Authority to Carry Scheme and Civil Penalties Regulations 2021
(3 years, 8 months ago)
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Baroness Williams of Trafford
That the draft Regulations laid before the House on 28 January be approved.
Relevant document: 45th Report from the Secondary Legislation Scrutiny Committee
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, the purpose of these regulations, laid under Sections 23(2) and 24(7) of the Counter-Terrorism and Security Act 2015, is to give effect to the authority to carry scheme 2021; to make consequential amendments to the Authority to Carry Scheme (Civil Penalties) Regulations 2015 and to revoke the Counter-Terrorism and Security Act 2015 (Authority to Carry Scheme) Regulations 2015. Once given effect, the 2021 scheme will, in turn, replace and revoke the authority to carry scheme 2015.
Authority to carry is, in effect, the UK’s no-fly scheme. It is necessary to prevent certain individuals from travelling to—or from—the UK, when it is necessary in the public interest. The scheme is operated by the National Border Targeting Centre, which processes information about individuals, both passengers and crew, intending to travel to or from the United Kingdom. Where an individual is identified who is in a class of person described in the scheme, the carrier may be refused authority to carry the individual to or from the UK.
Authority to carry is a key part of the UK’s border security arrangements, preventing individuals—including known terrorists, serious criminals and those subject to sanctions—from being able to travel to the UK. The 2021 scheme applies to all carriers who have been required by law to provide passenger and crew information before departure. It applies on all international routes to and from the UK, as well as to routes to and from the UK from within the common travel area where advance passenger and crew information is received from a carrier.
The operation of the authority to carry scheme has been extremely successful. Since its introduction in March 2015, the National Border Targeting Centre has refused carriers authority to carry individuals seeking to travel to the UK on more than 8,200 occasions. This has included around 200 individuals excluded from the UK, around 3,300 individuals previously deported from the UK, and more than 4,700 individuals using invalid, lost, stolen or cancelled travel documents. It has also included subjects of international travel bans. Those individuals would otherwise have arrived in the UK and been refused leave to enter by Border Force officers. The carrier would have been required to remove them and, in some cases, meet their detention costs. Some of those individuals, once in the UK, might have taken the opportunity to challenge their removal.
The 2021 scheme builds on the 2015 scheme by including additional classes of individuals whom carriers may be refused authority to carry when travelling to the UK. These are: individuals whose visa has been cancelled or revoked; individuals who have been refused leave to enter the UK before their departure for, or in the course of their journey to, the UK; and individuals who are using a travel document that is known to include a false or counterfeit visa or endorsement. One additional class of individual is included in the 2021 scheme in respect of whom carriers may be refused authority to carry when travelling from the UK: individuals using an invalid, lost or stolen travel document.
Although the 2015 scheme provides for the refusal of authority to carry from the UK, as does the proposed 2021 scheme, there has not yet been a case where this has proven necessary. Ports police provide the first response and will intervene prior to departure, rather than the carrier being refused authority to carry. However, by including this outbound class, we will engage carriers to inhibit the use of passports where the Passport Office has notified the applicant that their document should not be used for travel. Equally, there is a need for a replacement scheme following the end of the EU transition period and ahead of the end of the citizens’ rights grace period at the end of June.
The draft 2021 scheme brings into scope the subjects of travel bans made under the new UK sanctions regime established by the Sanctions and Anti-Money Laundering Act 2018. Subjects of United Nations and United Kingdom travel bans will be in scope of the 2021 scheme.
The proposed 2021 scheme removes the distinction that was apparent in the 2015 scheme between EEA and third-country nationals excluded or deported—or in the process of being excluded or deported—from the UK. This is important ahead of the end of the citizens’ rights grace period. The Government are absolutely committed to ensuring the continued safety and security of the UK border. This new authority to carry scheme is central to that effort. I beg to move.
Baroness Warsi (Con) [V]
My Lords, as my noble friend has said, these regulations bring into force the authority to carry scheme 2021, which replaces the authority to carry scheme 2015. I apologise in advance to my noble friend about where I want to take this debate today because it is both timely and necessary in relation to these regulations.
These regulations, which protect the United Kingdom and its citizens, ensure that those whom we do not believe are conducive to the public good are not allowed to enter. They create a mechanism underpinned by financial penalties to ensure the practical application of this protection. However, they also include our responsibility to ensure that we do not allow individuals from abroad who intend to cause harm to others and to us to leave these shores. These regulations stop people from being both carried here and carried from here—as well as, of course, providing the Secretary of State a mechanism to require carriers to remove people upon deportation.
The Explanatory Memorandum published by the Home Office alongside the regulations provides further policy background detail, some of which my noble friend has referred to, so my quotation does slightly duplicate. I quote the Government’s guidance:
“Preventing individuals from travelling to or from the UK”—
the latter is my emphasis—
“is an important part of the UK’s border security arrangements. The ability to intervene, pre-departure and prevent travel has meant that, under the 2015 Scheme, the Home Office has refused carriers authority to carry around 8,000 individuals”,
as my noble friend has referred to, and she has detailed the various categories of those. The quotation continues:
“It also included one member of a flight crew who had been previously deported. These are all individuals who would otherwise have travelled to the UK and would have been dealt with at the border, with the resulting financial and time implications associated with processing, detaining and removing that individual.”
The regulations detail that authority to carry from the UK may be refused in respect of various categories of persons, of which one is children whom the Secretary of State has reasonable cause to believe are intending to leave the United Kingdom for the purposes of involvement in terrorist-related activity.
I want to ask the Minister some questions on this “from” element, in relation to what I term our responsibility to prevent our citizens from causing harm by travelling overseas, including harm to themselves—these are children we are talking about. Noble Lords will be familiar with the case of Shamima Begum, the 15 year-old girl from east London who, along with her teenage school friends, travelled to Syria to become a bride to ISIS recruits. Her tragic story is of a young women groomed, abused and now left stateless in a refugee camp, having given birth to and lost two children, both British nationals, and, five years later, at the age of 20, attempting to return home.
We stripped her of her citizenship, despite her being born a British citizen and having only ever lived here. She was deemed by the then Secretary of State to be a Bangladeshi citizen—a country she does not know and has never taken citizenship of and which has said will not grant her citizenship. It has also said that, if she tried to enter that country, she would be subjected to being sentenced to death because of her association with ISIS.
As such, I will ask the following questions, and, if my noble friend cannot answer them today, I look forward to receiving a written reply. First, how many British citizens have been prevented from travelling overseas under the scheme to date? Secondly, how many children did we protect from becoming involved in terrorism by preventing them from travelling? Thirdly, carriers face a penalty for failing in their duty to protect if they carry someone to the UK under these regulations; what is the Government’s thinking when we fail in our duty to protect by allowing a person—someone who should have been protected and prevented from travelling under these regulations—to travel? Fourthly, what practical measures do the Government take to fulfil their responsibility to prevent individuals in the categories that they refer to in the regulations from travelling?
Finally, does my noble friend agree with me that we have a right to protect our country by revoking the citizenship of those who intend to cause us harm? That is absolutely a right that we have. However, does she also agree with me that that decision should be based on the harm intended, the crime committed or a crime that may be committed, not on the British national’s heritage?
Lord Dodds of Duncairn (DUP) [V]
My Lords, I am very grateful to the Minister for the clear way in which she has outlined the purpose and details of these regulations; I welcome what they are designed to achieve.
The new legislation will reflect the changes that have been brought about as a result of Brexit and some of the sanctions now available under the Sanctions and Anti-Money Laundering Act 2018. I certainly endorse the addition of the new classes of individuals who can now be made subject to a refusal of authority to carry. This is all very welcome and will help to safeguard the people of the United Kingdom, preventing unnecessary travel to and from the United Kingdom by people who should not be here—in the case of people who wish to travel to it and are not eligible for entry. Without it, there would be gaps and loopholes in the statute book, which would be impossible to justify.
Given that this is a UK-wide piece of legislation, covering Northern Ireland and, of course, Scotland, the same regulations and obligations will apply to carriers to and from Northern Ireland from abroad as apply in other parts of the United Kingdom. Today, I am interested in exploring with the Minister the application, implementation and enforcement of the duties and requirements under these regulations, given that Northern Ireland is the only part of the United Kingdom with a land border with another country and given that we have the common travel area, to which the Minister referred, covering the whole of the United Kingdom and the Irish Republic.
Since we have an open border with the Irish Republic for people under the common travel area arrangements, people travelling into the Irish Republic from abroad by seaport or airport can travel into Northern Ireland and cross over into the rest of the United Kingdom without necessarily having any further checks made upon them after their arrival in the Irish Republic.
The Minister referred to the application of the regulations to carriers to the UK by way of the common travel area. If the endpoint is the United Kingdom, someone may well decide to travel into the Irish Republic, stay for a period, and then come into the United Kingdom at a later point. I would be grateful if the Minister could outline how the provisions of the regulations apply in relation to carriers of individuals who are not eligible to be in the United Kingdom, and who may decide to use Dublin, or another Irish port of entry, as a means of accessing the United Kingdom in this fashion.
Do we have the same reporting and other obligations on carriers travelling into the Irish Republic in respect of people who are ineligible to travel to the UK? What is the level of co-operation and exchange of information and details between the Irish and UK border authorities? What obligations are the Irish border authorities under and how can we be sure that they are being properly and rigorously monitored? How is the system of enforcing fines implemented if people who are ineligible to enter the UK are carried into the Irish Republic and then come into the United Kingdom?
Clearly, this is a matter of considerable interest to people in Northern Ireland and is something that is worthy of reassurance to citizens, not just in Northern Ireland but in other parts of the United Kingdom. Given the common travel area arrangements, the systems to control the Irish border—its ports and airports—must be as robust in relation to incoming international travel as those for airports and seaports in the United Kingdom itself.
In welcoming the legislation before us, I seek the Minister’s reassurance that these necessary and important regulations are not in any way undermined or weakened as a result of the current arrangements within the common travel area. I fully support the common travel area arrangements in principle; they have worked to the advantage of both the United Kingdom and citizens of the Irish Republic, and, of course, they pre-date European Union membership. I just want to be assured that in these regulations we have covered all bases and that people cannot use the common travel area arrangements as some kind of back door, and that carriers cannot evade their responsibilities by using them or by means of not having the regulations properly enforced against them if these circumstances were to arise.
Lord Paddick (LD) [V]
My Lords, I thank the Minister for explaining these regulations. As other noble Lords have said, the 2015 scheme that they replace had a sunset clause, meaning that it would cease to have effect in April 2022, but these regulations have been introduced early because of the UK’s withdrawal from the European Union. That means that certain high-harm individuals who would have fallen outside the scope of the 2015 scheme can now be included in the 2021 scheme, including those who are subject to travel-related sanctions under the Sanctions and Anti-Money Laundering Act 2018.
I have a great deal of sympathy with the noble Baroness, Lady Warsi, and the questions that she asked about Shamima Begum. However, the Minister said, if I heard her correctly, that no one had been prevented from leaving the UK under the 2015 regulations, even though that is possible, and that police at the UK border would be used to prevent people departing in the circumstances that the noble Baroness, Lady Warsi, outlined. Although the noble Baroness asked very important questions, I am not sure that they are related to these regulations.
As far as the operation of the scheme is concerned, I have a few questions that I hope the Minister may be able to answer. If she cannot today, perhaps she could write to me. I understand that a visa may be cancelled or revoked, and that the carrier may not be aware this has happened, but an increasing number of travellers are able to visit the UK without a visa. The Government did not take the opportunity of leaving the European Union to require visas for entry into the UK from EU, EEA and Swiss nationals but instead extended visa-free entry using the e-passport gates to citizens of Australia, Canada, Japan, New Zealand, Singapore, South Korea and the United States of America. Rather than taking back control of our borders, this Government threw them open to citizens of seven new countries and kept them open for EU, EEA and Swiss nationals.
The Minister talked about the importance of the scheme and how people could be denied authority to travel, rather than being turned away at the UK border. But the question has to be: how can they be turned away at the UK border if they do not require a visa and can use the e-passport gates? As a result of all these additional people being able to enter the UK without a visa, the authority to carry scheme becomes even more important as checks carried out when someone applies for a visa, which could prevent those who should be prevented from entering the UK, have been ditched in relation to millions of potential visitors to the UK. Indeed, visa checks could reveal that someone previously unknown to the authorities should not be allowed to enter the UK—something the authority to carry scheme is unlikely to pick up.
The Minister talked about the carriers having to provide information on passengers and crew prior to departure. How long before departure do these details have to be provided, and therefore what timescale do UK officials have to respond to that information to prevent people boarding aircraft, for example? On the general question, why did the Government not take the opportunity of leaving the European Union to require more people visiting the UK to have visas, so increasing the security at the border, but instead threw the borders open to nationals from even more countries?
The authority to carry scheme applies only to carriers which have been required to submit details comprising passenger and crew information and, in some cases, according to the draft scheme, in respect of some routes only. Why not all carriers and routes? What are the chances of someone who wishes to enter the UK but should be prevented from doing so from entering it using carriers or routes where no requirement is made to submit such information or, as the noble Lord, Lord Dodds, has just said, evading the authority to carry scheme altogether by entering the UK through Ireland and the common travel area?
Carriers can provide passenger and crew information voluntarily and it is then treated as a request for authority to carry. What happens if the information is not volunteered and there is no opportunity to refuse such authority?
Persons in respect of whom authority to carry may be refused include individuals who are the subject of an exclusion order under the Immigration (European Economic Area) Regulations 2016. I refer again to the draft scheme. These regulations give effect to certain judgments of the Court of Justice of the European Union—CJEU—and address issues concerning the practical application of directive 2004/38/EC within the United Kingdom. Is the UK still bound by these EU directives and judgments of the CJEU?
Finally, to what extent has the existing authority to carry scheme relied on the Schengen Information System —SIS II—to identify those who should be barred from entering the UK? Specifically, of the 8,000 individuals the Home Office has refused carriers authority to carry, how many were refused entry on the basis of information provided by SIS II—a database that we no longer have access to?
Lord Kennedy of Southwark (Lab Co-op)
My Lords, I thank the Minister for her explanation of the purpose of these regulations. I put on record that the Labour Party gives the Government, the security agencies, the police and other law enforcement agencies our full support in their fight against terrorism and criminality in all its forms.
I welcome the measures that strengthen protections at UK borders as they help keep people safe. I noted in the Explanatory Memorandum that the Home Office has refused carriers the authority to carry 8,000 individuals seeking entry to the UK, including 3,000 individuals previously deported from the UK, 4,600 individuals using lost or stolen travel documents, and 180 individuals previously excluded from the UK.
Further, I welcome that these measures support and relieve the pressure on hard-working UK border officials and other operational partners. They save time and money, enhance our security, and stop those who would otherwise be prevented from entering at the border even attempting to make the trip.
I am fully aware of the context for why these measures were in place in the first place: as an additional measure to stop fighters travelling to and from Syria and Iraq. I fully support that aim.
I have a few questions that I hope the Minister will be able to answer. First, the Explanatory Memorandum does not make it clear when the updated guidance will be provided on the operation of the scheme and the penalties for non-compliance. Can the Minister tell the House when this guidance will be forthcoming?
Can the Minister confirm that the maximum penalty will be £50,000? How many carriers have been fined and what was the level of the fine imposed on them? Further, is there a mechanism for uprating the fine so that it keeps pace with inflation? Has the Home Office undertaken any assessment of the deterrent effect of a fine of up to £50,000? If not, is there a plan to do so? If no assessment has been undertaken and there are no plans for one, how do we know that this is the correct figure to provide that deterrent effect?
Can the Minister say a little bit about the carriers’ compliance with the scheme generally? What can the Government do to a carrier that is in persistent breach of its obligations under these regulations beyond imposing a monetary penalty?
The noble Baroness, Lady Warsi, made valid points about the regulations being here to prevent people leaving the UK, as well as people arriving into the UK. She raised the tragic case of Shamima Begum, and legitimate questions about how this matter can be resolved that need to be answered. The case raises important public policy matters that the Government have to resolve about our obligations to the wider international community.
The noble Lord, Lord Dodds of Duncairn, spoke about the risk of individuals who would otherwise not be eligible to travel to the UK seeking access through the Republic of Ireland. It would be good to hear about the measures in place that support the freedoms we enjoy in the common travel area. As the noble Lord said, we cannot have carriers evading their responsibilities under these regulations. To be clear: I fully support the common travel area. Other than my immediate family, all my family live in the Republic of Ireland, so I have made use of the common travel area from my youngest days. I have travelled backwards and forward there many times. I fully support it, but the noble Lord raised a valid point.
With those questions, I am happy to support the regulations before the House. I look forward to the Minister’s response.
Baroness Williams of Trafford (Con)
My Lords, I thank noble Lords who took part in the debate. As with the previous debate, some of the contributions had nothing to do with the SI, but that has never stopped noble Lords before.
My noble friend Lady Warsi asked, with reference to the Shamima Begum case, how many children we prevented from travelling overseas. We never refused authority to carry in respect of any children. The provision was put in place in response to Shamima Begum and her friends, but it has never been used. On what practical measures we take to stop children travelling, as I said, it has not been necessary to refuse any carrier authority to carry from the UK. Of course, ports police will intervene where adults or children of concern or at risk may seek to travel from the UK. In terms of wider practical support, there is the Prevent programme, which has, as its name suggests, prevented children from getting engaged in what might be terrorism down the line.
The noble Lord, Lord Dodds, asked about Ireland to GB. Where advance passenger information—API—is available ahead of travel, authority to carry can be refused from Ireland to GB. There is no reporter requirement under UK law for airlines operating flights to Ireland to provide that information to UK Border Force. Information about persons of concern to the UK and Ireland is shared between the respective border control authorities. The same is true with other countries, in response to the question asked by the noble Lord, Lord Paddick.
I will have to get back to the noble Lord, Lord Kennedy, on when guidance will be provided. He is right about the fine: it is £50,000. There have been 51 breaches of the 2015 scheme, with 18 penalties imposed on airlines for non-compliance, totalling just over £186,000. He asked about uprating. I do not know the answer to that question so will have to get back to him—I am not going to blag my way through that—but I add that airlines are very pleased about this, because it gives them clarity, which always helps. They have been looking for this for a very long time.
Regarding the treatment of EEA nationals, obviously we have amended the 2021 scheme to reflect the end of the transition period, and the distinct category will remain for individuals who have been excluded under the former immigration EEA regulations, but the new scheme also reflects that from January 2021, individuals, whether EEA or third-country nationals, may be deported from the UK under the Immigration Act 1971 and excluded by the Home Secretary exercising prerogative powers. Further to that, non-visa nationals who are excluded or who have been deported will be subject to refusals of authority to carry and should not arrive in the UK, but where they do, their details are available to Border Force officers and the e-gates.
The noble Lord, Lord Paddick, asked how long before departure. It would be 24 hours before departure. He asked whether these details will be provided as passengers check in. Yes, information is provided for all routes ordinarily, but it can be on a route-specific basis if a new route opens and the carrier has different abilities.
The authority to carry scheme has not relied on SIS II information and the updated scheme will be implemented 21 days from the sign-off of the SIs.
As for the figures on the number and scale of fines, I believe I have already addressed both the scale of the fine and the number of fines. The maximum penalty has been £25,000 and the average is around £10,000, and they are determined using the calculation published in the guidance for carriers. I have already said that carriers are very positive about this. They welcome the scheme and do not in any way seek to undermine it.
I think I have probably gone through all the points made by noble Lords. Where I have not, it is because I do not have an answer and I will get back to noble Lords in due course.
The Deputy Speaker (Lord Duncan of Springbank) (Con)
My Lords, the hybrid Sitting of the House will now resume. I ask Members to respect social distancing. The time allowed for the following debate is one and a half hours.