Lord Rosser
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(10 years, 2 months ago)
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Lord Avebury (LD)
My Lords, I agree with what my noble friend has just been saying, particularly about the failure of the Home Office to deal with the serious criticisms of the case owners that were referred to earlier by the noble Lord, Lord Ramsbotham. The whole point about disbanding the UKBA and returning these functions to the control of the Home Office itself was that by common acknowledgement, including that of the Home Secretary herself, the UKBA had become dysfunctional and something had to be done. However, what has in fact been done since it was disbanded is that the case owners are not the same persons who were making decisions before and were manifestly incapable of doing the right thing, by reason of the fact that a very large number of the appeals against their decisions were upheld by the tribunal. It would be useful if we had an answer to both that question and the noble Lord’s further question about the consideration of Outsourcing Abuse, the report to which he referred, which never had the consideration that I believe it deserved in the Home Office but is crucial to the future health and efficiency of the people who are making these fundamental decisions, which affect the lives of so many people.
On these amendments, I agree with the Delegated Powers Committee that the definition of “family members” must be in the Bill and limited to those whose leave to enter or remain in the UK is expressly dependent on the principal’s leave to enter or remain. For example, a family member who came to the UK for work or study, not as the dependant of the principal, should not be included in the definition. That seems to be the effect of Regulation 3 of the draft Immigration (Removal of Family Members) Regulations 2014 but, as has been said, it should be in the Bill. As the Delegated Powers Committee found, the justification for placing both this and the time limits for removal in secondary legislation—that they may have to be amended from time to time—is not borne out by experience over many years and through a good many immigration Acts.
Draft Regulation 4 has the same effect as Section 10(1)(c) of the 1999 Act, providing that notice has to be given to any family member who is liable to removal, but the Bill provides only that notice “may” be given, as my noble friend Lady Hamwee pointed out in moving the amendment. This is partly covered by our Amendment 4, but the Minister may wish to consider placing the obligation to give notice firmly in the Bill. As ILPA makes clear in its briefing, quoting the noble and learned Lord, Lord Steyn, giving notice is vital for the legality of the decision to remove a person so as to give him the opportunity of challenging the decision before the courts. The Secretary of State’s attempt to remove certain persons without notice has been ruled unlawful by the High Court and the Court of Appeal. In short, the powers and safeguards dealing with the identification of family members who may be removed, the question of when the powers may be exercised and the notice to be given should all be in the Bill, as should the provisions of Section 10(5) of the 1999 Act, providing that removal directions should cease to have effect against a person who ceases to be a family member.
Lord Rosser (Lab)
My Lords, I will not at this stage make any comments relating to the extension of enforcement powers but will wait until we discuss Amendments 12 and 13. We are not opposed to the principle of Clause 1 but we have questions to raise. We cannot see what the problems for the Government would be in accepting Amendments 5, 6 and 7, and we await the Minister’s response with interest.
We have Amendments 2 and 8 in this group. Amendment 2 is not dissimilar to that moved by the noble Baroness, Lady Hamwee, and provides that a person should be given written notice of their liability for removal. According to the Government, there are approximately 14,000 enforced removals a year, with people being arrested, detained and then removed, and about 29,000 people depart voluntarily to a greater or lesser degree. Apparently, an enforced removal costs about £15,000.
The Immigration Act 1971 requires written notice of decisions to give, refuse or vary leave to be in the United Kingdom. Currently, migrants are told if they are not allowed to be here, and they are then told separately about their removal. Under the Bill, the Government want to be in a position to serve only one decision that gives, refuses or varies leaves and, following that decision, where notice has been given, those who do not have leave to remain will be subject to removal without a separate removal decision or notice being required. It seems that the notice giving the decision on leave to remain will tell the immigrant of their destination for removal, advise them to seek early legal advice and place them under a duty to raise any asylum, human rights or European free movement issues with the Home Office. It is not clear why this is not stated in the Bill. No doubt the Minister will explain why and indicate what else will be required to be included in this decision notice. Apparently, the decision notice will be issued at least 72 hours before any removal is attempted, which is in line with the amount of notice given currently when a removal decision notice is issued. Will the decision notice make clear the individual’s liability to removal, and will it state when, where and how that removal will take place? I look to the Minister to give a response to that question when he replies. Will the minimum 72 hours apply to family members? The draft regulations refer to,
“at any time prior to … removal”.
I hope the Minister will respond to that question. Included in the decision notice will be options for voluntary departure and the consequences of not so departing. Will the Minister say what the consequences of not departing voluntarily will be that will be set out in the notice and, once again, why that should not be in the Bill?
Since financial reasons appear in part to be behind the provisions in Clause 1, will the Minister say what the Government anticipate those savings will be and what impact the change to not having a separate removal notice will have on the number of enforced removals and on the number of people departing voluntarily? Perhaps he will also say what impact the Government expect the change to having no separate removal notice will have on the net migration figure each year, since one assumes that one key purpose of the Bill, as far as the Government are concerned, is to have an impact on that overall figure. It seems unlikely that the current system will be strengthened if the time gap between an individual receiving notice that they do not have leave to be in the United Kingdom and the time they are removed if they do not leave voluntarily is longer than under the current arrangements, under which a separate notice of removal decision is issued. Will the Minister say how long it currently takes, on average, for an attempt to be made to remove a person following a refusal to grant or vary leave being made, how long it takes following the removal decision being sent, and how long the Government intend it should take under the proposed arrangements with only one decision notice being issued in the light of the intention that a decision notice will be issued at least 72 hours before a removal is attempted?
Amendment 8 provides that the regulations that the Secretary of Sate can make about the removal of family members under Clause 1(6) should not be made unless a draft has been made before and approved by resolution of each House of Parliament. The Bill does not provide for this to be the case in respect of regulations under Clause 1(6), which would not be subject to the affirmative procedure. Clause 1(6) enables the Secretary of State to enable regulations that, in effect, define who should be considered a “family member” and the period during which they may be removed. Surely legislation should be clear about the people who are subject to the powers it contains. The Secretary of State’s definition of a family member, which could be wide-ranging, should be subject to full discussion and affirmative approval by both Houses.
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)
My Lords, this has been a welcome start to the Bill. Although we have strayed into some of the subsequent elements in discussing this, that is inevitable because the Bill knits elements together. It is proper that we see how the provisions of Clause 1 fit into the other aspects of the Bill.
I think that we can all agree that our current system for removal is too complex. It requires a number of decisions and notices to be made and served. Separate refusal and removal decisions can cause confusion to migrants as to when they need to leave the UK and lead to legal challenges being made later in the process
I start by considering the two amendments so ably moved by my noble friend Lady Hamwee. We know that she works assiduously on these Bills, whether or not she has taken home the guidance brochure this past weekend. Amendments 1 and 2 would ensure that a person must be given written notice of their removal. Amendment 1 also mandates setting out the date and approximate time of that removal. While I understand the broad intention behind Amendment 1, this would inadvertently reintroduce a layer of complexity, which the whole purpose of the clause is to reduce.
The intention behind Clause 1 is to move to a system where only one decision is made and served, giving, refusing or varying leave. Following that decision, those who require leave but do not have it will be removable.
I can confirm to my noble friend Lady Hamwee, and indeed to other noble Lords, that such people will all receive notice of the decision in writing, in accordance with Section 4 of the Immigration Act 1971, so it is unnecessary to place an additional notice requirement within this clause. This notice will inform them of the decision on leave, of their liability to be removed if they do not depart voluntarily, and the proposed destination for any enforced removal.
It would not be feasible to provide a date or approximate time of removal in this notice. Not all those who become liable to removal will be facing an enforced removal, as we—and, I think, all noble Lords—would always prefer that those who do not have valid leave to be in the country should return home voluntarily. This allows the migrant to depart on their own terms, is more cost-effective for the taxpayer, and, if the migrant leaves without the use of taxpayer resources, they can reduce the likelihood of, and possibly avoid, a re-entry ban.
I turn to the comments of my noble friend Lady Hamwee on the deemed service of the decision. She will be well aware that “deemed service” replicates the existing notice provisions, which have been shown to work effectively and are interpreted with a degree of flexibility, such that if the person can show that they received the notice at a later date, we will accept that as the date of service. There are established procedures on the delivery of notice and, indeed, they are set out in the regulations.
All migrants will be given the opportunity to raise with the Home Office any asylum, human rights or European free movement reasons why they believe they are entitled to stay in the UK. They will be informed that they are under a duty to do so at the earliest opportunity if their circumstances change, and will be advised to seek any legal advice as early as possible.
I hope I can reassure the most reverend Primate the Archbishop of York, who I am delighted is participating in our debates today, that the common law principles of access to justice mean that migrants will be given sufficient time—a minimum of 72 hours—to raise such grounds before any removal can be enforced. They will be reminded of the fact that they may be removed from the UK if they do not depart voluntarily during any contact management events. If the migrant’s removal is enforced but they are compliant with the process, they will be informed of when to check in to the port of departure. If the migrant is not compliant, they will first be detained, where they will be informed when removal is imminent.
The noble Lord, Lord Ramsbotham, mentioned our very productive meeting. Although I cannot share his view of the hard-working people we ask to handle this difficult task on our behalf, I note what he says about oversight. I should say that quality assurance checks are part and parcel of the process. However, we recognise that there is room for further improvement. As such, we have an ongoing programme of work to continue to monitor and progress our decision quality.
Amendments 4 to 7 seek to remove the discretion in the regulations as to whether we notify family members of removal. We have already stated our intention that family members will always be given notice where they are to be removed. I hope that it pleases the noble Baroness, Lady O’Loan, and my noble friends Lady Hamwee and Lord Avebury, that it is our intention to work out how to address the recommendations of the Joint Committee on Human Rights on Clause 1. We will amend the Bill on this subject. However, I remind noble Lords that it was only on 21 February that we received the report of the Delegated Powers and Regulatory Reform Committee, making some similar recommendations. We are working out how to address both issues on Report. I hope I will return on Report. I reiterate that we will amend the Bill to meet the issues raised by these reports.
I now turn to Amendment 8. I appreciate the concerns raised by the noble Lord, Lord Rosser, about the processes surrounding the removal of family members which have led to his tabling this amendment. At the risk of jumping ahead of ourselves, Clause 67 sets out the proposed parliamentary procedures in respect of various order and decision-making powers provided for in the Bill. It already specifies that any power to make an order or regulations is exercisable by statutory instrument and that, for this particular power, it is under the normal process of negative rather than affirmative procedure. The draft affirmative procedure is normally reserved for those orders or regulations that amend or repeal primary legislation, or develop policy in a way to require significant parliamentary debate, or where the intention behind the power to make them is not clearly set out in the Bill. This Bill is clear on the intent of the regulations. The scope for a Government to construct anything that would require significant debate in a statutory instrument deriving from it is limited.
The existing removal powers that are in force allow the removal of family members. Unlike in deportation cases, there is currently no statutory definition of what constitutes a family member. That is a matter left to the Home Office. By defining this in regulations—noble Lords have referred to the draft regulations that have appeared in the memorandum that has been circulated—the Bill will give new clarity to families so that they will know exactly who may be liable to removal. It will also provide further parliamentary oversight that has until now been absent. Following scrutiny of this clause in the House of Commons, and at the request of the right honourable Member Mr David Hanson, my honourable friend Mark Harper, the former Immigration Minister, arranged for a draft of these regulations to be published and a copy is placed in the Libraries of both Houses.
Lord Rosser
Perhaps I might ask the Minister a question. The Delegated Powers and Regulatory Reform Committee referred to the Government’s argument that these matters are best placed in regulations because the definition of “family member” or the time limits for removal may change within a limited extent. It commented that this purported justification is undermined by no such change having been needed over a period of very many years during which there have been numerous immigration Acts and a litany of immigration rules changes. Since the Delegated Powers and Regulatory Reform Committee, subject to what the Minister may say, appears to have shot the Government’s arguments to bits, why is the Minister still resisting ensuring that this is done by the affirmative process?
Lord Taylor of Holbeach
I think that I have made it clear that the affirmative process is used where there is an opportunity for the Government, in effect, to change policy through a statutory instrument, which then gives rise to a reasonable demand by Parliament for the opportunity to debate the measure. As I have said, we are going to bring forward more explicit changes to the Bill to reflect the concerns shown by the comments of the Joint Committee on Human Rights and the Delegated Powers and Regulatory Reform Committee. It would probably be best if we waited until then to see what they say before we rush to change the procedure by which these matters have been considered in the past. It would be helpful to the House to wait until these changes are produced.
The draft regulations are designed to reflect the immigration rules. If a person can come to UK and be granted leave on the basis of a family relationship with another migrant, it is only right that such a person could be removed along with the lead person who has no leave to be in the UK. The Delegated Powers and Regulatory Reform Committee made recommendations about this clause that I am considering further. I will respond in detail on these recommendations before we consider the matter again on Report. That would be the right time, and I urge noble Lords to wait and see where these considerations lead us.
The noble Lord, Lord Rosser, asked a number of questions. If I do not cover them all now, I will certainly write to him. We will write to address his questions about the timescale of decision-making on removals and the carrying out of those decisions because I understand that this matter is of interest to a number of noble Lords. As to the impact on the number of removals, Clause 1 does not permit new categories of people to be removed; all those who can be removed under the clause can already be removed. It does not extend the powers to remove people but there is currently a more complicated set of procedures than will exist through the measures in the Bill. Clause 1 is about making removals more efficient.
Lord Rosser
Is the Minister saying that the provisions in Clause 1 about what the Government would regard as streamlining the procedure are not actually designed with the intention or hope that they will lead to more people who are not entitled to stay here and do not have leave to remain in the United Kingdom leaving the country than at present? Is that not the purpose of these changes?
Lord Taylor of Holbeach
No, the purpose of the changes is to make sure that people who are subject to removal leave voluntarily rather than through enforced removal. I am sure that the noble Lord and most noble Lords would agree with that proposal.
We will ensure that family members who have valid leave to remain in the UK in their own right will not be removed. We propose to remove only dependants of persons with no right to be in the UK. Where dependency is broken, such as when it involves a victim of domestic violence, the former dependant is expected to apply for leave to remain in their own right—and, if necessary, they will be removed if they were unsuccessful as a main applicant. We will also look at the best interests of the child in making any decision under our obligations—of which noble Lords are well aware—regarding victims of human trafficking.
This has been a helpful debate. I hope that I have been able to whet noble Lords’ appetite for a government response on this important clause before Report. I can reassure them that family members will always be notified if they are facing enforced removal. The draft regulations underscore this and make it clear how notice is to be given. In the light of those points, I hope that the noble Baroness will agree to withdraw the amendment.
Lord Taylor of Holbeach
I can be certain that when people get a decision about the refusal of their right to remain they will be removed if they do not make arrangements to go voluntarily. That is a step forward. I hope noble Lords will appreciate that much of what the Government are trying to do, including bringing Border Agency activities into the Home Office, is designed to make sure that as we develop better oversight of decision-making within the Home Office and within UKVI we will have a more efficient process in the detail that the most reverend Primate suggested.
Lord Rosser
How long will those who have been told that they no longer have leave to remain be given to make arrangements to leave voluntarily and how long will it be before a decision is made that they are not going to leave voluntarily and that enforced removal is required?
Lord Taylor of Holbeach
It will be for them to make arrangements with UKVI on the basis of the notice that they have been given. We are not looking for enforcement as being the primary objective of the policy. I think the noble Lord would agree that voluntary departures are what we would prefer to see happen.
Lord Northbourne (CB)
My Lords, I am not entirely sure that this is an appropriate intervention; if not, I apologise and I shall be very brief. I happen to live near Dover. My wife has chaired a considerably large housing association in the area. It received a frantic call one day from the county council, saying, “We simply can’t cope. We’ve got all these unaccompanied minors arriving”. Those children came and it got to know them and so on. The majority of them were absolutely intentionally unaccompanied immigrants. Having been put on a boat in Calais and told to throw their passport into the water as they went across, they came into this country and there was nothing that we could do to change it. Is that situation still the same and, if so, can the Minister perhaps comment on that aspect of it also?
Lord Rosser
We welcome the Government’s amendments, which lay down requirements in the Bill in relation to the removal of families with children and also unaccompanied children. We will consider the objectives of the Government’s amendments, which the Minister gave in moving Amendment 3. No doubt we will do so in more detail in response to the questions and points that have been raised today.
Lord Rosser
“(2) The enforcement powers provided for in Schedule 1 are subject to oversight by—
(a) the Chief Inspector of Borders and Immigration,(b) the Independent Police Complaints Commission, and(c) HM Inspector of Prisons.”
Lord Rosser
My Lords, Amendment 12 provides for the enforcement powers provided for in Schedule 1 to be subject to oversight by the Chief Inspector of Borders and Immigration, the Independent Police Complaints Commission and Her Majesty’s Inspector of Prisons. The powers introduced by Schedule 1 include escorting and searching detained persons and entering and searching premises. There is also provision for a wider interpretation of the general power to use reasonable force compared with that in previous immigration Acts, and the schedule increases the powers of immigration officers, including with regard to the power to use reasonable force.
This is an important issue, not least in the light of the inquest into death of Jimmy Mubenga in late 2010, following the restraint used as part of his deportation undertaken by a private sector company. In that case, the coroner determined that the cause of Mr Mubenga’s death was an unlawful killing under existing provisions of immigration law. The coroner highlighted several areas of concern, including lack of training in scenario planning in relation to the use of force by private sector companies, dangerous restraint techniques being used at that time and a lack of accreditation of particular officers.
As Schedule 1 now extends the powers regarding the use of reasonable force to previous immigration Acts and gives additional powers to immigration officers on escort, search and entry, we need at the very least some assurances that immigration officials will receive or are now receiving training on the use of restraint and reasonable force that is on a par with that given to police officers. We also need assurances that these increased enforcement powers will be subject to proper oversight, and by whom, and that that oversight will also apply to the private sector. Is it the Government’s intention to issue guidance on how the provisions of Schedule 1 should be enacted, not least the power to use reasonable force, or will it be left to each company and organisation involved to interpret as they see fit how and when to use the considerably enhanced powers that they are being given? Will it be left to each organisation affected to produce its own definition of reasonable force and the circumstances in which it can be used? I hope that that is not the case.
I hope that the Minister will recognise the concerns on this issue, already expressed earlier today, and that, in the light of the discussions that he has had with the noble Lord, Lord Ramsbotham, on a possible code of practice, he will feel able to offer more than a belief—although genuine, I am sure—that everything will be all right on the night. I beg to move.
The Archbishop of York
My Lords, Amendment 12 provides what I believe to be a necessary safeguard to reassure the public that those responsible for enforcement are fully accountable. Accountability is at the heart of all of this. This is surely an improvement as it ensures independent oversight by Her Majesty’s Inspector of Prisons, the Independent Police Complaints Commission and the Chief Inspector of Borders and Immigration of enforcement powers, such as searching persons and premises as well as the general power to use reasonable force. If we are confident that such powers are always fairly and humanely exercised, there is nothing to fear from this amendment. If we are not, then this amendment is absolutely necessary.
Lord Taylor of Holbeach
My noble friend Lady Williams of Crosby and the most reverend Primate the Archbishop of York joined the noble Lord, Lord Ramsbotham, in raising the question of the effectiveness of quality control in terms of outcomes, how we enforce contracts, and whether we hold contractors responsible. We do exactly that. We have contract monitoring teams at each detention facility and individual detention and escort contractors are certified by the Secretary of State, and this certification can be withdrawn. As the noble Lord, Lord Ramsbotham, will know, a new training programme is being undertaken by the Home Office in this area. I have invited him to come along and look at the programme and perhaps contribute to its development because we feel it is very important that at the heart of good practice in this area lies oversight on the one hand, good management on the other and, at the bottom of all of that, good training for the operatives. I think it would be the wish of the House and, indeed, the Home Office that that is provided for. My noble friend Lady Benjamin asked if there was particular training given to officers on medical conditions. I am not in a position to give that answer on the spot but I am happy to write to her.
I turn to Amendment 13. We should make it clear that the provision to extend the use of force affects only immigration officers and does not make any change to the powers of contractors, those detainee custody officers and escorts, who have separate statutory powers to use reasonable force in their functions. We believe that immigration officers should be able to use their powers to the fullest extent, where it is necessary. If paragraph 5 were to be removed, it would not affect the majority of immigration powers of examination, arrest, entry, search, detention and fingerprinting, where officers are able to use reasonable force if necessary, as most of these are contained within the Immigration Act 1971 and the Immigration and Asylum Act 1999, as my noble friend Lord Avebury pointed out.
However, there are a small number of coercive powers, which sit in later legislation, where there is no specific reference to the use of reasonable force. Although the use of force is currently implied, we intend that this should be set out explicitly in statute to ensure greater transparency. The use of force in these situations may be necessary for immigration officers to carry out their role effectively and safely, and I have given illustrations of that earlier in my response. I am sure noble Lords will agree that it would be hard to see, for example, how immigration officers could safely arrest a person for the offence of assaulting an immigration officer if they were unable to use reasonable force to restrain that person. It should be noted that the new enforcement powers proposed in the Bill make amendments to either the Immigration Act 1971 or the Immigration and Asylum Act 1999, so will already be covered by the existing provision for immigration officers to use reasonable force where necessary.
I can assure noble Lords that only immigration officers who are fully trained and accredited may use force. Arrest training is currently provided by the College of Policing, and training on the use of force, including control and restraint techniques, is in line with ACPO standards. Published guidance explains that the use of force must be proportionate, lawful, necessary, and age appropriate. It also sets out that force should be used for the shortest possible period, should be the minimum needed, should be used only when all other avenues of securing co-operation have been exhausted, and should be de-escalated as soon as possible.
Every instance where force is used is recorded in a comprehensive incident report. Out of 14,598 enforcement visits in the financial year 2012-13, force against the person was used in a little over 2% of cases. The issue of whether that use of force was reasonable must be justified on a case-by-case basis, as I have been explaining to my noble friend Lord Mawhinney. The extension of the power to use reasonable force will ensure that existing powers are able to be operated effectively, that they are in step with other law enforcement bodies’ powers, and that current enforcement practices are not at any risk of legal challenge on the grounds that the ability to use force is not explicitly set out in statute. Now I hope that I have been able to explain the context in which these provisions of the Bill are being proposed. In the light of these points, I hope that noble Lords will be reassured and feel able not to press their amendments.
Lord Rosser
Is the Minister still looking at what I understand is a code of practice—which the noble Lord, Lord Ramsbotham, has discussed with him—or are we to take it that the answer he has just given means that he does not see the need for a code of practice?
Lord Taylor of Holbeach
I think I can reassure the noble Lord, Lord Rosser, by the actions I took following the meeting that I had with the noble Lord, Lord Ramsbotham. He gave me a copy of the code of practice that he had produced following his review and I was pleased to take it back to the Home Office and feed it into the department. I would like to believe that the points that the noble Lord, Lord Ramsbotham, has made are being reflected in the approach that the Home Office is taking at the moment. There is naturally great interest in what he is suggesting. As I said, we are looking forward to the opportunity to allow him engagement with us on the development of the training programme.
Lord Rosser
I am not entirely sure whether that means the code of practice will see the light of day in any schedule to the Bill or whether it simply—I do not use the word “simply” in a derogatory way—means that the Minister intends that the Home Office may take account of what is in that code of practice in the practices that the Home Office seeks to ensure are adopted. I think the answer I have had is the latter rather than the former. That is what the Minister’s response indicates. As I understand it, the Minister said in his reply that the oversight powers throughout the United Kingdom are already there through the relevant postholder or commission. I think he has said that the extension of powers under Schedule 1 apply only to immigration officers and not to private contractors, and that appropriate training is or will be given in relation to the extension of the powers on reasonable force. That is what I have understood from the replies the Minister has given.
I shall obviously want to read in Hansard the words the Minister has actually used since it is easy to gain an impression when it is not the correct one. However, I thank him for his detailed response and, if noble Lords will forgive me for not naming them all, I thank them for taking part in the debate on these amendments. I was particularly impressed by the noble Baroness, Lady Williams of Crosby, who indicated that my amendment should have gone further than it did. I am not often told that, but there we are. I have to say that the points she made were extremely relevant. In the light of what the Minister has said, and on the basis that I intend to read his words carefully in Hansard to make sure that I have understood them fully, I beg leave to withdraw the amendment.
Lord Roberts of Llandudno
Before my noble friend the Minister sits down, can he tell me how many employees of these companies have been dismissed for this sort of heavy-handed behaviour?
Lord Rosser
Clause 5 amends Schedule 2 to the Immigration Act 1971 to include persons who are “liable to be detained” as being persons in respect of whom steps can be taken for the purposes of identification, such as fingerprinting and photographing. We put down this question on whether the clause should stand part and Amendments 22 and 25 to raise some questions about how this clause will be implemented and why it is considered necessary, not because we are opposed to the use of biometric information or its provision by various people.
It would be helpful if the Minister could indicate what individuals, circumstances or situations would be covered by the words “liable to be detained” that are not currently covered by the existing legislation, including the Immigration Act 1971. It is perfectly reasonable to verify the identity of someone who is detained. The law provides for that to enable us to address the issue of, for example, dealing with people suspected of being in this country illegally. In that situation, the immigration officer can, for example, check the person’s fingerprints either with that person’s consent or following their arrest.
Baroness Hamwee
My Lords, with regard to Amendment 23, the Minister is of course right that there is a reference further on in the new subsection that refers back to what I was seeking to take out, so my amendment is not complete. However, by mentioning that, he has drawn my attention to something else that I would like to pursue. New subsection (1B) says that an order under paragraph (b), which is about other information subject to an order by the Secretary of State,
“may specify only information that can be obtained or recorded by … external examination”.
That raises the question of whether only external examination can be used for new subsection (1A)(a), concerning,
“information about a person’s external physical characteristics”.
Perhaps he can confirm that there can be only an external examination to obtain information about the first limb in (1A).
The Minister talked about new technology, which I assume comes within the word “information”. My concern was to understand what physical characteristics there might be that were not included in (1A)(a). I accept that technology will advance, but it is what the technology is being used to identify and gain information on that concerns me. This may sound tedious but it is actually quite important. I do not know whether he is able to take the matter any further tonight; if not, I would be glad to pursue it after this stage.
Lord Rosser
Perhaps I could add one or two comments. I thank the Minister for his reply and for the amount of information contained in it. I think that I recall him saying that “liable to be detained” was not a new phrase, but I am not sure how extensively it has been used before in immigration law.
I listened carefully to what he had to say about the situation of those whom immigration officers would not want to arrest. I will read his response carefully in Hansard, but at the moment I am not entirely clear what happens when someone whom they do not want to arrest declines to enable their fingerprints to be checked. I am not sure whether they will just be allowed to go or if in fact they will be arrested, which raises the question of why the existing powers are not adequate and why this new terminology is needed. As I say, I will read very carefully what he had to say.
Finally, I asked how many cases there have been in the past 12 months of people who would have had their fingerprints taken and checked if the “liable to be detained” provision in the Bill had been in force who could not have their fingerprints taken under the current wording in the Immigration Act 1971. I was not particularly expecting the Minister to come up with an instant response, but since that calculation is presumably the justification, at least in part, for this change in legislation that we are considering, I hope he will be able to provide me with an answer to that question later on.
Earl Attlee
My Lords, the main justification for Clause 5 is to avoid unnecessarily arresting people and to make it easier to carry out immigration checks. I described a situation where someone cannot speak English or pretends not to speak English. The noble Lord, Lord Rosser, asked what the definition of “liable to be detained” is and how many cases it will affect. If I have any information about how many cases, I will write to him. A person is liable to be detained if there are reasonable grounds for suspecting that removal directions may be given—that is, that the person requires leave to enter or remain but does not have it.
The noble Lord, Lord Rosser, also asked whether a person who refuses to give their prints can be arrested. They cannot be arrested solely for refusing to give fingerprints, as they can be taken only by consent. This may not give enough reasonable suspicion that a person may be an immigration offender.
The noble Baroness, Lady Hamwee, asked about the external examination. The whole point of these provisions is that the checks can be external examinations only.
Lord Rosser
Presumably immigration officers would not want to check a person’s fingerprints unless they had some suspicions in the first place or some doubts.
Earl Attlee
My Lords, they would not be able to check fingerprints unless they had some good reason to do so.
Lord Rosser
I thought the Minister said that you cannot arrest someone who refuses unless there is some suspicion. To do the check in the first place must mean that you have some suspicion and, therefore, if they refuse, you could arrest them.
Earl Attlee
My Lords, there would indeed be an element of suspicion if someone declined to give their fingerprints to be checked, but I suspect there would have to be other evidence as well. I will write to noble Lords to clarify these points.