Section 38: Immigration Services Commissioner: power of entry
173.Section 38(1) inserts a new section 92A in the Immigration and Asylum Act 1999. It gives the Commissioner a power, subject to obtaining a warrant, to enter and search premises (including a dwelling) where there are reasonable grounds for suspecting that there is material likely to be of substantial value to the investigation of the offence under section 91 of the 1999 Act of providing immigration services or advice when unqualified to do so. The list of those qualified to provide immigration advice is set out in section 84 of the 1999 Act.
174.Subsection (1) enables a justice of the peace to issue a warrant authorising the Commissioner to enter and search premises.
175.Subsection (2) provides that warrants can only be issued if there are reasonable grounds for believing that an offence under section 91 is being committed and that there is material on the premises which is of substantial value to the investigation of the offence.
176.Subsection (3) sets out other conditions. Any one of those conditions must be satisfied before a warrant can be issued. Those conditions are: where it is impracticable to communicate with a person entitled to grant entry or access to the premises; where entry to the premises will be prevented unless a warrant is produced; where the purpose of the search may be seriously prejudiced unless immediate entry on arrival at the premises is secured.
177.Subsection (4) enables the Commissioner to retain material he has seized.
178.Subsection (5) makes it an offence for anyone to obstruct the Commissioner in exercising the warrant.
179.Subsection (6) sets the penalty for obstructing the Commissioner, following a summary conviction, as imprisonment for up to six months or a fine not exceeding level 5 on the standard scale, or both.
180.Subsection (7) clarifies the following references in the section. A reference to the Commissioner includes a reference to a member of his staff authorised in writing by him. A reference to premises includes a reference to premises used wholly or partly as a dwelling. A reference to material includes material subject to legal privilege, and material which would not be admissible as evidence at a trial.
181.Subsections (8) and (9) set out how the provisions of the new section 92A are to be applied in Scotland and Northern Ireland.
182.Section 38(2) amends paragraph 7 of Schedule 5 to the Immigration and Asylum Act 1999. The effect is to extend the Commissioner’s power to enter premises and require the provision of documents and information. The existing power applies to advisers registered under the regulatory scheme. Section 38(2) extends the application of the power to include advisers certified as exempt by the Commissioner, under section 84(4)(a) of the 1999 Act.
