Statutory Instruments
2012 No. 594
Immigration
The Immigration (Biometric Registration) (Amendment) Regulations 2012
Made
28th February 2012
Coming into force in accordance with regulation 1(2)
The Secretary of State makes the following Regulations in exercise of the powers conferred by sections 5, 6(6) and 7 of the UK Borders Act 2007(1).
In accordance with section 6(6)(e) of that Act, a draft of these Regulations was laid before and approved by a resolution of each House of Parliament.
Citation, commencement and interpretation
1.—(1) These Regulations may be cited as the Immigration (Biometric Registration) (Amendment) Regulations 2012.
(2) These Regulations come into force on the day after the day on which they are made.
(3) In these Regulations, the “2008 Regulations” means the Immigration (Biometric Registration) Regulations 2008(2).
Amendments to the 2008 Regulations
2. The 2008 Regulations are amended as follows.
3. For regulation 2 substitute—
“2. In these Regulations—
“Certificate of Travel” means a travel document issued in the United Kingdom at the discretion of the Secretary of State to persons who have been formally and, in the view of the Secretary of State, unreasonably refused a passport by their own authorities and who have—
(a)
been refused recognition as a refugee or as a stateless person but have been granted discretionary leave to remain or humanitarian protection; or
(b)
been granted indefinite leave to enter or remain;
“Convention travel document” means a travel document issued pursuant to Article 28 of the Geneva Convention;
“dependant” means a spouse, a civil partner, an unmarried or same sex partner, or a child;
“Geneva Convention” means the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and the New York Protocol of 31st January 1967;
“humanitarian protection” means protection granted in accordance with paragraph 339C of the immigration rules;
“immigration rules” means the rules for the time being laid down as mentioned in section 3(2) of the Immigration Act 1971(3);
“leave to remain” means limited or indefinite leave to remain in the United Kingdom given in accordance with the provisions of the Immigration Act 1971 or the immigration rules;
“refugee” means a person who falls within Article 1(A) of the Geneva Convention and to whom regulation 7 of the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 does not apply(4);
“Stateless Convention” means the Convention relating to the Status of Stateless Persons done at New York on 28th September 1954; and
“Stateless Person’s Travel Document” means a travel document issued pursuant to Article 28 of the Stateless Convention.”.
4. For regulation 3 (requirement to apply for a biometric immigration document) substitute—
“Requirement to apply for a biometric immigration document
3.—(1) Subject to paragraph (6), a person subject to immigration control must apply for the issue of a biometric immigration document where he—
(a)satisfies the condition in paragraph (2); or
(b)is a person falling within paragraph (3).
(2) The condition is that whilst in the United Kingdom the person makes an application—
(a)for limited leave to remain for a period which, together with any preceding period of leave to enter or remain, exceeds a cumulative total of 6 months leave in the United Kingdom;
(b)for indefinite leave to remain;
(c)to replace a stamp, sticker or other attachment in a passport or other document which indicated that he had been granted limited or indefinite leave to enter or remain in the United Kingdom;
(d)to replace a letter which indicated that he had been granted limited or indefinite leave to enter or remain in the United Kingdom;
(e)to be recognised as a refugee or a person in need of humanitarian protection;
(f)to be recognised as a stateless person in accordance with Article 1 of the Stateless Convention;
(g)for a Convention Travel Document, Stateless Person’s Travel Document or a Certificate of Travel and does not already hold a valid biometric immigration document; or
(h)as the dependant of a person who is making an application in accordance with sub-paragraph (a), (b), (e) or (f).
(3) Subject to paragraph (4), a person falls within this paragraph if he has been notified on or after 1st December 2012 that the Secretary of State has decided to grant him—
(a)limited leave to remain for a period which, together with any preceding period of leave to enter or remain, exceeds a cumulative total of 6 months leave in the United Kingdom; or
(b)indefinite leave to remain.
(4) A person does not fall within paragraph (3) if—
(a)he was required to apply for a biometric immigration document in respect of his application for that leave; or
(b)he was required to apply for a biometric immigration document in respect of any application mentioned in paragraph (2).
(5) Where a person is required to apply for a biometric immigration document, that application must be made on the form or in the manner specified for that purpose (if one is specified) in the immigration rules.
(6) These Regulations do not apply to a person who applies for or is granted leave to remain in accordance with paragraphs 56R and 56U of the immigration rules (Olympic or Paralympic Games Family Member Visitor or an Olympic or Paralympic Games Family Member Child Visitor)(5).”.
5. Omit regulation 4 (specified categories under the immigration rules).
6.—(1) Regulation 8 (process by which a person’s fingerprints and photograph may be obtained and recorded) is amended as follows.
(2) At the end of paragraph (2)(c) omit “and”.
(3) For regulation 8(2)(d) substitute—
“(d)require a person to attend premises before a specified date where a record of his fingerprints or a photograph of his face is taken by a person on behalf of an authorised person; and
(e)specify any documents which the person must bring to the premises, or action which the person must take to confirm his identity.”.
7. In regulation 13(1) (issue of a biometric immigration document) for “grant limited leave to remain to the person” substitute—
“(a)grant limited leave to remain to the person for a period which, together with any preceding period of leave to enter or remain, exceeds a cumulative total of 6 months leave in the United Kingdom; or
(b)grant indefinite leave to remain to the person; or
(c)issue or replace a document to the person following an application mentioned in regulation 3(2)(c), (d) or (g).”.
8.—(1) Regulation 21(requirement to use a biometric immigration document) is amended as follows.
(2) In paragraph (1)—
(a)for sub-paragraph (d) substitute—
“(d)where he makes an application for entry clearance, leave to enter or leave to remain;
(da)where he makes an application to be recognised as a refugee, as a person in need of humanitarian protection, or as a stateless person in accordance with Article 1 of the Stateless Convention;
(db)where he applies as a dependant of a person who makes an application mentioned in sub-paragraph (d) or (da);
(dc)where he makes an application for a Convention Travel Document, Stateless Person’s Travel Document or a Certificate of Travel;”;
(b)for sub-paragraph (e) substitute—
“(e)when his dependant makes an application—
(i)for entry clearance, leave to enter, leave to remain; or
(ii)to be recognised as a refugee, as a person in need of humanitarian protection, or as a stateless person in accordance with Article 1 of the Stateless Convention;”.
(3) At the beginning of paragraph (3)(b) insert “where he has limited leave to remain,”.
(4) After paragraph (3)insert—
“(4) Where the holder of a biometric immigration document makes—
(a)an application for a certificate of entitlement under section 10 of the Nationality, Immigration and Asylum Act 2002(6) that a person has the right of abode in the United Kingdom;
(b)an application for a letter or other document confirming a person’s immigration or nationality status or that a person is not a British citizen;
(c)an application for naturalisation as a British citizen under section 6(1) or (2) of the British Nationality Act 1981(7), or as a British overseas territories citizen under section 18(1) or (2) of that Act; or
(d)an application for registration under any provision of the British Nationality Act 1981,
he must provide his biometric immigration document to the Secretary of State or a person acting on behalf of the Secretary of State in connection with that application.”.
9. In regulation 22(1) (requirement to provide information for comparison) for the words “regulation 21(1) or (2)” substitute “regulation 21”.
10. For regulation 23 substitute—
“Consequences of a failure to comply with a requirement of these Regulations
23.—(1) Subject to paragraphs (3) and (4), 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)treat the person’s application for leave to remain as invalid;
(c)refuse the person’s application for leave to remain; and
(d)cancel or vary the person’s leave to enter or remain.
(3) Where a person is required to apply for a biometric immigration document under regulation 3(2)(a) or (b) or as a dependant of a person who has made an application in accordance with regulation 3(2)(a) or (b) and fails to comply with a requirement of these Regulations, the Secretary of State—
(a)must refuse the person’s application for a biometric immigration document;
(b)must treat the person’s application for leave to remain as invalid; and
(c)may cancel or vary the person’s leave to enter or remain.
(4) Where a person is required to apply for a biometric immigration document under regulation 3(2)(e), (f) or (g) or as the dependant of a person who has made an application in accordance with regulation 3(2)(e) or (f) and fails to comply with a requirement of these Regulations the Secretary of State—
(a)may refuse the application for a biometric immigration document; and
(b)must consider giving a notice under section 9 of the UK Borders Act 2007.
(5) Where any person apart from a person referred to in paragraph (1), (3) or (4) 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.
(6) The Secretary of State may designate an adult as the person responsible for ensuring that a child complies with the requirements of these Regulations.”.
Damian Green
Minister of State
Home Office
28th February 2012
EXPLANATORY NOTE
(This note is not part of the Regulations)
These Regulations amend the Immigration (Biometric Registration) Regulations 2008 (“the 2008 Regulations”) so as to extend the categories of persons who are required to apply for a biometric immigration document. They also allow the United Kingdom to complete the in-country rollout to issue biometric immigration documents pursuant to the Council Regulation 1030/2002 (laying down a uniform format for residence permits for third country nationals).
Regulation 4 substitutes in its entirety regulation 3 of the 2008 Regulations to extend the requirement to apply for a biometric immigration document to those individuals who satisfy one of the conditions in regulation 3(2). In addition, under the substituted regulation 3(3) a person who has been notified on or after 1st December 2012 that the Secretary of State has decided to grant him leave to remain and was not required to apply for a biometric immigration document in respect of that leave will be required to apply for biometric immigration document.
Regulation 8 amends regulation 21 of the 2008 regulations as to the circumstances when the holder of a biometric immigration document will be required to provide it to the Secretary of State or an immigration officer. Regulation 10 amends regulation 23 of the 2008 Regulations as to the consequences of a failure to comply with the Regulations. These amendments take account of the different groups of people that now fall within the scope of the 2008 Regulations, such as those applying to be recognised as a refugee.
A full impact assessment of the effect that this instrument will have on the costs of business is available from the UK Border Agency at www.UKBA.homeoffice.gov.uk and is published with the Explanatory Memorandum alongside the instrument on www.legislation.gov.uk
(1)
2007 c.30. Section 5(6) was amended by section 12 of, and paragraph 19 of the Schedule to, the Identity Documents Act 2010 (c.40).
(2)
S.I. 2008/3048, as amended by S.I. 2009/819, S.I. 2009/3321 and S.I. 2010/2958.
(3)
1971 c.77.
(4)
S.I. 2006/2525.
(5)
Paragraphs 56R to 56W were inserted by the statement of changes in immigration rules presented to Parliament on 10th October 2011 (HC 1511).
(6)
2002 c.41; section10(2) was amended by section 50(5) of the Immigration, Asylum and Nationality Act 2006 (c.13); section 10 (2)(e) was repealed by sections 52(7), 61, Schedule 2, paragraph 4(a), Schedule 3 of the same Act; section 10(2)(f) substituted by section 52(7), Schedule 2, paragraph 4(b) of that same Act.
(7)
1981 c.61; section 6(2) was amended by section 261 and paragraph 72 of Schedule 27 to the Civil Partnership Act 2004 (c.33); subsections (2), (3) and (4) were amended by section 40(1) and (2) respectively of the Borders, Citizenship and Immigration Act 2009 (c.11); section 18(1), (2) and (3) were amended by sections 1 and 2 of the British Overseas Territories Act 2002 (c.8); section 18(2) was amended by section 261 and paragraph 72 of Schedule 27 to the Civil Partnership Act 2004 (c.33).
