Part 4: Enforcement
Section 22: Assaulting an immigration officer: offence
75.Section 22 creates an offence of assaulting an immigration officer. It also establishes penalties for anyone found guilty of committing such an offence.
Section 23: Assaulting an immigration officer: powers of arrest, etc.
76.Section 23 creates a power of arrest for the offence of assaulting an immigration officer. It enables an immigration officer to arrest a person without warrant where he has reasonable grounds for suspecting that the person has assaulted or is about to assault an immigration officer. The section also applies existing immigration officer powers of entry, search and seizure in the Immigration Act 1971 to the offence of assaulting an immigration officer.
Section 24: Seizure of cash
77.Chapter 3 of Part 5 of the Proceeds of Crime Act 2002 allows a police constable or customs officer to search a person or premises for cash where there are reasonable grounds for suspecting that such cash is derived from or intended for use in unlawful conduct. The provisions also empower a police constable or customs officer to seize and detain any such cash. Seized cash can be further detained and forfeited on an application made to a court of summary jurisdiction. The power to apply for further detention and forfeiture of cash does not depend upon a criminal prosecution and the proceedings focus on the source of the cash which has been seized rather than the guilt of any individual. These sections will extend the powers so that they may be exercised by immigration officers.
78.Subsection (2)(a) provides that the power to carry out a search for cash will be available to Immigration Officers where there are reasonable grounds for suspecting that the cash in question is derived from or intended for use in connection with an offence under the Immigration Acts. Subsection (2)(b) provides that the power to seize and detain cash may be exercised where there are reasonable grounds for suspecting that the cash is derived from or intended for use in connection with an offence under the Immigration Acts or an offence listed in section 14 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. The safeguards that apply to constables and officers of HMRC will similarly apply to immigration officers. The code of practice will be amended to apply to immigration officers to provide guidelines on the operation of their search powers.
79.An immigration officer can only exercise the power to search for cash with the prior approval of a judicial officer, unless it is not practicable to obtain that approval at the time. Subsection (2)(c) provides that where it is not practicable to obtain the approval of a judicial officer an Immigration officer must seek the authority of a civil servant of at least the rank of assistant director in order to exercise the power of search.
80.Subsection 2(f)(i) provides that where an immigration officer continues to have reasonable suspicion that the seized cash is the proceeds of or intended for the use in an offence related to immigration, he will be able to make an application for an order to extend the detention period of the cash direct to a Magistrates’ court in England and Wales or Northern Ireland. Subsection (2)(f)(ii) provides that in Scotland such applications must either be made by the Scottish Ministers in connection with their functions under section 298 of Act or by a procurator fiscal.
81.Subsection (2)(g)(i) provides that whilst the cash is detained, an immigration officer will be able to make an application for a forfeiture order direct to the Magistrates Court in England, Wales and Northern Ireland. Subsection (2)(g)(ii) provides that in Scotland such applications must be made by the Scottish Ministers.
82.Subsection (2)(h) provides that compensation claims in relation to cash seized by immigration officers, for which no forfeiture order is made, will be paid by the Secretary of State.
Section 25: Forfeiture of detained property
83.Section 25 provides that where a court makes a forfeiture order, the court may order the property to be taken into the possession of the Secretary of State rather than the police (as is presently the case).
84.A “forfeiture order” means an order under section 143 of the Powers of Criminal Courts (Sentencing) Act 2000 (which extends to England and Wales) or Article 11 of the Criminal Justice (Northern Ireland) Order 1994 which allow the court to deprive a convicted offender of property used, essentially, for the commission of a crime or to facilitate the commission of a crime, or intended to be used in this way.
85.The court may order the property be taken into the possession of the Secretary of State only if it thinks that the offence in connection with which the order was made related to immigration or asylum, or was committed for a purpose connected with immigration or asylum. An order under this section might be appropriate, for example, where the Immigration Service is leading the investigation of a criminal offence independently of the police.
86.Section 59 confers powers to make transitional provision so that when section 25 is commenced it will apply to criminal proceedings instituted before the passing of the Act.
Section 26: Disposal of property
87.Section 26 provides powers of disposal in respect of property which is in the possession of an immigration officer, or which has come into the possession of the Secretary of State in the course of the exercise of his immigration functions under the Immigration Acts. This includes property which has been forfeited or seized under the Immigration Acts, as well as property acquired in any other way (under subsection (7)).
88.Under subsection (2) a magistrates’ court may, on the application of the Secretary of State or a claimant of property, order the delivery of the property to the person who appears to the court to be its owner. If the owner cannot be ascertained, the court may make any other order about the property. However, an order under subsection (2) is subject to the right of any person to bring legal proceedings for the recovery of the property within 6 months from the date of the order (subsection (3)).
89.Subsection (4) makes additional provision in respect of property which has been forfeited under section 25C of the Immigration Act 1971 or under section 25 of this Act. (Section 25C of the Immigration Act 1971 gives the court the power to forfeit a vehicle, aircraft or ship used in connection with an immigration facilitation offence under that Act, in certain circumstances.) A magistrates’ court may make an order about the property under subsection (2) if the application is made within six months beginning with the date when the forfeiture order was made (subsection (4)(a)). In addition, if the applicant is not the Secretary of State, an order may be made only if the applicant satisfies the court that he did not consent to the offender’s possession of the property or that he did not know and had no reason to suspect that the property was likely to be used in connection with an offence (subsection (4)(b)).
90.Subsection (5) enables the Secretary of State to make regulations by statutory instrument, subject to annulment by resolution of either House of Parliament, for the disposal of property. The Secretary of State can make regulations where the owner has not been ascertained. For property which is in the possession of an immigration officer or the Secretary of State because it has been forfeited under section 25C of the Immigration Act 1971 or under section 25 of this Act, regulations may also provide for disposal where a court order under subsection (2) cannot be made because of subsection (4)(a) (that is, because six months has expired since a forfeiture order was made). Regulations may also provide for disposal where a court has declined to make an order under subsection (2) because it is not satisfied of the matters specified in subsection (4)(b) (that is, the applicant did not consent to the offender’s use of the property or he did not know and had no reason to suspect that the property was likely to be used in connection with an offence).
91.Subsection (6) makes further provision about the regulations. The regulations may make provision which is the same as, or similar to, provision that may be made by regulations under section 2 of the Police (Property) Act 1897 or any similar enactment which applies in relation to Scotland or Northern Ireland. The regulations may apply, with or without modification regulations made under that Act. They may make provision for property to vest in the Secretary of State. They may make provision about the timing of the disposal (which may differ from the provision made under the Police (Property) Act 1897). The regulations shall have effect only where this is not inconsistent with any court order.
92.Section 59 confers powers to make transitional provision so that when section 26 is commenced, it will have effect in respect of property which is already in the possession of an immigration officer or the Secretary of State.
Section 27: Employment: arrest
93.Section 21 of the Immigration, Asylum and Nationality Act 2006 introduced the new offence of knowingly employing an illegal worker and the associated powers to obtain a warrant to enter and search premises to arrest an individual who is liable to be arrested for this offence. The section introduces an express power of arrest.
Section 28: Employment: search for personnel records
94.The current offence of employing an illegal worker (section 8 of the Asylum & Immigration Act 1996) will be replaced by a regime of civil penalties for employers and a new offence of knowingly employing an illegal worker (sections 15-21 of the Immigration, Asylum and Nationality Act 2006). Section 8 of the 1996 Act will be repealed upon the commencement of sections 15-21 of the 2006 Act. This section introduces an express power to search for personnel records in connection with an offence under section 21 of the Immigration, Asylum and Nationality Act 2006.
Section 29: Facilitation: arrival and entry
95.Section 29 amends the existing offence in section 25A of the 1971 Act to provide that a person commits an offence if he knowingly and for gain facilitates the entry to the United Kingdom, as well as the arrival in the UK, of an individual that they know or reasonably believe to be an asylum-seeker. This amendment ensures that acts committed after an asylum seeker has arrived in the United Kingdom but before they have entered will be covered by the offence.
Section 30: Facilitation: territorial application
96.Section 30 amends section 25 of the Immigration Act 1971. Section 25 makes it an offence to assist unlawful immigration to a member State of the European Union. Presently, the section applies to anything done in the UK, anything done outside the UK by a British national and to anything done outside the UK by a body incorporated in the UK. Section 30 removes these existing limitations on the territorial application of the offence to cover acts of facilitation committed inside or outside the UK, irrespective of the nationality of the person carrying out the act (subsection (1)).
97.Subsection (2) amends sections 25A (helping an asylum seeker to enter the United Kingdom) and 25B (assisting entry to United Kingdom in breach of a deportation or exclusion order) of the Immigration Act 1971 to extend the territorial application of the offences under those sections in the same way as described above for section 25.
Section 31: People trafficking
98.Section 31(1) amends section 4(1) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (the 2004 Act) to provide that a person commits an offence if they facilitate the arrival in, or the entry into, the United Kingdom of a person that they intend to exploit or who they believe is likely to be exploited by another person.
99.Similarly to the above, subsection (3) amends the existing offence of trafficking for sexual exploitation contained in section 57(1) of the Sexual Offences Act 2003 (the 2003 Act) so that it is an offence for an individual to intentionally arrange the arrival in, or entry into, the United Kingdom of another person (A) with the intention of that individual or a third person then doing anything to or in respect of A that will involve the commission of a relevant offence (as defined at subsection (1) of section 60 of the 2003 Act).
100.These amendments will ensure that acts committed after a person has arrived in the UK but before they have entered the UK will be covered by the offences.
101.The trafficking people for exploitation offences contained in section 4 of the 2004 Act and sections 57 to 59 of the 2003 Act currently encompass anything done in the UK, anything done outside the UK by a British national and anything done outside the UK by a body incorporated in the UK to facilitate the arrival or entry into the UK of an individual for the purposes of exploitation. Section 31, subsections (2) and (4) amends sections 5(1) and (2) of the 2004 Act and sections 60(2) and (3) of the 2003 Act by removing these limitations on the territorial application of the offences and thereby ensuring that facilitating the arrival or entry into the UK of a person for the purposes of exploitation, regardless of where the facilitation took place and irrespective of the nationality of the facilitator, are now caught by the offences.
