Border Security, Asylum and Immigration Bill (Sixth sitting)

Matt Vickers Excerpts

Committee stage
Thursday 6th March 2025 Public Bill Committees

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

It is a pleasure to welcome you back to the Chair, Mr Stuart, for what will be a marathon session. Clause 19 provides definitions for the key expressions used in relation to the electronic devices measure. These definitions mean that the measure will focus the powers only on irregular entrants who are in possession of an electronic device that authorised officers have reasonable groups to suspect contains information relating to facilitation offences under the Immigration Act 1971.

Furthermore, clause 19 defines “authorised officer” as:

“an immigration officer, or…a constable of a police force maintained by a local policing body”.

The aim of the powers is to gain access to information held on such devices on the organised crime groups who help facilitate or plan migrants’ dangerous journey and, as a result, to save lives from being lost. The clause is integral in defining the key expressions relating to how the powers can be used.

Clause 20 enables immigration officers within the United Kingdom of Great Britain and Northern Ireland and police constables in England and Wales only to search an irregular entrant if they have reasonable grounds to suspect that they are in possession of an electronic device that contains information linked to a facilitation offence. That power enables the search of a person, property, premises, vehicle or container. That is to ensure that, in any circumstances in which it is necessary to obtain a device, the authorised officer can use the powers to conduct a search. The clause contains safeguards to ensure the powers are used appropriately. Clause 20 provides clarity over how searches must be conducted in accordance with these powers.

Finally, clause 26 defines any additional expressions referenced throughout clauses 19 to 23. That will ensure that it is clear to users of the powers what key expressions mean. It is important to be transparent about what is meant and to ensure that the public and authorised officers fully understand these expressions.

[Matt Vickers (Stockton West) (Con)]

We support clauses 19 to 26, but only in so far as they endorse powers that we think already exist to seize, extract and retain data from mobile devices. Clause 19 provides definitions of key terms in sections 20 and 21 relating to the provisions of those clauses to allow authorised officers to search for, seize and retain relevant articles. The definition of a “relevant article” is

“any thing which appears to an authorised officer to be a thing on which information that relates, or may relate, to the commission of an offence under section 25 or 25A of the Immigration Act 1971 is, or may be, stored in electronic form.”

Will the Minister provide some concrete examples of what the Government think such information might consist of?

Clause 20 gives relevant officers—either an immigration officer or a police constable—powers to search a relevant person, which is someone who has entered the UK without leave or in breach of a deportation order. Will the Minister explain why subsection (2) does not allow for any more than one search after the person in question has arrived in the UK? The clause gives officers the power to search for “relevant articles”, which are described in clause 19 as

“any thing which appears to an authorised officer to be a thing on which information that relates, or may relate, to the commission (whether in the past or future) of an offence under section 25 or 25A of the Immigration Act 1971”.

That is quite a narrow definition, as it covers just electronic devices. Will the Minister reassure the Committee that the necessary powers to search for non-electronic items exist elsewhere? In practice, we suspect the power will be used to gather information and evidence to identify smugglers for prosecution. We fully support that, but most mobile devices are destroyed during or prior to travelling across the channel. Will the Minister therefore explain whether she expects any of the evidence gathered using the powers in these clauses to be used to support decision making on immigration enforcement?

If the devices are seized, as the former director general of Border Force pointed out in his evidence, they may contain useful information about nationality, identity, age and travel history, and may provide valuable evidence when assessing asylum claims. Will the Minister explain how effective the new powers will be in supporting evidence gathering to remove those with no right to be here? Will information gathered using these powers be available to asylum screening teams? Will that evidence be used in decision making for immigration appeals? These clauses do not have extraterritorial reach, so can the Minister explain to what extent the Government envisage these additional powers will make a meaningful difference to smashing the gangs, when many of the perpetrators are located outside the UK?

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

These clauses create invasive new search, seizure and retention powers, along with the powers to access, copy and use information contained within an electronic device. The new powers can be applied to any person who arrives irregularly and has not yet been granted permission to enter or remain in the UK. They allow an immigration or police officer to fully search a person, including a search of that person’s mouth. I expect that the Minister will tell us exactly whether that particular qualification is required for these new powers.

This is not the plot and setting of some future dystopian film: it will be the UK sea border in the course of the next few months. These things will not be done to hardened criminals wandering the streets of the United Kingdom or those associated with violent crime. They are to be done to some of the most abandoned and traumatised people in the world. With these clauses we are starting, measuredly, to go into police state territory. They are essentially a hybrid form of stop-and-search powers, without the due qualifications and reassurances. I do not know if profiling will be a part of this—I will be interested in the Minister’s response—but it seems like only one profile will be included in all that, which is that of every asylum seeker. They may all be subject to these new powers.

For these powers to be exercised, there need only be reasonable grounds and suspicion that a relevant article appears to store some electronic information that relates or may relate to the future or past commission of a facilitation offence. That seems excessively broad. Practically any person who arrives irregularly to the UK may be subject to these powers. Any information received from these searches would be used for preventing, detecting, investigating or prosecuting facilitation offences. The property can be retained for as long as considered necessary to assess, examine or copy information for use in proceedings for an offence, before being returned or disposed of.

I trying to think why the Government want these clauses. I know they are going to tell us it is all about helping to disrupt organised crime and making sure they can find particular and specific information on electronic devices, but I think a lot of it has to do with the 2022 High Court ruling decreeing that the Home Office’s secret policy of blanket searching, seizing and returning mobile phones from individuals arriving by small boats was unlawful.

Just like the Tories before them, if any particular law that defends and protects people is seen or deemed to be a little bit unnecessary, the Government will just bring in a new one to override it completely, forgetting anything to do with the consequences and implications for people. These new offences clearly compromise a person’s right to a private and family life. Given the confidential, legally privileged, sensitive, private and personal nature of the messages, photographs, information, correspondence and data that may be on such mobile devices, we hold that that could only ever be the case. To be fair, the Government respect that and acknowledge it as fact, and the European convention on human rights memorandum suggests that the new powers could be distinguished and that phones will not be seized on a blanket basis when these powers come into force—well, thank goodness for that.

The memorandum says:

“The Home Office will issue non-statutory guidance about the use of the powers and training which will be required for authorised officers exercising those powers.”

We will have to see that happen pretty quickly, because we have no idea how any of these powers will be exercised. Again, I am entirely happy to take the Minister at her word on how the new law will be exercised as we go forward. However, there is no such guidance for parliamentary scrutiny during the passage of the Bill, so it remains entirely unclear how the Home Office proposes to use these wide and invasive new powers.

I am distinctly uncomfortable with the new powers, and I am disconcerted about how they may be applied and used. A number of agencies have serious misgivings about the type of individuals who will be subject to these new powers. The Minister has to explain just a little more how these powers will be used and what protections will be put in place, particularly for some of the most traumatised people whom we will be ever deal with in this country.

--- Later in debate ---

[Dame Angela Eagle]

Clause 21 provides immigration officers in the United Kingdom of Great Britain and Northern Ireland, and police constables in England and Wales, with the power to seize and retain electronic devices. Clause 21 provides a clear and detailed approach for authorised officers to ensure that the powers are correctly, efficiently and effectively used.

[Matt Vickers]

Clause 21 gives authorised officers the power to seize any electronic device that has been found in a search under clause 20, or is not found on a search but appears to the officer to be, or to have been, in the possession of a relevant person. How would officers determine whether an article appears to be or to have been in the possession of a relevant person? What is the evidence threshold for that?

My question for the Minister about clause 21 is similar to my one about clause 20. Will the powers be used to gather evidence that can be used in immigration decision making and appeals? The Opposition support the powers in this clause, in so far as they go.

[Dame Angela Eagle]

I am glad that the hon. Gentleman supports the powers, but I emphasise to him again that clause 21 is very much in the context of the clauses that we have just agreed. It is a more limited—not a blanket—power. It exists within the parameters that I set out in the previous debate.

I emphasise again that none of the information seized in this context could be used in an asylum case; it is for the purposes of dealing with organised immigration crime. It is not for wider purposes, unless other criminality is found, in which case it becomes available and can be passed on. That will be dealt with in some clauses that are coming up. But these provisions are limited to collecting evidence and intelligence on organised immigration crime from people who have just entered the country illegally.

Question put and agreed to.

Clause 21 accordingly ordered to stand part of the Bill.

Clause 22

Duty to pass on items seized under section 21

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

[Dame Angela Eagle]

Clause 22 will provide immigration officers using the powers with the duty to pass on electronic devices to other agencies, such as the police. The clause will be used if an electronic device seized contains information about a non-immigration offence—this is the case that I was hinting at earlier. Clause 22 provides the process to be used in these types of cases. We cannot seize an electronic device without that process in place, because we may discover information relating to a criminal offence, such as a counter-terrorism offence or an offence related to indecent and/or obscene material of a child—those kinds of offence. If we discover evidence of such activities on a phone, we must act, and to act we have to have the processes in place to enable items to be forwarded to police or any other agency that needs to take possession of the device for its investigation into the other criminality.

The clause provides for a robust step-by-step process to ensure that immigration officers know what actions to take to forward the device or if the agency to which we wish to forward the device refuses to accept it for an investigation.

[Matt Vickers]

Clause 22 gives authorised officers the duty to pass on seized items that have been found in a search under clause 21 where there is a reasonable belief that the article or information stored on it has been obtained in consequence of, or is evidence in relation to, an offence other than the relevant immigration offence. The immigration officer is under a duty to notify someone who has the functions to investigate the relevant offence. What might be the reasons why a person notified under the clause might not accept the article, and what would be an acceptable reason? If a relevant person refuses to accept the article, what are the next steps? We support the powers in the clause so far as they go.

[Dame Angela Eagle]

It is a bit difficult to talk about specific circumstances in a generalised way. As the hon. Gentleman will perceive, there may be some material on a phone that police or immigration officers are worried breaks the criminal law—I talked about counter-terrorism and child sexual exploitation as potential examples. That information may be passed on and the relevant authorities might decide that it was not at a criminal level—that would be the kind of occasion that the hon. Gentleman was asking me about.

However, one would assume that, with the appropriate training, it would be fairly obvious whether something would be a worry for the purposes of counter-terrorism or child sexual abuse, and police forces could understand whether they have an obligation to try to prevent criminal activity of a category other than that for which the phone was originally seized. Once we begin to seize phones for narrow purposes, we have to make certain that passing on that information is lawful, and that is the purpose of the clause.

Question put and agreed to.

Clause 22 accordingly ordered to stand part of the Bill.

Clause 23

Powers to access, copy and use information stored on relevant articles

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

--- Later in debate ---

[Matt Vickers]

Clause 23 gives authorised officers the power to access, copy and use information stored on relevant articles that have been retained under powers detailed in clause 21, and authorises the use of any information retained under this clause relating to the prevention, detection and investigation, or prosecution of such an offence. We support the powers in the clause. However, it is important to bolster the utility of the powers in clauses 20, 21 and 23. It is for that reason that we have tabled new clause 22, picking up on the suggestion made by the former director general of Border Force in his written evidence to the Committee.

We have tabled the new clause because currently Border Force and immigration enforcement officers are not able to use mobile devices to track illegal migrants on bail. Although powers exist for electronic tagging, there are difficulties with using these powers and so they are not frequently used. At present, mobile devices can be used only for tracking people for serious offences. Under the Investigatory Powers Act 2016, an illegal entry into the UK does not count as a serious offence for these purposes.

Mobile devices are often used by migrants on bail to report by phone rather than in person, which minimises their risk of arrest and detention on reporting. Without access to location data about illegal migrants, they are able to stay at addresses not listed on their bail forms. If immigration officers were able to make use of location data from mobile devices, they would be better able to secure compliance with bail conditions and thus reduce the risk of absconding.

New clause 22 would allow law enforcement to access the mobile phone location data of people who enter the UK illegally. It would do so by adding illegal immigration to the Investigatory Powers Act 2016 as a serious offence that allows location data to be used. We would also amend the Immigration Act 2016 to allow a person’s mobile phone location data to be used as part of electronic monitoring for immigration enforcement.

Of course, migrants can change phones, but they are more likely to make use of them than electronic tags. In our view, the new clause would add a useful new power to immigration enforcement teams. I am very keen to hear the Minister’s view.

[Dame Angela Eagle]

New clause 22 proposes an amendment to section 86(2A) of the Investigatory Powers Act 2016. However, I do not think that this proposal is either necessary or appropriate.

The Investigatory Powers Act 2016 provides law enforcement and other relevant public authorities with the ability to acquire communications data covertly, where it is necessary and proportionate to do so. Members of the Committee should particularly focus on the seriousness of the powers conferred in the 2016 Act, including the ability to covertly acquire communications data where it is necessary and proportionate to do so.

With new clause 22, the question arises as to whether it is appropriate to add immigration issues to that area of the law, and whether, with an immigration issue, it would be necessary and proportionate to start acquiring covertly communications in an immigration setting. It is important to consider whether that would unbalance the Investigatory Powers Act 2016 and cause some issues that would probably weaken it.

The Investigatory Powers Act 2016 is intentionally neutral on the specific types of crime for which the powers within it can be deployed. Instead, it sets a threshold for serious crime, to enable access to more intrusive powers. The threshold for the acquisition of communications data—the who, when, how and where of communication, but not the content—is set out in section 86(2A) of the Investigatory Powers Act. Events data, which includes details of where and when a specific communication took place, is available only for crimes that meet the serious crime threshold. The threshold at section 86(2A)(a) of that Act is a crime for which a sentence of at least 12 months’ imprisonment can be handed down.

The proposed new clause does not define illegal immigration, but many of the immigration offences in section 24 of the Immigration Act 1971, as recently amended by the Nationality and Borders Act, will already meet the serious crime threshold. There is no real reason to put immigration crime in there; it is already implicitly included. If we start to add particular instances, that will unbalance the way that the Investigatory Powers Act works. That is a technical point, but it is about keeping our statute book coherent, rather than adding things in for effect. Essentially, since offences under section 24 of the 1971 Act are indictable, the serious crime threshold would already be met, so events data can already be acquired as part of the investigation. We do not need to go through the rigmarole in the new clause to emphasise what is already possible.

Where offences do not meet the serious crime threshold, it would not be proportionate to extend the use of events data to those crimes. The right to private and family life is set out in article 8 of the Human Rights Act 1998, and it is important to uphold our obligations to the European convention on human rights. I know that is not always the most popular thing among Opposition Members, but as someone who voted for it in 1998, I am still quite proud of it. Defending our human rights and ensuring that such things are proper, proportionate and lawful is an important part of trying to pursue and deal with difficult cases with certain standards of behaviour.

Although article 8 is a qualified right, we must ensure that interference remains necessary and proportionate to the level of criminality. By introducing specific crime types that do not meet the sentencing threshold, we risk eroding the safeguards in the regime. By taking away the rights of people who may seem marginalised at the moment, I submit that we are putting at risk our own rights, and human rights in general. That is not something that I would want the Government to do.

New clause 22 would also unnecessarily amend schedule 10 of the Immigration Act 2016. Where a person is subject to electronic monitoring as a condition of their immigration bail, the Home Office can access their location details via the GPS tag or non-fitted device. There is no need to access mobile phone location data, because there are already powers to monitor the whereabouts of individuals at risk of absconding. I hope that, having had that debate, the hon. Member for Stockton West will realise that those things are already covered in the way that we currently do things. I hope that he will not press the new clause to a vote, but obviously we will not know until we get on to voting on it—some time in the future.

Question put and agreed to.

Clause 23 accordingly ordered to stand part of the Bill.

Clause 24

Amendment of the Criminal Justice and Police Act 2001

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

[Dame Angela Eagle]

Clauses 24 and 25 deal with amendments to the Criminal Justice and Police Act 2001, extending those powers to other authorised officers and to key definitions in the clauses. Clause 24 includes amendments to the 2001 Act to extend powers of seizure where a device may contain legally privileged material, excluded material and special material. The 2001 Act also contains essential safeguards for the handling of such material. Extending its powers will ensure that the seizure of any device will not be prevented by claiming that it holds legally privileged, excluded or special material, which is often an excuse that is raised when such matters come up.

Furthermore, clause 24 will ensure that this data is protected, but that operationally, the information needed can still be taken for the purpose of these powers, and that seized electronic devices are returned as soon as reasonably possible.

Clause 25 provides the Secretary of State with the ability to extend the powers to other authorised officers, via secondary legislation, if they are required to support the disruption of organised immigration crime. The Government will ensure that any decisions on extending the powers to other authorised officers will be fully considered before action is taken.

[Matt Vickers]

Clause 24 amends the Criminal Justice and Police Act 2001 so that provisions relating to the protection of legally privileged material and excluded and special material apply when mobile devices are seized under clauses 20 to 23. Can the Minister explain how often the Government envisage that those provisions would need to be invoked?

Clause 25 allows the Secretary of State to make regulations to extend the powers given to authorised officers in clauses 20 to 23, to be available to other people, including people designated by the Secretary of State. Why might these powers need to be extended to different categories of people? Who does the Minister have in mind? Why are those not included on the face of the Bill? Why was it judged appropriate that these powers are subject to the negative procedure?

Clause 26 defines key terms used in the preceding clauses, and we have no problem with those definitions.