16.Section 19D provides that an act in relation to immigration or nationality functions is not unlawful under section 19B where it is done by a Minister of the Crown acting personally, or by officials acting in accordance with a relevant authorisation. This reflects the position that Home Office and Foreign and Commonwealth Office officials who operate immigration policies are required to discriminate between individuals on the basis of their nationality and ethnic or national origin when determining their entitlement to enter or remain in the United Kingdom or their entitlement to protection under various international instruments, including the 1951 UN Convention Relating to the Status of Refugees. The exemptions previously provided in section 41 of the 1976 Act are insufficient to allow immigration, asylum and nationality laws to continue to operate as Parliament intended.
17.Section 19D(1) provides that new section 19B applies to an act of a “relevant person” carrying out immigration and nationality functions only if that act involves discrimination on the grounds of colour or race. Section 19B will not apply to the act of a relevant person carrying out immigration or nationality functions that discriminates on the grounds of nationality or ethnic or national origins.
18.Section 19D(2) defines a "relevant person." A relevant person is defined as a Minister of the Crown acting personally, or any other person acting in accordance with a “relevant authorisation”.
19.Section 19D(3) defines "relevant authorisation" as being where a requirement is imposed, or express authorisation is given, either with respect to a particular case or class of case, by a Minister acting personally; or with respect to a particular class of case, by any of the enactments mentioned in section 19D(5), or by any instrument made under or by virtue of those enactments. Ministers will continue to be able to make personal decisions in individual cases in the national interest outside the Immigration Rules. Such decisions will be subject to other legal provisions which safeguard human rights, such as the Human Rights Act 1998.
20.Section 19D(4) defines "immigration and nationality functions" as functions exercisable by virtue of any enactment listed in section 19D(5).
21.Section 19D(5) lists the specific immigration and nationality enactments which are subject to the exemption.  Section 19D(5)(a) excludes from this list sections 28A to 28K of the Immigration Act 1971 so far as they relate to offences under Part III of that Act.  The effect of this is to place the immigration service in the same position under the 2000 Act as the police in respect of the investigation and prosecution of offences.
Commentary Section 19D