Border Security, Asylum and Immigration Bill (Eighth sitting)

Katie Lam Excerpts

Committee stage
Tuesday 11th March 2025 Public Bill Committees

[The Minister for Border Security and Asylum (Dame Angela Eagle)]

It is a great pleasure to see you, the fourth Chair of our Committee, Dame Siobhain. I welcome you to the Chair. It is a pleasure to serve with you directing us.

The clause is a simple consequential one: it removes references to and amendments made by the Illegal Migration Act 2023 and the Safety of Rwanda (Asylum and Immigration) Act 2024 when they no longer serve a purpose. During the passage of those two pieces of legislation it was necessary to amend existing Acts of Parliament, to cross-reference them and to enable enactment of the provisions within them. Few, if any, of those provisions were ever properly commenced or enacted but, since this Government intend to repeal the Safety of Rwanda Act and large parts of the Illegal Migration Act, which we spent most of this morning discussing, those references no longer serve any practical purpose. They should therefore be removed from the four existing Acts of Parliament.

[Katie Lam (Weald of Kent) (Con)]

It is a pleasure to serve with you in the Chair this afternoon, Dame Siobhain, as it was yesterday afternoon. It is good to see you two days in a row.

The clause, as the Minister said, makes consequential amendments necessary as a result of the two clauses that we discussed this morning: clause 37, which repeals the Safety of Rwanda Act 2024, and clause 38, which repeals provisions of the Illegal Migration Act 2023. As we do not support either of those repeals, we do not support these revisions or agree that the clause should stand part of the Bill.

[Dame Angela Eagle]

We have had our debates about the contents of those Acts. The clause concerns truly miscellaneous aspects, although I understand the logic of the hon. Lady’s argument. I certainly hope that we will press on and agree clause 39.

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

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[Dame Angela Eagle]

The clause introduces schedule 1, which will allow the governance arrangements for the Immigration Services Commissioner and deputy commissioner to be made more flexible. That will bring them in line with other public appointments by allowing for interim or shorter appointment lengths.

Schedule 1 sets out that the commissioner and deputy commissioner are to hold office for a term not exceeding five years. That allows the appointments to be for less than five years; currently, there is a fixed five-year term. Schedule 1 will make it discretionary to appoint a deputy commissioner, allowing for the governance arrangements to remain flexible to meet the demands of the organisation. It will enable the Home Secretary to appoint a senior, experienced member of staff to act in the commissioner’s place in certain circumstances. It is to be used, for example, to ensure that cover is in place during a public appointment process where there is a vacancy in the commissioner and deputy commissioner posts. It does not replace the provision to appoint a deputy commissioner and will ensure continued regulatory oversight of immigration advisers, which is the point of this organisation.

The schedule will mean that the work of the Immigration Services Commissioner will continue and will operate more flexibly to ensure that good immigration advice is readily available. That is critical to the effective running of a coherent, efficient and fair immigration system.

[Katie Lam]

As the Minister has outlined, clause 40 inserts schedule 1 into the Bill. That provides that the Immigration Services Commissioner is not to hold office for a term exceeding five years. The current regime is based on there being a commissioner and deputy, so schedule 1 sets out that the commissioner may appoint a deputy. There is also a provision to enable a member of the commissioner’s staff to act in the commissioner’s place in certain circumstances, such as the roles of commissioner and deputy both being vacant. That effectively allows for the appointment of an interim commissioner.

As was said in evidence to the Committee, these amendments do not seem to us to have operational consequence. We will not oppose them.

Question put and agreed to.

Clause 40 accordingly ordered to stand part of the Bill.

Schedule 1 agreed to.

Clause 41

Detention and exercise of functions pending deportation

[Pete Wishart (Perth and Kinross-shire) (SNP)]

I beg to move amendment 7, clause 41, page 35, line 32, leave out subsection (17).

This amendment would leave out the subsection of this clause that applies subsections (1) to (13) (relating to detention and exercise of functions pending deportation) retrospectively, i.e. as if they have always had effect.

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[Dame Angela Eagle]

The clause seeks to put beyond any doubt that the Home Office has the power to detain, in conducive deportation cases, at the earliest point. It has been doing that for many years. The clarification in the clause applies retrospectively to ensure that those who have been detained in the past have not been detained unlawfully. We do not believe they have, but this puts it beyond doubt. To clarify, this is not an extension of deportation powers; it is putting beyond doubt in the Bill the understanding of how and when these powers can be used—at the earliest opportunity, if it is a conducive deportation. The powers, including to detain at the earliest opportunity, have always existed.

If the amendment moved by the hon. Member for Perth and Kinross-shire were agreed to, it would cast doubt on many of the arrests and detentions ahead of deportations that have happened in the past, which I do not think the hon. Gentleman would want to do. To reassure the hon. Gentleman one final time, this is not an extension of deportation powers; it is a clarification of the way that they have always been understood to work. The clause puts beyond legal doubt that if somebody is being detained pending deportation, they can be detained lawfully at the earliest opportunity. That understanding has always been the case, but the clause puts it beyond any legal doubt.

[Katie Lam]

Clause 41 confirms that the Home Office may detain someone subject to deportation from the point at which the Home Office serves the notification that deportation is being considered, when that deportation is conducive to the public good. We support this provision to allow for detention before a deportation order is signed, but that only applies if the Secretary of State has notified the person in writing. Can I seek reassurance from the Minister that the requirement for a written notice will not build any delay into the process? We also support the provision in clause 42 to allow the Home Office to capture biometrics at the new, earlier point of detention.

[Pete Wishart]

I will not detain the Committee for long. I do not like clause 41 anyway—I think the extension of deportation powers is overwhelming and I do not believe they are required—but I do not like this retrospection one bit. I have not secured an adequate explanation from the Minister about why that is necessary. I would therefore like to put my amendment to a vote, Dame Siobhain.

[The Chair]

Thank you for clarifying, as that was going to be my next question. Does anybody else wish to contribute?

[Katie Lam]

May I ask for a response from the Minister to my question?

[Dame Angela Eagle]

I am happy to give the hon. Lady the assurance that she sought. If somebody is going to be detained, it will always be done with written notice, and that should not delay anything—it has not in the past.

Question put, That the amendment be made.

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[Dame Angela Eagle]

You are getting a lot of practice with locking and unlocking the doors and having Divisions, Dame Siobhain—it is quite exciting this afternoon.

Clause 42 modernises our powers to capture biometric information, so that we have greater flexibility over who can take that information. It will enable a wider range of appropriately trained people to take biometric information, strengthening processing resilience following instances of small boat crossings or unexpected arrivals. In a situation where it is essential to capture biometrics at the earliest opportunity and through streamlined processes, we will be able to utilise our resources more effectively. For example, the measure will enable contractors working at a short-term holding facility to capture biometrics in the same way as other contractors based in detention centres currently do. The clause also includes a power to make secondary legislation where there is a need for others to be able to capture biometric information. That is a future proofing of the legislation.

These are sensible and necessary measures to ensure that we can identify people quickly and establish whether they pose a threat to public safety if they have arrived in an irregular or illegal way.

[Katie Lam]

We are essentially supportive of clause 42, which among other things allows a person employed by a contractor in a short-term holding facility to be an authorised person to take fingerprints. The clause also includes a regulation-making power to allow other types of people to be authorised for this purpose.

May I ask the Minister how the regulation-making power is intended to be used? Are there currently other categories of people whom the Secretary of State or others in the Department would like to authorise to take fingerprints, or is this essentially a future-proofing measure, as the Minister mentioned?

[Dame Angela Eagle]

This is essentially future proofing. If another category or range of people became available, we may future proof this power and use the regulation-making power to ensure that they are taking biometrics lawfully.

Question put and agreed to.

Clause 42 accordingly ordered to stand part of the Bill.

Clause 43

Articles for use in serious crime

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

[Dame Angela Eagle]

Clauses 43 and 44 cover the creation of two new offences concerning articles for use in serious crime. Law enforcement agencies are increasingly encountering individuals in possession of, or supplying, articles suspected to be intended for serious crime. However, proving intent or knowledge for a prosecution is often difficult, as the connection to a specific crime may not be immediately clear and facilitators frequently go undetected.

To address that challenge, clause 43 introduces two new criminal offences. The first criminalises the possession of specified articles; the second targets the importation, manufacture, adaptation, supply or offer to supply of those articles where there is a reasonable suspicion that they will be used in a serious offence. The specified articles include templates for 3D-printed firearms components, pill presses and vehicle concealments. Those concealments are particularly concerning in relation to smuggling operations, as they are often used to hide individuals for irregular immigration purposes.

The accused will need to prove that they did not intend for the article to be used in a serious offence, or that they could not have reasonably suspected it—given the few, if any, legitimate uses for the articles I have just mentioned. Those offences will be triable either way, with a maximum penalty of five years’ imprisonment, a fine or both.

Clause 43 defines “serious offences” broadly, to include drug trafficking, firearms offences and assisting unlawful migration, as outlined in schedule 1 to the Serious Crime Act 2007. The clause strengthens the ability of law enforcement agencies to target those facilitating serious crime. It does that by closing legal gaps and addressing emerging criminal tools.

Clause 44 defines the specific articles to be included in the new criminal offences in clause 43. As I said, the articles are templates of 3D-printed firearms or their components, pill presses and encapsulators, and vehicle concealments. Law enforcement agencies have been clear that those articles are being increasingly used by organised crime gangs, and they will continue to be used unless we take action now. 3D-printed firearms templates are increasingly being used by organised criminals, and they are at present not illegal to possess. Pill presses are being used to manufacture illicit drugs, particularly benzodiazepines. Similarly, vehicle concealments have become a significant concern for law enforcement agencies, and they are used as aids in people smuggling and irregular migration.

Clause 44 also provides the Secretary of State with the power to amend the list of specified articles, allowing the law to adapt to emerging threats. Any changes will be subject to the affirmative procedure. The Home Office will continue to work closely with law enforcement agencies and other partners to monitor and update that list, ensuring that it remains relevant as criminal tactics evolve. By capturing those articles, the aim is to disrupt the enablers and facilitators who profit from supplying tools for organised crime.

[Katie Lam]

The clauses seem broadly reasonable, but we have a few questions on which I would appreciate some clarification from the Minister. Clause 43 creates two new offences: the possession of articles for use in serious immigration crime, and the importation, manufacture, and supply or offer to supply of articles for use in serious immigration crime. Could the Minister explain whether she feels that UK Border Force currently has the right capabilities to identify and intercept the harmful materials captured by the clause?

Clause 43 reverses the evidential burden of proof, in that a person charged with offences under it can successfully prove their defence if they provide enough evidence in court to raise a question about the issue, and the prosecution cannot prove the opposite beyond reasonable doubt. Could the Minister please explain why the decision has been taken to do that? The maximum penalty for the offences created under the clause is imprisonment for five years, a fine or both. Could the Minister please explain how and why those penalties were decided on?

Clause 44 defines “relevant article” for the purposes of the offences created in clause 43. Could the Minister please explain whether clauses 43 and 44 provide any operational benefit in terms of tackling smugglers operating abroad, and if so, how?

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[Dame Angela Eagle]

Clause 45 amends the Proceeds of Crime Act 2002 to include offences related to the possession and supply of articles intended for serious crime, as outlined in clause 43. It will enable law enforcement agencies to seize the assets of individuals convicted under clause 43.

Specifically, the clause adds:

“Offences relating to things for use in serious crime”

to the criminal lifestyle schedules for England and Wales, Scotland and Northern Ireland. A defendant convicted of an offence listed in those schedules will automatically be deemed to have led a criminal lifestyle and to have benefited from criminal conduct over a period of time. That means that assets obtained or spent in the six years prior to conviction are presumed to be derived from criminal conduct and are subject to confiscation unless the defendant can prove otherwise. However, the court is not required to make that assumption if it would result in injustice or is shown to be incorrect.

Confiscation orders are calculated based on the defendant’s monetary gains from crime—known as the benefit—and the assets they have available to them when the order is made. Orders are made to reflect the amount gained from crime and can be increased if the defendant’s finances improve. Non-payment of orders can lead to the defendant returning to prison.

By including these offences in the Proceeds of Crime Act, we can target financially criminals who profit from facilitating crime, disrupting both the crime and the financial gains that support it.

[Katie Lam]

Clause 45 allows the relevant articles listed under clause 44 to be confiscated under the Proceeds of Crime Act. We support this measure.

Question put and agreed to.

Clause 45 accordingly ordered to stand part of the Bill.

Clause 46

Electronic monitoring requirements

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

[Dame Angela Eagle]

The purpose of clause 46 is to remove any ambiguity about the court’s power to impose electronic monitoring as a condition of a serious crime prevention order or interim serious crime prevention order.

As currently drafted, the clause applies in England and Wales for any serious crime prevention order or interim serious crime prevention order, and in Scotland and Northern Ireland in terrorism-related cases only. However, since the Bill’s introduction, further legal complexities have come to light regarding the devolved Governments’ powers to impose an electronic monitoring condition. Pending agreement from the Scottish Cabinet Secretary, an amendment will be tabled to remove that express provision for Scotland. Northern Ireland’s position is still to be determined. I point that devolution complication out to Committee members and will keep them informed as those discussions develop.

Electronic monitoring serves as a deterrent, but it also improves the detection of any breaches. If the subject violates the conditions, it enables quicker intervention by law enforcement agencies. The clause outlines specific requirements for both the courts and the individual, including the obligation for the subject to consent to the installation and maintenance of monitoring equipment and to avoid tampering with it.

Additional safeguards are included. For instance, electronic monitoring can be imposed only for up to 12 months at a time, with the possibility of extension. A further safeguard requires the Secretary of State to issue a code of practice on handling monitoring data, ensuring consistency and clarity for law enforcement.

This clause on electronic monitoring for those subject to serious crime prevention orders will enhance the effectiveness of such orders and interim SCPOs, supporting efforts to disrupt serious and organised crime, reduce harm and protect the public. I commend the clause to the Committee.

[Katie Lam]

Clause 46 allows the courts to impose an electronic monitoring requirement as part of a serious crime prevention order. The clause is helpful for investigating suspects who are already in the UK, and we broadly support it. Will the Minister confirm that the requirement for electronic monitoring will apply to those who are on immigration bail? What value does the Minister feel serious crime prevention orders might have as a deterrent for those operating abroad?

Clause 46 specifies that there will be a code of practice to outline the expectations, safeguards and broad responsibilities for the data gathered, retention and sharing of information on these orders. When will that code of practice be issued, and can the Minister please outline what the Government expect to be included?

[Mr Will Forster (Woking) (LD)]

It is a pleasure to serve under your chairmanship, Dame Siobhain. I would like the Minister to define electronic monitoring for us, if she can. I do not believe that there is such a definition in the Bill or in other Acts of Parliament. As a result, I worry that there is confusion, so I would welcome her thoughts.

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Schedule 2 introduces a series of consequential amendments to the Serious Crime Act 2007 to extend existing provisions to interim serious crime prevention orders. These amendments ensure that interim serious crime prevention orders are governed by the same legal safeguards and processes as full orders. Key provisions include extending protection for individuals under the age of 18, granting the right to make representations in court, and aligning rules for the duration, variation and discharge of orders. The amendments also apply to bodies corporate, partnerships and unincorporated associations, ensuring accountability if they breach an interim serious crime prevention order. Schedule 2 ensures that interim serious crime prevention orders have the same effective safeguards as serious crime prevention orders, while strengthening the legal framework for preventing serious crime.

[Katie Lam]

Clause 47 introduces a new provision for interim serious crime prevention orders. These allow the High Court to impose immediate restrictions, pending the determination of a full serious crime prevention order application. The Court can do that if it considers that it is just to do so. Can the Minister explain a little more by what process the Court will decide whether it is just? Is the criterion that it is necessary for public protection?

Proposed new section 5F of the Serious Crime Act makes provision for without notice applications. That is where the application for an interim serious crime prevention order, or the variation of an interim serious crime prevention order, is made without notice being given to the person against whom the order is made, in circumstances where notice of that application is likely to prejudice the outcome. Subsection (2) of proposed new section 5F makes provision for the Court to allow the relevant person to make representations about the order as soon as is reasonably practicable. Can the Minister explain whether that will always happen after the order is granted?

[Dame Angela Eagle]

The High Court will be empowered to impose an interim serious crime prevention order if it considers it just to do so. In other words, it is not an evidential test, because the Court does not apply a standard of proof. Rather, it invites the Court to impose an order before it has heard and tested all the evidence in instances that require fast-paced action to prevent and disrupt serious and organised crime. It is therefore an exercise of judgment or evaluation. There is a precedent for this approach in interim sexual risk orders and interim slavery and trafficking risk orders, which are currently a feature of the system and work reasonably well.

Question put and agreed to.

Clause 47 accordingly ordered to stand part of the Bill.

Schedule 2 agreed to.

Clause 48

Applicants for making of orders and interim orders

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

[Dame Angela Eagle]

Currently, the High Court can make a serious crime prevention order only upon application from the Crown Prosecution Service, the Serious Fraud Office and the police in terrorism-related cases. However, High Court serious crime prevention orders have not been fully utilised; between 2011 and 2021, only two applications were made, and only one resulted in a successful order. Clause 48 extends the list of agencies that can apply directly to the High Court for a serious crime prevention order, or an interim serious crime order, to the National Crime Agency, His Majesty’s Revenue and Customs and the police in all cases, including the British Transport Police and the Ministry of Defence Police. The clause also specifies who within each agency is authorised to apply for these orders.

This extension will simplify and expedite the application processes for serious crime prevention orders, making it easier for agencies that are directly involved in tackling serious crime to make an application where appropriate. It gets rid of a gateway process that has proven to be so tight that it has not allowed very many of these orders to go forward at all. Those agencies are often best placed to apply for a serious crime prevention order as they already have an in-depth knowledge of the case.

The clause also requires the CPS to be consulted by the applicant authority, as it will continue to have responsibility for ensuring that the order is not used as a substitute for prosecution. That is a very important part of ensuring that these orders work appropriately. In practice, this clause will make serious crime prevention orders more readily available to the agencies that are most likely to use them, to ensure that this powerful tool is used to best effect to protect the public by preventing and disrupting serious and organised crime.

[Katie Lam]

Clause 48 details who can apply to make orders and interim orders, and it replaces and extends the previous list in section 8 of the Serious Crime Act 2007. Can the Minister please explain how long an application for an interim serious crime prevention order might take when made to either the High Court or the Crown court?

[Tom Hayes]

I want to reflect on where we have got up to. We have moved through the clauses at quite a pace, and that is very pleasing to see. The Bill responds to the requests of operationally and frontline-focused people in law enforcement and border security, and it is an attempt to give them the tools and powers that they need. I particularly wanted to mention that in the context of interim serious crime prevention orders, which we have spoken about in clauses 47 and 48.

That cuts such a sharp contrast with what has happened over recent years. In 2022, one Home Secretary introduced the Nationality and Borders Act 2022. At the time, the Government said that that would deter people from crossing in small boats, but it did not. In 2023, another Home Secretary brought in the Illegal Migration Act 2023. At the time, the Government said that that would turn people away from crossing the channel in small boats, but it did not. In 2024, another Home Secretary brought in the Safety of Rwanda Act, which happily we have just repealed today. At the time, the Government talked about the prospect of sending people to Rwanda, and they said that alone would be sufficient to deter people from crossing the channel in small boats. It is no wonder that that failed, too.

I wanted to set out how in 2022, 2023 and 2024 we had three separate Acts, which all aimed to do something and failed to do so. They have not delivered what operationally focused people have requested. We really need to look at how, just eight months into this new Government, we are turning the page on our asylum system and giving enforcement powers to the people who need them. We are also tidying up the statute book and ensuring greater co-ordination across the key agencies that can secure our border. I commend clause 48 to the Committee, as I do the series of clauses before it and the Bill overall.

[Dame Angela Eagle]

Clause 49 amends the Serious Crime Act 2007 to introduce a standardised list of notification requirements for individuals and bodies corporate that are subject to serious crime prevention orders. This is a process of standardisation. Currently, notification requirements are added at the court’s discretion on a case-by-case basis. The clause will standardise those requirements for all serious crime prevention orders, improving the consistency and monitoring of the orders across police forces.

We have worked closely with law enforcement partners to identify appropriate requirements. The standard list will include monitoring legitimate income, checking addresses or communication methods for signs that criminal activities are being re-established, and monitoring foreign travel to assess potential indications of a return to crime. The courts can then impose additional requirements and conditions as part of the serious crime prevention order.

For bodies corporate, a designated individual must be named to liaise with the police and provide the notifiable information—including personal details, employment, financial data and contact information—which is essential for law enforcement to ensure compliance and assess risk to public safety.

The clause includes a delegated power to add to the list of notification requirements, ensuring flexibility to meet operational needs as technology evolves. The statutory instrument will be subject to the draft affirmative procedure. Individuals who are subject to a serious crime prevention order must provide the notifiable information within three days of the order coming into force. Failure to provide information, or providing false information, will be a criminal offence punishable by a fine or up to five years’ imprisonment. The standardisation of notifications will improve consistency in managing serious criminals and improve law enforcement agencies’ ability to assess risk and therefore more effectively protect the public.

[Katie Lam]

Clause 49 sets out a prescribed set of notification requirements, so that a person who is subject to a serious crime prevention order is required to provide the police or the applicant authorities with certain information. We support the clause, although can the Minister explain why three days has been given as the deadline to respond with the notifiable information requested?

[Dame Angela Eagle]

Three days seems a reasonable amount of time to allow the individual or body corporate concerned to gather the information, but also to ensure that the authorities get it in a timely way, so as to prevent any potential harm that might come from delay.

Question put and agreed to.

Clause 49 accordingly ordered to stand part of the Bill.

Clause 50

Orders by Crown Court on acquittal or when allowing an appeal

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

[Dame Angela Eagle]

Currently, the High Court has the authority to impose a serious crime prevention order without a conviction, provided that the Court is satisfied that the person has been involved in serious crime and that there are reasonable grounds to believe that the order will protect the public by preventing, restricting or disrupting their involvement in serious crime.

Clause 50 amends the Serious Crime Act 2007 to grant the Crown court the power to impose a serious crime prevention order on individuals who have been acquitted of an offence, or in circumstances where the appeal has been allowed, if the same two-limb test is met. There may be cases where a person is acquitted but a serious crime prevention order is still needed. This can happen if the threshold for a criminal conviction is not met but there is still enough evidence to show that the person is involved in serious crime, and that the order would protect the public.

The Crown court would have just heard the evidence of the case and would be in the best position to assess whether an order is necessary to protect the public. Again, this approach is not new; similar provisions are found in other laws, such as domestic abuse protection orders under the Domestic Abuse Act 2021, and restraining orders under the Protection from Harassment Act 1997, where orders can still be issued even after an individual has been acquitted. The effect of this clause is to streamline the process, enabling serious crime prevention orders to be applied more regularly and effectively in appropriate cases.

[Katie Lam]

Clause 50 allows the Crown court the power to impose a serious crime prevention order on acquittal or when allowing an appeal. Subsection (2) provides that in order to impose a serious crime prevention order in these circumstances, the court has to be satisfied both that the person has been involved in serious crime and that the court has reasonable grounds to believe that the order would protect the public by preventing, restricting or disrupting involvement by that person in serious crime in England or Wales. Why do both tests need to be satisfied for a serious crime prevention order to be imposed? Where these cases involve acquittal, as the Minister outlined, it might be hard to satisfy the first test. It seems to us that the second test of protecting the public is sufficient grounds to impose a serious crime prevention order.

[Dame Angela Eagle]

It is a two-limb test. Obviously, the evidential test for criminal proceedings is beyond reasonable doubt. There is a lower evidential test in other court instances, and it may very well be that someone who did not pass the “beyond reasonable doubt” test in a criminal trial would still be considered by the court to be involved in criminal activity, and therefore they would pass the first limb of the test. They would pass the second limb as they would still be likely to be involved in criminal activity in the future. We think that the two-limb test is an appropriate response to protect civil liberties, while protecting the public from the behaviour of those who are involved in serious and organised crime. We think that that balance is about right.

Question put and agreed to.

Clause 50 accordingly ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(Martin McCluskey.)