Nationality, Immigration and Asylum Act 2002 (Juxtaposed Controls) (Amendment) (No. 2) Order 2021
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Lord Paddick (LD) [V]
My Lords, I thank the Minister for explaining the order. When we debated the substantive order that this order amends on 2 March this year, I complained about the original order’s length and complexity. In her letter dated 20 May to Peers who contributed to that debate, the Minister apologised for the mistakes in the original order. I do not wish to add to her embarrassment, but it reads:
“I am acutely aware of the pressures on Parliament over the past year as a result of the pandemic and EU Exit, and apologise unreservedly for these errors. I can assure you that the department has reviewed its internal processes and has taken proactive steps to prevent such errors from occurring in the future.”
I am acutely aware of the pressures on the Minister over the past year, but we have arrived at a situation where secondary legislation is being neither properly drafted nor properly scrutinised by Parliament.
At the end of her closing statement in the debate on 2 March, the Minister said:
“I hope that I have answered noble Lords’ questions as far as I can today. I will write to noble Lords if I have missed anything out.”
The Minister neither answered my questions at the time —I have read the Hansard of that debate—nor has she written to me as promised, as far as I can ascertain from searching my inbox, as such letters are now delivered only electronically. Specifically, I asked:
“According to the Explanatory Notes, one part of these regulations is to reconcile the regime at the juxtaposed-control seaports in northern France with that for international rail services via the Channel Tunnel. The other part, Article 2, extends all immigration enactments to control zones in France and makes the necessary modifications to other enactments to ensure that UK immigration controls are able to function properly in those control zones.”
But I asked about Belgium:
“Why not Belgium? Are there no international agreements between us and Holland? What steps are being taken to extend arrangements to Belgium and Holland?”
I further asked
“if the arrangements are entirely reciprocal, there appears to be”—
the possibility of—
“double jeopardy where a person could be committing an offence under both British and French law. For example, someone who assaults a French official in a control zone in the UK could be prosecuted both in the UK and in France, were the French to have equivalent legislation to these regulations. If that were the case, who would have precedence in terms of prosecution? Would it depend on whether it was a French national or a British national”
who was the perpetrator?
My concern is enhanced by the addition of Article 12(7) to the Nationality, Immigration and Asylum Act 2002 (Juxtaposed Controls) Order 2003, which states:
“Any jurisdiction conferred by virtue of this article on any court is without prejudice to any jurisdiction exercisable apart from this article by any French court.”
There was no response. I then asked:
“The regulations appear to significantly expand the enactments having effect in a control zone in France from a specific and limited number of enactments in the 2002 order to all immigration control enactments; the Minister explained that the remit of Border Force officers has expanded since 2002. Even if that is necessary and proportionate, for the sake of clarity should the regulations list those immigration control enhancements so that people know exactly what they are subject to?”
There was no reply.
I also asked:
“The regulations appear to remove the protections provided by the Data Protection Act in relation to data processed in a control zone in France in connection with immigration control. Why is that necessary and proportionate?”—[Official Report, 2/3/21; cols. 1103-09.]
There was no answer.
This is what Parliament has been reduced to. The Government are making mistakes in the drafting of legislation, regulations are so long and complex that it is difficult for parliamentarians to properly scrutinise them, and even when we get the opportunity to hold the Government to account, our questions are ignored, as they were today on the Statement regarding the Daniel Morgan case. I will regret these regulations when they are tabled for approval on the Floor of the House, and I will tell the House why.
Napier Barracks Asylum Accommodation
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The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, we believed we were taking reasonable steps to give effect to the PHE advice on the steps to be taken to make dormitory accommodation as safe as possible. It was on that basis that the Home Secretary and the Permanent Secretary appeared before the committee. We acknowledge the court’s findings that the measures were not adequate and are considering our next steps. Throughout the set-up and operation of the site, the Home Office has engaged with health officials in various organisations to ensure that it is aware of up-to-date advice. While the advice to officials from PHE was that dormitory-style accommodation was not suitable, it also set out how congregate residential settings should be used if other accommodation was not available. We have been working very constructively with PHE for more than a year now.
Lord Paddick (LD) [V]
My Lords, the Minister just said “we believed we were taking reasonable steps”, but the Home Secretary told the Home Affairs Committee, in answer to question 120, that
“we have been following guidance in every single way.”
Does the Minister agree that there is a significant difference between what she has just said and what the Home Secretary said to the Select Committee? Who is telling the truth?
Baroness Williams of Trafford (Con)
As I said to the noble Lord, Lord Rosser, we believed that we were taking reasonable steps to give effect to the PHE advice on the steps to make accommodation as safe as possible. The advice that PHE set out was that self-contained accommodation should be used where available but, if not, how non-self-contained accommodation should be used. I have to say that we acted in an unprecedented health pandemic to ensure that asylum seekers were not left destitute. We took steps, in response to advice from health authorities, and have continued to make improvements throughout. In its letter to the chair of the Home Affairs Select Committee, the PHE set out that we have been working with it on Covid matters since spring last year.
Abolished Offences
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Baroness Williams of Trafford (Con)
My Lords, I wish it were that simple. I want to acknowledge what the noble Lord has said: not only did men post-1967 face equal difficulties and persecutions for their sexuality but some of them have died—that is the tragic thing. This is complex work and we need to consider the challenging legal and practical issues in extending the scheme, but I do not want that to translate as our commitment being any less diminished.
Lord Paddick (LD) [V]
My Lords, not only do the Government appear to be dragging their feet on this issue but there appears to have been a policy shift since Liz Truss became Minister for Women and Equalities. When the noble Baroness was Minister for Equalities, did she ever feel that the UK was focused too heavily on so-called fashionable issues of race, sexuality and gender? Could this explain the Government’s reluctance to take action on this important issue?
Baroness Williams of Trafford (Con)
As I said to the noble Lord, Lord Collins of Highbury, our commitment to this has not diminished, despite the fact that it has taken time. When I was the Equalities Minister I was, and remain now, committed to equality, and the Government remain committed to equality. I am very proud of what the Conservative Government have brought forward to advance equality.
Criminal Trials: Intercept Evidence
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Lord Paddick (LD) [V]
My Lords, surely there must be some circumstances where intercept evidence could be used without compromising operational integrity, such as those mentioned by my noble friend Lord Beith. How many individuals could have been prosecuted if intercept evidence had been allowed instead of them being subjected to terrorism prevention and investigation measures, or TPIMs, at considerable additional cost—both financial and to the reputation of British justice?
Baroness Williams of Trafford (Con)
My Lords, the question of how many individuals could have been prosecuted is very difficult to answer, given that the evidence was not used. I do not know if there are figures that I can give to the noble Lord. I want to make the point that we do not actually have an objection in principle to the use of intercept material as evidence, and we have tried to find a practical way to allow the use of intercept evidence in court. As I said, though, successive reviews have found that it is just not possible.
Immigration (Collection, Use and Retention of Biometric Information and Related Amendments) Regulations 2021
Lord Paddick Excerpts(5 years, 2 months ago)
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Lord Paddick (LD) [V]
The noble Baroness has explained that the draft Immigration (Collection, Use and Retention of Biometric Information and Related Amendments) Regulations 2021 are intended to improve the levels of assurance about the identities of those passing through or coming to the United Kingdom through the use and retention of biometric information obtained for immigration and nationality purposes. It is part of the Government’s move from physical documents to digital, despite the problems already identified where EU citizens with either settled or pre-settled status are being detained at the UK border. Many of these issues could be quickly and easily resolved if, as this House repeatedly told the Government, physical proof had been provided of settled status alongside digital recording.
While we are on the subject, what happens to EU citizens who have applied for settled status but who have yet to receive a response from the Home Office? I have some knowledge in this regard. I have an email from the Norwegian authorities to show that my application for residency in Norway has been submitted. I have to show it at the Norwegian border to prove that I continue to have the right of residence while my application is being considered. Can the noble Baroness please tell the Committee what happens at the UK border? What instructions are given to Border Force staff about pending decisions on settled status?
As the noble Baroness acknowledges, there is a wide range of different provisions in this SI, as we are accustomed to when it comes to immigration legislation, making it difficult to scrutinise—hence only Front-Bench participation in this debate, which is worrying for an affirmative procedure statutory instrument.
“Take back control of our borders”, the noble Baroness continues to say, and that prompts me to continue to say that visa-free entry to the United Kingdom has recently been extended to nine other countries, as well as being retained for EU, EEA and Swiss nationals. Therefore, the claim that we are taking back control of our borders has a certain hollow ring to it.
The regulations allow a photograph to be taken and retained in limited circumstances when someone passes through the border; for example, where a person cannot produce a photo ID document such as a passport or does not have leave to remain in the United Kingdom. That photograph can also be taken subsequently by appointment. Photographs can also be taken of the dependants of individuals in these limited circumstances. The photograph may be retained only where there is already a power to do so and can be used to investigate an offence or for other limited purposes. It must be destroyed when it is no longer needed; for example, when it is established that the person is a British citizen.
Retention of fingerprints is extended from 10 years to 15 years, as the noble Baroness said, with the ability to retain them beyond that date if necessary; for example, where the person is subject to a deportation order. Photographs are retained until the person obtains a United Kingdom passport. Biometric data can also be reused; for example, when a further application is made. The clock resets when the further application is processed. At the end of the 15-year period the fingerprints must be destroyed and digital copies must be made irretrievable, and someone is entitled to a certificate to prove that this has been done.
I understand that fingerprints do not change significantly during a lifetime, but the facial appearance of a person does, which is why photo ID such as driving licences and passports require regular renewal. Do the Government intend to require those whom they have taken facial photographs of to have a photograph retaken, say, every five years?
I am a little concerned that the regulations state that, where information is different in physical and digital forms, the digital information takes precedence. I understand that, if someone’s immigration status is revoked and the physical document is not in the possession of the Secretary of State, it can be changed digitally, and in such cases the digital record takes precedence. But is this always the case? Could there be circumstances where the digital record is wrong, for some reason? Should not cases therefore be decided on their merits, rather than by setting down in legislation that the digital copy automatically takes precedence? Aside from these concerns, we are content with these regulations.
On the draft Immigration and Nationality (Fees) (Amendment) Order 2021, the Government seem intent on making immigration and nationality fees a money generator. Despite the fact that photographs and fingerprints can be reused at the press of a button each time someone applies for an extension of leave to remain, instead of a person being sent to an appointment to give their fingerprints and photographs, the Government still claim that
“as the departmental processing costs for reuse are similar to those for taking fresh biometrics the fee must remain.”
Can the Minister explain how the cost of copying and pasting fingerprints and photographs electronically from an existing application to a new applications is similar to that of arranging for a person to attend in person and an official taking their fingerprints and photograph? I know from personal experience of having taken many fingerprints from individuals that that can be a difficult and time-consuming process. Is this not just another example of digital efficiency producing more profit for the Home Office?
On premium services, can the Minister explain what impact people paying even more to the Home Office for optional premium services has on what the Explanatory Notes refer to as the “standard or basic service”? Does the Home Office employ additional staff to provide premium services, or is the time taken for the standard or basic service longer the more people avail themselves of the premium service?
It is noted that the definition of premium service, previously restricted to services in connection with immigration and nationality applications, is to be extended to immigration and nationality generally. While the Government provide the example of Border Force officers checking passports on carriers at sea, which some carriers choose to pay for, one can also foresee a situation where Border Force could charge a fee for fast-track immigration at airports. Can the Minister explain what impact premium services such as checking passports on carriers at sea have on the capacity of Border Force to process passengers at air and sea ports? Do the Government have any plans to introduce fast-track entry for a price at UK borders?
Will any income generated by these premium services be used to provide more Border Force officers, or will the already unacceptable waiting times at UK borders simply be extended for those unwilling or unable to pay for a premium service? We are very concerned about the widening of the definition of premium services as set out in these regulations.
British Nationality Act 1981 (Immigration Rules Appendix EU) (Amendment) Regulations 2021
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Lord Paddick (LD) [V]
My Lords, I again thank the Minister for explaining these regulations. As she explained, the draft British Nationality Act 1981 (Immigration Rules Appendix EU) (Amendment) Regulations 2021 seek to prevent children born after 30 June 2021 failing to acquire British citizenship as a result of their parents not having EU settled status at the time of their birth. As my noble friend has just said, it covers only late applications made or resolved at the end of the grace period on 30 June 2021. Although it is welcome, it raises a series of issues. British citizenship is granted on the date when settled status is granted.
I commend my noble friend Lady Ludford on her excellent questions to the Minister. As a consequence, I can be brief. First, can the Minister explain why British citizenship is not being backdated to the date of birth? If the parent was entitled to remain in the UK indefinitely when the baby was born, albeit that by reason of late processing or late application settled status was not granted until after the end of the grace period, surely the baby is entitled to British citizenship from birth. Secondly, how can a child born in the UK to a parent entitled to remain in the UK indefinitely be denied British citizenship because its parent did not fill in the right forms? The resonance with the Windrush generation, as my noble friend has just alluded to, is deafening.
Surely if the Government can amend the British Nationality Act 1981 by means of this statutory instrument to deal with a baby born in the UK to parents who do not at the time of birth have formal legal indefinite leave to remain but are subsequently granted EU settled status, they could amend the Act so that a baby born in the UK in such circumstances could be granted British citizenship from birth. The point I am trying to make is this: a differentiation is being made on the basis of an administrative process—the application for and granting of EU settled status—rather than on the right of the parent to remain in the UK as a result of living and working in the UK before 31 December 2020, for example. I understand that the Government’s position may be that EU citizens who do not apply for settled status before the end of the grace period without a reasonable excuse are not legally entitled to indefinite leave to remain, but that is a restriction that the Government have put in place.
In the case of the Windrush generation, the Government have quite rightly accepted that those who have lived and worked in this country for decades but who were undocumented because they did not apply for British citizenship or a UK passport were treated wrongly, and they are compensating—too slowly, and inadequately—those who were wronged. The Government have accepted that these people were entitled to indefinite leave to remain, despite the fact that they did not apply for proof of their entitlement. Why are the Government repeating the same mistake with EU citizens?
I am sure that this statutory instrument is meant to be a positive step, but for me it raises more fundamental questions. It demonstrates clearly what the Government can do if they so wish—and what they wish to do is to penalise EU citizens in a similar way to which they penalised those from the Windrush generation, not because they do not have every right to indefinite leave to remain in the UK but because they did not apply for it. We support this SI as far as it goes, but it does not go far enough.
Immigration Rules: Statements of Changes
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Lord Paddick (LD) [V]
My Lords, it is not often that I agree with the noble Lord, Lord Green of Deddington, but to the following extent I do. The changes to the Immigration Rules contained in these statements are, as many other noble Lords have said, complex and bewildering. The Home Secretary heralds such changes as simplifying immigration law, but that is akin to simplifying pi by rounding it to the first 500 decimal places. It is only the most glaring changes that stand out, unless you are an immigration lawyer. How can Parliament hold the Government to account in such circumstances, when the changes have already come into effect and the other place has not even debated them yet? I am talking about more than just scale and complexity. As the noble Lord, Lord Green, said, the Home Office has the ability to make substantial changes through these statements.
Many of us were outraged that the Government, in their New Plan for Immigration, sought to treat genuine asylum seekers who have a legal right to claim asylum in the UK less favourably, just because they arrived in the UK by irregular routes. However, in these changes to the Immigration Rules, the Government have gone further, so that the Home Office does not even have to consider whether there is any merit in the claim, if the refugee has travelled to the UK through any so-called “safe” third country—unless, after six months of desperately trying to deport the refugee, it has failed to do so.
Previously, under EU Dublin III, if a refugee had claimed asylum in another EU country, their application could be ruled inadmissible and they could be returned to the country where they made their first claim. Under these new rules, an asylum claim can be ruled inadmissible just because the refugee travelled via a so-called “safe” third country, whether or not they have previously claimed asylum, and whether or not any of the countries through which they have travelled is willing to take them back. In fact, the rules allow the UK to send a refugee to any “safe” country in the world that is willing to take them, even a country the refugee has never been to and has no connection with.
Can the Minister confirm that, for six months, the substantive claim for asylum will not even be considered in such cases? The noble Lord, Lord Frost, has confirmed that the European Commission is not allowing bilateral agreements between the UK and EU member states, so all this means is that genuine refugees who arrived in the UK via irregular routes will be kept in the UK at taxpayers’ expense for an additional six months before their application is even considered.
The explanatory notes say:
“A stronger approach to disincentivise individuals is needed to deter claimants leaving safe third countries such as EU Member States, from making unnecessary and dangerous journeys”.
I have heard first hand from young asylum seekers who have made it to the UK, and their testimony is clear that places such as Italy and France are not safe, particularly for young unaccompanied refugees. Also, refugees are often English speaking, some with family already in the UK.
As the noble Lord, Lord Dubs, said, there are no longer any “safe and legal” routes for refugees to take. The few routes that were open to some of them involved having to be identified by the UNHCR while they were in refugee camps, then often waiting for two years or more, undergoing numerous interviews, before finally being accepted. For many it is too dangerous to wait in such circumstances, so they make their own way.
Many of these refugees have endured years of suffering in their own country. Some have been tortured. They have faced dangerous journeys, extending over many months and hundreds of miles. Do the Government seriously think an extra six-month wait, albeit in inadequate Army barracks in the UK, will deter them? As a result, in the past six months, over 1,500 applications have been placed on hold and, despite a 24% drop in applications over the last 12 months, more than 50,000 have now been waiting over six months for their asylum applications to be determined—an increase of 71% on the year before.
There are also important questions arising out of these changes to the Immigration Rules concerning EU citizens in the UK who are awaiting the outcome of their settled status applications or who have applied late. But this totally inadequate means of holding the Government to account—with six-minute speech limits—means I cannot even raise these important questions on the Floor of the House. The whole process, and what the Government are trying to do around immigration, is a disgrace.
Net Migration
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Baroness Williams of Trafford (Con)
My Lords, one of the things we discussed in previous debates was employers in this country not seeking to use cheap migrant labour but to rely on our domestic labour supply. We want a fair system for asylum seekers with safe, legal routes.
Lord Paddick (LD) [V]
My Lords, the Home Secretary has made a lot of strengthening our approach to criminality and implementing powers to refuse entry to arrivals convicted of certain criminal offences. How can this be when EU citizens are still allowed to enter the UK without a visa and the UK has lost real-time access to the EU criminal records database? How does Border Force know whether a passenger crossing the UK border has a criminal record?
Baroness Williams of Trafford (Con)
My Lords, from 1 July it will be incumbent upon people who enter this country to do so through a legal route, and the immigration system will be operating from then. It is right that we provide inadmissibility for people who do not come through those safe and legal routes.
Daniel Morgan: Independent Panel Report
Lord Paddick Excerpts(5 years, 3 months ago)
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Lord Paddick (LD) [V]
My Lords, when the Metropolitan police service refused to allow the Independent Police Complaints Commission to visit the scene of the police shooting of the innocent Brazilian Jean Charles de Menezes in 2005, I went to the then Deputy Commissioner of the Metropolitan Police and told him it was the most stupid decision I had ever heard of in policing, because it would give credence to people who were expecting a cover-up. The second most stupid decision must be that of the Home Secretary to block the publication of a report into an alleged establishment cover-up over the investigation of the murder of Daniel Morgan. Does the Minister not see the parallels?
Baroness Williams of Trafford (Con)
My Lords, I do not see how there can have been a cover-up, if the Home Secretary has not yet received the report. We need to be very careful about the series of events that are required for publication to take place. I am sure that, like the noble Lord, we all look forward to the report being published in Parliament.
Right-to-Work Checks for UK Nationals
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Baroness Williams of Trafford (Con)
The answer is actually quite clear: we need to check the security of what might go forward. We are undertaking a review of the value of using specialist technology, including identity document validation, in supporting the system of digital right-to-work checks to include UK and Irish citizens, as they are not in scope of the Home Office online checking services.
Lord Paddick (LD) [V]
My Lords, not only are the Government insisting on in-person physical right-to-work checks but some parents say they are being asked by schools to produce passports to prove their child’s right to education as a result of the UK’s departure from the European Union. Can the Minister confirm whether the Home Office is requiring schools to do this and, if so, on what legal basis? If it is not, will the Minister take urgent steps to stop this practice?
Baroness Williams of Trafford (Con)
Well, I am very grateful to the noble Lord for a heads-up this morning, and it is important to say to him that Brexit has not changed the rights of foreign nationals to access schools. State schools do not have a role in policing the immigration system. Independent schools, with sponsor licences, do have an explicit duty to have documents proving the right to stay in the UK. I do not know the details of the noble Lord’s case, but I would be most grateful to have some further detail, and perhaps we can discuss it further.