Authority to Carry Scheme and Civil Penalties Regulations 2021

Baroness Williams of Trafford Excerpts

Tuesday 2nd March 2021 Lords Chamber

Moved by

[Baroness Williams of Trafford]

That the draft Regulations laid before the House on 28 January be approved.

Relevant document: 45th Report from the Secondary Legislation Scrutiny Committee

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, the purpose of these regulations, laid under Sections 23(2) and 24(7) of the Counter-Terrorism and Security Act 2015, is to give effect to the authority to carry scheme 2021; to make consequential amendments to the Authority to Carry Scheme (Civil Penalties) Regulations 2015 and to revoke the Counter-Terrorism and Security Act 2015 (Authority to Carry Scheme) Regulations 2015. Once given effect, the 2021 scheme will, in turn, replace and revoke the authority to carry scheme 2015.

Authority to carry is, in effect, the UK’s no-fly scheme. It is necessary to prevent certain individuals from travelling to—or from—the UK, when it is necessary in the public interest. The scheme is operated by the National Border Targeting Centre, which processes information about individuals, both passengers and crew, intending to travel to or from the United Kingdom. Where an individual is identified who is in a class of person described in the scheme, the carrier may be refused authority to carry the individual to or from the UK.

Authority to carry is a key part of the UK’s border security arrangements, preventing individuals—including known terrorists, serious criminals and those subject to sanctions—from being able to travel to the UK. The 2021 scheme applies to all carriers who have been required by law to provide passenger and crew information before departure. It applies on all international routes to and from the UK, as well as to routes to and from the UK from within the common travel area where advance passenger and crew information is received from a carrier.

The operation of the authority to carry scheme has been extremely successful. Since its introduction in March 2015, the National Border Targeting Centre has refused carriers authority to carry individuals seeking to travel to the UK on more than 8,200 occasions. This has included around 200 individuals excluded from the UK, around 3,300 individuals previously deported from the UK, and more than 4,700 individuals using invalid, lost, stolen or cancelled travel documents. It has also included subjects of international travel bans. Those individuals would otherwise have arrived in the UK and been refused leave to enter by Border Force officers. The carrier would have been required to remove them and, in some cases, meet their detention costs. Some of those individuals, once in the UK, might have taken the opportunity to challenge their removal.

The 2021 scheme builds on the 2015 scheme by including additional classes of individuals whom carriers may be refused authority to carry when travelling to the UK. These are: individuals whose visa has been cancelled or revoked; individuals who have been refused leave to enter the UK before their departure for, or in the course of their journey to, the UK; and individuals who are using a travel document that is known to include a false or counterfeit visa or endorsement. One additional class of individual is included in the 2021 scheme in respect of whom carriers may be refused authority to carry when travelling from the UK: individuals using an invalid, lost or stolen travel document.

Although the 2015 scheme provides for the refusal of authority to carry from the UK, as does the proposed 2021 scheme, there has not yet been a case where this has proven necessary. Ports police provide the first response and will intervene prior to departure, rather than the carrier being refused authority to carry. However, by including this outbound class, we will engage carriers to inhibit the use of passports where the Passport Office has notified the applicant that their document should not be used for travel. Equally, there is a need for a replacement scheme following the end of the EU transition period and ahead of the end of the citizens’ rights grace period at the end of June.

The draft 2021 scheme brings into scope the subjects of travel bans made under the new UK sanctions regime established by the Sanctions and Anti-Money Laundering Act 2018. Subjects of United Nations and United Kingdom travel bans will be in scope of the 2021 scheme.

The proposed 2021 scheme removes the distinction that was apparent in the 2015 scheme between EEA and third-country nationals excluded or deported—or in the process of being excluded or deported—from the UK. This is important ahead of the end of the citizens’ rights grace period. The Government are absolutely committed to ensuring the continued safety and security of the UK border. This new authority to carry scheme is central to that effort. I beg to move.

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[Baroness Williams of Trafford (Con)]

My Lords, I thank noble Lords who took part in the debate. As with the previous debate, some of the contributions had nothing to do with the SI, but that has never stopped noble Lords before.

My noble friend Lady Warsi asked, with reference to the Shamima Begum case, how many children we prevented from travelling overseas. We never refused authority to carry in respect of any children. The provision was put in place in response to Shamima Begum and her friends, but it has never been used. On what practical measures we take to stop children travelling, as I said, it has not been necessary to refuse any carrier authority to carry from the UK. Of course, ports police will intervene where adults or children of concern or at risk may seek to travel from the UK. In terms of wider practical support, there is the Prevent programme, which has, as its name suggests, prevented children from getting engaged in what might be terrorism down the line.

The noble Lord, Lord Dodds, asked about Ireland to GB. Where advance passenger information—API—is available ahead of travel, authority to carry can be refused from Ireland to GB. There is no reporter requirement under UK law for airlines operating flights to Ireland to provide that information to UK Border Force. Information about persons of concern to the UK and Ireland is shared between the respective border control authorities. The same is true with other countries, in response to the question asked by the noble Lord, Lord Paddick.

I will have to get back to the noble Lord, Lord Kennedy, on when guidance will be provided. He is right about the fine: it is £50,000. There have been 51 breaches of the 2015 scheme, with 18 penalties imposed on airlines for non-compliance, totalling just over £186,000. He asked about uprating. I do not know the answer to that question so will have to get back to him—I am not going to blag my way through that—but I add that airlines are very pleased about this, because it gives them clarity, which always helps. They have been looking for this for a very long time.

Regarding the treatment of EEA nationals, obviously we have amended the 2021 scheme to reflect the end of the transition period, and the distinct category will remain for individuals who have been excluded under the former immigration EEA regulations, but the new scheme also reflects that from January 2021, individuals, whether EEA or third-country nationals, may be deported from the UK under the Immigration Act 1971 and excluded by the Home Secretary exercising prerogative powers. Further to that, non-visa nationals who are excluded or who have been deported will be subject to refusals of authority to carry and should not arrive in the UK, but where they do, their details are available to Border Force officers and the e-gates.

The noble Lord, Lord Paddick, asked how long before departure. It would be 24 hours before departure. He asked whether these details will be provided as passengers check in. Yes, information is provided for all routes ordinarily, but it can be on a route-specific basis if a new route opens and the carrier has different abilities.

The authority to carry scheme has not relied on SIS II information and the updated scheme will be implemented 21 days from the sign-off of the SIs.

As for the figures on the number and scale of fines, I believe I have already addressed both the scale of the fine and the number of fines. The maximum penalty has been £25,000 and the average is around £10,000, and they are determined using the calculation published in the guidance for carriers. I have already said that carriers are very positive about this. They welcome the scheme and do not in any way seek to undermine it.

I think I have probably gone through all the points made by noble Lords. Where I have not, it is because I do not have an answer and I will get back to noble Lords in due course.

Motion agreed.