Education under 16
Is there a duty on local authorities to supply information to the Immigration Service or UK Border Agency (UKBA) on suspected ‘immigration offenders’ resident in their area?
Since 8th January 2003, schedule 3 of the Nationality Immigration and Asylum Act 2002 has imposed a duty on Local Authorities to inform the Home Office when persons they suspect of being:
1) in the UK unlawfully; or
2) failed asylum seekers who have failed to cooperate with their removal directions,
apply to them for support or assistance under various statutory provisions[1].
In addition to the duty under Schedule 3, a further duty is imposed on Local Authorities by section 129 of the Act. Unlike the duty imposed by Schedule 3 - which is wide and relates to the reporting of all 'suspected' persons - the duty under section 129 only arises where the Home Office (including the Immigration Service) request information in respect of a specified individual.
Where the Home Office require a local authority to supply information for the purpose of 'establishing where a person is' on the ground they reasonably suspect that the person has committed one of a number of immigration offences[2] and that he is or has been resident in the local authority area, the local authority must supply that information.[3]
Guidance to local authorities on how to apply the provision [4] (which came into force on 30th July 2003) has been issued. In summary the main points are:
- The UKBA (previously BIA or IND) must have a reasonable suspicion that one of the specified immigration offences has been committed before making the request to the local authority. There is no obligation or reason for a local authority to enquire into or question the basis for UKBA's suspicions.
- Local authorities will be exempt from the 'personal data non-disclosure provisions' of the Data Protection Act 1998 by virtue of the power conferred by this provision.
- As the disclosure to UKBA of the information relates to the apprehension of offenders, the need to notify the individual of the disclosure is obviated. The LA is asked not to take any independent action against named individuals without first consulting the requesting officer.
- The guidance proposes that (Immigration Service) Local Enforcement Offices (LEO) direct requests for information to the head of the LA fraud unit, unless the requesting LEO makes alternative arrangements with particular authorities.
- Requests for information will be made in writing (including verifiable fax and where possible secure e-mail)
- There are no statutory time limits for responding to a request but BA would expect a response within 14 calendar days of the request being made.
- Where no further action is planned by UKBA , the LA will be informed to allow them 'to commence any investigations regarding entitlement to local services' where appropriate.
- Chief executives of LA's are 'encouraged' to make staff aware of section 129 and to put in place arrangements for records and databases maintained by different departments to be searched for relevant information and for the information to be provided to UKBA via a single point of contact within the authority.
- The LA would be expected to check records relating to collection of council tax, payment of housing benefit, provision of housing and other services including services provided to known asylum seekers. It is not expected that the LA would check education department records (unless the specified individual was suspected of being employed in the education system). It is not expected that the LA would check the 'detailed contents' of child protection or other sensitive social services records. It is not expected that checks should be made through the electoral and civil registration departments.
- Requests from the UKBA should quote the relevant legislation under which the request is being made.
The Children's Legal Centre has been informed that requests for information on 'suspected immigration offenders' have been made direct to schools. The legislation and the guidance do not appear to provide for this.
- Where LA's receive reports from schools that this has occurred the matter should be followed up with the relevant Home Office department and arrangements for the supply of information by the LA under section 129 clarified.
- Where a request is made direct to a school by telephone, local authorities should consider a complaint against the officer requesting the information as this is a clear breach of the guidance.
- Local Authorities should inform head teachers of the arrangements that are in place within their authority to respond to requests from the Immigration Service under the legislation including details of the central point of contact within the authority. LA's should also advise schools on how to respond in the event that they are contacted directly by the Immigration Service.
Revised 25/01/08
Notes
[1] Paragraph 14 (1) of Schedule 3 of the Act imposes the duty on local authorities to inform the Secretary of State of any person who it appears to them may be ineligible for support under paragraph 1 of the Schedule and who is also a failed asylum seeker who has failed to co-operate with their removal or who is unlawfully in the United Kingdom.
[2] The specified offences - all under the Immigration Act 1971 (as amended) - relate to; illegal entry and similar offences - e.g. entry to the UK without leave (permission) or in breach of a deportation order, overstaying a period of 'limited leave', failing to observe a condition of leave (e.g. working without permission); deception - e.g. in obtaining or seeking leave to enter or remain in the UK or in seeking to avoid , postpone or revoke enforcement of removal or; general offences in connection with the administration of the '71 Act - e.g. making false representations, statements or returns to an immigration officer or altering any certificate of entitlement to entry clearance, permission to work or other document issued or made under the Act or possession of such a document known to be false.
[3] Nationality, Immigration and Asylum Act 2002, section 129 (2)
[4] See "Nationality, Immigration and Asylum Act 2002-Section 129: Disclosure of Information by Local Authorities to the Home Office Immigration and Nationality Directorate about Suspect Immigration Offenders. Guidance to Local Authorities and Housing Authorities."
