Clause 19 - Powers in connection with examination, detention and removal

Immigration Bill – in a Public Bill Committee at 2:00 pm on 3rd November 2015.

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Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office) 2:00 pm, 3rd November 2015

I beg to move amendment 209, in clause 19, page 23, line 10, at end insert—

‘(2A) in paragraph 2(2) after “examine” insert “at the point of entry into the United Kingdom.”

To limit the power contained in Schedule 2, paragraph 2 of the Immigration Act 1971 to examination at the point of entry, as intended by Parliament.

We move to part 3 of the Bill, which is on enforcement. Amendment 209 is intended to limit the power contained in paragraph 2 of schedule 2 to the Immigration Act 1971 to examination of individuals at the point of entry—on arrival in the UK—as intended by Parliament. There has been an ongoing dialogue, for want of a better word, between various concerned parties and the Home Office on the purported use of the power in places other than the point of entry. A number of organisations, including Liberty, have written to the Home Office.

At one stage, any purported reliance on the provision as giving a power to examine away from the point of entry was not accepted, but there is concern as to whether that is still the position, and the amendment is  intended to clarify that. If that is the position, the amendment ought to pose no problem, because it would clarify that the examinations are at the point of entry into the United Kingdom. If, on the other hand, it is said to be the case that paragraph 2 of schedule 2 to the 1971 Act does give a power of examination away from the point of entry, obviously I will have more to say in my reply.

Photo of Gavin Newlands Gavin Newlands Scottish National Party, Paisley and Renfrewshire North

Part 3 of the Bill deals with the powers that will be handed over to immigration officers, members of the public, on-service police officers and detainee officers, amongst others. Their powers will be extended to an unparalleled level. With the aim of clamping down on illegal immigration, this part of the Bill will equip immigration officers with enhanced search-and-seizure powers to collect evidence that will, according to Government, help to secure more civil penalties and removals.

Before discussing the specific amendments tabled, we should take note of the points made by the organisations that have provided evidence during the passage of the Bill. Liberty, in particular, has voiced a number of concerns about the Bill, including the extension of powers to be handed over to immigration officials, a lack of training and accountability for immigration officers, the expectation that those officers will carry out police-like activities and the transformation of members of the public into the UK Government’s very own immigration agents.

We should be concerned about the impact that this part of the Bill will have on people. Regardless of our own views on illegal immigration, the Bill needs to deal with illegal immigration in a humane, respectable and appropriate manner. The amendments tabled by Scottish National party and Labour Members aim to capture that mood and, in doing so, reduce the damaging impact that some of the clauses may have on people.

The Bill aims to clamp down on illegal immigration, and we should accept that action must be taken on those who are here illegally. Being classified as an illegal immigrant, however, creates a number of difficulties. As we have heard in our discussions on illegal working, the status of illegal immigrant can push a person and their family into a serious and vulnerable position. We should still treat people who are here illegally with respect and dignity. In addition, although illegal migration exists in the UK, we should not tackle it in a way that damages the experience that other migrants have while here. Clause 19 highlights that point. Tackling illegal immigration will have an impact on those who are living here or enter the UK illegally, but we should equally be concerned about the impact that the clause will have on migrants who have been granted legal authorisation to live in the UK.

Photo of Sarah Champion Sarah Champion Shadow Minister (Home Office)

Does the hon. Gentleman share my concern that the clause and the Bill in general will make landlords and tenants, and employers and employees view each other with suspicion? It will create a hostile climate that I do not want to see in this country.

Photo of Gavin Newlands Gavin Newlands Scottish National Party, Paisley and Renfrewshire North

Absolutely. As we heard in evidence from several experts, social cohesion will be affected by such measures.

Clause 19 further extends the powers of those who work at our airports and ports of entry. It will allow them to curtail leave, rather than simply determine whether leave has been given and act accordingly. It will create a nervous, unpleasant environment for those who have the correct paperwork and have gone through the correct process. Due to the new power, they will still have a nervous wait to find out whether they are able to pass through the gates and live and work here. Although this measure may affect only a small number of people, we need to be concerned about the effect that our fears about illegal migration have on people who have the right to live and work here.

Amendment 209, which is supported by Liberty, attempts to limit the speculative searches that are conducted by certain authorities to determine immigration status. As has been detailed and discussed, schedule 2, paragraph 2 of the 1971 Act sets out a power that is ostensibly to deal with individuals on arrival in the UK for the purpose of determining whether they have or should be given leave to enter or remain, but it has been used by the Home Office as justification for conducting speculative, in-country spot checks involving consensual interviews. The amendment would limit that power to examination at the point of entry.

The power to conduct stop-and-searches away from the confines of a point of entry derives from a decades-old case, Singh v. Hammond, when the Court of Appeal concluded that such a search can take place away from the place of entry if there is suspicion that the person is here illegally. That is all well and good, but the power has been somewhat abused. Home Office immigration officers have been conducting intrusive searches when they believe that a person of foreign origin is nervous about being in the presence of an immigration official. Such behaviour is detailed in the “Enforcement instructions and guidance” booklet. Chapter 31, in particular, highlights the need to curtail that sort of behaviour.

In considering the amendment, we should note that there is no free-standing right to stop and search people to establish their immigration status. I know the Government are keen to secure strong social cohesion in our communities, but such intrusive stop-and-searches have no regard for community relations. They should worry us all, and we should take action on them by passing the amendment.

Photo of Paul Blomfield Paul Blomfield Labour, Sheffield Central

I rise to speak to the objectives of amendment 209, as I understand them. They take us back to the intentions of the Conservative Government in 1971, whose Immigration Act 1971 created the opportunity to search to demonstrate immigration status at the point of entry to the country, which seems sensible, but not away from the border. [ Interruption. ] The Solicitor General is expressing some doubt about that, and I would be happy to pursue the matter with him. The power has been developed gradually by the Home Office, often without sufficient regard for the sort of community relations that we share a concern about.

As the hon. Member for Paisley and Renfrewshire North pointed out, Liberty expressed concern when such speculative street and transport hub-based searches  began in 2012, largely outside tube stations. Concern was expressed when what was then the UK Border Agency suspended such operations across the country and reviewed its guidance, but then reinstated them. The guidance was amended again in 2013 following the reaction to street searches.

I have looked through reports from that time that showed how the checks worked. They may have also been done in other places, but certainly Walthamstow, Kensal Green, Stratford and Cricklewood are all thriving multicultural areas. One local resident in the Kensal Green area told his local newspaper:

“I thought the behaviour of the immigration officers was heavy-handed and frightening. They appeared to be stopping and questioning every non-white person, many of whom were clearly ordinary Kensal Green residents going to work.”

Matt Kelcher, who also witnessed them, said:

“They didn’t seem interested in me and I walked straight through, but the two Asian women who entered the station after me were stopped, taken to one side and questioned.”

That selective approach, which is reminiscent of stop-and-search, about which the Home Secretary has expressed concerns and to which I will return in a moment, is something that we need to be careful about. My hon. Friend the Member for Paisley and Renfrewshire North mentioned chapter 31 of the Home Office’s enforcement instructions and guidance, which set out the grounds on which it believes that immigration officers can have “reasonable suspicion.” A definition is given:

“Reasonable suspicion that an individual may be an immigration offender could arise in numerous ways but an example might be where an individual attempts to avoid passing through or near a group of IOs who are clearly visible…In such circumstances the IO could legitimately stop the individual and ask consensual questions based on a reasonable suspicion that that person is an immigration offender.”

That definition is extraordinarily broad. It is a sort of in-country fishing expedition, which in ethnically diverse areas—it takes place only in those areas—will have an impact on community relations.

I am sure that we are all broadly on the same page in terms of concern about potential impact. The Home Secretary has sought to address concerns about the related police activity of stop-and-search. Last year, she said:

“I want to make myself absolutely clear: if the numbers do not come down, if stop-and-search does not become more targeted, if those stop-to-arrest ratios do not improve considerably, the Government will”— take action. She went on to say that

“nobody wins when stop-and-search is misapplied. It is a waste of police time. It is unfair, especially to young, black men. It is bad for public confidence in the police.”—[Official Report, 30 April 2014; Vol. 579, c. 833.]

That concern about stop-and-search, with which I fully agree, led to our amendment. Immigration officers should have the power originally intended by the then Conservative Government in 1971, but that power should not be allowed to encroach further and damage community relations.

Photo of Robert Buckland Robert Buckland The Solicitor-General 2:15 pm, 3rd November 2015

I am grateful to all the hon. Members who took part in this useful debate, which has helped to tease out some of the important issues that  underline the extension of powers in this part of the Bill. I am sure that will be a common theme in our debates on subsequent amendments.

I will make it clear at the outset that while it is interesting to hear analogies between the new power and stop-and-search, this is not a stop-and-search power; it is a different type of power. It is important to draw that distinction, because while it is important to talk about tensions in communities and to understand the reality of the circumstances in which immigration officials operate, it would be wrong to hurtle helter-skelter down that route without analysing precisely what we are talking about.

We are talking about a power to ask questions of an individual that has to be based on a reasonable suspicion. It is therefore not a speculative fishing exercise and it should never be based on the random prejudice of what someone looks like. Immigration officers must comply with their duties under the Equality Act 2010. Stopping and examining individuals by means of racial profiling is not in accordance with their public sector equality duty pursuant to section 149 of the Act. They are bound, like any other public body, to stay within the law.

Photo of Paul Blomfield Paul Blomfield Labour, Sheffield Central

As I say, we are both concerned that we get this right. Are we not playing with semantics when we say that this is not stop-and-search? We could call it stop and check, but does it not have all the characteristics of stop-and-search? Is the Solicitor General satisfied with the definition of “reasonable suspicion” in chapter 31 of the enforcement instructions and guidance, which I cited? Does it not give enormous latitude?

Photo of Robert Buckland Robert Buckland The Solicitor-General

Importantly, we have to remember that we are dealing with powers that relate to a potential civil consequence as opposed to a criminal one. Therefore, it is important to draw a distinction between the stop-and-search powers and this particular competence. There will be joint crime reduction operations—commonly known as CROPs, another unfortunate acronym, for which I apologise—where, for example, somebody is stopped on the underground for fare evasion and is then referred to immigration officers. That is intelligence-led enforcement. It is not about the sort of random checks that the hon. Member for Sheffield Central illustrated very eloquently and with proper concern—a concern that I share. I do not want that sort of culture to be spread through the use of these powers. As a result of duties under the Equality Act and due to of the importance of community impact assessments made before operations, which have to be signed off by a senior official in the rank of assistant director, some of the practical safeguards are in place to deal with the sort of mischief and problems that he and other hon. Members have identified.

I am grateful to the hon. Member for Paisley and Renfrewshire North for raising the Singh v. Hammond case. It is important to note that that judgment of 1987—it is now nearly 30 years old—says:

“An examination…can properly be conducted by an immigration officer away from the place of entry and on a later date after the person has already entered…if the immigration officer has some information in his possession which causes him to enquire whether the person being examined is a British citizen and, if not…whether he should be given leave and on what conditions.”

There we have it—the basis of action.

Photo of Paul Blomfield Paul Blomfield Labour, Sheffield Central

I anticipated that the Solicitor General might cite that case, which is the basis for the extension of powers. In reaching a view on that, the Court of Appeal said that

“the case does turn very much on its own facts”.

That case involved an immigration amnesty and an immigration officer’s specific and defined suspicion of identity deception. It was very narrowly drawn by the Court of Appeal and does not give a legitimate basis for the much wider use subsequently.

Photo of Robert Buckland Robert Buckland The Solicitor-General

The hon. Gentleman’s interpretation is interesting. I am sure it would be an attractive submission to make were the issue to be revisited, particularly in litigation. It is nearly 30 years since that case. Since then, the Home Office has relied on it. There has been no attempt by a Government of any colour to redefine things and go back to what he would describe as the original 1971 position. There must be a very good public policy reason for that; that reason is simply that it is entirely reasonable to allow the immigration authorities to have a little more time and space, based upon a reasonable suspicion, in which they can question a person who they reasonably suspect might be an illegal immigrant. The published guidance reflects the Singh v. Hammond judgment. It makes it clear that before any inquiry begins, there has to be reasonable suspicion.

My concern is that if the power of examination is limited only to the point of entry, we could have—perversely—an increase in people being arrested, because the power to ask questions is, as I said, not a power of arrest, but a different type of power. It allows people to give a reasonable explanation before we get to the stage of any apprehension or arrest, which I think is a good thing. I would not want to see a perverse situation where, in effect, the immigration authorities are shooting first and asking questions afterwards. I am sure that the hon. Gentleman would agree that that sort of approach would definitely inflame the situation and lead to the perverse consequences that we all worry about.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

I have listened very carefully to the Minister’s explanation and justification. It must follow that operations at tube stations or other places against a number of individuals, based perhaps on what they look like, would be outwith the guidance and outwith the Minister’s explanation and role.

Photo of Robert Buckland Robert Buckland The Solicitor-General

I entirely agree. If their operations relate to other intelligence—for example, on organised fare dodging or some sort of illegal activity on the tube that was either antisocial or worse—then clearly, that joint working would be very important and would reflect the best intelligence-led operations. We are all keen to eliminate a random use of these powers that would be arbitrary and would not, in my judgment—and I am sure, in any reasonable person’s judgment—reflect the criteria set out in the Singh case and reflected in guidance ever since.

Photo of Sarah Champion Sarah Champion Shadow Minister (Home Office)

Opposition Members have real concerns about community cohesion and racial profiling, and it sounds as if the Minister too is concerned that the powers should not be used inappropriately. I appreciate what he said in relation to my hon. and learned Friend and the guidance notes. Would the Minister therefore  commit to conducting a review to make sure that these powers are not overused, and that our concerns are just concerns and not reality?

Photo of Robert Buckland Robert Buckland The Solicitor-General

I fully expect that any revised guidance notes published to reflect any changes passed in this Act will be a faithful reflection of the case law as we have outlined it today. I am absolutely sure that my colleagues in the Home Office will keep these matters under continuous review. If, indeed, a body of evidence emerges that challenges the position I have outlined today, I am sure that colleagues would look at that. It would perhaps be wrong of me to commit to anything specific today, but the hon. Lady has placed her concerns on the record for all to hear, and I am sure that the observations that we have made in this debate will be heard in another place and at other stages before the Bill, as we hope, eventually becomes law.

The final point I want to make is that I do not think that anybody wants to see the lawful and proportionate operations of our immigration authorities severely hampered. My genuine fear is that however well intentioned this amendment might be, it would lead to a hampering of those operations. Therefore, for those reasons, I urge Opposition Members to withdraw the amendment.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

I am grateful to hon. Members for setting the context within which the powers that now exist operate and to the Solicitor General for his explanation. I accept that technically, in a number of legal respects, there is a difference between stop-and-check and stop-and-search, but I am not convinced that the impact on community relations follows from what are legal distinctions. In other words, I am not sure that the public out there quite accept and understand the nuances that we in this Committee might understand as the differences between the two, and there are real concerns about the way in which the existing power is being exercised. In the end, this comes back to the words that the Solicitor General used, which I jotted down. He said that it makes sense to have a little more time and space, and that that would avoid action possibly being taken on arrival that need not be taken. That is true in the sense that this is supposed to be a power that is excisable on arrival, but it very quickly moves from a little more space to a generalised power that has been exercised in the way that has been described. On that basis, I do not withdraw this amendment.

Question put, That the amendment be made.

The Committee divided: Ayes 6, Noes 9.

Question accordingly negatived.

Question proposed, That the clause stand part of the Bill.

Photo of Robert Buckland Robert Buckland The Solicitor-General

We have already dealt with some of the important provisions of clause 19, so I will try to be as brief as I can. In essence, clause 19 will amend schedule 2 to the Immigration Act 1971 to provide clear powers for immigration officers—when, for example, they are examining a person to see whether their leave should be curtailed—to search premises for evidence of such purposes. It would also update existing powers to seize documents to include those held in electronic form. As we know, immigration officers may examine a person to establish whether they require leave to be here in the UK and, where leave is required, whether they already have leave or if it should be given, including the period and conditions of leave. However, the current provisions are not explicit about establishing whether any existing leave should be cut short. Situations are encountered by immigration officers where it may be appropriate to curtail the migrant’s leave because that person was found to be working or claiming benefits illegally or, sadly, had obtained leave by deception. As a consequence, where leave is ended with immediate effect, that person becomes liable to removal.

If the House consents, we will add a power for immigration officers, where they are already lawfully on premises, to search for and seize documents which may support a decision to curtail leave. This does not include documents which are subject to a legal professional privilege. Immigration officers already have powers to search for evidence of the offences of breaching conditions of leave or obtaining leave by deception, but this of course is only for evidence that would support a criminal prosecution. However, in the vast majority of cases where migrants fail to comply with immigration law or do not depart voluntarily, our strategy is to remove them from the United Kingdom rather than pursue costly prosecution and possible imprisonment for minor immigration offences. We believe that to be a proportionate approach which is in the public interest.

We therefore believe that it is more appropriate for immigration officers to have specific administrative search powers where they are exercising administrative rather than criminal powers, and we already have the framework in schedule 2 of the Immigration Act 1971. I have already mentioned the importance of updating powers so that legislation moves with the times, which is why we now include documents that might be stored on electronic media or devices.

Photo of Sarah Champion Sarah Champion Shadow Minister (Home Office)

I am sorry to labour this point. I hear what the Minister is saying, and I do not disagree with the argument that he is making. However, does the Minister really think that the Home Affairs team, the immigration team, have the resources to go in and do this work? In my constituency, when we have people who are waiting to be deported, there simply are not the officers who can go in and carry out the work. Surely the Minister should be looking at that.

Photo of Robert Buckland Robert Buckland The Solicitor-General

I do not want to criticise the hon. Lady for repeating an important point but, as I have already said to her, it is vital to remember that these powers are going to be exercised in a proportionate way, based on genuine intelligence. They are not going to be exercised in a scattergun way that would demand a significant increase in resources. We are confident that the proposals and powers we propose to introduce will make it easier for immigration officers to take that action and remove some of the understandable practical obstacles that exist with administrative procedures such as this, which then end up with a civil consequence as opposed to a criminal consequence. In short, at the moment it is easier for immigration officers investigating a criminal offence to search and seize than it is when it comes to the more practical measure of enforcing the civil consequences of decisions made after due process. This is a harmonisation of powers, if you like—let us remind ourselves that this is not a new power of entry. It relates to a time when immigration officers are already lawfully on the premises. It is a reasonable and proportionate measure. I think that the concerns that the hon. Lady raises are therefore met by the increased flexibility that the authorities are now going to enjoy.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

As I think the Minister accepts, powers of search and seizure in connection with the imposition of civil penalties are rare in our law. There are other examples, but they are rare. The usual circumstances are for search and seizure powers to be in connection with the imposition of criminal penalties. The question I want to put to the Minister is, what is the principle? I do not think that anybody would argue that it is sensible to move to a situation where all civil penalties give rise to a power of search and seizure and therefore there is a sub-class that may have these powers connected to it. What is the principle behind this clause and that sub-group of civil penalties that attracts the search and seizure powers?

Photo of Robert Buckland Robert Buckland The Solicitor-General

Putting it as simply as I can, the principle is that we want to ensure that, rather than having to resort to the use of criminal sanction—which, although it might mark the commission of offences and impose a punishment and penalty on individuals, could properly be seen as a disproportionate use of state power—we can resort to what, as I have said, is perhaps a lesser used path but one that is still within what the hon. and learned Gentleman and I would regard the bounds of compatibility with the European convention on human rights and our existing law. It is a proportionate use of powers. I remind the Committee that this is not a power of entry. Immigration officers have to be lawfully on the premises before these powers can be used—and, of course, there have to be reasonable grounds to suspect that the person with regard to whom the powers are being used may be liable to be detained and removed from the United Kingdom. There is a caveat, too: the search should only be to the extent reasonably required to find the documents, so a complete top to tail, fingertip search of the house, which would be wholly disproportionate, would not be within the particular use of this power.

I will give another example. There is concern about seizure of mobile telephones. Yes, there is a power to seize, but any such device on which electronic documents are stored will be seized only if it is not possible for the  owner otherwise to produce the document in a visible and legible form. Again, that is an example of the proportionality and the safeguards that exist in this particular instance. I hope that on the grounds of principle and particular efficacy I have outlined what I regard as a middle way, which these provisions represent.

Question put and agreed to.

Clause 19 accordingly ordered to stand part of the Bill.