The Nationality and Borders Act 2022 (Commencement No. 1, Transitional and Saving Provisions) Regulations 2022

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations are the first set of commencement regulations made under the Nationality and Borders Act 2022 (c. 36) (“the 2022 Act”).

Regulation 2 brings the provisions of the 2022 Act listed in Schedule 1 into force on 28th June 2022. (The provisions of the 2022 Act listed in section 87(5) of that Act also come into force on that day.)

Regulation 3 and Schedule 2 make transitional and saving provision in relation to the provisions of the 2022 Act commencing on 28th June 2022.

Paragraphs 1 to 3 of Schedule 2 make provision in relation to the coming into force of sections 5 (period for registration of person born outside the British overseas territories), 6 (disapplication of historical registration requirements) and 9 (requirements for naturalisation etc) of, and Schedule 1 to (except for paragraph 3(4)(d) of that Schedule; waiver of requirement of presence in UK etc), the 2022 Act. They provide that in relation to the types of application referred to in paragraphs 1 to 3, those provisions of the 2022 Act apply to such applications made but not determined before 28th June 2022.

Paragraphs 4 and 5 of Schedule 2 make provision in relation to the coming into force of sections 12 (differential treatment of refugees), 14 (to the extent brought into force by these Regulations; requirement to make asylum claim at “designated place”), 15 (asylum claims by EU nationals: inadmissibility), 16 (asylum claims by persons with connection to safe third State: inadmissibility), 29 so far as not already in force (removal of asylum seeker to safe third country) and 30 (Refugee Convention: general) of, and paragraphs 1 to 4 of Schedule 4 (removal of asylum seeker to safe country) to, the 2022 Act. They provide that those provisions do not apply to asylum claims (defined in each case as appropriate) made before 28th June 2022.

Paragraph 6 of Schedule 2 provides that where Article 31(1) of the Refugee Convention is relevant to any criminal offence or alleged criminal offence, or a decision to prosecute such offences, the provisions in section 37 of the 2022 Act (Article 31(1): immunity from penalties) do not apply to offences committed or alleged to have been committed before 28th June 2022.

Paragraph 7 of Schedule 2 provides that the provisions in section 40 (to the extent brought into force by these Regulations; illegal entry and similar offences) and section 41 (assisting unlawful immigration or asylum seeker) of the 2022 Act, apply only in relation to an offence committed on or after the appointed day.

Paragraph 8 of Schedule 2 makes provision in relation to section 45 of, and Schedule 7 to, the 2022 Act (maritime enforcement), so that in the circumstances set out in paragraph 8, an authority given by the Secretary of State under sections 28M, 28N or 28O of the Immigration Act 1971 (c. 77) before 28th June will be treated as an authority given by the Secretary of State under section 28LA(3) of that Act, which is inserted by paragraph 2 of Schedule 7 to the 2022 Act and comes into force on 28th June.

Paragraph 9 of Schedule 2 provides that section 47 (prisoners liable to removal from the United Kingdom) of, and Schedule 8 (prisoners returning to the UK: modifications of Criminal Justice Act 2003) to, the 2022 Act do not apply to prisoners who were removed under section 260 of the Criminal Justice Act 2003 before 28th June 2022 and therefore saves the previous version of section 261 of that Act, which will continue to provide for how those prisoners are dealt with if they return to the United Kingdom.