Immigration Bill (Tenth sitting)

Debate between Sarah Champion and Robert Buckland

Tuesday 3rd November 2015 Public Bill Committees

[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.

[Sarah Champion]

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?

[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.

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[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.

[Sarah Champion]

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.

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[The Solicitor General]

I beg to move amendment 95, in clause 22, page 27, line 36, after “If” insert “the immigration officer has reasonable grounds for believing that”

This amendment clarifies that where an immigration officer is not absolutely certain that an item which has been seized under clause 21 is also evidence of an immigration offence, the immigration officer still has discretion to retain it rather than being under a duty to pass it to another investigating authority.

Amendment 95 is a minor and technical amendment that clarifies that where an immigration officer is not absolutely certain that an item that he or she has seized under the power in clause 21 is also evidence of an immigration offence, they still retain a discretion to hold or retain it, rather than being under a duty to pass it to another investigating authority. This addresses the very fine line between some offences, where it may not be clear at the outset whether they are immigration offences or not. For example, immigration officers investigating facilitation of an illegal entry in breach of immigration law may encounter forged, counterfeit or improperly obtained passports but may not necessarily know without further investigation whether they are being used by the facilitator or are unconnected with this offence.

[Sarah Champion]

On a point of clarification, how long can an item be held? For example, if a student has their laptop taken, that will have a direct impact on them. Is there any form of compensation or support around that?

[The Solicitor General]

I am grateful to the hon. Lady. I am checking the subsection, but I do not think there is a specific timeframe. I will come back to her, if I may, once I have outlined the position regarding clause 22.

Amendment 95 agreed to.

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

[The Solicitor General]

The clause provides a duty for immigration officers to notify the relevant investigating authorities, normally the police or National Crime Agency, where they have seized anything under clause 21.

It also applies where immigration officers, working in criminal investigation teams, have seized anything using their powers in relation to specified crimes that are commonly encountered in the course of exercising a function under the Immigration Acts, such as bigamy, forgery and human trafficking.

It sets out the arrangements for: notifying the relevant authority of the items seized; whether or not the authority will accept the items; handing them over; or returning them if, for example, the relevant authority does not believe them to be evidence of an offence.

In response to the concerns of the hon. Member for Rotherham about length, as I thought, there is no specific timeframe. However, there is an expectation that the immigration authorities will act reasonably. There are obviously practical concerns about retention of items such as laptops by the authorities. I am sure that they would view it as being in their very strong interest either to return the item, if it discloses the commission of no offence, or to pass it on to the relevant authority, if it were connected with the commission of a criminal offence. Therefore, there is a strong utility argument that would prompt the immigration authorities to act more promptly rather than hold on to items in the way that she fears.

[Sarah Champion]

I should be grateful if the Solicitor General would issue a statement on that in the guidance notes. I know from the experience of my constituents who have had mobile phones taken that they just seem to disappear, and that seems almost as a punishment or intimidation rather than for a productive reason.

[The Solicitor General]

I am happy to reassure the hon. Lady in this way. The arrangements in clause 21 mirror the Police and Criminal Evidence Act 1984 arrangements, and that should reassure her at the very least that there is a framework. I accept that within that there will be occasions when individuals do end up waiting an inordinate time for items.

Of course, there are powers in relation to a criminal investigation under the Police (Property) Act 1897. Although I cannot give an undertaking, the points that the hon. Lady has put on the record are noted but I am satisfied that we have a framework mirroring PACE that acts as an exhortation to the authorities to act in a reasonable and prompt way. I am grateful to her for raising that point.

Question put and agreed to.

Clause 22, as amended, accordingly ordered to stand part of the Bill.

Clause 23

Retention of things seized under Part 3 of the Immigration Act 1971

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

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[Sarah Champion]

It is incredibly reassuring to hear that, but will the Solicitor General put it in the Bill?

[The Solicitor General]

My understanding of what I prefer to call “full searches”—full non-intimate searches is probably the correct term—is that they are never done to a male by a female or to a female by a male. That has been the case for a considerable period, and probably ever since PACE. I might be wrong, but that is certainly my understanding from years of using the code of practice in my work as a criminal practitioner, prior to my entry into the House.

I want to deal with the question of what precisely we mean here. My hon. Friend the Member for North Dorset adumbrated the point that this is not about an intimate search. This is not a search of body orifices—for example, the mouth. It is what we would describe as a non-intimate search. More importantly, it is not the rather horrific image that might be created in our minds of someone completely unclothed being searched. That is not what happens. The individual must not at any stage be completely naked, so searches have to, in effect, take place with regard to each item of clothing in turn. Of course, that involves looking between the clothing and the skin, because experience sadly teaches us that important documents can often be concealed there, but at no time is the individual humiliated to the extent that they are left without any clothes on at all.

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[The Solicitor General]

We are going to provide additional guidance on the power to search under clause 24. That is for those who are directing the search on behalf of the Secretary of State and those who are conducting the search. Detainee custody officers, prison officers and prisoner custody officers are trained in the use of search powers, which includes strip searches. Detention services order 9/2012 provides instructions to detainee custody officers, and prison service instructions 67/2011 and 16/2014 provide instructions for searching persons in prisons and young offenders institutions respectively. We will build on those and ensure that the new provisions contain clear guidance.

The hon. Member for Rotherham made a point about the wording, “in the presence of”. We would say that the words are clear: it obviously means the person conducting the search as well. I hope that the explanation that I give as the Minister presenting the clause will be sufficient clarification to allay her fears on that point.

[Sarah Champion]

I thank the Minister for that clarification, and now that he has specifically put that on record, I am comfortable with that. I know that the Minister is always honourable in his intentions. Could I ask him to answer my point about youth offenders? At what age does he think it acceptable for young people and children to go through this search?

[The Solicitor General]

I was coming on to that very point. The power to search children in this way will only be used in exceptional circumstances. Let me explain the background. The Government’s policy is not to detain children in immigration and removal centres, so as part of the family removal process where children are held in a short-term holding facility a few days prior to removal, we believe that this search power will not be necessary because we will have the travel documents in place already.

Regarding young offender institutions, children under the age of 18 are exempt from the automatic deportation provisions for foreign national criminals, so one ground is already removed. Let me give me an example of exceptional circumstances. A 17-year-old male might be held in a young offender institution following a conviction of rape. He is facing deportation on conducive grounds because of this sentence and gang affiliations. If the Secretary of State has reasonable grounds to believe that he may have nationality documents in his possession, then it may be necessary for officers to conduct a full search in the way that we have described. I hope that gives the hon. Lady reassurance that we really are talking about exceptional circumstances, such as an older male who has perhaps been convicted of a very serious offence, where there is a clear public interest in making sure that all reasonable steps are taken before removal from the UK.

Immigration Bill (Ninth sitting)

Debate between Sarah Champion and Robert Buckland

Tuesday 3rd November 2015 Public Bill Committees

[The Solicitor General]

Yes, that is right.

[Sarah Champion]

I understand the principles and the motivation behind the provisions, but I have some concerns about clauses 16 and 17. As with the right to rent provisions, they will undoubtedly have an impact on legal migrants, British citizens who cannot easily prove their immigration status and ethnic minorities. The measures could lead to an increase in the racial profiling of drivers. The powers are worrying in that they are, in fact, stop-and-search powers. If they are exercised by immigration officers those officers need to be regulated in the same way as police officers are, with checks and balances to prevent abuse of power. Can the Solicitor General spell out how the rights of individuals will be protected, and what redress they will have for wrongful or repeated searches and arrests?

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[Sarah Champion]

As I said earlier, we do not have a problem with clauses 16 and 17. The two amendments are designed to protect innocents. If the Minister is able to confirm that protection is in place, either in guidance or in the Bill, we would like to hear it.

[The Solicitor General]

Let me deal first with the question raised by the hon. and learned Gentleman about the evidence. There is a loophole involving people who are unlawfully here—illegal migrants—who are driving with foreign-issued licences. The offence will cover all aspects of driving by migrants who are in the United Kingdom unlawfully.

Every year, about 10,000 queries are referred to the Home Office by the police relating to either road-side stops or vehicle stops. We do not have precise numbers on cases where an illegal migrant was found to be driving a vehicle, but of the one fifth of cases related to vehicle stops, about 10% relate to drivers who are in the UK legally. I am talking about a loophole here. I think it is right that we try to close that when it comes to covering all incidents in which the authorities through other intelligence and other reasons to stop vehicles come into contact with people who are here unlawfully. The provision is another important tool to deal with a matter of public concern.

I recognise the reasons behind amendment 75, but in my view it is very broad and very subjective. It will create scenarios, for example, in which a defendant might claim they had reason to believe they were in the UK legally, simply because they had misunderstood the date on which their leave expired. It would be difficult to prove otherwise and then the purpose of the offence is undermined.

Let me deal with offences of strict liability in the context of driving. This concept is not new. For example, the offence of driving while disqualified under section 103 of the Road Traffic Act 1988, as amended, is an offence of strict liability, so this is not a new departure, although the defence would be a new departure when it comes to driving offences of this nature.

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[Sarah Champion]

I was on the Select Committee for Transport and went out with the DVLA when it was doing some of its stops with police officers. I apologise for raising this question in this debate, but I did not know where else to raise it. I was shocked when the Minister said that 10,000 inquiries were made to the police last year. I know that the DVLA has vast concerns that it does not have the resources to investigate people driving illegal vehicles rather than illegal driving. How will the police, immigration and the DVLA work together? Also, has he considered the resources, which will be considerable if there are already 10,000 inquiries? Acting on those and investigating will be pretty resource-intensive. Can he comment on that?

[The Solicitor General]

I will certainly endeavour to answer the hon. Lady’s queries, but I will deal first with the substance of the amendment. I understand fully the intention behind it, but I view it as unworkable for two reasons. First, the regulations will set out the circumstances in which a vehicle may be released from detention and make provision for how vehicles should be disposed of where conditions governing the release of a vehicle are not met. Without laying regulations, therefore, we will not have the necessary legal powers to conduct a fully functioning pilot. I hope that the hon. and learned Member for Holborn and St Pancras can accept that.

Secondly, there is a point of principle here that I am sure he will understand straight away. A pilot would require a criminal offence to be enforced in certain parts of the United Kingdom and not in others. Such a piecemeal approach is clearly not desirable from a practical point of view given, for example, that vehicles can be driven across a number of regions. I do not know about you, Mr Owen, but the thought of car chases in 1980s American films is coming to my mind, where people cross a state boundary and offences that might have been committed in one state are not enforceable in another.

[The Solicitor General]

I am sure that the hon. and learned Member for Holborn and St Pancras would not wish us to go down that particular path—it is axiomatic, but it needs to be said. A pilot could therefore create confusion for migrants and complicate matters for the police when enforcing the offence.

As I have said, the chief superintendent, David Snelling, indicated to the Public Bill Committee in his evidence how the offence could work in practice. He explained that the police would first have cause to stop a vehicle and would then, as appropriate, ascertain the circumstances of the driver. If it is found that the driver is here illegally, the detention provisions can apply. The police are well versed in general processes relating to detaining, releasing and disposing of vehicles, so there are no new processes in the clause that might justify a pilot.

I will attempt to deal with the concerns of the hon. Member for Rotherham. The statistics that I mentioned concerned referrals to the Home Office. There is already a high degree of joint working and information sharing, which is proving an effective means for targeting and appropriately identifying people who are here unlawfully. On resources, for example training, the Home Office has been working with the police on developing the proposals and will continue to examine the potential need for further training with police colleagues. However, as I have said, these are not new types of power, so there is no absolutely overwhelming need for a complete start again on training.

I am assured that immigration resources are already in place and, as I said, this is not about a sudden general expansion in our expectation of how the police are going to behave. This is not an encouragement to the police to start randomly stopping people, which would of course have a huge impact on resources. Intelligence-led policing is not only intelligent, it is efficient. For those reasons, I hope that I have answered the genuine concerns that the hon. Lady raised.

[Sarah Champion]

With respect to the Minister, I am not concerned about resources for training; I am concerned about resources to have the police officers who can go out, stop or go into premises. In the Home Office cases that I get, a lot of the delays in deportation are caused by a lack of staff to carry out the work. Can the Minister reassure us that if we agree to this legislation, the police have the resources to act on it?

[The Solicitor General]

Yes, I can. Perhaps I have not clearly outlined that we do not expect police officers to take on a whole new swathe of different inquiries, independent of already existing intelligence and information; rather, this provision is a bolt-on. It allows police officers to follow another reasonable line of inquiry as a result of the intelligence they have already obtained. The scenario that the hon. Lady is concerned about is not one that is going to come to fruition. This is about putting another tool in the box, rather than an expectation that there are suddenly going to be new independent operations as a result of these new powers. I hope that gives the hon. Lady some reassurance.