20.Under the current provisions of the 1971 Act, anyone who is not a British citizen, or a national of a Member State of the European Union ( EU) (and other nationals of the European Economic Area (EEA)) exercising their European free movement rights, needs to be granted leave to enter or leave to remain (permission to stay) in order lawfully to enter into, or remain in, the United Kingdom (unless exempt). At present, leave to enter has to be given in writing by an immigration officer at a port of entry or, in cases where the individual is already in the country, leave to remain has to be given by the Secretary of State, in practice by Immigration and Nationality Directorate (IND) caseworkers acting on his behalf.
21.In addition, once a person requiring leave departs from the Common Travel Area (CTA – an area of free movement which comprises the United Kingdom, the Republic of Ireland, the Channel Islands and the Isle of Man), any leave that they may have been granted lapses. If such an individual wishes to come back to the United Kingdom then they have to be granted fresh leave to enter by an immigration officer on their return.
22.At present under section 4(1) of the 1971 Act a person can only be notified of the conditions and time limits attached to their stay by way of a written notice. This normally takes the form of a stamp in their passport. The effect of the powers conferred under sections 1 and 2 is that, while an individual will still need to obtain either leave to enter the United Kingdom or leave to remain in the United Kingdom, this leave need not necessarily be granted in writing and, in the case of leave to enter, may be granted in advance of arrival. By providing for a more flexible legislative framework, the sections provide the scope for existing procedures to be revised and updated and will also allow technological developments to be utilised in the future.
Commentary on Sections Part I: Immigration: general Sections 1 and 2: Leave to enter or remain in the United Kingdom