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 发表: 2009-07-29 01:16:38 人气:8242 | 楼主 |
新出台了的Borders, Citizenship and Immigration Act 09 新英国边境，国籍及移民法
Borders, Citizenship and Immigration Act 2009《新英国新边境，国籍及移民法》
一些重点：
- 学生签证将不再被列入‘符合移民资格属性’范畴
- 新增加‘试用公民’（Probationary citizenship）身份
- 新法例下，外国移民申请入籍英国不再必须先获得‘永久居留’身份
- 新法例下，申请入籍英国将从‘有限期居留证 – 永久居留 – 英国国籍’过度到 ‘符合移民资格签证的逗留，达到‘合资格时间’的规定 – 试用公民 – 英国国籍或PR’
- 新法例下，申请英国‘PR’可能需要比加入英国国籍等待更长的时间
What is the Borders, Citizenship and Immigration Bill and what can be done about it?’ 《边境，国籍及移民法草案》节选+分析
节选如下：
What is a Bill?
什么是草稿文件‘Bill’？
4. A Bill is the forerunner of an Act of Parliament. An Act is the highest piece of written law in the UK legal system. To become an Act, a Bill must be considered and approved by both Houses of Parliament – the House of Lords and the House of Commons. Bills must pass through a multi-staged process in both Houses, and there are several opportunities for Parliament to make amendments. Most Bills are introduced to Parliament by the Government, and it is rare that a Bill that is not introduced by the Government will succeed in becoming an Act.
5. A Bill is not, therefore, law. It is proposed law. If Parliament approves a Bill, it will become law when it is enacted – i.e. when it becomes an Act.
（文章的当时是4月份，还是草案阶段，不过现在Borders, Citizenship and Immigration Bill现时已经成为了法律 ‘Act’）
6. However, this is not quite so straightforward. An Act contains many provisions, and for these to take effect in law they must be implemented (commenced). The Act will state when and how the provision is to be commenced. Some provisions may take effect on the passing of the Act. Usually, provisions will require a Commencement Order before they take effect. A Commencement Order is a lesser piece of written law, made by the Government. It does not require the same degree of scrutiny to become law as does an Act. A Commencement Order will set out which provisions of which Act enter into force at what time.
法律的本身将会说明各项条款的开始时间和方式。一般来说法律生效之前将需要‘Commencement Order’。比起法律的制定来说，‘Commencement Order’更加简略，它将会明确某一法律的某一条款的具体实施时间。
Borders, Citizenship and Immigration Bill – what is in it?
《边境，国籍及移民法草案》的内容分析，一共四部分
10. There are a range of provisions in the Bill. It is divided into four Parts as follows:
Part 1: This contains provisions that mainly relate to customs and other powers that can be exercised at the UK border. However, it includes provisions relating to independent investigation of serious misconduct by the UK Border Agency, and private contractors; independent oversight of the UK Border Agency; and standards, in particular codes of conduct, that are to apply when the UK Border Agency exercises its immigration and customs powers. Generally, there are concerns that these provisions for independent investigation and oversight, and appropriate standards, are inadequate because they are either not strong enough or don’t cover all of the UK Border Agency’s activities and powers.
（第一部分明确UK Border Agency与海关的分工和部分工作的合并计划，，与大家相关甚少，省略）
Part 2: This contains provisions relating to British citizenship, and in particular how someone can become a British citizen. The greater part of these provisions relate to naturalisation – how a migrant in the UK may be able to become a British citizen. These provisions are addresses further below.
第二部分是英国入籍与归化的指引，有节选请继续往下阅读。
Part 3: This contains four discrete provisions relating to immigration. These include a power to impose on any migrant who has only limited leave (to enter or remain in the UK) a condition restricting access to courses of study in the UK. The Government has indicated that this power will only be used in respect of student migrants to the UK under the points-based system (tier 4); however, the Bill does not restrict the power in this way. Also included is a provision to prevent the Government from introducing immigration controls on journeys within the Common Travel Area (UK, Ireland, Guernsey, Jersey and Isle of Man). This provision is a change that has been imposed on the Government. Originally, the Bill contained a provision to introduce immigration controls on these journeys. It may be that the Government seeks to reverse the defeat it has suffered on this point when the Bill is considered in the House of Commons.
第三部分介绍的是入境处的条款，包括关系到学生签证（TIER4）的相关信息。
Part 4: This contains various provisions. One of these relates to access to the High Court and Court of Appeal. Originally, the Bill contained a provision to allow the High Court to transfer judicial reviews, relating to immigration or nationality law, to the tribunal system, where the judicial review may be dealt with by a High Court or a tribunal judge. Tribunal judges have not previously dealt with these judicial reviews, which are currently always heard in the High Court. The Government has suffered a defeat on this, and it may be that it will seek to reverse that defeat in the House of Commons. This part also contains a statutory duty upon the UK Border Agency, and private contractors, to have regard to the need to safeguard and promote the welfare of children. It also contains a change to criminal law on trafficking, to make sure that those who traffic babies or young children (e.g. for benefit fraud) may be prosecuted as traffickers.
最后一部分是关于上诉和保护儿童的一些事项。
Borders, Citizenship and Immigration Bill - naturalisation
归化入籍
11. The Bill contains provisions to change the way in which migrants in the UK may become British citizens (naturalise). The provisions contain new terms and requirements. A short explanation of these is given below. These new terms and requirements are:
草案里面新增加的一些条款与条件包括：
Qualifying immigration status ‘符合移民申请资格属性’
Relevant family association
Qualifying period ‘合资格时间’
Probationary citizenship ‘试用公民’
Continuous employment‘持续受雇’
Active citizenship/activity condition ‘积极参与社会公益活动’
Permanent residence ‘PR’
12. Currently, any migrant to the UK may naturalise as a British citizen if but only if he or she is able to and does obtain indefinite leave to remain (ILR). Some migrants have no route to ILR and are, therefore, excluded from British citizenship. For those who have a route to ILR, the process of naturalisation is in three stages. During the first stage the migrant will undergo a period of limited (or temporary) leave. Migrants, who have a route to ILR, usually must spend up to 5 years on limited leave (in family cases – e.g. where someone has permission to join their spouse or civil partner in the UK – the period is 2 years), before he or she can apply for ILR. The second stage will be the period on ILR. After one year on ILR, the migrant can apply to become a British citizen.
在目前的移民政策下，所有申请归化成为英国国民的申请者都必须先获得‘永久居留’资格。那些没有办法申请到‘永久居留’资格的外国人则无法申请英国的国民身份。有‘永久居留’身份的外国移民需要经过三个步骤申请归化英国国籍。作为目前情况的第一步，外国移民首先要获得‘有限期的居留证’（例如5年的工作签证或者2年的结婚申请）；然后获得英国‘永久居留’资格；在达到以上两个步骤之后，申请者则有资格申请入籍英国。以上说的是目前的英国移民政策。
13. To progress along this route, the migrant will usually need to abide by any conditions placed on the limited leave that he or she is given; and generally abide by the laws. Usually he or she will be precluded from accessing welfare services or benefits unless and until he or she is granted ILR. If convicted of a criminal offence this may mean that he or she will not be allowed to progress; and may be considered for deportation. He or she will also have to show some competency in the English language. Subject to completing a form, paying a fee and attending a citizenship ceremony, he or she may become a British citizen.
如申请者想从以上途径入籍英国，他必须遵守‘有限期居留证’的有关规定以及英国的法律。在得到‘永久居留’资格之前将无法获得英国的福利服务。而且如果触犯了英国法律，将会无法申请‘永久居留’甚至会被遣返。申请者在完成英文测试，填写好表格，缴纳相应的费用，以及出席一个入籍仪式之后便能够成为英国公民。以上说的是目前的英国移民政策。
14. The Bill will make changes, though much that has been described here will remain the same. Migrants will still have to undergo a period of limited leave. However, the next stage will be probationary citizenship (see below). The timeframe may vary (see below – qualifying period). After a period of probationary citizenship, the person may be able to apply for British citizenship or permanent residence (see below). The timeframe for this stage is different (longer) for those who wish to apply for permanent residence rather than British citizenship. The requirements set out in the preceding paragraph will still apply (abiding by immigration conditions, no criminal convictions, English language, forms, fee and ceremony). However, there may be additional requirements (continuous employment and activity condition – see below). It will still be the case that only some migrants can progress to citizenship. This will depend on whether they have a qualifying immigration status (see below).
草稿文件对于以上（12和13）的条款作出了修改。不过维持一样的是，外国移民在申请入籍英国之前仍必须在英国获得‘有限期居留证’并居住规定的时间。然而，在获得‘有限期居留证’之后，外国移民可以直接申请加入英国国籍而无需先获得英国的‘永久居留’资格。下一段落将会介绍获得加入英国国籍的‘合资格时间’。在获得‘试用公民’资格之后，申请者将有机会申请加入英国国籍【或者】‘PR’身份。申请英国‘PR’可能需要比加入英国国籍等待更长的时间。在旧法例里面规定的部分条款仍将保留（包括遵守逗留条款，没有犯罪记录，英文水平测试，缴纳相关费用，以及参加入籍仪式）。然而，‘持续受雇’将会增加在新条款之中（下文会有介绍），而且申请入籍者必须拥有‘符合移民申请资格状态’的身份（下文有介绍）。
15. Key terms are described below. It should be noted that the Home Office will retain discretion to waive many of the requirements that are explained in this note. The circumstances, in which the Home Office may agree to waive a requirement, cannot be set out here because these are not known. When the new provisions come into force, it is to be expected that there will be guidance published which gives more information on when discretion may be exercised.
以下将会介绍上文所提及之新条款。HOME OFFICE将保留修改以下条款的所有权利。
16. Qualifying immigration status: This new term, in part, reflects the current naturalisation provisions in that not all migrants have a route to ILR or citizenship. For example, someone now coming to the UK as a student does not have a route to citizenship. In the future, this will be reflected by the fact that the immigration status he or she will be given to come to the UK will not be a ‘qualifying immigration status’. However, the new term has important implications. The provisions in the Bill require that the person has a qualifying immigration status throughout the qualifying period (see below).
新法下的‘符合移民申请资格属性’条款，其实相当于目前移民政策中有关‘部分移民类别无法申请入籍或永居’规定（例如单凭学生签证，又或者单凭PSW签证是无法申请到英国永居申请的）。在新法例实施后，英国的签证将会增加新属性以区分是否‘符合移民申请资格’。草稿文件中说明，申请入籍或PR的人必须逗留达到规定的‘合资格时间’（以下会有解释），以及在此‘合资格时间’的期间必须完全保持‘符合移民申请资格属性’的英国签证（换句话说，在新法底下学生签证并没有‘符合移民申请资格属性’，所以学生签证将不再纳入‘合资格时间’的计算当中）。
Currently, someone may be granted ILR if he or she has lived in the UK continuously and lawfully for 10 years. After one year of ILR, he or she may apply for citizenship. This will not work in future because the person would not have had a qualifying immigration status before that one year. Similarly, in some circumstances, a student may be able to switch onto a different status that does currently provide a route to citizenship. However, under the provisions in the Bill, time spent as a student would not count towards to the qualifying period (unless the Government changes its policy) because this limited leave as a student will not be a qualifying immigration status.
在目前的法例下，学生10年长居英国便可申请英国‘永久居留’，1年以后可以申请入籍。但是，在即将实施的新法下，学生签证不再享有‘符合移民申请资格属性’，即使以后申请者把签证转到其他拥有‘符合移民申请资格属性’的签证类别，持学生签证所逗留的所有时间将不会再被计入申请入籍或PR的‘合资格时间’之中。‘(…unless the Government changes its policy)’
Essentially, the use of this term in the Bill means that those whose status is regularised after a long period of time in the UK (or are accepted onto a migration route that allows the person to become a citizen) will have to begin the qualifying period from the start – rather than e.g. from the point at which he or she first entered the UK, or was first granted some form of status in the UK. In future, some people who are eventually permitted to become British citizens or obtain permanent residence may have to spend very many more years in the UK before this is allowed.
重复以上的内容，‘合资格时间’不再是从首次进入英国的时间算起，而是从获得有‘符合移民申请资格属性’签证的时间算起，这将大大增加了申请者在申请英国入籍或PR所等候的时间。
18. Qualifying period: This term refers to the period of time a person must have a qualifying immigration status (see above) before he or she can become a British citizen or obtain permanent residence (see below). The period of time will vary. Firstly, for those who can become citizens because of a relevant family relationship (see above), the qualifying period will be a minimum of 3 years. For those who can become citizens because they are on another accepted route to citizenship (e.g. refugees, or certain workers), the minimum period will be 6 years. Secondly, for those who wish to become permanent residents rather than British citizens, the minimum periods will last an additional 2 years. Thirdly, for those who do not meet the activity condition (see below), the qualifying period may last an additional 2 years. Fourthly, for those convicted of a criminal offence, if they are still permitted to become citizens or permanent residents (if they have been sentenced to prison, it is particularly unlikely that this will be permitted), the qualifying period may also be delayed.
新条款列明了在各个移民申请类别下的‘合资格时间’。
以下是申请加入英国国籍必须达到的‘合资格时间’，申请‘PR’需要逗留超过以下时间至少2年：（申请PR所需时间比加入英籍要长）
- 家属移民。【至少3年】
- 难民和工作签证持有者移民。【至少6年】
如果不能符合‘活动条件’（activity condition 见下文）的申请者则需比以上时间多逗留2年。
19. Probationary citizenship: This new term refers to what will be the second stage of the new naturalisation process. However, it is really nothing more than a continuation of the first stage – i.e. more limited (or temporary) leave. The important result, therefore, is that migrants will be excluded from welfare services or benefits throughout the qualifying period – potentially for many years longer than they are excluded from these services or benefits under existing provisions. Note: refugees and others granted a protection status will continue to have access to these services and benefits.
新法例下的新条款：‘试用公民’，属于归化过程的第二阶段。在此阶段中，外国新移民将不再有资格享有英国的福利（在他们的‘合资格时间’内），只有难民身份的外国移民除外。
20. Continuous employment: For those who are on a work-based route to citizenship, this provision will require that the person is in continuous employment throughout the qualifying period. No satisfactory explanation has yet been given as to why this new requirement is being introduced or what it will mean in practice.
Under current provisions, someone who has been given leave to be in the UK for the purpose of work (under tier 2 of the points-based scheme) may be in breach of his or her immigration conditions if he or she is out of work for more than 60 days. The use of this term in the provisions appears to indicate a more strict requirement that those who are given leave for the purpose of work stay in work throughout the qualifying period. However, no guidance is available as to what in practice this requirement will mean.
‘持续受雇’是新法下的另一条款，特别针对那些利用工作签证申请英国入籍或PR的外国移民。‘持续受雇’规定申请者必须在‘合资格时间’内持续工作。暂时没有官方关于‘持续受雇’的解释文件以及此内容产生的原因。在目前的法例下，任何持有英国‘工作签证’（TIER2）的人如果连续多于60日没有工作，则会被视为‘违反有关移民规定’。新法例的‘持续受雇’被视为使这一规定更加严格。但因暂时没有官方指引出台，无法进一步解释此条款的定义。
The continuous employment requirement may be particularly problematic for domestic workers. Currently, domestic workers may change jobs but only to another domestic worker position. Finding such a position at short notice may be very difficult, in which case there may be a greater chance that a domestic worker who loses or is forced to leave his or her current job will not be able to meet the continuous employment requirement.
‘持续受雇’条款尤其影响在英国本地工作的外国人。当工人失去现在的工作而没能在短期找到新工作时，在新法下，他将无法达到‘持续受雇’的要求。
21. Active citizenship/activity condition: This is a completely new provision. By this provision, migrants who wish to become British citizens or permanent residents will be required to undertake some community or voluntary work. If they do not do so, the qualifying period that applies to them may be extended by up to 2 years. It has not been made clear what sort of work will be required (other than it must not be for pay). Nor has it been made clear how much of this work the migrant will need to do, nor for how long nor how this will be monitored or reported to the UK Border Agency.
‘积极参与社会公益活动’是另外一个新增的条款。在此条款底下，申请入籍或PR者必须完成指定的社区或义工工作。如果不能符合此规定，申请者必须达到的‘合资格时间’将会被延长至少2年。目前还没有知道具体的工作要求（但是可以肯定的是没有收入的）以及所需工作的时间，以及移民局将如何监督和管理此要求。
22. Permanent residence: This will be the new term for indefinite leave to remain. However, as explained in the explanation of the qualifying period, it is important to note that the period of time before which someone could obtain permanent residence will be significantly extended. This may be particularly important for those whose current nationality precludes dual citizenship. Unless they are prepared to abandon their original nationality, these migrants will have to spend longer (an additional 2 years) before they can become permanent residents than others will spend to become British citizens; and will continue to be excluded from welfare services or benefits until that time.
‘PR’将会取缔旧有的名词‘永久居留’。但是值得留意的是，申请“PR”的时间将被大大延长，对于不允许‘双重国籍’的外国移民来说，他们受到的影响将会是最大的。因为他们必须比申请加入英国国籍的申请者多逗留2年（除非选择放弃本国国籍而入籍英国），而且在此2年内他们将得不到任何的英国福利。
23. A further significant change relates to absences from the UK. Under the current naturalisation provisions, someone who wishes to become a British citizen must not have been outside the UK for more than 90 days during the 12 months immediately prior to applying for citizenship. He or she must also not have been out of the UK for an average of more than 90 days during the 5 (or in marriage/civil partnership cases 3) years immediately prior to applying. This means that a very long absence (e.g. to attend to a sick relative overseas) can be averaged out; and, if it happens close to when the migrant is reaching the point when a citizenship application can be made, he or she will not have to delay an application for more than 12 months (provided there is not a second lengthy absence). Under the new provisions, it will not be possible to average out absences. This means that any absence of more than 90 days in a 12 months period will require the migrant to start the qualifying period all over again.
另一变动在于每年可以离开英国时间的规定。目前的规定是‘在申请入籍的之前12个月不能离开英国超过90日’，以及‘在申请入籍的之前5年内（婚姻是3年）平均每年不能离开英国超过90日’，换句话说，在旧法例下，一个长时间的离开也许对于申请入籍没有影响（算的是平均离开英国的日子）。新法例将不再计算离开的平均日子，如果曾经在12个月内离开英国单次长度超过90日将重新计算申请者的‘合资格时间’
为了方便群众，特节选目录放出
Borders, Citizenship and Immigration Act 2009
CHAPTER 11
CONTENTS
目录
PART 1
BORDER FUNCTIONS
General customs functions of the Secretary of State
1 General customs functions of the Secretary of State
2 Power of Secretary of State to modify functions
General customs officials
3 Designation of general customs officials
4 Designation: supplementary
5 Directions by the Secretary of State
The Director of Border Revenue
6 The Director of Border Revenue
7 Customs revenue functions of the Director
8 Power of Treasury to modify Director’s functions
9 Delegation of Director’s functions
10 Compliance with directions etc.
Customs revenue officials
11 Designation of customs revenue officials
12 Designation: supplementary
13 Directions by the Director
Use and disclosure of information
14 Use and disclosure of customs information
15 Prohibition on disclosure of personal customs information
16 Exceptions to section 15 prohibition
17 Prohibition on further disclosure
18 Offence of wrongful disclosure
19 Application of statutory provisions
20 Supply of Revenue and Customs information
21 Duty to share information
Investigations and detention
22 Application of the PACE orders
23 Investigations and detention: England and Wales and Northern Ireland
24 Investigations and detention: Scotland
25 Short-term holding facilities
Transfer of property etc.
26 Transfer schemes
27 Facilities and services
Inspection and oversight
28 Inspections by the Chief Inspector of the UK Border Agency
29 Inspections by Her Majesty’s Inspectors of Constabulary etc.
30 Complaints and misconduct
Other provisions
31 Prosecution of offences
32 Payment of revenue to the Commissioners
33 Power to require payment into the Consolidated Fund
34 Children
Supplementary
35 Power to modify enactments
36 Power to make supplementary etc. provision
37 Subordinate legislation
38 Interpretation
PART 2
CITIZENSHIP
Acquisition of British citizenship by naturalisation
39 Application requirements: general
40 Application requirements: family members etc.
41 The qualifying period
Acquisition of British citizenship by birth
42 Children born in UK etc. to members of the armed forces
Acquisition of British citizenship etc. by registration
43 Minors
44 British Nationals (Overseas) without other citizenship
45 Descent through the female line
46 Children born outside UK etc. to members of the armed forces
47 Good character requirement
Interpretation etc.
48 Meaning of references to being in breach of immigration laws
49 Other interpretation etc.
PART 3
IMMIGRATION
Studies
50 Restriction on studies
Fingerprinting
51 Fingerprinting of foreign criminals liable to automatic deportation
Detention at ports in Scotland
52 Extension of sections 1 to 4 of the UK Borders Act 2007 to Scotland
PART 4
MISCELLANEOUS AND GENERAL
Judicial review
53 Transfer of certain immigration judicial review applications
Trafficking people for exploitation
54 Trafficking people for exploitation
Children
55 Duty regarding the welfare of children
General
56 Repeals
57 Extent
58 Commencement
59 Short title
Schedule — Repeals
Part 1 — Border functions
Part 2 — Citizenship
Part 3 — Immigration
Part 4 — Miscellaneous[COLOR=#000000] [/COLOR]
Latest news：Following agreement by both Houses on the text of the Bill it received Royal Assent on 21 July. The Bill is now an Act of Parliament.
2009年7月21日：Borders, Citizenship and Immigration《边境，国籍及移民法》已经正式成为英国的法律（Act）
根据UKBA网页文件的介绍，
[URL=http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/legislation/bci-act/impact-assessments/ia-earned-citizenship?view=Binary][U][COLOR=#800080]http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/legislation/bci-act/impact-assessments/ia-earned-citizenship?view=Binary[/COLOR][/U][/URL]
此法例将从2010年的10月份开始生效（2009年1月15日的文件）[COLOR=#000000] [/COLOR]
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