Immigration Bill (Fourteenth sitting)

Gavin Newlands Excerpts

Tuesday 10th November 2015 Public Bill Committees

[Keir Starmer]

This is a daunting number of amendments, but most relate to extensions with respect to Scotland, Northern Ireland and Wales.

There are three substantive points. First, as the background to amendment 230, schedule 8 inserts new schedule 4A into the Immigration Act 1971. It covers enforcement powers

“exercisable by immigration officers, English and Welsh constables and enforcement officers”

in relation to ships. We spoke this morning about the power to stop, board, divert and detain a ship, and about the power to search and obtain information under new paragraph 3. Under new paragraph 3(2) the “relevant officer” may search

“the ship; anyone on the ship; and anything on the ship”.

The provision to which amendment 230 relates is new paragraph 3(8), which states:

“A power conferred by this paragraph may be exercised on the ship or elsewhere.”

“Elsewhere” is obviously widely defined. There is a power to search the ship and anyone or anything on it, which suggests that it is ship-focused, but sub-paragraph (8) is open-ended and provides for a power to search on the ship or anywhere. To some extent the amendment may have a probing function to enable us to understand the reasoning behind the provision, but our concern is that the power is very broad and we seek assurance that it is not intended that the power under the schedule could be exercised literally anywhere, at any time.

Secondly, to give the context to amendment 239, new paragraph 4 deals with the power of arrest and seizure; new paragraph 5 is on protective searches of persons—searches that can be made of individuals to seize and retain items; and new paragraph 6 deals with searches for nationality documents.

Then comes new paragraph 7, which is odd. The “relevant officer” appears pretty well through the Bill and is the officer with the relevant powers, training, duties and so on. New paragraph 7(1) provides for assistants:

“A relevant officer may…be accompanied by other persons”.

Then sub-paragraph (2) creates a very broad power:

“A person accompanying a relevant officer under sub-paragraph (1) may perform any of the officer’s functions under this Part of this Schedule, but only under the officer’s supervision.”

If that means what it says, anybody can exercise powers of search, including searches of people, and other powers without the need for any of the normal training and safeguards around the exercise of that power. On the face of it, simply anybody with the officer who is deemed to be an assistant can carry out all of these functions. That is an extraordinarily wide power. I do not think that exists in other areas of the law. Designating someone as an assistant in that way certainly does not exist in relation to police officers or other enforcement officers. That is a very broad power.

Thirdly, on amendment 242, we turn again to page 116 and the same set of provisions:

“A relevant officer is not liable in any criminal or civil proceedings for anything done in the purported performance of functions under this Part of this Schedule if the court is satisfied that—

(a) the act was done in good faith, and

(b) there were reasonable grounds for doing it.”

That is a very wide-ranging immunity which is as broad as anything I have ever seen. If, heaven forbid, there were a fatality when someone was being held or searched or force was used—as has tragically happened in immigration cases—this would exempt from any criminal or civil proceedings anyone acting in good faith with reasonable grounds, notwithstanding the other common law and statutory defences that would be available. On the face of it, that would prevent a court looking into the exercise of these powers. That is obviously a deep cause for concern. Although there are many amendments, those are the three core issues that run through the set.

[Gavin Newlands (Paisley and Renfrewshire North) (SNP)]

We can all agree that we do not want to see anyone attempt to gain illegal entry into the UK by means of being smuggled in an overcrowded boat or vessel. Ensuring that immigration officials have the proper power to carry out their important duties is important not only in terms of enforcing our immigration control but with regards to increasing safety at sea.

That said, part 6 and, in particular, schedule 8 introduce a raft of new powers for immigration and maritime officers. It is only right and proper that we scrutinise those powers appropriately to ensure that the proper powers are being introduced to the correct officers and that they balance appropriately with the liberties that people are entitled to. I am not convinced that these provisions in their current form meet that aim and balance the equipping of immigration officers with the power that they need with ensuring that they treat international citizens with the respect that they deserve. Therefore, the aim of the amendments is to strike that balance between protecting an individual’s liberty and human rights and giving Home Office officers sufficient, important powers to carry out their duties. I accept that this is a difficult balance for the Home Office to strike.

We should be concerned about the regular use of the word “elsewhere” throughout this section of the Bill and what that implies. This in particular relates to the searches that will be conducted into the personal lives of individuals. In earlier sittings of the Committee, we have spoken about the dangers of speculative searches and the Home Office’s poor track record on completing them. I will not repeat the arguments already made but I will stress that these searches could have a significant and deteriorating impact on community relations and social cohesion.

Amendments 239, 240 and 241 make the point that, regardless of what happens with the Bill and the form it ends up taking, regardless of what law is finally passed, we all need to be sure that we have fully trained, capable and appropriate individuals carrying out the checks and enforcement that the law will demand. They will have powers of arrest without warrant, search, arrest and seizure. The Bill proposes that persons wholly unspecified may be able to carry out all these powers without limitation, under supervision of an immigration officer. Any powers under these provisions should be exercised by immigration officers alone. The amendments will ensure that the Home Office has the appropriate immigration officers carrying out the proper checks. The power and functions relating to this section of the Bill are wide and varied, including arresting without warrant, seizing property and conducting searches. The implications for the individuals concerned are so severe that these functions must be exercised by fully trained immigration officers. There is no excuse for them not to be.

The responsibilities of immigration officers who are operating at sea are arguably more demanding than those who are operating on land. Not only do they have to be qualified in immigration law, but they have to be experienced at dealing with ships at sea. This is an extremely important point. Safety concerns are at stake and I again make the point that we cannot make a half-hearted attempt on who we delegate these powers to. Schedule 8 may not have been one of the most widely discussed provisions in the Bill, but that should not distract our attention from it. Events over the summer have highlighted the danger that exists in trying to gain asylum through a vessel of some sort. Schedule 8 grants officers the

“Power to stop, board, divert and detain”

ships for immigration offences. Safety concerns arise in that regard and therefore careful consideration should be given to the schedule and the amendments that have subsequently been proposed.

[The Minister for Immigration (James Brokenshire)]

I hope that, with our clarifications and assurances, hon. Members will realise our purpose and intentions. We are taking the power because of a gap in the law. Until now, there has been a small number of relatively isolated incidents involving suspected facilitation in UK territorial waters. However, those incidents illustrate a gap in the legislation. Border Force officers currently have no powers to act unless the vessel is also of customs interest. In those circumstances, they have to pass the information to immigration officers on land and monitor the vessel’s movements while it remains at sea.

We judge that that gap in the law needs to be addressed to reflect the difference between powers that could be exercised for customs purposes and powers that could be exercised for immigration purposes. It is an issue if the powers cannot be exercised in the context of a vessel that is considered to be smuggling people rather than contraband, given the risk that organised crime groups, as we are seeing elsewhere, may over time seek to smuggle in a different way. The purpose of the schedule is to be prepared and to have the right legislative framework in place to be able to respond to any such risk in UK territorial waters.

Amendments 230 to 235 seek

“To limit the maritime search powers under the Bill to the ship, the port and as conveniently as possible thereafter”.

The amendments raise concerns, as the hon. and learned Gentleman, the shadow Minister, and the hon. Member for Paisley and Renfrewshire North have highlighted, about whether the powers could be exercised anywhere on land. For ease, I will simply refer to the part of the schedule that deals with England and Wales, but I assure hon. Members that the same provisions equally apply, in certain other aspects of the schedule, in respect of waters adjacent to the coasts of Scotland and Northern Ireland.

The power to search in paragraph 3 of new schedule 4A only applies to a search of the ship, anyone on the ship and anything on the ship, as the hon. and learned Gentleman highlighted. The Bill does not limit where the power may be exercised in order to ensure that there are no gaps in the power. He was rightly probing and testing as to the intent of the term “elsewhere”. In part, it ensures that there is provision to arrest a person should they jump overboard to evade enforcement officers. Given the nature of the powers that we are seeking to provide, that could be entirely possible, whether they jump into the water or, if the vessel is in more inland waters, on to land. We need to be able to ensure that the provisions are operable in those circumstances. That will not be possible if the provision is limited to a ship or a port. I reassure the Committee that the test in paragraph 3(1) of new schedule 4A to the Immigration Act 1971 connects the exercise of the powers with suspicion regarding the ship. I hope that that connection may be helpful in giving an understanding of what we are trying to get at here.

--- Later in debate ---

We are proposing an end to indefinite detention not simply because it would be more just and humane but because it would be less expensive and more effective in securing compliance, which Members on both sides of the House wish to see. Therefore, I hope the Government can accept the new clauses.

[Gavin Newlands]

They say that a country should be judged based on how it treats the most vulnerable, but the way that we have treated people who are attempting to gain asylum into the UK has been, at times, shocking.

The UK is the only country in Europe that uses detention with no official end date and that should shame us all. I am sure that I am not the only one who has been appalled at some of the detention stories that we have read about or seen on television. In particular, “The Glasgow Girls” served as a harrowing reminder of the cruelty that the UK’s detention policy brings about. Even though the policy of detaining children was ended in 2010, the Scottish Refugee Council has highlighted that children are wrongly assessed as being of adult age and therefore are still being detained. The council says:

“A small number of children are still detained at the end of the asylum process, after their case is heard by an independent panel, in Cedar’s Pre-Departure Accommodation. It is run by private companies…with welfare services provided by Children’s Charity Barnardo’s. This ‘open’ facility is designed as a last resort, before families are removed to their countries of origin. But there are still concerns about the affect its use has on children—many of whom are sent from Scotland on their way to their countries of origin.

In addition, some children who have been wrongly age assessed as adults find themselves detained, often for long periods of time.”

I hope that the new clause serves as a catalyst for further investigation, so that these young people/children are treated with dignity and respect, and are not detained full-stop. Westminster might still favour the policy of detention, but I think that we all agree that detaining young people is cruel and inhumane, and I ask the Immigration Minister to look further at this issue.

The case of Souleymane, who was detained for three and a half years, was highlighted in the detention inquiry report, and it serves as another cruel reminder of the policy of detention. There is no excuse for such a long period of detention. The case highlighted that detainees were being transported from one detention centre to another. The length of time that Souleymane spent in detention had an obvious and significant impact on his mental health, and I must ask, is that something that we are proud of?

New clause 3 does not go far enough, in that it has a caveat that I do not agree with. Nevertheless, it is a massive step in the right direction. Again, I want to see the ending of the policy of detention, as it is not a sign of the caring and compassionate country that I recognise the UK to be. The new clause will leave the provision for the Home Secretary to detain someone beyond 28 days by varying the time limit by category of person. In and of itself, it does not prevent cases such as that of Souleymane from happening again, as it hands the Home Secretary a wide discretionary power to overcome the 28-day obstacle.

Also, the parliamentary inquiry report suggested that the longer an individual is detained, the less likely it is that they will be removed from the UK. For example, the report found that, of the 178 people who have been detained for 12 months or more, 57% of them were ultimately released.

In talking about detention, I must use this opportunity to praise the work of the Scottish Refugee Council and other community-based organisations and groups that support asylum seekers on the frontline. Regardless of our political views, we should extend a debt of gratitude to those groups for the fantastic and at times difficult work that they do. The Bill and this provision in particular will have a significant impact on their work, and it is important that we support them when the Bill becomes law. Therefore, I ask the Immigration Minister to take time to meet groups such as the Scottish Refugee Council to learn more about the issues that they face, and to find out what support they need to perform their important jobs.

Detaining someone for any period of time is not something that we should be proud of. These detention centres are a symbol of the cruel approach that successive UK Governments have adopted with regard to asylum seekers. That is why we in the SNP do not think that the new clause goes far enough. The SNP policy on asylum seekers is more progressive. We want asylum seekers to have the chance to work, earn a living, pay tax and contribute to the community while they are waiting for a decision to be made on their application. Economically that makes sense but, more importantly, it is the right and moral thing to do.

[Keir Starmer]

I support my hon. Friend the Member for Sheffield Central’s new clause and I pay tribute to the part he played in the report to which he referred. As he said, the report was powerful and strong recommendations were made. The key recommendations from the report were, first, that there should a limit of 28 days on the length of time anyone can held in immigration detention. Secondly, detention is currently used disproportionately frequently, resulting in too many instances of detention. The presumption, in theory and practice, should be in favour of community-based resolutions and against detention. Thirdly, decisions to detain should be very rare and detention should be for the shortest possible time and only to effect removal. Fourthly, the Government should learn from international best practice and introduce a much wider range of alternatives to detention than are currently used in the UK.

This is a real concern, a growing concern and a cross-party concern. I know that the Stephen Shaw work has been done and there is a report. I think that that mainly touches on welfare, but I will be corrected by the Minister if I am wrong. The new clause is important because it goes well beyond welfare issues; it is a point of real principle. In that spirit I support it.

--- Later in debate ---

[Keir Starmer]

On a point of order, Mr Owen. I endorse that point of order. Not only for the group the Minister spoke of but for those of us who have gone round this track for the first time, your help and assistance and that of the Clerks has been invaluable to each and all of us.

[Gavin Newlands]

Further to that point of order, Mr Owen. May I point out that I was 6 feet behind Anne when the doors were locked for the earlier vote?

[The Chair]

The point has been made.

Ordered, That further consideration be now adjourned. —(Charlie Elphicke.)