

Schedule 2 to that Act shall cease to have effect.

Immigration and Asylum Act 1999 (c. 33)

27

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

28

In section 53(4) of that Act (bail) for “this Act” there shall be substituted “ the Nationality, Immigration and Asylum Act 2002 ”.

29

• (1) Paragraph 9 of Schedule 4 to that Act (appeals: procedure: Convention cases) shall be amended as follows—

• (a) in sub-paragraph (1)(a), omit “(4), (5)”, and

• (b) omit sub-paragraphs (4) and (5).

• (2) This paragraph is without prejudice to—

• (a) the effect after commencement of this paragraph of a certificate issued before commencement, or

• (b) the power of the Secretary of State after the commencement of this paragraph to issue a certificate in respect of a claim made before commencement.

Anti-terrorism, Crime and Security Act 2001 (c. 24)

30

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Proceeds of Crime Act 2002 (c. 29)

31

The following shall be substituted for paragraph 4 of Schedule 2 to the Proceeds of Crime Act 2002 (lifestyle offences: England and Wales: people trafficking)—

(4) (1) An offence under section 25, 25A or 25B of the Immigration Act 1971 (c. 77) (assisting unlawful immigration etc.). (2) An offence under section 145 of the Nationality, Immigration and Asylum Act 2002 (traffic in prostitution).

32

In paragraph 4 of Schedule 4 to that Act (lifestyle offences: Scotland: people trafficking) for “section 25(1) of the Immigration Act 1971 (assisting illegal entry etc.)” there shall be substituted “ section 25, 25A or 25B of the Immigration Act 1971 (assisting unlawful immigration etc.) ”.

33

The following shall be substituted for paragraph 4 of Schedule 5 to that Act (lifestyle offences: Northern Ireland: people trafficking)—

(4) (1) An offence under section 25, 25A or 25B of the Immigration Act 1971 (assisting unlawful immigration etc.). (2) An offence under section 145 of the Nationality, Immigration and Asylum Act 2002 (traffic in prostitution).

SCHEDULE 8

1

The Immigration and Asylum Act 1999 (c. 33) shall be amended as follows.

2

• (1) Section 32 (penalty for carrying clandestine entrant) shall be amended as follows.

• (2) After subsection (1)(a) insert—

(aa) he arrives in the United Kingdom concealed in a rail freight wagon,

.

• (3) For subsection (2) substitute—

(2) The Secretary of State may require a person who is responsible for a clandestine entrant to pay— (a) a penalty in respect of the clandestine entrant; (b) a penalty in respect of any person who was concealed with the clandestine entrant in the same transporter. (2A) In imposing a penalty under subsection (2) the Secretary of State— (a) must specify an amount which does not exceed the maximum prescribed for the purpose of this paragraph, (b) may, in respect of a clandestine entrant or a concealed person, impose separate penalties on more than one of the persons responsible for the clandestine entrant, and (c) may not impose penalties in respect of a clandestine entrant or a concealed person which amount in aggregate to more than the maximum prescribed for the purpose of this paragraph.

• (4) For subsection (4) substitute—

(4) Where a penalty is imposed under subsection (2) on the driver of a vehicle who is an employee of the vehicle’s owner or hirer— (a) the employee and the employer shall be jointly and severally liable for the penalty imposed on the driver (irrespective of whether a penalty is also imposed on the employer), and (b) a provision of this Part about notification, objection or appeal shall have effect as if the penalty imposed on the driver were also imposed on the employer (irrespective of whether a penalty is also imposed on the employer in his capacity as the owner or hirer of the vehicle). (4A) In the case of a detached trailer, subsection (4) shall have effect as if a reference to the driver were a reference to the operator.

• (5) In subsection (5)—

• (a) in paragraph (a) for the second “or” substitute “ and ”, and

• (b) in paragraphs (b) and (c) for “or” substitute “ and ”.

• (6) After subsection (5) insert—

(5A) In the case of a clandestine entrant to whom subsection (1)(aa) applies, the responsible person is— (a) where the entrant arrived concealed in a freight train, the train operator who, at the train’s last scheduled stop before arrival in the United Kingdom, was responsible for certifying it as fit to travel to the United Kingdom, or (b) where the entrant arrived concealed in a freight shuttle wagon, the operator of the shuttle-train of which the wagon formed part.

• (7) In subsection (6)(a) and (b) for “or” substitute “ and ”.

• (8) After subsection (6) insert—

(6A) Where a person falls within the definition of responsible person in more than one capacity, a separate penalty may be imposed on him under subsection (2) in respect of each capacity.

3

After section 32 insert—

(32A) (1) The Secretary of State shall issue a code of practice specifying matters to be considered in determining the amount of a penalty under section 32. (2) The Secretary of State shall have regard to the code (in addition to any other matters he thinks relevant)— (a) when imposing a penalty under section 32, and (b) when considering a notice of objection under section 35(4). (3) Before issuing the code the Secretary of State shall lay a draft before Parliament. (4) After laying the draft code before Parliament the Secretary of State may bring the code into operation by order. (5) The Secretary of State may from time to time revise the whole or any part of the code and issue the code as revised. (6) Subsections (3) and (4) also apply to a revision or proposed revision of the code.

4

The heading of section 33 (code of practice) becomes “ Prevention of clandestine entrants: code of practice ”.

5

In section 33(2)(b) omit “both Houses of”.

6

• (1) Section 34 (defence) shall be amended as follows.

• (2) For subsection (1) substitute—

(1) A person (“the carrier”) shall not be liable to the imposition of a penalty under section 32(2) if he has a defence under this section.

• (3) In subsection (3)(c) omit the first “that”.

• (4) After subsection (3) insert—

(3A) It is also a defence for the carrier to show that— (a) he knew or suspected that a clandestine entrant was or might be concealed in a rail freight wagon, having boarded after the wagon began its journey to the United Kingdom; (b) he could not stop the train or shuttle-train of which the wagon formed part without endangering safety; (c) an effective system for preventing the carriage of clandestine entrants was in operation in relation to the train or shuttle-train; and (d) on the occasion in question the person or persons responsible for operating the system did so properly.

• (5) Omit subsection (5).

• (6) For subsection (6) substitute—

(6) Where a person has a defence under subsection (2) in respect of a clandestine entrant, every other responsible person in respect of the clandestine entrant is also entitled to the benefit of the defence.

7

• (1) Section 35 (notification and objection) shall be amended as follows.

• (2) In subsection (2)(d)(i) for “must” substitute “ may ”.

• (3) For subsections (3) to (8) substitute—

(3) Subsection (4) applies where a person to whom a penalty notice is issued objects on the ground that— (a) he is not liable to the imposition of a penalty, or (b) the amount of the penalty is too high. (4) The person may give a notice of objection to the Secretary of State. (5) A notice of objection must— (a) be in writing, (b) give the objector’s reasons, and (c) be given before the end of such period as may be prescribed. (6) Where the Secretary of State receives a notice of objection to a penalty in accordance with this section he shall consider it and— (a) cancel the penalty, (b) reduce the penalty, (c) increase the penalty, or (d) determine to take no action under paragraphs (a) to (c). (7) Where the Secretary of State considers a notice of objection under subsection (6) he shall— (a) inform the objector of his decision before the end of such period as may be prescribed or such longer period as he may agree with the objector, (b) if he increases the penalty, issue a new penalty notice under subsection (1), and (c) if he reduces the penalty, notify the objector of the reduced amount.

• (4) In subsection (9)—

• (a) for the first “served” substitute “ issued ”, and

• (b) for “served on” substitute “ issued to ”.

• (5) At the end add—

(11) In proceedings for enforcement of a penalty under subsection (10) no question may be raised as to— (a) liability to the imposition of the penalty, or (b) its amount. (12) A document which is to be issued to or served on a person outside the United Kingdom for the purpose of subsection (1) or (7) or in the course of proceedings under subsection (10) may be issued or served— (a) in person, (b) by post, (c) by facsimile transmission, or (d) in another prescribed manner. (13) The Secretary of State may by regulations provide that a document issued or served in a manner listed in subsection (12) in accordance with the regulations is to be taken to have been received at a time specified by or determined in accordance with the regulations.

8

After section 35 insert—

(35A) (1) A person may appeal to the court against a penalty imposed on him under section 32 on the ground that— (a) he is not liable to the imposition of a penalty, or (b) the amount of the penalty is too high. (2) On an appeal under this section the court may— (a) allow the appeal and cancel the penalty, (b) allow the appeal and reduce the penalty, or (c) dismiss the appeal. (3) An appeal under this section shall be a re-hearing of the Secretary of State’s decision to impose a penalty and shall be determined having regard to— (a) any code of practice under section 32A which has effect at the time of the appeal, (b) the code of practice under section 33 which had effect at the time of the events to which the penalty relates, and (c) any other matters which the court thinks relevant (which may include matters of which the Secretary of State was unaware). (4) Subsection (3) has effect despite any provision of Civil Procedure Rules. (5) An appeal may be brought by a person under this section against a penalty whether or not— (a) he has given notice of objection under section 35(4); (b) the penalty has been increased or reduced under section 35(6).

9

• (1) Section 36 (detention of vehicle) shall be amended as follows.

• (2) In subsection (1)—

• (a) for “given” substitute “ issued ”,

• (b) after paragraph (b) omit “or”, and

• (c) after paragraph (c) insert

or (d) rail freight wagon,

.

• (3) After subsection (2) insert—

(2A) A vehicle may be detained under subsection (1) only if— (a) the driver of the vehicle is an employee of its owner or hirer, (b) the driver of the vehicle is its owner or hirer, or (c) a penalty notice is issued to the owner or hirer of the vehicle. (2B) A senior officer may detain a relevant vehicle, small ship, small aircraft or rail freight wagon pending— (a) a decision whether to issue a penalty notice, (b) the issue of a penalty notice, or (c) a decision whether to detain under subsection (1). (2C) That power may not be exercised in any case— (a) for longer than is necessary in the circumstances of the case, or (b) after the expiry of the period of 24 hours beginning with the conclusion of the first search of the vehicle, ship, aircraft or wagon by an immigration officer after it arrived in the United Kingdom.

10

After section 36 insert—

(36A) (1) This section applies where a person to whom a penalty notice has been issued under section 35 fails to pay the penalty before the date specified in accordance with section 35(2)(c). (2) The Secretary of State may make arrangements for the detention of any vehicle, small ship, small aircraft or rail freight wagon which the person to whom the penalty notice was issued uses in the course of a business. (3) A vehicle, ship, aircraft or wagon may be detained under subsection (2) whether or not the person to whom the penalty notice was issued owns it. (4) But a vehicle may be detained under subsection (2) only if the person to whom the penalty notice was issued— (a) is the owner or hirer of the vehicle, or (b) was an employee of the owner or hirer of the vehicle when the penalty notice was issued. (5) The power under subsection (2) may not be exercised while an appeal against the penalty under section 35A is pending or could be brought (ignoring the possibility of an appeal out of time with permission). (6) The Secretary of State shall arrange for the release of a vehicle, ship, aircraft or wagon detained under this section if the person to whom the penalty notice was issued pays— (a) the penalty, and (b) expenses reasonably incurred in connection with the detention.

11

• (1) Section 37 (effect of detention of transporter) shall be amended as follows.

• (2) In subsection (1) for “section 36” substitute “ section 36(1) ”.

• (3) In subsection (2) for “claiming an interest in the transporter,” substitute “ whose interests may be affected by detention of the transporter, ”.

• (4) In subsection (3)(c) omit “and the applicant has a compelling need to have the transporter released”.

• (5) After subsection (3) insert—

(3A) The court may also release the transporter on the application of the owner of the transporter under subsection (2) if— (a) a penalty notice was not issued to the owner or an employee of his, and (b) the court considers it right to release the transporter. (3B) In determining whether to release a transporter under subsection (3A) the court shall consider— (a) the extent of any hardship caused by detention, (b) the extent (if any) to which the owner is responsible for the matters in respect of which the penalty notice was issued, and (c) any other matter which appears to the court to be relevant (whether specific to the circumstances of the case or of a general nature).

• (6) After subsection (5) insert—

(5A) The power of sale under subsection (4) may be exercised only when no appeal against the imposition of the penalty is pending or can be brought (ignoring the possibility of an appeal out of time with permission). (5B) The power of sale under subsection (4) shall lapse if not exercised within a prescribed period.

• (7) After subsection (6) add—

(7) This section applies to a transporter detained under section 36A as it applies to a transporter detained under section 36(1); but for that purpose— (a) the court may release the transporter only if the court considers that the detention was unlawful or under subsection (3A) (and subsection (3) shall not apply), and (b) the reference in subsection (4) to the period of 84 days shall be taken as a reference to a period prescribed for the purpose of this paragraph.

12

Section 39(rail freight) shall cease to have effect.

13

For section 40 (charge in respect of passenger without proper documents) substitute—

(40) (1) This section applies if an individual requiring leave to enter the United Kingdom arrives in the United Kingdom by ship or aircraft and, on being required to do so by an immigration officer, fails to produce— (a) an immigration document which is in force and which satisfactorily establishes his identity and his nationality or citizenship, and (b) if the individual requires a visa, a visa of the required kind. (2) The Secretary of State may charge the owner of the ship or aircraft, in respect of the individual, the sum of £2,000. (3) The charge shall be payable to the Secretary of State on demand. (4) No charge shall be payable in respect of any individual who is shown by the owner to have produced the required document or documents to the owner or his employee or agent when embarking on the ship or aircraft for the voyage or flight to the United Kingdom. (5) For the purpose of subsection (4) an owner shall be entitled to regard a document as— (a) being what it purports to be unless its falsity is reasonably apparent, and (b) relating to the individual producing it unless it is reasonably apparent that it does not relate to him. (6) For the purposes of this section an individual requires a visa if— (a) under the immigration rules he requires a visa for entry into the United Kingdom, or (b) as a result of section 41 he requires a visa for passing through the United Kingdom. (7) The Secretary of State may by order amend this section for the purpose of applying it in relation to an individual who— (a) requires leave to enter the United Kingdom, and (b) arrives in the United Kingdom by train. (8) An order under subsection (7) may provide for the application of this section— (a) except in cases of a specified kind; (b) subject to a specified defence. (9) In this section “immigration document” means— (a) a passport, and (b) a document which relates to a national of a country other than the United Kingdom and which is designed to serve the same purpose as a passport. (10) The Secretary of State may by order substitute a sum for the sum in subsection (2). (40A) (1) If the Secretary of State decides to charge a person under section 40, the Secretary of State must notify the person of his decision. (2) A notice under subsection (1) (a “charge notice”) must— (a) state the Secretary of State’s reasons for deciding to charge the person, (b) state the amount of the charge, (c) specify the date before which, and the manner in which, the charge must be paid, (d) include an explanation of the steps that the person may take if he objects to the charge, and (e) include an explanation of the steps that the Secretary of State may take under this Part to recover any unpaid charge. (3) Where a person on whom a charge notice is served objects to the imposition of the charge on him, he may give a notice of objection to the Secretary of State. (4) A notice of objection must— (a) be in writing, (b) give the objector’s reasons, and (c) be given before the end of such period as may be prescribed. (5) Where the Secretary of State receives a notice of objection to a charge in accordance with this section, he shall— (a) consider it, and (b) determine whether or not to cancel the charge. (6) Where the Secretary of State considers a notice of objection, he shall inform the objector of his decision before the end of— (a) such period as may be prescribed, or (b) such longer period as he may agree with the objector. (7) Any sum payable to the Secretary of State as a charge under section 40 may be recovered by the Secretary of State as a debt due to him. (8) In proceedings for enforcement of a charge under subsection (7) no question may be raised as to the validity of the charge. (9) Subsections (12) and (13) of section 35 shall have effect for the purpose of this section as they have effect for the purpose of section 35(1), (7) and (10). (40B) (1) A person may appeal to the court against a decision to charge him under section 40. (2) On an appeal under this section the court may— (a) allow the appeal and cancel the charge, or (b) dismiss the appeal. (3) An appeal under this section— (a) shall be a re-hearing of the Secretary of State’s decision to impose a charge, and (b) may be determined having regard to matters of which the Secretary of State was unaware. (4) Subsection (3)(a) has effect despite any provision of Civil Procedure Rules. (5) An appeal may be brought by a person under this section against a decision to charge him whether or not he has given notice of objection under section 40A(3).

14

Section 42(power to detain vehicle, &c. carrying person without proper travel documents) shall cease to have effect.

15

In section 43 (interpretation) (which becomes subsection (1))—

• (a) in the definition of “concealed” for “or aircraft” substitute “ , aircraft or rail freight wagon ”,

• (b) omit the definition of “court”,

• (c) after the definition of “equipment” insert—

“freight shuttle wagon” means a wagon which— (a) forms part of a shuttle-train, and (b) is designed to carry commercial goods vehicles; “freight train” means any train other than— (a) a train engaged on a service for the carriage of passengers, or (b) a shuttle-train;

,

• (d) in the definition of “owner” omit paragraph (b) and the word “and” immediately preceding it,

• (e) for the definition of “rail freight wagon” substitute—