(1)Schedule 2 to the Immigration Act 1971 (c. 77) (control on entry, &c.) shall be amended as follows.
(2)In paragraph 3(1) for the words from “and if he is not” to the end substitute—
“and, if he is not a British citizen, for the purpose of establishing—
(b)whether he entered the United Kingdom lawfully;
(c)whether he has complied with any conditions of leave to enter or remain in the United Kingdom;
(d)whether his return to the United Kingdom is prohibited or restricted.
(1A)An immigration officer who examines a person under sub-paragraph (1) may require him, by notice in writing, to submit to further examination for a purpose specified in that sub-paragraph.”
(3)After paragraph 16(1A) insert—
“(1B)A person who has been required to submit to further examination under paragraph 3(1A) may be detained under the authority of an immigration officer, for a period not exceeding 12 hours, pending the completion of the examination.”
(4)In paragraph 21(1) after “16” insert “(1), (1A) or (2)”.’. —[Mr. McNulty.]
New clause 9 brings the powers of examination at embarkation control under paragraph 3 of schedule 2 to the Immigration Act 1971 in line with the powers of examination on arrival under paragraph 2 of schedule 2. The new clause provides for an immigration officer to examine a departing passenger for the purpose of establishing his identity and immigration status and, if that is not clear from the initial examination, to detain and subject the person to further examination until he can satisfactorily establish his identity and/or immigration status. Detention is permitted for a period of not more than 12 hours.
The immigration service and other services at our ports must have a passing interest in those who are leaving the country as well as an interest in those coming into it. Interesting things have been discovered in the context of the embarkation controls that have been restored to varying degrees since 7 and 21 July, but there is a lack of clarity, if not an absence of power, for our immigration services and others at ports to take details and, if necessary, to detain for up to 12 hours those leaving the country in order to ascertain their details. It must make sense for those services so to do in this day and age.
The improvements to immigration officers’ powers to examine departing passengers in new clause 9 are complemented by provisions in new clause 10. It amends section 141 of the Immigration and Asylum Act 1999, which provides for the taking and storage of fingerprints. It amends section 141(7)(d) to enable fingerprints to be taken from a person who has been detained under schedule 2 powers and to be stored. The new clause is necessary because many people are detained, particularly at ports, without being arrested.
In particular, new clause 10, in conjunction with new clause 9, will permit fingerprints to be taken from an embarking passenger who has been arrested or detained pending further examination at an exit control. A key component of establishing identity is the provision of a biometric. The immigration fingerprint bureau contains a store of fingerprints against which persons of doubtful identity could be checked before departure from the UK. This is a valuable tool to reconcile immigration records and minimise fraud before the e-borders programme is implemented. It will also help to provide intelligence to prevent people from returning to the UK with false identities.
In addition to the fingerprinting provisions of section 141 that new clause 10 amends, section 144 enables the Secretary of State to make equivalent provision in relation to other external physical characteristics—in particular, features of the iris or other parts of the eye. The ability to use the most effective biometric technology as it develops is an important tool in combating immigration offenders and identity thieves—those who are detected on arrival in and those who are detected on departure from the UK.
New clause 10 also amends section 141 of the Immigration and Asylum Act 1999 to enable detention custody officers in immigration short-term holding facilities to take fingerprints from immigration detainees. I remind hon. Members that those facilities are now covered by the inspectorate as per clause 39.
I commend the Minister on his succinct explanation of new clauses 9 and 10. They find favour with Conservative Members. He gave the example of useful information being gleaned by stopping and examining people on departure from this country. That must be the right way to go in the current circumstances. Indeed, only a short time ago the Government were somewhat embarrassed when a certain gentleman left this country unbeknownst to them, and announced from abroad that he was out of their jurisdiction and safe elsewhere when they were interested in speaking to him.
No, not Jeffrey Archer.
I wish to ask the Minister a few practical questions about these new clauses. Who will be involved in carrying out the detention? Will they be immigration officers, customs officers, police or Home Office personnel? Who will be responsible for physically carrying out the stopping and searching of these individuals? Also, what will the position be if private contractors are brought in and there is a dedicated border force of any nature?
The Minister acknowledged that short-term detention facilities will now be overseen by Her Majesty’s chief inspector of prisons, which I welcome. However, I would like to know where those centres are going to be located. Will the arrangements be separate from the existing arrangements in our ports and airports, because of the nature of the individuals who are expected to be held in these cases? Also, why is the length of time only 12 hours? If there is any contention over information, will 12 hours be long enough? How was that period arrived at?
What happens if the individual is detained and therefore misses their flight, and their air ticket does not allow the money paid for it to be commuted to another ticket? Who will then pay for that individual to leave the country, and what happens if that individual does not have the wherewithal or cannot afford to buy either another air ticket or a passage on a boat? Who else will be informed about that person’s detention? Will a relevant embassy or high commission be informed? Will the detained individual have a right to legal advice and representation? If the individual misses a flight and the airline personnel know that that individual has been detained by the authorities pending further inquiries, could that not pose a danger to the individual?
The hon. Lady is asking relevant questions, although there is a slight inconsistency, because one would not want embassies and their staff to be told if the notification of the national authorities might lead to the concern that the individual could be in danger. The question might be even better put in this way: will the detainee be able, if they so wish, to contact consular or embassy staff for support during those 12 hours? That would be better than an automatic referral, for the reason that the hon. Lady rightly gives in her subsequent question.
Well, we are on the home run so I can afford to be generous to the hon. Member for Oxford, West and Abingdon. I have noticed that the Minister has been generous to the hon. Gentleman today, too, which is a turn of events.
Would the individual be allowed to contact anybody, such as his family or friends, to tell them of his detention? What will the situation be if the individual is travelling to another European country? Will that create any problems, because, as we constantly hear, the European Union is about the free movement of goods, services, and people? Does the Minister not think that some issues may need to be addressed, or has he already covered them?
Lastly, on new clause 10, we have talked about biometrics and fingerprinting at length. I think that the Minister is of the view that eventually we will unfortunately have to consider the taking of biometric details of everybody travelling in and out of our country. That means that we will face some difficulties. I can see the Under-Secretary nodding. We cannot put our heads in the sand about the issue. The situation I described might arise sooner rather than later.
What happens if the individual refuses to have their fingerprints taken in that situation? What will happen over refusals? After all, people will be detained in a short-term facility. Does the Minister envisage that if enough refusals are forthcoming from the person leaving the country, the official detaining them would just let them go because it would be more important to have them out of the country than remaining in it? I hope that that is a suitable series of questions on the practical applications of the two new clauses that will enable us see what is in the Minister’s mind.
I will not repeat any of the points made by the hon. Lady, but I want to ask a further question. I hope that I will be forgiven if it has already been dealt with. What will the inspection regime be for this particular facility of detaining embarking passengers—people leaving the country? Is it already covered by the short-term holding facilities that were mentioned? Perhaps the Minister will confirm that. Similarly, I hope that he will confirm that things will be able to be inspected by the chief inspector of prisons and also that the independent complaints procedure that the Minister is thinking of introducing would apply to the behaviour and conduct of immigration officers in this case.
Again, the questions were all entirely fair and reasonable. We need to start from the perspective that if we went to the full extent of the immigration service’s powers now, which clearly would not be practical, it could arrest everyone about whom they had remote suspicion, if that was its wont. That would not be terribly effective; in today’s circumstances, neither would taking a view that as these people are at the door marked exit, they are no longer our concern until they come back to our shores. That would also be inappropriate.
This is about striking a balance in the middle. It is not saying that where there is the remotest suspicion we will detain someone in a short-term holding facility for 12 hours. We think, as a matter of experience, that it should not take any longer than that and, in most cases, far less to establish fully an individual’s details. Currently, we are able to take all that information from someone only if they are arrested. Clearly, we do not want to arrest everybody. In previous manifestations, the hon. Lady’s party might have wanted to do so, but we do not.
In that regard, having the facility, which is all that the two new clauses propose, to establish beyond doubt a person’s identity as they are leaving and to take a record of that by biometrics is a more than appropriate halfway house. That will be done within the context of what we have already at ports; no new centres or new facilities are involved. The hon. Lady asked about that. It seems more than appropriate that that is the way to go forward.
Before I let the hon. Lady intervene, I must explain that biometrics are coming anyway in terms of international documents for travel; in a European context, there will be a start next year. Let us consider beyond that. All the G8 and subsequent discussions that we have had at an international level have shown that there is a will across the globe to move in that direction to establish firmly individuals’ identities. Biometrics are coming anyway and it is more than appropriate that this is the way to respond.
I simply wish to probe the Minister on cost. There will obviously be new installations for taking details and analysing them on the spot. Some idea of the investment and the resources being put into that would be useful.
We are considering that. I have said before that we will move towards a full e-border position—I do not like the phrase either—probably by 2010. The provisions in the Bill are part of a process. Rather than wait and then have a big-bang flick of the switch, we are already putting resources into embarkation controls; and there is significant recruitment in the immigration service, particularly at warrant officer level. All told, there are some 600 or 700 new posts. Those interim measures will take us from where we are now to the full use of e-borders. As and when I can, I will happily provide the hon. Lady and the Committee with a rough outline, but she will appreciate that we are not in a position to do that now.
We already have powers under the Immigration and Asylum Act 1999 to use “reasonable force” to secure fingerprints should the Bill be enacted. It is an obligation on our part and we are looking to fulfil it.
If a person is detained and cannot depart on the planned flight, it will be necessary to inform the airline that that person will not be travelling. You would have to do that. Many people will know that once you are on a plane and someone else is getting off the plane, or someone never made the plane but their luggage did, a security situation will arise, and you—not you personally, Sir Nicholas—would be stuck on the tarmac. Therefore, if the luggage has gone ahead and the individual does not quite make it for whatever reason, one needs to tell the airline that the individual will not be travelling so that their luggage can be removed.
We have said that 12 hours is enough. I have answered the financial points. The question about short-term holding facilities has already been answered: they come under the inspection regime, as indicated. I will certainly take that point away and think about it, but I think that there is no need to do so given that we are putting the short-term holding facilities—no others are envisaged—under the umbrella of the inspectorate. Separate oversight of inspection facilities only for departing passengers might be a bit over the top, but I may have misinterpreted things entirely.
In conclusion, we believe that embarkation controls, the introduction of biometrics from next year onwards and the capture of data is the right way to go. It is the way that most other countries will go.
The hon. Lady is right; I did not deal with that. The power to detain a person pending examination is an administrative power for immigration purposes, and it is for a maximum of 12 hours. If the individual is subsequently arrested for an offence, the usual safeguards of the Police and Criminal Evidence Act 1984 will apply, including the right to legal representation. It is an administrative device. Before the 12 hours are up, there will be no right to legal representation and none of the other rights afforded by PACE. It is not an arrest for a criminal offence. It is detention under the administrative powers of immigration legislation. If it goes beyond 12 hours, the legal rights and powers under PACE will kick in, but not before—and probably rightly so.
Very briefly, I do not think the Minister has addressed the question raised by the hon. Member for Chesham and Amersham on the people who will be doing the detaining. Two days ago, the Under-Secretary suggested that we could afford private contractors to do the work to free up existing officers to do more important work. The detention of people under issues of national security is clearly important. I want some clarification as to whether the Minister will be using private contractors for this work.
There are two points. The particular powers under the clause will apply to the immigration service and immigration officers or, where there are stronger concerns, to special branch. I need to make it clear that as I understand it—unless some inspiration comes fluttering behind me in the next couple of minutes—all our short-term holding facilities at airports are already run by the private sector, but it does not carry out the other activities. When it comes to embarkation and the capture of information herein, I understand that immigration and special branch will be involved precisely because it is such a finely focused art. To compare it to searching a vehicle is a bit silly.
I presume that the Minister envisages that the inspection will take place after the security inspection but before the passenger is truly airside. Obviously, that is why there would be difficulties as the luggage would go on to the aeroplane before that point and would have to be pulled off.
That is right. Since July, I have been to a number of airports and seen immigration officers doing their jobs. As the officers go about their business and look for further information or whatever else under today’s provisions, which are largely for incoming rather than outgoing passengers, an individual might have to wait in the short-term facility. They would not have to wait in a cell, but the facility would be a secure waiting room, for want of a better term. That is an entirely proper and appropriate division of labour. It seems to work well and has been formalised, in a statutory sense, along with escort services—in the terms of escorting detainees, not the escort services on the back of the magazines that the hon. Member for Woking reads. [Laughter.] I will come back to him, do not worry.
With that caveat and inspection cover, I recognise the points made and commend the new clauses to the Committee.