Order concerning persons who enter Jersey from the Republic of Ireland: Drafting instructions

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A decision made on 5 December 2014:

Decision Reference: MD-HA-2014-0067
Decision Summary Title :	Order concerning persons who enter Jersey from the Republic of Ireland under section 9 of the Immigration Act, 1971, as extended		Date of Decision Summary:	12 November 2014
Decision Summary Author:	Director, Legal Status and Revenue, Customs and Immigration Service		Decision Summary: Public or Exempt? (State clauses from Code of Practice booklet)	Public
Type of Report: Oral or Written?	Written		Person Giving Oral Report:	N/A
Written Report Title :	Order concerning persons who enter Jersey from the Republic of Ireland under section 9 of the Immigration Act, 1971, as extended		Date of Written Report:	12 November 2014
Written Report Author:	Director, Legal Status and Revenue, Customs and Immigration Service		Written Report : Public or Exempt? (State clauses from Code of Practice booklet)	Public
Subject: Law drafting request - Order concerning persons who enter Jersey from the Republic of Ireland under section 9 of the Immigration Act, 1971, as extended.
Decision(s): The Minister authorised the Director, Legal Status and Revenue, to liaise with the Law Draftsman and arrange for the relevant Order to be drafted.
Reason(s) for Decision: Unlike both the UK and Guernsey, Jersey does not have an Order in place which replicates the effect of The Immigration (Control of Entry through Republic of Ireland) Order 1972 as amended. As a member of the Common Travel Area it is important that the Island’s Immigration legislation is aligned to that of the UK.
Resource Implications: None.
Action required: The Director, Legal Status and Revenue to liaise with the Law Draftsman and arrange for the Order to be drafted.
Signature:		Position: Minister for Home Affairs
Date Signed:		Date of Decision (If different from Date Signed):

Order concerning persons who enter Jersey from the Republic of Ireland: Drafting instructions

Home Affairs Department

Customs and Immigration Service

To: Minister for Home Affairs

Submitted by: Director, Legal Status and Revenue

Date: 12 November 2014

Subject: Jersey Order re Travel from the Republic of Ireland under section 9 of the Immigration Act, 1971, as extended.

Introduction

Jersey, together with the other Crown Dependencies, the UK and the Republic of Ireland form the Common Travel Area. Part 1, section 1 (3) of the Immigration Act 1971, as extended to Jersey by the Immigration (Jersey) Order 1993 makes reference to the Common Travel Area and states that the arrival and departure from Jersey on a local journey from or to the UK, Guernsey, the Isle of Man or the Republic of Ireland shall not be subject to control except as so far as section 9(6) of the Act allows.

Section 9(6) of the 1971 Act allows the Secretary of State by Order to exclude the Republic of Ireland from the provisions of section (1)(3) for certain purposes and imposes restrictions as to the period persons may remain and the right to take employment. In 1972 the UK made such an Order. It is the Immigration (Control of Entry Through Republic of Ireland) Order 1972. To ensure that Jersey’s immigration controls are aligned to those of the UK it is proposed that Jersey introduces a similar Order.

Background

As mentioned above the Secretary of State in the UK has used section 9(6) of the Immigration Act 1971, to exclude the Republic of Ireland from no immigration control between the Republic and the UK, as permitted under section 1(3) of the Act, in the following circumstances:

(a) Where an individual has entered the Republic in the course of a journey to the UK, which began outside the Common Travel Area, and was not given leave to land in Ireland;

(b) on a local journey from Ireland and where an individual

is a visa national who has no valid visa for entry into the UK;
has entered Ireland unlawfully from a place outside the Common Travel Area; or
has entered Ireland from a place in the UK and Islands after entering there unlawfully, or, if he/she had a limited leave to enter or remain there, after the expiry of the leave; or
is a person in respect of whom directions have been given by the Secretary of State not to be given entry on the ground that his/her exclusion is conducive to the public good.

The above is specified in Article 3 of the 1972 UK Order.

Article 4 of the 1972 Order also imposes restrictions for persons who do not have the right of abode in the UK who enter the UK on a local journey from Ireland after having entered the Republic from outside the Common Travel Area, or after leaving the UK whilst having a limited leave to enter or remain which has since expired.

Article 4 has the effect of placing certain restrictions as to the period for which such persons may remain; and in relation to their right to engage in any occupation for reward or in any employment (if not a national of a member state of the EU) and/or to register with the Police.

Section 9(2) of the 1971 Immigration Act, as extended to Jersey, states:

“Persons who lawfully enter the Bailiwick of Jersey on a local journey from a place in the common travel area after having either –

(a) enter the United Kingdom, the Bailiwick of Guernsey or the Isle of Man or the Republic of Ireland on coming from a place outside the common travel area; or

(b) left the Bailiwick of Jersey while having a limited leave to enter or remain which has since expired;

if they are not British citizens (and are not to be regarded under Schedule 4 to this Act as having leave to enter the Bailiwick of Jersey), shall be subject in the Bailiwick of Jersey to such restrictions on the period for which they may remain, and such conditions restricting their employment or occupation or requiring them to register (as provided under section 4(3) above or both, as may be imposed by order and may be applicable to them; and the power to make an order under this subsection shall be exercised –

(a) as respects the period for which persons may remain, by the Lieutenant –Governor, and

(b) as respects other conditions, by the Minister.”

Section 9(6) of the 1971 Act as it extends to Jersey provides that: “The Lieutenant-Governor shall also have power by Order to exclude the Republic of Ireland from section 1(3) for such purposes as may be specified in the Order.”

Unlike the UK, (and also Guernsey) no equivalent to the 1972 UK Order has been made in Jersey. As a result the category of person referred to in Articles 3 and 4 of the UK Order are not subject to control in Jersey and do not require leave to enter the Island.

The lack of an Order equivalent to the 1972 UK Order has been raised with Steven Pallot, Senior Legal Adviser, at the Law Officers Department. It is his view that this leaves a significant gap in the immigration powers on flights to Jersey from the Republic of Ireland and that there is a need for a similar Order in Jersey.

In September 2014 the UK Government amended the 1972 UK Order by virtue of the Immigration (Control of Entry through Republic of Ireland) (Amendment) Order 2014.

The purpose of the 2014 Order, which actually came into force on 12 October 2014, was to allow Indian and Chinese nationals in their country of nationality to apply for a visitor visa that would be valid for travel to and between both the Republic of Ireland and the UK under the British-Irish Visa Scheme. The UK saw the scheme as a starting point to moving towards a unified Common Travel Area visa, a move which would involve the Island.

When drafting an order equivalent to the 1972 UK Order, it is proposed that the Law Draftsman takes into account any amendments required as a result of the 2014 UK Order.

Conclusion

It is very important that as a member of the Common Travel Area, that the Island’s immigration legislation reflects that of the UK. It is recommended, therefore, that the Minister authorises the Director, Legal Status and Revenue to request the Law Draftsman to draft a Jersey Order which replicates the requirements of The Immigration (Control of Entry through the Republic of Ireland) Order 1972 which has been variously amended.

Steven Le Marquand

Director, Legal Status and Revenue

Customs and Immigration Service

12 November 2014