Right of Abode Rights

J Mortoza made this Freedom of Information request to Home Office

The request was refused by Home Office.

From: J Mortoza

5 September 2010

Dear Home Office,

I would like the following questions answered by the policy and law
unit of the Home Office please

1. What is the Certificate of Entitlement to the Right of Abode

2. What does it state on the certificate itself

3. Does a person lose their right to work if the passport has
expired ?

4. Is there any statutory or primary legislation that can be shown
that a persons right to work is curtailed if the certificate
expires ?

5. Is the right of abode vested in the person or in the document ?

6. Where does it state on SI 3145 that a person's right to work
ceases because their passport has expired ?

7. Is the right of abode an ongoing right ?

I would appreciate if the above questions are answered by the home
office's policy and law unit please.

Yours faithfully,

A J MORTOZA

Link to this

From: Whitehead, Jane

17 September 2010


Attachment FOI 16008 Mr Mortoza re certificates of entitlement.doc
144K Download View as HTML


Please see attached response.

Jane Whitehead

Jane Whitehead
Nationality Operational Policy
UK Border Agency North West Region
Tel: 0151 213 1237
Fax: 0151 213 1514

show quoted sections

Link to this

J Mortoza left an annotation (17 September 2010)

Quote-marks The UKBA simply will not answer any direct questions on this subject and have alleged that such requests are considered vexatious by them in order to cover up their failings in incorrect policy that they have made up.

Link to this

From: J Mortoza

17 September 2010

Dear Home Office,

Please pass this on to the person who conducts Freedom of
Information reviews.

I am writing to request an internal review of Home Office's
handling of my FOI request 'Right of Abode Rights'.

The UKBA have failed to answer direct questions on the matter and
have resorted to being defensive and have taken the attitude that
requests made by me are vexatious which is unacceptable from a
public body. There are differences in opionion on case workers
guidance as found on section 3.2 which their case officers refuse
to follow despite clear guidance issued to them under policy and
law.

http://www.whatdotheyknow.com/request/ri...

A full history of my FOI request and all correspondence is
available on the Internet at this address:
http://www.whatdotheyknow.com/request/ri...

Yours faithfully,

J Mortoza

Link to this

From: J Mortoza

17 September 2010

Dear Whitehead, Jane,

I have added your reply to my list of compaints as you have failed
to explain why your department does not follow its own case workers
guidance on law and policy
found on section 3.2 of your own web site at as well as on the
national archive web site.

http://www.whatdotheyknow.com/request/ri...

This matter has now been forwarded to the necessary complaint
department as I find the attitude wholly unacceptable in not giving
correct replies on a persons rights and to cover it up by stating
such a request is vexatious

Yours sincerely,

J Mortoza

Link to this

From: Whitehead, Jane

17 September 2010

I am out of the office until Monday 17 September.

If your e-mail is urgent, please contactl Jonathan Devereux or Claire Bennett.

Thanks,

Jane

show quoted sections

Link to this

J Mortoza left an annotation (17 September 2010)

Quote-marks This is a case of not giving out correct advice, inventing policy and then telling a person whose human rights and statutory rights have been breeched that they are being vexatious. It defies belief on the part of executives who are in the business of making up their own policy with regards to those who are not subject to immigration controls

Link to this

From: J Mortoza

17 September 2010

Dear Home Office,

Please pass this on to the person who conducts Freedom of
Information reviews.

I am writing to request an internal review of Home Office's
handling of my FOI request 'Right of Abode Rights'.

I would also like to bring formal complain about being
discriminated against and also for being victimised by staff of the
UKBA in not providing clear written information without
ornamentation about the law and my rights.

A full history of my FOI request and all correspondence is
available on the Internet at this address:
http://www.whatdotheyknow.com/request/ri...

Yours faithfully,

J Mortoza

Link to this

J Mortoza left an annotation (17 September 2010)

Quote-marks It is unfair and completly wrong for UKBA staff to use section 14 of the 2000 act to term a request for specific information and question relating to their inconsistency of policy and law and term it as being vexatious.
In so terming a genuine request as being vexatious as and describing it as such and not answering is to deny or an attempt to deny it being heard or dismissed as it may cause embarrassment. This is not the correct behaviour of a professional with matters related to unclear messages and information they have provided.

There have been several versions of information given none of which has made sense including stating things like one department may give one advice and another may give yet another advice.

I sent in details of their on law and policy to question and received this reply in response which I think is totally wrong, discriminatory, and unprofessional behaviour.

Link to this

J Mortoza left an annotation (17 September 2010)

Quote-marks Section1: Right of Abode UKBA Caseworkers guide on Law and policy state the following on Subsection 3.2

3.2. Procedure
When a passenger presents a valid document as noted at paragraph 3 (above) he should, subject to paragraph 2, be accepted immediately as being exempt from control unless the immigration officer has reason to believe or suspect that the passport has been forged or falsified or was improperly obtained. The fact that a passport is out of date does not in itself render it invalid as evidence of nationality and identity, but this
fact may justify the immigration officer in continuing his examination until he is satisfied on these points. Note that it is for the Immigration Officer to prove fraud, not
for the passenger to disprove it.

http://webarchive.nationalarchives.gov.u...

A person who has the Right of abode is not subject to immigration control. The section on civil penalties is unlawfully being used

IMMIGRATION, ASYLUM AND NATIONALITY ACT 2006 EXPLANATORY NOTES State the following

"Section 15 provides that a person is liable to a civil penalty if he employs an adult subject to immigration control who has not been granted leave to enter or remain in the United Kingdom or whose leave is invalid, has ceased to have effect (whether by reason of curtailment, revocation, cancellation, passage of time or otherwise), or is subject to a condition preventing him from accepting the employment. An employer is
excused from paying a penalty if he complies with the requirements of an order made by the Secretary of State. The excuse does not apply where the employer knew that his employment of the individual was unlawful."

The 1971 Immigration and Nationality Act states
Statement of right of abode in United Kingdom, 1971 Immigration Act as amended by the
2006 Asylum and Immigration Act as stated in section (2):-
General Principles
(1)All those who are in this Act expressed to have the right of abode in the United Kingdom shall
be free to live in, and to come and go into and from, the United Kingdom without let or hindrance
except such as may be required under and in accordance with this Act to enable their right to be
established or as may be otherwise lawfully imposed on any person.
(1) A person is under this Act to have the right of abode in United Kingdom if--
(a) he is a British citizen; or
(b) he is a Commonwealth citizen who
(i) immediately before the commencement of the British Nationality Act 1981 was a
Commonwealth citizen having the right of abode in the United Kingdom by virtue of
section 2(1)(d) or section 2(2) of this Act as then in force; and
(ii)has not ceased to be a Commonwealth citizen in the meanwhile.
2) In relation to Commonwealth citizens who have the right of abode in the UK by virtue of
subsection (1)(b) above, this Act, except this section and section 5(2), shall apply as if
they were British citizens; and in this Act (except as aforesaid) "British citizen" shall be
construed accordingly

A person does not lose their rights just because their passport has expired. A persons rights under the statues is vested in the person not his/hers documents!

The UKBA have used the expiry of a passport to imply that a persons rights have expired which is wholly unfounded and in fact is unlawful

Link to this

J Mortoza left an annotation (17 September 2010)

Quote-marks Further case laws

As to the standard of proof required, it was held by the Immigration Appeal
Tribunal in Kessori Khatun (4272) that "the standard of proof applicable to the
right of abode, whether that right be dependent on citizenship or relationship, is
that of the normal balance of probabilities". In other words, a right of abode is
established, or a claim to citizenship made out, if the evidence that it exists
outweighs, however slightly, the evidence that it does not. Any requirement that
applicants/claimants produce "conclusive" evidence of their status, or establish
their position "beyond doubt", sets the standard too high and risks censure by the
courts if the case were to go to judicial review. In official correspondence, such
words and phrases are therefore best avoided.

Although, in Kessori Khatun, the Tribunal was concerned with the right of abode,
the same standard is thought to apply to proof of citizenship for other purposes
(e.g. for passport/consular protection purposes, voting etc).

Crown Case Regina V Secretary of State Verdict
The following was stated by Mr Justice Seeley in Regina v Secretary of State for the Home
Department, ex parte Obi; Queen's Bench Division Crown Office List (Mr Justice Sedley) 18 April
1997.
Mr Justice Sedley said that the principal question to be decided was one of pure law: was it for
the Home Secretary to satisfy the court that the applicant was an illegal entrant, or for the
applicant to satisfy the court that he was not?
"Section 33(1) of the Immigration Act 1971 provided that an illegal entrant was a person who
unlawfully entered, sought to enter or had entered the United Kingdom in breach of immigration
laws. A person with the right of abode in the United Kingdom was not an illegal entrant. Section
3(8) of the 1971 Immigration Act provided that it was for a person asserting that he was a British
citizen to prove that he was, and by section 3(9) a person claiming to have the right of abode
should prove it "by means of a United Kingdom passport describing him as a British citizez or a
certificate of entitlement.

COURT OF APPEALS DECISION
Two recent rulings have now show that the UKBA have exceeded their authority and have
not announced that they have had a change of heart about ILR statuses but at the same
time went on to make a news announcement that right of abode has to be in an valid (In
date) passport. They will find the judgement made that they are also in serious error over
the right of abode as well as they have inferred and created their own policies and control
without any parliamentary approval to prevent a person from exercising their right of
abode.
“Two cases, Secretary of State for the Home Department v Pankina [2010] EWCA Civ 719
and English UK v Sectetary of State for the Home Department [2010] EWHC 1726
(Admin), were both handed down in July 2010.
The Court of Appeal observed that rules (such as the Immigration Rules) must be certain
in their content and subject to parliamentary scrutiny. By contrast, policy must be applied
without rigidity and adapted in the interests of fairness and good sense. The court went on
to hold that it is unlawful for criteria affecting individuals' status and entitlements to be
incorporated in a source outside the Immigration Rules, if that source is impermanent or
undetermined and not subject to parliamentary scrutiny each time it is changed

The UKBA have produced their own policy without reference to the immigration law and
section 15 of the 2006 Act to impose control over those persons they do not have control
over under section 2(1)(b) of the immigration act. They have ignored the principles of
fairness and good sense and sought to create their own policies over and above the stated
aims of the legislations and have in so doing imposed direct and indirect control over such
persons and have hindered

Immigration regulation 3145 regulation Rule no 8 states
“a certificate of entitlement shall cease to have effect on the expiry of the passport
or travel document to which it is affixed”.
It does not state a persons right to work nor does it suggest anything other then the ability
to present the certificate for entry at a UK port will have expired if the passport does,
however as we see on the operations manual of the UKBA a completely different approach
is taken due to cautions under law and policies set as a standard for the UKBA to follow.
The Immigration (Restrictions on Employment) Order 2007 No 3290 published a list of
acceptable documents on a schedule entitled List A states the following
Excuse from paying civil penalty
3.—(1) To the extent provided for by paragraph (2) an employer is excused from paying a
penalty under section 15 of the 2006 Act if —
(a) the employee or prospective employee produces to the employer any of the documents or
combinations of documents described in list A in the Schedule to this Order; and
(b) the employer complies with the requirements set out in article 6 of this order.
LIST A
6. A passport or other travel document endorsed to show that the holder is exempt
from immigration control, is allowed to stay indefinitely in the United Kingdom, has
the right of abode in the United Kingdom, or has no time limit on their stay in the
United Kingdom.
There is no mention on the regulation that the passport has to be in date valid. In fact
LIST A Documents establish a statutory excuse by an employer which evidences a
persons on going right to work.

Proof of the Right of Abode
Under section 3(9) of the 1971 Act, as amended by the Immigration, Asylum and
Nationality Act 2006, a person claiming the right of abode in the UK can prove it by
presenting either:
a UK passport or an ID Card issued under the Identity Cards Act 2006
describing them as a British citizen; or
a UK passport or an ID Card issued under the Identity Cards Act 2006
describing them as a British subject with the right of abode in the UK; or
a certificate of entitlement to the right of abode.

In addition the UKBA in treating me in this way and not seeking to remedy the situation
have in fact discriminated against me on the basis of my nationality:-
Section 55 2006 Equality Act
Instructing or causing discrimination
(1) It is unlawful for a person to instruct another to unlawfully discriminate.
(2) It is unlawful for a person to cause or attempt to cause another to unlawfully
discriminate.
(3) It is unlawful for a person to induce or attempt to induce another to unlawfully
discriminate.
(4) For the purposes of subsection (3) inducement may be direct or indirect.
(5) In this section a reference to unlawful discrimination is a reference to
discrimination which is unlawful by virtue of any of sections 46 to 52.
Under section 4 of the 1976 Act, and section 6 of the 1997 Order, it is unlawful to discriminate in
employment practices on racial grounds. That means that an employer cannot discriminate
against a potential or existing employee on the following grounds:
• race;
• colour;
• nationality (including citizenship);
• ethnic origin;
• national origin.
Race discrimination may be either direct or indirect.

Link to this

J Mortoza left an annotation (17 September 2010)

Quote-marks The following link is from previous inquiry where the UKBA stated that staff would not advise potential employers

http://www.whatdotheyknow.com/request/ri...

The following was stated which they have also gone back on since

"7. Guidance is available to employers as to who is eligible to work in the United Kingdom. As those with the right of abode are able to work here, UKBA staff would not advise employers otherwise."

Then this was followed by:-

"As I explained in my earlier e-mail, the right of abode in the UK is something that is held by certain persons, irrespective of whether they have documentary evidence of that right (in the same way, for example, that a person can be a British citizen without holding a passport). This is information that Nationality advisers may give if asked about the right of abode."

These are examples of the inconsistency and different and differing answers given which have all been documented

Link to this

From: J Mortoza

17 September 2010

Dear Home Office,

Please pass this on to the person who conducts Freedom of
Information reviews.

I am writing to request an internal review of Home Office's
handling of my FOI request 'Right of Abode Rights'.

I have posted annotations to the FOI link where I have been given a
variety of different and contradictory set of statements not to
mention the blatant refusal to follow the case workers guidelines
by the organisation itself

The following link is from previous inquiry where the UKBA stated
that staff would not advise potential employers

http://www.whatdotheyknow.com/request/ri...

The following was stated which they have also gone back on since

"7. Guidance is available to employers as to who is eligible to
work in the United Kingdom. As those with the right of abode are
able to work here, UKBA staff would not advise employers
otherwise."

Then this was followed by by a further email that stated the
following:-

"As I explained in my earlier e-mail, the right of abode in the UK
is something that is held by certain persons, irrespective of
whether they have documentary evidence of that right (in the same
way, for example, that a person can be a British citizen without
holding a passport). This is information that Nationality advisers
may give if asked about the right of abode."

In view of all the above confusing and irregular answers I asked
for specific clarifications and instead my questions have been
treated as being vexatious which I find to be wrong as I have
complained about discrimination and hence have been victimised as a
result.

A full history of my FOI request and all correspondence is
available on the Internet at this address:
http://www.whatdotheyknow.com/request/ri...

Yours faithfully,

J Mortoza

Link to this

J Mortoza left an annotation (18 September 2010)

Quote-marks A Open letter in response to inaction by UKBA and terming my request as being vexatious

18th September 2010

Dear Sir/Madam,

I have tried to obtain information from the UKBA as to how they have connected regulation 3145 to Section 15 of the 2006 act with regards the rights of persons who have the right of abode.

According to the law a person who has the right of abode is not subject to immigration control and does not require permission to live and work in the UK. However according to the UKBA and their SEHL helpline just because the passport or travel document expires they suggest such a person becomes subject to immigration control and permission.

I have asked for specifically how they have made this policy based on what law or laws and the UKBA have not been able to provide me with any clear information about this.

Does this cause any significant distraction for UKBA to show me on what basis they have made the expiry of a certificate which is valid for presentation at a United Kingdom port the basis of my right to work. Does not an expired passport still prove a persons status and rights as well as their identity specially if it is presented with a current passport ? UKBA have not answered these and instead stated that my request for information on this under the freedom of information act is vexatious.

The request does represent significant value to me as it is my human right to work that has effectively been blocked and by making my certificate cease to have effect for travel purposes it has been implied and extended to immigration control over me and subject me to hindrance. These according to the law of the primary act is contrary and must be unlawful. The UKBA have not mandate to curtail my rights and in forcing me to take up a renewal on payment of fees are in deed acting unlawfully by making up their own policy. It has been towards this end that I have requested information and asked what I think are very valid questions which they have chosen not to answer and accused me instead of being vexatious while covering up their own malicious intent.

The UKBA have not been able to give me any good reason as to how the ability to prove my right through use of a expired passport expires my rights and also on what grounds they have been threatening potential employers with civil penalties when the law on civil penalties also do not apply to those who have a right of abode. A right of abode is not subject to immigration control or permission.

I have sent the following information to the UKBA as part of my queries for clarification and have not been provided any answer to any of these including the law as well as their own case guidances on law and policy.

Statement of right of abode in United Kingdom, 1971 Immigration Act as amended by the
2006 Asylum and Immigration Act as stated in section (2):-
General Principles
(1)All those who are in this Act expressed to have the right of abode in the United Kingdom shall
be free to live in, and to come and go into and from, the United Kingdom without let or hindrance
except such as may be required under and in accordance with this Act to enable their right to be
established or as may be otherwise lawfully imposed on any person.
(1) A person is under this Act to have the right of abode in United Kingdom if--
(a) he is a British citizen; or
(b) he is a Commonwealth citizen who
(i) immediately before the commencement of the British Nationality Act 1981 was a
Commonwealth citizen having the right of abode in the United Kingdom by virtue of
section 2(1)(d) or section 2(2) of this Act as then in force; and
(ii)has not ceased to be a Commonwealth citizen in the meanwhile.
2) In relation to Commonwealth citizens who have the right of abode in the UK by virtue of
subsection (1)(b) above, this Act, except this section and section 5(2), shall apply as if
they were British citizens; and in this Act (except as aforesaid) "British citizen" shall be
construed accordingly
Thus we can see the law is very clear and states that a person who has the right of abode
must be allowed to come and go without 'Let or hindrance(denoting something that is free
to progress)'.
The right of abode certificate states “valid for presentation at a United Kingdom Port
within the validity of the passport”. The fact that a passport is out of date does not in
itself render it invalid as evidence of nationality and identity and when presented with
another new passport reinforces that persons claim and ID.
Immigration regulation 3145 regulation Rule no 8 states
“a certificate of entitlement shall cease to have effect on the expiry of the passport
or travel document to which it is affixed”.
It does not state a persons right to work nor does it suggest anything other then the ability
to present the certificate for entry at a UK port will have expired if the passport does,
however as we see on the operations manual of the UKBA a completely different approach
is taken due to cautions under law and policies set as a standard for the UKBA to follow.
The Immigration (Restrictions on Employment) Order 2007 No 3290 published a list of
acceptable documents on a schedule entitled List A states the following
Excuse from paying civil penalty
3.—(1) To the extent provided for by paragraph (2) an employer is excused from paying a
penalty under section 15 of the 2006 Act if —
(a) the employee or prospective employee produces to the employer any of the documents or
combinations of documents described in list A in the Schedule to this Order; and
(b) the employer complies with the requirements set out in article 6 of this order.
LIST A
6. A passport or other travel document endorsed to show that the holder is exempt
from immigration control, is allowed to stay indefinitely in the United Kingdom, has
the right of abode in the United Kingdom, or has no time limit on their stay in the
United Kingdom.
There is no mention on the regulation that the passport has to be in date valid. In fact
LIST A Documents establish a statutory excuse by an employer which evidences a
persons on going right to work.

UKBA POLICY AND LAW DOCUMENT
The immigration law and policy document published on the UKBA states the following
which can be seen online at
http://www.bia.homeoffice.gov.uk/sitecon...
ction1/section1.pdf?view=Binary
It states on Subsection 3.2 of the Section 1 document entitled Chapter 1 Section Right of
Abode the following:-

3.2. Procedure
When a passenger presents a valid document as noted at paragraph 3 (above) he should,
subject to paragraph 2, be accepted immediately as being exempt from control unless
the immigration officer has reason to believe or suspect that the passport has been forged
or falsified or was improperly obtained. The fact that a passport is out of date does not in
itself render it invalid as evidence of nationality and identity, but this fact may justify the
immigration officer in continuing his examination until he is satisfied on these points. Note
that it is for the Immigration Officer to prove fraud, not for the passenger to disprove it.
The UKBA simply choose to ignore their own guidance on policy and law. They infer
through regulation 3145 Certificate of Entitlement to the Right of Abode Regulation 2006
that the right for a person to work itself is a) subject to immigration control, contrary to the
law, and (b) that a travel document meant for travel and presentation at a UK port in itself
is a control order over such a persons statutory right.

The result of this is that UKBA in fact have not only hindered my rights not to be subject to
let or hindrance according to the law but also have failed in providing a remedy to the
situation created by pointing to a regulation that is completely meaningless when it comes
to a persons right to work.

The UKBA instead of going about either offering remedy or providing information under the FIO as how they have made these connections have acted maliciously and have even victimised against me because I have stated that they are discriminating against me on the basis of my nationality and my being of mixed descent. Instead they have resorted to not answering direct questions and not giving a clear answer and accused me of being vexatious even though I have simply posted very valid questions under the FIO.

Link to this

From: J Mortoza

18 September 2010

Dear Home Office,

Please pass this on to the person who conducts Freedom of
Information reviews.

I am writing to request an internal review of Home Office's
handling of my FOI request 'Right of Abode Rights'.

I have annotated an open letter and now filed a complaint with the
ICO with regards claim that my making a FOI is vexatious. Given the
irregularity of issues over the past few months I would like my
complaint escalated to a much higher level as I feel my efforts to
get valid information is not being met and that I am being fought
off by staff despite my sending information on laws and also
information on UKBA's own case workers guidance on policy and law.

I feel the UKBA are not accepting responsibility nor accepting to
set right a course of action to provide remedy to the situation
caused by their own inferred policy without parliamentary approval
to that fact and in effect have tried to establish direct and
indirect control over those who are free from immigration control
and permission. In so doing the UKBA have violated my rights and
subjected me to hindrance which is unlawful. They have certainly
failed to act correctly in the fairness and with good
administration principles to offer remedy and have let me and my
statutory rights down in pursuit of forcement of fees and used the
fact that a certificate of entitlement which is valid for travel
and presentation at a UK port to mean something more and instead of
vesting rights in my person they have sought to try and vest my
rights in my travel document which is at best an error and at worst
unlawful.

A full history of my FOI request and all correspondence is
available on the Internet at this address:
http://www.whatdotheyknow.com/request/ri...

Yours faithfully,

J Mortoza

Link to this

J Mortoza left an annotation (19 September 2010)

Quote-marks I have placed all the items from both the primary and secondary legislations here to show the incorrect stance and unlawful action of UKBA

The Immigration (Restrictions on Employment) Order 2007 Order no 3290

In accordance with section 23(2) of that Act the Secretary of State has consulted those
bodies specified in section 23(2)(a) about a code specifying what an employer should or should not do to
avoid contravention of the Race Relations Act 1976(b) or the Race Relations (Northern Ireland)
Order 1997(c), published a draft code, considered representations made about the published draft
code and has laid a draft code before Parliament, after modifying the code to reflect the
representations. Under this order a set of acceptable documents to establish a statutory excuse are
“6. A passport or other travel document endorsed to show that the holder is exempt from immigration control, is allowed to stay indefinitely in the United Kingdom, has the right of abode in the United Kingdom, or has no time limit on their stay in the United Kingdom.”

Regulation and warning about contravening the race relations act 1976

Source: http://www.legislation.gov.uk/uksi/2007/...
The Immigration (Certificate of Entitlement to Right of Abode in the United Kingdom)
Regulations 2006 NO 3145

8. A certificate of entitlement shall cease to have effect on the expiry of the passport or travel document to which it is affixed.
“The certificate of entitlement bears the following words on it “Valid for presentation at a United
Kingdom Port within the validity of the passport”

Source: http://www.legislation.gov.uk/uksi/2006/...

It is issued to facilitate travel and is not a visa nor does it contain any conditions on a persons right
of abode based on the document. The right of abode is vested in a person not in their document. A
British citizen would not lose his/her right of abode just because their passport expires and nor will
a commonwealth citizen. The fact that the passport is not in date does not invalidate a persons
right to work!

UKBA POLICY AND LAW DOCUMENT FOR CASE WORKERS

The only thing that has expired is the effect of the certificate to be used to enter a port. However
we find case workers guidance of the UKBA's own policy and law states CHAPTER 1 – SECTION

1 RIGHT OF ABODE states the following

“3.2. Procedure
When a passenger presents a valid document as noted at paragraph 3 (above) he should, subject to paragraph 2, be accepted immediately as being exempt from control unless the immigration officer has reason to believe or suspect that the passport has been forged or falsified or was improperly obtained. The fact that a passport is out of date does not in itself render it invalid as evidence of nationality and identity, but this
fact may justify the immigration officer in continuing his examination until he is satisfied on these points. Note that it is for the Immigration Officer to prove fraud, not
for the passenger to disprove it.”

Source:
http://webarchive.nationalarchives.gov.u...
content/documents/policyandlaw/IDIs/idischapter1/section1/section1.pdf?view=Binary

UKBA Comprehensive Guide
The comprehensive guide states the following on page 45 and is flawed as the question asked is
never in fact answered and it suggests the immigration status ILE/ILR are one and the same which
is not correct. A Right of abode unlike an ILE does not impose immigration control nor does it
require permission of an Immigration officer to enter and work in the UK.

The following question on the guide is incorrectly framed and written

Q11 Will I have an excuse against liability to pay a civil penalty if I make a copy of a right of
abode certificate from an expired passport?

A. A non-European Economic Area national passport endorsed to show that the holder has
indefinite leave to enter or remain is evidence of a person’s entitlement to work only if the
passport is valid. Checking the passport of a prospective employee will not provide an excuse
against liability to pay a civil penalty if the passport has expired. However, there may be occasions
when a prospective employee presents a passport containing the following ink stamp, which
was formerly used by Immigration Officers to transfer a person’s conditions from an old
passport into a new passport. If someone presents this ink stamp to you in their passport,
they should also present their previous passport, which you should also copy, containing their
previous leave, to demonstrate that they are permitted to take the job you are offering.
Question 13 on page 46 on the other hand is correct
A. The main groups who are not subject to immigration control in the UK, and who you
can employ without restriction are:
British citizens; and Commonwealth citizens with the right of
abode; and Nationals from the Common Travel Area
(CTA); and
Nationals from European Economic Area
(EEA)/European Union (EU) countries and
Switzerland; and
Family members of adult nationals from
EEA/EU countries and Switzerland,
providing the EEA/EU national is lawfully
residing in the UK.

Source:
http://www.ind.homeoffice.gov.uk/sitecon...
orking/currentguidanceandcodes/comprehensiveguidancefeb08.pdf?view=Binary

SECTION 15 of the 2006 Asylum, Immigration, and Nationality Act

Section 15 with reference to civil penalties as fines on an employer only applies towards those who
are subject to immigration control. As the right of abode is not subject to immigration control the
use of this as a means of incurring a potential fine is incorrect.

15 Penalty
(1) It is contrary to this section to employ an adult subject to immigration control if—
(a)he has not been granted leave to enter or remain in the United Kingdom, or
(b)his leave to enter or remain in the United Kingdom—
(i)is invalid,
(ii)has ceased to have effect (whether by reason of curtailment, revocation, cancellation, passage
of time or otherwise), or
(iii)is subject to a condition preventing him from accepting the employment.
(2)The Secretary of State may give an employer who acts contrary to this section a notice requiring
him to pay a penalty of a specified amount not exceeding the prescribed maximum.
(3)An employer is excused from paying a penalty if he shows that he complied with any prescribed
requirements in relation to the employment.
(4)But the excuse in subsection (3) shall not apply to an employer who knew, at any time during
the period of the employment, that it was contrary to this section.
(5)The Secretary of State may give a penalty notice without having established whether subsection
(3) applies.
(6)A penalty notice must—
(a)state why the Secretary of State thinks the employer is liable to the penalty,
(b)state the amount of the penalty,
(c)specify a date, at least 28 days after the date specified in the notice as the date on which it is
given, before which the penalty must be paid,
(d)specify how the penalty must be paid,
(e)explain how the employer may object to the penalty, and
(f)explain how the Secretary of State may enforce the penalty.
(7)An order prescribing requirements for the purposes of subsection (3) may, in particular—
(a)require the production to an employer of a document of a specified description;
(b)require the production to an employer of one document of each of a number of specified
descriptions;
(c)require an employer to take specified steps to verify, retain, copy or record the content of a
document produced to him in accordance with the order;
(d)require action to be taken before employment begins;
(e)require action to be taken at specified intervals or on specified occasions during the course of
employment.

Source:
http://www.statutelaw.gov.uk/content.aspx?
LegType=All+Primary&PageNumber=3&NavFrom=2&parentActiveTextDocId=2321295&Activ
eTextDocId=2321313&filesize=32068
The provisions of section 15 applies to those who are subject to immigration control such
as ILE/ILR. It does not include those who are not subject to immigration control such as
Right of Abode.

Explanatory Memorandum accompanying section 15 and the 2006 Immigration Act states
the following:-

Employment
9.The provisions:
* create a power for the Secretary of State to apply a civil penalty, determined by a Code of
Practice, to an employer of an adult subject to immigration control who has not been granted leave
to enter or remain, whose leave is invalid, has ceased to have effect (whether by reason of
curtailment, revocation, cancellation, passage of time or otherwise) or whose conditions of entry or
stay prevent them from undertaking the employment. The provisions allow for objection and/or
appeal by the employer against the imposition of a penalty and the amount. An employer who
complies with requirements prescribed in an order of the Secretary of State is excused from paying
a penalty.
* create a new criminal offence of knowingly employing an adult who has not been granted leave
to enter or remain, whose leave is invalid, has ceased to have effect (whether by reason of
curtailment, revocation, cancellation, passage of time or otherwise) or whose conditions of entry or
stay prevent them from undertaking the employment in question.
*allow the Secretary of State to issue a code of practice to employers on how to avoid unlawful
racial discrimination when applying these provisions.
Section 15: Penalty
37.Section 15 provides that a person is liable to a civil penalty if he employs an adult subject to
immigration control who has not been granted leave to enter or remain in the United Kingdom or
whose leave is invalid, has ceased to have effect (whether by reason of curtailment, revocation,
cancellation, passage of time or otherwise), or is subject to a condition preventing him from
accepting the employment. An employer is excused from paying a penalty if he complies with the
requirements of an order made by the Secretary of State. The excuse does not apply where the
employer knew that his employment of the individual was unlawful. The section describes the
matters to be covered in the penalty notice and sets out the parameters of the requirements which
may be provided for in an order of the Secretary of State. Those are the requirements which, if
complied with, will excuse the employer from paying the penalty.

38.Subsection (1) sets out the circumstances in which an employer may be liable to a penalty.
Subsection (2) provides the Secretary of State's power to impose a penalty.
39.Subsection (3) sets out the circumstances in which an employer is excused from paying a
penalty. Subsection (4) provides that the employer loses the excuse if he knew at any time during
the employment that it was contrary to this section. Subsection (5) provides that as a matter of law,
the onus is on the employer to satisfy the Secretary of State that he can establish an excuse under
subsection (3), rather than on the Secretary of State to establish this prior to the service of a
penalty notice.

40.Subsection (6) sets out the specific matters to be covered in a penalty notice, including the
reason why the Secretary of State thinks the employer is liable, the amount of the penalty, the date
before it should be paid, and other practical points.
41.Subsection (7) sets out the parameters of the requirements which may be placed on employers
by way of an order of the Secretary of State. The requirements, if complied with, will excuse the
employer from paying a penalty. They relate to the checking, copying and retention of specified
documents.

Source: http://www.legislation.gov.uk/ukpga/2006...

2006 Asylum and Immigration Act as stated in section

(2):-General Principles
(1)All those who are in this Act expressed to have the right of abode in the United Kingdom shall
be free to live in, and to come and go into and from, the United Kingdom without let or hindrance
except such as may be required under and in accordance with this Act to enable their right to be
established or as may be otherwise lawfully imposed on any person.
(1) A person is under this Act to have the right of abode in United Kingdom if--
(a) he is a British citizen; or
(b) he is a Commonwealth citizen who
(i) immediately before the commencement of the British Nationality Act 1981 was a
Commonwealth citizen having the right of abode in the United Kingdom by virtue of
section 2(1)(d) or section 2(2) of this Act as then in force; and
(ii)has not ceased to be a Commonwealth citizen in the meanwhile.
2) In relation to Commonwealth citizens who have the right of abode in the UK by virtue of
subsection (1)(b) above, this Act, except this section and section 5(2), shall apply as if
they were British citizens; and in this Act (except as aforesaid) "British citizen" shall be
construed accordingly

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J Mortoza left an annotation (19 September 2010)

Quote-marks I have shown using the two pieces of primary legislation and also referring to the two secondary instruments that the UKBA are in error of the law itself! However this has only incurred resistance, change of story, and in ability to explain how such a inferred set of policies came about. There is nothing in any of the laws and legislations that prevent a person who has the right of abode to work legally and it is the UKBA who are in error. Attempts to point this out instead of providing good administrative principles of remedy and fairness has instead caused accusations of my asking specific questions as being vexatious which I not only thinks is unfair but does require a through investigation as it is a case of not only a large public body making up its own laws and policies without parliamentary sanctions but also of covering this issue up by not dealing with the pertinent questions it has raised!

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From: Public Enquiries (CD)
Home Office

20 September 2010

[Subject only] FW: Internal review of Freedom of Information request - Right of Abode Rights

show quoted sections

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Rob Grant left an annotation (20 September 2010)

Quote-marks A website has been created to track the issues around this matter and can be seen at
https://jmortoza.wordpress.com/2010/09/2...

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Rob Grant left an annotation (20 September 2010)

Quote-marks The UKBA simply will not address the issue of preventing people from working even though they have the right to do so. Instead they have spent every means possible to deny the rights of persons who are half English and half Commonwealth by inventing their own policies to hinder them. Every attempt to request information to get something clearly written has been ignored and this is from a government department which is suppose to take good administration into consideration.
Its a complete white wash!

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From: J Mortoza

20 September 2010

Dear Public Enquiries (CD),

This is not a general enquiry. It is a specific set of inquires as
to how a policy has been derived contrary to the laws itself. It is
also subject of complaint about the UKBA hiding behind their
offices and not giving answers legally required of them.

Please look at the top of the questions and the annotations of
supporting information providing cross reference to the law which
the UKBA is in error of.

I want to know how does regulation 8 SI no 3145 of 2006 states a
persons right to work has expired and also

how does regulation 3145 makes the effect of a certificate for
travel purposes make it effective for work purposes ?

These two important queries have not been answered and are now the
basis of my complaint to both the ICO and the Parliamentary
Ombudsman's office.

I want a direct answer for the above two questions rather then it
being hedged about.

Yours sincerely,

J Mortoza

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Rob Grant left an annotation (20 September 2010)

Quote-marks I have been looking at this request and have very similar questions myself on this subject. It would be right if a public body gave some attention to such a request as it has impact on many people. How did the UKBA link Section 8 of the 2006 SI Instrument 3145 to mean that a persons right to work will cease to have effect. It appears Mr. Mortoza is right in stating that the certificate of entitlement is used for travel purposes and it only states that in such a certificate. How can a persons statutory rights be removed by expiry of their travel document?

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From: J Mortoza

23 September 2010

Dear Public Enquiries (CD),

I am requesting FOI questions under the FOI act and the Race
Relations act 1976 as amended by the Race Relations Act 2000 under
section 65

1.Why have you rejected by requests to show me what primary
legislation affects my right to work freely

2.What is the breakdown of job seekers rejected and accepted based
on their indate and Out of date status for entry into the United
Kingdom ?

3.What are the reasons why some are accepted and others rejected?

4.Do they have an equal opportunities policy that allows decisions
to be set write and who is responsible for managing this area in
the organisation ?

5.What is the level of training or knowledge in immigration and
nationality law for UKBA SEHL Help line staff required ?

6.Does the SEHL give out the same advice for those who are British
citizens whose passports have expired ?

7.Does the SEHL give out advice for EU passport that have expired ?

8.In what way were my immigration documents defective?

Yours sincerely,

J Mortoza

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From: FOI Responses
Home Office

12 November 2010


Attachment IR report 16008.pdf
116K Download View as HTML

Attachment Cover letter IR 16008.pdf
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Dear Mr Mortoza,

Please find attached correspondence concerning your request for an
internal review of the UKBA response of 17 September 2010 to your Freedom
of Information request of 5 September 2010 concerning the Right of Abode
and certificates of entitlement.

Kind regards,

Robert Clifford

Robert Clifford I Information Access Team I Information Management
Service (IMS) I Shared Services Directorate I Financial & Commercial Group
I Ground Floor Seacole I 2 Marsham Street I London I SW1P 4DF I

show quoted sections

Communications via the GSi may be automatically logged, monitored and/or
recorded for legal purposes.

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