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Relevant Legislation The UK Borders Act 2007 (“the 2007 Act”)1. Immigration (Biometric Registration) Regulations 2008. Immigration (Biometric Registration) (Amendment) Regulations 2008. EC Regulation 1030/2002 (as amended by EC No 380/2008)).
Background 1. The UK Borders Act 2007 (“the 2007 Act”) provides a framework for issuing a secure biometric card to foreign nationals who are subject to immigration control2. Under the legislation this is technically described as a “biometric immigration document” (a BID). UKBA prefer the label: „identity card for foreign nationals‟ (or ICFN). The provisions of the 2007 Act give the Secretary of State the power to make regulations to create the scheme for issuing the document.
The BID Regime 2. It is helpful to consider the foreign nationals in two categories: (a) Those who apply for leave to remain in country. The card will be the way in which leave is granted in writing (as required by section 4 of the Immigration Act 19713). As such it will be the thing which replaces the current vignette, as well as a card which can establish immigration status and identity. (b) Those who already have leave (for example, indefinite leave or fall within one of the prescribed categories) who will in time be required to upgrade their existing immigration status documents to the secure card. It will be a freestanding card to confirm immigration status and identity. 3. The basic policy idea is to systematically replace less secure documents which evidence leave (for example, letters, stamps, and vignettes). BIDs will be rolled out incrementally and according to prioritised categorises. The BID contains a chip with encrypted information about the person‟s immigration status and identity and including biometric information (facial image and fingerprints). It will be of a standard format as required by EC law. 4
Sections 5 to 15. Section 5 to 15. 3 Subject to some exceptions. 4 EC 1030/2002 amended by 380/2008.
There are associated powers for an authorised person5 to collect information where a person applies for the document, including biometric information – for instance fingerprints, facial image. There are similar, but not identical, safeguards for children as with section 141 of the 1999 Act. 6 Note, these powers only allow biometrics to be taken when a person applies for the identity card – they do not provide a free-standing power to take biometrics separate from the application for the card. The regulations must provide for how the biometric information is to be used – which can include use for non-immigration purposes (for instance, for the prevention, investigation or prosecution of crime). They must provide for the destruction of the biometric information held by the Secretary of State in certain circumstances. Unlike the previous powers, there is no requirement to destroy biometrics after 10 years. The requirement is to destroy when the Secretary of State thinks the information is no longer needed for one of the specified purposes. However, the if the person shows they have a right of abode, then the biometrics must be destroyed as soon as reasonably practicable. Regulations may require a person to produce the card in certain situations, for example, where they apply for a job or social benefits provided immigration status is a relevant consideration. The regulations may also require the holder to provide information to verify he is the rightful holder. This could be, for example, his fingerprints, so they can be checked against the fingerprint information in the chip and/or against the IAFS database. The cards issued under the UK Borders Act 2007 are to be distinguished from the ID cards which will be issued under the Identity Cards Act 2006. The Identity Cards Act creates a more extensive framework for creating a National Identity Register (NIR) and issuing ID cards. It is not limited to those subject to immigration control. It has wider purposes than the immigration/nationality focused purposes of the UK Borders Act provisions. The documents issued under the UK Borders Act 2007 will be brought within the scheme of the Identity Cards Act in due course. As such, the cards under the UK Borders Act are the first stage in the Government‟s longer term identity strategy.
The statutory framework 9. The Immigration (Biometric Registration) (Pilot) Regulations 2008 7 made under the UK Borders Act came into force in April 2008. These essentially piloted BIDs for those applying for leave to remain in certain student categories and spouse/partner categories, and in doing so provide their fingerprints and photograph. These regulations were fairly limited in scope as they were designed to test the biometrics technology and processes.
Prints may only be taken by an immigration officer, constable, prison officer or other person authorised by the Secretary of State.. 6 Comparable provision to section 141(12) is not required by the legislation – this was omitted for operational reasons and because it was not thought necessary to safeguard children. 7 2008/1183.
Guidance Note 10. The Immigration (Biometric Registration) Regulations 2008 made under the UK Borders Act came into force on 25 November 2008. The first amendment to these Regulations were made in November 2009 (the Immigration (Biometric Registration) (Amendment) Regulations 2008). The second set of Amendment regulations have been laid this month (November 2009) and will come into force in January 2010. 11. The Regulations provide for the roll out of biometric identity cards to foreign nationals staying in the UK for more than 6 months and falling in to one of the categories set out in those Regulations8. The roll-out to all categories of individuals subject to immigration control and who will be in the UK in excess of six months is to be completed within the next 3 years. 12. See also the Immigration (Biometric Registration) (Civil Penalty Code of Practice) Order 2008 which commences the Code governing the imposition of sanctions for failure to comply with the Regulations. The next set of regulations is planned for November 2009. The next steps in the roll out of biometric identity documents are set out in the Government‟s roll out strategy: http://www.bia.homeoffice.gov.uk/sitecontent/documents/managingourborders/c ompulsoryidcards/ 13. The Regulations will allow fingerprints and a photograph to be taken of a person who is applying for leave to remain in one of these categories under the Immigration Rules as part of their application for the identity card. 14. Regulation 21 provides that the holder must produce the card in various circumstances including: when he is examined by an immigration officer at port or in the course of his journey to the UK; when he is examined by the Secretary of State (examination prior of grant of leave to enter to asylum-seekers and those to be granted leave outside the rules)9; when he makes an application for leave to remain.
15. When the holder produces the cards, he must provide fingerprints or a photograph to verify against prints/photo provided when he applied for the card. The comparative information can be checked against the information contained in the chip on the card, and also against the IAFS database. It cannot be retained.
Regulation 4, Immigration (Biometric Registration) (Amendment) Regulations 2008 Under the Immigration (Leave to Enter) Order 2001.
Guidance Note BID Civil Penalty Regime 16. The Act provides a scheme of sanctions where a person fails to comply with requirements of the Regulations, for example, fails to apply for the document or fails to provide his biometrics. The sanctions include immigration related sanctions: refusal of an application for leave or curtailment/cancellation of leave. Alternatively a civil penalty may be imposed. 02/11/2009
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