Immigration (Biometric Registration) (Jersey) Order 2018: extension to Jersey by Order in Council

STATES OF JERSEY

IMMIGRATION (BIOMETRIC REGISTRATION) (JERSEY)

ORDER 2018: EXTENSION TO JERSEY BY ORDER IN COUNCIL

Lodged au Greffe on 26th February 2018 by the Chief Minister

STATES GREFFE

2018  P.41

PROPOSITION

THE STATES are asked to decide whether they are of opinion

to signify, pursuant to Article 31 of the States of Jersey Law 2005, that they agree 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. sections 5 to 15, and 61, of the UK Borders Act 2007; and
2. sections 9, 12(4), 13, 14, 77 of, and Schedule 2 to, the Immigration Act 2014,

as summarised in the Chief Minister's 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 sections 5 to 15 of the UK Borders Act 2007 and associated provisions of the Immigration Act 2014 relating to biometric registration.
2. These provisions (in their proposed extended form) will empower the States to make Regulations in relation to biometric registration, in particular requiring biometric  immigration  documents  to  be  used  for  specified  immigration purposes  and  in  connection  with  specified  immigration  procedures  or  in specified circumstances, where a question arises about a person's status in relation to immigration or nationality.
3. The provisions will also empower the Minister for Home Affairs to require persons to pay a penalty for failing to comply with a requirement of such Regulations, subject to a right of appeal.

UK Borders Act 2007 – proposed extended provisions

4. Sections 5 and 6 confer the power to make the necessary Regulations requiring a person subject to immigration control to apply for the issue of a document recording information about his or her external physical characteristics. The Regulations would be able to make various other related provisions.
5. Section 7 contains provision about the effect of non-compliance with the Regulations made by the States, and for the Regulations to set out when applications  may  be  refused  or  disregarded  or  when  the  Minister  should consider issuing a penalty notice (under section 9). Section 7 also contains provision for the Regulations to permit the Minister to designate an adult as the person responsible for ensuring that a child complies with requirements of the Regulations.
6. Under section 8(1), Regulations made by the States will need to make provision about use and retention of biometric information provided in accordance with the Regulations.
7. Section 8(2) sets out the purposes for which biometric information collected under the Regulations can be used. Section 8(2) also includes provision to specify further uses for biometric information collected.
8. Under Section 8(3), Regulations made by the States must include provision about the destruction of biometric information held by the Minister which has been obtained or recorded by virtue of the Regulations. They must require the destruction of information if the Minister thinks that it is no longer likely to be of use in accordance with the relevant Regulations. The Regulations must include provision about the destruction of certain fingerprint data.
9. Under Section 8(4), a requirement to destroy information shall not apply to the extent that the information is retained in accordance with and for the purposes of another enactment.

10. Sections 9 to 14 make provision for a civil penalty scheme for failure to comply with a requirement under Regulations made by the States (under section 5). Under section 9 the Minister for Home Affairs will be able by notice to require a person to pay a penalty for failing to comply with a requirement of the Regulations. The notice will have to specify certain particulars, including an explanation of how the person can object to the penalty and appeal the penalty, and how the penalty may be enforced.
11. Section 9(3) sets the maximum amount of penalty that may be levied – £1,000. The Minister will be able, by Order, to amend this figure. Any such Order will be subject to tabling in the States in the usual way.
12. Section 9(5) provides that a person who has been given a penalty notice may be given a further penalty notice in the case of continued failure. However, the further notice may not be given during the time available for objection or appeal against the previous notice, nor while an objection or appeal is pending.
13. Section 10(1) provides that a person who has been given a penalty notice may by notice object to the Minister on the grounds that he or she has not failed to comply with a requirement of the Regulations, it is unreasonable to expect him or her to pay the penalty or the amount of the penalty is excessive.
14. Under section 10(3) the Minister will within a certain time have to consider the notice of objection and cancel the penalty notice, reduce the penalty by varying the original penalty notice, increase the penalty by issuing a new penalty notice, or confirm the penalty notice.
15. Section 11 provides that a person given a penalty notice may appeal that notice to the Petty Debts Court on certain specified grounds. The Court may then cancel the penalty notice, reduce the penalty by varying the penalty notice, increase the penalty notice, or confirm the penalty notice.
16. Section 12 makes provision for enforcement of a penalty. It also provides that any money received by the Minister in respect of a penalty under section 9 forms part of the annual income of the States.
17. Section 13 makes provision for a code of practice in respect of the civil penalty scheme.
18. Sections 14 and 15 contain several interpretation and drafting provisions.
19. Section 61 is the usual citation provision for the Act.

Immigration Act 2014 – proposed extended provisions

20. The provisions amend existing Immigration Acts (as extended to Jersey) in relation to powers to take biometric information.
21. The amendments are to the Immigration Act 1971 ("the 1971 Act") and to the Immigration and Asylum Act 1999 ("the 1999 Act") –

1. section 9 amends Schedule 2 to the 1971 Act in relation to identifying persons liable to detention;
2. section 12(4) and Schedule 2 amend Schedule 2 to the 1971 Act and section 144 of the 1999 Act in relation to the meaning of "biometric information";
3. section 13 amends Schedule 2 to the 1971 Act in relation to safeguards for children;
4. section 14 inserts section 144A in the 1999 Act in relation to the use and retention of fingerprints.

22. Section 77 is the usual citation provision for the Act.

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.

Collective responsibility under Standing Order 21(3A)

The Council of Ministers has a single policy position on this proposition, and as such, all Ministers, and the Assistant Minister for Home Affairs, are bound by the principle of collective responsibility to support the proposition, as outlined in the Code of Conduct and Practice for Ministers and Assistant Ministers (R.11/2015 refers).

Under Standing Order 68A, this Proposition will be proposed by the Minister for Home Affairs. Paragraph 5 of the Code of Conduct and Practice for Ministers and Assistant Ministers states that the principle of collective responsibility extends to the Assistant Ministers of the Minister proposing a matter to the States Assembly.

Financial and manpower implications

There are no resource implications in deciding only that the States should have the power to make Regulations requiring persons subject to immigration control to apply for the issue of a biometric document, and to make related provision.

Any further resource implications will depend on the provisions contained in the Regulations brought forward to enact these powers.

APPENDIX 1

The current draft of the Order in Council

The Immigration (Biometric Registration) (Jersey) Order 2018

Made  -  -  -  -  *** Coming into force in accordance with article 1(1)

At the Court at Buckingham Palace, the *** day of *** Present,

The Queen's Most Excellent Majesty in Council

Her Majesty, in exercise of the powers conferred upon Her by section 60(4) of the UK Borders Act 2007(1) and section 76(6) of the Immigration Act 2014(2), is pleased, by and with the advice of Her Privy Council, to order as follows:

Citation, commencement and interpretation

1.(1) This Order may be cited as the Immigration (Biometric Registration) (Jersey) Order 2018 and comes into force on the seventh day after the day on which it is registered by the Royal Court of Jersey.

2. In this Order

"the 2007 Act" means the UK Borders Act 2007; "the 2014 Act" means the Immigration Act 2014; "Jersey" means the Bailiwick of Jersey.

3. For the purposes of construing provisions of the 2007 Act and the 2014 Act as part of

the law of Jersey, a reference to an enactment which extends to Jersey is construed as a reference to that enactment as it has effect in Jersey.

Extension of the 2007 Act to Jersey

2. The following provisions of the 2007 Act shall extend to Jersey

1. sections 5 to 15 (Biometric registration);
2. section 61(1) (Citation),

subject to the modifications, if any, specified in Schedule 1 to this Order.

Extension of the 2014 Act to Jersey

3. The following provisions of the 2014 Act shall extend to Jersey

1. section 9 (Identifying persons liable to detention);
2. section 12(4) and Schedule 2 (Meaning of "biometric information");

1. 2007 c. 30.
2. 2014 c. 22.

3. section 13 (Safeguards for children);
4. section 14 (Use and retention of biometric information);
5. section 77 (Short title),

subject to the modifications, if any, specified in Schedule 2 to this Order.

Richard Tilbrook Clerk of the Privy Council

SCHEDULE 1  Article 2

Modifications of sections 5, 6, 7, 9, 10, 11, 12, 13, 14 and 15 of the UK Borders Act 2007 as they extend to Jersey

1. In section 5 (Registration regulations)

1. in the heading for "regulations" substitute "Regulations";
2. in subsection (1)
   1. for "Secretary of State" substitute "States";
   2. for "regulations" substitute "Regulations";
3. in subsection (2)(f) for "regulations" substitute "Regulations";
4. in subsection (2)(g), (h) and (i) for "Secretary of State" wherever it occurs substitute "Minister";
5. in subsection (3)
   1. for "Secretary of State" wherever it occurs substitute "Minister";
   2. for "the United Kingdom" wherever it occurs substitute "Jersey";
   3. in sub-paragraph (l) for "regulations" substitute "Regulations";
6. in subsection (4) –

1. for "Secretary of State" substitute "Minister";
2. for sub-paragraph (d) substitute –

"(d)  who was given leave to enter or remain in Jersey in accordance with a

provision of directions under section 1(4A) of the Immigration Act 1971 (as extended to Jersey by the Immigration (Jersey) Order 1993) and  knows  or  suspects  that  owing  to  a  change  of  the  holder's circumstances the holder would no longer qualify for leave under that provision, or";

3. in sub-paragraph (e) for "regulations" substitute "Regulations";

7. in subsection (5) –

1. for "Secretary of State" wherever it occurs substitute "Minister";
2. for "regulations" substitute "Regulations";

6. in subsection (6) omit "; and section 16 of the Identity Cards Act 2006 (c. 15) (prohibition of requirement to produce ID card) is subject to this subsection";

7. for subsection (9) substitute –

"(9)  Directions under section 1(4A) of the Immigration Act 1971 (as extended to Jersey by the Immigration (Jersey) Order 1993) may require a person applying for  the  issue  of  a  biometric  immigration  document  to  provide  non-biometric information to be recorded in it or retained by the Minister.";

8. omit subsection (10).

2. In section 6 (Regulations: supplemental)

1. for "regulations" wherever it occurs substitute "Regulations";
2. in subsection (3) for "(c. 33)" substitute "(as extended to Jersey by the Immigration and Asylum Act 1999 (Jersey) Order 2003)";
3. in  subsection  (4)  for  "Rules  under  section  3  of  the  Immigration  Act  1971 (immigration rules)" substitute "Directions under section 1(4A) of the Immigration Act 1971 (as extended to Jersey by the Immigration (Jersey) Order 1993)";
4. in subsection (5) for "Secretary of State's" substitute "Minister's";
5. in subsection (6) –

1. at the end of sub-paragraph (b) add "and";
2. omit sub-paragraphs (d) and (e).

3. In section 7 (Effect of non-compliance)

1. in  subsection  (1)  for  "regulations"  in  the  second  place  it  occurs  substitute

"Regulations";

2. in subsection (2) –
   1. for "regulations" substitute "Regulations";
   2. for "the United Kingdom" substitute "Jersey";
   3. for "Secretary of State" in both places it occurs substitute "Minister";
3. after subsection (2) insert –

"(2A) If the Regulations require a biometric immigration document to be used in connection with an application or claim, they may require or permit the application or claim to be disregarded or refused if that requirement is not complied with.";

4. in subsection (3)

1. for "regulations" wherever it occurs substitute "Regulations";
2. for "Secretary of State" substitute "Minister"

4. In section 9 (Penalty)

1. in subsection (1) –
   1. for "Secretary of State" substitute "Minister";
   2. for "regulations" substitute "Regulations";
2. in subsection (2) –
   1. for "Secretary of State" in both places it occurs substitute "Minister";
   2. for "regulations" substitute "Regulations";
3. in subsection (5) for "regulations" substitute "Regulations";
4. for subsection (6) substitute –

"(6)  The Minister may by Order amend subsection (3) to reflect a change in the value of money since 25 November 2008.

(7)  The Subordinate Legislation (Jersey) Law 1960 shall apply to Orders under

subsection (6).".

5. In section 10 (Penalty: objection)

1. in subsection (1) –
   1. for "Secretary of State" substitute "Minister";
   2. for "regulations" substitute "Regulations";
2. in subsections (3) and (4) for "Secretary of State" wherever it occurs substitute "Minister".

6. In section 11 (Penalty: appeal)

1. for subsection (1) substitute –

"(1)  A person (P) who is given a penalty notice under section 9(1) may appeal to the Petty Debts Court.";

2. in subsection (2)(a) for "regulations" substitute "Regulations";
3. in subsection (3) for "court or sheriff" wherever it occurs substitute "Petty Debts

Court";

4. in subsection (4)(b) for "Secretary of State's" substitute "Minister's";
5. in subsection (5) –

1. for "court or sheriff" substitute "Petty Debts Court";
2. for "Secretary of State" substitute "Minister";

7. In section 12 (Penalty: enforcement)

1. for "Secretary of State" wherever it occurs substitute "Minister";
2. in subsection (5) for "be paid into the Consolidated Fund" substitute "form part of the annual income of the States".

8. In section 13 (Penalty: code of practice)

1. for "Secretary of State" wherever it occurs substitute "Minister";
2. in subsection (3) for "A court or sheriff" substitute "The Petty Debts Court";
3. in subsection (5) for sub-paragraphs (a), (b) and (c) substitute –

"(a)  publish proposals, and

(b)  consult members of the public."

9. For section 14 (Penalty: prescribed matters) substitute

"14  Penalty: prescribed matters

1. In sections 10 and 13 "prescribed" means prescribed by the Minister by

Order.

2. An Order under subsection (1)
   1. may make provision generally or only for specified purposes, and
   2. may make different provision for different purposes.
3. The Subordinate Legislation (Jersey) Law 1960 shall apply to Orders under subsection (1).".

10. For section 15 (Interpretation) substitute

"15  Interpretation

1. For the purposes of section 5

1. "person subject to immigration control" means a person who under the Immigration Act 1971 (as extended to Jersey by the Immigration  (Jersey)  Order  1993)  requires  leave  to  enter  or remain in Jersey (whether or not such leave has been given),
2. "document" includes a card or sticker and any other method of recording  information  (whether  in  writing  or  by  the  use  of electronic or other technology or by a combination of methods),
3. "authorised person" has the meaning given by section 141(5) of the Immigration and Asylum Act 1999 (as extended to Jersey by the  Immigration  and  Asylum  Act  1999  (Jersey)  Order  2003) (authority to take fingerprints),
4. "immigration" includes asylum,
5. "Jersey" means the Bailiwick of Jersey,
6. "Minister" means the Minister for Home Affairs, and
7. Regulations or an Order permitting something to be done by the Minister may (but need not) permit it to be done only where the Minister is of a specified opinion.

2. For the purposes of section 5 "biometric information" means

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.

3. Regulations under subsection (2)(b)

1. may specify only information that can be obtained or recorded by an external examination of a person;
2. must not specify information about a person's DNA.

4. Section 6(6) applies to Regulations under subsection (2)(b).
5. An application for a biometric immigration document is an application in connection with immigration for the purposes of sections 67A and 68 of the Immigration Act 2014 (as extended to Jersey by the Immigration (Jersey) Order 2016) (fees); and, in the application of those sections to an application  for  a  biometric  immigration  document,  the  prescribed consequences of non-compliance may include any of the consequences specified in section 7(2) above.".

SCHEDULE 2  Article 3

Modifications of sections 13 and 14 of, and Schedule 2 to, the Immigration Act 2014 as they extend to Jersey

1. In section 13 (Safeguards for children) in the inserted paragraph (8)(b) for "Secretary

of State" substitute "Minister".

2. In section 14(1), in the inserted section 8 –

1. in subsection (1) –
   1. for "Secretary of State" in the first place it occurs substitute "States";
   2. for "Secretary of State" in the second place it occurs substitute "Minister";
   3. for "regulations" in both places it occurs substitute "Regulations";
2. in subsection (2) –
   1. for "regulations" substitute "Regulations";
   2. for "Secretary of State" substitute "Minister";
3. after subsection (2) insert –

"(2A) In subsection (2) "the Immigration Acts" means the Immigration Acts of the United Kingdom having effect for the time being as extended to Jersey.";

4. in subsection (3) –
   1. for "regulations" in both places it occurs substitute "Regulations";
   2. for "Secretary of State" substitute "Minister";
5. in subsection (4) for "regulations" substitute "Regulations";
6. in subsection (5) –

1. for "regulations" substitute "Regulations";
2. for "Secretary of State" in both places it occurs substitute "Minister";
3. for "the United Kingdom" substitute "Jersey";
4. after "Immigration Act 1971" insert "(as extended to Jersey by the Immigration (Jersey) Order 1993)".

7. in subsection (6) –
   1. for "regulations" in both places it occurs substitute "Regulations";
   2. for "Secretary of State" substitute "Minister";
8. in subsection (8) –
   1. for "regulations" in both places it occurs substitute "Regulations";
   2. for "Secretary of State" wherever it occurs substitute "Minister";
9. in subsection (9) for "regulations" in both places it occurs substitute "Regulations".

3. In section 14(2), in the inserted section 144A –

1. in subsection (1) –
   1. for "regulations" in the first place it occurs substitute "Regulations";
   2. for "regulations" in the second place it occurs substitute "directions";
   3. for "regulations" in the third place it occurs substitute "Regulations";
2. in subsection (3) for "regulations" substitute "directions".

4. Omit section 14(3).
5. In Schedule 2 omit the entries under "Nationality, Immigration and Asylum Act 2002

(c. 41)" and "Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (c. 19)".

EXPLANATORY NOTE (This note is not part of the Order)

This Order extends to Jersey, with modifications, sections 5 to 15 of the UK Borders Act 2007 (c. 30) and associated provisions of the Immigration Act 2014 (c. 22) relating to biometric registration.

The provisions in their extended form empower the States of Jersey to make Regulations in relation to biometric registration, in particular requiring biometric immigration documents to be used for specified immigration purposes and in connection with specified immigration procedures or in specified circumstances, where a question arises about a person's status in relation to immigration or nationality.

The provisions also empower the Jersey Minister for Home Affairs to require persons to pay a penalty for failing to comply with a requirement of such Regulations, subject to a right of appeal.