British Nationality (General) (Amendment) Regulations 2015

Baroness Smith of Basildon Excerpts

Tuesday 10th February 2015 Grand Committee

[Baroness Williams of Trafford (Con)]

My Lords, these statutory instruments expand the cohort of immigration and nationality applicants from whom we will collect biometric information, while at the same time providing clear and consistent safeguards on the use and retention of these data. The changes in these instruments respond to consultation and engagement with the public. In particular, the instruments will enable the Home Office to complete the rollout of biometric residence permits, which is a type of biometric immigration document, to foreign nationals coming from overseas to stay in the UK for more than six months. The instruments also implement other biometric provisions of the Immigration Act 2014 and are a significant development to help us to combat illegal immigration and abuse of the immigration and nationality system through identity fraud.

By taking the fingerprints and facial images of foreign nationals, we are able to make checks against immigration and police databases before permitting them to enter or remain in the UK or granting them British citizenship. The use of biometric information as part of the immigration and nationality application process leads to better decisions as we are easily able to confirm and fix a person’s identity details and spot those trying to conceal an adverse criminal or immigration history.

The increased use of secure biometric documents allows us to link foreign nationals, using their biometric features, to the document that we issue as evidence of his or her right to be here. We intend biometric immigration documents to become the primary means for foreign nationals living in the UK to evidence a right to work or prove that they can access public benefits. We are committed to helping employers, public authorities and others who are required to undertake immigration status checks by simplifying and upgrading the documents issued to foreign nationals. Secure biometric documents lend themselves to simpler, reliable and faster checks of immigration status and make it easier to confirm whether a person has the right to work in the UK.

In addition to extending the rollout of biometric immigration documents to foreign nationals coming from overseas, these instruments require new categories of people to provide biometric information when making immigration or nationality applications or when applying for a document to evidence leave or an entitlement to reside in the UK under EU law. These categories include people registering or naturalising as British citizens; non-EEA nationals applying for documentary evidence of an entitlement to enter or remain in the UK by virtue of EU law; foreign nationals required to apply for a direct airside transit visa in order to transit through a UK port without entering the UK; foreign nationals, subject to immigration control, applying from overseas for permission to live in the UK for more than six months; and foreign nationals extending their leave in the UK for a cumulative period of less than six months.

In addition to introducing new categories of people required to enrol their biometrics, these instruments will start to align the powers to retain and use biometric information so that there is a consistent approach whenever a foreign national is required to provide their biometric information for immigration or nationality purposes. These instruments are intended to be commenced in phases starting from mid-March 2015.

Looking at the changes in a bit more depth, I turn first to the rollout of biometric immigration documents to successful overseas applicants for permission to live in the UK for periods exceeding six months. This rollout will be incremental, starting in Pakistan, once these instruments have been approved, and finishing with worldwide coverage this summer. Successful overseas applicants will be issued with a short-validity vignette in their passport to enable them to travel to the UK to collect their biometric immigration document from one of the many specified post offices available across the UK. We are working with employers and the education sector to ensure that they understand the new arrangements and the impact on their businesses to ensure a smooth and efficient implementation.

These instruments also introduce a new type of biometric immigration document, which will be known as a short-stay permit. These will be issued to a small number of foreign nationals whose leave is extended in the UK to a total period of six months or less. These cards will have the same secure features as the biometric residence permit.

I turn to the various changes in these instruments to implement the biometrics provisions in the Immigration Act 2014. One of the changes is that persons registering or naturalising as British citizens will now be required to provide their biometric information as part of their application for citizenship. This is intended to improve our levels of assurance about the identity of those seeking to become British citizens and help tackle fraudulent applications. In addition, the Immigration Act implementation changes in these instruments will also require non-EEA nationals with enforceable EU law rights, such as family members of EEA nationals, to enrol their biometrics when applying for documentation which evidences their right to reside here. At present, these individuals are usually issued with passport vignettes. Following these changes, they will instead be issued with biometric cards, similar in format to the biometric residence permits issued to other non-EEA nationals. These changes will facilitate the exercise of these individuals’ free movement rights while making it harder for those abusing rights to work and live illegally in the UK.

These instruments also require applicants for direct airside transit visas, issued to some foreign nationals who pass through the UK for onward travel without entering, to provide their biometric information. Such information is important when identifying the person at the border should they subsequently seek to enter the UK. A key aim of the biometric provisions in the Immigration Act 2014, which is implemented by these instruments, is to align the powers to use and retain biometric information provided for immigration and nationality purposes.

Under these new provisions we will continue to retain biometric information while there is an immigration or nationality purpose to do so. Where there are immigration and nationality reasons for the retention of fingerprints, they will normally be held for a maximum of 10 years, reflecting some existing policy and legislative arrangements. However, there are some exceptions where they will be retained for longer periods. For example, when a foreign national is permanently settled in the UK we will retain their fingerprints for anti-fraud purposes. More crucially, when we consider a foreign national to pose a serious risk of harm to the UK, such as those subject to deportation orders, we will retain their fingerprints beyond 10 years so that we can identify them should they attempt to return to the UK.

We remain satisfied that the biometric immigration document scheme and the other changes these instruments implement comply with UK legislation on human rights and discrimination and that they assist not only those authorities attempting to prevent immigration fraud but protect and assist legitimate migrants by providing convenient and easily verified evidence of their immigration status.

Finally, the order makes an unrelated change to ensure that leave granted to partners and children of members of HM Forces does not lapse after two years where they are accompanying their spouse on an overseas posting.

That is what these instruments seek to achieve and I hope that noble Lords will support them. I beg to move.

[Baroness Smith of Basildon (Lab)]

My Lords, I am grateful to the noble Baroness for her explanation of the five statutory instruments that we are debating together. These instruments are relatively straightforward, and we normally support the use of biometric data. As the noble Baroness said, its use can help reduce fraud. It is also in the interests of the citizen, particularly foreign-born citizens who need to prove their eligibility and status. It also protects the state. However, I also have a number of questions that I have picked up from the orders, the Explanatory Notes and from what the Minister was saying.

The Explanatory Memorandum for the British Nationality (General) (Amendment) Regulations and the Immigration (Provision of Physical Data) (Amendment) Regulations says that the regulations,

“expand the range of immigration and nationality applications for which the applicant can be required to provide biometric information”.

Is this part of a process? Is it being expanded at this point, and will further amendments come forward, or is this to ensure that we have the processes in place that we now need? Is the noble Baroness expecting a further order in that regard?

I was also curious about this; I ask out of personal interest for a friend. Paragraph 7.4 of the Explanatory Memorandum says that,

“those physically unable to provide fingerprints will only have to enrol a facial image”.

A friend of mine who had very clear fingerprints at the age of 18 now finds at the age of 70 that she and her sister are losing their fingerprints. Trying to gain access to America on a holiday proved somewhat difficult; she was whisked away for further examinations. Does that mean that a lower level of proof of identity is required, or is there some other way to have additional checks, as well as a facial image?

Both Explanatory Memorandums for all the regulations say, under consultations, that there have been,

“discussions with the Information Commissioner’s Office and the Biometrics Commissioner”,

although there have been no full public consultations. The memorandums say:

“These Regulations reflect those discussions”.

Does that mean that the commissioners recommended any changes? As the noble Baroness will be aware, we had these regulations in our diary some weeks ago. They were suddenly pulled because there were mistakes and things that had to be corrected. They have now been brought back. It would be helpful to know the reason for that and whether any of that was because of changes suggested by the Information Commissioner or the Biometrics Commissioner.

The Explanatory Memorandum for the British Nationality (General) (Amendment) Regulations and the Immigration (Provision of Physical Data) (Amendment) Regulations says:

“The majority of the responses were favourable although some respondents were concerned about potential equality and discrimination issues”.

Have the Government addressed those issues? There were 60 responses; can the Minister tell me how many of those raised concerns about this? If it was one or two, I hope that those issues could be addressed relatively easily. If they are a significant number and those issues have not been addressed, that would give cause for concern.

My final point on these two regulations—I know we are discussing them as a whole, but I have some points on the others as well—is that both Explanatory Memorandums say:

“The Home Office will monitor the impact of these Regulations against its delivery targets and the impact of the policy”.

The memorandum to these two regulations says:

“This will be achieved through discussions with internal and external partners”.

That does not seem a very systematic way of reviewing anything. Is it because there is a heading and template that says “monitoring and review”, and the Government think, “Gosh, what are we going to put under this heading? We have to say something about review. We’ll say we’re going to discuss it”? Who are the internal and external partners? How will the discussions be conducted? What feedback will there be? How will they be monitored? This seems very woolly. I wonder whether that paragraph was put in without any great thought as to what is happening. Can the Minister give me some further information on that?

I have a couple of other points. The Explanatory Memorandum states that if someone,

“does not collect their biometric immigration document within the period specified … they will face a warning and then possible sanction under the Code of Practice”.

I apologise if I missed this, as I was not always able to go back to the original legislation that these regulations amend. Someone could have a problem or might foresee a delay in obtaining their document: they could be ill; they could have had to deal with a sick relative; they may have a temporary document here but suddenly have to return to their country of origin for some reason. There could be a whole host of reasons why somebody could not immediately collect it. Is there any process by which they can come to an arrangement with the Home Office to say, “There isn’t a problem, I want to collect it, but for these reasons I can’t”? There does not seem to be anything in the regulations to allow for that kind of discussion or appeal. There may be times when there is not a good reason, but I can think of circumstances where there could be a good reason for not being able to collect in the time given. The memorandum just says,

“the period specified in the written decision”.

How long will that be? Will it vary according to a decision? It will be helpful to know how that time would be arrived at.

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[Baroness Williams of Trafford]

I thank the noble Baroness for her questions. I will attempt to answer some of them and will follow up the rest in writing. She made a very good point about people who are unable to provide additional evidence such as fingerprints simply because their fingerprints had faded. Every applicant will need to provide a facial image but children aged under five and those physically unable to provide fingerprints will not be required to do so. As regards what the additional proof will be, based on my knowledge, that will suffice for a child under five and for somebody unable to provide—

[Baroness Smith of Basildon]

I hoped that the relevant note would provide further clarification but all the noble Baroness has done is to read out the reason why I asked the question. I asked what additional proof would be required. Some people are unable to provide fingerprints for very genuine reasons, such as the friend I mentioned. We have all watched films on television in which people try to destroy their fingerprints. That is why I asked whether a mechanism was in place which provided the additional proof required and could distinguish those who are genuinely unable to provide fingerprints from those who have sought not to do so.

[Baroness Williams of Trafford]

I totally understand where the noble Baroness is coming from. My understanding is that if someone is unable to provide fingerprints, they will not be required to do so. However, on the point about maliciously or deliberately removing evidence of fingerprints, I hope that she will allow me to write to her with that additional information.

The noble Baroness also asked about the sanctions for non-compliance as regards unavoidable non-collection. A person arriving in this country will have 10 days in which to collect their BRP card, so delay in the country of origin would not be applicable because the time required is 10 days from arriving in this country. A warning letter would be issued to the customer, giving them 10 days to respond and to explain why a sanction should not be imposed. At that point the person could give a perfectly valid reason why he or she had not turned up to collect their card. However, if there is no response, or an inadequate response is given, and continued non-compliance and lack of communication ensue, the Secretary of State can issue a civil penalty notice with a fine. I hope that that deals with the point.

[Baroness Smith of Basildon]

The noble Baroness says that they can be issued with a notice and will receive a fine. Will they lose their citizenship if they never respond in any way?

[Baroness Williams of Trafford]

My Lords, it could end up with cancellation of leave if there was absolutely no communication or reason for not collecting the BRP document, so the answer is: possibly yes, but it depends upon the circumstances.

The noble Baroness also asked what communication has taken place with potential customers and organisations affected by the introduction of overseas BRP applications. I understand that a comprehensive online communication strategy has been implemented which explains the change to anyone applying for a visa, and that they will receive a BRP if their application is successful. The proposed changes to the code of practice regarding the new requirement to collect the BRP in the UK were subject to consultation, and although the responses will be brought together in the final published consultation report, every response was replied to individually to help raise awareness of the introduction of the overseas applications for BRPs.

The noble Baroness asked whether the Information Commissioner recommended any changes. The answer is no; the commissioner sought an explanation of the changes we proposed, and the explanation was to make the retention powers more targeted. They questioned the retention of photographs if a citizen can get a passport but we explained that this—I really wish I could read some of this handwriting but I cannot. However, the basic answer is: no, but they sought an explanation. Perhaps I may write to the noble Baroness on the second point.

There is another point here about damaged fingerprints. Biometric supervision will make a decision to exempt a person from providing their fingerprints which have already been through. People who damage their prints will be asked to enrol them on a later occasion, and there is a full policy regarding these issues for the caseworkers who enrol biometric information.

The noble Baroness’s first question was whether this will be expanded to require biometric information from those making other immigration applications. The existing statutory provision for allowing regulations to be made to require the provision of biometric information—Section 126 of the Nationality, Immigration and Asylum Act 2002—was amended by the Immigration Act 2014 to add the possibility of requiring the information from those non-EEA countries exercising EU law rights and direct airside transit visas, and the amendments to the provision of physical data regulations are made to implement that.

As regards feedback from businesses, we have discussed the new process with a number of large immigration law firms and will continue to engage with the business sector. The general response has been recognition of the common-sense solutions that we have put in place for business; for instance, around right-to-work checks.

As for why the dates of the debates on these instruments have changed, the JCSI raised a technical drafting point about defining the term “short-term biometric entry clearance”, so the instruments have been amended to address that. As for the point on public consultation, public consultation before implementing overseas BRPs was not thought appropriate due to continuation of the in-court BRP process under the UK’s legal obligation to comply with EU regulations.

[Baroness Smith of Basildon]

My question was not about consultation on the policy but about consultation on the implementation. The Minister mentioned businesses. I was not sure whether she was trying to address the same point.

[Baroness Williams of Trafford]

I will write to the noble Baroness to clarify that.

We estimate the cost of requiring biometric enrolment for the new category of people to be about £1.8 million annually. In addition, we estimate a one-off cost for electronic deletion of biometrics of £1.3 million and a £1 million annual cost for the physical destruction of biometrics, although we estimate that this will be only some £0.5 million in 2015-16. I think that I have answered most—

[Baroness Smith of Basildon]

I asked questions on all the orders regarding the monitoring and review. If the Minister does not have notes on that, I am happy for her to write to me, because it is quite an important point.

[Baroness Williams of Trafford]

I will certainly write to the noble Baroness on that.