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UK Borders Bill: plans for new UK immigration law

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On 05 February 2007 the UK Borders Bill was debated in the UK parliament, in the House of Commons. The Bill is the latest proposal for immigration and asylum legislation in the UK. It addresses diverse matters, from deportation to the points-based system for economic migration.

New legislation in this area is becoming increasingly frequent: the Immigration and Asylum Act 1999 was followed by the Nationality, Immigration and Asylum Act 2002, the Asylum (Treatment of Claimants, etc.) Act 2004 and the Immigration, Asylum and Nationality Act 2006.

The proposals in the Bill that have commanded the most attention are those to do with foreign nationals who have been convicted of a criminal offence and sentenced to a term of imprisonment in the UK. With certain exceptions, the Bill proposes to make it much more difficult to challenge the deportation of a person who has been convicted and sentenced to more than twelve months in prison. Instead of the Secretary of State deciding whether deportation would be ‘conducive to the public good’, the law will say that deportation is conducive to the public good. There will be limited scope to challenge this, on the grounds of asylum or human rights. People can be kept in detention under immigration act powers while any challenges to the deportation order are made.

Also controversial are proposed powers to impose residence requirements, and requirements to report to the police, on people who have been given any form of time-limited leave to enter the UK. The proposals are wide enough to cover people coming to the UK to work, or to study, or those recognised as refugees.

The government is proposing a new ‘points-based’ system whereby all applications to come to the UK to work will be decided by the applicant scoring the number of points required for the type of application they wish to make, with applications divided into different tiers. At the moment the only applications in the UK that are assessed by reference to points are applications under the HSMP, Highly Skilled Migrants Programme. The proposals in the Bill are that in points-based applications, unlike other immigration cases, it would not be possible to submit new evidence when appealing against a refusal, nor for the immigration judge hearing the appeal to consider changes in circumstances since the date of the refusal.

In 2006 the UK government took powers, which it has yet to use, to abolish appeals against refusals of entry clearance (visas) to come to the UK in all cases except those involving family members and people coming to the UK to settle, thus including in points-based cases. The Bill proposes to increase the powers of immigration officers to detain people and to search them. It will also give immigration officers new powers under the Proceeds of Crime Act 2002. These concern the profits made from criminal activity. In general, the proposals are to give greater powers to recover money obtained by people who have broken immigration laws for profit; for example those smuggling or trafficking human beings.

There are new powers for HM Revenue and Customs (HMRC) and the Customs Prosecution Office and the police to provide information to the immigration authorities. It is also proposed to take new powers to prosecute those smuggling or trafficking human beings to the UK, wherever in the world they carry out their activities and whatever their nationality.

The new Bill proposes to give the Home Secretary a power to require people under immigration control (those who are not British Citizens, European Union nationals nor settled in the UK) to provide biometric information and to hold a biometric information document. There is no indication in the law as to which people under immigration control might be required to apply for such a document: business people? People seeking asylum? Family members? The proposed powers are wide enough to include them all. A penalty is payable by people who fail to comply with the biometric scheme. T

he penalty provisions recall the provisions in the Immigration, Asylum and Nationality Act 2006, which are not yet in force, that provide for employers who employ people under immigration control who do not have permission to work to pay a civil penalty.

The 2006 employment provisions are being strengthened before they are even brought into force, with new powers of arrest and to search personnel records. In addition there are proposals for new powers to search for and to seize documents that might be relevant to a person’s nationality. Whether the proposals become law will depend upon what happens to them in the UK parliament over the coming months and some are likely to be the focus of intense media attention and public debate.
Alison Harvey, Gherson and Co.

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