Blackstone's Guide to the Asylum and

The Blackstone's Guide Series delivers concise and accessible books covering the latest legislation changes and amendments. Published within weeks of an Act, they offer expert commentary by leading names on the effects, extent and scope of the legislation, plus a full copy of the Act itself.They offer a cost-effective solution to key information needs and are the perfect companion for any practitioner needing to get up to speed with the latest changes. The Asylum and Immigration (Treatment of Claimants) Act 2004 is the third major piece of legislation in this area in the last 5 years and will introduce a number of radical changes to the current Asylum system. The Act plans to re-shape the way in which immigration appeals are handled as well asintroducing significant changes in practice and procedure. For example, new criminal offences are created in relation to documentation and trafficking; rights to challenge removal to a 'safe third country' are removed; asylum support for families who have no further appeal against a failed asylumclaim is ended and there are new enforcement powers for immigration officers including powers of entry, search and arrest.The Guide is written by an experienced team of Immigration barristers from Doughty Street Chambers. Structured in a clear and logical way following the parts of the Act, it provides an up-to-date guide as to how the law now works and is an essential purchase for practitioners and organisationsworking in this fast changing area of the law.

Editor Peter Morris, before coming to the Bar, was Director of Policy for the public service trade union, UNISON. His current legal practice is mainly in immigration and asylum but also includes employment law, particularly in relation to migrant workers.

Table of Cases

xv

Table of Statutes

xix

Table of Secondary Legislation

xxv

Table of International Legislation

xxvii

Table of Abbreviations

xxix

Introduction

1

(150)

Immigration Offences (Sections 1--7)

Assisting unlawful immigration

1

(2)

Entering the United Kingdom without a passport

3

(4)

Forgery of immigration documents

7

(1)

Trafficking people for exploitation

8

(1)

Employment

9

Credibility of Asylum and Human Rights Claimants (Section 8)

Introduction

1

(1)

Background

2

(5)

Significance and scope of s 8

7

(16)

The significance of s 8

7

(8)

Statements to which s 8 applies

15

(6)

Decision-makers to whom s 8 applies

21

(2)

Behaviour to which s 8 applies

23

(29)

Behaviour to conceal information or mislead

23

(3)

Behaviour relating to passports

26

(4)

Passport not produced

30

(5)

Passport destroyed, altered or disposed of

35

(4)

Invalid `passport' produced

39

(10)

Ticket or other travel document destroyed, altered or disposed of

49

(3)

Failure to answer question asked by decision-maker

52

(11)

Explanation for failure to answer question

57

(6)

Timing of the asylum or human rights claim

63

(8)

Claim after notification of immigration decision

64

(3)

Claim after arrest under immigration provision

67

(4)

Failure to make asylum or human rights claim in a safe third country

71

(5)

Behaviour obstructing or delaying the handling of claim

76

Welfare Support for Immigrants (Sections 9--13)

Introduction

1

(1)

Section 9---failed asylum-seeker families

2

(81)

Background

3

(7)

Persons affected by s 9(1)

10

(4)

Failure to take reasonable steps to leave the United Kingdom

14

(13)

Support to a child or British citizen---effect of para 2(1)

27

(7)

Breach of ECHR rights

34

(11)

Breach of EC rights

45

(9)

Home Office decision-making

54

(5)

Local authority decision-making under para 7A

59

(5)

Appealing a decision to withdraw asylum support under para 7A

64

(16)

Section 9(3)---removal of right of appeal to asylum support adjudicator

80

(3)

Section 10---failed asylum-seekers: accommodation

83

(19)

Background

84

(5)

The new regulatory scheme

89

(5)

ECHR compatibility

94

(6)

Right of appeal

100

(2)

Section 11---former asylum-seekers: homelessness

102

(14)

Background

103

(5)

NASS accommodation creates local connection

108

(5)

Section 95 accommodation in Scotland

113

(3)

Section 12---end to back-dated benefits

116

(12)

Background

117

(7)

The new provision

124

(4)

Section 13---integration loan for refugees

128

Enforcement (Sections 14--18)

Immigration officer: power of arrest

1

(3)

Fingerprinting

4

(1)

Information about passengers

5

(1)

Retention of documents

6

(1)

Control of entry

7

Marriage (Sections 19--25)

The new provisions in outline

3

(11)

The present position

14

(9)

Human rights implications

23

(11)

Issues under ECHR Art 12

24

(2)

The existing Strasbourg case law

26

(8)

ECHR compatibility

34

(12)

The justification

34

(7)

Potential target groups

41

(2)

The new measures and existing immigration control

43

(3)

ECHR Art 14: different treatment on the grounds of religion or nationality

46

Appeals (Sections 26 and 28--31; Schedules 1 and 2)

Introduction

1

(3)

Background

4

(11)

The new Asylum and Immigration Tribunal

15

(9)

Membership of the AIT

16

(4)

Structure of the AIT

20

(2)

Three-member panels

22

(1)

Powers of the AIT

23

(1)

Review by the High Court (in Scotland, Court of Session)

24

(30)

Application for review: time-limit and late applications

30

(6)

The application for review

36

(7)

Decision on the review application

43

(1)

Reference to the appellate court

44

(3)

Reconsideration by the AIT

47

(2)

Transitional provision: filter by AIT

49

(5)

Appeal to the Court of Appeal (in Scotland, Court of Session)

54

(7)

Judicial review

61

(10)

Preliminary, procedural and ancillary decisions

62

(6)

Power to quash on judicial review

68

(1)

Judicial review where review has been refused

69

(2)

Public funding of representation for review of AIT and reconsideration

71

(6)

Removal of right of appeal before removal in some entry cases

77

(6)

Work permit holders

79

(1)

Leave to enter granted before arrival

80

(2)

Entry clearance holders

82

(1)

Other changes to appeal system

83

Entry clearance: power to remove right of appeal

83

(8)

Right of appeal of certain crew-members of ships and aircraft

91

(3)

Certification of repeat appeals

94

Unfounded Claims (Section 27)

The present law

2

(18)

The new law: removal of the accession states

20

(1)

The new law: extension of the power to designate

21

(18)

Quality of Home Office assessments of countries of origin

39

(6)

Other provisions

45

Third Country Removals (Section 33 and Schedule 3)

The present law

2

(10)

The new provisions: the structure of Sch 3

12

(2)

The deeming provisions

14

(10)

Scope of human rights deeming provision

24

(5)

ECHR compatibility of human rights deeming provision

29

(11)

Amendment of lists of safe third countries

40

(12)

Introduction of duty to certify clearly unfounded claims

52

Detention (Sections 32 and 34--36)

Overview

1

(3)

The power to detain under present legislation

4

(3)

Limits on power to detain

7

(8)

Common law

8

(1)

Art 5 ECHR

9

(1)

Home Office policy

10

(5)

Bail under present legislation

15

(5)

Bail from the Special Immigration Appeals Commission

20

(2)

Changes introduced by the 2004 Act

22

(1)

Appeal against a bail decision by the Special Immigration Appeals Commission

23

(9)

Present legislation and case law

23

(2)

The new provisions

25

(4)

Commentary

29

(3)

Detention pending deportation

32

(7)

Present legislation

32

(2)

The new provisions

34

(2)

Commentary

36

(3)

Failing to co-operate with the obtaining of a travel document

39

(14)

Present legislation

39

(2)

The new provisions

41

(4)

Powers of arrest, search and entry

45

(6)

Commentary

51

(2)

Electronic monitoring

53

The new legislation

53

(5)

Commentary

58

Immigration Services (Sections 37--41)

Introduction

1

(7)

New power to search and seize evidence

8

(28)

Background

8

(3)

The new power

11

(4)

Limits on material that can be seized

15

(12)

ECHR compatibility

27

(8)

Extension of power to enter premises

35

(1)

Power to require information from legal professional bodies

36

(2)

New offence of offering prohibited immigration services

38

(2)

Other changes to regulation of immigration services

40

European Asylum Procedures Directive

Unfounded claims (safe countries of origin)

3

(12)

Third country removals

15

(19)

The European third country scheme

15

(16)

Correlation between Sch 3 to the 2004 Act and the Asylum Procedures Directive

31

(3)

Rights of appeal

34

(117)

Article 38: the right to an effective remedy

34

(117)

Appendix 1. The Asylum and Immigration (Treatment of Claimants, etc) Act 2004

151

(56)

Appendix 2. Useful Resources on the Internet

207

(8)

Index

215

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Blackstone's Guide to the Asylum and Immigration Act 2004

Summary

Author Biography

Table of Contents

Supplemental Materials