The Immigration (Jersey) Order 2021

Article 7

SCHEDULE 5A Provisions of the Nationality, Immigration and Asylum Act 2002 as extended to Jersey

Provision as extended to Jersey

PART 1 NATIONALITY

Right of abode: certificate of entitlement.

10.—(1) The Minister may by Order make provision for the issue to a person of a certificate that he has the right of abode in Jersey. (2) An Order may, in particular— (a) specify to whom an application must be made; (b) specify the place (which may be outside Jersey) to which an application must be sent; (c) provide that an application must be accompanied by specified information; (d) provide that an application must be accompanied by specified documents; (e) specify the consequences of failure to comply with a requirement under any of paragraphs (a) to (d) above; (f) provide for a certificate to cease to have effect after a period of time specified in or determined in accordance with the Order; (g) make provision about the revocation of a certificate. (3) An Order may— (a) make provision which applies generally or only in specified cases or circumstances; (b) make different provision for different purposes; (c) include consequential, incidental or transitional provision. (4) An Order under this section may, in particular, include provision saving, with or without modification, the effect of a certificate which is issued before the Order come into force.

PART 4 DETENTION AND REMOVAL

Detention
Detention by Minister.
62.—(1) A person may be detained under the authority of the Minister pending— (a) a decision by the Minister whether to give directions in respect of the person under section 10 of the Immigration and Asylum Act 1999 (removal of persons unlawfully in Jersey) or paragraph 10, 10A or 14 of Schedule 2 to the Immigration Act 1971 (control of entry: removal), or (b) removal of the person from Jersey in pursuance of directions given by the Minister under any of those provisions. (2) Where the Minister is empowered under section 3A of the Immigration Act 1971 (powers of Minister) to examine a person or to give or refuse a person leave to enter Jersey, the person may be detained under the authority of the Minister pending— (a) the person’s examination by the Minister, (b) the Minister’s decision to give or refuse the person leave to enter, (c) a decision by the Minister 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 Minister 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, (aa) a reference in paragraph 18B of that Schedule to an immigration officer shall be read as a reference to the Minister, (b) a reference in paragraph 21 of that Schedule to an immigration officer shall be taken to include a reference to the Minister, 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 Minister, and (b) a restriction imposed by the Minister may be varied by an immigration officer. (7) A power under this section which is exercisable pending a decision of a particular kind by the Minister is exercisable where the Minister has reasonable grounds to suspect that he may make a decision of that kind. (7A) The detention under this section of a person to whom section 60 (limitation on detention of pregnant women) of the Immigration Act 2016 applies is subject to that section.
Construction of reference to person liable to detention.
67.—(1) This section applies to the construction of a provision which— (a) does not confer power to detain a person, but (b) refers (in any terms) to a person who is liable to detention under a provision of the Immigration Acts. (2) The reference shall be taken to include a person if the only reason why he cannot be detained under the provision is that— (a) he cannot presently be removed from Jersey, because of a legal impediment connected with obligations by which Jersey is bound under an international agreement, (b) practical difficulties are impeding or delaying the making of arrangements for his removal from Jersey, or (c) practical difficulties, or demands on administrative resources, are impeding or delaying the taking of a decision in respect of him. (3) This section shall be treated as always having had effect.
Removal
Serious criminal.
72.—(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 Jersey if he is— (a) convicted in Jersey 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 Jersey if— (a) he is convicted outside Jersey 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 Jersey 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 Jersey if— (a) he is convicted of an offence specified by Order of the Minister, or (b) he is convicted outside Jersey of an offence and the Minister certifies that in his opinion the offence is similar to an offence specified by order under paragraph (a). (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).(11) (8) 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), (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, (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).
Revocation of leave to enter or remain.
76.—(1) The Minister may revoke a person’s indefinite leave to enter or remain in Jersey if the person— (a) is liable to deportation, but (b) cannot be deported for legal reasons. (2) The Minister may revoke a person’s indefinite leave to enter or remain in Jersey if the leave was obtained by deception. (3) The Minister may revoke a person’s indefinite leave to enter or remain in Jersey 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 (interpretation), “liable to deportation” has the meaning given by section 3(5) and (6) of that Act (deportation), and “refugee” has the meaning given by the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and its Protocol. (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.
No removal while claim for asylum pending.
77.—(1) While a person’s claim for asylum is pending he may not be— (a) removed from Jersey in accordance with a provision of the Immigration Acts, or (b) required to leave Jersey in accordance with a provision of the Immigration Acts. (2) In this section— (a) “claim for asylum” means a claim by a person that it would be contrary to the obligations by which Jersey is bound under the Refugee Convention to remove him from or require him to leave Jersey, and (b) a person’s claim is pending until he is given notice of the Minister’s decision on it. (3) In subsection (2) “the Refugee Convention” means the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and its Protocol. (4) Nothing in this section shall prevent any of the following while a claim for asylum is pending— (a) the giving of a direction for the claimant’s removal from Jersey, (b) the making of a deportation order in respect of the claimant, or (c) the taking of any other interim or preparatory action.

PART 5 IMMIGRATION AND ASYLUM: LISTED STATES

European Common List of Safe Countries of Origin.

113.—(1) In this section “listed State” means a State for the time being on the list of States prescribed by the Secretary of State by order under section 94A of this Act in the United Kingdom. (2) Subsection (3) applies where a person makes a protection claim or a human rights claim (or both) and that person is– (a) a national of a listed State, or (b) a Stateless person who was formerly habitually resident in a listed State. (3) The Minister shall consider the claim or claims mentioned in subsection (2) to be unfounded unless satisfied that there are serious grounds for considering that the State in question is not safe in the particular circumstances of the person mentioned in that subsection. (4) In this section— “human rights claim” means a claim made by a person to the Minister that to remove the person from or require him to leave Jersey or to refuse him entry into Jersey would be unlawful under Article 7 of the Human Rights (Jersey) Law 2000 (public authority not to act contrary to Convention); “the Human Rights Convention” has the same meaning as “the Convention” in the Human Rights (Jersey) Law 2000 and “Convention rights” shall be construed in accordance with section 1 of that Law; “immigration rules” means rules under section 1(4) of the Immigration Act 1971 (general immigration rules); “protection claim” means a claim made by a person (“P”) that removal of P from Jersey— (a) would breach obligations by which Jersey is bound under the Refugee Convention, or (b) would breach obligations by which Jersey is bound in relation to persons eligible for a grant of humanitarian protection; “the Refugee Convention” means the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and its Protocol.

PART 5A ARTICLE 8 OF THE ECHR: PUBLIC INTEREST CONSIDERATIONS

Application of this Part.
117A.—(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 Article 7 of the Human Rights (Jersey) Law 2000. (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).
Article 8: public interest considerations applicable in all cases.
117B.—(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 Jersey, that persons who seek to enter or remain in Jersey are able to speak English or French, because persons who can speak English or French— (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 Jersey, that persons who seek to enter or remain in Jersey 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 Jersey 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 Jersey.
Article 8: additional considerations in cases involving foreign criminals.
117C.—(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 Jersey for most of C’s life, (b) C is socially and culturally integrated in Jersey, 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.
Interpretation of this Part.
117D.—(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 Jersey 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 Jersey (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 Jersey 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. (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.

PART 6 IMMIGRATION PROCEDURE

Provision of information by traveller
Physical data: compulsory provision.
126.—(1) The States may by Regulations— (a) require an immigration application to be accompanied by specified biometric information; (b) enable an authorised person to require an individual who makes an immigration application to provide biometric information; (c) enable an authorised person to require an entrant to provide biometric information. (2) In subsection (1) “immigration application” means an application for— (a) entry clearance, (b) leave to enter or remain in Jersey, or (c) variation of leave to enter or remain in Jersey. (3) Regulations under subsection (1) may not— (a) impose a requirement in respect of a person to whom section 141 of the Immigration and Asylum Act 1999 (fingerprinting) applies, during the relevant period within the meaning of that section, or (b) enable a requirement to be imposed in respect of a person to whom that section applies, during the relevant period within the meaning of that section. (4) Regulations under subsection (1) may, in particular— (a) require, or enable an authorised person to require, the provision of biometric information in a specified form; (b) require an individual to submit, or enable an authorised person to require an individual to submit, to a specified process by means of which biometric information is obtained or recorded; (c) make provision about the effect of failure to provide biometric information or to submit to a process (which may, in particular, include provision for an application to be disregarded or dismissed if a requirement is not satisfied); (d) confer a function (which may include the exercise of a discretion) on an authorised person; (e) require an authorised person to have regard to a code (with or without modification); (f) require an authorised person to have regard to such provisions of a code (with or without modification) as may be specified by direction of the Minister; (fa) provide for biometric information to be recorded on any document issued as a result of the application in relation to which the information was provided; (h) make provision which applies generally or only in specified cases or circumstances; (i) make different provision for different cases or circumstances. (6) In so far as Regulations under subsection (1) require an individual under the age of 16 to submit to a process, the Regulations must make provision similar to section 141(3) to (5) and (13) of the Immigration and Asylum Act 1999 (fingerprints: children). (7) In so far as Regulations under subsection (1) enable an authorised person to require an individual under the age of 16 to submit to a process, the Regulations must make provision similar to section 141(3) to (5), (12) and (13) of that Act (fingerprints: children). (8A) Section 8 of the UK Borders Act 2007 (power to make Regulations about use and retention of biometric information) applies to biometric information provided in accordance with Regulations under subsection (1) as it applies to biometric information provided in accordance with regulations under section 5(1) of that Act. (9) In this section— “authorised person” – (a) has the meaning given by section 141(5) of the Immigration and Asylum Act 1999 (authority to take fingerprints),and (b) in relation to an immigration application made outside Jersey, includes an authorised person within the meaning of the said section 141(5) as it has effect in the United Kingdom, “biometric information” has the meaning given by section 15 of the UK Borders Act 2007, “code” has the meaning given by section 145(6) of that Act (code of practice), “document” includes a card or sticker and any other method of recording information (whether in writing or by the use of electronic or other technology or by a combination of methods), “entrant” has the meaning given by section 33(1) of the Immigration Act 1971 (interpretation), “entry clearance” has the meaning given by section 33(1) of that Act, and “the Minister” means the Minister for Home Affairs.
Physical data: voluntary provision.
127.—(1) The Minister may operate a scheme under which an individual may supply, or submit to the obtaining or recording of, biometric information to be used (wholly or partly) in connection with entry to Jersey. (2) In particular, the Minister may— (a) require an authorised person to use biometric information supplied under a scheme; (b) make provision about the collection, use and retention of biometric information supplied under a scheme (which may include provision requiring an authorised person to have regard to a code); (c) charge for participation in a scheme. (3) In this section the following expressions have the same meaning as in section 126— (a) “authorised person”, (aa) “biometric information”, (b) “code”, and (c) “the Minister”.
Disclosure of information
Medical inspectors.
133.—(1) This section applies to a person if an immigration officer acting under Schedule 2 to the Immigration Act 1971 (control on entry, &c.) has brought the person to the attention of— (a) a medical inspector appointed under paragraph 1(2) of that Schedule, or (b) a person working under the direction of a medical inspector appointed under that paragraph. (2) A medical inspector may disclose to a health service body— (a) the name of a person to whom this section applies, (b) his place of residence in Jersey, (c) his age, (d) the language which he speaks, (e) the nature of any disease with which the inspector thinks the person may be infected, (f) relevant details of the person’s medical history, (g) the grounds for an opinion mentioned in paragraph (e) (including the result of any test or examination which has been carried out), and (h) the inspector’s opinion about action which the health service body should take. (3) A disclosure may be made under subsection (2) only if the medical inspector thinks it necessary for the purpose of— (a) preventative medicine, (b) medical diagnosis, (c) the provision of care or treatment, or (d) the management of health care services. (4) For the purposes of this section “health service body” in relation to a person means the Health and Social Services Department.
Employer.
134.—(1) The Minister may require an employer to supply information about an employee whom the Minister reasonably suspects of having committed an offence under section 24(1)(a), (b), (c), (e) or (f), 24A(1) or 26(1)(c) or (d) of the Immigration Act 1971 (illegal entry, deception, &c.). (2) The power under subsection (1) may be exercised to require information about an employee only if the information— (a) is required for the purpose of establishing where the employee is, or (b) relates to the employee’s earnings or to the history of his employment. (3) In this section— (a) a reference to an employer or employee includes a reference to a former employer or employee, and (b) “employment” means employment under a contract of service or apprenticeship, whether or not express, and (if express) whether or not in writing; and “employer” and “employee” shall be construed accordingly. (4) Where— (a) a business (the “employment agency”) arranges for one person (the “worker”) to provide services to another (the “client”), and (b) the worker is not employed by the employment agency or the client, this section shall apply as if the employment agency were the worker’s employer while he provides services to the client.
Notice.
136.—(1) A requirement to provide information under section 134 must be imposed by notice in writing specifying— (a) the information, (b) the manner in which it is to be provided, and (c) the period of time within which it is to be provided. (2) A period of time specified in a notice under subsection (1)(c)— (a) must begin with the date of receipt of the notice, and (b) must not be less than ten working days. (3) A person on whom a notice is served under subsection (1) must provide the Minister with the information specified in the notice. (4) Information provided under subsection (3) must be provided— (a) in the manner specified under subsection (1)(b), and (b) within the time specified under subsection (1)(c). (5) In this section “working day” means a day which is not— (a) Saturday, (b) Sunday, (c) Christmas Day, (d) Good Friday, or (e) a day which is a bank holiday under the Public Holidays and Bank Holidays (Jersey) Law 1951.
Disclosure of information: offences.
137.—(1) A person commits an offence if without reasonable excuse he fails to comply with section 136(3). (2) A person who is guilty of an offence under subsection (1) shall be liable to— (a) imprisonment for a term not exceeding three months, (b) a fine not exceeding level 3 on the standard scale, or (c) both.
Offence by body.
138.—(1) Subsection (2) applies where an offence under section 137 is committed by a body corporate and it is proved that the offence— (a) was committed with the consent or connivance of an officer of the body, or (b) was attributable to neglect on the part of an officer of the body. (2) The officer, as well as the body, shall be guilty of the offence. (3) In this section a reference to an officer of a body corporate includes a reference to— (a) a director, manager or secretary, (b) a person purporting to act as a director, manager or secretary, and (c) if the affairs of the body are managed by its members, a member. (4) Where an offence under section 137 is committed by a partnership (other than a limited partnership), each partner shall be guilty of the offence. (5) Subsection (1) shall have effect in relation to a limited partnership as if— (a) a reference to a body corporate were a reference to a limited partnership, and (b) a reference to an officer of the body were a reference to a partner.
Privilege against self-incrimination.
139.—(1) Information provided by a person pursuant to a requirement under section 134 shall not be admissible in evidence in criminal proceedings against that person. (2) This section shall not apply to proceedings for an offence under section 137.

PART 7 OFFENCES

Traffic in prostitution.

145.—(1) A person commits an offence if he arranges or facilitates the arrival in Jersey of an individual (the “passenger”) and— (a) he intends to exercise control over prostitution by the passenger in Jersey or elsewhere, or (b) he believes that another person is likely to exercise control over prostitution by the passenger in Jersey or elsewhere. (2) A person commits an offence if he arranges or facilitates travel within Jersey by an individual (the “passenger”) in respect of whom he believes that an offence under subsection (1) may have been committed and— (a) he intends to exercise control over prostitution by the passenger in Jersey or elsewhere, or (b) he believes that another person is likely to exercise control over prostitution by the passenger in Jersey or elsewhere. (3) A person commits an offence if he arranges or facilitates the departure from Jersey of an individual (the “passenger”) and— (a) he intends to exercise control over prostitution by the passenger outside Jersey, or (b) he believes that another person is likely to exercise control over prostitution by the passenger outside Jersey. (4) For the purposes of subsections (1) to (3) a person exercises control over prostitution by another if for purposes of gain he exercises control, direction or influence over the prostitute’s movements in a way which shows that he is aiding, abetting or compelling the prostitution. (5) A person guilty of an offence under this section shall be liable on conviction to imprisonment for a term not exceeding 14 years, to a fine or to both.

PART 8 GENERAL

Consequential and incidental provision.
157.—(1) The States may by Regulations make consequential or incidental provision in connection with a provision of this Act. (2) Regulations under this section may, in particular— (a) amend an enactment; (b) modify the effect of an enactment.
Applied provision.
159.—(1) Subsection (2) applies where this Act amends or refers to a provision which is applied by, under or for purposes of— (a) another provision of the Act which contains the provision, or (b) another Act. (2) The amendment or reference shall have effect in relation to the provision as applied. (3) Where this Act applies a provision of another Act, a reference to that provision in any enactment includes a reference to the provision as applied by this Act.
Short title.
164. This Act may be cited as the Nationality, Immigration and Asylum Act 2002.