IAAS legislation

Question 1

Article 15 (a) QD

Answer 1

Serious harm consists of:

(a) the death penalty or execution

Question 2

Article 15 (b) QD

Answer 2

Serious harm consists of:

(b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin

Question 3

Article 15 (c) QD

Answer 3

Serious harm consists of:
(c) serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.

Question 4

Qualification Directive

Answer 4

DIRECTIVE 2011/95/EU

Question 5

Implementation of QD in UK

Answer 5

The Refugee or Person in Need of International Protection (Qualification) Regulations 2006

Question 6

s.8 AITCA 2004

Answer 6

(1)In determining whether to believe a statement made by or on behalf of a person who makes an asylum claim or a human rights claim, a deciding authority shall take account, as damaging the claimant’s credibility, of any behaviour to which this section applies.
(2)This section applies to any behaviour by the claimant that the deciding authority thinks—
(a)is designed or likely to conceal information,
(b)is designed or likely to mislead, or
(c)is designed or likely to obstruct or delay the handling or resolution of the claim or the taking of a decision in relation to the claimant.
(3)Without prejudice to the generality of subsection (2) the following kinds of behaviour shall be treated as designed or likely to conceal information or to mislead—
(a)failure without reasonable explanation to produce a passport on request to an immigration officer or to the Secretary of State,
(b)the production of a document which is not a valid passport as if it were,
(c)the destruction, alteration or disposal, in each case without reasonable explanation, of a passport,
(d)the destruction, alteration or disposal, in each case without reasonable explanation, of a ticket or other document connected with travel, and
(e)failure without reasonable explanation to answer a question asked by a deciding authority.
(4)This section also applies to failure by the claimant to take advantage of a reasonable opportunity to make an asylum claim or human rights claim while in a safe country.
(5)This section also applies to failure by the claimant to make an asylum claim or human rights claim before being notified of an immigration decision, unless the claim relies wholly on matters arising after the notification.
…

Question 7

Article 1 Refugee Convention

Answer 7

owing to wellfounded
fear of being persecuted for reasons of race, religion, nationality,
membership of a particular social group or political opinion, is outside
the country of his nationality and is unable or, owing to such fear,
is unwilling to avail himself of the protection of that country; or who,
not having a nationality and being outside the country of his former
habitual residence as a result of such events, is unable or, owing to such
fear, is unwilling to return to it.
In the case of a person who has more than one nationality, the term “the
country of his nationality” shall mean each of the countries of which he
is a national, and a person shall not be deemed to be lacking the protection
of the country of his nationality if, without any valid reason based
on well-founded fear, he has not availed himself of the protection of one
of the countries of which he is a national.

Question 8

Art 31 Refugee Convention

Answer 8

refugees unlawfully in the country of refugee
1. The Contracting States shall not impose penalties, on account of their
illegal entry or presence, on refugees who, coming directly from a territory
where their life or freedom was threatened in the sense of article 1, enter or
are present in their territory without authorization, provided they present
themselves without delay to the authorities and show good cause for their
illegal entry or presence.
2. The Contracting States shall not apply to the movements of such refugees
restrictions other than those which are necessary and such restrictions
shall only be applied until their status in the country is regularized or they
obtain admission into another country. The Contracting States shall allow
such refugees a reasonable period and all the necessary facilities to obtain
admission into another country

Question 9

Art 32 Refugee Convention

Answer 9

expulsion
1. The Contracting States shall not expel a refugee lawfully in their territory
save on grounds of national security or public order.
2. The expulsion of such a refugee shall be only in pursuance of a decision
reached in accordance with due process of law. Except where compelling reasons
of national security otherwise require, the refugee shall be allowed to
submit evidence to clear himself, and to appeal to and be represented for the
purpose before competent authority or a person or persons specially designated
by the competent authority.
3. The Contracting States shall allow such a refugee a reasonable period within which to seek legal admission into another country. The Contracting
States reserve the right to apply during that period such internal measures as
they may deem necessary.

Question 10

Art 33 Refugee Convention

Answer 10

prohibition of expulsion or return (“refoulement”)
1. No Contracting State shall expel or return (“refouler”) a refugee in any
manner whatsoever to the frontiers of territories where his life or freedom
would be threatened on account of his race, religion, nationality, membership
of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by
a refugee whom there are reasonable grounds for regarding as a danger to
the security of the country in which he is, or who, having been convicted by
a final judgment of a particularly serious crime, constitutes a danger to the
community of that country

Question 11

s.72 NIAA 2002

Answer 11

72 Serious criminal
(1) This section applies for the purpose of the construction and application of Article 33(2) of the Refugee Convention (exclusion from protection).
(2) A person shall be presumed to have been convicted by a final judgment of a particularly serious crime and to constitute a danger to the community of the United Kingdom if he is—
(a) convicted in the United Kingdom of an offence, and
(b) sentenced to a period of imprisonment of at least two years.
(3) A person shall be presumed to have been convicted by a final judgment of a particularly serious crime and to constitute a danger to the community of the United Kingdom if—
(a) he is convicted outside the United Kingdom of an offence,
(b) he is sentenced to a period of imprisonment of at least two years, and
(c) he could have been sentenced to a period of imprisonment of at least two years had his conviction been a conviction in the United Kingdom of a similar offence.
(4) A person shall be presumed to have been convicted by a final judgment of a particularly serious crime and to constitute a danger to the community of the United Kingdom if—
(a) he is convicted of an offence specified by order of the Secretary of State, or
(b) he is convicted outside the United Kingdom of an offence and the Secretary of State certifies that in his opinion the offence is similar to an offence specified by order under paragraph (a).
(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.
(6) A presumption under subsection (2), (3) or (4) that a person constitutes a danger to the community is rebuttable by that person.
(7) A presumption under subsection (2), (3) or (4) does not apply while an appeal against conviction or sentence—
(a) is pending, or
(b) could be brought (disregarding the possibility of appeal out of time with leave).
(8) Section 34(1) of the Anti-terrorism, Crime and Security Act 2001 (c. 24) (no need to consider gravity of fear or threat of persecution) applies for the purpose of considering whether a presumption mentioned in subsection (6) has been rebutted as it applies for the purpose of considering whether Article 33(2) of the Refugee Convention applies.
(9) Subsection (10) applies where—
(a) a person appeals under [section 82] 1 of this Act or under section 2 of the Special Immigration Appeals Commission Act 1997 (c. 68) wholly or partly on the ground [mentioned in section 84(1)(a) or (3)(a) of this Act (breach of the United Kingdom’s obligations under the Refugee Convention), and] 2
(b) the Secretary of State issues a certificate that presumptions under subsection (2), (3) or (4) apply to the person (subject to rebuttal).
(10) The […] 3 Tribunal or Commission hearing the appeal—
(a) must begin substantive deliberation on the appeal by considering the certificate, and
(b) if in agreement that presumptions under subsection (2), (3) or (4) apply (having given the appellant an opportunity for rebuttal) must dismiss the appeal in so far as it relies on the ground specified in subsection (9)(a).
[
(10A) Subsection (10) also applies in relation to the Upper Tribunal when it acts under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007.
] 4
(11) For the purposes of this section—
(a) “the Refugee Convention” means the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and its Protocol, and
(b) a reference to a person who is sentenced to a period of imprisonment of at least two years—
(i) does not include a reference to a person who receives a suspended sentence [(unless a court subsequently orders that the sentence or any part of it is to take effect)] 5 ,
[
(ia) does not include a reference to a person who is sentenced to a period of imprisonment of at least two years only by virtue of being sentenced to consecutive sentences which amount in aggregate to more than two years,
] 6
(ii) includes a reference to a person who is sentenced to detention, or ordered or directed to be detained, in an institution other than a prison (including, in particular, a hospital or an institution for young offenders), and
(iii) includes a reference to a person who is sentenced to imprisonment or detention, or ordered or directed to be detained, for an indeterminate period (provided that it may last for two years).

Question 12

Part 14 Immigration Rules

Answer 12

Stateless Persons

Question 13

Part 12 Immigration Rules

Answer 13

Procedure and Rights of Appeal

Question 14

Article 3 ECHR

Answer 14

Prohibition of torture

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Question 15

Article 4 ECHR

Answer 15

Prohibition of slavery and forced labour

1No one shall be held in slavery or servitude.
2No one shall be required to perform forced or compulsory labour.
3For the purpose of this Article the term “forced or compulsory labour” shall not include:
(a)any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention;

(b) any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;
(c) any service exacted in case of an emergency or calamity threatening the life or well-being of the community;
(d) any work or service which forms part of normal civic obligations.

Question 16

Article 5 ECHR

Answer 16

Right to liberty and security

1Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a)the lawful detention of a person after conviction by a competent court;

(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

2Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
3Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
4Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
5Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.

Question 17

Article 8 ECHR

Answer 17

Right to respect for private and family life

1Everyone has the right to respect for his private and family life, his home and his correspondence.
2There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Question 18

Article 13 ECHR

Answer 18

Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.

Question 19

Article 14 ECHR

Answer 19

Prohibition of discrimination

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

Question 20

IR Part 7: para 276ADE

Answer 20

276ADE (1). The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:

(iii) has lived continuously in the UK for at least 20 years (discounting any period of imprisonment); or
(iv) is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK; or
(v) is aged 18 years or above and under 25 years and has spent at least half of his life living continuously in the UK (discounting any period of imprisonment); or
(vi) subject to sub-paragraph (2), is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but there would be very significant obstacles to the applicant’s integration into the country to which he would have to go if required to leave the UK.

Question 21

s55 BCIA 2009

Answer 21

Duty regarding the welfare of children

(1) The Secretary of State must make arrangements for ensuring that—
(a) the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, and
(b) any services provided by another person pursuant to arrangements which are made by the Secretary of State and relate to the discharge of a function mentioned in subsection (2) are provided having regard to that need.

Question 22

s.1 BNA 1981

Answer 22

1 Acquisition by birth or adoption.

(1) A person born in the United Kingdom after commencement [F1, or in a qualifying territory on or after the appointed day,] shall be a British citizen if at the time of the birth his father or mother is—
(a) a British citizen; or
(b) settled in the United Kingdom [F2or that territory].

(3) A person born in the United Kingdom after commencement who is not a British citizen by virtue of subsection (1) [F7, (1A)] or (2) shall be entitled to be registered as a British citizen if, while he is a minor—
(a) his father or mother becomes a British citizen or becomes settled in the United Kingdom; and
(b) an application is made for his registration as a British citizen.

(4)A person born in the United Kingdom after commencement who is not a British citizen by virtue of subsection (1) [F9, (1A)] or (2) shall be entitled, on an application for his registration as a British citizen made at any time after he has attained the age of ten years, to be registered as such a citizen if, as regards each of the first ten years of that person’s life, the number of days on which he was absent from the United Kingdom in that year does not exceed 90.

(5)Where—
( a )any court in the United Kingdom [F11or, on or after the appointed day, any court in a qualifying territory] makes an order authorising the adoption of a minor who is not a British citizen; or
(b)a minor who is not a British citizen is adopted under a Convention adoption,that minor shall, if the requirements of subsection (5A) are met, be a British citizen as from the date on which the order is made or the Convention adoption is effected, as the case may be [F12effected under the law of a country or territory outside the United Kingdom].

Question 23

s.2 BNA 1981

Answer 23

2 Acquisition by descent.

(1) A person born outside the United Kingdom [F17and the qualifying territories] after commencement shall be a British citizen if at the time of the birth his father or mother—
(a) is a British citizen otherwise than by descent; or
(b) is a British citizen and is serving outside the United Kingdom [F18and the qualifying territories] in service to which this paragraph applies, his or her recruitment for that service having taken place in the United Kingdom [F19or a qualifying territory]; or
(c) is a British citizen and is serving outside the United Kingdom [F20and the qualifying territories] in service under an [F21EU] institution, his or her recruitment for that service having taken place in a country which at the time of the recruitment was a member of [F22the European Union].

Question 24

s.3 BNA 1981

Answer 24

3 Acquisition by registration: minors.

(1) If while a person is a minor an application is made for his registration as a British citizen, the Secretary of State may, if he thinks fit, cause him to be registered as such a citizen.
(2) A person born outside the United Kingdom [F26and the qualifying territories] shall be entitled, on an application for his registration as a British citizen made [F27while he is a minor], to be registered as such a citizen if the requirements specified in subsection (3) or, in the case of a person born stateless, the requirements specified in paragraphs (a) and (b) of that subsection, are fulfilled in the case of either that person’s father or his mother (“the parent in question”).
(3) The requirements referred to in subsection (2) are—
(a) that the parent in question was a British citizen by descent at the time of the birth; and
(b) that the father or mother of the parent in question—
(i) was a British citizen otherwise than by descent at the time of the birth of the parent in question; or
(ii) became a British citizen otherwise than by descent at commencement, or would have become such a citizen otherwise than by descent at commencement but for his or her death; and
(c) that, as regards some period of three years ending with a date not later than the date of the birth—
(i) the parent in question was in the United Kingdom [F28or a qualifying territory] at the beginning of that period; and
(ii) the number of days on which the parent in question was absent from the United Kingdom [F29and the qualifying territories] in that period does not exceed 270.
(4) F30. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5) A person born outside the United Kingdom [F31and the qualifying territories] shall be entitled, on an application for his registration as a British citizen made while he is a minor, to be registered as such a citizen if the following requirements are satisfied, namely—
(a) that at the time of that person’s birth his father or mother was a British citizen by descent; and
(b) subject to subsection (6), that that person and his father and mother were in the United Kingdom [F32or a qualifying territory] at the beginning of the period of three years ending with the date of the application and that, in the case of each of them, the number of days on which the person in question was absent from the United Kingdom [F33and the qualifying territories] in that period does not exceed 270; and
(c) subject to subsection (6), that the consent of his father and mother to the registration has been signified in the prescribed manner.
(6) In the case of an application under subsection (5) for the registration of a person as a British citizen—
(a) if his father or mother died, or their marriage [F34or civil partnership] was terminated, on or before the date of the application, or his father and mother were legally separated on that date, the references to his father and mother in paragraph (b) of that subsection shall be read either as references to his father or as references to his mother; [F35 and]
(b) if his father or mother died on or before that date, the reference to his father and mother in paragraph (c) of that subsection shall be read as a reference to either of them; F36…

Question 25

s.4 BNA 1981

Answer 25

4 Acquisition by registration: [F38British overseas territories citizens] etc.

(1) This section applies to any person who is a [F39British overseas territories citizen], [F40a British National (Overseas),] a British Overseas citizen, a British subject under this Act or a British protected person.
(2) A person to whom this section applies shall be entitled, on an application for his registration as a British citizen, to be registered as such a citizen if the following requirements are satisfied in the case of that person, namely—
(a) subject to subsection (3), that he was in the United Kingdom at the beginning of the period of five years ending with the date of the application and that the number of days on which he was absent from the United Kingdom in that period does not exceed 450; and
(b) that the number of days on which he was absent from the United Kingdom in the period of twelve months so ending does not exceed 90; and
(c) that he was not at any time in the period of twelve months so ending subject under the immigration laws to any restriction on the period for which he might remain in the United Kingdom; and
(d) that he was not at any time in the period of five years so ending in the United Kingdom in breach of the immigration laws.
(3) So much of subsection (2)(a) as requires the person in question to have been in the United Kingdom at the beginning of the period there mentioned shall not apply in relation to a person who was settled in the United Kingdom immediately before commencement.
(4) If in the special circumstances of any particular case the Secretary of State thinks fit, he may for the purposes of subsection (2) do all or any of the following things, namely—
(a) treat the person to whom the application relates as fulfilling the requirement specified in subsection (2)(a) or subsection (2)(b), or both, although the number of days on which he was absent from the United Kingdom in the period there mentioned exceeds the number there mentioned;
(b) disregard any such restriction as is mentioned in subsection (2)(c), not being a restriction to which that person was subject on the date of the application;
(c) treat that person as fulfilling the requirement specified in subsection (2)(d) although he was in the United Kingdom in breach of the immigration laws in the period there mentioned.
(5) If, on an application for registration as a British citizen made by a person to whom this section applies, the Secretary of State is satisfied that the applicant has at any time served in service to which this subsection applies, he may, if he thinks fit in the special circumstances of the applicant’s case, cause him to be registered as such a citizen.
(6) Subsection (5) applies to—
(a) Crown service under the government of a [F41British overseas territory]; and
(b) paid or unpaid service (not falling within paragraph (a)) as a member of any body established by law in a [F41British overseas territory] members of which are appointed by or on behalf of the Crown.

Question 26

s.4A BNA 1981

Answer 26

4A Acquisition by registration: further provision for British overseas territories citizens

(1) If an application is made to register as a British citizen a person who is a British overseas territories citizen, the Secretary of State may if he thinks fit cause the person to be so registered.
(2) Subsection (1) does not apply in the case of a British overseas territories citizen who—
(a) is such a citizen by virtue only of a connection with the Sovereign Base Areas of Akrotiri and Dhekelia; or
(b) has ceased to be a British citizen as a result of a declaration of renunciation.]

Question 27

s.4B BNA 1981

Answer 27

4B Acquisition by registration: certain persons without other citizenship

(1)This section applies to a person who has the status of—
(a)British Overseas citizen,
(b)British subject under this Act, F44. . .
(c)British protected person.[F45, or
(d)British National (Overseas)]
(2)A person to whom this section applies shall be entitled to be registered as a British citizen if—
(a)he applies for registration under this section,
(b)the Secretary of State is satisfied that the person does not have, apart from the status mentioned in subsection (1), any citizenship or nationality, and
(c)the Secretary of State is satisfied that the person has not after [F46the relevant day] renounced, voluntarily relinquished or lost through action or inaction any citizenship or nationality
[F47(3) For the purposes of subsection (2)(c), the “ relevant day ” means—
(a)in the case of a person to whom this section applies by virtue of subsection (1)(d) only, 19th March 2009, and
(b)in any other case, 4th July 2002.]]

Question 28

s.4C BNA 1981

Answer 28

Acquisition by registration: certain persons born between 1961 and 1983

(1)A person is entitled to be registered as a British citizen if—
(a)he applies for registration under this section, and
(b)he satisfies each of the following conditions.
(2)The first condition is that the applicant was born F49. . . before 1st January 1983.
[F50(3)The second condition is that the applicant would at some time before 1st January 1983 have become a citizen of the United Kingdom and Colonies—
(a)under section 5 of, or paragraph 3 of Schedule 3 to, the 1948 Act if assumption A had applied,
(b)under section 12(3), (4) or (5) of that Act if assumption B had applied and as a result of its application the applicant would have been a British subject immediately before 1st January 1949, or
(c)under section 12(2) of that Act if one or both of the following had applied—
(i)assumption A had applied;
(ii)assumption B had applied and as a result of its application the applicant would have been a British subject immediately before 1st January 1949.
(3A)Assumption A is that—
(a)section 5 or 12(2) of, or paragraph 3 of Schedule 3 to, the 1948 Act (as the case may be) provided for citizenship by descent from a mother in the same terms as it provided for citizenship by descent from a father, and
(b)references in that provision to a father were references to the applicant’s mother.
(3B)Assumption B is that—
(a)a provision of the law at some time before 1st January 1949 which provided for a nationality status to be acquired by descent from a father provided in the same terms for its acquisition by descent from a mother, and
(b)references in that provision to a father were references to the applicant’s mother.
(3C)For the purposes of subsection (3B), a nationality status is acquired by a person (“P”) by descent where its acquisition—
(a)depends, amongst other things, on the nationality status of one or both of P’s parents, and
(b)does not depend upon an application being made for P’s registration as a person who has the status in question.
(3D)For the purposes of subsection (3), it is not to be assumed that any registration or other requirements of the provisions mentioned in that subsection or in subsection (3B) were met.]
(4)The third condition is that immediately before 1st January 1983 the applicant would have had the right of abode in the United Kingdom by virtue of section 2 of the Immigration Act 1971 (c. 77) had he become a citizen of the United Kingdom and Colonies as described in subsection (3) above.
[F51(5) For the purposes of the interpretation of section 5 of the 1948 Act in its application in the case of assumption A to a case of descent from a mother, the reference in the proviso to subsection (1) of that section to “ a citizen of the United Kingdom and Colonies by descent only ” includes a reference to a female person who became a citizen of the United Kingdom and Colonies by virtue of—
(a)section 12(2), (4) or (6) only of the 1948 Act,
(b)section 13(2) of that Act,
(c)paragraph 3 of Schedule 3 to that Act, or
(d)section 1(1)(a) or (c) of the British Nationality (No. 2) Act 1964.

Question 29

s.4D BNA 1981

Answer 29

Acquisition by registration: children of members of the armed forces

(1) A person (“P”) born outside the United Kingdom and the qualifying territories on or after the relevant day is entitled to be registered as a British citizen if—
(a) an application is made for P’s registration under this section; and
(b) each of the following conditions is satisfied.
(2) The first condition is that, at the time of P’s birth, P’s father or mother was—
(a) a member of the armed forces; and
(b) serving outside the United Kingdom and the qualifying territories.
(3) The second condition is that, if P is a minor on the date of the application, the consent of P’s father and mother to P’s registration as a British citizen has been signified in the prescribed manner.
(4) But if P’s father or mother has died on or before the date of the application, the reference in subsection (3) to P’s father and mother is to be read as a reference to either of them.
(5) The Secretary of State may, in the special circumstances of a particular case, waive the need for the second condition to be satisfied.
(6) The relevant day for the purposes of this section is the day appointed for the commencement of section 46 of the Borders, Citizenship and Immigration Act 2009 (which inserted this section).]

Question 30

s4E BNA 1981

Answer 30

4EThe general conditions

For the purposes of sections 4F to 4I, a person (“P”) meets the general conditions if—

(a) P was born before 1 July 2006;
(b) at the time of P’s birth, P’s mother—
(i) was not married, or
(ii) was married to a person other than P’s natural father;
(c) no person is treated as the father of P under section 28 of the Human Fertilisation and Embryology Act 1990; and
(d) P has never been a British citizen.

Question 31

s.4F BNA 1981

Answer 31

4FPerson unable to be registered under other provisions of this Act

(1) A person (“P”) is entitled to be registered as a British citizen on an application made under this section if—
(a) P meets the general conditions; and
(b) P would be entitled to be registered as a British citizen under—
(i) section 1(3),
(ii) section 3(2),
(iii) section 3(5),
(iv) paragraph 4 of Schedule 2, or
(v) paragraph 5 of Schedule 2,had P’s mother been married to P’s natural father at the time of P’s birth.
(2) In the following provisions of this section “relevant registration provision” means the provision under which P would be entitled to be registered as a British citizen (as mentioned in subsection (1)(b)).
(3) If the relevant registration provision is section 3(2), a person who is registered as a British citizen under this section is a British citizen by descent.
(4) If the relevant registration provision is section 3(5), the Secretary of State may, in the special circumstances of the particular case, waive the need for any or all of the parental consents to be given.
(5) For that purpose, the “parental consents” are—
(a) the consent of P’s natural father, and
(b) the consent of P’s mother,insofar as they would be required by section 3(5)(c) (as read with section 3(6)(b)), had P’s mother been married to P’s natural father at the time of P’s birth.

Question 32

s.4G BNA 1981

Answer 32

4GPerson unable to become citizen automatically after commencement

(1) A person (“P”) is entitled to be registered as a British citizen on an application made under this section if—
(a) P meets the general conditions; and
(b) at any time in the period after commencement, P would have automatically become a British citizen at birth by the operation of any provision of this Act or the British Nationality (Falkland Islands) Act 1983, had P’s mother been married to P’s natural father at the time of P’s birth.
(2) A person who is registered as a British citizen under this section is a British citizen by descent if the British citizenship which the person would have acquired at birth (as mentioned in subsection (1)(b)) would (by virtue of section 14) have been British citizenship by descent.
(3) If P is under the age of 18, no application may be made unless the consent of P’s natural father and mother to the registration has been signified in the prescribed manner.
(4) But if P’s natural father or mother has died on or before the date of the application, the reference in subsection (3) to P’s natural father and mother is to be read as a reference to either of them.
(5) The Secretary of State may, in the special circumstances of a particular case, waive the need for any or all of the consents required by subsection (3) (as read with subsection (4)) to be given.
(6) The reference in this section to the period after commencement does not include the time of commencement (and, accordingly, this section does not apply to any case in which a person was unable to become a British citizen at commencement).

Question 33

s.4H BNA 1981

Answer 33

4HCitizen of UK and colonies unable to become citizen at commencement

(1) A person (“P”) is entitled to be registered as a British citizen on an application made under this section if—
(a) P meets the general conditions;
(b) P was a citizen of the United Kingdom and Colonies immediately before commencement; and
(c) P would have automatically become a British citizen at commencement, by the operation of any provision of this Act, had P’s mother been married to P’s natural father at the time of P’s birth.
(2) A person who is registered as a British citizen under this section is a British citizen by descent if the British citizenship which the person would have acquired at commencement (as mentioned in subsection (1)(c)) would (by virtue of section 14) have been British citizenship by descent.

Question 34

s.4I BNA 1981

Answer 34

4IOther person unable to become citizen at commencement

(1)A person (“P”) is entitled to be registered as a British citizen on an application made under this section if—
(a)P meets the general conditions;
(b)P is either—
(i)an eligible former British national, or
(ii)an eligible non-British national; and
(c)had P’s mother been married to P’s natural father at the time of P’s birth, P—
(i)would have been a citizen of the United Kingdom and Colonies immediately before commencement, and
(ii)would have automatically become a British citizen at commencement by the operation of any provision of this Act.
(2)P is an “eligible former British national” if P was not a citizen of the United Kingdom and Colonies immediately before commencement and either—
(a)P ceased to be a British subject or a citizen of the United Kingdom and Colonies by virtue of the commencement of any independence legislation, but would not have done so had P’s mother been married to P’s natural father at the time of P’s birth, or
(b)P was a British subject who did not automatically become a citizen of the United Kingdom and Colonies at commencement of the British Nationality Act 1948 by the operation of any provision of it, but would have done so had P’s mother been married to P’s natural father at the time of P’s birth.
(3)P is an “eligible non-British national” if—
(a)P was never a British subject or citizen of the United Kingdom and Colonies; and
(b)had P’s mother been married to P’s natural father at the time of P’s birth, P would have automatically become a British subject or citizen of the United Kingdom and Colonies—
(i)at birth, or
(ii)by virtue of paragraph 3 of Schedule 3 to the British Nationality Act 1948 (child of male British subject to become citizen of the United Kingdom and Colonies if the father becomes such a citizen).
(4)A person who is registered as a British citizen under this section is a British citizen by descent if the British citizenship which the person would have acquired at commencement (as mentioned in subsection (1)(c)(ii)) would (by virtue of section 14) have been British citizenship by descent.
(5)In determining for the purposes of subsection (1)(c)(i) whether P would have been a citizen of the United Kingdom and Colonies immediately before commencement, it must be assumed that P would not have—
(a)renounced or been deprived of any notional British nationality, or
(b)lost any notional British nationality by virtue of P acquiring the nationality of a country or territory outside the United Kingdom.
(6)A “notional British nationality” is—
(a)in a case where P is an eligible former British national, any status as a British subject or a citizen of the United Kingdom and Colonies which P would have held at any time after P’s nationality loss (had that loss not occurred and had P’s mother had been married to P’s natural father at the time of P’s birth);
(b)in a case where P is an eligible non-British national—
(i)P’s status as a British subject or citizen of the United Kingdom and Colonies mentioned in subsection (3)(b), and
(ii)any other status as a British subject or citizen of the United Kingdom and Colonies which P would have held at any time afterwards (had P’s mother been married to P’s natural father at the time of P’s birth).
(7)In this section—
“British subject” has any meaning which it had for the purposes of the British Nationality and Status of Aliens Act 1914;
“independence legislation” means an Act of Parliament or any subordinate legislation (within the meaning of the Interpretation Act 1978) forming part of the law in the United Kingdom (whenever passed or made, and whether or not still in force)—
(a)providing for a country or territory to become independent from the United Kingdom, or
(b)dealing with nationality, or any other ancillary matters, in connection with a country or territory becoming independent from the United Kingdom;
“P’s nationality loss” means P’s—
(a)ceasing to be a British subject or citizen of the United Kingdom and Colonies (as mentioned in subsection (2)(a)), or
(b)not becoming a citizen of the United Kingdom and Colonies (as mentioned in subsection (2)(b)).

Question 35

s.4J BNA 1981

Answer 35

4JSections 4E to 4I: supplementary provision

(1) In sections 4E to 4I and this section, a person’s “natural father” is a person who satisfies the requirements as to proof of paternity that are prescribed in regulations under section 50(9B).
(2) The power under section 50(9B) to make different provision for different circumstances includes power to make provision for the purposes of any provision of sections 4E to 4I which is different from other provision made under section 50(9B).
(3) The following provisions apply for the purposes of sections 4E to 4I.
(4) A reference to a person automatically becoming a British citizen, or a citizen of the United Kingdom and Colonies, is a reference to the person becoming such a citizen without the need for—
(a) the person to be registered as such a citizen by the Secretary of State or any other minister of the Crown;
(b) the birth of the person to be registered by a diplomatic or consular representative of the United Kingdom; or
(c) the person to be naturalised as such a citizen.
(5) If the mother of a person could not actually have been married to the person’s natural father at the time of the person’s birth (for whatever reason), that fact does not prevent an assumption being made that the couple were married at the time of the birth.]

Question 36

s.5 BNA 1981

Answer 36

5 Acquisition by registration: nationals for purposes of the [F21EU] Treaties.

A [F54British overseas territories citizen] who falls to be treated as a national of the United Kingdom for the purposes of the [F21EU] Treaties shall be entitled to be registered as a British citizen if an application is made for his registration as such a citizen.

Question 37

s.6 BNA 1981

Answer 37

6 Acquisition by naturalisation.

(1) If, on an application for naturalisation as a British citizen made by a person of full age and capacity, the Secretary of State is satisfied that the applicant fulfils the requirements of Schedule 1 for naturalisation as such a citizen under this subsection, he may, if he thinks fit, grant to him a certificate of naturalisation as such a citizen.
(2) If, on an application for naturalisation as a British citizen made by a person of full age and capacity who on the date of the application is married to a British citizen, [F55or is the civil partner of a British citizen] the Secretary of State is satisfied that the applicant fulfils the requirements of Schedule 1 for naturalisation as such a citizen under this subsection, he may, if he thinks fit, grant to him a certificate of naturalisation as such a citizen.

Question 38

s.40 BNA 1981

Answer 38

40 Deprivation of citizenship.

(1) In this section a reference to a person’s “ citizenship status ” is a reference to his status as—
(a)a British citizen,
(b)a British overseas territories citizen,
(c)a British Overseas citizen,
(d)a British National (Overseas),
(e)a British protected person, or
(f)a British subject.
[F116(2)The Secretary of State may by order deprive a person of a citizenship status if the Secretary of State is satisfied that deprivation is conducive to the public good.]
(3)The Secretary of State may by order deprive a person of a citizenship status which results from his registration or naturalisation if the Secretary of State is satisfied that the registration or naturalisation was obtained by means of—
(a)fraud,
(b)false representation, or
(c)concealment of a material fact.
(4)The Secretary of State may not make an order under subsection (2) if he is satisfied that the order would make a person stateless.
[F117(4A)But that does not prevent the Secretary of State from making an order under subsection (2) to deprive a person of a citizenship status if—
(a)the citizenship status results from the person’s naturalisation,
(b)the Secretary of State is satisfied that the deprivation is conducive to the public good because the person, while having that citizenship status, has conducted him or herself in a manner which is seriously prejudicial to the vital interests of the United Kingdom, any of the Islands, or any British overseas territory, and
(c)the Secretary of State has reasonable grounds for believing that the person is able, under the law of a country or territory outside the United Kingdom, to become a national of such a country or territory.]
(5)Before making an order under this section in respect of a person the Secretary of State must give the person written notice specifying—
(a)that the Secretary of State has decided to make an order,
(b)the reasons for the order, and
(c)the person’s right of appeal under section 40A(1) or under section 2B of the Special Immigration Appeals Commission Act 1997 (c. 68).
(6)Where a person acquired a citizenship status by the operation of a law which applied to him because of his registration or naturalisation under an enactment having effect before commencement, the Secretary of State may by order deprive the person of the citizenship status if the Secretary of State is satisfied that the registration or naturalisation was obtained by means of—
(a)fraud,
(b)false representation, or
(c)concealment of a material fact.]

Question 39

s.40A BNA 1981

Answer 39

40A Deprivation of citizenship: appeal

(1)A person who is given notice under section 40(5) of a decision to make an order in respect of him under section 40 may appeal against the decision to [F119the First-tier Tribunal].
(2)Subsection (1) shall not apply to a decision if the Secretary of State certifies that it was taken wholly or partly in reliance on information which in his opinion should not be made public—
(a)in the interests of national security,
(b)in the interests of the relationship between the United Kingdom and another country, or
(c)otherwise in the public interest.
[F120(3) The following provisions of the Nationality, Immigration and Asylum Act 2002 (c. 41) shall apply in relation to an appeal under this section as they apply in relation to an appeal under section 82 F121 …of that Act—
F122( a ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F123(b ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(c) section 106 (rules), F124 . . .
(d)section 107 (practice directions)[F125, and
(e)section 108 (forged document: proceedings in private).]]
(6)F126 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(7)F126 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(8)F126 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ]

Question 40

s.40B BNA 1981

Answer 40

40BReview of power under section 40(4A)

(1)The Secretary of State must arrange for a review of the operation of the relevant deprivation power to be carried out in relation to each of the following periods—
(a)the initial one year period;
(b)each subsequent three year period.
(2)The “relevant deprivation power” is the power to make orders under section 40(2) to deprive persons of a citizenship status in the circumstances set out in section 40(4A).
(3)A review must be completed as soon as practicable after the end of the period to which the review relates.
(4)As soon as practicable after a person has carried out a review in relation to a particular period, the person must—
(a)produce a report of the outcome of the review, and
(b)send a copy of the report to the Secretary of State.
(5)The Secretary of State must lay before each House of Parliament a copy of each report sent under subsection (4)(b).
(6)The Secretary of State may, after consultation with the person who produced the report, exclude a part of the report from the copy laid before Parliament if the Secretary of State is of the opinion that it would be contrary to the public interest or prejudicial to national security for that part of the report to be made public.
(7)The Secretary of State may—
(a)make such payments as the Secretary of State thinks appropriate in connection with the carrying out of a review, and
(b)make such other arrangements as the Secretary of State thinks appropriate in connection with the carrying out of a review (including arrangements for the provision of staff, other resources and facilities).
(8)In this section—
“initial one year period” means the period of one year beginning with the day when section 40(4A) comes into force;
“subsequent three year period” means a period of three years beginning with the first day after the most recent of—
(a)the initial one year period, or
(b)the most recent subsequent three year period.]

Question 41

s117A NIAA 2002

Answer 41

117AApplication of this Part

(1) This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts—
(a) breaches a person’s right to respect for private and family life under Article 8, and
(b) as a result would be unlawful under section 6 of the Human Rights Act 1998.
(2) In considering the public interest question, the court or tribunal must (in particular) have regard—
(a) in all cases, to the considerations listed in section 117B, and
(b) in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C.
(3) In subsection (2), “the public interest question” means the question of whether an interference with a person’s right to respect for private and family life is justified under Article 8(2).

Question 42

s.117B NIAA 2002

Answer 42

117BArticle 8: public interest considerations applicable in all cases

(1) The maintenance of effective immigration controls is in the public interest.
(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English—
(a) are less of a burden on taxpayers, and
(b) are better able to integrate into society.
(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons—
(a) are not a burden on taxpayers, and
(b) are better able to integrate into society.
(4) Little weight should be given to—
(a) a private life, or
(b) a relationship formed with a qualifying partner,that is established by a person at a time when the person is in the United Kingdom unlawfully.
(5) Little weight should be given to a private life established by a person at a time when the person’s immigration status is precarious.
(6) In the case of a person who is not liable to deportation, the public interest does not require the person’s removal where—
(a) the person has a genuine and subsisting parental relationship with a qualifying child, and
(b) it would not be reasonable to expect the child to leave the United Kingdom.

Question 43

s.117C NIAA 2002

Answer 43

117CArticle 8: additional considerations in cases involving foreign criminals

(1) The deportation of foreign criminals is in the public interest.
(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.
(3) In the case of a foreign criminal (“C”) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C’s deportation unless Exception 1 or Exception 2 applies.
(4) Exception 1 applies where—
(a) C has been lawfully resident in the United Kingdom for most of C’s life,
(b) C is socially and culturally integrated in the United Kingdom, and
(c) there would be very significant obstacles to C’s integration into the country to which C is proposed to be deported.
(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh.
(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.
(7) The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted.

Question 44

s.117D NIAA 2002

Answer 44

117DInterpretation of this Part

(1)In this Part—
“Article 8” means Article 8 of the European Convention on Human Rights;
“qualifying child” means a person who is under the age of 18 and who—
(a)is a British citizen, or
(b)has lived in the United Kingdom for a continuous period of seven years or more;
“qualifying partner” means a partner who—
(a)is a British citizen, or
(b)who is settled in the United Kingdom (within the meaning of the Immigration Act 1971 — see section 33(2A) of that Act).
(2)In this Part, “foreign criminal” means a person—
(a)who is not a British citizen,
(b)who has been convicted in the United Kingdom of an offence, and
(c)who—
(i)has been sentenced to a period of imprisonment of at least 12 months,
(ii)has been convicted of an offence that has caused serious harm, or
(iii)is a persistent offender.
(3)For the purposes of subsection (2)(b), a person subject to an order under—
(a)section 5 of the Criminal Procedure (Insanity) Act 1964 (insanity etc),
(b)section 57 of the Criminal Procedure (Scotland) Act 1995 (insanity etc), or
(c)Article 50A of the Mental Health (Northern Ireland) Order 1986 (insanity etc),has not been convicted of an offence.
(4)In this Part, references to a person who has been sentenced to a period of imprisonment of a certain length of time—
(a)do not include a person who has received a suspended sentence (unless a court subsequently orders that the sentence or any part of it (of whatever length) is to take effect);
(b)do not include a person who has been sentenced to a period of imprisonment of that length of time only by virtue of being sentenced to consecutive sentences amounting in aggregate to that length of time;
(c)include a person who is sentenced to detention, or ordered or directed to be detained, in an institution other than a prison (including, in particular, a hospital or an institution for young offenders) for that length of time; and
(d)include a person who is sentenced to imprisonment or detention, or ordered or directed to be detained, for an indeterminate period, provided that it may last for at least that length of time.
(5)If any question arises for the purposes of this Part as to whether a person is a British citizen, it is for the person asserting that fact to prove it.”

Question 45

Article 4 Council of Europe Convention against trafficking in human beings

Answer 45

Article 4 – Definitions
For the purposes of this Convention:
a “Trafficking in human beings” shall mean the recruitment, transportation, transfer,
harbouring or receipt of persons, by means of the threat or use of force or other forms of
coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of
vulnerability or of the giving or receiving of payments or benefits to achieve the consent
of a person having control over another person, for the purpose of exploitation.
Exploitation shall include, at a minimum, the exploitation of the prostitution of others or
other forms of sexual exploitation, forced labour or services, slavery or practices similar
to slavery, servitude or the removal of organs;
b The consent of a victim of “trafficking in human beings” to the intended exploitation set
forth in subparagraph (a) of this article shall be irrelevant where any of the means set
forth in subparagraph (a) have been used;
c The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose
of exploitation shall be considered “trafficking in human beings” even if this does not
involve any of the means set forth in subparagraph (a) of this article;
d “Child” shall mean any person under eighteen years of age;
e “Victim” shall mean any natural person who is subject to trafficking in human beings as
defined in this article.

Question 46

Sch 2 IA 1971

Answer 46

SCHEDULE 2 Administrative Provisions as to Control on Entry etc.

Question 47

Sch 3 IA 1971

Answer 47

SCHEDULE 3 Supplementary Provisions as to Deportation

Question 48

Reg 10 EEA 2006

Answer 48

“Family member who has retained the right of residence”

10. —(1) In these Regulations, “family member who has retained the right of residence” means, subject to paragraph (8), a person who satisfies the conditions in paragraph (2), (3), (4) or (5).
    (2) A person satisfies the conditions in this paragraph if—

(a) he was a family member of a qualified person when the qualified person died;
(b) he resided in the United Kingdom in accordance with these Regulations for at least the year immediately before the death of the qualified person; and
(c) he satisfies the condition in paragraph (6).
(3) A person satisfies the conditions in this paragraph if—

(a) he is the direct descendant of—
(i) a qualified person who has died;
(ii) a person who ceased to be a qualified person on ceasing to reside in the United Kingdom; or
(iii) the person who was the spouse or civil partner of the qualified person mentioned in sub-paragraph (i) when he died or is the spouse or civil partner of the person mentioned in sub-paragraph (ii); and
(b) he was attending an educational course in the United Kingdom immediately before the qualified person died or ceased to be a qualified person and continues to attend such a course.
(4) A person satisfies the conditions in this paragraph if the person is the parent with actual custody of a child who satisfies the condition in paragraph (3).

(5) A person satisfies the conditions in this paragraph if—

(a) he ceased to be a family member of a qualified person on the termination of the marriage or civil partnership of the qualified person;
(b) he was residing in the United Kingdom in accordance with these Regulations at the date of the termination;
(c) he satisfies the condition in paragraph (6); and
(d) either—
(i) prior to the initiation of the proceedings for the termination of the marriage or the civil partnership the marriage or civil partnership had lasted for at least three years and the parties to the marriage or civil partnership had resided in the United Kingdom for at least one year during its duration;
(ii) the former spouse or civil partner of the qualified person has custody of a child of the qualified person;
(iii) the former spouse or civil partner of the qualified person has the right of access to a child of the qualified person under the age of 18 and a court has ordered that such access must take place in the United Kingdom; or
(iv) the continued right of residence in the United Kingdom of the person is warranted by particularly difficult circumstances, such as he or another family member having been a victim of domestic violence while the marriage or civil partnership was subsisting.
(6) The condition in this paragraph is that the person—

(a) is not an EEA national but would, if he were an EEA national, be a worker, a self-employed person or a self-sufficient person under regulation 6; or
(b) is the family member of a person who falls within paragraph (a).
(7) In this regulation, “educational course” means a course within the scope of Article 12 of Council Regulation (EEC) No. 1612/68 on freedom of movement for workers(1).

(8) A person with a permanent right of residence under regulation 15 shall not become a family member who has retained the right of residence on the death or departure from the United Kingdom of the qualified person or the termination of the marriage or civil partnership, as the case may be, and a family member who has retained the right of residence shall cease to have that status on acquiring a permanent right of residence under regulation 15.

Question 49

Reg 17 EEA Regs 2006

Answer 49

Issue of residence card

17.—(1) The Secretary of State must issue a residence card to a person who is not an EEA national and is the family member of a qualified person or of an EEA national with a permanent right of residence under regulation 15 on application and production of—

(a) a valid passport; and
(b) proof that the applicant is such a family member.
(2) The Secretary of State must issue a residence card to a person who is not an EEA national but who is a family member who has retained the right of residence on application and production of—

(a) a valid passport; and
(b) proof that the applicant is a family member who has retained the right of residence.
(3) On receipt of an application under paragraph (1) or (2) and the documents that are required to accompany the application the Secretary of State shall immediately issue the applicant with a certificate of application for the residence card and the residence card shall be issued no later than six months after the date on which the application and documents are received.

(4) The Secretary of State may issue a residence card to an extended family member not falling within regulation 7(3) who is not an EEA national on application if—

(a) the relevant EEA national in relation to the extended family member is a qualified person or an EEA national with a permanent right of residence under regulation 15; and
(b) in all the circumstances it appears to the Secretary of State appropriate to issue the residence card.
(5) Where the Secretary of State receives an application under paragraph (4) he shall undertake an extensive examination of the personal circumstances of the applicant and if he refuses the application shall give reasons justifying the refusal unless this is contrary to the interests of national security.

(6) A residence card issued under this regulation may take the form of a stamp in the applicant’s passport and shall be entitled “Residence card of a family member of an EEA national” and be valid for—

(a)five years from the date of issue; or
(b)in the case of a residence card issued to the family member or extended family member of a qualified person, the envisaged period of residence in the United Kingdom of the qualified person,
whichever is the shorter.

(7) A residence card issued under this regulation shall be issued free of charge.
(8) But this regulation is subject to regulation 20(1).

Question 50

Reg 18 EEA Regs 2006

Answer 50

Issue of a document certifying permanent residence and a permanent residence card

18. —(1) The Secretary of State must issue an EEA national with a permanent right of residence under regulation 15 with a document certifying permanent residence as soon as possible after an application for such a document and proof that the EEA national has such a right is submitted to the Secretary of State.
    (2) The Secretary of State must issue a person who is not an EEA national who has a permanent right of residence under regulation 15 with a permanent residence card no later than six months after the date on which an application for a permanent residence card and proof that the person has such a right is submitted to the Secretary of State.
    (3) Subject to paragraph (5) and regulation 20(3), a permanent residence card shall be valid for ten years from the date of issue and must be renewed on application.
    (4) A document certifying permanent residence and a permanent residence card shall be issued free of charge.
    (5) A document certifying permanent residence and a permanent residence card shall cease to be valid if the holder ceases to have a right of permanent residence under regulation 15.

Question 51

Part 4 EEA Regs 2016

Answer 51

PART 4

REFUSAL OF ADMISSION AND REMOVAL ETC

Question 52

Part 5 EEA Regs 2016

Answer 52

PART 5

PROCEDURE IN RELATION TO EEA DECISIONS

Question 53

s.62 NIAA 2002

Answer 53

62 Detention by Secretary of State

(1) A person may be detained under the authority of the Secretary of State pending—
(a) a decision by the Secretary of State whether to give directions in respect of the person under paragraph 10, 10A or 14 of Schedule 2 to the Immigration Act 1971 (c. 77) (control of entry: removal), or
(b) removal of the person from the United Kingdom in pursuance of directions given by the Secretary of State under any of those paragraphs.
(2) Where the Secretary of State is empowered under section 3A of that Act (powers of Secretary of State) to examine a person or to give or refuse a person leave to enter the United Kingdom, the person may be detained under the authority of the Secretary of State pending—
(a) the person’s examination by the Secretary of State,
(b) the Secretary of State’s decision to give or refuse the person leave to enter,
(c) a decision by the Secretary of State whether to give directions in respect of the person under paragraph 8 or 9 of Schedule 2 to that Act (removal), or
(d) removal of the person in pursuance of directions given by the Secretary of State under either of those paragraphs.
(3) A provision of Schedule 2 to that Act about a person who is detained or liable to detention under that Schedule shall apply to a person who is detained or liable to detention under this section: and for that purpose—
(a) a reference to paragraph 16 of that Schedule shall be taken to include a reference to this section,
(b) a reference in paragraph 21 of that Schedule to an immigration officer shall be taken to include a reference to the Secretary of State, and
(c) a reference to detention under that Schedule or under a provision or Part of that Schedule shall be taken to include a reference to detention under this section.
(4) In the case of a restriction imposed under paragraph 21 of that Schedule by virtue of this section—
(a) a restriction imposed by an immigration officer may be varied by the Secretary of State, and
(b) a restriction imposed by the Secretary of State may be varied by an immigration officer.
(5) In subsection (1) the reference to paragraph 10 of that Schedule includes a reference to that paragraph as applied by virtue of section 10 of the Immigration and Asylum Act 1999 (c. 33) (persons unlawfully in United Kingdom: removal).
(6) Subsection (5) is without prejudice to the generality of section 159.
(7) A power under this section which is exercisable pending a decision of a particular kind by the Secretary of State is exercisable where the Secretary of State has reasonable grounds to suspect that he may make a decision of that kind.
(8) At the end of section 11(1) of the Immigration Act 1971 (c. 77) (person not deemed to have entered United Kingdom while detained, &c.) there shall be inserted “ or section 62 of the Nationality, Immigration and Asylum Act 2002 ”.
(9) In section 24(1)(e) of the Immigration Act 1971 (offence: failure to comply with restriction) for “or to an immigration officer” there shall be substituted “ , to an immigration officer or to the Secretary of State ”.
(10) In the Mental Health Act 1983 (c. 20)—
(a) at the end of section 48(2)(d) (detained persons susceptible to transfer for mental treatment: immigration) there shall be added “ or under section 62 of the Nationality, Immigration and Asylum Act 2002 (detention by Secretary of State) ”, and
(b) in the heading of section 53 (supplemental provision) the reference to the Immigration Act 1971 becomes a reference to the Immigration Acts.
(11) In the Mental Health (Scotland) Act 1984 (c. 36)—
(a) at the end of section 71(2)(c) (detained persons who may be transferred to hospital for mental treatment) there shall be added “ or under section 62 of the Nationality, Immigration and Asylum Act 2002 (detention by the Secretary of State) ”, and
(b) at the end of section 74(1)(b) (further provision about such persons) there shall be added “ or under section 62 of the Nationality, Immigration and Asylum Act 2002 (detention by the Secretary of State) ”.
(12) In the Mental Health (Northern Ireland) Order 1986 (S.I. 1986/595 (N.I. 4))—
(a) at the end of Article 54(2)(d) (detained persons susceptible to transfer for mental treatment: immigration) there shall be added “ or under section 62 of the Nationality, Immigration and Asylum Act 2002 (detention by Secretary of State) ”, and
(b) in the heading of Article 59 (supplemental provision) the reference to the Immigration Act 1971 becomes a reference to the Immigration Acts.
(13) Section 53 of the Immigration and Asylum Act 1999 (c. 33) (bail) shall be amended as follows—
(a) at the end of subsection (1) add “ or under section 62 of the Nationality, Immigration and Asylum Act 2002 ”, and
(b) at the end of subsection (3)(a) add “ or under section 62 of the Nationality, Immigration and Asylum Act 2002 ”.
(14) In section 147 of that Act (detention centres: interpretation) at the end of the definition of “detained persons” there shall be inserted “ or under section 62 of the Nationality, Immigration and Asylum Act 2002 (detention by Secretary of State); ”.
(15) F1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(16) F1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Question 54

s.36 UKBA 2007

Answer 54

36Detention

(1)A person who has served a period of imprisonment may be detained under the authority of the Secretary of State—
(a)while the Secretary of State considers whether section 32(5) applies, and
(b)where the Secretary of State thinks that section 32(5) applies, pending the making of the deportation order.
(2)Where a deportation order is made in accordance with section 32(5) the Secretary of State shall exercise the power of detention under paragraph 2(3) of Schedule 3 to the Immigration Act 1971 (c. 77) (detention pending removal) unless in the circumstances the Secretary of State thinks it inappropriate.
[F1(2A)The detention under subsection (1) of a person to whom section 60 (limitation on detention of pregnant women) of the Immigration Act 2016 applies is subject to that section.]
(3)A court determining an appeal against conviction or sentence may direct release from detention under subsection (1) or (2).
(4)Provisions of the Immigration Act 1971 which apply to detention under paragraph 2(3) of Schedule 3 to that Act shall apply to detention under subsection (1) (including provisions about bail).
(5)Paragraph 2(5) of Schedule 3 to that Act (residence, occupation and reporting restrictions) applies to a person who is liable to be detained under subsection (1).

Question 55

Part 5 FTT Procedure Rules 2014

Answer 55

PART 5

Bail

Question 56

s.32 UKBA 2007

Answer 56

32Automatic deportation

(1) In this section “foreign criminal” means a person—
(a) who is not a British citizen,
(b) who is convicted in the United Kingdom of an offence, and
(c) to whom Condition 1 or 2 applies.
(2) Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months.
(3) Condition 2 is that—
(a) the offence is specified by order of the Secretary of State under section 72(4)(a) of the Nationality, Immigration and Asylum Act 2002 (c. 41) (serious criminal), and
(b) the person is sentenced to a period of imprisonment.
(4) For the purpose of section 3(5)(a) of the Immigration Act 1971 (c. 77), the deportation of a foreign criminal is conducive to the public good.
(5) The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33).
(6) The Secretary of State may not revoke a deportation order made in accordance with subsection (5) unless—
(a) he thinks that an exception under section 33 applies,
(b) the application for revocation is made while the foreign criminal is outside the United Kingdom, or
(c) section 34(4) applies.
(7) Subsection (5) does not create a private right of action in respect of consequences of non-compliance by the Secretary of State.

Question 57

s.33 UKBA 2007

Answer 57

33Exceptions

(1)Section 32(4) and (5)—
(a)do not apply where an exception in this section applies (subject to subsection (7) below), and
(b)are subject to sections 7 and 8 of the Immigration Act 1971 (Commonwealth citizens, Irish citizens, crew and other exemptions).
(2)Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach—
(a)a person’s Convention rights, or
(b)the United Kingdom’s obligations under the Refugee Convention.
(3)Exception 2 is where the Secretary of State thinks that the foreign criminal was under the age of 18 on the date of conviction.
(4)Exception 3 is where the removal of the foreign criminal from the United Kingdom in pursuance of a deportation order would breach rights of the foreign criminal under the [F1EU] treaties.
(5)Exception 4 is where the foreign criminal—
(a)is the subject of a certificate under section 2 or 70 of the Extradition Act 2003 (c. 41),
(b)is in custody pursuant to arrest under section 5 of that Act,
(c)is the subject of a provisional warrant under section 73 of that Act,
(d)is the subject of an authority to proceed under section 7 of the Extradition Act 1989 (c. 33) or an order under paragraph 4(2) of Schedule 1 to that Act, or
(e)is the subject of a provisional warrant under section 8 of that Act or of a warrant under paragraph 5(1)(b) of Schedule 1 to that Act.
(6)Exception 5 is where any of the following has effect in respect of the foreign criminal—
(a)a hospital order or guardianship order under section 37 of the Mental Health Act 1983 (c. 20),
(b)a hospital direction under section 45A of that Act,
(c)a transfer direction under section 47 of that Act,
(d)a compulsion order under section 57A of the Criminal Procedure (Scotland) Act 1995 (c. 46),
(e)a guardianship order under section 58 of that Act,
(f)a hospital direction under section 59A of that Act,
(g)a transfer for treatment direction under section 136 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), or
(h)an order or direction under a provision which corresponds to a provision specified in paragraphs (a) to (g) and which has effect in relation to Northern Ireland.
[F2(6A)Exception 6 is where the Secretary of State thinks that the application of section 32(4) and (5) would contravene the United Kingdom’s obligations under the Council of Europe Convention on Action against Trafficking in Human Beings (done at Warsaw on 16th May 2005).]
(7)The application of an exception—
(a)does not prevent the making of a deportation order;
(b)results in it being assumed neither that deportation of the person concerned is conducive to the public good nor that it is not conducive to the public good;but section 32(4) applies despite the application of Exception 1 or 4.

Question 58

s.34 UKBA 2007

Answer 58

34Timing

(1) Section 32(5) requires a deportation order to be made at a time chosen by the Secretary of State.
(2) A deportation order may not be made under section 32(5) while an appeal or further appeal against the conviction or sentence by reference to which the order is to be made—
(a) has been instituted and neither withdrawn nor determined, or
(b) could be brought.
(3) For the purpose of subsection (2)(b)—
(a) the possibility of an appeal out of time with permission shall be disregarded, and
(b) a person who has informed the Secretary of State in writing that the person does not intend to appeal shall be treated as being no longer able to appeal.
(4) The Secretary of State may withdraw a decision that section 32(5) applies, or revoke a deportation order made in accordance with section 32(5), for the purpose of—
(a) taking action under the Immigration Acts or rules made under section 3 of the Immigration Act 1971 (c. 77) (immigration rules), and
(b) subsequently taking a new decision that section 32(5) applies and making a deportation order in accordance with section 32(5).

Question 59

s.35 UKBA 2007

Answer 59

35Appeal

(1)The Nationality, Immigration and Asylum Act 2002 (c. 41) is amended as follows.
(2)At the end of section 79 (no deportation order pending appeal) add—
“(3)This section does not apply to a deportation order which states that it is made in accordance with section 32(5) of the UK Borders Act 2007.
(4)But a deportation order made in reliance on subsection (3) does not invalidate leave to enter or remain, in accordance with section 5(1) of the Immigration Act 1971, if and for so long as section 78 above applies.”
F1(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Question 60

s.36 UKBA 2007

Answer 60

36Detention

(1)A person who has served a period of imprisonment may be detained under the authority of the Secretary of State—
(a)while the Secretary of State considers whether section 32(5) applies, and
(b)where the Secretary of State thinks that section 32(5) applies, pending the making of the deportation order.
(2)Where a deportation order is made in accordance with section 32(5) the Secretary of State shall exercise the power of detention under paragraph 2(3) of Schedule 3 to the Immigration Act 1971 (c. 77) (detention pending removal) unless in the circumstances the Secretary of State thinks it inappropriate.
[F1(2A)The detention under subsection (1) of a person to whom section 60 (limitation on detention of pregnant women) of the Immigration Act 2016 applies is subject to that section.]
(3)A court determining an appeal against conviction or sentence may direct release from detention under subsection (1) or (2).
(4)Provisions of the Immigration Act 1971 which apply to detention under paragraph 2(3) of Schedule 3 to that Act shall apply to detention under subsection (1) (including provisions about bail).
(5)Paragraph 2(5) of Schedule 3 to that Act (residence, occupation and reporting restrictions) applies to a person who is liable to be detained under subsection (1).

Question 61

s.37 UKBA 2007

Answer 61

37Family

(1) Where a deportation order against a foreign criminal states that it is made in accordance with section 32(5) (“the automatic deportation order”) this section shall have effect in place of the words from “A deportation order” to “after the making of the deportation order against him” in section 5(3) of the Immigration Act 1971 (period during which family members may also be deported).
(2) A deportation order may not be made against a person as belonging to the family of the foreign criminal after the end of the relevant period of 8 weeks.
(3) In the case of a foreign criminal who has not appealed in respect of the automatic deportation order, the relevant period begins when an appeal can no longer be brought (ignoring any possibility of an appeal out of time with permission).
(4) In the case of a foreign criminal who has appealed in respect of the automatic deportation order, the relevant period begins when the appeal is no longer pending (within the meaning of section 104 of the Nationality, Immigration and Asylum Act 2002 (c. 41)).

Question 62

s.38 UKBA 2007

Answer 62

38Interpretation

(1) In section 32(2) the reference to a person who is sentenced to a period of imprisonment of at least 12 months—
(a) does not include a reference to a person who receives a suspended sentence (unless a court subsequently orders that the sentence or any part of it (of whatever length) is to take effect),
(b) does not include a reference to a person who is sentenced to a period of imprisonment of at least 12 months only by virtue of being sentenced to consecutive sentences amounting in aggregate to more than 12 months,
(c) includes a reference to a person who is sentenced to detention, or ordered or directed to be detained, in an institution other than a prison (including, in particular, a hospital or an institution for young offenders) for at least 12 months, and
(d) includes a reference to a person who is sentenced to imprisonment or detention, or ordered or directed to be detained, for an indeterminate period (provided that it may last for 12 months).
(2) In section 32(3)(b) the reference to a person who is sentenced to a period of imprisonment—
(a) does not include a reference to a person who receives a suspended sentence (unless a court subsequently orders that the sentence or any part of it is to take effect), and
(b) includes a reference to a person who is sentenced to detention, or ordered or directed to be detained, in an institution other than a prison (including, in particular, a hospital or an institution for young offenders).
(3) For the purposes of section 32 a person subject to an order under section 5 of the Criminal Procedure (Insanity) Act 1964 (c. 84) (insanity, &c.) has not been convicted of an offence.
(4) In sections 32 and 33—
(a) “British citizen” has the same meaning as in section 3(5) of the Immigration Act 1971 (c. 77) (and section 3(8) (burden of proof) shall apply),
(b) “Convention rights” has the same meaning as in the Human Rights Act 1998 (c. 42),
(c) “deportation order” means an order under section 5, and by virtue of section 3(5), of the Immigration Act 1971, and
(d) “the Refugee Convention” means the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and its Protocol.

Question 63

s.39 UKBA 2007

Answer 63

39Consequential amendments

(1)This section amends section 72(11)(b) of the Nationality, Immigration and Asylum Act 2002 (removal: serious criminal: interpretation).
(2)In sub-paragraph (i) for “(unless at least two years of the sentence are not suspended)” substitute “ (unless a court subsequently orders that the sentence or any part of it is to take effect) ”.
(3)After sub-paragraph (i) insert—
“(ia)does not include a reference to a person who is sentenced to a period of imprisonment of at least two years only by virtue of being sentenced to consecutive sentences which amount in aggregate to more than two years,”.

Question 64

ss.32-39 UKBA 2009

Answer 64

Deportation of criminals

32. Automatic deportation
33. Exceptions
34. Timing
35. Appeal
36. Detention
37. Family
38. Interpretation
39. Consequential amendments

Question 65

s.3(5) IA 1971

Answer 65

3 General provisions for regulation and control.

(5) A person who is not a British citizen is liable to deportation from the United Kingdom if—
(a) the Secretary of State deems his deportation to be conducive to the public good; or
(b) another person to whose family he belongs is or has been ordered to be deported.]

Question 66

s.5 IA 1971

Answer 66

5 Procedure for, and further provisions as to, deportation.

(1)Where a person is under section 3(5) or (6) above liable to deportation, then subject to the following provisions of this Act the Secretary of State may make a deportation order against him, that is to say an order requiring him to leave and prohibiting him from entering the United Kingdom; and a deportation order against a person shall invalidate any leave to enter or remain in the United Kingdom given him before the order is made or while it is in force.
(2)A deportation order against a person may at any time be revoked by a further order of the Secretary of State, and shall cease to have effect if he becomes [F1a British citizen].
(3)A deportation order shall not be made against a person as belonging to the family of another person if more than eight weeks have elapsed since the other person left the United Kingdom after the making of the deportation order against him; and a deportation order made against a person on that ground shall cease to have effect if he ceases to belong to the family of the other person, or if the deportation order made against the other person ceases to have effect.
(4)For purposes of deportation the following shall be those who are regarded as belonging to another person’s family—
(a)where that other person is a man, his wife [F2or civil partner,] and his or her children under the age of eighteen; and
F3[(b)where that other person is a woman, her husband [F4or civil partner,] and her or his children under the age of eighteen;]and for purposes of this subsection an adopted child, whether legally adopted or not, may be treated as the child of the adopter and, if legally adopted, shall be regarded as the child only of the adopter; an illegitimate child (subject to the foregoing rule as to adoptions) shall be regarded as the child of the mother; and “wife” includes each of two or more wives.
(5)The provisions of Schedule 3 to this Act shall have effect with respect to the removal from the United Kingdom of persons against whom deportation orders are in force and with respect to the detention or control of persons in connection with deportation.
(6)Where a person is liable to deportation under section [F53(5)] or (6) above but, without a deportation order being made against him, leaves the United Kingdom to live permanently abroad, the Secretary of State may make payments of such amounts as he may determine to meet that person’s expenses in so leaving the United Kingdom, including travelling expenses for members of his family or household.

Question 67

Part 13 Immigration Rules

Answer 67

Immigration Rules part 13: deportation

Deportation (paragraphs A362 to 400).

Question 68

s.76 NIAA 2002

Answer 68

76 Revocation of leave to enter or remain

(1)The Secretary of State may revoke a person’s indefinite leave to enter or remain in the United Kingdom if the person—
(a)is liable to deportation, but
(b)cannot be deported for legal reasons.
(2)The Secretary of State may revoke a person’s indefinite leave to enter or remain in the United Kingdom if—
(a)the leave was obtained by deception,
(b)the person would be liable to removal because of the deception, but
(c)the person cannot be removed for legal or practical reasons.
(3)The Secretary of State may revoke a person’s indefinite leave to enter or remain in the United Kingdom if the person, or someone of whom he is a dependant, ceases to be a refugee as a result of—
(a)voluntarily availing himself of the protection of his country of nationality,
(b)voluntarily re-acquiring a lost nationality,
(c)acquiring the nationality of a country other than the United Kingdom and availing himself of its protection, or
(d)voluntarily establishing himself in a country in respect of which he was a refugee.
(4)In this section—
“indefinite leave” has the meaning given by section 33(1) of the Immigration Act 1971 (c. 77) (interpretation),
“liable to deportation” has the meaning given by section 3(5) and (6) of that Act (deportation),
“refugee” has the meaning given by the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and its Protocol, and
“removed” means removed from the United Kingdom under—
(a)paragraph 9 or 10 of Schedule 2 to the Immigration Act 1971 (control of entry: directions for removal), or
(b)section 10(1)(b) of the Immigration and Asylum Act 1999 (c. 33) (removal of persons unlawfully in United Kingdom: deception).
(5)A power under subsection (1) or (2) to revoke leave may be exercised—
(a)in respect of leave granted before this section comes into force;
(b)in reliance on anything done before this section comes into force.
(6)A power under subsection (3) to revoke leave may be exercised—
(a)in respect of leave granted before this section comes into force, but
(b)only in reliance on action taken after this section comes into force.
(7)In section 10(1) of the Immigration and Asylum Act 1999 (removal of persons unlawfully in United Kingdom) after paragraph (b) (and before the word “or”) there shall be inserted—
“(ba)his indefinite leave to enter or remain has been revoked under section 76(3) of the Nationality, Immigration and Asylum Act 2002 (person ceasing to be refugee);”.

Question 69

s.10 IAA 199

Answer 69

10 Removal of certain persons unlawfully in the United Kingdom.

(1)A person who is not a British citizen may be removed from the United Kingdom, in accordance with directions given by an immigration officer, if—
(a)having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave;
[F1(b)he uses deception in seeking (whether successfully or not) leave to remain;]
[F2(ba)his indefinite leave to enter or remain has been revoked under section 76(3) of the Nationality, Immigration and Asylum Act 2002 (person ceasing to be refugee);]
(c)directions F3… have been given for the removal, under this section, of a person (“the other person”) to whose family he belongs.
(2)Directions may not be given under subsection (1)(a) if the person concerned has made an application for leave to remain in accordance with regulations made under section 9.
[F4(3)Directions for the removal of a person may not be given under subsection (1)(c) unless the Secretary of State has given the person written notice of the intention to remove him.
(4)A notice under subsection (3) may not be given if—
(a)the person whose removal under subsection (1)(a) or (b) is the cause of the proposed directions under subsection (1)(c) has left the United Kingdom, and
(b)more than eight weeks have elapsed since that person’s departure.
(5)If a notice under subsection (3) is sent by first class post to a person’s last known address, that subsection shall be taken to be satisfied at the end of the second day after the day of posting.
(5A)Directions for the removal of a person under subsection (1)(c) cease to have effect if he ceases to belong to the family of the person whose removal under subsection (1)(a) or (b) is the cause of the directions under subsection (1)(c).]
(6)Directions under this section—
(a)may be given only to persons falling within a prescribed class;
(b)may impose any requirements of a prescribed kind.
(7)In relation to any such directions, paragraphs 10, 11, 16 to 18, 21 and 22 to 24 of Schedule 2 to the 1971 Act (administrative provisions as to control of entry), apply as they apply in relation to directions given under paragraph 8 of that Schedule.
[F5(8)When a person is notified that a decision has been made to remove him in accordance with this section, the notification invalidates any leave to enter or remain in the United Kingdom previously given to him.]
(9)The costs of complying with a direction given under this section (so far as reasonably incurred) must be met by the Secretary of State.
[F6(10)A person shall not be liable to removal from the United Kingdom under this section at a time when section 7(1)(b) of the Immigration Act 1971 (Commonwealth and Irish citizens ordinarily resident in United Kingdom) would prevent a decision to deport him.]

Question 70

s.78A NIAA 2002

Answer 70

78A Restriction on removal of children and their parents etc
(1) This section applies in a case where—
(a) a child is to be removed from or required to leave the United Kingdom, and
(b) an individual who—
(i) is a parent of the child or has care of the child, and
(ii) is living in a household in the United Kingdom with the child,
is also to be removed from or required to leave the United Kingdom (a “relevant parent or carer”).
(2) During the period of 28 days beginning with the day on which the relevant appeal rights are exhausted—
(a) the child may not be removed from or required to leave the United Kingdom; and
(b) a relevant parent or carer may not be removed from or required to leave the United Kingdom if, as a result, no relevant parent or carer would remain in the United Kingdom.
(3) The relevant appeal rights are exhausted at the time when—
(a) neither the child, nor any relevant parent or carer, could bring an appeal under section 82 (ignoring any possibility of an appeal out of time with permission), and
(b) no appeal brought by the child, or by any relevant parent or carer, is pending within the meaning of section 104.
(4) Nothing in this section prevents any of the following during the period of 28 days mentioned in subsection (2)—
(a) the giving of a direction for the removal of a person from the United Kingdom,
(b) the making of a deportation order in respect of a person, or
(c) the taking of any other interim or preparatory action.
(5) In this section—
“child” means a person who is aged under 18;
references to a person being removed from or required to leave the United Kingdom are to the person being removed or required to leave in accordance with a provision of the Immigration Acts.

Question 71

s.120 NIAA 2002

Answer 71

120 Requirement to state additional grounds for application etc
(1) Subsection (2) applies to a person (“P”) if—
(a) P has made a protection claim or a human rights claim,
(b) P has made an application to enter or remain in the United Kingdom, or
(c) a decision to deport or remove P has been or may be taken.
(2) The Secretary of State or an immigration officer may serve a notice on P requiring P to provide a statement setting out—
(a) P’s reasons for wishing to enter or remain in the United Kingdom,
(b) any grounds on which P should be permitted to enter or remain in the United Kingdom, and
(c) any grounds on which P should not be removed from or required to leave the United Kingdom.
(3) A statement under subsection (2) need not repeat reasons or grounds set out in—
(a) P’s protection or human rights claim,
(b) the application mentioned in subsection (1)(b), or
(c) an application to which the decision mentioned in subsection (1)(c) relates.
(4) Subsection (5) applies to a person (“P”) if P has previously been served with a notice under subsection (2) and—
(a) P requires leave to enter or remain in the United Kingdom but does not have it, or
(b) P has leave to enter or remain in the United Kingdom only by virtue of [section 3C of the Immigration Act 1971] 2 (continuation of leave pending decision or appeal).
(5) Where P’s circumstances have changed since the Secretary of State or an immigration officer was last made aware of them (whether in the application or claim mentioned in subsection (1) or in a statement under subsection (2) or this subsection) so that P has—
(a) additional reasons for wishing to enter or remain in the United Kingdom,
(b) additional grounds on which P should be permitted to enter or remain in the United Kingdom, or
(c) additional grounds on which P should not be removed from or required to leave the United Kingdom,
P must, as soon as reasonably practicable, provide a supplementary statement to the Secretary of State or an immigration officer setting out the new circumstances and the additional reasons or grounds.
(6) In this section—
“human rights claim” and “protection claim”have the same meanings as in Part 5;
references to “grounds” are to grounds on which an appeal under Part 5 may be brought (see section 84).

Question 72

para 28 Upper Tribunal Rules 2008

Answer 72

28. — Applications for permission to bring judicial review proceedings
    (1) A person seeking permission to bring judicial review proceedings before the Upper Tribunal under section 16 of the 2007 Act must make a written application to the Upper Tribunal for such permission.
    (2) Subject to paragraph (3), an application under paragraph (1) must be made promptly and, unless any other enactment specifies a shorter time limit, must be sent or delivered to the Upper Tribunal so that it is received no later than 3 months after the date of the decision [, action or omission] 1 to which the application relates.
    (3) An application for permission to bring judicial review proceedings challenging a decision of the First-tier Tribunal may be made later than the time required by paragraph (2) if it is made within 1 month after the date on which the First-tier Tribunal sent—
    (a) written reasons for the decision; or
    (b) notification that an application for the decision to be set aside has been unsuccessful, provided that that application was made in time.
    (4) The application must state—
    (a) the name and address of the applicant, the respondent and any other person whom the applicant considers to be an interested party;
    (b) the name and address of the applicant’s representative (if any);
    (c) an address where documents for the applicant may be sent or delivered;
    (d) details of the decision challenged (including the date, the full reference and the identity of the decision maker);
    (e) that the application is for permission to bring judicial review proceedings;
    (f) the outcome that the applicant is seeking; and
    (g) the facts and grounds on which the applicant relies.
    (5) If the application relates to proceedings in a court or tribunal, the application must name as an interested party each party to those proceedings who is not the applicant or a respondent.
    (6) The applicant must send with the application—
    (a) a copy of any written record of the decision in the applicant’s possession or control; and
    (b) copies of any other documents in the applicant’s possession or control on which the applicant intends to rely.
    (7) If the applicant provides the application to the Upper Tribunal later than the time required by paragraph (2) or (3) or by an extension of time allowed under rule 5(3)(a) (power to extend time)—
    (a) the application must include a request for an extension of time and the reason why the application was not provided in time; and
    (b) unless the Upper Tribunal extends time for the application under rule 5(3)(a) (power to extend time) the Upper Tribunal must not admit the application.
    (8) [Except where rule 28A(2)(a) (special provisions for [immigration judicial review] 3 proceedings) applies, when ] 2 the Upper Tribunal receives the application it must send a copy of the application and any accompanying documents to each person named in the application as a respondent or interested party.

Question 73

s.17 Children Act 1989

Answer 73

17.— Provision of services for children in need, their families and others.
(1) It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part)—
(a) to safeguard and promote the welfare of children within their area who are in need; and
(b) so far as is consistent with that duty, to promote the upbringing of such children by their families,
by providing a range and level of services appropriate to those children’s needs.
(2) For the purpose principally of facilitating the discharge of their general duty under this section, every local authority shall have the specific duties and powers set out in Part 1 of Schedule 2.
(3) Any service provided by an authority in the exercise of functions conferred on them by this section may be provided for the family of a particular child in need or for any member of his family, if it is provided with a view to safeguarding or promoting the child’s welfare.
(4) The [Secretary of State] 1 may by order amend any provision of Part I of Schedule 2 or add any further duty or power to those for the time being mentioned there.
(4A) Before determining what (if any) services to provide for a particular child in need in the exercise of functions conferred on them by this section, a local authority shall, so far as is reasonably practicable and consistent with the child’s welfare–
(a) ascertain the child’s wishes and feelings regarding the provision of those services; and
(b) give due consideration (having regard to his age and understanding) to such wishes and feelings of the child as they have been able to ascertain.
(5) Every local authority—
(a) shall facilitate the provision by others (including in particular voluntary organisations) of services which it is a function of the authority to provide by virtue of this section, or section 18, 20, 22A to 22C, 23B to 23D, 24A or 24B; and
(b) may make such arrangements as they see fit for any person to act on their behalf in the provision of any such service.
(6) The services provided by a local authority in the exercise of functions conferred on them by this section may include providing accommodation and giving assistance in kind or […] 15 in cash.
(7) Assistance may be unconditional or subject to conditions as to the repayment of the assistance or of its value (in whole or in part).
(8) Before giving any assistance or imposing any conditions, a local authority shall have regard to the means of the child concerned and of each of his parents.
(9) No person shall be liable to make any repayment of assistance or of its value at any time when he is in receipt [ of universal credit (except in such circumstances as may be prescribed),] 7 of income support under Part VII of the Social Security Contributions and Benefits Act 1992, of any element of child tax credit other than the family element, of working tax credit, of an income-based jobseeker’s allowance or of an income-related employment and support allowance.
(10) For the purposes of this Part a child shall be taken to be in need if—
(a) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part;
(b) his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or
(c) he is disabled,
and “family”, in relation to such a child, includes any person who has parental responsibility for the child and any other person with whom he has been living.
(11) For the purposes of this Part, a child is disabled if he is blind, deaf or dumb or suffers from mental disorder of any kind or is substantially and permanently handicapped by illness, injury or congenital deformity or such other disability as may be prescribed; and in this Part—
“development” means physical, intellectual, emotional, social or behavioural development; and
“health” means physical or mental health.
(12) The Treasury may by regulations prescribe circumstances in which a person is to be treated for the purposes of this Part (or for such of those purposes as are prescribed) as in receipt of any element of child tax credit other than the family element or of working tax credit.
[
(13) The duties imposed on a local authority by virtue of this section do not apply in relation to a child in the authority’s area who is being looked after by a local authority in Wales in accordance with Part 6 of the Social Services and Well-being (Wales) Act 2014.
] 13

Question 74

s.20 Children Act 1989

Answer 74

20.— Provision of accommodation for children: general.
(1) Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of—
(a) there being no person who has parental responsibility for him;
(b) his being lost or having been abandoned; or
(c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.
(2) Where a local authority provide accommodation under subsection (1) for a child who is ordinarily resident in the area of another local authority, that other local authority may take over the provision of accommodation for the child within—
(a) three months of being notified in writing that the child is being provided with accommodation; or
(b) such other longer period as may be prescribed [ in regulations made by the Secretary of State] 1 .
[
(2A) Where a local authority in Wales provide accommodation under section 76(1) of the Social Services and Well-being (Wales) Act 2014 (accommodation for children without parents or who are lost or abandoned etc.) for a child who is ordinarily resident in the area of a local authority in England, that local authority in England may take over the provision of accommodation for the child within—
(a) three months of being notified in writing that the child is being provided with accommodation; or
(b) such other longer period as may be prescribed in regulations made by the Secretary of State.
] 2
(3) Every local authority shall provide accommodation for any child in need within their area who has reached the age of sixteen and whose welfare the authority consider is likely to be seriously prejudiced if they do not provide him with accommodation.
(4) A local authority may provide accommodation for any child within their area (even though a person who has parental responsibility for him is able to provide him with accommodation) if they consider that to do so would safeguard or promote the child’s welfare.
(5) A local authority may provide accommodation for any person who has reached the age of sixteen but is under twenty-one in any community home which takes children who have reached the age of sixteen if they consider that to do so would safeguard or promote his welfare.
(6) Before providing accommodation under this section, a local authority shall, so far as is reasonably practicable and consistent with the child’s welfare—
(a) ascertain the child’s wishes [ and feelings] 3 regarding the provision of accommodation; and
(b) give due consideration (having regard to his age and understanding) to such wishes [ and feelings] 3 of the child as they have been able to ascertain.
(7) A local authority may not provide accommodation under this section for any child if any person who—
(a) has parental responsibility for him; and
(b) is willing and able to—
(i) provide accommodation for him; or
(ii) arrange for accommodation to be provided for him,
objects.
(8) Any person who has parental responsibility for a child may at any time remove the child from accommodation provided by or on behalf of the local authority under this section.
(9) Subsections (7) and (8) do not apply while any person—
[
(a) who is named in a child arrangements order as a person with whom the child is to live;
] 4
[
(aa) who is a special guardian of the child; or
] 5
(b) who has care of the child by virtue of an order made in the exercise of the High Court’s inherent jurisdiction with respect to children,
agrees to the child being looked after in accommodation provided by or on behalf of the local authority.
(10) Where there is more than one such person as is mentioned in subsection (9), all of them must agree.
(11) Subsections (7) and (8) do not apply where a child who has reached the age of sixteen agrees to being provided with accommodation under this section.

Question 75

s.2 AITCA 2004

Answer 75

2 Entering United Kingdom without passport, &c.
(1) A person commits an offence if at a leave or asylum interview he does not have with him an immigration document which–
(a) is in force, and
(b) satisfactorily establishes his identity and nationality or citizenship.
(2) A person commits an offence if at a leave or asylum interview he does not have with him, in respect of any dependent child with whom he claims to be travelling or living, an immigration document which–
(a) is in force, and
(b) satisfactorily establishes the child’s identity and nationality or citizenship.
(3) But a person does not commit an offence under subsection (1) or (2) if–
(a) the interview referred to in that subsection takes place after the person has entered the United Kingdom, and
(b) within the period of three days beginning with the date of the interview the person provides to an immigration officer or to the Secretary of State a document of the kind referred to in that subsection.
(4) It is a defence for a person charged with an offence under subsection (1)–
(a) to prove that he is an EEA national,
(b) to prove that he is a member of the family of an EEA national and that he is exercising a right under the [EU] 1 Treaties in respect of entry to or residence in the United Kingdom,
(c) to prove that he has a reasonable excuse for not being in possession of a document of the kind specified in subsection (1),
(d) to produce a false immigration document and to prove that he used that document as an immigration document for all purposes in connection with his journey to the United Kingdom, or
(e) to prove that he travelled to the United Kingdom without, at any stage since he set out on the journey, having possession of an immigration document.
(5) It is a defence for a person charged with an offence under subsection (2) in respect of a child–
(a) to prove that the child is an EEA national,
(b) to prove that the child is a member of the family of an EEA national and that the child is exercising a right under the [EU] 1 Treaties in respect of entry to or residence in the United Kingdom,
(c) to prove that the person has a reasonable excuse for not being in possession of a document of the kind specified in subsection (2),
(d) to produce a false immigration document and to prove that it was used as an immigration document for all purposes in connection with the child’s journey to the United Kingdom, or
(e) to prove that he travelled to the United Kingdom with the child without, at any stage since he set out on the journey, having possession of an immigration document in respect of the child.
(6) Where the charge for an offence under subsection (1) or (2) relates to an interview which takes place after the defendant has entered the United Kingdom–
(a) subsections (4)(c) and (5)(c) shall not apply, but
(b) it is a defence for the defendant to prove that he has a reasonable excuse for not providing a document in accordance with subsection (3).
(7) For the purposes of subsections (4) to (6)–
(a) the fact that a document was deliberately destroyed or disposed of is not a reasonable excuse for not being in possession of it or for not providing it in accordance with subsection (3), unless it is shown that the destruction or disposal was–
(i) for a reasonable cause, or
(ii) beyond the control of the person charged with the offence, and
(b) in paragraph (a)(i) “reasonable cause”does not include the purpose of–
(i) delaying the handling or resolution of a claim or application or the taking of a decision,
(ii) increasing the chances of success of a claim or application, or
(iii) complying with instructions or advice given by a person who offers advice about, or facilitates, immigration into the United Kingdom, unless in the circumstances of the case it is unreasonable to expect non-compliance with the instructions or advice.
(8) A person shall be presumed for the purposes of this section not to have a document with him if he fails to produce it to an immigration officer or official of the Secretary of State on request.
(9) A person 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 twelve months, to a fine not exceeding the statutory maximum or to both.
(10) If an immigration officer reasonably suspects that a person has committed an offence under this section he may arrest the person without warrant.
(11) An offence under this section shall be treated as–
(a) a relevant offence for the purposes of sections 28B and 28D of the Immigration Act 1971 (c. 77) (search, entry and arrest), and
(b) an offence under Part III of that Act (criminal proceedings) for the purposes of sections 28(4), 28E, 28G and 28H (search after arrest, &c.) of that Act.
(12) In this section–
“EEA national” means a national of 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),
“immigration document” means–
(a) a passport, and
(b) a document which relates to a national of a State other than the United Kingdom and which is designed to serve the same purpose as a passport, and
“leave or asylum interview” means an interview with an immigration officer or an official of the Secretary of State at which a person–
(a) seeks leave to enter or remain in the United Kingdom, or
(b) claims that to remove him from or require him to leave the United Kingdom would breach the United Kingdom’s obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 (c. 42) as being incompatible with his Convention rights.
(13) For the purposes of this section–
(a) a document which purports to be, or is designed to look like, an immigration document, is a false immigration document, and
(b) an immigration document is a false immigration document if and in so far as it is used–
(i) outside the period for which it is expressed to be valid,
(ii) contrary to provision for its use made by the person issuing it, or
(iii) by or in respect of a person other than the person to or for whom it was issued.
(14) Section 11 of the Immigration Act 1971 (c. 77) shall have effect for the purpose of the construction of a reference in this section to entering the United Kingdom.
(15) In so far as this section extends to England and Wales, subsection (9)(b) shall, until the commencement of section 154 of the Criminal Justice Act 2003 (c. 44) (increased limit on magistrates’ power of imprisonment), have effect as if the reference to twelve months were a reference to six months.
(16) In so far as this section extends to Scotland, subsection (9)(b) shall have effect as if the reference to twelve months were a reference to six months.
(17) In so far as this section extends to Northern Ireland, subsection (9)(b) shall have effect as if the reference to twelve months were a reference to six months.
] 3

Question 76

s.4 AITCA 2004

Answer 76

Trafficking people for exploitation - no longer in force?

Question 77

s.24 IA 1971

Answer 77

24.— Illegal entry and similar offences.
(1) A person who is not [a British citizen] 1 shall be guilty of an offence punishable on summary conviction with a fine of not more than [ [level 5] 3 on the standard scale ] 2 or with imprisonment for not more than six months, or with both, in any of the following cases:—
(a) if contrary to this Act he knowingly enters the United Kingdom in breach of a deportation order or without leave;
[…] 4
(b) if, having only a limited leave to enter or remain in the United Kingdom, he knowingly either—
(i) remains beyond the time limited by the leave; or
(ii) fails to observe a condition of the leave;
(c) if, having lawfully entered the United Kingdom without leave by virtue of section 8(1) above, he remains without leave beyond the time allowed by section 8(1);
(d) if, without reasonable excuse, he fails to comply with any requirement imposed on him under Schedule 2 to this Act to report to a medical officer of health, or to attend, or submit to a test or examination, as required by such an officer;
(e) if, without reasonable excuse, he fails to observe any restriction imposed on him under Schedule 2 or 3 to this Act as to residence [, as to his employment or occupation] 5 or as to reporting to the police [, to an immigration officer or to the Secretary of State] 6 ;
(f) if he disembarks in the United Kingdom from a ship or aircraft after being placed on board under Schedule 2 or 3 to this Act with a view to his removal from the United Kingdom;
(g) if he embarks in contravention of a restriction imposed by or under an Order in Council under section 3(7) of this Act.
[
(1A) A person commits an offence under subsection (1)(b)(i) above on the day when he first knows that the time limited by his leave has expired and continues to commit it throughout any period during which he is in the United Kingdom thereafter; but a person shall not be prosecuted under that provision more than once in respect of the same limited leave.
] 7
[…] 4
(3) The extended time limit for prosecutions which is provided for by section 28 below shall apply to offences under [subsection (1)(a) and (c)] 8 above.
(4) In proceedings for an offence against subsection (1)(a) above of entering the United Kingdom without leave,—
(a) any stamp purporting to have been imprinted on a passport or other travel document by an immigration officer on a particular date for the purpose of giving leave shall be presumed to have been duly so imprinted, unless the contrary is proved;
(b) proof that a person had leave to enter the United Kingdom shall lie on the defence if, but only if, he is shown to have entered within six months before the date when the proceedings were commenced.

Question 78

s.24A IA 1971

Answer 78

24A.— Deception.
(1) A person who is not a British citizen is guilty of an offence if, by means which include deception by him—
(a) he obtains or seeks to obtain leave to enter or remain in the United Kingdom; or
(b) he secures or seeks to secure the avoidance, postponement or revocation of enforcement action against him.
(2) “Enforcement action”, in relation to a person, means—
(a) the giving of directions for his removal from the United Kingdom (“directions”) under Schedule 2 to this Act or section 10 of the Immigration and Asylum Act 1999;
(b) the making of a deportation order against him under section 5 of this Act; or
(c) his removal from the United Kingdom in consequence of directions or a deportation order.
(3) A person guilty of an offence under this section is liable—
(a) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both; or
(b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine, or to both.
[…] 2
] 1

Question 79

s.24B IA 1971

Answer 79

24B Illegal working
(1) A person (“P”) who is subject to immigration control commits an offence if—
(a) P works at a time when P is disqualified from working by reason of P’s immigration status, and
(b) at that time P knows or has reasonable cause to believe that P is disqualified from working by reason of P’s immigration status.
(2) For the purposes of subsection (1) a person is disqualified from working by reason of the person’s immigration status if—
(a) the person has not been granted leave to enter or remain in the United Kingdom, or
(b) the person’s leave to enter or remain in the United Kingdom—
(i) is invalid,
(ii) has ceased to have effect (whether by reason of curtailment, revocation, cancellation, passage of time or otherwise), or
(iii) is subject to a condition preventing the person from doing work of that kind.
(3) A person who is guilty of an offence under subsection (1) is liable on summary conviction—
(a) in England and Wales, to imprisonment for a term not exceeding 51 weeks or a fine, or both,
(b) in Scotland or Northern Ireland, to imprisonment for a term not exceeding 6 months or a fine not exceeding level 5 on the standard scale, or both.
(4) In relation to an offence committed before section 281(5) of the Criminal Justice Act 2003 comes into force, the reference in subsection (3)(a) to 51 weeks is to be read as a reference to 6 months.
(5) If a person is convicted of an offence under subsection (1) in England and Wales, the prosecutor must consider whether to ask the court to commit the person to the Crown Court under section 70 of the Proceeds of Crime Act 2002 (committal with view to confiscation order being considered).
(6) If a person is convicted of an offence under subsection (1) in Scotland, the prosecutor must consider whether to ask the court to act under section 92 of the Proceeds of Crime Act 2002 (making of confiscation order).
(7) If a person is convicted of an offence under subsection (1) in Northern Ireland, the prosecutor must consider whether to ask the court to commit the person to the Crown Court under section 218 of the Proceeds of Crime Act 2002 (committal with view to confiscation order being considered).
(8) The reference in subsection (1) to a person who is subject to immigration control is to a person who under this Act requires leave to enter or remain in the United Kingdom.
(9) Where a person is on immigration bail within the meaning of Part 1 of Schedule 10 to the Immigration Act 2016—
(a) the person is to be treated for the purposes of subsection (2) as if the person had been granted leave to enter the United Kingdom, but
(b) any condition as to the person’s work in the United Kingdom to which the person’s immigration bail is subject is to be treated for those purposes as a condition of leave.
(10) The reference in subsection (1) to a person working is to that person working—
(a) under a contract of employment,
(b) under a contract of apprenticeship,
(c) under a contract personally to do work,
(d) under or for the purposes of a contract for services,
(e) for a purpose related to a contract to sell goods,
(f) as a constable,
(g) in the course of Crown employment,
(h) as a relevant member of the House of Commons staff, or
(i) as a relevant member of the House of Lords staff.
(11) In subsection (10)—
“contract to sell goods” means a contract by which a person acting in the course of a trade, business, craft or profession transfers or agrees to transfer the property in goods to another person (and for this purpose “goods” means any tangible moveable items);
“Crown employment”—
(a) in relation to England and Wales and Scotland, has the meaning given by section 191(3) of the Employment Rights Act 1996;
(b) in relation to Northern Ireland, has the meaning given by Article 236(3) of the Employment Rights (Northern Ireland) Order 1996 (SI 1996/1919 (NI 16));
“relevant member of the House of Commons staff”has the meaning given by section 195(5) of the Employment Rights Act 1996;
“relevant member of the House of Lords staff”has the meaning given by section 194(6) of the Employment Rights Act 1996.
(12) Subsection (1) does not apply to—
(a) service as a member of the naval, military or air forces of the Crown, or
(b) employment by an association established for the purposes of Part 11 of the Reserve Forces Act 1996.
(13) In this section “contract” means a contract whether express or implied and, if express, whether oral or in writing.
] 1

Question 80

s.4 IAA 1999

Answer 80

4.
[
Accommodation.
(1) The Secretary of State may provide, or arrange for the provision of, facilities for the accommodation of persons—
(a) temporarily admitted to the United Kingdom under paragraph 21 of Schedule 2 to the 1971 Act;
(b) released from detention under that paragraph; or
(c) released on bail from detention under any provision of the Immigration Acts.
(2) The Secretary of State may provide, or arrange for the provision of, facilities for the accommodation of a person if—
(a) he was (but is no longer) an asylum-seeker, and
(b) his claim for asylum was rejected.
(3) The Secretary of State may provide, or arrange for the provision of, facilities for the accommodation of a dependant of a person for whom facilities may be provided under subsection (2).
(4) The following expressions have the same meaning in this section as in Part VI of this Act (as defined in section 94)—
(a) asylum-seeker,
(b) claim for asylum, and
(c) dependant.
] 1
[
(5) The Secretary of State may make regulations specifying criteria to be used in determining–
(a) whether or not to provide accommodation, or arrange for the provision of accommodation, for a person under this section;
(b) whether or not to continue to provide accommodation, or arrange for the provision of accommodation, for a person under this section.
(6) The regulations may, in particular–
(a) provide for the continuation of the provision of accommodation for a person to be conditional upon his performance of or participation in community activities in accordance with arrangements made by the Secretary of State;
(b) provide for the continuation of the provision of accommodation to be subject to other conditions;
(c) provide for the provision of accommodation (or the continuation of the provision of accommodation) to be a matter for the Secretary of State’s discretion to a specified extent or in a specified class of case.
(7) For the purposes of subsection (6)(a)–
(a) “community activities” means activities that appear to the Secretary of State to be beneficial to the public or a section of the public, and
(b) the Secretary of State may, in particular–
(i) appoint one person to supervise or manage the performance of or participation in activities by another person;
(ii) enter into a contract (with a local authority or any other person) for the provision of services by way of making arrangements for community activities in accordance with this section;
(iii) pay, or arrange for the payment of, allowances to a person performing or participating in community activities in accordance with arrangements under this section.
(8) Regulations by virtue of subsection (6)(a) may, in particular, provide for a condition requiring the performance of or participation in community activities to apply to a person only if the Secretary of State has made arrangements for community activities in an area that includes the place where accommodation is provided for the person.
(9) A local authority or other person may undertake to manage or participate in arrangements for community activities in accordance with this section.
] 2
[
(10) The Secretary of State may make regulations permitting a person who is provided with accommodation under this section to be supplied also with services or facilities of a specified kind.
(11) Regulations under subsection (10)–
(a) may, in particular, permit a person to be supplied with a voucher which may be exchanged for goods or services,
(b) may not permit a person to be supplied with money,
(c) may restrict the extent or value of services or facilities to be provided, and
(d) may confer a discretion.
] 3

Question 81

s.95 IAA 1999

Answer 81

95.— Persons for whom support may be provided.
(1) The Secretary of State may provide, or arrange for the provision of, support for—
(a) asylum-seekers, or
(b) dependants of asylum-seekers,
who appear to the Secretary of State to be destitute or to be likely to become destitute within such period as may be prescribed.
(2) In prescribed circumstances, a person who would otherwise fall within subsection (1) is excluded.
(3) For the purposes of this section, a person is destitute if—
(a) he does not have adequate accommodation or any means of obtaining it (whether or not his other essential living needs are met); or
(b) he has adequate accommodation or the means of obtaining it, but cannot meet his other essential living needs.
(4) If a person has dependants, subsection (3) is to be read as if the references to him were references to him and his dependants taken together.
(5) In determining, for the purposes of this section, whether a person’s accommodation is adequate, the Secretary of State—
(a) must have regard to such matters as may be prescribed for the purposes of this paragraph; but
(b) may not have regard to such matters as may be prescribed for the purposes of this paragraph or to any of the matters mentioned in subsection (6).
(6) Those matters are—
(a) the fact that the person concerned has no enforceable right to occupy the accommodation;
(b) the fact that he shares the accommodation, or any part of the accommodation, with one or more other persons;
(c) the fact that the accommodation is temporary;
(d) the location of the accommodation.
(7) In determining, for the purposes of this section, whether a person’s other essential living needs are met, the Secretary of State—
(a) must have regard to such matters as may be prescribed for the purposes of this paragraph; but
(b) may not have regard to such matters as may be prescribed for the purposes of this paragraph.
(8) The Secretary of State may by regulations provide that items or expenses of such a description as may be prescribed are, or are not, to be treated as being an essential living need of a person for the purposes of this Part.
(9) Support may be provided subject to conditions.
[
(9A) A condition imposed under subsection (9) may, in particular, relate to—
(a) any matter relating to the use of the support provided, or
(b) compliance with a restriction imposed under paragraph 21 of Schedule 2 to the 1971 Act (temporary admission or release from detention) or paragraph 2 or 5 of Schedule 3 to that Act (restriction pending deportation).
] 1
(10) The conditions must be set out in writing.
(11) A copy of the conditions must be given to the supported person.
(12) Schedule 8 gives the Secretary of State power to make regulations supplementing this section.
(13) Schedule 9 makes temporary provision for support in the period before the coming into force of this section.

Question 82

s.98 IAA 1999

Answer 82

98.— Temporary support.
(1) The Secretary of State may provide, or arrange for the provision of, support for—
(a) asylum-seekers, or
(b) dependants of asylum-seekers,
who it appears to the Secretary of State may be destitute.
(2) Support may be provided under this section only until the Secretary of State is able to determine whether support may be provided under section 95.
(3) Subsections (2) to (11) of section 95 apply for the purposes of this section as they apply for the purposes of that section.

Question 83

s.122 IAA 1999

Answer 83

122. — Support for children.
     (1) In this section “eligible person” means a person who appears to the Secretary of State to be a person for whom support may be provided under section 95.
     (2) Subsections (3) and (4) apply if an application for support under section 95 has been made by an eligible person whose household includes a dependant under the age of 18 (“the child”).
     (3) If it appears to the Secretary of State that adequate accommodation is not being provided for the child, he must exercise his powers under section 95 by offering, and if his offer is accepted by providing or arranging for the provision of, adequate accommodation for the child as part of the eligible person’s household.
     (4) If it appears to the Secretary of State that essential living needs of the child are not being met, he must exercise his powers under section 95 by offering, and if his offer is accepted by providing or arranging for the provision of, essential living needs for the child as part of the eligible person’s household.
     (5) No local authority may provide assistance under any of the child welfare provisions in respect of a dependant under the age of 18, or any member of his family, at any time when—
     (a) the Secretary of State is complying with this section in relation to him; or
     (b) there are reasonable grounds for believing that—
     (i) the person concerned is a person for whom support may be provided under section 95; and
     (ii) the Secretary of State would be required to comply with this section if that person had made an application under section 95.
     (6) “Assistance” means the provision of accommodation or of any essential living needs.
     (7) “The child welfare provisions” means —
     (a) section 17 of the Children Act 1989 (local authority support for children and their families);
     (b) section 22 of the Children (Scotland) Act 1995 (equivalent provision for Scotland); and
     (c) Article 18 of the Children (Northern Ireland) Order 1995 (equivalent provision for Northern Ireland).
     (8) Subsection (9) applies if accommodation provided in the discharge of the duty imposed by subsection (3) has been withdrawn.
     (9) Only the relevant authority may provide assistance under any of the child welfare provisions in respect of the child concerned.
     (10) “Relevant authority” means —
     (a) in relation to Northern Ireland, the authority within whose area the withdrawn accommodation was provided;
     (b) in any other case, the local authority within whose area the withdrawn accommodation was provided.
     (11) In such circumstances as may be prescribed, subsection (5) does not apply.