Immigration (Biometric Information) (Jersey) Order 2018: extension to Jersey by Order in Council (P.105/2018)

STATES OF JERSEY

IMMIGRATION (BIOMETRIC INFORMATION) (JERSEY) ORDER 2018: EXTENSION TO JERSEY

BY ORDER IN COUNCIL

Lodged au Greffe on 24th September 2018 by the Chief Minister

STATES GREFFE

2018  P.105

PROPOSITION

THE STATES are asked to decide whether they are of opinion

to agree, pursuant to Article 31 of the States of Jersey Law 2005, that a request be made to Her Majesty in Council for the making of an Order in Council that would extend to Jersey, with appropriate modifications –

1. section 145 of the Immigration and Asylum Act 1999;
2. sections 126 to 128 and section 164 of the Nationality, Immigration and Asylum Act 2002; and
3. sections 8 and 14(3), paragraphs 3 and 4 of Schedule 2, section 73(6), and paragraph 19 of Schedule 9 of the Immigration Act 2014,

as summarised in the Report attached to this Proposition.

CHIEF MINISTER

REPORT

Introduction

1. The purpose of this Proposition is to request the States to consider whether to agree to the extension to Jersey by Order in Council of certain provisions of –

1. the Immigration and Asylum Act 1999 ("the 1999 Act");
2. the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"); and
3. the Immigration Act 2014 ("the 2014 Act").

2. The relevant sections concern –

• enabling  powers  regarding  the  provision  of  biometric  information  in connection with applications for a visa or entry clearance, or for leave to enter or remain (including variation of such leave);
• codes of practice in connection with immigration officers' powers of entry, arrest, seizure and fingerprinting.

Purpose of the Proposition

3. There are only limited powers in Jersey under the Immigration Acts to require persons to furnish biometric information in connection with applications for leave to remain in Jersey (see paragraph 7 below).
4. The draft Order in Council would not itself impose any requirement to furnish biometric details; it would merely allow the States to make Regulations for this purpose (as described in more detail in paragraphs 8–10 below). The merits of any proposal to require biometric information would therefore be for debate by the States when the draft Regulations were lodged au Greffe.
5. The immediate need for such enabling powers arises in connection with the grant to EU citizens and their family members, and family members of certain British citizens, of leave to remain in Jersey after the withdrawal of the United Kingdom from the European Union.
6. The other purpose in lodging this Proposition is set out at paragraphs 11–13 below.

The existing provisions in Jersey

7. Sections 141 to 144 of the 1999 Act (as extended to Jersey) presently govern the taking of fingerprints and other biometric information. These sections are limited in their scope to certain categories of person, e.g. someone who has failed to produce a valid passport, someone given only temporary admission pending removal from Jersey, or someone who has claimed asylum.

The enabling powers

8. In the United Kingdom, sections 126–128 of the 2002 Act enable Regulations to be made –

1. requiring any immigration application, i.e. any application for –
   1. entry clearance,
   2. leave to enter or remain in the United Kingdom, or
   3. variation of leave to enter or remain in the United Kingdom, to be accompanied by specified biometric information; or
2. enabling an authorised person to require an individual who makes an immigration application to provide such information.

9. These sections are not confined to the specific categories referred to in the 1999 Act. As matters rest in Jersey, the powers to require biometric information apply only to the specific categories mentioned in section 141 of the 1999 Act. The effect of the Order in Council would be to empower the States to make Regulations for the purposes set out in paragraph 8 above. This would place Jersey on the same footing as the United Kingdom in terms of the relevant Regulation-making powers.
10. For these purposes, "biometric information" will mean –

1. information  about  a  person's  external  physical  characteristics (including in particular fingerprints and features of the iris); and
2. any  other  information  about  a  person's  physical  characteristics specified in Regulations made by the States.

Exercise of powers by immigration officers – codes of practice

11. Section 145 of the 1999 Act ("section 145") provides in the United Kingdom that an immigration officer exercising any specified power to –

1. arrest, question, search or take fingerprints from a person;
2. enter and search premises; or
3. seize property found on persons or premises,

must have regard to such provisions of a code as may be specified in a direction given by the Secretary of State. The provisions thus specified are provisions in any  code  of  practice  under  the  Police  and  Criminal  Evidence  Act  1984 ("PACE").

12. When the 1999 Act was extended to Jersey there was no local counterpart to PACE, and section 145 was not included in the extended provisions. Now that Jersey has broadly equivalent provisions to PACE, it is appropriate to extend section 145.
13. The Order in Council would therefore extend section 145 to require a Jersey immigration officer to have regard to such provisions of a code as may be specified in a direction given by the Minister. The provisions thus specified would be the provisions in any code of practice under the Police Procedures and Criminal Evidence (Jersey) Law 2003.

Immigration Acts – note on extension generally

14. The task of updating Jersey's immigration legislation is part of a continual process of ensuring that provisions that apply in Jersey are consistent, where appropriate, with provisions in other parts of the Common Travel Area. Much work to this end has been done at officer level in the last 18 months including, notably,  the  transfer  of  functions  under  the  Immigration  Acts  from  the Lieutenant-Governor to the Minister for Home Affairs.
15. This Order in Council, whilst addressing a present requirement to empower the States as described above, is a further step towards an eventual consolidation of the Immigration Acts in their extended form.

Appendix 1 to this Report contains the current draft of the Order in Council.

Appendix 2 to this Report shows the relevant statutory provisions in the modified (tracked) form in which it is intended that they be extended.

Financial and manpower implications

There are no resource implications in deciding that the States should have the power to make Regulations to require immigration applications to be accompanied by specified biometric information, or to enable an authorised person to require an individual who makes an immigration application to provide such information.

Any further resource implications will depend on the provisions contained in the Regulations brought forward pursuant to powers conferred under the relevant Acts as extended.

There are also no resource implications in requiring immigration officers exercising powers of arrest, seizure, etc. to have regard to the provisions of a code specified in a direction given by the Minister.