PART 1Introduction and days appointed

Citation and interpretation

1.  (1)  This Order may be cited as the Immigration Act 2014 (Commencement No. 3, Transitional and Saving Provisions) Order 2014.

(2) In this Order-

(a)"the 1971 Act" means the Immigration Act 1971(2);

(b)"the 2002 Act" means the Nationality, Immigration and Asylum Act 2002(3);

(c)"the Act" means the Immigration Act 2014;

(d)"the relevant provisions" means section 1 (removal of persons unlawfully in the UK), section 15 (right of appeal to First-tier Tribunal) and section 17(2) (place from which appeal may be brought or continued) of, and paragraphs 3, 4, 5, 6 and 7 and Part 4 of Schedule 9 (apart from paragraph 26(2), (3) and (5)) (transitional and consequential provision relating to appeals) to, the Act;

(e)"the saved provisions" means section 10 of the Immigration and Asylum Act 1999(4), sections 62, 72 and 76, and Part 5 of the 2002 Act(5), section 8(7) of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004(6), section 47 of the Immigration, Asylum and Nationality Act 2006(7) and paragraph 19(10) of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012(8), as in force immediately prior to 20th October 2014.

Provisions coming into force on 20th October 2014 subject to saving provision

2.  The day appointed for the coming into force of the following provisions of the Act, subject to the saving provision in articles 9, 10 and 11, is 20th October 2014-

(a)section 1;

(b)section 15;

(c)section 17(2);

(d)section 73(6) (transitional and consequential provision) so far as is necessary for the purpose of the provisions listed in sub-paragraph (e);

(e)paragraphs 1, 3, 4, 5, 6, 7, 9 and 10(2), and Part 4 of Schedule 9 to the extent not already commenced, apart from paragraph 26(2), (3) and (5).

Part 4 provisions coming into force on 20th October 2014

3.  The day appointed for the coming into force of the following provisions of Part 4 of the Act (marriage and civil partnership), is 20th October 2014-

(a)section 49 (exempt persons) so far as is necessary for the purpose of making regulations;

(b)section 50 (conduct of investigation) so far as is necessary for the purpose of making regulations;

(c)section 51 (investigations: supplementary) so far as is necessary for the purpose of making regulations;

(d)section 52 (referral of proposed marriages and civil partnerships in England and Wales) so far as is necessary for the purpose of the provisions listed in sub-paragraph (e);

(e)paragraphs 1 (so far as it relates to the following provisions listed in this paragraph) and 4, 7, 8, 10, 15, 17, 18, 20, 21, 23, 24, 27 and 28 of Schedule 4 (referral of proposed marriages and civil partnerships in England and Wales) so far as is necessary for the purpose of making regulations;

(f)section 53 (extension of scheme to Scotland and Northern Ireland) so far as is necessary for the purpose of making orders;

(g)section 54 (supplementary provisions) so far as is necessary for the purpose of making regulations;

(h)Schedule 5 (sham marriage and civil partnerships: administrative regulations);

(i)section 60 (regulations about evidence);

(j)section 61 (notices).

Other provisions coming into force on 20th October 2014

4.  The day appointed for the coming into force of the following provisions of the Act is 20th October 2014-

(a)section 7(3), (4) and (6) (immigration bail: repeat applications and effect of removal directions);

(b)section 16 (report by Chief Inspector on administrative review);

(c)section 38 (immigration health charge);

(d)section 63 (immigration advisers and immigration service providers) so far as is necessary for the purpose of the provisions listed in sub-paragraph (f);

(e)section 73(6) (transitional and consequential provision) so far as is necessary for the purpose of the provision listed in sub-paragraph (g);

(f)paragraphs 1 and 3 of Schedule 7;

(g)paragraph 1 of Schedule 9.

Provisions coming into force on 17th November 2014

5.  The day appointed for the coming into force of the following provisions of the Act is 17th November 2014-

(a)section 63 (immigration advisers and immigration service providers) so far as is necessary for the purpose of the provisions listed in sub-paragraph (c);

(b)section 73(6) (transitional and consequential provision) so far as it is necessary for the purpose of the provisions listed in sub-paragraph (d);

(c)Schedule 7 (immigration advisers and immigration service providers) to the extent not already commenced;

(d)Part 8 of Schedule 9 (transitional and consequential provision relating to immigration advisers and immigration service providers).

Provisions coming into force on 1st December 2014 in certain areas only

6.  (1)  The day appointed for the coming into force of the following provisions of the Act is 1st December 2014 in respect of premises located in the areas of the relevant local authorities specified in paragraph (2)-

(a)section 20 (residential tenancy agreement);

(b)section 21 (persons disqualified by immigration status or with limited right to rent);

(c)section 22 (persons disqualified by immigration status not to be leased premises);

(d)section 23 (penalty notices: landlords);

(e)section 24 (excuses available to landlords);

(f)section 25 (penalty notices: agents);

(g)section 26 (excuses available to agents);

(h)section 27 (eligibility period);

(i)section 28 (penalty notices: general);

(j)section 29 (objection);

(k)section 30 (appeals);

(l)section 31 (enforcement); and

(m)Schedule 3 (excluded residential tenancy agreements).

(2) The relevant local authorities are–

(a)Birmingham City Council;

(b)Dudley Metropolitan Borough Council;

(c)Sandwell Metropolitan Borough Council;

(d)Walsall Metropolitan Borough Council; and

(e)Wolverhampton City Council.

Provisions coming into force on 1st December 2014

7.  The day appointed for the coming into force of the following provisions of the Act is 1st December 2014-

(a)section 32 (general matters);

(b)section 33 (discrimination);

(c)section 34 (orders);

(d)section 35 (transitional provision);

(e)section 36 (Crown application); and

(f)section 37 (interpretation).

Provisions coming into force on 15th December 2014

8.  The day appointed for the coming into force of the following provisions of the Act is 15th December 2014-

(a)section 68 (fees);

(b)section 69 (fees orders and fees regulations: supplemental);

(c)section 73(6) (transitional and consequential provision) so far as it is necessary for the purpose of the provisions listed in sub-paragraph (d);

(d)Part 11 of Schedule 9 (transitional and consequential provision relating to fees).

PART 2Transitional and saving provisions and repeals

Transitional and saving provision

9.  Notwithstanding the commencement of the relevant provisions, the saved provisions continue to have effect, and the relevant provisions do not have effect, other than so far as they relate to the persons set out respectively in articles 10 and 11, unless article 11(2) or (3) applies.

10.  The persons referred to in article 9 are-

(a)a person ("P1") who becomes a foreign criminal within the definition in section 117D(2) of the 2002 Act(9) on or after 20th October 2014; and

(b)a person who is liable to deportation from the United Kingdom under section 3(5)(b) of the 1971 Act(10) because they belong to the family of P1.

11.  (1)  The persons referred to in article 9 are a person ("P2") who makes an application on or after 20th October 2014 for leave to remain-

(a)as a Tier 4 Migrant;

(b)as the partner of a Tier 4 Migrant under paragraph 319C of the immigration rules; or

(c)as the child of a Tier 4 Migrant under paragraph 319H of the immigration rules.

(2) The saved provisions have effect, and the relevant provisions do not have effect, where P2, having made an application of a kind mentioned in paragraph (1), at any time thereafter makes-

(a)an application for leave to enter; or

(b)any further application for leave to remain which is not of a kind that is mentioned in paragraph (1);

provided the subsequent application is not a protection claim or human rights claim, made while P2 is in the United Kingdom, other than at a port.

(3) Where paragraph (2) applies, the saved provisions also have effect, and the relevant provisions do not have effect, where a decision is taken in relation to P2-

(a)which constitutes an immigration decision under section 82(2) of the 2002 Act as in force immediately prior to 20th October 2014; or

(b)to which section 83 or 83A of the 2002 Act as in force immediately prior to 20th October 2014 applies.

(4) Where the relevant provisions apply, and an appeal has already been brought against an immigration decision under section 82(1) of the 2002 Act but before the relevant provisions applied, the reference to a "decision" in section 96(1)(a) of the 2002 Act is to be read as a reference to an "immigration decision".

(5) In this article-

(a)"human rights claim" means-

(i)a claim made by a person to the Secretary of State that to remove the person from or require him to leave the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (c.42) (public authority not to act contrary to Convention); or

(ii)an application for leave to remain made under paragraph 276ADE of, or Appendix FM to, the immigration rules;

(b)"immigration decision" has the same meaning as in section 82(2) of the 2002 Act as in force immediately prior to 20th October 2014;

(c)"immigration rules" means the rules for the time being laid down by the Secretary of State as mentioned in section 3(2) of the 1971 Act;

(d)"Leave to enter the United Kingdom" means leave to enter the United Kingdom given in accordance with the provisions of, or made under, the 1971 Act;

(e)"Leave to remain in the United Kingdom" means leave to remain in the United Kingdom given in accordance with the provisions of, or made under, the 1971 Act and any variation of leave to enter or remain by the Secretary of State;

(f)"port" has the meaning in section 33(1) of the 1971 Act(11);

(g)"protection claim" has the meaning given in section 82(2) of the 2002 Act;

(h)"protection status" has the meaning given in section 82(2) of the 2002 Act;

(i)"Tier 4 Migrant" has the same meaning as provided in the immigration rules.

12.  For the purposes of section 35(3) of the Act, the day appointed as "the commencement day" is 1st December 2014.

13.  Notwithstanding the commencement of Part 11 of Schedule 9 to the Act, the following statutory instruments remain in force-

(a)the Immigration and Nationality (Fees) Regulations 2014(12);

(b)the Immigration and Nationality (Cost Recovery Fees) Regulations 2014(13);

(c)the Immigration and Nationality (Fees) Order 2011(14), so far as is necessary for the purposes of preserving the Regulations mentioned in sub-paragraphs (a) and (b).

Consequential revocation and saving

14.  Article 4 of the Immigration Act 2014 (Commencement No. 1, Transitory and Saving Provisions) Order 2014(15) is revoked.

15.  But in any case in which a foreign criminal as defined in section 117D(2) of the 2002 Act has made a human rights claim which the Secretary of State certified under section 94B of that Act prior to 20th October 2014, section 92 of the 2002 Act(16) (appeal from within the United Kingdom: general) continues to have effect as if the following provisions of that Act were omitted-

(a)the reference in subsection (2) to an immigration decision of a kind specified in section 82(2)(j);

(b)the reference in subsection (4)(a) to a human rights claim; and

(c)subsection (4)(b).

EXPLANATORY NOTE

(This note is not part of the Order)

This Order is the third commencement order made under the Immigration Act 2014 ("the Act"). Article 2 lists the provisions of the Act which will come into force on 20th October 2014, subject to saving provision in articles 9, 10 and 11. Article 3 lists the Part 4 provisions of the Act which will come into force on 20th October 2014 for the purposes of making secondary legislation, and article 4 lists the other provisions coming into force on 20th October 2014.

Article 5 lists the provisions coming into force on 17th November 2014. Articles 6 and 7 commence provisions in Chapter 1 of Part 3 on residential tenancies. Article 6 lists provisions which will come into force in certain areas only, and article 7 lists other provisions which come into force, in each case on 1st December 2014. Article 8 lists the provisions in Part 6 of, and Part 11 of Schedule 9 to the Act, relating to fees which will come into force on 15th December 2014.

Articles 9, 10 and 11 make transitional and saving provision in relation to sections 1, 15 and 17(2) of, and paragraphs 3, 4, 5, 6 and 7, and Part 4 of Schedule 9 (apart from paragraph 26(2), (3) and (5)) to, the 2014 Act ("the relevant provisions"), which substitute new provisions about the removal of persons unlawfully in the United Kingdom, and rights of appeal. Article 9 makes saving provision in relation to the "saved provisions" so that they continue to have effect, and the relevant provisions do not have effect, other than so far as they relate to the persons in articles 10 and 11, unless article 11(2) and (3) applies. The "saved provisions" are defined as meaning section 10 of the Immigration and Asylum Act 1999 (c. 33), sections 62, 72 and 76, and Part 5 of the Nationality, Immigration and Asylum Act 2002 (c. 41) ("the 2002 Act"), section 8(7) of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (c. 19), section 47 of the Immigration, Asylum and Nationality Act 2006 (c. 13) and paragraph 19(10) of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10) as in force immediately prior to 20th October 2014.

The persons referred to in article 10 are a person ("P1") who becomes a foreign criminal under section 117D(2) of the 2002 Act on or after 20th October 2014 or their family members. The persons referred to in article 11 are a person ("P2") who makes an in-country application for leave to remain as a Tier 4 Migrant or as their family member ("the Tier 4 applicant") on or after 20th October 2014. The effect of the saving provision is that only the persons in articles 10 and 11 will be subject to the new appeals provisions in section 82(2), as inserted by section 15(2) of the 2014 Act, which provide a right of appeal to the First-tier Tribunal where a person's protection claim or human rights claim has been refused, or their protection status has been revoked.

Article 11(2) provides that the saved provisions will apply, and the relevant provisions will not apply where P2, having made a Tier 4 application, then makes a further application for leave to enter, or for leave to remain which is not a Tier 4 application, provided that the further application is not a protection claim or a human rights claim that is made while they are in the UK, other than at a port. Article 11(3) provides that where article 11(2) applies, the saved provisions will also have effect where a decision is taken in relation to P2 which is an immigration decision under section 82(2) of the 2002 Act as in force immediately prior to 20th October 2014, or to which section 83 or 83A of the 2002 Act as in force immediately prior to 20th October 2014 applies. This ensures that any subsequent decision, including a decision to refuse or revoke an asylum claim, made after the application in 11(2), will fall under the appeals provisions in force prior to 20th October 2014, if applicable. Article 11(4) contains a transitional provision which provides that where a person has already had a right of appeal, or brought an appeal, under the version of section 82(1) of the 2002 Act as in force immediately prior to 20th October 2014, the reference to a "decision" in section 96(1)(a) is to be read as a reference to an "immigration decision" so that the previous right of appeal will apply in relation to section 96(1).

Article 12 has the effect that Chapter 1 of Part 3 of the Act, which imposes restrictions on residential tenancy agreements, does not apply to an agreement entered into before 1st December 2014. Article 13 makes transitional and savings provisions in relation to the fees powers now being commenced. It provides that, whilst the existing powers under which fees are levied are here revoked, the statutory instruments made under those powers (which set out the fees to be charged in respect of specified immigration and nationality functions) will remain in force. This means that such fees can continue to be charged, until new fees regulations (made under the fees powers contained in Articles 68 and 69 of the 2014 Act) are laid.

Article 14 revokes article 4 of the Immigration Act 2014 (Commencement No.1, Transitory and Saving Provisions) Order 2014, subject to the saving provision in article 15.

NOTE AS TO EARLIER COMMENCEMENT ORDERS

(This note is not part of the Order)

The following provisions of the Act were brought into force by Statutory Instrument before this Order was made.