Clause 2 - Entering United Kingdom without passport
Asylum and Immigration (Treatment of Claimants, etc.) Bill
2:30 pm
Ms Beverley Hughes (Minister of State (Citizenship and Immigration), Home Office; Stretford and Urmston, Labour)
I was replying to the amendment when we adjourned. I remind hon. Members that, under the amendment, the criminal offence of a person being undocumented can be committed only at an interview conducted under caution and in accordance with the Police and Criminal Evidence Act 1984, or the Scottish equivalent. I told the hon. Member for Somerton and Frome (Mr. Heath) that I could understand the concern of members of the Committee to ensure that no one is prosecuted for that offence without the normal safeguards applicable to the handling of criminal proceedings, but for reasons that I shall outline, I am not happy with the amendment. I think that it would have consequences that he might not intend.
Let me set out the likely sequence of events should a case arise in which a person arrives at, say, Heathrow. They will be seen by an immigration officer at the control desk. Obviously, among other things, they will be asked to produce a passport. If, during that interview, the immigration officer comes to the view that the person cannot produce the document and therefore that an offence under clause 2 may have been committed, the officer, if he is not trained to undertake an arrest, will either call the interview to a halt, or caution the person before calling either the police or an arrest-trained immigration officer. A police officer or arrest-trained immigration officer will make the arrest. Once that has happened, the various procedures for which PACE provides will kick in.
As we noted in the debate on the previous amendment, by virtue of section 145 of the Immigration and Asylum Act 1999, immigration officers exercising their powers to question or arrest, among other activities, must have regard to the relevant specified provisions in PACE codes. I referred to the immigration (PACE codes of practice) direction of 2000, which sets out the relevant powers and the provisions of the codes that must be adhered to—for example, an immigration officer wanting to arrest a person without a warrant must have regard to
every provision in codes C, D and E. In addition, interviews at that point have to be carried out under caution, and the individual in question must be able to have a legal representative present if they so wish. That is how the system works in respect of existing immigration offences, and obviously it is right to treat the criminal offence in clause 2 the same way.
The safeguards in PACE or its equivalent apply, but that does not mean that the amendment is reasonable and we can accept it. The offence is committed not at the point that has been suggested, but at the point at which the person may be expected to have a passport on them, but does not produce it. That point is when the person is being interviewed by an immigration officer on the control desk—when every other passenger is required to produce their document—not at a subsequent interview under caution. If the person is subsequently cautioned and produces a passport at an interview of that kind, that does not necessarily justify the failure to produce it at immigration control, but of course that would be taken fully into consideration along with any explanation offered for the original failure.
Similarly, we cannot accept a provision whereby a person cannot commit an offence unless a legal representative is present. That would be unprecedented in terms of the way in which we take decisions on whether all sorts of offence have been committed. No one needs a representative to comply with the simple, normal request of all travelling passengers that they produce their passport. I hope that the hon. Gentleman is convinced by the arguments that what he proposes would not be the right point at which to determine that an offence had been committed. The right point is when every other member of the travelling public is asked to produce a document and certain individuals cannot, or refuse to, do so.