Immigration Bill (Second sitting)

Robert Buckland Excerpts

Tuesday 20th October 2015 Public Bill Committees

[The Chair]

Q 142 Good afternoon. We are now on the seventh panel of witnesses and we will have oral evidence from the Metropolitan police and from Sandwell Metropolitan Borough Council. This session will go until 4.15 pm.

Could the witnesses please introduce themselves for the record?

Stephen Gabriel: My name is Stephen Gabriel and I am the strategic manager at Sandwell Council with responsibility for private sector housing.

Chief Superintendent David Snelling: Good afternoon. My name is David Snelling. I am a chief superintendent from the Metropolitan police, but my role here is that I am chair of the National Police Chiefs’ Council—which has replaced ACPO—Vehicle Recovery Group.

[The Solicitor General (Robert Buckland)]

Q 143 I want to ask Chief Superintendent Snelling some questions about the provisions in the Bill relating to driving. An issue has been raised that somehow the progress being made by the Metropolitan police in particular in dealing with some of the problems relating to stop-and-search measures will be, in effect, hampered by the introduction of provisions relating to the search of vehicles that might be used by illegal immigrants. What do you say to that suggestion?

Chief Superintendent David Snelling: Perhaps I can give a theoretical example from an operational perspective of how this practice is most likely to be employed. It is most likely that we will have come across something by a vehicle that we would have had some reason to stop, which would then enable us to do a check on ownership of the vehicle using the police national computer. At that stage, what we would probably do then is speak to the driver and ascertain his or her details. Again, we would then again do a check on the national police computer about them, but at the same time we would also carry out a driving licence check. That would give us some indication of the type of driving licence they held, if any at all.

So, regarding what we would call the traditional stop-and-search provisions whereby we see somebody acting suspiciously in the street, we go and question them—stop and search them—our interactions would be merely reactive, following on from cause to stop a vehicle and then ascertaining other provisions about the driver from there.

[The Solicitor General]

Q 144 So this is intelligence-led policing, as opposed to what I will frankly describe as some of the random stops and searches that we know disproportionately disadvantage people from the black and minority ethnic communities.

Chief Superintendent David Snelling: If I were perhaps to take out some of the language from there and talk about this particular instance, yes, we would have had cause to stop a vehicle, and we would have done further checks on the driver of that vehicle, which would enable us to deal with them in whichever way is appropriate.

[The Solicitor General]

Q 145 On the new power relating to the detention of a vehicle relating to a person unlawfully here in the United Kingdom, how will that dovetail with existing powers to detain vehicles?

Chief Superintendent David Snelling: We have a variety of powers to detain vehicles. We have a power to stop any vehicle to ascertain ownership and driver details. What we would then do is inquire into whether the driver has authority to drive that vehicle. The power we use most often at the moment would be stopping vehicles where there is no insurance or the driver is driving otherwise than in accordance with their licence—we find a lot of people with provisional licences who are not driving with L plates. In that respect, I would see it as a staged process: we would stop the vehicle, then ascertain the circumstances of the driver.

To fall within the provisions of the Bill, we would most likely need to do a further check with the immigration authorities, which at that stage would give us reasonable grounds—whether or not you could use the term “proof” is another thing—based on a search on the immigration database, to believe that that person is driving as an illegal immigrant. That would fall within the provisions of the Act—should the Bill be made an Act of Parliament. At that stage we would have the power to seize the vehicle, as we would currently do under driving without insurance.

[The Solicitor General]

Q 146 So the extra dimension is then the ability to check the Home Office database?

Chief Superintendent David Snelling: Yes, that is something we would require to actually exercise the powers proposed in the Bill.

[The Solicitor General]

Q 147 Are you satisfied that these provisions will not cut through or cut across the excellent work being done by the police service on reforming stop and search and having a much more intelligence-led approach to it, as opposed to the random problems that we all acknowledge we saw in the past?

Chief Superintendent David Snelling: In terms of the example I have given, it is a series of steps that we can say objectively are what have led us to form the suspicion. We would be referring to an authorised database, owned by a Government agency. That should allay the view of various members of the public that we would just be, to use your terms, stopping people on speculation.

[Keir Starmer]

Q 148 Chief Superintendent Snelling, can I follow up on the questions about driving? You have talked us through the way in which a vehicle would be stopped at the moment, using current powers. I think a number of licences have been revoked as the result of the exercise of existing powers, and of course when you find someone in a car who is not legally allowed to be here or has an irregular immigration status, there are various enforcement actions that can be taken in any event. Have you, on behalf of the chiefs’ council or in any other capacity, asked for a further offence of driving while not having a regular immigration status? In other words, have you identified a gap in your powers that has led you to ask for further offences to be considered because you have found a problem?

Chief Superintendent David Snelling: Can I give you a short answer?

--- Later in debate ---

[Keir Starmer]

Q 172 To be clear, absent that co-operation and support, in a simple case of deport first and appeal later, is your answer as I understand it, namely, that it is simply impossible to assess whether deportation is in the best interests of the child because the exercise is never carried out?

Adrian Matthews: I would add one thing. There are enormous practical difficulties in appealing from abroad, particularly for families who have been destitute in the UK. They will be going back with virtually no resources at all; questions about how you organise an effective appeal from abroad in those circumstances need to be answered. But I do not think it will be, because once they are out of the country, they are out of sight and out of mind. Appealing from abroad is a really tricky problem.

Kamena Dorling: Presumably you can envisage a situation in which there is a mind to remove a parent or a family from the country so that they can appeal from abroad, and we would move the family unit as a whole. That might not be detrimental to the child. Families move all the time. I could remove my son from the UK with me and that would still be in his best interests. I go back to the point that we do not have an assessment of the impact on the children so we do not know.

Ilona Pinter: To put this into a little perspective, one thing that is often overlooked is that deport first, appeal later is going to affect a range of families, including those in which the children are British, those who have status, those who do not have status or those who have an irregular status. We know from the University of Oxford that 120,000 children are undocumented in this country and over half of those were born and have grown up here. Many will not have the language of the country that they are being returned to; they may have never been there, as they have grown up here. Effectively they will be going to a country to which they have never been before.

On the point about British children, which is important, we have had cases in which families have been removed where we believed that the children were British. Because there is no system for finding out the best interests of the child, or even for checking details such as whether the child is British, or whether they would be stateless if returned, there is a real risk that those families would be removed and find themselves in very difficult circumstances.

[The Solicitor General]

Q 173 You are making an assertion that the best interest of the child is not part of the consideration of the decision maker—for example, in this provision relating to certification of whether a deport first, appeal later procedure should be adopted—but is that actually right? Is not the evidence that, on a case-by-case basis, each individual family situation will be assessed? There may be occasions when it is in the best interests of the whole family to deport the entire family, and there may be instances when it is better for the child to remain in the UK while the subject of the application is deported. Is it not really an issue of looking at matters on a case-by-case basis, rather than the blanket suggestion that the best interests of the child simply do not come into it?

Ilona Pinter: I think we agree that it is on a case-by-case basis. We are saying that there is no assessment of children’s best interests. The UNHCR report highlights strong examples in which children’s best interests were not taken into account in the decision making.

[The Solicitor General]

Q 174 Forgive me, but that is different, is it not? There may be some cases in which the view of the Commission is that the child’s best interests were not put front and centre, but that is different from saying that there is a blanket approach of not taking children’s best interests into account.

Adrian Matthews: There are cases, clearly, where it may be in the child’s best interest for the parent to be removed from the country—for example, if the child is affected by domestic violence. That takes individual consideration but, excluding those cases—the UN convention covers this—it is normally the case that it is in the best interest of the child to be brought up by both parents unless it is in their interest not to be. The sorts of circumstances you are envisaging would address that. Of course, decision makers will need to look at those factors but, in general, it is in the interest of the child to be brought up by both parents. We recently did some research on the family migration rules, and I was genuinely shocked to find out that missing parents for what might be considered, from an adult point of view, a short amount of time—a matter of months, but sometimes years and sometimes longer—has a profound effect on young children at a time of their life when they are forming bonds with their parents. It is essential that the state does not interfere with those early things, because that could be what you would regard as irreversible and serious harm.

[The Solicitor General]

Q 175 Which means that sometimes it will be in the interest of the family for the entire family and the children to temporarily leave the country together.

Adrian Matthews: It may be, but that would be very circumstance dependent. Of course, the immigration authorities have no power to remove a British citizen from the country. That might be in the family’s control, and families do make decisions to do precisely that.

Kamena Dorling: I think it comes down to a question of the current decision making that we see. We are not saying that there is a blanket disregard. I just do not think that in a lot of decision making there is meaningful engagement with what effect a decision will have on a child. As we have seen in guidance from the Supreme Court, you are first meant to assess what is in the best interest of the child before looking at competing considerations. No other considerations, not even immigration control, automatically trump what is in the best interest of the child. We do not really see that level of engagement in decision making; we see what I would call lip service: “We have a section 55 duty. Obviously we have considered this and it is fine.” I am paraphrasing, obviously.

There needs to be more onus on proactive assessment, and we have provided a case study in which the child was actually British—we were looking at the decision to remove that child—and because the mother could not show evidence that the child was British, she was going to be removed with that child. It was only in the process of the in-country appeal that the tribunal ordered the Home Office to look into the status of the father. It was then confirmed that the child was British and should not be removed. It is about that kind of proactive engagement.

Adrian Matthews: Part of the weakness of the system—you might be right that there is some consideration of the best interest of the child subject to immigration control—is that there is no consideration of the best interest of the child who is not subject to immigration control. That could be a settled child or a British national child. The decision-making process, because it is geared towards immigration, is not set up to look at the wider effects. A clear example is that the Home Office does not know how many children are affected by the family migration rules. It does not know how many British children and settled children are affected by the exclusion of a foreign national parent. The Home Office does not count them.

[The Chair]

That was an interesting and important exchange. I am conscious that Simon has been waiting patiently, and then I will bring in Anne, Craig, Mims and Kelly.

--- Later in debate ---

[The Chair]

I am sorry, but we are going to move on now. A number of people are indicating that they want to speak. I have Mims and Kelly down, but the Minister and Sarah want to make a brief intervention on this point.

[The Solicitor General]

Q 188 I was interested to hear the point about engagement in the process of deportation. Would you agree with me that there is an opportunity to do that, because people who are in a position of having had their leave refused and their asylum-seeking status rejected can apply for an extension of support from the Home Office, if they show that there is a genuine obstacle to their being removed; for example, ill health or a failure by the home state’s embassy or high commission to provide documentation? Do you think that mechanism is an opportunity for both sides to engage with each other, explore the obstacles and find a way forward that allows families to be deported?

Adrian Matthews: My understanding is that the precise conditions would be set by regulations. Is that correct?

[The Solicitor General]

Yes.

Adrian Matthews: It is very difficult to answer your question without seeing how those regulations will be set. The indication from the consultation was that they would be on fairly restricted grounds. You are correct that there was a mention of health but my experience is that—particularly where the Home Office engages with mental health issues—you are asking caseworkers to make decisions on things that they are really not competent to make decisions about such as the mental health of parents. We end up with quite a lot of distressing situations where the mental health of the parent might be a genuine obstacle but it is not recognised as such.

[The Solicitor General]

Yes, but my question was: is it not an opportunity for both sides to look at the evidence and come to an informed decision? I agree that people cannot make decisions on mental health unless they have evidence in front of them. If there is evidence that the applicant has a mental health problem, that should guide the decision making, should it not?

[The Chair]

Q 189 With a panel of three it is always difficult because each wants to give an opinion, so if we have one question to them, we will get the responses quickly. We only have four minutes. Two people want to ask questions and Sarah wants to make a brief intervention, so do not feel that you all have to respond to the questions.

Ilona Pinter: Can I make a point?