Immigration (Jersey) Order 2016

The Immigration (Jersey) Order 2016 Made by Her Majesty in Council 12th October 2016 Registered by the Royal Court 2nd December 2016 In force 9th December 2016 HER MAJESTY , in exercise of the powers conferred upon Her by section 170(7) of the Immigration and Asylum Act 1999 and section 76(6) of the Immigration Act 2014, is pleased, by and with the advice of Her Privy Council, to order as follows: 1 Citation, commencement and interpretation (1) This Order may be cited as the Immigration (Jersey) Order 2016 and comes into force on the seventh day after the day on which it is registered by the Royal Court of Jersey. (2) In this Order – “the 1999 Act” means the Immigration and Asylum Act 1999; “the 2003 Order” means the Immigration and Asylum Act 1999 (Jersey) Order 2003 [1] ; “the 2014 Act” means the Immigration Act 2014; and “Jersey” means the Bailiwick of Jersey. (3) For the purposes of construing provisions of the 2014 Act as part of the law of Jersey, a reference to an enactment which extends to Jersey is construed as a reference to that enactment as it has effect in Jersey. 2 Consequential amendment and saving (1) In the Schedule to the 2003 Order omit the entry relating to section 5 of the 1999 Act (charges). (2) Notwithstanding paragraph (1), any Order of the Minister for Home Affairs under section 5 of the 1999 Act having effect when this Order comes into force shall continue to have effect until the Minister for Home Affairs makes an Order under sections 67A, 67B and 67C of the 2014 Act as extended to Jersey by this Order. 3 Extension of the Immigration Act 2014 to Jersey Sections 68 to 70 of the 2014 Act shall extend to Jersey subject to the modifications specified in the Schedule to this Order. Richard tilbrook Clerk of the Privy Council SCHEDULE (Article 3) MODIFICATIONs of sections 68 TO 70 of the immigration act 2014 (fees) as they extend to jersey 1 Before section 68 insert the following sections 67A, 67B and 67C – “ 67A Fees (the Minister) (1) The Minister may by Order provide for fees to be charged in respect of the exercise of any function in connection with immigration or nationality exercised by – (a) the Lieutenant-Governor; (b) a Minister (within the meaning of Article 1(1) of the States of Jersey Law 2005 [2] ); (c) an immigration officer or any other States’ employee within the meaning of the Employment of States of Jersey Employees (Jersey) Law 2005 [3] , other than a function exercised by the Lieutenant-Governor under arrangements made with the Secretary of State under section 43 of the British Nationality Act 1981. (2) An Order under subsection (1) may not provide for a fee to be charged in respect of the exercise of a function otherwise than in connection with an application or claim, or on request. (3) An Order under subsection (1) may set fees – (a) of a fixed amount; or (b) of an amount calculated by reference to an hourly rate or other factor. (4) In respect of any fee set by an Order under subsection (1), the Order may – (a) provide for exceptions; (b) provide for the reduction, waiver or refund of part or all of a fee (whether by conferring a discretion or otherwise); (c) make provision about – (i) the consequences of failure to pay a fee; (ii) enforcement; (iii) when a fee may or must be paid. (5) This section is without prejudice to any other power to charge a fee. (6) The Subordinate Legislation (Jersey) Law 1960 [4] shall apply to Orders made under this section. (7) In this section and sections 67B and 67C – “enactment” includes an enactment of the United Kingdom having effect in Jersey; “function” includes a power or a duty; “function in connection with immigration or nationality” includes a function in connection with an enactment that relates wholly or partly to immigration or nationality; “Jersey” means the Bailiwick of Jersey; “Minister” means Minister for Home Affairs. (8) Any reference in this section and in section 67C to the exercise of a function includes a reference to its exercise in particular circumstances, including its exercise – (a) at particular times or in a particular place; (b) under particular arrangements; (c) otherwise in particular ways, and, for this purpose, “arrangements” includes arrangements for the convenience of applicants, claimants or persons making requests for the exercise of a function. 67B Fees orders (the Minister): supplemental (1) A fee under section 67A may relate to something done outside Jersey. (2) Fees payable by virtue of section 67A may be recovered as a debt due to the Minister. (3) Fees charged under an Order made under section 67A shall form part of the annual income of the States. 67C Power to charge fees for attendance services in particular cases (1) This section applies where a person exercises a function in connection with immigration or nationality in respect of which a fee is chargeable by virtue of an Order made under section 67A (a “chargeable function”) in a particular case and – (a) in doing so attends at a place outside Jersey, and time, agreed with a person (“the client”); and (b) does so at the request of the client. It is immaterial whether or not the client is a person in respect of whom the chargeable function is exercised. (2) In this section “attendance service” means the service described in subsection (1) except so far as it consists of the exercise of a chargeable function. (3) The following are to be disregarded in determining whether a fee is chargeable in respect of a function by virtue of an Order made under section 67A – (a) any exception provided for by the Order; (b) any power so provided to waive or refund a fee. (4) The person exercising the chargeable function may charge the client such fee for the purposes of recovering the costs of providing the attendance service as the person may determine. (5) Fees payable by virtue of subsection (4) may be recovered as a debt due to the States. (6) Fees charged under subsection (4) shall form part of the annual income of the States. (7) This section is without prejudice to section 67A or any other power to charge a fee.”. 2 In section 68 – (a) in subsection (1) after “immigration or nationality” insert “, other than functions for which a fee may be charged by virtue of an Order made by the Minister under section 67A or by virtue of section 67C.”; and (b) in subsection (12) – (i) in the definition of “function in connection with immigration or nationality” for “the United Kingdom” substitute “Jersey”; (ii) after that definition insert – “ “ Jersey ” means the Bailiwick of Jersey”; “Minister” means the Minister for Home Affairs;”. 3 In section 69 – (a) in subsection (2) for “the United Kingdom” substitute “Jersey”; (b) after subsection (4) insert – “(4A) Notwithstanding subsections (3) and (4), in relation to a function exercised by the Lieutenant-Governor under arrangements made with the Secretary of State under section 43 of the British Nationality Act 1981 – (a) fees payable by virtue of section 68 may be recovered as a debt due to the Minister; and (b) fees paid by virtue of section 68 shall form part of the annual income of the States.”. 4 In section 70 – (a) in subsection (1) for “the United Kingdom” substitute “Jersey”; and (b) after subsection (6) insert – “(6A) Notwithstanding subsections (5) and (6), in relation to a function exercised by the Lieutenant-Governor under arrangements made with the Secretary of State under section 43 of the British Nationality Act 1981 – (a) fees paid by virtue of this section shall form part of the annual income of the States; and (b) a fee payable by virtue of this section may be recovered as a debt due to the Minister.”. IMMIGRATION ACT 2014 (2014 c. 22) CONTENTS PART 1 * * * * * * * PART 2 * * * * * * * PART 3 * * * * * * * PART 4 * * * * * * * PART 5 * * * * * * * PART 6 MISCELLANEOUS Citizenship 65–66 * * * * * * * Embarkation checks 67 * * * * * * * Fees [67A Fees (the Minister) 67B Fees Orders (the Minister): supplemental 67C Power to charge fees for attendance services in particular cases] 68 Fees 69 Fees orders and fees regulations: supplemental 70 Power to charge fees for attendance services in particular cases Welfare of children 71 * * * * * * * PART 7 * * * * * * * ____________________ SCHEDULES 1–9 – * * * * * * * ELIZABETH II IMMIGRATION ACT 2014 2014 CHAPTER 22 A N ACT to make provision about immigration law; to limit, or otherwise make provision about, access to services, facilities and employment by reference to immigration status; to make provision about marriage and civil partnership involving certain foreign nationals; to make provision about the acquisition of citizenship by persons unable to acquire it because their fathers and mothers were not married to each other and provision about the removal of citizenship from persons whose conduct is seriously prejudicial to the United Kingdom’s vital interests; and for connected purposes. [14th May 2014] B E IT ENACTED by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows [5] – PART 1 * * * * * * * PART 2 * * * * * * * PART 3 * * * * * * * PART 4 * * * * * * * PART 5 * * * * * * * PART 6 MISCELLANEOUS Citizenship 65–66 * * * * * * * Embarkation checks 67 * * * * * * * Fees [ 67A Fees (the Minister) (1) The Minister may by Order provide for fees to be charged in respect of the exercise of any function in connection with immigration or nationality exercised by – (a) the Lieutenant-Governor; (b) a Minister (within the meaning of Article 1(1) of the States of Jersey Law 2005); (c) an immigration officer or any other States’ employee within the meaning of the Employment of States of Jersey Employees (Jersey) Law 2005, other than a function exercised by the Lieutenant-Governor under arrangements made with the Secretary of State under section 43 of the British Nationality Act 1981. (2) An Order under subsection (1) may not provide for a fee to be charged in respect of the exercise of a function otherwise than in connection with an application or claim, or on request. (3) An Order under subsection (1) may set fees – (a) of a fixed amount; or (b) of an amount calculated by reference to an hourly rate or other factor. (4) In respect of any fee set by an Order under subsection (1), the Order may – (a) provide for exceptions; (b) provide for the reduction, waiver or refund of part or all of a fee (whether by conferring a discretion or otherwise); (c) make provision about – (i) the consequences of failure to pay a fee; (ii) enforcement; (iii) when a fee may or must be paid. (5) This section is without prejudice to any other power to charge a fee. (6) The Subordinate Legislation (Jersey) Law 1960 shall apply to Orders made under this section. (7) In this section and sections 67B and 67C – “enactment” includes an enactment of the United Kingdom having effect in Jersey; “function” includes a power or a duty; “function in connection with immigration or nationality” includes a function in connection with an enactment that relates wholly or partly to immigration or nationality; “Jersey” means the Bailiwick of Jersey; “Minister” means Minister for Home Affairs. (8) Any reference in this section and in section 67C to the exercise of a function includes a reference to its exercise in particular circumstances, including its exercise – (a) at particular times or in a particular place; (b) under particular arrangements; (c) otherwise in particular ways, and, for this purpose, “arrangements” includes arrangements for the convenience of applicants, claimants or persons making requests for the exercise of a function. 67B Fees orders (the Minister): supplemental (1) A fee under section 67A may relate to something done outside Jersey. (2) Fees payable by virtue of section 67A may be recovered as a debt due to the Minister. (3) Fees charged under an Order made under section 67A shall form part of the annual income of the States. 67C Power to charge fees for attendance services in particular cases (1) This section applies where a person exercises a function in connection with immigration or nationality in respect of which a fee is chargeable by virtue of an Order made under section 67A (a “chargeable function”) in a particular case and – (a) in doing so attends at a place outside Jersey, and time, agreed with a person (“the client”); and (b) does so at the request of the client. It is immaterial whether or not the client is a person in respect of whom the chargeable function is exercised. (2) In this section “attendance service” means the service described in subsection (1) except so far as it consists of the exercise of a chargeable function. (3) The following are to be disregarded in determining whether a fee is chargeable in respect of a function by virtue of an Order made under section 67A – (a) any exception provided for by the Order; (b) any power so provided to waive or refund a fee. (4) The person exercising the chargeable function may charge the client such fee for the purposes of recovering the costs of providing the attendance service as the person may determine. (5) Fees payable by virtue of subsection (4) may be recovered as a debt due to the States. (6) Fees charged under subsection (4) shall form part of the annual income of the States. (7) This section is without prejudice to section 67A or any other power to charge a fee.] 68 Fees (1) The Secretary of State may provide, in accordance with this section, for fees to be charged in respect of the exercise of functions in connection with immigration or nationality[, other than functions for which a fee may be charged by virtue of an Order made by the Minister under section 67A or by virtue of section 67C]. (2) The functions in respect of which fees are to be charged are to be specified by the Secretary of State by order (“a fees order”). (3) A fees order – (a) must specify how the fee in respect of the exercise of each specified function is to be calculated, and (b) may not provide for a fee to be charged in respect of the exercise of a function otherwise than in connection with an application or claim, or on request. (4) For any specified fee, a fees order must provide for it to comprise one or more amounts each of which is – (a) a fixed amount, or (b) an amount calculated by reference to an hourly rate or other factor. (5) Where a fees order provides for a fee (or part of a fee) to be a fixed amount, it – (a) must specify a maximum amount for the fee (or part), and (b) may specify a minimum amount. (6) Where a fees order provides for a fee (or part of a fee) to be calculated as mentioned in subsection (4)(b), it – (a) must specify – (i) how the fee (or part) is to be calculated, and (ii) a maximum rate or other factor, and (b) may specify a minimum rate or other factor. (7) For any specified fee, the following are to be set by the Secretary of State by regulations (“fees regulations”) – (a) if the fee (or any part of it) is to be a fixed amount, that amount; (b) if the fee (or any part of it) is to be calculated as mentioned in subsection (4)(b), the hourly rate or other factor by reference to which it (or that part) is to be calculated. (8) An amount, or rate or other factor, set by fees regulations for a fee in respect of the exercise of a specified function – (a) must not – (i) exceed the maximum specified for that amount, or rate or other factor; (ii) be less than the minimum, if any, so specified; (b) subject to that, may be intended to exceed, or result in a fee which exceeds, the costs of exercising the function. (9) In setting the amount of any fee, or rate or other factor, in fees regulations, the Secretary of State may have regard only to – (a) the costs of exercising the function; (b) benefits that the Secretary of State thinks are likely to accrue to any person in connection with the exercise of the function; (c) the costs of exercising any other function in connection with immigration or nationality; (d) the promotion of economic growth; (e) fees charged by or on behalf of governments of other countries in respect of comparable functions; (f) any international agreement. This is subject to section 69(5). (10) In respect of any fee provided for under this section, fees regulations may – (a) provide for exceptions; (b) provide for the reduction, waiver or refund of part or all of a fee (whether by conferring a discretion or otherwise); (c) make provision about – (i) the consequences of failure to pay a fee; (ii) enforcement; (iii) when a fee may or must be paid. (11) Any provision that may be made by fees regulations by virtue of subsection (10) may be included instead in a fees order (and any provision so included may be amended or revoked by fees regulations). (12) In this section and sections 69 and 70 – “costs” includes – (a) the costs of the Secretary of State, and (b) the costs of any other person (whether or not funded from public money); “fees order” has the meaning given by subsection (2); “fees regulations” has the meaning given by subsection (7); “function” includes a power or a duty; “function in connection with immigration or nationality” includes a function in connection with an enactment (including an enactment of a jurisdiction outside [Jersey]) that relates wholly or partly to immigration or nationality; [“Jersey” means the Bailiwick of Jersey; “Minister” means the Minister for Home Affairs;] “specified” means specified in a fees order. (13) Any reference in this section or section 70 to the exercise of a function includes a reference to its exercise in particular circumstances, including its exercise – (a) at particular times or in a particular place; (b) under particular arrangements; (c) otherwise in particular ways, and, for this purpose, “arrangements” includes arrangements for the convenience of applicants, claimants or persons making requests for the exercise of a function. 69 Fees orders and fees regulations: supplemental (1) A fees order or fees regulations may be made only with the consent of the Treasury. (2) A fee under section 68 may relate to something done outside the [Jersey]. (3) Fees payable by virtue of section 68 may be recovered as a debt due to the Secretary of State. (4) Fees paid to the Secretary of State by virtue of section 68 must – (a) be paid into the Consolidated Fund, or (b) be applied in such other way as the relevant order may specify. [(4A) Notwithstanding subsections (3) and (4), in relation to a function exercised by the Lieutenant-Governor under arrangements made with the Secretary of State under section 43 of the British Nationality Act 1981 – (a) fees payable by virtue of section 68 may be recovered as a debt due to the Minister; and (b) fees paid by virtue of section 68 shall form part of the annual income of the States.] (5) Section 68 is without prejudice to – (a) section 1 of the Consular Fees Act 1980 (fees for consular acts etc.); (b) section 102 of the Finance (No. 2) Act 1987 (government fees and charges), or (c) any other power to charge a fee. 70 Power to charge fees for attendance services in particular cases (1) This section applies where a person exercises a function in connection with immigration or nationality in respect of which a fee is chargeable by virtue of a fees order (a “chargeable function”) in a particular case and – (a) in doing so attends at a place outside [Jersey], and time, agreed with a person (“the client”), and (b) does so at the request of the client. It is immaterial whether or not the client is a person in respect of whom the chargeable function is exercised. (2) In this section “attendance service” means the service described in subsection (1) except so far as it consists of the exercise of a chargeable function. (3) The following are to be disregarded in determining whether a fee is chargeable in respect of a function by virtue of a fees order – (a) any exception provided for by a fees order or fees regulations; (b) any power so provided to waive or refund a fee. (4) The person exercising the chargeable function may charge the client such fee for the purposes of recovering the costs of providing the attendance service as the person may determine. (5) Fees paid to the Secretary of State by virtue of this section must be paid into the Consolidated Fund. (6) A fee payable by virtue of this section may be recovered as a debt due to the Secretary of State. [(6A) Notwithstanding subsections (5) and (6), in relation to a function exercised by the Lieutenant-Governor under arrangements made with the Secretary of State under section 43 of the British Nationality Act 1981 – (a) fees paid by virtue of this section shall form part of the annual income of the States; and (b) a fee payable by virtue of this section may be recovered as a debt due to the Minister.] (7) This section is without prejudice to – (a) section 68; (b) section 1 of the Consular Fees Act 1980 (fees for consular acts etc.); (c) section 102 of the Finance (No. 2) Act 1987 (government fees and charges), or (d) any other power to charge a fee. Welfare of children 71 * * * * * * * PART 7 * * * * * * * SCHEDULES SCHEDULES 1–9 * * * * * * * [1] chapter 21.770 [2] chapter 16.800 [3] chapter 16.325 [4] chapter 15.720 [5] Deletions and words in square brackets indicate adaptations and modifications made by The Immigration (Jersey) Order 2016