Illegal Migration Bill

Debate between Baroness Ludford and Lord German

Committee stage
Wednesday 14th June 2023 Lords Chamber

[Baroness Ludford (LD)]

My Lords, I am, of course, hugely disappointed that some of our colleagues do not want to listen to a fascinating debate on Clause 60 of the Illegal Migration Bill, just as some of those who stayed until 4 am the other morning did not want to participate in the debates on the Bill. However, I am delighted that the noble Earl, Lord Russell, is joining our ranks. It is wonderful to have an Earl Russell back. Those who remember Conrad Russell will know what a formidable Member of this House he was, and I am sure that his son will do justice to his memory.

I am talking against Clause 60 standing part. This clause was added by the Government on Report in the Commons, so it was not discussed by MPs. It would amend a section of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 that is about factors that damage the credibility of an asylum applicant.

The point of Clause 60 is to expand the circumstances in which credibility would be damaged—where a claimant fails to produce or destroys an identity document or, indeed, where they refuse to disclose information such as a passcode that would enable access to information stored electronically, such as on a mobile phone. It is rather odd that we should be debating this poor, lonely little clause on its own. Indeed, there was perhaps a good argument that it should have been grouped with Clause 14, which my noble friend Lord German, on whichever day it was—

[Lord German (LD)]

On a variety of days.

[Baroness Ludford (LD)]

Yes, when it was proposed that Clause 14 should not stand part of the Bill. My noble friend debated issues about the powers of the Government to extract information concealed behind PIN numbers on phones. If memory serves, Clause 14 was particularly in relation to people who are detained, while Clause 60 oddly stands on its own—apart from Clause 14. But they need to be looked at holistically, to try to get some assessment as to what new powers the Government want. Are we in danger of getting spillover to sectors other than asylum?

The failure to provide information, an identity document or a PIN number would be added as a type of behaviour considered damaging to a claimant’s credibility. It is not restricted to people who are caught by Clause 2; the intended effect seems to be directed more at people seeking asylum who arrive on a direct flight from the country in which they face persecution. In a sense, it does not have much to do with this Bill, which is another reason why it sets off a bit of an alarm bell. The problem is that making a direct journey from a country in which the person is at risk of persecution, perhaps where the persecutor is the state or an agent of the state, may require the person not to travel with documentation that would identify them if they presented that documentation or were searched as they passed through an airport. That would concern an identity document—so there are some issues around penalising a person because they have not produced such a document, and I would be grateful if the Minister could respond on that issue.

On the other arm of it, with regard to insisting on the person delivering the passcode or PIN for their phone, I am wondering how widely that is expected to apply and how it relates to Clause 14 on getting access to PIN numbers and, indeed, to handing over mobile phones. My noble friend Lady Hamwee raised the problem that that would mean asylum applicants not having access to their contacts. In the scenario that this Bill covers, that means that people could not phone their family to say, “I’m safe—I haven’t drowned in the channel”. So that is one aspect that arises. The other aspect is that of access and forcing someone to give up the PIN on their phone. When the Minister replied to the debate on Clause 14 and Schedule 2, he said that that the information on the phone

“can … assist in determining a person’s immigration status or right to be in the UK … We all know that mobile telephones contain a wealth of data relating not just to the owner of the phone but to where that phone has been and who they have been with—all of which can be used to build up an intelligence picture which can facilitate criminal prosecutions”.—[Official Report, 7/6/2023; col. 1542.]

We are all in favour of facilitating prosecutions. That is one of the reasons why we have been so dismayed by the provisions on victims of modern slavery and trafficking. Another reason is that there is nothing in the Bill to enhance the prosecution of smugglers and traffickers. Suddenly the Minister came out with this route which is supposed to facilitate criminal prosecutions. My noble friend Lord German referred to a High Court case which said that what the Government had been doing was illegal and that they were wrong to extract information concealed behind PINs on phones. The Minister said that the powers that have been put into the Bill in Clause 14 are fresh powers to respond to the High Court judgment, so this is a new suite of powers.

What we have got is in two different clauses. We have new powers, and the common theme across them is access to people’s mobile phones and other electronic devices by forcing them to give up PINs. I am wondering what the scope of this is, beyond people detained or caught by Clause 2, because Clause 60 appears to apply to anybody who is outwith the scope of the Bill. What are the boundaries of the powers that the Government are granting themselves to access people’s mobile phones? I cannot claim to be an expert on this issue, but I know there has been a lot of commentary and activity on the question of victims’ mobile phones in sexual abuse cases. Will the Minister clarify exactly what the purpose of Clauses 14 and 60 is? Why was Clause 60 brought in to stand on its own rather than Clause 14 being amended? What is the composite picture that the Government are painting? How are their powers going to be constrained? Are the rest of us going to find that one day all these powers apply to us as well? I am raising this point as a clause stand part debate because Clause 60 seems to raise some rather troubling questions about the powers that the Government want to give themselves to access mobile phones.