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The Immigration (Biometric Registration) Regulations 2008


Published: 2008-11-24

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Statutory Instruments
2008 No. 3048

Immigration
The Immigration (Biometric Registration) Regulations 2008

Made
24th November 2008

Coming into force
25th November 2008

The Secretary of State makes the following Regulations in exercise of the powers conferred by sections 5, 6(3), 6(6), 7, 8 and 15(1)(g) of the UK Borders Act 2007(1).

In accordance with section 6(6)(e) of that Act, a draft of this instrument was laid before and approved by a resolution of each House of Parliament.

Citation, commencement and interpretation

1.  These Regulations may be cited as the Immigration (Biometric Registration) Regulations 2008 and shall come into force on the day after the day on which they are made.

2.  In these Regulations—

“dependant” means a spouse or civil partner, or a child under the age of 18;

“immigration rules” means rules made under section 3(2) of the Immigration Act 1971(2).

Requirement to apply for a biometric immigration document

3.—(1) A person subject to immigration control must apply for the issue of a biometric immigration document where he satisfies —

(a)one of the conditions in paragraph (2); and

(b)the condition in paragraph (3).

(2) The conditions are that the person makes an application for limited leave to remain —

(a)under one of the categories of the immigration rules specified in regulation 4; or

(b)as a dependant of a person who is applying at the same time for limited leave to remain under one of those categories.

(3) The condition is that the person makes the application for limited leave to remain on the form specified for that purpose in accordance with the immigration rules.

Specified categories

4.  The specified categories under the immigration rules are —

(a)as a student;

(b)as a student nurse;

(c)to re-sit an examination;

(d)to write up a thesis;

(e)as a prospective student;

(f)as a sabbatical officer;

(g)as the spouse or civil partner of a person present and settled in the United Kingdom; or

(h)as the unmarried or same-sex partner of a person present and settled in the United Kingdom.

Power for an authorised person to require a person to provide biometric information

5.—(1) Subject to regulation 7, where a person makes an application for the issue of a biometric immigration document in accordance with regulation 3, an authorised person may require him to provide a record of his fingerprints and a photograph of his face.

(2) Where an authorised person requires a person to provide biometric information in accordance with paragraph (1), the person must provide it.

Power for the Secretary of State to use and retain existing biometric information

6.—(1) This regulation applies where —

(a)a person makes an application for the issue of a biometric immigration document in accordance with regulation 3; and

(b)the Secretary of State already has a record of the person’s fingerprints or a photograph of the person’s face in his possession (for whatever reason).

(2) Where this regulation applies the Secretary of State may use or retain that information for the purposes of these Regulations.

Provision in relation to persons under the age of sixteen

7.—(1) A person under the age of sixteen (“the child”) must not be required to provide a record of his fingerprints or a photograph of his face in accordance with regulation 5 except where the authorised person is satisfied that the fingerprints or the photograph will be taken in the presence of a person aged eighteen or over who is —

(a)the child’s parent or guardian; or

(b)a person who for the time being takes responsibility for the child.

(2) The person mentioned in paragraph (1)(b) may not be —

(a)an officer of the Secretary of State who is not an authorised person;

(b)an authorised person; or

(c)any other person acting on behalf of an authorised person under regulation 8(2)(d).

(3) This regulation does not apply if the authorised person reasonably believes that the person who is to be fingerprinted or photographed is aged sixteen or over.

Process by which a person’s fingerprints and photograph may be obtained and recorded

8.—(1) An authorised person who requires a person to provide a record of his fingerprints or a photograph of his face under regulation 5 may require the person to submit to any process, or any combination of processes, specified in paragraph (2).

(2) An authorised person may —

(a)require a person to make an appointment before a specified date, which the person must attend, to enable a record of his fingerprints or a photograph of his face to be taken;

(b)specify the date, time and place for the appointment;

(c)specify any documents which the person must bring to the appointment, or action which the person must take, to confirm his appointment and identity; and

(d)require a person to attend premises where a record of his fingerprints or a photograph of his face is taken by a person on behalf of an authorised person.

(3) An authorised person may require a record of fingerprints or photograph to be of a particular specification.

(4) Where an authorised person requires a person to submit to any process, or any combination of processes, in accordance with paragraph (1), the person must submit to it.

Use and retention of biometric information

9.  Subject to regulations 10 and 11, the Secretary of State may use a record of a person’s fingerprints or a photograph of a person’s face provided in accordance with these Regulations —

(a)in connection with the exercise of a function by virtue of the Immigration Acts;

(b)in connection with the control of the United Kingdom’s borders;

(c)in connection with the exercise of a function related to nationality;

(d)in connection with the prevention, investigation, or prosecution of an offence;

(e)for a purpose which appears to the Secretary of State to be required in order to protect national security;

(f)in connection with identifying victims of an event or situation which has caused loss of human life or human illness or injury;

(g)for the purpose of ascertaining whether any person has failed to comply with the law or has gained, or sought to gain, a benefit or service, or has asserted an entitlement, to which he is not by law entitled.

10.  Subject to regulation 11, any record of a person’s fingerprints or his photograph, or any copy of them, held by the Secretary of State pursuant to these Regulations must be destroyed if the Secretary of State thinks it is no longer likely to be of use in accordance with regulation 9.

11.  If a person proves that he is —

(a)a British citizen; or

(b)a Commonwealth citizen who has a right of abode in the United Kingdom as a result of section 2(1)(b) of the Immigration Act 1971 (statement of right of abode in the United Kingdom)(3),

any record of the person’s fingerprints or his photograph, or any copy of them, held by the Secretary of State pursuant to these Regulations must be destroyed as soon as reasonably practicable.

12.—(1) The Secretary of State must take all reasonably practicable steps to secure —

(a)that data held in an electronic form which relate to any record of fingerprints or photograph which has to be destroyed in accordance with regulation 10 or 11 are destroyed or erased; or

(b)that access to such data is blocked.

(2) The person to whom the data relate is entitled, on written request, to a certificate issued by the Secretary of State to the effect that he has taken the steps required by paragraph (1).

(3) A certificate issued under paragraph (2) must be issued within three months of the date on which the request was received by the Secretary of State.

Issue of a biometric immigration document

13.—(1) The Secretary of State may issue a biometric immigration document to a person who has applied in accordance with regulation 3, provided the Secretary of State has decided to grant limited leave to remain to the person.

(2) A biometric immigration document begins to have effect on the date of issue.

(3) A biometric immigration document ceases to have effect on one of the dates specified in paragraph (4), whichever date occurs earliest.

(4) The specified dates are —

(a)the date that the person’s leave to remain ceases to have effect, including where the leave to remain is varied, cancelled or invalidated, or is to lapse;

(b)in the case of a biometric immigration document which was issued to a person aged eighteen or over, the date after the expiry of ten years beginning with the date of issue; or

(c)in the case of a biometric immigration document which was issued to a person aged under eighteen, the date after the expiry of five years beginning with the date of issue.

Requirement to surrender documents connected with immigration and nationality

14.—(1) On issuing the biometric immigration document, the Secretary of State may require the surrender of other documents connected with immigration or nationality.

(2) Where the Secretary of State requires the surrender of other documents, the person must comply with the requirement.

Content of a biometric immigration document

15.—(1) A biometric immigration document may contain some or all of the following information on the face of the document —

(a)the title of the document;

(b)the document number;

(c)the name of the holder;

(d)the holder’s date of birth;

(e)the holder’s place of birth;

(f)the holder’s nationality;

(g)the sex of the holder;

(h)the period of leave to remain which the person is granted;

(i)the class of leave to remain which the person is granted;

(j)any conditions to which the limited leave to remain is subject or remarks relating to those conditions;

(k)the place and date of issue of the document;

(l)the period for which the document is valid;

(m)the holder’s facial image;

(n)the signature of the holder;

(o)a machine readable code;

(p)a hologram;

(q)an emblem of the United Kingdom and the words “United Kingdom”;

(r)the symbol of the International Civil Aviation Organization denoting a machine readable travel document which contains a contactless microchip; and

(s)any additional security features.

(2) A biometric immigration document may contain some or all of the following within a radio frequency electronic microchip embedded in the document —

(a)any of the information specified in paragraph (1)(a) to (m);

(b)information relating to a record of any two of the holder’s fingerprints; and

(c)any additional security features.

Surrender of a biometric immigration document

16.—(1) The Secretary of State may require the surrender of a biometric immigration document as soon as reasonably practicable if he thinks that —

(a)information provided in connection with the document was or has become false, misleading or incomplete;

(b)the document (including any information recorded in it) has been altered, damaged or destroyed (whether deliberately or not);

(c)an attempt has been made (whether successfully or not) to copy the document or to do anything to enable it to be copied;

(d)the document should be re-issued (whether because the information recorded in it requires alteration or for any other reason);

(e)the holder’s leave to remain is to be varied, cancelled or invalidated, or is to lapse;

(f)a person has acquired the biometric immigration document without the consent of the holder or of the Secretary of State;

(g)the document has ceased to have effect under regulation 13(3) or has been cancelled under regulation 17; or

(h)the holder has died.

(2) Where a person is required to surrender the biometric immigration document under paragraph (1), the person must comply with the requirement.

Cancellation of a biometric immigration document

17.  The Secretary of State may cancel a biometric immigration document if he thinks that —

(a)information provided in connection with the document was or has become false, misleading or incomplete;

(b)the document has been lost or stolen;

(c)the document (including any information recorded in it) has been altered, damaged or destroyed (whether deliberately or not);

(d)an attempt has been made (whether successfully or not) to copy the document or to do anything to enable it to be copied;

(e)a person has failed to surrender the document when required to do so under regulation 16(a) to (f) or (h);

(f)the document should be re-issued (whether because the information recorded in it requires alteration or for any other reason);

(g)a person has acquired the biometric immigration document without the consent of the holder or of the Secretary of State; or

(h)the holder has died.

Requirement for the holder of a document to notify the Secretary of State

18.  The holder of a biometric immigration document must notify the Secretary of State as soon as reasonably practicable if he —

(a)knows or suspects that information provided in connection with the document was or has become false, misleading or incomplete;

(b)knows or suspects that the document has been lost or stolen;

(c)knows or suspects that the document (including any information recorded in it) has been altered or damaged (whether deliberately or not);

(d)was given leave to enter or remain in the United Kingdom in accordance with a provision of the immigration rules and knows or suspects that owing to a change of his circumstances he would no longer qualify for leave under that provision; or

(e)knows or suspects that another person has acquired the biometric immigration document without his consent or the consent of the Secretary of State.

Requirement to apply for a replacement biometric immigration document

19.—(1) A person who has been issued with a biometric immigration document under regulation 13(1) is required to apply for a replacement biometric immigration document where his original document —

(a)has been cancelled under regulation 17; or

(b)has ceased to have effect under regulation 13(4)(b) or (c).

(2) A person required to apply for a biometric immigration document under paragraph (1) must do so within 3 months beginning with the date that the original document was cancelled or ceased to have effect.

Application of these Regulations to a person who is required to apply for a replacement biometric immigration document

20.—(1) These Regulations apply to a person who makes an application for a biometric immigration document in accordance with regulation 19 just as they apply to a person who makes an application for a document in accordance with regulation 3, with the modification in paragraph (2).

(2) The Secretary of State may issue a biometric immigration document to a person who has applied in accordance with regulation 19, provided the person has limited leave to remain.

Requirement to use a biometric immigration document

21.—(1) The holder of a biometric immigration document must provide his document to an immigration officer or the Secretary of State, as applicable, —

(a)where he is examined by an immigration officer under paragraph 2, 2A or 3 of Schedule 2 to the Immigration Act 1971;

(b)where he is examined by an immigration officer under Article 7(2) of the Immigration (Leave to Enter and Remain) Order 2000(4);

(c)where he is examined by the Secretary of State under Article 3 of the Immigration (Leave to Enter) Order 2001(5);

(d)where he makes an application for further leave to remain to the Secretary of State;

(e)when his dependant makes an application for entry clearance, leave to enter or leave to remain as his dependant; or

(f)when he is the sponsor under the immigration rules of a person who seeks entry clearance, leave to enter or leave to remain in the United Kingdom.

(2) Where the holder of a biometric immigration document attends premises to take a test known under the immigration rules as the “Life in the UK Test”, he must provide his document to the representative of the educational institution, or other person, who is administering the test.

(3) The holder of a biometric immigration document must provide his document to a prospective employer or employer —

(a)prior to the commencement of his employment; and

(b)on the anniversary of the date that the document was first produced, provided he is still working for that employer on that date.

Requirement to provide information for comparison

22.—(1) A person who provides a biometric immigration document in accordance with regulation 21(1) or (2) is required to provide biometric information for comparison with biometric information provided in connection with the application for the document.

(2) Where the document is provided to an authorised person, the authorised person may require the provision of the information in a specified form.

(3) Regulation 8 applies to a person required to provide information under paragraph (1) as it applies to a person who is required to provide biometric information under regulation 5.

Consequences of a failure to comply with a requirement of these Regulations

23.—(1) Where a person who is required to make an application for the issue of a biometric immigration document fails to comply with a requirement of these Regulations, the Secretary of State —

(a)may take any, or any combination, of the actions specified in paragraph (2); and

(b)must consider giving a notice under section 9 of the UK Borders Act 2007.

(2) The actions specified are to —

(a)refuse an application for a biometric immigration document;

(b)disregard the person’s application for leave to remain;

(c)refuse the person’s application for leave to remain; and

(d)cancel or vary leave to enter or remain.

(3) Where any person apart from a person referred to in paragraph (1) fails to comply with a requirement of these Regulations, the Secretary of State must consider giving a notice under section 9 of the UK Borders Act 2007.

(4) The Secretary of State may designate an adult as the person responsible for ensuring that a child complies with the requirements of these Regulations.

Revocation and transitional provisions

24.—(1) Subject to paragraph (2), the Immigration (Biometric Registration) (Pilot) Regulations 2008(6) are revoked.

(2) The Immigration (Biometric Registration) (Pilot) Regulations 2008 continue to apply to a person who was required to apply for a biometric immigration document in accordance with regulation 3 of those Regulations before the coming into force of these Regulations, subject to paragraph (3).

(3) These Regulations apply to any application for leave to remain falling within regulation 3 of these Regulations, which is made by a person referred to in paragraph (2) on or after the coming into force of these Regulations.

Meg Hillier
Parliamentary Under Secretary of State
Home Office
24th November 2008

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations require certain persons subject to immigration control to apply for a biometric immigration document. They require holders of the document to use it in certain circumstances and when they do so, to provide information for comparison with the biometric information provided as part of the original application for the document.

Regulation 3 sets out who must apply for a biometric immigration document. A person who applies for leave to remain in the UK in one of the specified categories under the immigration rules set out in regulation 4 must apply for a document, as must his dependants. This is provided the person applies for leave to remain on the appropriate form. The specified categories under the immigration rules concern some student applications and some family applications.

Regulation 5 permits an authorised person to require a person who applies for a biometric immigration document to provide biometric information, that is, a record of his fingerprints and a photograph of his face. An authorised person is defined in section 141(5) of the Immigration and Asylum Act 1999.

Regulation 6 allows the Secretary of State to use fingerprints or photographs relating to the person which he already has in his possession, rather than requiring the person to provide them again.

Regulation 7 provides certain safeguards in respect of children under 16. Regulation 8 sets out the various processes which an authorised person may require a person to submit to so that his fingerprints or photograph can be recorded.

Regulations 9 to 12 make provision for the use, retention and destruction of biometric information provided under these Regulations.

Regulation 13 makes provision for the issue of a biometric immigration document, including provision for its expiry. Regulation 14 provides that the Secretary of State may require the surrender of other documents relating to immigration or nationality, for example, documents which previously granted the holder leave to enter or remain in the UK and which are to be replaced by the biometric immigration document.

Regulation 15 makes provision for the content of the biometric immigration document, which includes information and other items which may be contained in an electronic chip embedded in the document.

Regulations 16 and 17 provide when the Secretary of State can require the surrender of a biometric immigration document, or cancel a document. Regulation 18 sets out when the holder of a document must notify the Secretary of State of certain circumstances.

Regulations 19 and 20 provide for when a person is required to apply for a replacement document, and that these Regulations apply to a person who makes an application for a replacement document just as they apply to a person applying for a document for the first time, with one modification.

Regulations 21 and 22 set out when a person must use the document and provide information for comparison.

Regulation 23 provides for the consequences of a failure to comply with a requirement of the Regulations.

Regulation 24 revokes the Immigration (Biometric Regulation) (Pilot) Regulation 2008 and makes transitional provision.

(1)
2007 c.30.

(2)
1971 c.77.

(3)
Section 2(1)(b) was substituted by section 39(2) of the British Nationality Act 1981 (c.61).

(4)
SI 2000/1161.

(5)
SI 2001/2590.

(6)
SI 2008/1183.