Immigration (Collection, Use and Retention of Biometric Information and Related Amendments) Regulations 2021

Baroness Williams of Trafford Excerpts

Monday 7th June 2021 Grand Committee

Moved by

[Baroness Williams of Trafford]

That the Grand Committee do consider the Immigration (Collection, Use and Retention of Biometric Information and Related Amendments) Regulations 2021.

Relevant document: 1st Report from the Secondary Legislation Scrutiny Committee

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, the legislation that we are debating concerns two linked elements of our immigration system: the use of biometrics and the fees regime. I shall take each of them in turn.

The use of biometric information enables us to check and confirm the identities and immigration status of foreign nationals who come to or live in the UK. The Government are pursuing an ambitious programme of change to enable the UK to take back control of its borders and deliver a fair and firm immigration system that is much easier for customers to navigate and that works in the national interest.

Through the biometric regulations we will update our powers so that fingerprints can be enrolled once and retained for subsequent reuse, saving applicants the inconvenience of needing to re-enrol every time they make a new application to come to or stay in the UK, or to replace immigration documents. The regulations also provide us with the ability to restart the fingerprint retention period when biometrics are reused for an immigration application to avoid deleting them prematurely.

The regulations will support the move from physical to digital evidence of immigration status. We live in a digital age in which businesses and customers expect a swift, user-friendly service. With that in mind, we are developing a biometrically-enabled digital immigration system, underpinned by security and efficiency, which will provide real-time evidence of immigration status online. The regulations also clarify our powers to use and retain biometric information obtained from asylum seekers and foreign nationals who are unlawfully in the UK and who require leave but do not have it or who lack adequate documentation.

The fees order sets out the services that we charge for and the maximum amounts that we are able to charge for immigration and nationality products and services. I want to be clear from the outset that no fee levels will be changed through the order. Clearly, fee levels are amended through immigration and nationality fees regulations, which are laid before Parliament separately and subject to the negative procedure.

The changes in the fees order ensure that definitions within the legislation are flexible enough to enable us to evolve our products and services to meet the demands of our customers. The order will amend the definition of “transfer of conditions” to ensure that it covers the need to update digital services as well as changes to physical documents. The change to the definition of “premium services” will provide the department with greater flexibility to offer a wider range of optional premium services that relate to immigration or nationality where there is a demand to do so. These changes do not introduce any new services at this point or impact on standard services. The order also ensures that the related provisions in the Immigration and Nationality (Fees) Regulations 2018 are updated to reflect those definitions.

In reusing biometric information, the department continues to incur processing costs that need to be met. The fees order will therefore clarify and give assurance that the power to charge for biometric enrolment also includes the power to charge for biometric reuse.

I know that these are both quite technical areas, but I hope I have been able to explain how this legislation will help facilitate our ambitious journey towards a biometrically-enabled digital immigration system and ensure that the fees we charge for border, immigration and nationality services are supported by the right framework. With that, I beg to move.

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[Baroness Williams of Trafford (Con)]

I thank both noble Lords for the points that they made. On the point made by the noble Lord, Lord Paddick, I usually find that lack of Front-Bench participation means lack of controversy as opposed to lack of understanding. In fact, quite often a lack of understanding leads to a big showing at some of these SI debates.

I start with the final point made by the noble Lord, Lord Ponsonby, about the post offices. Clearly, being digital by default should make the whole system more seamless. However, I have previously engaged with Southall Black Sisters and am very happy to take those points back and look into them again.

On the first point from the noble Lords, Lord Paddick and Lord Ponsonby, on the reasons for biometrics and face recognition versus fingerprints, they are both right in that the instrument will allow us to reuse the fingerprints that we already hold, whether the person makes an immigration or citizenship application. It will also allow us to reuse facial photographs, although in most cases we will require a new photograph, which most applicants will be able to provide remotely using the UK ID check app.

That goes back to the previous point that I made to the noble Lord, Lord Ponsonby. Faces change, clearly, and the image needs to resemble the individual. We will deliver biometric reuse in phases, starting with applicants who apply for leave under the graduate route scheme, allowing them to use their biometric residence permit as proof of ID and use the app. They will upload a new facial image over the app, which will be displayed in the UKVI account and will enable them to use the online services to view and prove their immigration status. However, we will use the fingerprint data that they provided from their previous application; the regulations enable us to reuse the previously enrolled fingerprints for a new application and allow for the fingerprint retention period to be restarted as if they fingerprints had been freshly enrolled.

One of the noble Lords asked about destruction of images that are no longer in use—I think it was the noble Lord, Lord Paddick. My understanding is that they would be destroyed if not used. If that is any different, I shall confirm it in writing, but it is my understanding that they are destroyed.

We are extending the retention period to 15 years because we sought to strike the right balance between public safety, customer convenience and individual privacy rights. It will reduce the likelihood that a person’s fingerprints will have been deleted before they make a further application, thereby avoiding the inconvenience and cost associated with providing a new set of fingerprints while maintaining the principle that we will retain fingerprints only for as long as necessary.

In addition to customer convenience, the public safety aspect is of course a key priority, particularly our ability to identify foreign nationals who overstay their immigration permission and abscond. We have encountered individuals who have been in the country for more than 10 years and were identified as immigration offenders or found to have committed serious criminal offences, which would have triggered a longer fingerprint retention period, shortly before their fingerprints were due to be deleted. We do not want to delete the fingerprints of such individuals earlier then we need to, because it makes it harder to identify them and remove them from the UK.

On the point made by the noble Lord, Lord Paddick, about EU settled status applications, if your application is pending your rights will be protected. In any event, no action will be taken until post 1 July. After that, you will have 28 days in which to either start an application or have it concluded.

There have been many debates over the past couple of years on the transition from physical documents to evidence of immigration status in a digital format. The Government have made it absolutely clear that we will be digital by default and will move away from physical documents as evidence of immigration status to all migrants having access to online services to view and prove their immigration status. To answer a point made I think by the noble Lord, Lord Ponsonby, the UKVI account can be accessed and updated more easily than a physical document, which, of course, has to be reissued. We started the process of providing access to the online “view and prove” services instead of a physical document as evidence of status for those granted leave under the EU settlement scheme. Those who are able to use the UK Immigration: ID Check app include those applying under most of the new points-based system routes and, of course, on the Hong Kong BNO route.

Replacing the physical immigration documents with access to online services to view and prove immigration status for all migrants at the same time would not be practical. Instead, we intend to phase out physical documents incrementally. That is why the regulations change the definition of a biometric immigration document to give us greater flexibility to issue documents in a range of formats, whether the biometric residence permit, a vignette in a person’s passport, or a digital product. The fees order will also amend the definition of “transfer of conditions” to ensure that it covers updates to online services as well as physical documents.

I should explain why we have included provisions relating to the taking of photographs under the Immigration and Asylum Act 1999. At the time of that Act, we did not consider photographs to be biometric information. Of course, technology has moved on and it is right that these regulations clarify the position to make it clear that photographs can be taken, used and retained in the same way as fingerprints are taken under the 1999 Act. This will ensure that photographs taken for these purposes will be treated in the same way as photographs provided for an immigration or citizenship application.

The noble Lord, Lord Paddick, asked about premium services. The order is not creating any new services or amending the fee that can be charged for any premium services. It will allow the Home Office to identify opportunities to further enhance the customer experience with the introduction of new, optional—that is the operative word—premium services. These services are not in connection with an application; they are provided over and above any standard or basic service in connection with immigration or nationality. The order will allow the premium services to be offered in connection with immigration and nationality more broadly, not just immigration and nationality services.

On the fees, it is government policy that those who use and benefit most from the immigration system should contribute towards the cost of operating the system, reducing the burden on the UK taxpayer. We think that our fee levels allow us to continue to attract the brightest and best to the UK, while enabling the Home Office to work towards a self-financing migration, border and citizenship service. We do not make a profit from applications where the fee is higher than the estimated unit cost, because all income generated above the estimated unit cost is used to fund wider migration, border and citizenship services, reducing the cost to the taxpayer.

I think I have answered all questions. The noble Lord, Lord Ponsonby, and I are staring straight at each other, and so he can say if he has any other points.

Motion agreed.