The Immigration (Jersey) Order 2021

PART 4 U.K. DETENTION AND REMOVAL

Commencement Information

I1 Sch. 5A Pt. 4 comes into force in accordance with art. 1(1)

Detention
Detention by Minister.
62.—(1) A person may be detained under the authority of the Minister pending— (a) a decision by the Minister whether to give directions in respect of the person under section 10 of the Immigration and Asylum Act 1999 (removal of persons unlawfully in Jersey) or paragraph 10, 10A or 14 of Schedule 2 to the Immigration Act 1971 (control of entry: removal), or (b) removal of the person from Jersey in pursuance of directions given by the Minister under any of those provisions. (2) Where the Minister is empowered under section 3A of the Immigration Act 1971 (powers of Minister) to examine a person or to give or refuse a person leave to enter Jersey, the person may be detained under the authority of the Minister pending— (a) the person’s examination by the Minister, (b) the Minister’s decision to give or refuse the person leave to enter, (c) a decision by the Minister whether to give directions in respect of the person under paragraph 8 or 9 of Schedule 2 to that Act (removal), or (d) removal of the person in pursuance of directions given by the Minister under either of those paragraphs. (3) A provision of Schedule 2 to that Act about a person who is detained or liable to detention under that Schedule shall apply to a person who is detained or liable to detention under this section: and for that purpose— (a) a reference to paragraph 16 of that Schedule shall be taken to include a reference to this section, (aa) a reference in paragraph 18B of that Schedule to an immigration officer shall be read as a reference to the Minister, (b) a reference in paragraph 21 of that Schedule to an immigration officer shall be taken to include a reference to the Minister, and (c) a reference to detention under that Schedule or under a provision or Part of that Schedule shall be taken to include a reference to detention under this section. (4) In the case of a restriction imposed under paragraph 21 of that Schedule by virtue of this section— (a) a restriction imposed by an immigration officer may be varied by the Minister, and (b) a restriction imposed by the Minister may be varied by an immigration officer. (7) A power under this section which is exercisable pending a decision of a particular kind by the Minister is exercisable where the Minister has reasonable grounds to suspect that he may make a decision of that kind. (7A) The detention under this section of a person to whom section 60 (limitation on detention of pregnant women) of the Immigration Act 2016 applies is subject to that section.
Construction of reference to person liable to detention.
67.—(1) This section applies to the construction of a provision which— (a) does not confer power to detain a person, but (b) refers (in any terms) to a person who is liable to detention under a provision of the Immigration Acts. (2) The reference shall be taken to include a person if the only reason why he cannot be detained under the provision is that— (a) he cannot presently be removed from Jersey, because of a legal impediment connected with obligations by which Jersey is bound under an international agreement, (b) practical difficulties are impeding or delaying the making of arrangements for his removal from Jersey, or (c) practical difficulties, or demands on administrative resources, are impeding or delaying the taking of a decision in respect of him. (3) This section shall be treated as always having had effect.
Removal
Serious criminal.
72.—(1) This section applies for the purpose of the construction and application of Article 33(2) of the Refugee Convention (exclusion from protection). (2) A person shall be presumed to have been convicted by a final judgment of a particularly serious crime and to constitute a danger to the community of Jersey if he is— (a) convicted in Jersey of an offence, and (b) sentenced to a period of imprisonment of at least two years. (3) A person shall be presumed to have been convicted by a final judgment of a particularly serious crime and to constitute a danger to the community of Jersey if— (a) he is convicted outside Jersey of an offence, (b) he is sentenced to a period of imprisonment of at least two years, and (c) he could have been sentenced to a period of imprisonment of at least two years had his conviction been a conviction in Jersey of a similar offence. (4) A person shall be presumed to have been convicted by a final judgment of a particularly serious crime and to constitute a danger to the community of Jersey if— (a) he is convicted of an offence specified by Order of the Minister, or (b) he is convicted outside Jersey of an offence and the Minister certifies that in his opinion the offence is similar to an offence specified by order under paragraph (a). (6) A presumption under subsection (2), (3) or (4) that a person constitutes a danger to the community is rebuttable by that person. (7) A presumption under subsection (2), (3) or (4) does not apply while an appeal against conviction or sentence— (a) is pending, or (b) could be brought (disregarding the possibility of appeal out of time with leave).(11) (8) For the purposes of this section— (a) “the Refugee Convention” means the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and its Protocol, and (b) a reference to a person who is sentenced to a period of imprisonment of at least two years— (i) does not include a reference to a person who receives a suspended sentence (unless a court subsequently orders that the sentence or any part of it is to take effect), (ia) does not include a reference to a person who is sentenced to a period of imprisonment of at least two years only by virtue of being sentenced to consecutive sentences which amount in aggregate to more than two years, (ii) includes a reference to a person who is sentenced to detention, or ordered or directed to be detained, in an institution other than a prison (including, in particular, a hospital or an institution for young offenders), and (iii) includes a reference to a person who is sentenced to imprisonment or detention, or ordered or directed to be detained, for an indeterminate period (provided that it may last for two years).
Revocation of leave to enter or remain.
76.—(1) The Minister may revoke a person’s indefinite leave to enter or remain in Jersey if the person— (a) is liable to deportation, but (b) cannot be deported for legal reasons. (2) The Minister may revoke a person’s indefinite leave to enter or remain in Jersey if the leave was obtained by deception. (3) The Minister may revoke a person’s indefinite leave to enter or remain in Jersey if the person, or someone of whom he is a dependant, ceases to be a refugee as a result of— (a) voluntarily availing himself of the protection of his country of nationality, (b) voluntarily re-acquiring a lost nationality, (c) acquiring the nationality of a country other than the United Kingdom and availing himself of its protection, or (d) voluntarily establishing himself in a country in respect of which he was a refugee. (4) In this section— “indefinite leave” has the meaning given by section 33(1) of the Immigration Act 1971 (interpretation), “liable to deportation” has the meaning given by section 3(5) and (6) of that Act (deportation), and “refugee” has the meaning given by the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and its Protocol. (5) A power under subsection (1) or (2) to revoke leave may be exercised— (a) in respect of leave granted before this section comes into force; (b) in reliance on anything done before this section comes into force. (6) A power under subsection (3) to revoke leave may be exercised— (a) in respect of leave granted before this section comes into force, but (b) only in reliance on action taken after this section comes into force.
No removal while claim for asylum pending.
77.—(1) While a person’s claim for asylum is pending he may not be— (a) removed from Jersey in accordance with a provision of the Immigration Acts, or (b) required to leave Jersey in accordance with a provision of the Immigration Acts. (2) In this section— (a) “claim for asylum” means a claim by a person that it would be contrary to the obligations by which Jersey is bound under the Refugee Convention to remove him from or require him to leave Jersey, and (b) a person’s claim is pending until he is given notice of the Minister’s decision on it. (3) In subsection (2) “the Refugee Convention” means the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and its Protocol. (4) Nothing in this section shall prevent any of the following while a claim for asylum is pending— (a) the giving of a direction for the claimant’s removal from Jersey, (b) the making of a deportation order in respect of the claimant, or (c) the taking of any other interim or preparatory action.