Commentary on Sections Part 4: Enforcement Section 26: Disposal of property
87.Section 26 provides powers of disposal in respect of property which is in the possession of an immigration officer, or which has come into the possession of the Secretary of State in the course of the exercise of his immigration functions under the Immigration Acts. This includes property which has been forfeited or seized under the Immigration Acts, as well as property acquired in any other way (under subsection (7)).
88.Under subsection (2) a magistrates’ court may, on the application of the Secretary of State or a claimant of property, order the delivery of the property to the person who appears to the court to be its owner. If the owner cannot be ascertained, the court may make any other order about the property. However, an order under subsection (2) is subject to the right of any person to bring legal proceedings for the recovery of the property within 6 months from the date of the order (subsection (3)).
89.Subsection (4) makes additional provision in respect of property which has been forfeited under section 25C of the Immigration Act 1971 or under section 25 of this Act. (Section 25C of the Immigration Act 1971 gives the court the power to forfeit a vehicle, aircraft or ship used in connection with an immigration facilitation offence under that Act, in certain circumstances.) A magistrates’ court may make an order about the property under subsection (2) if the application is made within six months beginning with the date when the forfeiture order was made (subsection (4)(a)). In addition, if the applicant is not the Secretary of State, an order may be made only if the applicant satisfies the court that he did not consent to the offender’s possession of the property or that he did not know and had no reason to suspect that the property was likely to be used in connection with an offence (subsection (4)(b)).
90.Subsection (5) enables the Secretary of State to make regulations by statutory instrument, subject to annulment by resolution of either House of Parliament, for the disposal of property. The Secretary of State can make regulations where the owner has not been ascertained. For property which is in the possession of an immigration officer or the Secretary of State because it has been forfeited under section 25C of the Immigration Act 1971 or under section 25 of this Act, regulations may also provide for disposal where a court order under subsection (2) cannot be made because of subsection (4)(a) (that is, because six months has expired since a forfeiture order was made). Regulations may also provide for disposal where a court has declined to make an order under subsection (2) because it is not satisfied of the matters specified in subsection (4)(b) (that is, the applicant did not consent to the offender’s use of the property or he did not know and had no reason to suspect that the property was likely to be used in connection with an offence).
91.Subsection (6) makes further provision about the regulations. The regulations may make provision which is the same as, or similar to, provision that may be made by regulations under section 2 of the Police (Property) Act 1897 or any similar enactment which applies in relation to Scotland or Northern Ireland. The regulations may apply, with or without modification regulations made under that Act. They may make provision for property to vest in the Secretary of State. They may make provision about the timing of the disposal (which may differ from the provision made under the Police (Property) Act 1897). The regulations shall have effect only where this is not inconsistent with any court order.
92.Section 59 confers powers to make transitional provision so that when section 26 is commenced, it will have effect in respect of property which is already in the possession of an immigration officer or the Secretary of State.