Residence Act 2001, c. 7

Isle of Man

Acts of Tynwald

RESIDENCE ACT 2001

(Chapter 7)

Received Royal Assent: 20 March 2001

Passed: 20 March 2001

IOM ACT 2001-7; RESIDENCE ACT 2001

AN ACT to provide for the registration of residents; regulating residence in the Island; and for connected purposes.

PART 1 REGISTRATION OF RESIDENTS

1 Register of individuals qualified to reside in the Island

(1) A register of individuals qualified to reside in the Island (in this Act called 'the register') shall be maintained by the Registrar in accordance with this Part and Part 3.

(2) The register shall be available for public inspection at the Registrar's principal office during the normal office hours of the Registrar.

(3) The register shall contain particulars of the name, sex, date of birth and last known residence in the Island of each registered individual.

(4) Subject to subsection (5), an application for registration shall be made to the Registrar in the prescribed form which shall be accompanied by such documents and information as may be prescribed.

(5) Where an individual is under a disability his parent, guardian or other person in whose care or custody he is for the time being, may make application for registration on his behalf.

(6) The Registrar may by notice in writing served on the applicant require him to provide such further documents or information as the Registrar considers reasonably necessary for the purpose of establishing eligibility for registration.

(7) If the applicant fails to comply with a requirement under subsection (6) within 3 weeks or such further period as the Registrar may permit, the Registrar shall treat the application as withdrawn and he shall serve written notice of that fact on the applicant.

(8) The Registrar shall not register an individual unless he is satisfied that the individual is qualified for registration in accordance with section 2 or 3.

(9) The Registrar shall in relation to every application for registration-

(a) register the individual who is the subject of the application; or

(b) refuse to register that individual.

(10) The Registrar shall, within a reasonable time, serve on the applicant written notice of his decision under subsection (9).

(11) If the Registrar refuses to register an individual he shall include reasons for the refusal in the notice under subsection (10).

2 Unconditional registration

(1) The following individuals are qualified to be registered as of right and without the imposition of conditions (in this Act called 'unconditional registration')-

(a) an individual who was resident in the Island immediately before the commencement of this section;

(b) an individual who, immediately before the commencement of this section, was not resident in the Island but who, at any time before the commencement of this section, had established his permanent home in specific residential accommodation in the Island and continues to maintain it there;

(d) an individual who has at any time been resident in the Island for an aggregateperiod of at least 10 years;

(e) the spouse of an individual qualified under any of paragraphs (a) to (d);

(f) a widow, widower or divorcee of an individual qualified under any of paragraphs (a) to (d);

(g) an individual, one of whose parents is qualified under any of paragraphs (a) to (f);

(2) For the purposes of subsection (1)(a) , no account shall be taken of any period during which an individual was in the Island for the purpose only of receiving medical treatment.

(3) For the purposes of subsection (1)(d), no account shall be taken of any period during which an individual was in the Island in contravention of section 9(1).

3 Conditional registration

(1) Subject to the provisions of this section and of regulations and Directions, the Registrar may register an individual who satisfies any of the criteria specified in this section or in regulations (in this Act called 'conditional registration').

(2) The dependants of any person who is registered under this section shall be entitled to conditional registration.

(3) On the grant of conditional registration the Registrar-

(a) shall impose such conditions as are required by regulations; and

(b) may, in accordance with Directions, impose such other conditions as he considers appropriate in the circumstances.

(4) Conditional registration shall, unless sooner determined, expire-

(a) on the date specified in conditions under subsection (3); or

(b) on the date on which the individual concerned ceases to be resident in the Island.

(5) An individual who is the subject of conditional registration may at any time apply in the prescribed form to the Registrar for the variation of any condition imposed under subsection (3).

(6) The Registrar shall in relation to every application under subsection (5) either-

(a) subject to Directions, vary the conditions in accordance with the application; or

(b) refuse to vary the conditions.

(7) Where the Registrar refuses to vary a condition he shall, within a reasonable time, serve on the applicant written notice of his decision and he shall include reasons for his decision.

(8) Any individual who is in contravention of a condition imposed under subsection (3) shall be guilty of an offence.

(9) In this section 'dependants' means, in relation to an individual who is the subject of conditional registration, such individuals as are specified in regulations.

4 Variation of register

(1) If the Registrar is satisfied on reasonable grounds that-

(a) a registered individual has died;

(b) any individual has been born in the Island;

(c) the particulars contained in the register in relation to any individual are incorrect (whether by reason of clerical error or otherwise);

(d) an individual's registration has expired or otherwise come to an end,

he may vary the register.

(2) Where the Registrar varies the register on any of the grounds mentioned in paragraphs (b) to (d) of subsection (1), the Registrar shall forthwith serve written notice of the variation on the individual concerned or, where that individual is under a disability, on that individual's parent, guardian or other person in whose care or custody he is for the time being.

(3) The Registrar may exercise his powers under subsection (1) on information made available to him from any source.

(4) In this section 'vary' includes the cancellation or addition of an entry in the register.

5 Review of decisions

(1) Any person aggrieved by a decision of the Registrar-

(a) to refuse registration under paragraph (b)of section 1(9);

(b) to impose conditions under paragraph (b)of section 3(3);

(d) to vary the register on any of the grounds mentioned in paragraphs (b) to (d) of section 4(1),

may apply to the Tribunal established under this section in such manner as may be prescribed to review that decision.

(2) A hearing of the Tribunal will be held in public unless the applicant requires it to be held in private.

(3) Applicants may appear in person or by their appointed representative.

(4) The Tribunal shall take account of Directions in reaching a decision.

(5) The Tribunal may confirm, vary or reverse such a decision of the Registrar and the decision of the Tribunal shall be final.

(6) The Registrar shall make such alterations to the register as are necessary to give effect to a decision of the Tribunal under this section.

(7) The Tribunal shall consist of-

(a) a chairman who shall be the High Bailiff; and

(b) 2 members who shall be appointed by the Council of Ministers.

(8) The term of office of a Tribunal member appointed under subsection (7)(b)shall not exceed 3 years.

(9) The Council of Ministers may for good cause, at any time rescind the appointment of a Tribunal member appointed under subsection (7)(b) and appoint a replacement member under that subsection.

(10) A member of the Tribunal whose term of office expires is eligible to be re-appointed.

(11) The Council of Ministers may appoint deputy members of the Tribunal to exercise the functions of members in their absence.

(12) No defect in the appointment of a member or deputy member of the Tribunal shall vitiate the proceedings of the Tribunal in which he may have taken part.

(13) In subsection (1), 'person aggrieved' means the individual to whom the application or, as the case may be, registration relates and includes, where that individual is under a disability, a parent, guardian or other person in whose care or custody he is for the time being.

6 Obligations to supply information

(1) A registered individual shall within 3 weeks of any change in the particulars contained in the register serve written notice of such change on the Registrar.

(2) Where a registered individual is under a disability his parent, guardian or other person in whose care or custody he is for the time being, shall comply with subsection (1) on his behalf.

(3) Any person who is in contravention of subsection (1) shall be guilty of an offence.

7 Access to official records

(1) The Chief Registrar shall, as soon as practicable after receiving the quarterly returns of live-births and deaths supplied to him under section 32 of the Civil Registration Act 1984, supply a copy of those returns to the Registrar.

(2) Notwithstanding any restriction on disclosure of information imposed by any enactment or otherwise, the Assessor of Income Tax and the Department of Health and Social Security may disclose relevant information to the Registrar or an officer authorised by him for the purpose of assisting the Registrar in the performance of his duties under this Act.

8 Effect of registration

(1) Notice of registration under section 1(10) shall be evidence that the necessary requirements of this Act in respect of registration and of matters precedent and incidental thereto have been complied with.

(2) Except as expressly provided by this Act, registration shall not be construed as affecting the status, rights or duties of any person and accordingly, no person shall be prejudiced in any proceedings by reason only of an inclusion in or omission from the register, save any proceedings relating to an offence under this Act.

PART 2 CONTROL OF RESIDENCE

9 Restriction on residence

(1) Subject to this Part and regulations, an individual shall not be entitled to reside in the Island unless he is registered or is an exempt person.

(2) Subject to this Part and regulations, a person shall not cause or permit another to reside in the Island unless that other is registered or is an exempt person.

(3) Any person who is in contravention of subsection (1) or (2) shall be guilty of an offence.

(4) Without prejudice to paragraph (e) of section 19(2), for the purposes of this section an individual is an exempt person if-

(a) he was resident in the Island immediately before the date of commencement of this section but only for so long as that individual resides in the residential accommodation in which he was resident immediately before that date; or

(b) he is in the Island for the purpose of undergoing full-time education in the Island but only for so long as the individual is undergoing such education.

10 Certificate of registration

(1) Upon application to the Registrar a registered individual shall be entitled to a certificate in the prescribed form confirming that-

(a) the applicant;

(b) any child of the applicant; or

is registered.

(2) A certificate of registration shall be valid for such period as may be specified in the certificate.

11 Procedure on commencement of residence

(1) An individual shall, before commencing to reside in any residential accommodation, produce to the person who is providing the accommodation, or to that person's advocate or agent, a valid certificate of registration in respect of the persons who are intending to reside in the accommodation.

(2) Where a registered individual is under a disability his parent, guardian or other person in whose care or custody he is for the time being, shall comply with subsection (1) on his behalf.

(3) A person providing accommodation shall be under a duty to require the production of certificates of registration in accordance with subsection (1).

(4) For the purposes of subsection (1), the person providing the accommodation shall be the person from whom the accommodation or the right to reside there is obtained, whether by purchase, lease, licence or any other arrangement (formal or informal).

(5) Any person who is in contravention of subsection (1), (2) or (3) shall be guilty of an offence.

(6) In proceedings brought against an individual for a contravention of subsection (1), it shall be a defence for him to prove that it was not practicable in the circumstances to produce the certificate to the person providing the property before the date on which that individual commenced to reside there.

PART 3 GENERAL

12 Investigation

(1) An authorised person may make such investigations as may be necessary for ascertaining whether this Act is being, or has been, complied with.

(2) If it is shown to the satisfaction of a justice of the peace on sworn information in writing that it is necessary for the purposes mentioned in subsection (1), the justice may by warrant under his hand authorise an authorised officer to enter the residential accommodation concerned for that purpose.

(3) A warrant issued under this section shall continue in force for 7 days from the date on which it is issued.

(4) An authorised person entering residential accommodation under a warrant under this section may take with him such other authorised persons and constables as may be necessary, and on leaving unoccupied accommodation that he has entered under such a warrant he shall leave it as effectually secured against trespassers as he found it.

(5) Where the Registrar, after investigation, has reasonable cause to believe that an individual is residing in the Island in contravention of section 9(1), the Registrar may serve notice on that individual informing him of that belief and requiring him within 7 days from the date of service of the notice to satisfy the Registrar that he is not in contravention of that section.

(6) If any individual on whom notice under subsection (5) is served fails to satisfy the Registrar within the said period of 7 days, the Registrar may, on any prosecution brought for an offence under section 9(1), certify to the court that the individual has so failed, and the production to the court of that certificate shall, unless and until the contrary is proved, be sufficient evidence to prove that the individual to whom it relates is in contravention of section 9(1).

13 False statements and obstruction

(1) Any person who in purported compliance with any provision of this Act or a requirement imposed under any such provision, provides information which he knows to be false in a material particular or recklessly provides information which is false in a material particular, shall be guilty of an offence.

(2) Any person who intentionally obstructs an authorised person in the exercise of any power under this Act shall be guilty of an offence.

(3) Where a person is convicted of an offence under subsection (1) in respect of any statement or information made or provided in the course of an application for registration, the court may, if it thinks fit, order that the registration be cancelled and shall cause a copy of the order to be sent to the Registrar.

(4) The Registrar shall, on receiving a copy of an order under subsection (3) cause the entry concerned to be removed from the register and the registration of the person concerned shall thereupon cease to have effect.

(5) An order under subsection (3) shall not prevent the person who is the subject of the order from making a fresh application for registration.

14 Directions

(1) The Council of Ministers may give the Registrar such general directions (in this Act called 'Directions') as it thinks fit with respect to the exercise or performance of the Registrar's powers under this Act and the Registrar shall comply with any such Directions.

(2) The Council of Ministers shall cause Directions under subsection (1) to be laid before Tynwald.

(3) The Registrar shall supply a copy of any Direction to any person requesting the same at such reasonable charge as the Registrar may determine.

15 Information

(1) Subject to subsection (2), information which is received for the purposes of, or in the discharge of functions under, this Act by an authorised person or any other person having any official duty under this Act is confidential and shall not be disclosed to any person without the consent of the person from whom the information was received or if different, the individual to whom it relates.

(2) Subsection (1) shall not preclude the disclosure of information-

(a) to the person to whom it relates;

(b) by order of a court in the Island;

(d) for the purposes of a review under section 5;

(e) if the information is or has been available to the public from other sources; or

(f) in a summary or collection of information framed in such a way as not to enable the identity of any individual to whom the information relates to be ascertained.

(3) Any person who is in contravention of subsection (1) shall be guilty of an offence.

16 Offences : supplementary provisions

(1) No person shall be prosecuted for an offence under this Act without the consent of the Attorney General.

(2) Any complaint relating to an offence under this Act may be tried by a court of summary jurisdiction if-

(a) it is made within 6 months after the commission of the offence; or

(b) it is made within 3 years after the commission of the offence and not more than 2 months after the date on which evidence sufficient in the opinion of the prosecutor to warrant the proceedings came to his knowledge.

(3) For the purpose of subsection (2)(b) a certificate signed by or on behalf of the prosecutor and stating the date on which such evidence as aforesaid came to his knowledge shall be conclusive evidence of that fact; and a certificate stating that matter and purporting to be so signed shall be deemed to be so signed unless the contrary is proved.

(4) Where an offence under this Act, committed by a body corporate, is proved to have been committed with the consent of, or to be attributable to any neglect on the part of any director, manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in any such capacity, he, as well as the body corporate, shall be guilty of that offence and liable to be proceeded against and punished accordingly.

(5) Where the affairs of a body corporate are managed by the members, subsection (4) shall apply in relation to the acts and defaults of the member in connection with his functions of management as if he were a director of the body corporate.

(6) For the purposes of subsection (4), 'body corporate' includes a limited liability company constituted under the Limited Liability Companies Act 1996 and, in relation to such a company, any reference to a director, or other officer of a body corporate is a reference to a member and to the company's manager and registered agent.

(7) In proceedings brought against any person for an offence under this Act it shall be a defence for him to prove that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence.

17 Penalties

(1) Any person who commits an offence under this Act shall be liable on summary conviction to a fine not exceeding £ 5,000 or to custody for a term not exceeding 6 months, or to both.

(2) The court before which a person is convicted of an offence under this Act may, if it is satisfied that the person is not entitled to reside in the Island, make an order requiring that person to leave the Island.

(3) If an order is made by the court under subsection (2), the Registrar shall arrange for such order to be enforced as soon as is practicable by a constable or other person authorised by the Registrar, and such constable or other person is authorised to enforce such order and to take all necessary steps which may be practicable, for procuring the conveyance of such person to the country where such person previously last resided.

(4) After an order under subsection (2) has been enforced, the Registrar shall forthwith forward a written report to the court which made the order specifying the steps which were taken to enforce it.

18 Effect of contravention on contracts etc

No conveyance, lease or licence, or any other agreement whatsoever, shall be void, voidable or rendered unenforceable by reason only that, at the relevant time, any party to the transaction is in contravention of any provision of this Act.

19 Regulations

(1) The Council of Ministers may make such regulations as it may consider necessary or expedient to carry into effect the provisions of this Act.

(2) Without prejudice to the generality of subsection (1) regulations may provide for-

(a) the criteria to be satisfied for conditional registration under section 3(1);

(b) such conditions as are required to be imposed on the grant of conditional registration under paragraph (a) of section 3(3);

(d) the form of the certificate of registration;

(e) exemptions from this Act;

(f) the modification of section 2(1);

(g) the modification of the meaning of the expression 'resident' given in section 20(1) by prescribing circumstances in which an individual is not to be treated for the purposes of this Act as being resident in the Island;

(h) the imposition of a duty on any public authority or the operator of an educational or training establishment-

(i) to keep such particulars as may be specified in relation to individuals residing in residential accommodation which is vested in, or managed or controlled, by it;

(ii) in the case of the operator of an educational or training establishment, to keep such particulars as may be specified in relation to individuals attending courses of instruction there;

(iii) to make such returns to the Registrar as may be specified at such intervals as may be specified.

(3) Regulations under this Act shall not come into operation unless they are approved by Tynwald.

20 Interpretation

(1) In this Act-

'authorised person' means a person who is authorised in writing for the purposes of this Act by the Council of Ministers and includes the Registrar;

'certificate of registration' shall be construed in accordance with section 10(1);

'child'includes adopted child, step-child and a child who is not a marital child;

'conditional registration' has the meaning given by section 3(1);

'conditions'includes limitations;

'Directions'has the meaning given by section 14(1);

'exempt person' means a person who is exempted from the provision in which the reference appears;

'parent'includes a step-parent and an adoptive parent;

'the register' has the meaning given by section 1(1);

'the Registrar' means the person appointed by the Civil Service Commission to undertake the functions conferred on that office-holder by this Act;

'regulations' means regulations made under section 19;

'resident'means ordinarily resident and 'reside' shall be construed accordingly but, without prejudice to the generality of that definition, a person shall not be treated as ordinarily resident by reason only of the fact that the person is present in the Island for an aggregate period not exceeding 6 months in any 12 consecutive months,

'residential accommodation' means-

(a) any premises, vehicle or vessel, or any part of any premises, vehicle or vessel; and

(b) any other place,

used for the purposes of human habitation;

'unconditional registration' has the meaning given by section 2(1);

'vessel'means a Manx ship within the meaning given in section 1 of the Merchant Shipping Registration Act 1991.

(2) For the purposes of this Act an individual shall be treated as under a disability while-

(a) he is a minor; or

(b) by reason of mental disorder within the meaning of the Mental Health Act 1998, he is incapable of managing and administering his property and affairs.

(3) For the purposes of this Act, a person shall not be treated as resident in the Island by reason only of his serving a term of custody in the Island.

21 Financial

There shall be paid out of money provided by Tynwald any sums necessary for and attributable to the administration of this Act.

2 Amendments

The enactment referred to in the Schedule is amended in accordance with that Schedule.

23 Savings

Nothing in this Act shall affect the operation of-

(a) the Immigration Act 1971 (an Act of Parliament) or any statutory provision amending or replacing that Act, as they have effect in the Island;

(b) the Data Protection Act 2002.

[Para (b) amended by Data Protection Act 2002 Sch 12.]

24 Short title and commencement

(1) This Act may be cited as the Residence Act 2001.

(2) This Act shall come into operation on such day as may be appointed by order made by the Council of Ministers and different days may be so appointed for different provisions and for different purposes.

Schedule 1 Amendments

Control of Employment Act 1975

In section 2(3), after paragraph (b) add-

'(c) any person who is registered or is qualified to be registered under section 2 of the Residence Act 2001;

(d) any person who is registered under section 3 of that Act, but only during the period of such registration;

(e) any person who is exempted from that Act;

(f) any person who is exempted from registration under that Act.'.

28 Port controls

(1) Schedule 7 (port controls) shall have effect.

(2) The powers conferred by Schedule 7 shall be exercisable notwithstanding the rights conferred by -

(a) section 1 of the Immigration Act (general principles regulating entry into and staying in the Island;

(b) the Residence Act 2001 (regulation of residence in the Island).