Legislation – Border Security, Asylum and Immigration Act 2025

“92CPower to impose monetary penalties

(1)

The Commissioner may give a relevant person a penalty notice if the Commissioner is satisfied on the balance of probabilities that the relevant person—

(a)

has failed to comply with—

(i)

the duty imposed on the person by paragraph 3(4) of Schedule 5 (duty to comply with Code of Standards) or paragraph 6(2) of that Schedule (duty to assist with investigation of complaint), or

(ii)

any other requirement imposed on the person by or under this Part, or

(b)

has, without reasonable excuse, obstructed the Commissioner in the exercise of the Commissioner’s functions under paragraph 4A of Schedule 5 (power to carry out inspections).

(2)

In this section “relevant person”, in relation to the giving of a penalty notice, means a person who was a registered person at the time of the act or omission in relation to which the notice is given.

(3)

A penalty notice is a notice requiring the person to whom it is given to pay to the Commissioner—

(a)

an amount specified in regulations made by the Secretary of State (a “fixed penalty notice”), or

(b)

an amount specified by the Commissioner in the notice (a “variable penalty notice”).

(4)

The Commissioner may give a person who is not a relevant person a penalty notice if the Commissioner is satisfied on the balance of probabilities that the person has failed to comply with the duty imposed on the person by paragraph 6(2) of Schedule 5.

(5)

The Commissioner may give an unqualified person a penalty notice if the Commissioner is satisfied on the balance of probabilities that the person has committed an offence under section 91 or 92B.

(6)

In subsection (5) “unqualified person”, in relation to the giving of a penalty notice, means a person who was not a qualified person at the time of the act or omission in relation to which the notice is given.

(7)

An amount specified in regulations under subsection (3)(a), and the amount specified in a variable penalty notice, must not exceed—

(a)

in the case of a penalty imposed on a person under subsection (5) in relation to the commission of an offence under section 92B, the maximum amount of the fine that could be imposed on the person on summary conviction for the offence;

(b)

in any other case, £15,000.

(8)

The Secretary of State may by regulations amend the amount for the time being specified in subsection (7)(b).

(9)

In this section and sections 92D to 92H—

“penalty notice” means a notice under this section;

“fixed penalty notice” and “variable penalty notice” have the meanings given by subsection (3).

92DProcedure for imposing penalties

(1)

Before giving a penalty notice to a person the Commissioner must notify the person of the Commissioner’s intention to do so.

(2)

The notice under subsection (1) must—

(a)

specify the proposed amount of the penalty,

(b)

specify the Commissioner’s reasons for proposing to impose the penalty,

(c)

specify the period during which the person may make representations about the proposal (“the specified period”), and

(d)

specify the way in which those representations may be made.

(3)

The specified period must not be less than 28 days beginning with the date on which the notice under subsection (1) is given.

(4)

The Commissioner must have regard to any representations made by a person during the specified period in deciding—

(a)

whether to give a penalty notice to the person, and

(b)

if the Commissioner decides to give a variable penalty notice to the person, the amount of the penalty specified in the notice.

(5)

Where the Commissioner gives a penalty notice to a person, the notice must specify—

(a)

the amount of the penalty, and

(b)

the period within which the penalty must be paid (“the payment period”).

(6)

The penalty notice must also contain information as to—

(a)

the grounds for the penalty,

(b)

how payment may be made,

(c)

the details of any early payment discount or late payment penalty included by virtue of subsection (7),

(d)

the consequences of non-payment,

(e)

rights of appeal, and

(f)

the period within which an appeal may be made.

(7)

The penalty notice may include provision for the amount payable under the notice—

(a)

to reduce in the event of early payment;

(b)

to increase in the event of payment after the end of the payment period.

92EAppeals against penalties

(1)

A person to whom a penalty notice has been given may appeal to the First-tier Tribunal against—

(a)

the decision to give the person a penalty notice;

(b)

where the notice given is a variable penalty notice, the amount of the penalty specified in the notice.

(2)

On an appeal under this section, the Tribunal may—

(a)

cancel the penalty,

(b)

confirm the requirement to pay the penalty, or

(c)

in the case of an appeal under subsection (1)(b), amend the amount of the penalty.

(3)

The requirement to pay the penalty under the notice is suspended at any time when—

(a)

an appeal under this section could be brought by the person in respect of the penalty, or

(b)

such an appeal is pending.

(4)

But subsection (3)(a) does not prevent the requirement to pay taking effect if the person notifies the Commissioner that the person does not intend to appeal.

(5)

No further amount is payable as a result of provision included in the penalty notice by virtue of section 92D(7)(b) in respect of the period during which the requirement to pay is suspended.

(6)

For the purposes of subsection (3)(b) an appeal is pending during the period—

(a)

starting when the appeal is brought, and

(b)

ending when the appeal is finally determined, abandoned or withdrawn.

92FEnforcement of penalty notices

(1)

This section applies if a person who is liable to pay an amount to the Commissioner under a penalty notice has not paid the whole or any part of that amount when it is required to be paid.

(2)

In England and Wales the Commissioner may recover the unpaid amount on the order of the county court as if it were payable under an order of that court.

(3)

In Scotland payment of the unpaid amount may be enforced in the same manner as an extract registered decree arbitral bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland.

(4)

In Northern Ireland the Commissioner may recover the unpaid amount on the order of a county court as if it were payable under an order of that court.

92GGuidance about penalties

(1)

The Commissioner must prepare and publish guidance about the Commissioner’s use of the power to give a penalty notice.

(2)

The guidance must, in particular, include information as to—

(a)

the circumstances in which the Commissioner is likely to give—

(i)

a fixed penalty notice, or

(ii)

a variable penalty notice, and

(b)

in the case of a variable penalty notice, the matters to which the Commissioner has regard in determining the amount of the penalty.

(3)

The Commissioner—

(a)

must from time to time review the guidance, and

(b)

may revise and republish the guidance following a review.

(4)

Before preparing or revising guidance under this section, the Commissioner must consult such persons as the Commissioner considers appropriate.

92HPenalties imposed in relation to commission of offence: convictions

A person who is required to pay a penalty under a penalty notice given under section 92C(5) (penalty in respect of offence under section 91 or 92B) may not at any time be convicted of an offence under section 91 or, as the case may be, 92B in respect of the act or omission in relation to which the notice was given.”