Offences
I11Assisting unlawful immigration
1
At the end of section 25 of the Immigration Act 1971 (c. 77) (offence of assisting unlawful immigration to member State) add—
7
In this section—
a
a reference to a member State includes a reference to a State on a list prescribed for the purposes of this section by order of the Secretary of State (to be known as the “Section 25 List of Schengen Acquis States”), and
b
a reference to a citizen of the European Union includes a reference to a person who is a national of a State on that list.
8
An order under subsection (7)(a)—
a
may be made only if the Secretary of State thinks it necessary for the purpose of complying with the United Kingdom’s obligations under the F20EU Treaties,
b
may include transitional, consequential or incidental provision,
c
shall be made by statutory instrument, and
d
shall be subject to annulment in pursuance of a resolution of either House of Parliament.
2
In section 25C(9)(a) of that Act (forfeiture of vehicle, ship or aircraft) for “(within the meaning of section 25)” substitute
(for which purpose
member State
and >“immigration law have the meanings given by section 25(2) and (7))
2Entering United Kingdom without passport, &c.
1
A person commits an offence if at a leave or asylum interview he does not have with him an immigration document which—
a
is in force, and
b
satisfactorily establishes his identity and nationality or citizenship.
2
A person commits an offence if at a leave or asylum interview he does not have with him, in respect of any dependent child with whom he claims to be travelling or living, an immigration document which—
a
is in force, and
b
satisfactorily establishes the child’s identity and nationality or citizenship.
3
But a person does not commit an offence under subsection (1) or (2) if—
a
the interview referred to in that subsection takes place after the person has entered the United Kingdom, and
b
within the period of three days beginning with the date of the interview the person provides to an immigration officer or to the Secretary of State a document of the kind referred to in that subsection.
4
It is a defence for a person charged with an offence under subsection (1)—
a
to prove that he is an EEA national,
b
to prove that he is a member of the family of an EEA national and that he is exercising a right under the F20EU Treaties in respect of entry to or residence in the United Kingdom,
c
to prove that he has a reasonable excuse for not being in possession of a document of the kind specified in subsection (1),
d
to produce a false immigration document and to prove that he used that document as an immigration document for all purposes in connection with his journey to the United Kingdom, or
e
to prove that he travelled to the United Kingdom without, at any stage since he set out on the journey, having possession of an immigration document.
5
It is a defence for a person charged with an offence under subsection (2) in respect of a child—
a
to prove that the child is an EEA national,
b
to prove that the child is a member of the family of an EEA national and that the child is exercising a right under the F20EU Treaties in respect of entry to or residence in the United Kingdom,
c
to prove that the person has a reasonable excuse for not being in possession of a document of the kind specified in subsection (2),
d
to produce a false immigration document and to prove that it was used as an immigration document for all purposes in connection with the child’s journey to the United Kingdom, or
e
to prove that he travelled to the United Kingdom with the child without, at any stage since he set out on the journey, having possession of an immigration document in respect of the child.
6
Where the charge for an offence under subsection (1) or (2) relates to an interview which takes place after the defendant has entered the United Kingdom—
a
subsections (4)(c) and (5)(c) shall not apply, but
b
it is a defence for the defendant to prove that he has a reasonable excuse for not providing a document in accordance with subsection (3).
7
For the purposes of subsections (4) to (6)—
a
the fact that a document was deliberately destroyed or disposed of is not a reasonable excuse for not being in possession of it or for not providing it in accordance with subsection (3), unless it is shown that the destruction or disposal was—
i
for a reasonable cause, or
ii
beyond the control of the person charged with the offence, and
b
in paragraph (a)(i) “reasonable cause” does not include the purpose of—
i
delaying the handling or resolution of a claim or application or the taking of a decision,
ii
increasing the chances of success of a claim or application, or
iii
complying with instructions or advice given by a person who offers advice about, or facilitates, immigration into the United Kingdom, unless in the circumstances of the case it is unreasonable to expect non-compliance with the instructions or advice.
8
A person shall be presumed for the purposes of this section not to have a document with him if he fails to produce it to an immigration officer or official of the Secretary of State on request.
9
A person guilty of an offence under this section shall be liable—
a
on conviction on indictment, to imprisonment for a term not exceeding two years, to a fine or to both, or
b
on summary conviction, to imprisonment for a term not exceeding twelve months, to a fine not exceeding the statutory maximum or to both.
10
11
An offence under this section shall be treated as—
a
a relevant offence for the purposes of sections 28B and 28D of the Immigration Act 1971 (c. 77) (search, entry and arrest), and
b
an offence under Part III of that Act (criminal proceedings) for the purposes of sections 28(4), 28E, 28G and 28H (search after arrest, &c.) of that Act.
12
In this section—
“EEA national” means a national of a State which is a contracting party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 (as it has effect from time to time),
“immigration document” means—
- a
a passport, and
- b
a document which relates to a national of a State other than the United Kingdom and which is designed to serve the same purpose as a passport, and
- a
“leave or asylum interview” means an interview with an immigration officer or an official of the Secretary of State at which a person—
- a
seeks leave to enter or remain in the United Kingdom, or
- b
claims that to remove him from or require him to leave the United Kingdom would breach the United Kingdom’s obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 (c. 42) as being incompatible with his Convention rights.
- a
13
For the purposes of this section—
a
a document which purports to be, or is designed to look like, an immigration document, is a false immigration document, and
b
an immigration document is a false immigration document if and in so far as it is used—
i
outside the period for which it is expressed to be valid,
ii
contrary to provision for its use made by the person issuing it, or
iii
by or in respect of a person other than the person to or for whom it was issued.
14
Section 11 of the Immigration Act 1971 (c. 77) shall have effect for the purpose of the construction of a reference in this section to entering the United Kingdom.
15
In so far as this section extends to England and Wales, subsection (9)(b) shall, until the commencement of section 154 of the Criminal Justice Act 2003 (c. 44) (increased limit on magistrates' power of imprisonment), have effect as if the reference to twelve months were a reference to six months.
16
In so far as this section extends to Scotland, subsection (9)(b) shall have effect as if the reference to twelve months were a reference to six months.
17
In so far as this section extends to Northern Ireland, subsection (9)(b) shall have effect as if the reference to twelve months were a reference to six months.
F3I23Immigration documents: forgery
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I4I64Trafficking people for exploitation
F271
A person commits an offence if he arranges or facilitates the arrival in
F12F5
, or the entry into,
the United Kingdom of an individual (the “passenger”) and—
a
he intends to exploit the passenger in the United Kingdom or elsewhere, or
b
he believes that another person is likely to exploit the passenger in the United Kingdom or elsewhere.
F272
A person commits an offence if he arranges or facilitates travel within the United Kingdom by an individual (the “passenger”) F13in respect of whom he believes that an offence under subsection (1) may have been committed and—
a
he intends to exploit the passenger in the United Kingdom or elsewhere, or
b
he believes that another person is likely to exploit the passenger in the United Kingdom or elsewhere.
F273
A person commits an offence if he arranges or facilitates the departure from the United Kingdom of an individual (the “passenger”) and—
a
he intends to exploit the passenger outside the United Kingdom, or
b
he believes that another person is likely to exploit the passenger outside the United Kingdom.
F271A
A person (“A”) commits an offence if A intentionally arranges or facilitates—
a
the arrival in, or entry into, the United Kingdom or another country of another person (“B”),
b
the travel of B within the United Kingdom or another country, or
c
the departure of B from the United Kingdom or another country,
with a view to the exploitation of B.
F271B
For the purposes of subsection (1A)(a) and (c) A's arranging or facilitating is with a view to the exploitation of B if (and only if)—
a
A intends to exploit B, after B's arrival, entry or (as the case may be) departure but in any part of the world, or
b
A believes that another person is likely to exploit B, after B's arrival, entry or (as the case may be) departure but in any part of the world.
F271C
For the purposes of subsection (1A)(b) A's arranging or facilitating is with a view to the exploitation of B if (and only if)—
a
A intends to exploit B, during or after the journey and in any part of the world, or
b
A believes that another person is likely to exploit B, during or after the journey and in any part of the world.
F93A
A person to whom section 5(2) applies commits an offence if—
a
in relation to an individual (the “passenger”), he arranges or facilitates—
i
the arrival in or the entry into a country other than the United Kingdom of the passenger,
ii
travel by the passenger within a country other than the United Kingdom,
iii
the departure of the passenger from a country other than the United Kingdom, and
b
he—
i
intends to exploit the passenger, or
ii
believes that another person is likely to exploit the passenger,
(wherever the exploitation is to occur).
4
For the purposes of this section a person is exploited if (and only if)—
a
he is the victim of behaviour that contravenes Article 4 of the Human Rights Convention (slavery and forced labour),
b
he is encouraged, required or expected to do anything
F31i
ii
which, were it done in England and Wales, would constitute an offence within sub-paragraph (i),
b
he is encouraged, required or expected to do anything ,
F14i
as a result of which he or another person would commit an offence underF7 the Human Organ Transplants Act 1989 (c. 31) F7Part 1 of the Human Tissue (Scotland) Act 2006 (asp 4)or F1under section 32 or 33 of the Human Tissue Act 2004F15or
ii
which, were it done in Scotland, would constitute an offence mentioned in sub-paragraph (i),
F11ba
he is encouraged, required or expected to do anything in connection with the removal of any part of a human body—
i
as a result of which he or another person would commit an offence under the law of Scotland (other than an offence mentioned in paragraph (b)(i)), or
ii
which, were it done in Scotland, would constitute such an offence,
c
he is subjected to force, threats or deception designed to induce him—
i
to provide services of any kind,
ii
to provide another person with benefits of any kind, or
iii
to enable another person to acquire benefits of any kind, or
F10F8 d
a person uses or attempts to use him for any purpose within sub-paragraph (i), (ii) or (iii) of paragraph (c), having chosen him for that purpose on the grounds that—
i
he is mentally or physically ill or disabled, he is young or he has a family relationship with a person, and
ii
a person without the illness, disability, youth or family relationship would be likely to refuse to be used for that purpose.
F284A
A person who is a UK national commits an offence under this section regardless of—
a
where the arranging or facilitating takes place, or
b
which country is the country of arrival, entry, travel or (as the case may be) departure.
4B
A person who is not a UK national commits an offence under this section if—
a
any part of the arranging or facilitating takes place in the United Kingdom, or
b
the United Kingdom is the country of arrival, entry, travel or (as the case may be) departure.
5
A person guilty of an offence under this section shall be liable—
a
on conviction on indictment, to imprisonment for a term not exceeding 14 years, to a fine or to both, or
b
on summary conviction, to imprisonment for a term not exceeding twelve months, to a fine not exceeding the statutory maximum or to both.
I7I55Section 4: supplemental
1
F62
This subsection applies to—
a
a British citizen,
b
a British overseas territories citizen,
c
a British National (Overseas),
d
a British Overseas citizen,
e
a person who is a British subject under the British Nationality Act 1981 (c. 61), F18and
f
a British protected person within the meaning of that Act.
F17g
a person who at the time of the offence was habitually resident in Scotland, and
h
a body incorporated under the law of a part of the United Kingdom.
F192A
A person may be prosecuted, tried and punished for any offence to which section 4 applies—
a
in any sheriff court district in which the person is apprehended or is in custody, or
b
in such sheriff court district as the Lord Advocate may determine,
as if the offence had been committed in that district (and the offence is, for all purposes incidental to or consequential on the trial or punishment, to be deemed to have been committed in that district).
2B
In subsection (2A), “sheriff court district” is to be construed in accordance with section 307(1) of the Criminal Procedure (Scotland) Act 1995 (c.46)
(interpretation).
3
F25In section 4(4)(a)F25In section 4— “country” includes any territory or other part of the world,
F23 “the Human Rights Convention” means the Convention for the Protection of Human Rights and Fundamental Freedoms agreed by the Council of Europe at Rome on 4th November 1950.
F24“UKnational” means—- a
a British citizen, - b
a person who is a British subject by virtue of Part 4 of the British Nationality Act 1981 and who has the right of abode in the United Kingdom, or - c
a person who is a British overseas territories citizen by virtue of a connection with Gibraltar.
- a
4
Sections 25C and 25D of the Immigration Act 1971 (c. 77)
(forfeiture or detention of vehicle, &c.) shall apply in relation to an offence under section 4 of this Act as they apply in relation to an offence under section 25 of that Act.
5
At the end of section 25C(9)(b), (10)(b) and (11) of that Act add “or section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (trafficking people for exploitation).”
6
After paragraph 2(n) of Schedule 4 to the Criminal Justice and Court Services Act 2000 (c. 43)
(offence against child) insert—
o
an offence under section 4 of the Asylum and Immigration (Treatment of Claimants,etc.) Act 2004 (trafficking people for exploitation).
7
At the end of paragraph 4 of Schedule 2 to the Proceeds of Crime Act 2002 (c. 29)
(lifestyle offences: England and Wales: people trafficking) add—
3
An offence under section 4 of the Asylum and Immigration (Treatment of Claimants,etc.) Act 2004 (exploitation).
8
At the end of paragraph 4 of Schedule 4 to the Proceeds of Crime Act 2002 (lifestyle offences: Scotland: people trafficking) add “or under section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (exploitation)”.
9
At the end of paragraph 4 of Schedule 5 to the Proceeds of Crime Act 2002 (lifestyle offences: Northern Ireland: people trafficking) add—
3
An offence under section 4 of the Asylum and Immigration (Treatment of Claimants,etc.) Act 2004 (exploitation).
10
After paragraph 2(l) of the Schedule to the Protection of Children and Vulnerable Adults (Northern Ireland) Order 2003 (S.I. 2003/417 (N.I. 4))
(offence against child) insert—
m
an offence under section 4 of the Asylum and Immigration (Treatment of Claimants,etc.) Act 2004 (trafficking people for exploitation).
11
F26In so far as section 4 extends to England and Wales, subsection (5)(b) shall, until the commencement of section 154 of the Criminal Justice Act 2003 (c. 44)
(increased limit on magistrates' power of imprisonment), have effect as if the reference to twelve months were a reference to six months.
F2112
In so far as section 4 extends to Scotland, subsection (5)(b) shall have effect as if the reference to twelve months were a reference to six months.
F2113
In so far as section 4 extends to Northern Ireland, subsection (5)(b) shall have effect as if the reference to twelve months were a reference to six months.
I36Employment
1
For section 8(4) of the Asylum and Immigration Act 1996 (c. 49) (employment: penalty) substitute—
4
A person guilty of an offence under this section shall be liable—
a
on conviction on indictment, to a fine, or
b
on summary conviction, to a fine not exceeding the statutory maximum.
2
Section 8(9) of that Act (extension of time limit for prosecution) shall cease to have effect.
I87Advice of Director of Public Prosecutions
In section 3(2) of the Prosecution of Offences Act 1985 (c. 23) (functions of Director of Public Prosecutions) after paragraph (eb) insert—
ec
to give, to such extent as he considers appropriate, advice to immigration officers on matters relating to criminal offences;