Explanatory Notes: Nationality, Immigration and Asylum Bill

Explanatory Notes: Nationality, Immigration and Asylum Bill - April 12th 2002

Explanatory Notes: Nationality, Immigration and Asylum Bill - April 12th 2002

INTRODUCTION

1. These explanatory notes relate to the Nationality, Immigration and Asylum Bill, which was introduced in the House of Commons on 12 April 2002. They have been prepared by the Home Office in order to assist the reader in understanding the Bill. They do not form part of the Bill.

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

OVERVIEW

3. The Bill is in eight parts:

Part 1 contains provisions which amend British nationality legislation, primarily the British Nationality Act 1981 ("BNA 1981"). It includes provision for citizenship ceremonies and a pledge, and imposes a requirement for naturalisation that the applicant has sufficient knowledge about life in the United Kingdom;
Part 2 contains provisions for the support of asylum-seekers in accommodation centres, built or adapted to accommodate and provide services for a number of asylum-seekers and their dependants on one site;
Part 3 concerns support arrangements for asylum-seekers and other assistance;
Part 4 contains provisions relating to detention, temporary release and removal;

[Bill 119—EN] 53/1

Part 5 contains provisions which aim to reform immigration and asylum appeals;
Part 6 contains provisions relating to immigration procedures, including charges for work permits and the provision of information;
Part 7 introduces new offences and a power of entry to business premises; and
Part 8 contains general provisions.

SUMMARY

Part 1 - Nationality

4. The provisions:

Introduce citizenship ceremonies and an updated oath of allegiance, renamed a citizenship oath and pledge, and impose additional requirements on those wishing to acquire citizenship;
Require those who apply for naturalisation as a British citizen to have sufficient knowledge about life in the United Kingdom; allow for regulations to be made which would specify how this requirement - and the existing requirement in relation to knowledge of English, Welsh or Scottish Gaelic - is to be met; extend the language requirement to those applying for naturalisation as the spouse of a British citizen or a British overseas territories citizen;
Remove existing provisions which allow discrimination on the grounds of nationality or ethnic or national origin in the exercise of nationality functions;
Remove the present distinctions in nationality law between legitimate and illegitimate children;
Repeal the present statutory exemptions from the duty to give reasons for nationality decisions and provisions which restrict the court's ability to review certain decisions. Other nationality provisions which are now spent are also repealed;
Remove the minimum age requirement for applications for registration as a British citizen or a British overseas territories citizen by stateless children born in the United Kingdom and the British overseas territories;
Amend the grounds for deprivation of citizenship, and replace the existing procedure for reviewing the deprivation decision with a new right of appeal against deprivation; and
Enable regulation of the procedure for applying for a certificate of entitlement to the right of abode in the United Kingdom.

Part 2 - Accommodation Centres

5. The Bill makes provision for the introduction of accommodation centres, built or adapted to accommodate and provide services for a number of asylum-seekers and their dependants on one site. The centres will be introduced on a trial basis. A proportion of new asylum-seekers who request, and are eligible for, support will be offered places in accommodation centres. Those who refuse the offer of a place, voluntarily cease to reside in a centre or breach their conditions of residence will not qualify for other forms of support. The centres may provide for a number of facilities and services, including:

Food and other essential items;
Money;
Assistance with transport and expenses to pursue purposeful activities;
Healthcare; and
Education and training.

Part 3 - Other Support and Assistance

6. The new asylum system will be based on a network of induction, accommodation and reporting centres as well as existing National Asylum Support Service ("NASS") accommodation. The Bill enables reporting and residence requirements to be imposed on all asylum-seekers and allows for the discontinuation of support to asylum-seekers who fail without reasonable cause to report as required. The Bill also includes a number of provisions that alter the way in which those in the asylum system are supported both during and after the determination of their claim and includes a provision for the Secretary of State to make payments to local authorities to reimburse them for the support they have provided for Unaccompanied Asylum Seeking Children ("UASCs"). This does not affect the amount paid to local authorities.

7. This Part of the Bill also contains funding provisions for the voluntary assisted return programme ("VARP") and international projects. The VARP is a means by which assistance is provided to asylum-seekers who wish to return home. The scheme is administered for the Home Office by the International Organisation for Migration in partnership with Refugee Action. Asylum-seekers are eligible to take part in the programme at any stage of their claim, but not when they are to be removed or deported or have been granted indefinite leave to enter or remain. Examples of international projects that may be funded under the power include resettlement and the "interception assisted return programmes". A United Kingdom resettlement programme would allow a scheme to be established whereby those who cannot be protected in their region of origin may be entitled to have their claim for protection considered before they reach the United Kingdom, and enable the cost of their travel and settlement here to be met. Any resettlement programme would operate in addition to the current asylum determination procedures. This provision also enables the Secretary of State to participate in research projects, and fund organisations and bodies that are involved in such projects.

Part 4 - Detention and Removal

8. The Bill contains a number of measures designed to simplify the process of removing those who have no right to stay in the United Kingdom. These include:

Giving detainee custody officers acting as escorts a limited power to enter private premises to search persons being taken into detention;
Giving the Secretary of State power to detain where he has power to give or refuse leave to enter, or where he has power to set removal directions, and giving the Secretary of State an equivalent power to grant bail to that of immigration officers;
The power to remove children born in the United Kingdom, where their parents entered the United Kingdom unlawfully; and
The power to remove those who attempt to obtain permission to stay by using deception.

9. This Part also contains a provision allowing a residence restriction to be imposed on an asylum-seeker requiring him to reside for up to 14 days at a specified location at or near a place where an induction programme is to be made available to him.

Part 5 - Appeals

10. The Immigration and Asylum Act 1999 ("the 1999 Act") introduced a one-stop appeal requiring an adjudicator considering an immigration appeal to deal with any other appealable matters raised by the applicant at the same time. The provisions in the Bill aim to re-structure the appeals system and will:

Define the specific immigration decisions which attract a right of appeal;
Enable the certification of applications, preventing a further right of appeal where a person could have made the application earlier or raised it at an earlier appeal but did not do so; and
Enable rules to provide a statutory closure date to prevent multiple adjournments of cases at the adjudicator stage.?

Part 6 - Immigration Procedure

11. The Bill contains measures that allow a fee to be set for work permit applications, and bring work permit advice within the remit of the Office of the Immigration Services Commissioner.

12. The Bill also contains provisions to introduce a scheme to require physical data, such as iris or facial images, to accompany applications to enter or remain in the United Kingdom. The Secretary of State may also operate a scheme to allow people voluntarily to provide such data to assist their entry into the United Kingdom. There is also provision which allows the introduction of an Authority to Carry ("ATC") scheme. This provides for regulations to require carriers to check the details of passengers against a Home Office database to confirm that they pose no known immigration or security risk. The Secretary of State will also be able to require an employer, financial institution, or local authority to supply him with information, and the Inland Revenue and port medical inspectors will be able to supply information to the Secretary of State for specified purposes.

Part 7 - Offences

Provisions have been included that create new criminal offences: assisting unlawful immigration, trafficking of people into, out of or within the UK for the purpose of prostitution; forgery and similar activities relating to the Application Registration Card; offences relating to the employment of persons who are subject to immigration control; an offence of failure to comply with a notice requesting information in respect of suspected immigration offending; and an offence relating to the possession of an immigration stamp, whether genuine or a replica, without a reasonable excuse. This Part also contains provisions which give police and immigration officers the power to enter business premises to search for and arrest immigration offenders, and to inspect and seize personnel records following the arrest of an immigration offender on those premises.

COMMENTARY ON CLAUSES

PART 1: NATIONALITY

Clause 1: Naturalisation: knowledge of language and society

13. Clause 1 amends the provisions in the BNA 1981 which set out the requirements that an applicant for naturalisation as a British citizen must satisfy. There is already a requirement, in paragraph 1(1)(c) of Schedule 1 to the BNA 1981, for applicants to have a sufficient knowledge of English, Welsh or Scottish Gaelic.

14. Subsection (1) adds to Schedule 1 of the BNA 1981 a requirement for the applicant to demonstrate sufficient knowledge about life in the United Kingdom.

15. Subsection (2) enables provision to be made by regulations for determining whether a person has a sufficient knowledge of a language and whether a person has sufficient knowledge about life in the United Kingdom for the purpose of an application for naturalisation.

16. By subsection (3) the regulations may make provision about how those requirements of sufficient knowledge of language and about life in the United Kingdom are met (for example, by reference to a specified qualification or attendance on a specified course).

Clause 2: Naturalisation: spouse of citizen

17. Clause 2 extends the requirement to have sufficient knowledge of English, Welsh or Scottish Gaelic to those applying for naturalisation, on the basis of marriage to a British citizen or British overseas territories citizen. This clause also requires those applying for naturalisation on the basis of marriage to a British citizen to have sufficient knowledge about life in the United Kingdom.

Clause 3: Citizenship ceremony, oath and pledge

18. Clause 3 introduces Schedule 1, which replaces the current provisions in the BNA 1981 about naturalisation and registration.

19. Paragraph 1 of Schedule 1 replaces section 42 of the BNA 1981 with provision requiring persons, except minors, who are naturalised or registered as British citizens, to attend citizenship ceremonies and make a citizenship pledge as well as the existing oath. It also extends to applicants for British overseas territories citizenship the requirement to make a pledge. The Secretary of State is given discretion to disapply these requirements in particular cases.

20. Paragraph 2 of Schedule 1 replaces Schedule 5 to the BNA 1981. It introduces new "citizenship oath and pledge" which is to be taken by applicants for registration or naturalisation as British citizens and British overseas territories citizens. The citizenship oath and pledge consists of the existing oath of allegiance with the addition of a pledge. The new pledge states that that the person respects the rights and freedoms of the United Kingdom, and will uphold its democratic values, observe its laws and fulfil the duties and obligations of citizenship. Those applicants becoming British citizens pledge loyalty to the United Kingdom whereas those becoming British overseas citizens pledge loyalty to the relevant overseas territory.

21. Paragraph 4 of Schedule 1 amends the existing regulation-making power in subsection 41(1)(d) of the BNA 1981 to enable regulation of the timing of attendance at a citizenship ceremony and the taking of the citizenship oath and pledge, the content and conduct of the citizenship ceremony, the completion and grant of a certificate of registration or naturalisation, and certain other related matters.

22. Paragraph 7 of Schedule 1 enables the Secretary of State to make regulations about the persons who shall be authorised to conduct citizenship ceremonies and to require local authorities in England, Wales and Scotland to provide facilities for the conduct of such ceremonies.

23. Paragraph 8 allows the Secretary of State to reimburse local authorities for the cost of carrying out citizenship ceremonies.

Clause 4: Deprivation of citizenship

24. Clause 4 makes new provision about the deprivation of British nationality or status. Subsection (1) replaces section 40 of the BNA 1981. The substituted section 40(1) extends liability to deprivation to the listed forms of citizenship status: all British citizens, British overseas territories citizens, British Overseas citizens, British Nationals (Overseas), British subjects and British protected persons.

25. The substituted section 40(2) indicates that a person may be deprived of citizenship if he has done anything seriously prejudicial to the vital interests of the United Kingdom or a British overseas territory, or if the registration or naturalisation by virtue of which citizenship was acquired was obtained by means of fraud, false representation or by concealment of a material fact. The substituted section 40(3) provides that a person may not be deprived of citizenship on the first of these grounds if this would render him / her stateless. The substituted section 40(4) provides that before making a deprivation order the Secretary of State must give the person written notice specifying that a decision has been made to make the order and the reasons for it. The notice must also advise the person of his right to appeal.

26. Subsection (2) inserts a new section 40A into the BNA 1981 and:

confers on any person in respect of whom a decision to withdraw citizenship has been made a right of appeal to an adjudicator (in the first instance). There is also provision for both parties to appeal to the Tribunal from the Adjudicator on a point of law. From the Tribunal there is a further appeal, again on a point of law to the Court of Appeal, or the Court of Session (if the Adjudicator's decision was in Scotland).
provides that where the decision to deprive was taken wholly or partly in reliance on information which the Secretary of State does not believe should be made public for one of the specified reasons, then the right to appeal to the Adjudicator does not apply. Rather the appeal in these circumstances will be to the Special Immigration Appeals Commission established under the Special Immigration Appeals Commission Act 1997 ("SIAC 1997").

Clause 5: Resumption of citizenship

27. Clause 5 removes the words "if a woman" from sections 10 and 22 of the BNA 1981, thus allowing either a woman or a man who renounced their United Kingdom and Colonies citizenship before 1983 to qualify for registration on the basis of a connection with the United Kingdom through marriage.

Clause 6: Nationality decision: discrimination

28. Clause 6 repeals the exemption from the general prohibition on discrimination in section 19B of the Race Relations Act 1976 ("the 1976 Act")(as amended by the Race Relations (Amendment) Act 2000), in so far as it applies to discrimination on the grounds of nationality, ethnic or national origins in the exercise of nationality functions. The "Nationality functions" are functions exercisable by virtue of the BNA 1981, the British Nationality (Falkland Islands) Act 1983, the British Nationality (Hong Kong) Act 1990, the Hong Kong (War Wives and Widows) Act 1996 and the British Nationality (Hong Kong) Act 1997.

29. Subsection (2) removes "nationality functions" from the scope of the exemption in subsection 19D(1) of the 1976 Act.

30. Subsection (3) inserts into section 19D of the 1976 Act new definitions of "immigration functions" and "Immigration Acts", consequent upon the removal from that section of references to nationality functions and statutes relating to nationality.

31. Subsection (4) removes references to nationality functions from provisions in section 19E of the 1976 Act relating to the review by the Race Monitor of the use of the exemptions from discrimination, since this is made redundant by the other provisions in this clause.

Clause 7: Nationality decision: reasons and review

32. Clause 7 repeals the provisions in section 44(2) of the BNA 1981 and corresponding provision in section 1 of the British Nationality (Hong Kong) Act 1990 which exempt the Secretary of State from having to give reasons for granting or refusing applications under the BNA 1981, where these decisions are at his discretion, and which restrict the ability of the courts to review such decisions.

33. This clause also repeals section 44(3) of the BNA 1981 since this is made redundant by the other provisions in this clause.

Clause 8: Citizenship: Registration

34. Clause 8 removes the minimum age restriction for applicants seeking to acquire British citizenship or British overseas territories citizenship by registration on the grounds that they were born stateless in either the United Kingdom or a British overseas territory.

Clause 9: Legitimacy of child

35. Clause 9 removes from the nationality legislation the present distinctions between legitimate and illegitimate children and inserts a new definition of "father" into section 50 of the BNA 1981.

36. Subsection (1) provides that, for the purposes of the BNA 1981, a child's mother is the woman who gives birth to the child. A child's "father" is (a) the husband at the time of the child's birth of the woman who gives birth to the child, (b) a person who falls to be treated as the child's father by virtue of section 28 of the Human Fertilisation and Embryology Act 1990 or (c) any person who satisfies prescribed requirements as to proof of paternity. The Secretary of State may set out in regulations how, in circumstances where proof is required, paternity must be proven.

37. Subsection (2) amends section 3(6) of the BNA 1981 to allow registration as a British citizen of an illegitimate minor born outside the United Kingdom through a connection with his father as well as his mother.

38. Subsection (3) makes similar provision as subsection (2) but in respect of registration as a British overseas territories citizen under section 17 of the BNA 1981.

39. Subsection (4) repeals section 47 of the BNA 1981. This enables an illegitimate child of a British citizen father to be legitimated by the subsequent marriage between his mother and father. In view of the new provisions in this Bill which enable regulations to make provision as to proof of paternity, this measure is redundant so far as children born after commencement are concerned.

40. Subsection (5) amends paragraph 1(1)(b) of Schedule 2 to the BNA 1981, which provides that an illegitimate child born in the United Kingdom after 1st January 1983 whose parents hold different British nationality statuses under the BNA 1981, can only acquire the citizenship of the mother. By this subsection of the Bill, the position of illegitimate children is brought into line with that of legitimate children, who can acquire citizenship through either parent.

Clause 10: Right of abode: certificate of entitlement

41. Clause 10 enables regulations to be made in relation to the issue of a certificate of entitlement to the right of abode in the United Kingdom. The procedure is currently unregulated, except in regard to the level of fee and procedure for appealing against a refusal to issue such a certificate. A certificate of entitlement is defined as a certificate stating that a person has the right of abode in the United Kingdom. Section 2 of the Immigration 1971 Act ("the 1971 Act") sets out who has the right of abode. A person with the right of abode does not require leave to enter or remain in the United Kingdom, by virtue of section 3 of the 1971 Act.

42. Regulations are to be made by statutory instrument, subject to the negative resolution procedure. The regulations may specify such matters as the person to whom the application must be made, the form of the application and the documents which are to accompany it. They may also make provision for certificates to be revoked in certain circumstances, for example, where obtained by the provision of false information, and for the certificate to cease to have effect after a specified time.

43. Subsection (5) defines "certificate of entitlement", for the purposes of the 1971 Act by reference to the new provision.

44. Subsection (6) enables regulations made under this clause to preserve the effect of any certificate issued in accordance with the existing procedures.

Clause 11: Unlawful presence in the United Kingdom

45. Clause 11 makes provision for construing the expression "in the United Kingdom in breach of the immigration laws" in section 4 of, and Schedule 1 to, the BNA 1981. These provisions of the BNA 1981 relate to periods of residence in the United Kingdom relevant to entitlement to registration or naturalisation under those provisions. During periods of residence where a person needs leave to enter or remain in the United Kingdom but does not have such leave the person is treated as being in the United Kingdom in breach of the immigration laws.

Clause 12: Hong Kong

46. Clause 12 re-enacts the substance of section 42(6) of the BNA 1981, which provided that applications for registration and naturalisation as a British dependent territories citizen by virtue of a connection with Hong Kong had to be made by 31st March 1996.

Clause 13: Repeal of spent provisions

47. Clause 13 introduces Schedule 2, which repeals certain sections of the BNA 1981 which are now spent. Sub-paragraph (2) of paragraph 1 of Schedule 2 provides that the status of people who were registered under any of these sections is unaffected by the repeals.

PART 2: ACCOMMODATION CENTRES

Establishment

Clause 14: Establishment of centres

48. This clause enables the Secretary of State to arrange for the provision of premises to be used as accommodation centres.

Use of centres

Clause 15: Support for destitute asylum-seeker

49. Subsection (1) of clause 15 gives the Secretary of State power to provide, or to arrange for the provision, of accommodation through another party (for example a local authority or private sector contractor) in an accommodation centre to asylum-seekers and their dependants who are destitute or likely to become destitute within a period to be prescribed by regulations - this will allow the Secretary of State to start making arrangements in anticipation of actual destitution. "Asylum-seeker" is defined in clause 16, "dependant" in clause 18 and "destitution" in clause 17. Subsection (2) enables the Secretary of State to make regulations about the procedure to be followed in providing accommodation in an accommodation centre and subsection (3) gives examples of the particular provisions which may be included in the regulations.

Clause 16: Asylum-seeker: definition

50. Clause 16 defines the term "asylum-seeker" as someone who is at least 18 years old and who has made a claim under the Refugee Convention or under article 3 ECHR which has been recorded by the Secretary of State but which has not yet been determined. Once a person is no longer an asylum-seeker he will no longer be eligible for accommodation in an accommodation centre and will be expected to leave the accommodation centre, the prescribed period of time allowing him to make arrangements to do so. However, a person whose household includes a dependant child under the age of 18 will continue to be treated as an asylum-seeker whilst he and the child remain in the United Kingdom and will continue to be eligible for accommodation in an accommodation centre.

Clause 17: Destitution: definition

51. Clause 17 defines "destitution". This means a person, and his dependants if he has any, who is unable to obtain adequate accommodation, food and other essential items. In deciding whether accommodation is adequate, the Secretary of State must have regard to any prescribed matter but may not have regard to whether a person has an enforceable right to occupy accommodation, whether a person shares all or part of the accommodation, the location of the accommodation, whether it is temporary or permanent or any other prescribed matter.

52. Subsection (5) enables the Secretary of State to make regulations specifying items which are or are not to be considered as essential items.

53. Subsection (6) allows the Secretary of State to make regulations specifying when a person is not to be treated as destitute, to have regard to any income which a person or his dependant might reasonably be expected to have, or assets which are or might be available and to make provision for the valuation of these assets.

Clause 18: Dependant: definition

54. Clause 18 defines a dependant of an asylum-seeker as someone who is in the United Kingdom and falls within a prescribed class.

Clause 19: Sections 15 to 18: supplementary

55. This clause makes supplementary provision including provision that a claim for asylum is treated as determined after a prescribed period of time beginning with when the Secretary of State notifies the person of his decision on the claim or, if the person appeals against the decision, when the appeal is disposed of.

Clause 20: Section 95 of the Immigration and Asylum Act 1999

56. Part VI of the 1999 Act sets out provisions for the support of asylum-seekers. Section 95 of that Act gives the Secretary of State the power to support destitute asylum-seekers and their dependants (if any) and section 96 sets out the ways in which support may be provided. Clause 20 provides that the Secretary of State may provide support under section 95 of the 1999 Act by arranging for accommodation to be provided in an accommodation centre.

Clause 21: Person subject to United Kingdom entrance control

57. Paragraph 21(2) of Schedule 2 to the 1971 Act gives immigration officers the power to impose residence restrictions on people who are liable to detention under Schedule 2 of that Act. Subsection (1) of clause 21 provides that this power may be used to set a condition that an asylum-seeker must reside at an accommodation centre.

58. Subsection (3) provides that a person who breaches the conditions of residence of the accommodation and who, as a consequence, is required to leave the centre, will also have breached the condition imposed under paragraph 21 (2) of Schedule 2 to the 1971 Act.

59. Section 4 of the 1999 Act gives the Secretary of State a power to provide facilities for the accommodation of certain people, including those granted temporary admission to the United Kingdom or released from detention on bail. Subsection (4) of clause 21 provides that the Secretary of State may provide support under section 4 of the 1999 Act by arranging for accommodation in an accommodation centre.

Clause 22: Provisional assistance

60. Clause 22 allows a person to be supported in an accommodation centre if the Secretary of State thinks that person might be eligible to be provided with accommodation in an accommodation centre or provided with other support or assistance of any kind, pending a decision as to whether the person is in fact eligible for accommodation in an accommodation centre.

Operation of centres

Clause 23: Resident of centre

61. Clause 23 defines a resident of an accommodation centre for the purposes of Part 2.

Clause 24: Manager of centre

62. Clause 24 defines a manager of an accommodation centre for the purposes of Part 2.

Clause 25: Facilities

63. Clause 25 gives the Secretary of State the power to provide residents of accommodation centres with a number of facilities and services, described in subsection (1).

64. Subsection (2) enables the Secretary of State by regulations to set the maximum amount of money that can be provided to the resident of an accommodation centre, or require the manager of the centre to determine the exact amount, in accordance with the regulations.

65. Subsection (3) allow the Secretary of State to add to the list of facilities set out in subsection (1) by order. (Orders and regulations are subject to the negative resolution procedure under clause 32).

Clause 26: Conditions of residence

66. Clause 26 enables the Secretary of State to make regulations setting out conditions of residence that may be imposed on residents of accommodation centres. The powers to impose residence restrictions set out in paragraph 21 of Schedule 2 to the 1971 Act are unaffected by this clause.

67. Subsection (3) sets out two particular conditions that may be imposed; subsection (4) makes clear that a resident who breaches a condition may be required to leave the centre; subsection (5) provides that a resident and his dependants may be required to leave the centre if a dependant breaches a condition; and subsection (6) provides that residents must be informed in writing of any condition imposed on them. Regulations under clause 26 are subject to the affirmative resolution procedure under clause 32.

Clause 27: Financial contribution by resident

68. Clause 27 provides that a resident of an accommodation centre may be required to make payments to the Secretary of State or the manager of the centre as a condition of residence where the resident applied to be supported and had assets (including assets outside the United Kingdom) at the time of the application which have since become realisable.

69. Subsection (4) provides the methods by which any amounts may be recovered.

Clause 28: Tenure

70. Clause 28 provides that a resident of an accommodation centre is not to be treated as acquiring a tenancy of or other interest in any part of the centre. It allows the Secretary of State, or the manager of the centre if authorised to do so by the Secretary of State, to recover possession of the premises occupied by the resident where the resident is required to leave the centre or where the Secretary of State decides to stop providing accommodation in the centre for that resident.

71. Subsection (4) makes clear that any licence to occupy premises which a resident of an accommodation centre has will be an excluded licence for the purposes of the Protection from Eviction Act 1977. There is therefore no need to obtain a court order before recovering possession of the premises. The procedure to be followed in order to recover the premises is to be prescribed in regulations.

General

Clause 29: Ancillary provisions

72. Subsections (1)(a) to (d) of this clause provide that certain criminal offences that apply to the provision of support for asylum-seekers under Part VI of the 1999 Act, shall also apply to the provision of support under this Part.

73. Subsection (1)(e) provides for recovery by the Secretary of State of monies provided to support asylum-seekers as a result of fraud or material non-disclosure of facts.

Clause 30: Education: general

74. Clause 30(1) provides that residents of an accommodation centre shall not be treated as part of the population of a local education authority ("LEA") for the purposes of section 13 of the Education Act 1996 ("the EA 1996"). Section 13 of the EA 1996 describes, in general terms, the duties of a LEA towards the population of its area. Education to contribute towards the spiritual, moral, mental and physical development of the community by securing that efficient primary and secondary education is available to meet its needs.

75. Clause 30(3) prohibits a child who is a resident of an accommodation centre from attending a maintained school or nursery.

76. For residents of accommodation centres, clause 30(5)(a) removes the duties in section 86 of the School Standards and Framework Act 1998 Act requiring LEAs to enable the parents of children in their area to express a preference as to the school at which they want their children to be educated and to comply with any preference expressed.

77. For residents of accommodation centres, clause 30(5)(c) removes the duties in paragraph 3 of Schedule 27 to the EA 1996 requiring LEAs to enable the parents of children with special educational needs to express a preference as to the school at which they want their children to be educated, and the duty to specify the name of such a school in a child's statement of special educational needs.

78. Clause 30(6) provides that a child who is resident in an accommodation centre and who has special educational needs shall be educated in the accommodation centre unless it is incompatible with his receiving the special educational provision which his learning difficulty calls for or the efficient use of resources.

Clause 31: Education: special cases

79. This clause makes provision for a LEA to provide education for a child resident in an accommodation centre in certain circumstances.

Clause 32: "Prescribed": orders and regulations

80. Clause 32 sets out the procedure to be used when making an order or regulations under this Part of the Bill.

Clause 33: Scotland

81. This clause provides that the Secretary of State may not make arrangements for establishing an accommodation centre in Scotland unless he has consulted the Scottish Ministers. It also provides for the Secretary of State to make provision by order, subject to the negative resolution procedure, for the education of residents of accommodation centres in Scotland.

PART 3: OTHER SUPPORT AND ASSISTANCE

Clause 34: Asylum-seeker: form of support

82. Clause 34 creates a power under which support provided for asylum-seekers under section 96(1)(b) of the 1999 Act can be restricted to those asylum-seekers who have accommodation provided for them under section 96(1)(a) of the 1999 Act. Regulations made under this power can apply generally or in specific circumstances, allowing the restriction to be phased in.

Clause 35: Destitute asylum-seeker

83. Clause 35 substitutes a new provision for section 95(3) to (8) of the 1999 Act, which defines destitution for the purposes of support under that section. The clause mirrors clause 17 (in relation to accommodation centres) by defining a person as destitute when that person does not have, and cannot obtain, adequate accommodation and food and other living essentials. This replaces the original definition, which referred to accommodation or other essential living needs. It therefore removes the requirement to provide cash-only support to asylum-seekers. Clause 35 also mirrors clause 17 by providing the factors to which the Secretary of State cannot have regard in determining when accommodation is adequate and what items are essential items. Like clause 17, the Secretary of State also has the power to provide for when a person is not destitute.

Clause 36: Young asylum-seeker

84. Clause 36(a) provides a power for the Secretary of State to make payments to local authorities under section 110 of the 1999 Act to reimburse them for the support they have provided for UASCs. The Secretary of State already makes these payments but requires a special grant report under the Local Government Finance Act 1988. The definition of asylum-seeker in section 94(1) of the 1999 Act excludes those who are under the age of 18 and, therefore, payments under section 110 of the 1999 Act cannot currently be made to those who are under the age of 18. This clause will enable payments under section 110 to be made in respect of asylum-seekers that are under the age of 18. The new power does not affect the amounts to be paid to local authorities or the requirements for auditing claims and ensuring payments only relate to those entitled. Clause 33(b) provides a similar power for the Secretary of State to make payments to voluntary organisations under section 111 of the 1999 Act in respect of UASCs.

Clause 37: Failed asylum-seeker

85. Clause 37 gives the Secretary of State additional powers to support failed asylum-seekers. Section 4 of the 1999 Act currently provides that the Secretary of State may provide, or arrange for the provision of, accommodation of persons temporarily admitted to the United Kingdom or released from detention as specified in paragraphs (a), (b) and (c) of that section. However, the existing power does not allow the provision of accommodation to all categories of asylum-seekers whose claims for asylum have been rejected, should the Secretary of State decide to provide such accommodation in particular cases. Clause 37 remedies this.

Clause 38: Conditions of support

86. Section 95(9) of the 1999 Act provides that support for asylum-seekers (accommodation and subsistence) may be provided subject to conditions. Clause 38 provides a power for the Secretary of State to link the provision of support (accommodation and subsistence) with compliance with the conditions on which temporary admission or release from detention has been granted.

Clause 39: Choice of form of support

87. Clause 39 provides that the Secretary of State may refuse support under clause 15 or 22 of the Bill, or under section 4 or section 95 of the 1999 Act to a person if that person has been offered support under one of those provisions. The Secretary of State is given a discretion as to the provision under which he may choose to offer support.

Clause 40: Back-dating of benefit for refugee

88. Section 123(7) of the 1999 Act provides that where a person who has been recognised as a refugee within the meaning of the Refugee Convention, or a dependant of such a person, makes a claim for any benefit to which he would have been entitled had he been regarded as a refugee when he made his claim for asylum and has received support under Part VI of the 1999 Act, regulations may make provision for the value of that support to be offset against the backdated payment of any benefit. Clause 40 extends the provisions of section 123(7) of the 1999 Act to persons provided with support under Part 2 of the Bill.

Clause 41: Asylum-seeker: appeal against refusal to support

89. Clause 41 makes provision for appeals against refusal of asylum support or the ending of support. This clause substitutes sections 103, 103A and 103B for the existing section 103 of the 1999 Act.

90. The provisions substituted for the existing section 103 of the 1999 Act extend the existing rights of appeal against refusal or ending of support under section 95 of the 1999 Act to refusal or ending of support under clause 15 of the Bill which provides for support in accommodation centres (new section 103(1)-(3)). This clause also re-enacts provisions of the 1999 Act relating to appeals to the asylum support Adjudicators and extends them to support under clause 15 (new section 103(4)-(5)). It also re-enacts the provision of the 1999 Act providing for the payment of reasonable travelling expenses incurred by an appellant in connection with attending an appeal hearing under section 103 or 103A and extends this to clause 15 (new section 103B).

Clause 42: Voluntary departure from the United Kingdom

91. Clause 42 allows the Secretary of State to make arrangements to assist "voluntary leavers". A person qualifies for assistance as a "voluntary leaver" if he is leaving the United Kingdom for a place where he hopes to take up permanent residence and if the Secretary of State thinks it is in his interests to leave the United Kingdom and that he wishes to do so. British citizens and EEA nationals are excluded.

92. Clause 42 replaces section 29 of the 1971 Act. The class of person who qualifies for assistance has been largely unchanged (the only difference is that clause 42 now excludes EEA nationals as well as British citizens), but the sort of assistance which can be given has been expanded. In addition to meeting travel expenses of voluntary leavers and their families, the Home Office is now able to meet costs associated with their immediate arrival and reception and longer term support to facilitate successful re-integration. It is also able to fund "explore and prepare" visits by persons who wish to assess the possibility of becoming voluntary leavers.

93. The Home Office is currently responsible for a number of schemes to assist "voluntary return". The existing schemes are being run for the Home Office by the International Organisation for Migration in partnership with Refugee Action. Clause 42 enables the Secretary of State to make payments directly to these organisations.

Clause 43: International projects

94. Clause 43 provides a power for the Secretary of State to participate in projects, either with other Governments, the EU or other non-governmental organisations of a domestic or international nature. The criteria governing the types of projects in respect of which this power to participate may be exercised are set out in subsection (1). Such projects may have as their aim, amongst others, the return of migrants both inside and outside of the United Kingdom to their country of origin by voluntary or compulsory means. Subsection (2) clarifies that the power to participate may be exercised by the Secretary of State in a way that involves the provision of funding to both governmental and non-governmental organisations, both in the United Kingdom and abroad.

95. Pilot projects have already been undertaken, funded by the Secretary of State under the terms of the annual Appropriation Act.

96. Subsection (4) declares that no new power of removal is created by this clause, nor are the rights to enter or remain of individuals affected in any way by it.

PART 4: DETENTION AND REMOVAL

Detention

Clause 45: Detention by Secretary of State

97. Under paragraph 16 of Schedule 2 to the 1971 Act, an immigration officer has the power to detain an arriving passenger, an illegal entrant or a passenger liable to removal under the powers contained in section 10 of the 1999 Act. As an alternative to detaining them, the immigration officer also has the power (under paragraph 21 of Schedule 2 to the 1971 Act) to temporarily admit them to the United Kingdom. The Secretary of State has the power (under Schedule 3 to the 1971 Act) to detain or release someone against whom deportation action is being taken. The Secretary of State also has the power to grant temporary admission to someone who has made a claim for asylum immediately on arrival at a port, but unlike an immigration officer, has no power to detain such a person.

98. This clause will give the Secretary of State the same power to detain as immigration officers, in the following circumstances - (1) pending a decision by the Secretary of State whether to set removal directions under paragraph 10 or 14 of Schedule 2 to the 1971 Act and pending removal; and (2) where the Secretary of State has power to examine a person or grant or refuse them leave to enter under section 3A of the 1971 Act, pending the examination, his decision to give or refuse leave to enter, his decision to set removal directions or removal of such a person.

99. Subsection (4) allows the Secretary of State, where he has power to detain under this clause, as an alternative, to grant temporary admission or release from detention under paragraph 21 of Schedule 2 to the 1971 Act in the same way that an immigration officer currently can.

100. This will mean that the decision whether or not to detain can be taken by the person who determines a person's asylum claim or immigration status and that this can be done at the same time.

101. Subsection (5) allows restrictions under paragraph 21 of Schedule 2 to the 1971 Act set by the Secretary of State to be varied by an immigration officer and vice versa. The present offence of failing to comply with a condition of temporary admission or release without reasonable excuse is extended by subsection (9) to include failing to comply with a condition set by the Secretary of State.

Clause 46: Escorts

102. Clause 46 amends paragraph 17 of Schedule 2 to the 1971 Act so as to confer a power on detainee custody officers, acting in accordance with escort arrangements, to enter premises in order to search a person who has been arrested with a view to detention prior to escorting him to a place of detention. The power is confined to those circumstances where an immigration or police officer has executed a warrant issued under paragraph 17(2) of Schedule 2 to the 1971 Act and has arrested a person on the premises.

103. The existing powers of detainee custody officers acting in accordance with escort arrangements are contained in paragraph 2 of Schedule 13 to the 1999 Act. In particular, a detainee custody officer has the power to search a detained person for whose delivery or custody he is responsible. The new power would permit such a search to take place on private premises where entry is not by consent.

Clause 47: Detention centres: change of name

104. Clause 47 amends section 147 of the 1999 Act so that detention centres will be known formally as removal centres. This reflects the part played by detention in the removal of failed asylum-seekers and others. There are a number of minor consequential amendments to other provisions in the 1999 Act and provisions in other legislation that refer to "detention centres". There are no substantive changes to the existing provisions relating to the purpose and operation of detention centres.

Temporary release

Clause 48: Bail

105. Clause 48 provides a power for the Secretary of State, or an official acting on his behalf, to grant bail to a person detained under paragraph 16 of Schedule 2 to the 1971 Act in the same circumstances as a chief immigration officer may currently. The power takes effect after the expiry of the eighth day after detention begins, prior to which the power to grant bail will continue to be exercised by an immigration officer not below the rank of chief immigration officer.

106. Clause 48 also repeals Part III of the 1999 Act, with the exceptions of sections 53 (except subsection (5)) and 54. Part III of the 1999 Act contained provisions for a system of routine bail hearings for those in detention and has not been implemented. The rights to apply for bail under existing legislation will remain in place.

Clause 49: Reporting restriction: travel expenses

107. Clause 38 provides a power for the Secretary of State to link the provision of support with a requirement to report to the police or an immigration officer. Clause 49 will enable the Secretary of State to meet the reasonable travel costs of supported asylum-seekers who are required to travel to enable them to report as directed. It is necessary to introduce a specific power to cover this because regulation 9(4) of the Asylum Support Regulations 2000 specifically precludes travel expenses from being classed as an essential living need. Without this new power asylum-seekers would have to meet the costs of travel from their existing subsistence payments.

Clause 50: Induction

108. Clause 50 provides that an asylum-seeker may be required to reside at a location for a period of up to 14 days which is at or near a place where a programme of induction will take place. The intention is that all asylum-seekers will be given an induction at the outset of their claim. The purpose of this induction is to inform the asylum-seeker about how the asylum process will work, up to and beyond the initial decision on their claim; to explain what responsibilities they have to comply with requirements placed upon them as part of that process; and to consider any requests for support. The residence restriction can be imposed regardless of circumstances, for example, whether or not the asylum-seeker has alternative accommodation available to them.

Clause 51: Asylum-seeker: residence &c. restriction

109. Clause 51 is concerned with asylum-seekers who have existing leave to enter or remain at the time they make a claim for asylum (at present, only a small percentage of asylum-seekers fall into this category). The clause provides that such asylum-seekers and their dependants may have restrictions imposed on them which can be imposed on other asylum-seekers (that is, those without existing leave to enter or remain) under paragraph 21 of Schedule 2 to the 1971 Act. The powers under that paragraph include the power to impose reporting and residence requirements. The purpose of this provision is to ensure that all asylum-seekers, whatever their circumstances prior to making a claim, can be subject to the same basic process including, for example, the requirement to keep in touch through regular reporting. The clause further provides that where an asylum-seeker with existing leave fails to comply with a restriction placed upon him they will then become liable to detention under paragraph 16 of Schedule 2 to the 1971 Act. Restrictions imposed under this clause cease to have effect once a person ceases to be an asylum-seeker.

Removal

Clause 52: Family

110. Under paragraphs 8 to 10 of Schedule 2 to the 1971 Act, directions may be given for the removal of persons refused leave to enter the United Kingdom and illegal entrants. Clause 52(1) allows removal directions to be given for the children of such people where those children were born in the United Kingdom.

111. An equivalent power already exists under section 10(1)(c) of the 1999 Act in respect of children born in the United Kingdom whose parents have remained beyond their leave, breached the conditions of their leave or obtained leave to remain by deception.

112. Subsections (2) to (4) make minor amendments in relation to the existing provisions of section 10 of the 1999 Act.

Clause 53: Deception

113. Under section 10(1)(b) of the 1999 Act, there is a power to remove immigration offenders who have obtained leave to remain by deception. Clause 53 creates a power to remove people whose deception is discovered before leave is granted. People who seek to obtain leave to remain by deception and people who succeed in doing so both commit an offence under section 24A(1)(a) of the 1971 Act.

Clause 54: Exemption from deportation

114. Under section 7(1)(a) of the 1971 Act Commonwealth citizens or citizens of the Republic of Ireland cannot be deported on grounds of the public good if they were: (a) Commonwealth or Republic of Ireland citizens on 1st January 1973 (the date of the coming into force of the 1971 Act); (b) ordinarily resident in the United Kingdom at that time; and (c) have been ordinarily resident in the United Kingdom ever since.

115. Under section 7(1)(b) of 1971 Act Commonwealth citizens and citizens of the Republic of Ireland cannot be deported if they were ordinarily resident here on 1 January 1973 and have been ordinarily resident here for the 5 years prior to a decision to make a deportation order. Clearly, someone who has been ordinarily resident here at all times since 1 January 1973 has also been resident here for 5 years before the decision to deport. Subsection (2) therefore repeals section 7(1)(a) of the 1971 Act which is redundant.

116. Subsection (3) replaces section 7(1)(b) of the 1971 Act.

Clause 55: Revocation of leave to enter or remain

117. Clause 55 gives the Secretary of State power to revoke a person's indefinite leave to enter or remain in certain specified circumstances.

118. Subsection (1) allows the Secretary of State to revoke indefinite leave where the person is liable to deportation but the person cannot be deported for legal reasons. An example of how this power would be used is where a person has committed a serious criminal offence such that their deportation would be conducive to the public good but cannot be returned to their country of origin because they would thereby face treatment contrary to Article 3 of the Convention.

119. Subsection (2) allows the Secretary of State to revoke the indefinite leave of persons who are liable to removal on the grounds that they obtained the leave by deception, but who cannot be removed for legal or practical reasons. Practical obstacles such as difficulty in establishing nationality or the lack of a safe route of return can prevent removal.

120. Subsection (3) allows the Secretary of State to revoke the indefinite leave of a person and that person's dependants in certain cases where a person loses their status as a Convention refugee - for example, by accepting the protection of the country of their nationality or establishing themselves in a country they had originally fled. As those concerned will no longer require the protection of the United Kingdom, subsection (7) allows for administrative removal by amending section 10(1) of the 1999 Act.

121. Subsections (5) and (6) provide that leave granted before the power comes into force may be revoked. In relation to subsections (1) and (2) but not (3) leave may also be revoked where the action which triggers revocations occurs before the power comes into force.

Clause 56: No removal while claim for asylum pending

122. Clause 56 re-enacts section 15 of the 1999 Act which provides that an asylum claimant may not be removed from or required to leave the United Kingdom before notice of the Secretary of State's decision on the claim is given. By virtue of subsection (4), however, removal directions or a deportation order may be given and other interim or preparatory action taken before notice of a decision on the claim has been given.

Clause 57: No removal while appeal pending

123. Clause 57 re-enacts the provision in Schedule 4 of the 1999 Act which states that a person may not be removed from or required to leave the United Kingdom while he is in the country and his appeal is pending, as defined in clause 82. By virtue of subsection (3), however, removal directions or a deportation order may be given and other interim or preparatory action taken before the appeal ceases to be pending.

Clause 58: Removal of asylum-seeker to third country

124. This provision substitutes section 11 of the 1999 Act. The standing arrangements in section 11 of the 1999 Act refer only to removals to European Union Member States under the Dublin Convention. These standing arrangements are now clarified to ensure that any other bi-lateral agreements on asylum returns with Member States outside of the Dublin Convention will still be removable under section 11.

PART 5: IMMIGRATION AND ASYLUM APPEALS

Appeal to adjudicator

Clause 59 and Schedules 3 and 4: Adjudicators and the Immigration Appeal Tribunal

125. Clause 59 sets out the criteria for the appointment of adjudicators by the Lord Chancellor and the functions he may assign to them. Subsection (1) requires the Lord Chancellor, as now, to appoint adjudicators to hear appeals under Part 2 of the Bill. Subsection (2) states the legal qualifications necessary for appointment. Subsection (3) requires the Lord Chancellor to appoint a Chief Adjudicator, and enables him to appoint a Deputy Chief Adjudicator and Regional Adjudicators. The Chief Adjudicator must carry out such functions as the Lord Chancellor may assign, while his Deputy must act on behalf of the Chief Adjudicator when necessary and perform the duties assigned to him. Regional Adjudicators must also perform tasks assigned by the Chief Adjudicator (subsections (4) - (6)).

126. Schedule 3 re-states adjudicators and their support staff as set out in Schedule 3 to the 1999 Act. Paragraph 1 deals with the terms of office for adjudicators. Paragraph 2 requires the Chief Adjudicator to arrange for adjudicators to hear appeals and specifies that these must take place when and where the Lord Chancellor determines. Paragraph 3 enables the Chief Adjudicator to direct that a panel consisting of more than one adjudicator may deal with a particular appeal or category of appeal or appeal-related proceedings. Paragraph 4 requires adjudicators to carry out duties allocated by the Chief Adjudicator.

127. Paragraph 5 of Schedule 2 enables the Lord Chancellor to appoint staff to support adjudicators. Paragraph 6 relates to the remuneration and allowances of adjudicators and their staff. Paragraph 7 concerns repayment of adjudicators expenses and paragraph 8 compensation on ceasing to be an adjudicator in special circumstances.

128. Schedule 3 relates to the Immigration Appeal Tribunal. Paragraph 1 requires the Lord Chancellor to appoint its members and paragraph 2 deals with certain terms of office. Paragraph 3 requires the Lord Chancellor to appoint a person equivalent to a High Court judge as President, and paragraph 4 requires him to appoint a legally-qualified member of the Tribunal as Deputy President and sets out the latter's functions. Paragraph 5 requires the Tribunal to sit when and where the Lord Chancellor determines. Paragraphs 6 and 7 enable the Tribunal to sit in more than one division and enable the President to direct that certain cases or classes of case be decided by a single member or a set number of members, or legally qualified members.

129. Paragraph 8 enables the Lord Chancellor to appoint staff for the Tribunal while paragraphs 9 to 11 concern remuneration and allowances for the Tribunal and its staff, Tribunal expenses, and compensation should a member leave in special circumstances. Paragraph 12 sets out the requirements for designation as a legally qualified member of the Tribunal.

Clause 60: Right of appeal: general

130. Clause 60 sets out the decisions which attract a right of appeal to an adjudicator. The term "immigration decision" is used to describe the decisions taken in the United Kingdom by the Secretary of State and by immigration officers, and abroad by immigration officers and entry clearance officers, which attract the right