The Immigration (Biometric Registration) (Amendment) Regulations 2015

This draft statutory instrument supersedes the draft Immigration (Biometric Registration) (Amendment) Regulations 2015 which were laid before Parliament and published on 17th December 2014 (ISBN 978-0-11-112577-9) and subsequently withdrawn on 19th January 2015. It is being issued free of charge to all known recipients of that draft statutory instrument.

Draft Regulations laid before Parliament under section 6(6)(e) of the UK Borders Act 2007, for approval by resolution of each House of Parliament.

Draft Statutory Instruments

2015 No.

Immigration

The Immigration (Biometric Registration) (Amendment) Regulations 2015

Made

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Coming into force in accordance with regulation 1(1)

The Secretary of State makes the following Regulations in exercise of the powers conferred by sections 5, 6(6)(a), (b) and (c), 7, 8 and 15(1)(g) of the UK Borders Act 2007(1).

In accordance with section 6(6)(e) of that Act, a draft of these Regulations was laid before and approved by a resolution of each House of Parliament.

Citation, commencement and interpretation

1.—(1) These Regulations may be cited as the Immigration (Biometric Registration) (Amendment) Regulations 2015 and come into force at the end of the period of 21 days beginning with the day on which they are made.

(2) In these Regulations, “the 2008 Regulations” means the Immigration (Biometric Registration) Regulations 2008(2).

Amendment of the 2008 Regulations

2.  The 2008 Regulations are amended as follows.

3.  In regulation 2 insert in the appropriate places—

““biometric information” means photographs or fingerprints provided under regulation 5;”; and

““leave to enter” means limited or indefinite leave to enter the United Kingdom given in accordance with the provisions of the Immigration Act 1971 or the immigration rules;”.

4.  In regulation 3 (requirement to apply for a biometric immigration document)—

(a) in paragraph (1) for “Subject to paragraph (6), a” substitute “A”;

(b) in paragraph (2)—

(i) for “to remain”, in each place where it appears, substitute “to enter or remain”; and

(ii) in sub-paragraph (a) omit from “for a period” until the end of that sub-paragraph;

(c) in paragraph (3) for “to remain”, in each place where it appears, substitute “to enter or remain”; and

(d) omit paragraph (6).

5.  After regulation 3 (requirement to apply for a biometric immigration document) insert—

“3A.— (1) A person who is subject to immigration control and satisfies the conditions in paragraph (2) must apply for the issue of a biometric immigration document.

(2) The conditions are—

(a) that the person makes an application—

(i) for entry clearance, which, by virtue of provision made under section 3A(3) of the Immigration Act 1971(3), has effect as leave to enter the United Kingdom for a limited period which exceeds 6 months; or

(ii) for entry clearance, which, by virtue of provision made under section 3A(3) of the Immigration Act 1971, has effect as indefinite leave to enter the United Kingdom; or

(iii) as the dependant of a person who is making an application in accordance with paragraph (i) or (ii); and

(b) the person specifies in that application that they will enrol their biometric information in a country or territory listed in the Schedule to these Regulations.

(3) Where a person is required to apply for a biometric immigration document, that application must be made on the form or in the manner specified for that purpose (if one is specified) in the immigration rules.”.

6.  In regulation 5(1) (power for an authorised person to require a person to provide biometric information) after “regulation 3,” insert “or regulation 3A”.

7.  In regulation 6(1)(a) (power for the Secretary of State to use and retain existing biometric information) after “regulation 3” insert “, or regulation 3A”.

8.  In regulation 7(2)(c) (provision in relation to persons under the age of sixteen) for “8(1)(d)” substitute “8(1)(a) or (c)”.

9.  For regulation 8 (process by which a person’s fingerprints and photograph may be obtained and recorded) substitute—

“Process by which an individual’s fingerprints and photograph may be obtained and recorded

8.— (1) An authorised person who requires an individual to provide a record of the individual’s fingerprints or a photograph of the individual’s face under regulation 5 may do any one or more of the following—

(a) require the individual to make an appointment before a specified date, which the individual must attend, to enable a record of the individual’s fingerprints or a photograph of the individual’s face to be taken by an authorised person or by a person acting on behalf of an authorised person;

(b) specify the date, time and place for the appointment;

(c) require the individual to attend premises before a specified date to enable a record of the individual’s fingerprints or a photograph of the individual’s face to be taken by an authorised person or by a person acting on behalf of an authorised person; and

(d) specify any documents which the individual must bring to the appointment or premises, or action which the individual must take to confirm the individual’s identity.

(2) An authorised person may require a record of fingerprints or photograph to be of a particular specification.

(3) Where an authorised person requires an individual to submit to any requirement in accordance with paragraph (1), the individual must submit to it.”.

10.  For regulations 9 to 12 (use and retention of biometric information) substitute—

“Use and retention of biometric information

9.— (1) Biometric information provided in accordance with these Regulations may be retained only if the Secretary of State thinks that it is necessary to retain it for use in connection with—

(a) the exercise of a function by virtue of the Immigration Acts; or

(b) the exercise of a function in relation to nationality.

(2) Biometric information retained by virtue of paragraph (1) may also be used—

(a) in connection with the prevention, investigation or prosecution of an offence;

(b) for a purpose which appears to the Secretary of State to be required in order to protect national security;

(c) in connection with identifying persons who have died, or are suffering from illness or injury;

(d) for the purpose of ascertaining whether a person has acted unlawfully, or has obtained or sought anything to which the person is not legally entitled; and

(e) in connection with the exercise of a function concerning the entitlement of a person who is not a national of an EEA state or Switzerland to enter or remain in the United Kingdom by virtue of an enforceable EU right or of any provision made under section 2(2) of the European Communities Act 1972(4).

Destruction of biometric information

10.— (1) The Secretary of State must take all reasonable steps to ensure that biometric information held by the Secretary of State by virtue of these Regulations, including any copies, is destroyed if the Secretary of State—

(a) no longer thinks that it is necessary to retain the information for use as mentioned in regulation 9(1); or

(b) subject to the exception in paragraph (2), is satisfied that the person to whom the information relates is a British citizen, or a Commonwealth citizen who has a right of abode in the United Kingdom as a result of section 2(1)(b) of the Immigration Act 1971.

(2) The exception is that photographs of a person who is registered or naturalised as a British citizen may be retained until the person is issued with a United Kingdom passport describing the person as a British citizen.

Retention of fingerprints

11.— (1) Save where regulation 10 applies and subject to paragraphs (2) and (3), the Secretary of State must take all reasonable steps to ensure that any record of a person’s fingerprints held by the Secretary of State by virtue of these Regulations, including any copies, is destroyed at the end of the period of ten years beginning with the date on which the fingerprints were provided.

(2) But fingerprints can be held beyond that period if they are—

(a) the fingerprints of a person who is, or at any time has been, subject to a deportation order, exclusion order or decision to exclude;

(b) the fingerprints of a person who can be, or at any time could have been, refused entry clearance or leave to enter for a period specified in the immigration rules because of a previous breach of the United Kingdom’s immigration laws;

(c) fingerprints that the Secretary of State deems it necessary for national security reasons to retain for use in connection with one of the functions specified in regulation 9(1);

(d) the fingerprints of a person with indefinite leave to enter or remain in the United Kingdom;

(e) the fingerprints of a person whose indefinite leave to enter or remain in the United Kingdom lapses, is revoked or is cancelled, in which case they must be destroyed by the Secretary of State at the end of ten years beginning with the date of the lapse, revocation or cancellation (as the case may be); or

(f) the fingerprints of a person who—

(i) is not a national of an EEA state or Switzerland; and

(ii) is the holder of a document which recognises the right of permanent residence in the United Kingdom by virtue of an enforceable EU right or any provision made under section 2(2) of the European Communities Act 1972,

in which case they must be destroyed by the Secretary of State at the end of ten years beginning with the date on which the holder ceased to enjoy the right of permanent residence.

(3) The Secretary of State is only required to take steps to destroy, pursuant to paragraph (2)(e) or (f), the fingerprints of a person whose leave has lapsed or who no longer enjoys the right of permanent residence on the application, supported by evidence to the satisfaction of the Secretary of State, of that person.

(4) In paragraphs (2)(f)(ii) and (3), “the right of permanent residence” has the same meaning as in Article 16 of Council Directive 2004/38/EC(5).

Destruction etc. of electronic data

12.— (1) The Secretary of State must take all reasonable steps to ensure—

(a) that data held in electronic form which relates to biometric information which has to be destroyed by virtue of these Regulations is destroyed or erased; or

(b) that access to such data is blocked.

(2) A person whose biometric information has to be destroyed by virtue of these Regulations is entitled, on written request, to a certificate issued by the Secretary of State to the effect that the Secretary of State has taken the steps required by paragraph (1).

(3) A certificate issued under paragraph (2) must be issued within the period of 3 months beginning with the date on which the request for it is received by the Secretary of State.

Biometric information: retention under another power

12A.   The requirements in these Regulations to destroy biometric information or data do not apply if and in so far as the information or data is retained in accordance with and for the purposes of another power.”.

11.  In regulation 13 (issue of a biometric immigration document)—

(a) in paragraph (1)—

(i) for “to remain”, in each place where it appears, substitute “to enter or remain”;

(ii) after “biometric immigration document” insert “, known as a biometric residence permit,”; and

(iii) in sub-paragraph (c) after “regulation 3(2)(c), (d) or (g)” insert “where the document indicated that the person has leave to enter or remain in the United Kingdom for a total period in excess of 6 months or for an indefinite period”;

(b) in paragraphs (2) and (3) after “document” insert “issued under this regulation”;

(c) at the end of paragraph (4)(b) omit “or”;

(d) at the end of paragraph (4)(c) insert “or”; and

(e) after paragraph (4)(c) insert—

“(d) the expiry date printed on the document.”.

12.  After regulation 13 (issue of a biometric immigration document) insert—

“13A.— (1) The Secretary of State may issue a biometric immigration document, known as a biometric residence permit, to a person who has applied in accordance with regulation 3A and has been granted—

(a) entry clearance, which, by virtue of provision made under section 3A(3) of the Immigration Act 1971, has effect as leave to enter the United Kingdom for a limited period which exceeds 6 months; or

(b) entry clearance, which, by virtue of provision made under section 3A(3) of the Immigration Act 1971, has effect as indefinite leave to enter the United Kingdom.

(2) Where an entry clearance is granted under paragraph (1) and the entry clearance officer issues a short term biometric entry clearance, the entry clearance officer must issue a written decision informing the applicant of the period of leave that their biometric immigration document will evidence and the process by which the applicant must obtain that document.

(3) A successful applicant who travels to the United Kingdom must obtain their biometric immigration document within a period, and by a process, specified in the applicant’s written decision (issued under paragraph (2)).

(4) A biometric immigration document issued under this regulation begins to have effect on the date of issue.

(5) A biometric immigration document issued under this regulation ceases to have effect on one of the dates specified in paragraph (6), whichever date occurs earliest.

(6) The specified dates are—

(a) the date that the person’s leave to enter or remain ceases to have effect, including where the leave is varied, cancelled or invalidated, or is to lapse;

(b) in the case of a biometric immigration document which was issued to a person aged sixteen or over, the date after the expiry of ten years beginning with the date of issue;

(c) in the case of a biometric immigration document which was issued to a person aged under sixteen, the date after the expiry of five years beginning with the date of issue; or

(d) the expiry date printed on the document.

(7) In this regulation—

(a) “entry clearance officer” means a person responsible for the grant or refusal of entry clearance; and

(b) “short term biometric entry clearance” means an entry clearance document which—

(i) is issued to a person who has made a successful application for a biometric immigration document from outside the United Kingdom, in order that the person may travel to the United Kingdom to obtain that biometric immigration document; and

(ii) has a period of validity ending before the expiry of the period of leave that the holder’s biometric immigration document will evidence.

Issue of a short term biometric immigration document

13B.— (1) The Secretary of State may issue a short term biometric immigration document, known as a short stay permit, to a person who has applied in accordance with regulation 3, provided the Secretary of State has decided to—

(a) grant the person limited leave to enter or remain in the United Kingdom for a total period of 6 months or less; or

(b) issue a new or replacement document to a person following an application mentioned in regulation 3(2)(c), (d) or (g) where the document indicated that the person had been granted leave to enter or remain in the United Kingdom for a total period of 6 months or less.

(2) A short term biometric immigration document issued under this regulation begins to have effect on the date of issue.

(3) A short term biometric immigration document issued under this regulation ceases to have effect on one of the dates specified in paragraph (4), whichever date occurs earlier.

(4) The specified dates are—

(a) the date that the person’s leave to enter or remain ceases to have effect, including where the leave is varied, cancelled or invalidated, or is to lapse; or

(b) the expiry date printed on the document.”.

13.  In regulation 15(1) (content of a biometric immigration document)—

(a) for sub-paragraph (h) substitute—

“(h) the period for which the holder has leave to enter or remain;”;

(b) for sub-paragraph (i) substitute–

“(i) the class of leave to enter or remain which the holder has;”;

(c) in sub-paragraph (j) before “remain” insert “enter or”; and

(d) after subparagraph (s) insert—

“(t) the holder’s national insurance number; and

(u) the holder’s chargeable status for NHS treatment.”.

14.  In regulation 16(1) (surrender of a biometric immigration document)—

(a) in sub-paragraph (e) before “remain” insert “enter or”; and

(b) in sub-paragraph (g) after “13(3)” insert “,13A(5) or 13B(3)”.

15.  In regulation 17 (cancellation of a biometric immigration document)—

(a) at the end of sub-paragraph (h) omit “or”;

(b) at the end of sub-paragraph (i) insert “or”; and

(c) after sub-paragraph (i) insert—

“(j) a person has failed to collect the document within the period or by the process specified in the written decision issued under regulation 13A(2).”.

16.  In regulation 19(1) (requirement to apply for a replacement biometric immigration document)—

(a) after “13(1)” insert “, 13A(1) or 13B(1); and

(b) in sub-paragraph (b) for “regulation 13(4)(b) or (c)” substitute “regulation 13(4)(b), (c) or (d), regulation 13A(6)(b), (c) or (d), or regulation 13B(4)(b).

17.  In regulation 20 (application of these Regulations to a person who is required to apply for a replacement biometric immigration document)—

(a) in paragraph (1) after “regulation 3” insert “or 3A”; and

(b) in paragraph (2) for “leave to remain” substitute “leave to enter or remain”.

18.  In regulation 21 (requirement to use a biometric immigration document)—

(a) for paragraph (2) substitute—

“(2) Where the holder of a biometric immigration document attends premises to take—

(a) a test known under the immigration rules as the “Life in the UK Test”(6); or

(b) for purposes of leave to enter or remain, an English language test with a provider approved by the Secretary of State as specified in the immigration rules,

the holder must provide this document to the representative of the educational institution, or other person, who is administering the test where this is specified as a requirement.”;

(b) in paragraph (3)(b) before “remain” insert “enter or”;

(c) after paragraph (4) insert—

“(5) Where the holder of a biometric immigration document makes an application for a licence to drive a motor vehicle (granted under Part III of the Road Traffic Act 1988(7)), the holder must use their biometric immigration document in connection with that application as required by the specified application process.

(6) Where the holder of a biometric immigration document is required to use the document in connection with any application or claim under this regulation, any such application or claim may be disregarded or refused if the requirement is not complied with.”.

19.  In regulation 23 (consequences of a failure to comply with a requirement of these Regulations)—

(a) in paragraphs (2) and (3) for each appearance of “application for leave to remain” substitute “application for leave to enter or remain or for entry clearance”; and

(b) in paragraph (3)—

(i) after the first appearance of “(b)” insert “or regulation 3A(2)(a) or (b)”;

(ii) after “dependant of” insert “such”; and

(iii) omit “who has made an application in accordance with regulation 3(2)(a) or (b)”.

20.  Insert, as a Schedule to the 2008 Regulations, the Schedule set out in the Schedule to these Regulations.

Name

Minister of State

Home Office

Date

Regulation 20

SCHEDULE

Regulation 3A

“SCHEDULE

COUNTRIES AND TERRITORIES TO WHICH REGULATION 3A(2) APPLIES

Pakistan”

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations amend the Immigration (Biometric Registration) Regulations 2008 (“the 2008 Regulations”). The 2008 Regulations require certain persons subject to immigration control to apply for a biometric immigration document, a secure document used to evidence immigration status and which contains certain of the holder’s biometric and biographical information. These Regulations extend the categories of persons who are required to apply for a biometric immigration document, to certain overseas applicants and people applying for six months leave or less from within the UK, and revise the processes for the application and issue of these documents. They introduce a new short term biometric immigration document, which will be known as a short stay permit. Biometric immigration documents issued for periods of leave in excess of six months are known as biometric residence permits. These Regulations also amend the provisions about the use and retention of biometric information provided with an application for a biometric immigration document in consequence of the Immigration Act 2014(8).

Regulation 5 inserts new regulation 3A which extends the requirement to apply for a biometric immigration document to certain overseas applicants (from countries and territories listed in the Schedule).

Regulation 9 substitutes regulation 8 of the 2008 Regulations to revise the requirements regarding an individual’s fingerprints and photograph being obtained and recorded that can be made by an authorised person.

Regulation 10 replaces regulations 9 to 12 of the 2008 Regulations with new regulations 9 to 12A which make provision for the use, retention and destruction of biometric information provided under the 2008 Regulations. The other principal powers to retain biometric information referred to in new regulation 12A are currently, the Immigration (Provision of Physical Data) Regulations 2006(9), the British Nationality (General) Regulations 2003(10), section 143 of the Immigration and Asylum Act 1999(11) and section 127 of the Nationality, Immigration and Asylum Act 2002(12).

Regulation 12 inserts new regulation 13A which provides for the Secretary of State to issue a biometric immigration document to a person who has applied in accordance with new regulation 3A. New regulation 13A introduces and defines the concept of a short term biometric entry clearance document which is issued by an entry clearance officer to a successful overseas applicant for a biometric immigration document in order that the applicant may travel to the United Kingdom to collect that biometric immigration document. New regulation 13A also specifies that an overseas applicant must comply with a specified process within a specified timescale in order to obtain their biometric immigration document.

Regulation 12 also inserts new regulation 13B which provides for the Secretary of State to issue a short term biometric immigration document to a person who has been granted leave for a period of six months or less.

Regulation 13 explicitly provides for a person’s national insurance number and chargeable status for NHS treatment to be on the face of the person’s biometric immigration document.

Regulation 15 inserts into regulation 17 of the 2008 Regulations the possibility that a person’s biometric immigration document can be cancelled if they fail to collect it as specified.

Regulation 18 inserts paragraphs (5) and (6) into regulation 21 of the 2008 Regulations. Paragraph (5) requires the holder of a biometric immigration document to use it in connection with an application for a driving licence if required by the application process. Paragraph (6) provides that where the holder of a biometric immigration document does not use their document as required in connection with any application or claim under regulation 21, any such application or claim may be disregarded or refused.

Regulation 18 also amends regulation 21(2) of the 2008 Regulations to add a requirement on the holder of a biometric immigration document to produce the document if required when taking an English language test for leave purposes.

Regulation 20 inserts the Schedule to these Regulations as a Schedule to the 2008 Regulations.

“Authorised person” has the same meaning as in section 15 of the UK Borders Act 2007(as amended by section 12 of the Immigration Act 2014)(13).

A full regulatory impact assessment has not been produced for this instrument as no impact on the private or voluntary sectors is foreseen.

(1)

2007 c. 30; as amended by the Immigration Act 2014 (c. 22), section 7 was amended by section 11, section 8 was substituted by section 14 and section 15(1) was amended by section 12.

(2)

S.I. 2008/3048, amended by S.I. 2009/819 and S.I. 2012/594.

(3)

1971 c. 77.

(4)

1972 c. 68; section 2(2) was amended by section 27(1)(a) of the Legislative and Regulatory Reform Act 2006 (c. 51), and by section 3(3) of, and Part 1 of Schedule 1 to, the European Union (Amendment) Act 2008 (c. 7).

(5)

OJ No L 158, 30.04.2004, p77.

(6)

The Life in the UK test is the process by which an applicant for leave to enter or remain must demonstrate that they have sufficient knowledge of life in the UK, where this is required by the immigration rules. Details of the test and the requirement can be found at Appendix KoLL of the immigration rules.

(7)

1988 c. 52.

(8)

2014 c. 22.

(9)

S.I. 2006/1743, amended by S.I. 2015/[    ]. This was also amended by S.I. 2011/1779 but that instrument has expired.

(10)

S.I. 2003/548, amended by S.I. 2007/3137 and S.I. 2015/[    ]. There are other amending instruments but none is relevant.

(11)

1999 c. 33.

(12)

2002 c. 41.

(13)

2007 c. 30; section 15 was amended by section 12 of the Immigration Act 2014 (c. 22).