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The Immigration Asylum & Nationality Act 2006 - Summary Of Changes


The Immigration Asylum & Nationality Act 2006 is the fifth major piece of legislation in the field of asylum and immigration since 1993.

Commencement

The Immigration Asylum & Nationality Act 2006 received Royal Assent on the 30th March 2006 and by virtue of a second commencement order, the main provisions took effect on 31 August 2006 by virtue of the Immigration, Asylum and Nationality Act 2006 (Commencement No.2) Order 2006.

Appeals

The first sections of the Act are concerned with appeals and impose new restrictions on the right to appeal against Home Office asylum or immigration decisions. The most significant is section 4 which limits the right of appeal against refusal of entry clearance to cases in which the application for entry clearance was made either for the purpose of entering as a dependant or a visitor - in both cases limited by reference to regulations made by the Home Secretary. Significantly, there will no longer be a right of appeal against refusal of entry clearance as a student.

Section 1 inserts a new section 83A into the Immigration, Nationality and Asylum Act 2002 to introduce a new right of appeal for people who are no longer recognised as refugees but who are permitted to stay in the UK on some other basis. Section 2 amends section 82(2)(g) of the 2002 Act to provide a right of appeal against a decision to remove under section 10(1)(b) of the 1999 Act. This will give the person a separate right of appeal at each of the two decision stages; the first at the revocation stage and the second at the stage the decision to remove is taken. Section 3 amends section 84 of the 2002 Act. It provides that an appeal under the new section 83A may only be brought on the ground that removal would breach the United Kingdom's obligations under the Refugee Convention. Section 4 substitutes one provision for Sections 88A, 90 and 91 of the 2002 Act which limits all appeals against refusal of entry clearance to limited grounds (human rights and race discrimination), with the exception of those listed in the categories. By section 6 a person may not appeal against refusal of leave to enter the United Kingdom unless: (1) on his arrival in the United Kingdom he had entry clearance and (2) the purpose of entry specified in the entry clearance is the same as that specified in his application for leave to enter. Section 89 of the 2002 Act restricts rights of appeal against refusal of permission to enter at the port of both visitors and students who do not hold an entry clearance. This restriction limits the grounds of appeal to human rights and race discrimination. If the appeal is exercised in the UK it is restricted to asylum. A right of appeal remains in all cases on both human rights and race discrimination grounds.

Section 7 provides powers to hear only human rights aspects of national security appeal cases in country with the national security aspects of the case.

Employment

Section 15 imposes civil (and not criminal) penalties in the form of fines on employers of persons over the age of 16 subject to immigration control in defined circumstances. A person is subject to immigration control if he requires leave to enter or remain in the United Kingdom under the provisions of the Immigration Act 1971. The defined circumstances are that:

(1) the employee had no leave to enter or remain or

(2) his leave was invalid, had expired or otherwise prevented him from accepting employment.

Provision is made in Sections 16 and 17 for objections on the part of the employer to the imposition of a penalty and for appeal to a County Court against such an imposition.

By section 21, if the employer knowingly employs an over-16 subject to immigration control he commits an offence which is punishable (on indictment) to imprisonment for a term not exceeding two years or on summary conviction for a term not exceeding 12 months and/or in either case to a fine. If the employer employs an individual without permission to work allowing on the spot fines of up to 2000 per illegal worker.

Section 23 imposes an obligation on the Home Secretary to issue a Code of Practice specifying what employers should do to avoid:

(1) liability to civil penalties,

(2) the commission of offences under section 21 and

(3) discrimination which would be contrary to race relations legislation.

Information

Section 27 relates to provisions on detention and examination of passports and other documents produced by passengers or those found on them while being examined under Schedule 2. It also provides a new power to enable immigration officers to require passengers being examined under Schedule 2 to provide biometric information such as fingerprints for the purpose of ascertaining whether a passenger in question is the rightful holder of the passport or other document he produces. Section 29 imposes stricter time limits on people seeking asylum to attend for fingerprinting than on people in other categories.

Section 32 gives the police powers to require advance information about passengers and crew or freight of ships and aircraft arriving, expected to arrive, leaving or expected to leave the United Kingdom. Existing powers of the H.M. Revenue and Customs to obtain such information are by Section 33 is extended to ships and aircraft arriving or expected to arrive in the United Kingdom.

Section 54 broadens the exclusion clause in 1F(c) of the Refugee Convention. Provides that where the Secretary of State rejects an asylum claim wholly or partly on the basis of Article 1F, the Asylum and Immigration Tribunal or the Special Immigration Appeals Commission (SIAC) must begin its deliberations on the asylum aspects of any appeal by considering whether or nor Article 1F applies and if it does it must dismiss the appeal in so far as it relies on the Refugee Convention.

Section 55 empowers the Home Secretary to issue a certificate declaring that the appellant is not entitled to the protection of Article 33.1 of the Convention because one or other of the exclusions applies. If such a certificate is issued, the Asylum and Immigration Tribunal is required by section 55 to begin its hearing of the appeal by considering the contents of the certificate. If the Tribunal agrees with the certificate then there will be no necessity to consider the evidence which the appellant would otherwise adduce in support of his asylum appeal. In other words the Tribunal is now able to dismiss an appeal on this preliminary point.

Provisions on citizenship

Section 40(2) of the British Nationality Act 1981 empowers the Home Secretary to deprive a person of British citizenship if he is satisfied that that person has done something prejudicial to the vital interests of the United Kingdom or a British overseas territory. Such an order may not be made if the person concerned is thereby rendered stateless. Section 56 of the 2006 Act amends the wording so that the Home Secretary must be satisfied that deprivation of citizenship is conducive to the public good Section 2 of the Immigration Act 1971 defines "right of abode in the United Kingdom" as extending to British citizens and to Commonwealth citizens who acquired that right before the commencement of the British Nationality Act 1981. By section 57 the Home Secretary is empowered to deprive a person of the right of abode if he thinks that it would be conducive to the public good for the person concerned to be excluded or removed from the United Kingdom.

Various provisions of the British Nationality Act 1981 deal with the registration of persons as British citizens or as British overseas territories citizens. Section 58(1) now precludes the registration as a citizen of any description of any person falling within the categories concerned unless the Home Secretary is satisfied that the person concerned is of good character.

Submitted by:

Ian Mann

Ian Mann is an employment and immigration barrister. He was called to the Bar in 2000. He specialises in employment disputes and public law matters involving immigration and other areas of judicial review.

http://www.employment-barrister-uk.com
http://www.13kbw.co.uk





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