Background Part 1: Removal and other powers
12.To enforce the removal of a migrant from the UK it is necessary to identify them, to make a removal decision, to provide a travel document recognised by the State to which they will be removed and to detain them ahead of transfer to a port of departure. The Act amends the legislation behind this removal process.
13.Currently, a removal decision can be made under several different powers in the Immigration Acts: paragraphs 8 to 10 of Schedule 2 to the Immigration Act 1971 (“the 1971 Act”); section 10 of the Immigration and Asylum Act 1999 (“the 1999 Act”) and section 47 of the Immigration, Asylum and Nationality Act 2006 (“the 2006 Act”). The relevant power depends on whether the person being removed has been refused leave at the border, is an illegal entrant, an overstayer, has obtained leave to enter or remain by deception or has no further leave to remain following the refusal of an application to extend their leave. The Act replaces these separate powers with a single power to remove a person who requires leave to enter or remain in the UK but does not have it. This could be because they never had such leave (they entered illegally), they did have such leave but stayed on after it expired or was revoked, or they could be a national of an EEA state who is subject to a deportation or exclusion order.
14.The Government announced its policy on ending the detention of children for immigration purposes in a Written Ministerial Statement by the former Immigration Minister Damian Green MP on 16 December 2010.(1) The Act will prevent a child and their parent or carer living with them from being removed or required to leave the UK for a period of 28 days after the family has exhausted any right of appeal. It establishes an Independent Family Returns Panel and places a requirement on the Secretary of State to consult the Panel in each family returns case on how best to safeguard and promote the welfare of children in the family.
15.A person in immigration detention may apply to the First-tier Tribunal (“the Tribunal”) for bail. The Act limits the ability of individuals awaiting removal from the UK to be released on bail, and also makes provision preventing repeat bail applications.
16.The Act amends Part 8 of the 1999 Act to add a new category of “pre-departure accommodation for families.” It also limits the detention of an unaccompanied child under Schedule 2 to the 1971 Act in a short-term holding facility to a maximum period of 24 hours, either where directions are in force requiring the child’s removal or a decision whether or not to give directions is considered likely to result in such directions.
17.Unique biometric identifiers, such as fingerprints and facial photographs, allow a person’s identity to be matched to immigration or other records. There are already powers to take biometrics, such as section 126 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) which provides for biometrics for visa applicants, and sections 5 to 15 of the UK Borders Act 2007 (“the 2007 Act”) which provide for the issue of biometric immigration documents, more commonly known as Biometric Residence Permits. There are classes of persons from whom it is not currently possible to require biometrics and the Act seeks to close these gaps: in particular it provides for biometrics to be taken from non-EEA family members of EEA nationals, transit visa applicants and persons applying for British citizenship. The Act also provides the power for an immigration officer to require a person to provide biometric information, usually fingerprints, for the purpose of verifying their identity and thus their immigration status, in cases where there are reasonable grounds to suspect that that person might be liable to removal from the UK.
18.Where a biometric match to immigration records is established it may be possible to link a migrant to a record of a travel document. It may also be necessary to locate the original travel document to facilitate removal. Paragraph 25A of Schedule 2 to the 1971 Act provides immigration officers with a power to enter premises to search for relevant documents. Schedule 1 amends this provision so that it applies also to all persons who are in immigration detention following their arrest for a criminal offence, whether or not it was the police who made that arrest, and extends this search power - with a warrant - to premises belonging to a third party. Schedule 1 also amends powers to search and escort detained persons.