New Clause 3 - Arrest pending deportation
Immigration, Asylum and Nationality Bill
1:00 pm

‘At the end of paragraph 2(4) of Schedule 3 to the Immigration Act 1971 (c.77) (deportation: power to detain) insert “; and for that purpose the reference in paragraph 17(1) to a person liable to detention includes a reference to a person who would be liable to detention upon receipt of a notice which is ready to be given to him.”.”.—[Mr. McNulty.]

Brought up, and read the First time.

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Tony McNulty (Minister of State (Immigration, Citizenship and Nationality), Home Office; Harrow East, Labour)

I beg to move, That the clause be read a Second time.

I congratulate the Clerk on remembering new clause 2, which has sort of been the legislative equivalent of a hanging chad; it was floating around somewhere in our deliberations. I momentarily forgot about it, so my apologies for that.

This matter should be straightforward. The clause confirms that the power of arrest in deportation cases is available when notice of intention to deport is ready but has not yet been given to a prospective deportee. The clause will ensure that immigration officers and constables can continue to seek a warrant to enter named premises in order to search for and arrest a prospective deportee and serve him with a notice of decision to deport.

I assure the Committee that all previous warrant applications were lawful; they were properly made and lawfully granted. The new clause effectively puts into statute the current practice, which is entirely lawful. I commend the clause to the Committee.

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Evan Harris (Science, Non-Departmental & Cross Departmental Responsibilities; Oxford West and Abingdon, Liberal Democrat)

I am grateful to the Minister for his explanation, and to the Home Office team who took me through the issue. I understand the Minister’s point, which is that the new clause puts beyond doubt the fact that a judge can issue such a warrant in the kind of case mentioned. However, the Immigration Law Practitioners Association has put a number of points to me relating to how the clause may go wider than the point that the Minister seeks to deal with. I would be grateful if he would clarify the matter.

First, do the new powers apply, as they appear to do, only to cases in which a warrant is obtained, or are they sufficiently broad to allow immigration officers or constables to arrest a person without a warrant for the purpose of serving a notice under schedule 2(17)(1) of the Immigration Act 1971? Or are we just moving the doubt about whether such officers can do that to this new area? Secondly, are the powers strictly related to cases in which there is a question as to whether an act of terrorism or a related act applies? Or do the powers apply—as they appear to do—when there is some other reason why people would need to be arrested, detained and removed, such as in cases involving selling drugs, for example?

There is a question about the extent to which immigration officers are bound by the same rules as the police. I suspect that the subject has been debated before, but I shall briefly set out my concern, and perhaps the Minister can deal with it. Part 7 of the Immigration and Asylum Act 1999, which was modelled to a large extent on the Police and Criminal Evidence Act 1984, amended the Immigration Act 1971 to give immigration officers powers of arrest and search that were previously the sole province of the police. Subsequent legislation has extended these powers.

Section 145 of the 1999 Act provides for immigration officers to have regard to codes of practice when exercising these powers. The codes are the Immigration (PACE Codes of Practice) Direction 2000, and the Immigration (PACE Codes of Practice No. 2 and Amendment) Direction of 19 November 2000. They apply parts of the PACE codes to   immigration officers. However, some safeguards that apply to police officers do not apply to immigration officers, such as the requirement to give one’s name when conducting certain searches. Can the Minister clarify whether that is the intention of the codes? If so, what is the justification for having any difference? One might argue that, if anything, the requirements in the guidelines ought to be the stricter ones. In passing, I have been told that it is hard to find those codes of practice. Perhaps the Minister will take note of that and ensure that they are easier to find.

I had intended to raise my last point in any case, but it has been reinforced by what ILPA has said. It relates to complaints about poor practice by immigration officers; indeed, it also applies to the detention estate, but I shall restrict my remarks to the situation before us. In cases where there is a question of the police being out of line with acceptable practice in executing warrants or making arrests, we have the Independent Police Complaints Commission and relatively independent procedures. However, it is not clear what the equivalent independent complaints mechanism is for immigration officers.

People can go through the complaints procedure at the immigration and nationality directorate, and I have instigated several complaints about escorts for detainees. I have not yet heard the outcome, however, even though it has been months, or even years, since I made those complaints, so it is not clear to me that the procedure is readily accessible. That aside, the procedure is not independent. Given that immigration officers are increasingly used to dealing with matters previously dealt with by the police, I would be grateful if the Minister could clarify whether there is any independent means of complaint to ensure that immigration officers properly exercise their powers and that, for example, they use reasonable force. I would be grateful if he could give me some clarification on those questions.

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Tony McNulty (Minister of State (Immigration, Citizenship and Nationality), Home Office; Harrow East, Labour)

As I understand it, the new clause relates to arrest and detention pending deportation and is not specific to terrorism; it is simply broadening things out. Given that it refers only to arrest and detention pending deportation and not to arrest for criminal offences, PACE does not apply. That has always been the case.

This is not germane to the Bill, but we are looking to include independent complaints monitoring of immigration enforcement powers by the Independent Police Complaints Commission in the safer communities Bill or some other legislative vehicle, although it is not for me to say where. I think that we looked at it in the context of this Bill, but that it was beyond the Bill’s scope, although if that is wrong, I shall certainly correct what I have said. None the less, I take the point about there being some overarching independent monitoring body.

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Evan Harris (Science, Non-Departmental & Cross Departmental Responsibilities; Oxford West and Abingdon, Liberal Democrat)

I welcome that statement because I believe that Anne Owers, Her Majesty’s chief inspector of prisons, shares that concern, although I would not want to quote her directly. We had a meeting with her and a refugee group at which this very   question was raised, and I am extremely grateful that specific proposals could be included in a Bill. If they could be included in this Bill, that would be beneficial, although I accept that it is a question of whether they would be in order, given the long title. However, I encourage the Minister to go down that path quickly because there have been a number of complaints, and it would be helpful to clarify whether they are justified through an independent body.

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Tony McNulty (Minister of State (Immigration, Citizenship and Nationality), Home Office; Harrow East, Labour)

I do not have the information to hand, but I would not over-egg the point about complaints. They are dealt with in an appropriate fashion; in many cases, that is done by inquiry, and the inquiry is followed up, particularly in the case of detention facilities. The hon. Gentleman will know that we seek in clause 39 to fill some of the gaps as regards short-term holding facilities and escort duties, which he mentioned. It is right and proper that we do that. I will be discussing a range of issues at a meeting with Anne Owers, Her Majesty’s chief inspector of prisons, and the respective children’s commissioners for England, Scotland and Wales, which will be useful, not least as regards the issues on which we are deliberating. I am certainly alive to those issues.

On the hon. Gentleman’s last point, a person can be arrested without warrant pending deportation. The warrant is more about the ability to gain entry to and search premises to effect the arrest. As I understand it, the warrant is not required in the first instance to arrest someone pending deportation.

The hon. Gentleman’s questions are all entirely fair, and I hope that I have dealt with them. With that in mind, I commend the new clause—again, I think—to the Committee.

Question put and agreed to.

Clause read a Second time, and added to the Bill.