Immigration Bill

Lord Paddick Excerpts

Monday 1st February 2016 Lords Chamber

Moved by

[Lord Paddick]

160: Clause 17, page 18, line 9, at end insert “and the authorised officer has reasonable grounds to believe the power should be exercised urgently.”

[Lord Paddick (LD)]

My Lords, Amendment 160 is tabled in my name and that of my noble friend Lady Hamwee, and we also have Amendments 161 and 162 in this group. We have considerable misgivings about the powers provided under the clause that I will address in a moment. Under subsection (3)(c) an authorised officer who is not a constable can enter and search premises for a driving licence only if a senior officer, such as an immigration officer not below the rank of chief immigration officer, has given authority in writing. However, subsection (4) states that that written authority,

“does not apply where it is not reasonably practicable for the authorised officer to obtain the authorisation of a senior officer before exercising the power”.

Our amendment would introduce the additional condition that,

“the authorised officer has reasonable grounds to believe the power should be exercised urgently”.

It may not be reasonably practical for the authorised officer to obtain the authorisation of a senior officer simply because it is not possible to make contact with the senior officer whether because of communication issues or that no senior officer is available immediately. In such cases the authorised officer should make a decision as to whether there are reasonable grounds to believe that it is necessary to exercise the power there and then. In the absence of any urgent need, the authorised officer should have to wait until higher authority is obtained from the senior officer.

Amendment 161 refers to proposed new Section 25CC(5) in circumstances where a driving licence has been seized and retained by the Home Office, which under paragraph (a) is until a decision is taken to revoke it. Our amendment seeks to place a time limit on that decision so that a driving licence cannot be retained for longer than one month from the date of seizure unless it is being revoked. It does not seem reasonable to us that someone whose driving licence is not in the end revoked should have his licence withheld from him indefinitely while a decision is made. Amendment 162 seeks clarification of subsection (5)(b) of the proposed new section. Clearly a driving licence that is being held by the Home Office must be retained until it has been revoked, until the time limit for lodging an appeal has passed, or until the appeal is determined. But it is not clear what is meant by retaining a driving licence if it is “subsequently revoked”. Can the Minister tell us what is intended by that phrase; what is it subsequent to?

Also included in the group is the intention to oppose the question that Clauses 17 and 18 stand part of the Bill, and I wish to address our opposition to both of these clauses. As I mentioned at Second Reading, when I was a police constable in the years leading up to the Brixton riots in 1981, police officers would routinely stop motor vehicles being driven by black men in particular and frequently arrest them on suspicion that they may be illegally in the country. The usual reason given was that they were a suspected overstayer. These arrests happened routinely simply because the person who was being stopped was evasive or did not appear to be co-operative. Together with the use of the offence of being a suspected person loitering with intent to commit an indictable offence under the Vagrancy Act 1824, commonly known as “sus”, and the disproportionate use of stop and search, a problem that continues to this day, relations between the police and the black community deteriorated to such an extent that the Brixton riots, or uprising, was the result. A conscious decision was taken by senior police officers in the light of such deterioration that the police service would no longer proactively enforce immigration law. Instead, police officers would help and support the Immigration Service if called upon to do so. The arresting of black drivers on suspicion of being overstayers stopped, to the considerable benefit of police/community relations.

Clause 18 creates an offence of driving when unlawfully in the United Kingdom. A person found guilty can receive a sentence of imprisonment, a fine or both, and the court can order the forfeiture of the car that was being driven by that person. It is police officers who have the power to stop motor vehicles and require the driver to produce their driving licence, not immigration officers. The burden of enforcing this part of the Bill will fall on police officers, and when I say “burden”, I mean it. The Government will want to see this law enforced. The police will come under pressure to proactively enforce immigration law for the first time in almost 30 years—30 years after the police service made a conscious decision to back away from proactive immigration law enforcement because of the damage that it was causing to police community relations.

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[Lord Bates]

The noble Lord is right to point to the immense experience of many noble Lords who have spoken, such as that of the noble Lord, Lord Paddick, in policing and of the noble Baroness, Lady Lawrence, in representing victims of crime over many years. That is why I am suggesting, in the light of the concerns that have been expressed, that we ought to look at this. Sometimes there is an overfocus on this particular element, without recognising the wider context of the Bill. This is not being targeted simply through stop-and-search powers but is consistent with the wider aim to reduce the ability of people who are here illegally to live a normal life while in the UK—such as by having bank accounts, being able to rent properties, being able to work and gain employment, or being able to gain a driving licence. In the wider context, it fits, but there are some specific concerns here. It is a very sensitive area. Therefore, I am very happy to meet noble Lords to discuss it further.

[Lord Paddick]

My Lords, I thank all noble Lords who have spoken, particularly the noble Baroness, Lady Lawrence of Clarendon. Our Amendments 160 to 162 are technical in nature, and so was the Minister’s response, so I will read Hansard with interest. The major issue is with Clause 17, where the Minister has not answered our concerns. He talked about justification for this being where the police stop somebody and then a match is found against a Home Office record. That implies that the police would have to carry out an immigration check on the individual to establish whether an immigration offence had been committed. They are being pushed into proactively enforcing immigration law in a way that they have not previously.

[Lord Bates]

Again, I defer to the noble Lord’s great experience, but I understand that that is part of normal practice when they establish the identity of the individual whom they have stopped for a suspected offence: that they try to establish that identity from the databases available to them.

[Lord Paddick]

My Lords, my understanding is that a routine check of the Home Office immigration database is not a normal part of a stop check.

The Minister says that the stop must not be based on race or ethnicity, but Her Majesty’s Inspectorate of Constabulary research, to which I and other noble Lords referred, shows that drivers are being targeted on that basis. The Minister has not given the Committee any reassurance that things will be different under these powers. The Minister said that the Home Secretary, in addressing the National Black Police Association, admitted that a quarter of stop and searches by police are unlawful. The clauses extend the powers of the police to carry out stop and searches.

In answer to the noble Lord, Lord Alton of Liverpool, the Minister talked about monitoring. The fact is that police stops of vehicles under the Road Traffic Acts are not routinely recorded. This is something that we need to look into in the meeting with the Minister and other interested noble Lords, which I very much look forward to.

The Minister has heard from both sides here: from someone who has been a victim of racism and from someone who has previous experience of enforcing immigration law as a police officer, and the detrimental effect that that has had on police-community relations. I was in the Brixton riots, I was behind a plastic shield, and I felt the anger of the black community in those days towards the police. I do not want us to go back to anything like that situation—particularly, as the noble Lord, Lord Alton, said, bearing in mind the greater availability of firearms these days. However, I am very grateful to the Minister for agreeing to meet us to discuss those things, and I beg leave to withdraw the amendment.

Amendment 160 withdrawn.

--- Later in debate ---

[Lord Rosser]

As was said in the previous discussion, the Bill creates a new criminal offence where a person,

“drives a motor vehicle on a road or other public place at a time when the person is not lawfully resident in the United Kingdom”.

Of course, this new offence is part of the Government’s objective, as set out so clearly in the Explanatory Notes, of,

“making it harder to live and work illegally in the UK”,

to encourage those who do not have the appropriate immigration status to “depart voluntarily” and, where they do not do so, to use other measures in the Bill to “support enforced removals”. As with the new offence of illegal working for employees, however, there appears to be no defence for this new offence in relation to driving.

The purpose of our amendment is to seek to provide such a defence for those prosecuted for driving while illegally in the UK if they can show that they had reason to believe that they had the legal right to be here. For example, there is the kind of person who has been sponsored but, unbeknown to them, there is something wrong with the sponsorship. As a result, they may fall foul of this new offence because they do not have the status they should, although they had reasonable belief of their right to be here and acted completely in good faith. Having a criminal record has serious implications for a person under immigration control, as such records can never be spent for immigration and nationality purposes, must always be declared and can form the basis for refusing a person leave, settlement or citizenship.

During the debate on this issue in the Commons, the Solicitor-General confirmed that effectively there was no defence for this new criminal offence. He said in response to a question on this point that a person who was prosecuted for this new offence would have the opportunity to,

“put in mitigation about their belief as to whether they were legally present in the UK, and that would affect any sentence that might be passed”.

Of course, that is about mitigation of sentence, not a defence to the charge for which a person can be sent to prison for 12 months. The second point made by the Solicitor-General was that,

“the Crown Prosecution Service will have guidance to ensure that migrants are not inappropriately prosecuted for this”,

new criminal offence. He went on:

“Should a migrant be able to genuinely show that they believed themselves to be legally present, the public interest test … would apply”.

In other words, as with the offence of illegal working for which there is no defence for those employed, it would be up to the Director of Public Prosecutions rather than Parliament to decide whether there is a defence against an offence for which there is no such provision made in the Bill.

In the Commons, the Government accepted and recognised the reasons behind this amendment but maintained that it was “very broad”, “very subjective” and would create scenarios 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”.

Yet that is precisely the kind of question that the DPP and Crown Prosecution Service will presumably have to resolve in carrying out the Solicitor-General’s view that if a migrant can genuinely show that they believe themselves to be legally present, the public interest test would apply. Why then can the courts not be relied on to make appropriate decisions on reasonable belief, as called for in this amendment, and thus put a defence against this new offence in the Bill, debated and agreed by Parliament?

When the question was raised in the Commons debate about why this new offence was needed at all, since it appeared that the police were not seeking this new power and had not found any gap in their ability to deal with drivers who do not have regular status, the Solicitor-General, replying for the Government, said that there was,

“a loophole involving people who are unlawfully here … who are driving with foreign-issued licences”.—[Official Report, Commons, Immigration Bill Committee, 3/11/15; cols. 307-08.]

For my benefit and to get it on the record, could the Minister spell out in detail what the existing problem is in relation to people who are here unlawfully and who drive with foreign-issued licences, as opposed to those here unlawfully but driving with British driving licences or no driving licence at all, and which can be resolved only with the creation of this new offence? It would also be helpful if the Minister in his response—I hope it will be favourable but am not too sure of that—could place on record the Government’s assessment of the extent to which this new criminal offence of driving a motor vehicle while not lawfully resident in the United Kingdom will reduce the number of people not lawfully resident in the United Kingdom, and the basis on which that conclusion has been reached. I beg to move.

[Lord Paddick]

My Lords, I support the noble Lords, Lord Rosser and Lord Kennedy of Southwark, in their Amendment 163. It does not seem an absolute offence. Therefore, Amendment 163 seems reasonable.

We have Amendments 164, 169, 171, 172, and 173 in this group in my name and that of my noble friend Lady Hamwee. Amendment 164 would add to new Section 24D by placing a time limit on the time taken to make a decision whether to prosecute, when someone has had their vehicle detained, having been arrested for driving when unlawfully in the United Kingdom, of one month from the date of arrest. It could well be that the person arrested is a professional driver, who relies on the vehicle for their livelihood and, if that person turns out to be innocent of the offence, it could have serious implications for him if the vehicle is not returned to him promptly.

Amendment 169 is designed to restrict the ability to detain the vehicle if it belongs to a third party. Could the Minister clarify whether it is intended to detain vehicles innocently lent to others who are subsequently found to be in the UK illegally?

Amendments 171, 172 and 173 are to query the issue of all premises warrants, in new Section 24E(6)(b) and 24E(7), to search any premises owned or controlled by the person arrested for driving illegally to detain the car he was driving—particularly, as stated in new Section 24E(10), when such an all premises warrant cannot be issued in Scotland. Can the Minister explain why such a wide-ranging warrant is necessary in England and Wales but not in Scotland?

The Government also have Amendments 174 and 175 in this group, which widens the power even further, not just to all premises but not restricting such a power to a constable only, which is what was in the Bill originally. Surely, the power is broad enough as it is.

[Lord Bates]

My Lords, I have a couple of amendments in the group, so I shall speak to those first and then turn to the amendments in the names of the noble Lords, Lord Rosser and Lord Paddick.

The government amendments in this group relate to the Secretary of State’s powers to make regulations governing the detention of vehicles used in committing the new offence of driving when unlawfully in the UK and to the criminal justice procedure for the offence in Scotland. Amendments 165 to 168 remove unnecessary references to the procedure applicable to solemn criminal procedure in Scotland, as opposed to summary procedure, since the offence is a summary-only offence in Scotland. Clause 18 provides a regulation-making power covering the destination of any proceeds from a vehicle being forfeited and disposed of. Amendment 170 extends this power to enable regulations to specify the destination of the proceeds of charges made for detaining a vehicle. This is necessary to ensure that it is possible for the charges to cover the cost of detaining the vehicle to be paid either to the police or to a private contractor who is detaining a vehicle on behalf of the police. Clause 18 provides that all premises and multi-entry warrants can be applied for in Scotland by an immigration officer. Amendments 174 and 175 remove this possibility to ensure compliance with the Scottish criminal justice system, which does not currently include provision for either all premises or multiple entry warrants. I invite noble Lords’ support for these amendments at the point when they are moved.

I turn to the issues raised in the other amendments. Amendment 163 would have the effect of introducing a presumption that ignorance of immigration status provides a defence against conviction. The overwhelming majority of illegal immigrants will be fully cognisant of their status, having entered the country unlawfully or deliberately overstayed their visa. The requirements imposed by the amendment are open to vague and inconsistent interpretation and may provide a perverse incentive for some migrants to avoid communication with the Home Office and/or their legal representatives in order to establish the necessary doubt as to whether they could “reasonably” be expected to have known they were required to leave the UK.

Not all those who have entered the UK illegally or attempt to remain illegally in the UK have a history of communication with the Home Office. These are arguably the types of illegal migrant that this legislation is intended to deter. It would be a bizarre outcome should this group be better protected as a result of this amendment than those who have engaged with the authorities.

Where a migrant honestly believes that they have lawful status—for example, because they have been misled by a rogue legal adviser—this will be taken into account in considering whether prosecution would be appropriate in the public interest, and clear guidance to that end will be provided. Should a migrant be able to genuinely evidence that they believed themselves to be legally present, it is highly unlikely that it would be in the public interest to prosecute.

In light of these points, I hope that the noble Lords, Lord Rosser and Lord Kennedy of Southwark, will feel able to withdraw their amendment. Given the concerns about the strict liability nature of this offence, I may reflect further on this matter before Report.

The amendments proposed by the noble Lord, Lord Paddick, which are also in the name of the noble Baroness, Lady Hamwee, represent a significant potential weakening of the powers necessary to enforce the law and realise the intended benefits of this part of the Bill. Amendment 164 would require that a decision whether to charge a person with this offence or institute criminal proceedings be taken within a month of the arrest date. It is right that decisions on whether to prosecute a person for a criminal offence should be taken promptly, but the proposed amendment would introduce an arbitrary time limit and create an additional, and in our view unnecessary, administrative burden on the relevant agencies.

Amendment 169 would have the effect of disallowing the detention of the vehicle if it was under the person’s control. This would defeat the principal purpose of the clause, which is to prevent illegal immigrants driving on our roads. I understand that noble Lords may have intended to probe how the legislation will operate where an illegal migrant is apprehended driving a vehicle belonging to someone else, and that vehicle is detained by the police. That is not an unusual scenario in the context of motoring offences, and the Bill provides appropriate safeguards to deal with just that situation. I draw noble Lords’ attention to new Section 24D(8), which provides a power for the Secretary of State to make regulations about the release of a vehicle that has been detained. This power covers the circumstances in which a vehicle should be released to a third party who has an interest in it, such as the vehicle’s owner. Where a person has been convicted of the new offence created by Clause 18, the courts will have the power to order the forfeiture of the vehicle used in the offence. However, a third party with an interest in the vehicle may apply to the court to have the vehicle returned to them.

Amendments 171 to 173 would significantly reduce the potential success of a search for a motor vehicle by removing the ability to apply for an all-premises warrant to search multiple premises. The power contained in the clause to apply for an all-premises warrant, which allows any premises occupied or controlled by a specified person to be searched, is consistent with the Police and Criminal Evidence Act 1984, which applies in England and Wales, and the equivalent order in Northern Ireland.

The provisions within the clause and within wider immigration legislation specify that the search power may be exercised only to the extent that it is reasonably required. In order to issue an all-premises warrant, the justice of the peace needs to be presented with reasonable grounds that it is necessary. Limiting the scope of searches to premises specified at the outset of an inquiry negates any possibility of using evidence gained during the initial inquiry that provides reasonable grounds to believe that a further search of additional premises would be successful. In the context of this clause, for instance, this might have the perverse effect of preventing officers who have searched one vehicle lock-up from also searching the one next door, despite information suggesting that the vehicle is kept there.