Clause 15 - Electronic monitoring

Asylum and Immigration (Treatment of Claimants, etc.) Bill – in a Public Bill Committee at 2:30 pm on 22nd January 2004.

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Photo of Mark Oaten Mark Oaten Liberal Democrat, Winchester 2:30 pm, 22nd January 2004

I beg to move amendment No. 165, in

clause 15, page 16, line 1, after 'comply', insert 'without good reason'.

Photo of Mrs Marion Roe Mrs Marion Roe Conservative, Broxbourne

With this it will be convenient to discuss the following amendments:

No. 166, in

clause 15, page 16, line 3, at end insert—

'(2A) Where the reason given for an alleged breach in subsection (2)(b) above is not accepted by the person imposing the restriction—

(a) the monitored person shall have seven days to make representations to a Chief Immigration Officer, and

(b) the Chief Immigration Officer shall make a decision to continue, vary or revoke requirements including a decision to detain under this section only after having carried out a review and given written reasons for that decision.'.

No. 169, in

clause 15, page 16, line 13, at end insert 'necessary and reasonable'.

No. 172, in

clause 15, page 16, line 40, leave out 'may' and insert 'shall'.

No. 173, in

clause 15, page 17, line 2, leave out 'and'.

No. 174, in

clause 15, page 17, line 6, at end insert

', and

(c) must not impose a disproportionate restriction on the liberty of the individual.'.

Photo of Mark Oaten Mark Oaten Liberal Democrat, Winchester

I welcome you to this afternoon's sitting, Mrs. Roe. I do not intend to detain the Committee for long on these amendments. They are probing amendments designed to find out the Government's intentions for electronic tagging. In keeping with the spirit of co-operation from the Minister, I accept that I cannot have my cake and eat it.

If we had had a chance to debate clause 14, I would have pointed out that I prefer the forced removal process to some of the Government's suggestions as laid out in clause 7. I do not have difficulties with the suggestions in clauses 14 and 15. There should be greater use of electronic monitoring, or tagging, in the general criminal justice system as an alternative to sending people to prison. I have no problems with the Government's intentions, but I want to highlight concerns, and I hope that the Minister can provide clarification.

I remind the Committee that we are discussing the possibility of tagging—I shall call it that rather than electronic monitoring because it is easier—for people who have not been convicted of a crime. It is important to establish and to recognise that there is a difference between the conventional use of tagging and the forms of tagging being suggested in this case. Will the Minister clarify in what situations the Government would suggest using tagging? For example, how often does she think that tagging will be used for residence restrictions, reporting restrictions, or to enforce conditions of immigration bail? Tagging could be acceptable for use in some scenarios more than others, such as reporting restrictions.

Have the Home Office considered alternatives to tagging? For example, voice connection would be a sensible way to achieve the same aim without using tagging. A requirement to phone in using voice recognition technology—a recognised form of technology—might achieve the same aim. Similarly, we could employ the kind of tagging used for home curfews, for example, between 7 pm and 7 am, rather than full conventional tagging. Is the Minister suggesting a move to new forms of technology, such as satellite tagging, which could track down and trace individuals 24 hours a day?

As I said, these are probing amendments intended to establish in which categories the use of tagging is envisaged, and to ask whether forms of technology other than full tagging could achieve the same aim.

Finally, powers exist under immigration law to allow the Home Secretary to detain individuals if there are extreme concerns. What does the Minister intend to achieve through the powers in clause 15 that could not be achieved through existing powers of detention?

Photo of Neil Gerrard Neil Gerrard Labour, Walthamstow

I want to speak briefly on the points raised by the hon. Gentleman and how the powers in the clause may be used.

The clause uses slightly different phrases on residence and reporting, referring to where

''a residence restriction is imposed on an adult''

and where

''a reporting restriction could be imposed on an adult''.

The second provision seems wide. When someone is given temporary admission, the IS96 form issued to them will almost always include a requirement for that person to report to an immigration officer at a particular time and place. That is now common.

The question is how widely the power will be used and whether the intention is to use it, in some cases at least, as an alternative to detention. The Government's policy in recent years has been to increase the size of the detention estate, with the obvious implication that more people will be in detention, or do the Government envisage the restrictions being used in addition to detention? It will be interesting to hear the Minister's views on the extent to which and the cases in which the power will be used and the relationship between its use and detention.

There is also the question of age. Subsection (7) defines adult as

''an individual who appears to be at least 18 years old''.

It would help to have some clarity on that point and on how it is intended that the power will be used.

I echo the hon. Gentleman's comments about the criminal justice system. Like many of us, the Home Secretary has made it clear that he wants fewer people in prison in general and that we should be looking at alternatives to prison. With that in mind, I will be interested to hear whether the Minister views the power in the clause as an alternative or addition to detention.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

I want to make a few random comments and to ask a few general questions on the group of amendments on the basis that I shall not try to catch your eye on any stand part debate, Mrs. Roe. I have only a little to say.

There are two purposes of electronic tagging in the criminal justice system. The first is to establish where a person is at the material time, and the second is to ensure that, at the material times, they are not free to commit crimes. When bail and sentences have been considered in the criminal justice world, tagging has by and large been something of a success. I planned to ask the Minister how many people she envisages being electronically tagged under the clause and what the total cost will be. However, she could rightly reply that tagging is an alternative to custody, which is even more expensive, so it may save money. Tagging is an alternative to custody for the criminal courts and is to be applauded because it does not involve deprivation of liberty.

At the beginning of a criminal court process, the court and police must consider bail. A recent change has been that, in addition to a judge or magistrate, a policeman can grant bail. Police bail can carry certain conditions, including one of residence, or a doorstep condition, which means that someone must answer the door when it is tapped on at night to prove that they are there. Courts and police take bail very seriously.

Tagging will have a role in the immigration world, but someone, somewhere will have to take a decision about who will be tagged and in what circumstances. Will the Minister say a little more about that? Does she envisage an asylum applicant appearing before, say, a district judge? Will such a judge, in his or her court, or lay magistrates have a power to impose a tagging condition on an asylum seeker? I doubt it because, by definition, people appearing in those courts have committed a criminal offence, and the asylum seeker has not. I do not see how the asylum seeker would find his or her way to a district judge or magistrate in relation to either the imposition of a tagging condition or an appeal against one. However, I should be glad of confirmation of that. I suppose that a person will be tagged on the instructions of an immigration officer or a Home Office official. Again, perhaps the Minister could say more about that.

The age point raised by the hon. Member for Walthamstow (Mr. Gerrard) is fair. I think that a case

involving the London borough of Merton in 2003 had something to say about who decides how old a person is. Tagging is meant to be for over-18s. Under the clause, someone is over 18 if they appear to be over 18

''in the opinion of a person who . . . imposes a residence restriction''.

Who will have that opinion, and is there any back-up? I think that, in the Merton case, the court said quite clearly that, whatever the Home Office said about someone's age, in truth the local authority should rely on its own inquiries, possibly involving a paediatrician or whoever, to make it plain what the age was. The question of age is interesting.

We should like just a little more explanation of cost, numbers, who will impose the measure, and age. That said, any right-minded person will broadly welcome the clause, not least because by doing so we may be ensuring that more people have their liberty than might otherwise be the case.

Photo of Tom Harris Tom Harris Labour, Glasgow Cathcart

Following the contributions by the hon. Member for Woking (Mr. Malins) and by my hon. Friend the Member for Walthamstow, can my right hon. Friend the Minister offer some clarification of the clause? The prospect of asylum seekers being tagged has been welcomed in some parts of the community as an alternative to detention. There is inevitably controversy over the Government's continued policy of detention in a very small minority of cases.

I believe that the policy is correct, even when it means having to detain whole families, including children, provided that the periods of detention are as short as possible. However, I think that we all recognise the political difficulties arising from genuine concerns about children who, for one reason or another, are detained with their parents for longer than any of us would like. Perhaps the Minister can say that tagging will be used as often as possible as an alternative to detention specifically with regard to families with children.

That suggests another problem, which follows on from the points made by my hon. Friend the Member for Walthamstow last week or early this week. One justification for not separating families in detention is that, if children are placed in the community but the parents are in detention, they could be tempted to judge that they would rather their children remain in the community and the country, even if they themselves are to be deported. The fear is that they would use their children's separation from them as a way of either postponing their own deportation or ensuring that their children had a better quality of life than they would have when they returned to their homeland.

Will the Minister comment on how the Home Office is considering approaching that issue? Will there be circumstances in which the Government may decide that tagging is unsuitable for a family currently in detention because of information received about their motivations or history? Alternatively, will they decide that all families with children who are in detention will be suitable in all circumstances for some form of electronic tagging?

I should also like to know how long such a tagging regime would continue. We are reassured by the Government that families or individuals are placed in detention only when their removal is imminent or there is some dispute about their identity. That is the case with the Dungavel detention centre in Lanarkshire. Will there be a similar time restriction on electronic tagging, will people be tagged indefinitely or for what some would consider unjustifiably long periods? With those reservations, like the hon. Member for Woking, I generally welcome the clause.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism) 2:45 pm, 22nd January 2004

Before dealing with the amendments, I should like to set out the aim of clause 15. Clause 15 makes provision for the electronic monitoring of persons subject to immigration control who are at least 18 years old in the following circumstances: where a residence restriction is imposed; where a reporting restriction could be imposed and where immigration bail is granted subject to a recognizance or a bail bond, except where bail is granted by a police officer or in the special circumstances of the Special Immigration Appeals Commission. Therefore, it would include bail issued by a chief immigration officer—it can only be by a chief immigration officer where detention would otherwise be considered—or by an adjudicator within the immigration process.

Persons subject to electronic monitoring in accordance with these provisions are obviously required to co-operate with arrangements for detecting and recording their location at specified times, during specified periods. The hon. Member for Winchester (Mr. Oaten) asked about alternatives. As he rightly said, the electronic means employed in connection with such arrangements could include voice recognition technology, the use of a tag to confirm a person's presence in or absence from a specific location, perhaps at a specific time and, when technology develops, tracking someone to monitor their whereabouts continuously.

We intend eventually to pilot all three types of electronic monitoring. They potentially have the ability to respond to different levels of risk in relation to absconding. As the hon. Gentleman said, the voice recognition technology uses biometric voice recognition software to facilitate reporting over a telephone from a fixed landline from a fixed address at a notified time. We could use that technology to obviate the need for people to report physically to a centre on a weekly basis. We would obviously specify a particular hour—there would be some flexibility—for them to ring in and to have their voice and location checked.

Tagging involves wearing a bracelet similar to a wrist watch, which emits a signal to a receiver at the subject's home address. We may require a subject to be at home for a particular hour in the week, or more frequently for people who present other kinds of risk to confirm that they are complying with a residence restriction. That would again serve in lieu of physical reporting.

Tracking involves using global positioning satellite technology to pinpoint the whereabouts of a subject on a continuous basis, and is of a different order. That technology is in its infancy. However, we seek the powers to be able to use it in the future, if and when it becomes available on a practical basis.

Tagging will allow those at the lower end of the risk spectrum, who would otherwise have to be detained or would have to report on an onerous basis, to be monitored electronically in other ways. That will free detention space for those whom we believe present a higher risk of absconding. Hon. Members will see that it will be potentially efficient both for the immigration and nationality directorate, and for some of the people whom we would otherwise require to report regularly. The intention is to use the provision in cases in which there is a risk of absconding, but in which we assess that that risk can be managed by electronic monitoring.

I now turn to some of the other points raised by hon. Members. I think that I have answered the questions raised by the hon. Member for Woking about who can grant the bail and issue the reporting restrictions for which electronic monitoring could be a substitute. In practice, although the clause mentions imposition, we can use the measures only with the consent of the people concerned, because if they do not consent to it, there is no point in using it. Detention would, however, be the only alternative for some people, and that would act as an incentive for them to consent to electronic monitoring.

The hon. Gentleman gave the example—I think that he answered his own question—of people appearing before district judges or lay magistrates. That would occur in criminal circumstances. They would therefore be subject to a completely different set of arrangements with regard to whether the sentence for any criminal offence included the possibility of tagging after a prison sentence.

The hon. Gentleman mentioned cost and numbers. My hon. Friend the Member for Glasgow, Cathcart (Mr. Harris) asked how the provisions would operate with families. It is difficult for me to give estimates of cost and numbers. We want to pilot the mechanisms gradually. However, where we believe that there is potential to use the measures extensively to avoid the expensive use of detention, we will do so, and will retain detention for higher-risk people.

The question of families raises some difficult issues, and I would like to consider those further. My hon. Friend raised some important points. When we consider a family, it is, by definition, a group of people. I would like to think that some of the few families who would otherwise have to be detained could be considered for electronic monitoring. However, the risk assessment is more complex, because of the potential for the family to split up if they are in the community. We would need to consider that carefully.

Detention should be for the smallest amount of time possible to remove someone or to obtain the documents that will enable them to be removed. We will continue to impose that constraint. When

someone's claim has failed, we work towards removing them, and we would want to apply that constraint to electronic monitoring as well as to detention.

My hon. Friend the Member for Walthamstow raised the difference in wording between the residence and reporting restriction provisions. The clause states that reporting restrictions ''could be'' imposed. The provision envisages the use of voice recognition technology to enable a person to report by telephone. It will be an alternative to reporting in person to a reporting centre. In practice, it may be reporting by telephone monthly, or in person quarterly. There could be flexibility in the way it would operate.

Amendments Nos. 165 and 166 would introduce a procedure for subjects of electronic monitoring to make representations to a chief immigration officer. I assure the hon. Gentleman that, as with existing arrangements for temporary admission, conditions of bail and so on, genuine reasons for apparent non-compliance with electronic monitoring are and will continue to be taken fully into account. The measures are not intended to trip up people who want to comply and who tell us voluntarily that they genuinely cannot meet a particular appointment or a particular reporting session. They are intended to ensure that those who would not otherwise comply do so more securely. Those arrangements, in which reasons for non-compliance are taken into account, have been in place for a long time. We would also apply those to the electronic monitoring requirement.

On amendments Nos. 169 and 174, I do not think that it is necessary to state that arrangements for electronic monitoring must be ''necessary and reasonable'', or

''must not impose a disproportionate restriction on the liberty of the individual.''

As I have said, decisions to require electronic monitoring will be taken following a thorough risk assessment of individual cases. It is one of a range of contact management tools available, ranging from detention at one extreme to release bail, temporary admission or temporary release, with or without conditions, at the other. We shall choose the least intrusive option necessary to manage the risk in all cases, taking into account not only the individual but our resources.

Turning to amendment No. 172, the rule-making power under subsection (8) is designed to maintain maximum flexibility in the light of new and rapidly developing technology. If the amendment refers to rules governing the application of an electronic monitoring requirement by immigration officers, the criteria that are used to assess the risk of absconding when we consider bail, temporary admission and temporary release are already in the public domain. Additionally, the detailed framework arrangements for electronic monitoring are in the contracts managed by the Home Office for the delivery of electronic monitoring. There is a lot of experience of that in the criminal justice system, on which we can draw. I do not feel that rule-making needs to be mandatory.

Photo of Ms Annabelle Ewing Ms Annabelle Ewing Spokesperson (Social Security (SNP Shadow Scottish Minister); Education & Skills; Home Office; Law Officers; Work & Pensions)

I am grateful to the Minister, and I apologise for not being here at the beginning of the debate, which is why I have not sought to intervene. Obviously, these measures are far-reaching, so I am pleased to note that there will be a pilot to see if they work. Given the crossover with the criminal justice system, which is separate in Scotland, what discussions has the Minister had with Scottish Executive Ministers? What is their position?

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

On these particular measures, there is not really a crossover with the criminal justice system. I was trying to make that clear. We are considering how we could apply some of the measures—as well as some of the flexibility that electronic monitoring has already demonstrated in the criminal justice system—to the contact management arrangements for people going through the immigration system. There is potential for using these measures in Scotland as part of that contact management and reporting restrictions. I can assure the hon. Lady that I meet regularly with my counterpart Minister in the Scottish Executive, and my officials are working very closely with officials in the Scottish Executive on these proposals as we develop them and think about implementing them.

We are not going into these matters with an English and Welsh-centric perspective. Nor are we unsighted on the implementation issues that might pertain in Scotland, because this is a reserved power. We have the power to introduce a proposal such as clause 15 but there are no crossovers with the criminal justice system here. We are simply using what we have learnt about electronic monitoring and applying it—creatively, I hope—to the needs of the immigration system.

I hope that I have answered most of the questions and explained how the proposal will work. I hope, too, that I have convinced the hon. Member for Winchester that there is no need for his amendments.

Photo of Mark Oaten Mark Oaten Liberal Democrat, Winchester 3:00 pm, 22nd January 2004

As ever, the Minister has been extremely helpful and has brought to light how the proposal's mechanisms will work. I am largely reassured by her comments. As I said, we do not intend to oppose the measure in principle because there is merit in being able to speed up the process and in avoiding using detention, with both of which we are sympathetic.

As to the different forms of tagging, I hope the intention is to use the lower levels of tagging when possible, and I know that voice technology is being developed. Satellite technology is up and running and being used. I have been tagged and was tracked down by a company using a satellite—as a good media stunt rather than anything else. The technology is coming on-stream; it was certainly able to follow me round for a while.

I am encouraged that the Government are taking a careful approach to the matter of pilots, although I cannot envisage how a pilot scheme would operate as I assume it would be difficult to arrange within a geographical area. Perhaps the Minister will intervene to explain how these schemes would work. Is it the intention that the pilot schemes would operate on a geographical basis or would satellite or voice technology be tested in pilot schemes across the country? It would be useful to know something about how they will operate and how success will be evaluated. It would be interesting to know, too, how the Government will judge whether such a scheme has been successful.

I can envisage circumstances in which the arrival of a couple of people to put a tag on someone could be quite frightening, especially if in the country from which he or she had fled, a knock on the door from officials could mean something severe. To that individual it would be a frightening experience if a couple of people arrived with a box of equipment and asked him to expose his ankle so that he could be tagged. I hope that the trials will not just take into account the effectiveness of the equipment, but will also make an assessment of what the experience is like and whether the individuals who use the equipment need special training to explain what they are doing. Tagging could be a frightening experience, not just for the person being tagged but for their family who may have to watch what is happening. Although in this country we may be familiar with television images of tagging being carried out, some individuals would not know what it meant and having an electronic gadget put on their leg could be quite upsetting.

However, with the Minister's reassurances, I am happy to beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Mark Oaten Mark Oaten Liberal Democrat, Winchester

I beg to move amendment No. 171, in

clause 15, page 16, line 34, leave out from 'who' to end of line 38 and insert—

'(a) confirms that they are at least 18 years old, and

(b) can be shown by documentary evidence to be at least 18 years old, or

(c) is declared to be at least 18 years old by a decision of a court, including a tribunal as defined by section 10 and for the purposes of this section by subsection (12) below.'.

This is a probing amendment to ask for more detail about something that was mentioned by the hon. Member for Woking earlier and to which the Minister did not have time to respond. I refer to the use of electronic equipment on those aged under 18. I seek clarification about the terms used in the clause. In relation to the tagging of an 18-year-old, clause 15 includes the phrase:

''an individual who appears to be at least 18 years old''.

I can understand that there are difficulties, and anyone who has been out with the police on a Friday night will know that it is hard to judge the age of individuals. However, I am uneasy about the phrase:

''appears to be at least 18 years old''.

Surely there must be a stronger term that will provide a greater safeguard. The Minister must explain what is

meant by that phrase. Who will make that judgment? Will it be made by one or a number of individuals? If someone insists that they are 16, but the people making the judgment overule them, what right do they have to make their case? Will the decision be made just as the tag is about to be put on someone? What appeal mechanisms are in place?

Nobody would want a situation to arise whereby an individual under the age of 16 was tagged. We need stronger wording than the phrase

''appears to be at least''.

It is a vague way of defining the age of an individual in such circumstances.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

Perhaps I can help the hon. Gentleman. I agree that we must reconsider the issue, not least because procedures to ascertain age exist much earlier in the claim process. If someone making a claim in their own right claims to be under 18, they are referred to a children's panel, for example of the Refugee Council. If there is any dispute about age, the immigration and nationality directorate and the panel go through a process to resolve the dispute. We should not reach the stage of the process involving reporting restrictions without having resolved disputed cases. We have procedures for establishing the age of unaccompanied minors. We should consider referring to those procedures rather than allowing the possibility of an officer further along in the electronic monitoring process to decide age on the basis of what an individual looks like.

The current wording does not take into account existing procedures for deciding age in disputed cases. I want to consider whether there is a better form of words that acknowledges the procedures that already exist. If necessary we will put forward new suggestions on Report.

Photo of Mark Oaten Mark Oaten Liberal Democrat, Winchester

I am extremely grateful to the Minister. That is a constructive way forward and we look forward to hearing what the Minister has to say either later in Committee or on Report. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 15 ordered to stand part of the Bill.