Part 4: Aviation, Shipping and Rail Schedule 5: Aviation, Maritime and Rail Security Amendments to the Immigration, Asylum and Nationality Act 2006
139.Paragraphs 5 to 8 amend the Immigration, Asylum and Nationality Act 2006 (“IANA 2006”). Section 32 of IANA 2006 provides information acquisition powers for the police in respect of ships or aircraft arriving (or expected to arrive) or leaving (or expected to leave) the UK.
140.Paragraph 6 amends subsection (6) of section 32 of IANA 2006 so that any requirement imposed on an owner or agent of a ship or aircraft by a constable under subsection (2) of that section may include a requirement for them to be able to receive communications relating to the information in a specified form and manner.
141.Paragraph 7 inserts a new section 32A into IANA 2006 which provides a power to make regulations requiring information for police purposes from responsible persons in relation to ships or aircraft (defined at section 32A(7)) which have arrived or are expected to arrive in or which have left or are expected to leave the UK. This new section enables a standing requirement to be imposed on specified modes and categories of non-scheduled traffic. This requirement is intended to apply to non-scheduled traffic where the Secretary of State is unlikely to have significant advance warning of their intention to travel. Aircraft and shipping operators subject to a requirement to provide the same information under section 32 will not routinely be subject to this requirement. In new section 32A, subsection (1) provides that the Secretary of State may make regulations requiring owners, agents or captains of ships or aircraft arriving in or departing from the UK to provide information to the police.
142.New section 32A(2) specifies that the information required by subsection (1) may include information about the persons on board the ship or aircraft and information relating to the voyage or flight undertaken.
143.New section 32A(3) restricts information that can be required by the regulations to information that is necessary for police purposes (which would cover the prevention, detection, investigation and prosecution of criminal offences and safeguarding national security). The regulations may require information to be given to the police in England and Wales for any police purposes but may only require information to be given to the police in Scotland for purposes that relate to reserved matters or to the police in Northern Ireland for purposes that related to excepted or reserved matters.
144.New section 32A(4) provides that the regulations must specify the classes of ships or aircraft to which they apply, the detail of what information is required, as well as the time by which it must be supplied and the form and manner in which it must be supplied.
145.New section 32A(5) provides that the regulations may require responsible persons to be able to receive communications relating to the information provided, sent by the police, the Secretary of State or an immigration officer in a specified form and manner. This will enable the Secretary of State to specify the functionality of the system a carrier should have to receive those messages. Such a system may, for example, enable the Secretary of State to communicate to a carrier about whether information has been received and whether it is incomplete or inaccurate.
146.New section 32A(6) provides that the regulations may apply generally or to specific cases, may make different provision for different cases or circumstances, and shall be made by statutory instrument subject to the affirmative procedure.
147.New section 32A(7) defines “responsible persons in respect of a ship or aircraft” for the purposes of new section 32A as the owner or agent, or the captain.
148.Paragraph 7 also inserts new section 32B in IANA 2006. This is a power to make regulations imposing penalties for failure to comply with requirements to provide passenger, crew or service information under section 32(2) of that Act or by virtue of regulations made under section 32A of that Act.
149.New section 32B(2) states that regulations may in particular make provision about how a penalty is to be calculated; the procedure for imposing the penalty; how the penalty will be enforced, and may allow for an appeals process. The regulations may make different provision for different purposes.
150.New section 32B(3) requires that provision is included in the regulations for a carrier to object to a proposed penalty.
151.New section 32B(4) prevents a person from being penalised twice for the same failure (see above).
152.New section 32B(5) requires any penalties to be paid into the Consolidated Fund.
153.New section 32B(6) provides that the regulations are to be made by statutory instrument subject to the affirmative procedure.
154.Paragraph 8 amends section 34 of IANA 2006, which provides that breach of certain preceding provisions, including section 32, is a criminal offence.
155.Paragraph 8(2) amends section 34(1) to make failure to comply with obligations imposed by regulations under section 32A without reasonable excuse an offence.
156.Paragraph 8(3) inserts a new subsection (1A) into section 34, which prevents a person from being prosecuted for failing to provide information where they have had a civil penalty imposed on them under new section 32B or where the information was also required under an ATC scheme or under Schedule 2 to the Immigration Act 1971 and a civil penalty has been imposed on, or criminal proceedings instituted against, the person in respect of that failure.
157.Paragraph 8(4) inserts new paragraph (c) into subsection (2) of section 34. This provides that a person will not be treated as having committed an offence in Scotland or Northern Ireland where the breach consists of a failure to provide information required by regulations under new section 32A to the police in England or Wales and it does not related to a reserved (in Scotland, as defined by the Scotland Act 1998) or excepted or reserved (in Northern Ireland, as defined by the Northern Ireland Act 1998) matter.