Immigration Bill (Tenth sitting) Debate

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Department: Attorney General
Tuesday 3rd November 2015

(8 years, 5 months ago)

Public Bill Committees
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Keir Starmer Portrait Keir Starmer
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I had the opportunity when we were discussing clause 18, which inevitably included a discussion of schedule 3, to speak to the amendments. I hope the Minister heard my concerns. I do not think I will make them any stronger by repeating them.

Robert Buckland Portrait The Solicitor General (Robert Buckland)
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I am grateful to the hon. and learned Gentleman for his observations. We believe amendments 93 and 94 are unnecessary and would create a disproportionately expensive bureaucracy around the provisions. The Home Office will only share the details of migrants who are liable for removal or deportation from the UK, such as those who have exhausted all appeal rights. Those will include people who have been served with a deportation order or enforcement papers or who have absconded from immigration control. They will be fully aware of the reasons why they are considered to be disqualified people. Those who are refused permission to stay will be warned in the Home Office decision letter of the practical consequences, including for their continued ability to operate a bank account in the UK. To require the Home Office separately to actively provide them with such information in every case where their data are shared would cause delay and waste resources. Details of the individuals are already shared with the anti-fraud organisation CIFAS for the purpose of enabling banks to comply with the Immigration Act 2014 and also to assist in the prevention of fraud. The accuracy of the data is subject to rigorous checks by the Home Office before it is shared. This is reflected in the fact that the Home Office receives very few complaints or inquiries from banks or individuals regarding the current sharing of data arrangements under section 40 of the 2014 Act. Only three official complaints have been received since the Home Office started to share data with CIFAS in 2011.

Under the new provisions, the Home Office will be notified by banks when they believe that an account holder is a disqualified person. It will then carry out a further thorough check before the bank will be required to take any action to close an account. The bank will be notified if circumstances have changed and the person is no longer disqualified. This double check will act as a further safeguard to make sure that the bank acts on the most up-to-date information. Individuals whose accounts are subject to closure will be told by the bank of the reason why, provided that it is lawful to do so. If, despite all the checks, a person still considers they are lawfully present and that incorrect information has been provided, they will then be given the information they need to swiftly contact the Home Office so that any error can be rectified.

As is currently the case with data provided to CIFAS, the Home Office will be able to correct any mistake in real time so that the person’s details will immediately be removed from the data that are shared with the banks. That will be a far swifter and more effective means of correcting any error than in the process proposed in the amendment. If an account is closed, any credit balance will not be withheld from the individual, but returned to them by the bank in the normal way. In the unlikely event that an account is closed by mistake, the situation can be swiftly rectified in the way I have described without the serious consequences for the individual that have understandably been envisaged by the hon. and learned Gentleman. We believe the proposed compensation would therefore be disproportionate in the circumstances, and I invite him to withdraw the amendment.

Keir Starmer Portrait Keir Starmer
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I am grateful to the Solicitor General for his explanation and reassurance as to how it is intended the scheme will work. Would he be good enough to write to me or to the Committee, setting that out, since it is not in the Bill?

Robert Buckland Portrait The Solicitor General
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I am happy to write to the hon. and learned Gentleman. That is now on the record.

None Portrait The Chair
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That is helpful.

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That concern about stop-and-search, with which I fully agree, led to our amendment. Immigration officers should have the power originally intended by the then Conservative Government in 1971, but that power should not be allowed to encroach further and damage community relations.
Robert Buckland Portrait The Solicitor General
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I am grateful to all the hon. Members who took part in this useful debate, which has helped to tease out some of the important issues that underline the extension of powers in this part of the Bill. I am sure that will be a common theme in our debates on subsequent amendments.

I will make it clear at the outset that while it is interesting to hear analogies between the new power and stop-and-search, this is not a stop-and-search power; it is a different type of power. It is important to draw that distinction, because while it is important to talk about tensions in communities and to understand the reality of the circumstances in which immigration officials operate, it would be wrong to hurtle helter-skelter down that route without analysing precisely what we are talking about.

We are talking about a power to ask questions of an individual that has to be based on a reasonable suspicion. It is therefore not a speculative fishing exercise and it should never be based on the random prejudice of what someone looks like. Immigration officers must comply with their duties under the Equality Act 2010. Stopping and examining individuals by means of racial profiling is not in accordance with their public sector equality duty pursuant to section 149 of the Act. They are bound, like any other public body, to stay within the law.

Paul Blomfield Portrait Paul Blomfield
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As I say, we are both concerned that we get this right. Are we not playing with semantics when we say that this is not stop-and-search? We could call it stop and check, but does it not have all the characteristics of stop-and-search? Is the Solicitor General satisfied with the definition of “reasonable suspicion” in chapter 31 of the enforcement instructions and guidance, which I cited? Does it not give enormous latitude?

Robert Buckland Portrait The Solicitor General
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Importantly, we have to remember that we are dealing with powers that relate to a potential civil consequence as opposed to a criminal one. Therefore, it is important to draw a distinction between the stop-and-search powers and this particular competence. There will be joint crime reduction operations—commonly known as CROPs, another unfortunate acronym, for which I apologise—where, for example, somebody is stopped on the underground for fare evasion and is then referred to immigration officers. That is intelligence-led enforcement. It is not about the sort of random checks that the hon. Member for Sheffield Central illustrated very eloquently and with proper concern—a concern that I share. I do not want that sort of culture to be spread through the use of these powers. As a result of duties under the Equality Act and due to of the importance of community impact assessments made before operations, which have to be signed off by a senior official in the rank of assistant director, some of the practical safeguards are in place to deal with the sort of mischief and problems that he and other hon. Members have identified.

I am grateful to the hon. Member for Paisley and Renfrewshire North for raising the Singh v. Hammond case. It is important to note that that judgment of 1987—it is now nearly 30 years old—says:

“An examination…can properly be conducted by an immigration officer away from the place of entry and on a later date after the person has already entered…if the immigration officer has some information in his possession which causes him to enquire whether the person being examined is a British citizen and, if not…whether he should be given leave and on what conditions.”

There we have it—the basis of action.

Paul Blomfield Portrait Paul Blomfield
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I anticipated that the Solicitor General might cite that case, which is the basis for the extension of powers. In reaching a view on that, the Court of Appeal said that

“the case does turn very much on its own facts”.

That case involved an immigration amnesty and an immigration officer’s specific and defined suspicion of identity deception. It was very narrowly drawn by the Court of Appeal and does not give a legitimate basis for the much wider use subsequently.

Robert Buckland Portrait The Solicitor General
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The hon. Gentleman’s interpretation is interesting. I am sure it would be an attractive submission to make were the issue to be revisited, particularly in litigation. It is nearly 30 years since that case. Since then, the Home Office has relied on it. There has been no attempt by a Government of any colour to redefine things and go back to what he would describe as the original 1971 position. There must be a very good public policy reason for that; that reason is simply that it is entirely reasonable to allow the immigration authorities to have a little more time and space, based upon a reasonable suspicion, in which they can question a person who they reasonably suspect might be an illegal immigrant. The published guidance reflects the Singh v. Hammond judgment. It makes it clear that before any inquiry begins, there has to be reasonable suspicion.

My concern is that if the power of examination is limited only to the point of entry, we could have—perversely—an increase in people being arrested, because the power to ask questions is, as I said, not a power of arrest, but a different type of power. It allows people to give a reasonable explanation before we get to the stage of any apprehension or arrest, which I think is a good thing. I would not want to see a perverse situation where, in effect, the immigration authorities are shooting first and asking questions afterwards. I am sure that the hon. Gentleman would agree that that sort of approach would definitely inflame the situation and lead to the perverse consequences that we all worry about.

Keir Starmer Portrait Keir Starmer
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I have listened very carefully to the Minister’s explanation and justification. It must follow that operations at tube stations or other places against a number of individuals, based perhaps on what they look like, would be outwith the guidance and outwith the Minister’s explanation and role.

Robert Buckland Portrait The Solicitor General
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I entirely agree. If their operations relate to other intelligence—for example, on organised fare dodging or some sort of illegal activity on the tube that was either antisocial or worse—then clearly, that joint working would be very important and would reflect the best intelligence-led operations. We are all keen to eliminate a random use of these powers that would be arbitrary and would not, in my judgment—and I am sure, in any reasonable person’s judgment—reflect the criteria set out in the Singh case and reflected in guidance ever since.

Sarah Champion Portrait Sarah Champion
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Opposition Members have real concerns about community cohesion and racial profiling, and it sounds as if the Minister too is concerned that the powers should not be used inappropriately. I appreciate what he said in relation to my hon. and learned Friend and the guidance notes. Would the Minister therefore commit to conducting a review to make sure that these powers are not overused, and that our concerns are just concerns and not reality?

Robert Buckland Portrait The Solicitor General
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I fully expect that any revised guidance notes published to reflect any changes passed in this Act will be a faithful reflection of the case law as we have outlined it today. I am absolutely sure that my colleagues in the Home Office will keep these matters under continuous review. If, indeed, a body of evidence emerges that challenges the position I have outlined today, I am sure that colleagues would look at that. It would perhaps be wrong of me to commit to anything specific today, but the hon. Lady has placed her concerns on the record for all to hear, and I am sure that the observations that we have made in this debate will be heard in another place and at other stages before the Bill, as we hope, eventually becomes law.

The final point I want to make is that I do not think that anybody wants to see the lawful and proportionate operations of our immigration authorities severely hampered. My genuine fear is that however well intentioned this amendment might be, it would lead to a hampering of those operations. Therefore, for those reasons, I urge Opposition Members to withdraw the amendment.

Keir Starmer Portrait Keir Starmer
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I am grateful to hon. Members for setting the context within which the powers that now exist operate and to the Solicitor General for his explanation. I accept that technically, in a number of legal respects, there is a difference between stop-and-check and stop-and-search, but I am not convinced that the impact on community relations follows from what are legal distinctions. In other words, I am not sure that the public out there quite accept and understand the nuances that we in this Committee might understand as the differences between the two, and there are real concerns about the way in which the existing power is being exercised. In the end, this comes back to the words that the Solicitor General used, which I jotted down. He said that it makes sense to have a little more time and space, and that that would avoid action possibly being taken on arrival that need not be taken. That is true in the sense that this is supposed to be a power that is excisable on arrival, but it very quickly moves from a little more space to a generalised power that has been exercised in the way that has been described. On that basis, I do not withdraw this amendment.

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Question proposed, That the clause stand part of the Bill.
Robert Buckland Portrait The Solicitor General
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We have already dealt with some of the important provisions of clause 19, so I will try to be as brief as I can. In essence, clause 19 will amend schedule 2 to the Immigration Act 1971 to provide clear powers for immigration officers—when, for example, they are examining a person to see whether their leave should be curtailed—to search premises for evidence of such purposes. It would also update existing powers to seize documents to include those held in electronic form. As we know, immigration officers may examine a person to establish whether they require leave to be here in the UK and, where leave is required, whether they already have leave or if it should be given, including the period and conditions of leave. However, the current provisions are not explicit about establishing whether any existing leave should be cut short. Situations are encountered by immigration officers where it may be appropriate to curtail the migrant’s leave because that person was found to be working or claiming benefits illegally or, sadly, had obtained leave by deception. As a consequence, where leave is ended with immediate effect, that person becomes liable to removal.

If the House consents, we will add a power for immigration officers, where they are already lawfully on premises, to search for and seize documents which may support a decision to curtail leave. This does not include documents which are subject to a legal professional privilege. Immigration officers already have powers to search for evidence of the offences of breaching conditions of leave or obtaining leave by deception, but this of course is only for evidence that would support a criminal prosecution. However, in the vast majority of cases where migrants fail to comply with immigration law or do not depart voluntarily, our strategy is to remove them from the United Kingdom rather than pursue costly prosecution and possible imprisonment for minor immigration offences. We believe that to be a proportionate approach which is in the public interest.

We therefore believe that it is more appropriate for immigration officers to have specific administrative search powers where they are exercising administrative rather than criminal powers, and we already have the framework in schedule 2 of the Immigration Act 1971. I have already mentioned the importance of updating powers so that legislation moves with the times, which is why we now include documents that might be stored on electronic media or devices.

Sarah Champion Portrait Sarah Champion
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I am sorry to labour this point. I hear what the Minister is saying, and I do not disagree with the argument that he is making. However, does the Minister really think that the Home Affairs team, the immigration team, have the resources to go in and do this work? In my constituency, when we have people who are waiting to be deported, there simply are not the officers who can go in and carry out the work. Surely the Minister should be looking at that.

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Robert Buckland Portrait The Solicitor General
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I do not want to criticise the hon. Lady for repeating an important point but, as I have already said to her, it is vital to remember that these powers are going to be exercised in a proportionate way, based on genuine intelligence. They are not going to be exercised in a scattergun way that would demand a significant increase in resources. We are confident that the proposals and powers we propose to introduce will make it easier for immigration officers to take that action and remove some of the understandable practical obstacles that exist with administrative procedures such as this, which then end up with a civil consequence as opposed to a criminal consequence. In short, at the moment it is easier for immigration officers investigating a criminal offence to search and seize than it is when it comes to the more practical measure of enforcing the civil consequences of decisions made after due process. This is a harmonisation of powers, if you like—let us remind ourselves that this is not a new power of entry. It relates to a time when immigration officers are already lawfully on the premises. It is a reasonable and proportionate measure. I think that the concerns that the hon. Lady raises are therefore met by the increased flexibility that the authorities are now going to enjoy.

Keir Starmer Portrait Keir Starmer
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As I think the Minister accepts, powers of search and seizure in connection with the imposition of civil penalties are rare in our law. There are other examples, but they are rare. The usual circumstances are for search and seizure powers to be in connection with the imposition of criminal penalties. The question I want to put to the Minister is, what is the principle? I do not think that anybody would argue that it is sensible to move to a situation where all civil penalties give rise to a power of search and seizure and therefore there is a sub-class that may have these powers connected to it. What is the principle behind this clause and that sub-group of civil penalties that attracts the search and seizure powers?

Robert Buckland Portrait The Solicitor General
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Putting it as simply as I can, the principle is that we want to ensure that, rather than having to resort to the use of criminal sanction—which, although it might mark the commission of offences and impose a punishment and penalty on individuals, could properly be seen as a disproportionate use of state power—we can resort to what, as I have said, is perhaps a lesser used path but one that is still within what the hon. and learned Gentleman and I would regard the bounds of compatibility with the European convention on human rights and our existing law. It is a proportionate use of powers. I remind the Committee that this is not a power of entry. Immigration officers have to be lawfully on the premises before these powers can be used—and, of course, there have to be reasonable grounds to suspect that the person with regard to whom the powers are being used may be liable to be detained and removed from the United Kingdom. There is a caveat, too: the search should only be to the extent reasonably required to find the documents, so a complete top to tail, fingertip search of the house, which would be wholly disproportionate, would not be within the particular use of this power.

I will give another example. There is concern about seizure of mobile telephones. Yes, there is a power to seize, but any such device on which electronic documents are stored will be seized only if it is not possible for the owner otherwise to produce the document in a visible and legible form. Again, that is an example of the proportionality and the safeguards that exist in this particular instance. I hope that on the grounds of principle and particular efficacy I have outlined what I regard as a middle way, which these provisions represent.

Question put and agreed to.

Clause 19 accordingly ordered to stand part of the Bill.

Clause 20

Search of premises in connection with imposition of civil penalty

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

Robert Buckland Portrait The Solicitor General
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Clause 20 provides a power for immigration officers to search premises for documents that might help in determining whether a civil penalty should be imposed on an employer or landlord. This power may only be exercised where immigration officers are already lawfully on the premises. Immigration officers already have powers to search for evidence of the offence of employing illegal workers and will have them for the new offence of leasing premises to a disqualified person. However, it is often more appropriate, as with my previous remarks on clause 19, to impose a civil penalty rather than pursue a prosecution. Therefore, we believe it is fitting for immigration officers to have specific administrative search powers when they are exercising powers for a non-criminal purpose. For that reason I beg to move that clause 20 stand part of the Bill.

Question put and agreed to.

Clause 20 accordingly ordered to stand part of the Bill.

Clause 21

Seizure and retention in relation to offences

Question proposed, That the clause stand part of the Bill

Robert Buckland Portrait The Solicitor General
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Clause 21 provides a power for immigration officers to seize anything they may find in the course of exercising a function under the Immigration Acts while lawfully on the premises where they believe that it has been obtained in the consequence of committing a crime, or where it is evidence of an offence. They may do so only in order to prevent the item being concealed, lost, altered or destroyed and may retain it unless a photograph or copy is sufficient. Again, this is similar to the example of the mobile telephone seizure that I gave in the debate on clause 19.

Immigration officers sometimes encounter evidence of other crimes when they are searching premises using immigration powers. In such circumstances they will contact the police and, if necessary, wait for police to come in order to secure the evidence. In the meantime, the problem is that immigration officers have no specific powers to prevent other persons on the premises removing, altering or destroying the evidence before the police arrive. It makes sense that immigration officers who are trained in securing evidence should be able to seize it to ensure that this mischief does not happen.

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

Robert Buckland Portrait The Solicitor General
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I beg to move amendment 95, in clause 22, page 27, line 36, after “If” insert “the immigration officer has reasonable grounds for believing that”

This amendment clarifies that where an immigration officer is not absolutely certain that an item which has been seized under clause 21 is also evidence of an immigration offence, the immigration officer still has discretion to retain it rather than being under a duty to pass it to another investigating authority.

Amendment 95 is a minor and technical amendment that clarifies that where an immigration officer is not absolutely certain that an item that he or she has seized under the power in clause 21 is also evidence of an immigration offence, they still retain a discretion to hold or retain it, rather than being under a duty to pass it to another investigating authority. This addresses the very fine line between some offences, where it may not be clear at the outset whether they are immigration offences or not. For example, immigration officers investigating facilitation of an illegal entry in breach of immigration law may encounter forged, counterfeit or improperly obtained passports but may not necessarily know without further investigation whether they are being used by the facilitator or are unconnected with this offence.

Sarah Champion Portrait Sarah Champion
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On a point of clarification, how long can an item be held? For example, if a student has their laptop taken, that will have a direct impact on them. Is there any form of compensation or support around that?

Robert Buckland Portrait The Solicitor General
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I am grateful to the hon. Lady. I am checking the subsection, but I do not think there is a specific timeframe. I will come back to her, if I may, once I have outlined the position regarding clause 22.

Amendment 95 agreed to.

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

Robert Buckland Portrait The Solicitor General
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The clause provides a duty for immigration officers to notify the relevant investigating authorities, normally the police or National Crime Agency, where they have seized anything under clause 21.

It also applies where immigration officers, working in criminal investigation teams, have seized anything using their powers in relation to specified crimes that are commonly encountered in the course of exercising a function under the Immigration Acts, such as bigamy, forgery and human trafficking.

It sets out the arrangements for: notifying the relevant authority of the items seized; whether or not the authority will accept the items; handing them over; or returning them if, for example, the relevant authority does not believe them to be evidence of an offence.

In response to the concerns of the hon. Member for Rotherham about length, as I thought, there is no specific timeframe. However, there is an expectation that the immigration authorities will act reasonably. There are obviously practical concerns about retention of items such as laptops by the authorities. I am sure that they would view it as being in their very strong interest either to return the item, if it discloses the commission of no offence, or to pass it on to the relevant authority, if it were connected with the commission of a criminal offence. Therefore, there is a strong utility argument that would prompt the immigration authorities to act more promptly rather than hold on to items in the way that she fears.

Sarah Champion Portrait Sarah Champion
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I should be grateful if the Solicitor General would issue a statement on that in the guidance notes. I know from the experience of my constituents who have had mobile phones taken that they just seem to disappear, and that seems almost as a punishment or intimidation rather than for a productive reason.

Robert Buckland Portrait The Solicitor General
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I am happy to reassure the hon. Lady in this way. The arrangements in clause 21 mirror the Police and Criminal Evidence Act 1984 arrangements, and that should reassure her at the very least that there is a framework. I accept that within that there will be occasions when individuals do end up waiting an inordinate time for items.

Of course, there are powers in relation to a criminal investigation under the Police (Property) Act 1897. Although I cannot give an undertaking, the points that the hon. Lady has put on the record are noted but I am satisfied that we have a framework mirroring PACE that acts as an exhortation to the authorities to act in a reasonable and prompt way. I am grateful to her for raising that point.

Question put and agreed to.

Clause 22, as amended, accordingly ordered to stand part of the Bill.

Clause 23

Retention of things seized under Part 3 of the Immigration Act 1971

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

Robert Buckland Portrait The Solicitor General
- Hansard - -

Clause 23 inserts a new section 28ZI into the Immigration Act 1971 that provides for the retention of material seized by immigration officers for the purposes of a criminal investigation. This simply aligns the framework for the retention of anything seized by an immigration officer for a criminal purpose with that applying to police in England and Wales under the Police and Criminal Evidence Act 1984. That should be a welcome insertion that all Members will feel comfortable with, knowing that there is a harmonisation of the powers.

Question put and agreed to.

Clause 23 accordingly ordered to stand part of the Bill.

Clause 24

Search for nationality documents by detainee custody officers etc.

Keir Starmer Portrait Keir Starmer
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I beg to move amendment 197, in clause 24, page 30, leave out lines 13 to 16

To remove the power to conduct a strip search from detainee custody officers.

We now move to an area of considerable concern. The amendment would remove the power to conduct a strip search from detainee custody officers. The context in which the amendment is put forward is one of considerable concern for some time about the exercise of powers over those in immigration detention—a concern that I believe is shared across the House.

Clause 24 (1) provides:

“The Secretary of State may direct a detainee custody officer, prison officer or prisoner custody officer to exercise any of the powers in subsection (6) in relation to—

(a) a detained person who is detained in a removal centre, prison or young offender institution, or

(b) a person who is detained in a short-term holding facility.”

Subsection (5) provides that the relevant officer must then comply with the direction, with subsection (4) providing that the Secretary of State must have reasonable grounds to believe that,

“a relevant nationality document will be found if a power in subsection (6) is exercised in relation to the person.”

If we press on through the clause, we find a point that ties in with amendment 198—that the definition of nationality document is very wide. Under subsection (15) “nationality document” means,

“a document which might—

(a) establish a person’s identity, nationality or citizenship”.

A document that might establish a person’s identify is a very wide class of documents for all of us. Many documents might establish or help to establish our identity. This gives the Secretary of State a wide power to make a direction in relation to a wide class of documents where the relevant officer must then comply, and the power to include strip search in an environment and a context where there has already been heightened concern about the exercise of powers within immigration detention.

Those are the reasons why these amendments will be pursued. They are pursued with real concern about how the powers will be exercised, based on many points that have already been raised and the reports that have been written about this area.

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None Portrait The Chair
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Before calling the Minister, I remind the Committee that we are considering amendment 197. We will consider amendment 198 separately.

Robert Buckland Portrait The Solicitor General
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I am grateful for that exhortation, Mr Owen. I will therefore resist eliding the two issues and specifically address amendment 197, which has prompted an extremely useful debate on strip searches. I am grateful to the hon. Members for Rotherham and for Glasgow North East for speaking clearly and making the right points about the need for the highest possible standards when using such a draconian power.

First, I offer reassurance to the hon. Member for Rotherham, who asked about the meaning of the guidance that a strip search may not be carried out in the presence of a person of the opposite sex. That includes the person conducting the search. That is absolutely essential, because any other scenario would be wholly wrong and insensitive.

Sarah Champion Portrait Sarah Champion
- Hansard - - - Excerpts

It is incredibly reassuring to hear that, but will the Solicitor General put it in the Bill?

Robert Buckland Portrait The Solicitor General
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My understanding of what I prefer to call “full searches”—full non-intimate searches is probably the correct term—is that they are never done to a male by a female or to a female by a male. That has been the case for a considerable period, and probably ever since PACE. I might be wrong, but that is certainly my understanding from years of using the code of practice in my work as a criminal practitioner, prior to my entry into the House.

I want to deal with the question of what precisely we mean here. My hon. Friend the Member for North Dorset adumbrated the point that this is not about an intimate search. This is not a search of body orifices—for example, the mouth. It is what we would describe as a non-intimate search. More importantly, it is not the rather horrific image that might be created in our minds of someone completely unclothed being searched. That is not what happens. The individual must not at any stage be completely naked, so searches have to, in effect, take place with regard to each item of clothing in turn. Of course, that involves looking between the clothing and the skin, because experience sadly teaches us that important documents can often be concealed there, but at no time is the individual humiliated to the extent that they are left without any clothes on at all.

Paul Blomfield Portrait Paul Blomfield
- Hansard - - - Excerpts

I do not question for one moment the Government’s intention or the guidance, but does the Solicitor General accept that the context makes a big difference? For example, at Yarl’s Wood, which I know the Government have concerns about and are reviewing, allegations were made as recently as January this year by the charity, Women For Refugee Women, about the treatment of women. Until issues with practice on the ground in detention centres are adequately resolved, the best intentions in the world are at risk, are they not?

Robert Buckland Portrait The Solicitor General
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This is one of the most important functions that we as a Committee can perform: not having artificial debates but putting on the record the concerns, using the evidence we have as Members of Parliament or, indeed, from our observation of important events at places such as Yarl’s Wood, then seeking clarification from Ministers. I hope that my colleague the Minister for Immigration feels exactly the same way I do—that this is an opportunity for the Government to put on the line what we expect the standards to be when it comes to non-intimate full searches.

Keir Starmer Portrait Keir Starmer
- Hansard - - - Excerpts

I am grateful for the Solicitor General’s explanation, and I understand exactly the case he puts for the power, but there is sometimes, as he will understand, a gap between the words that go into Hansard as a result of this exchange and what happens on the ground. That is the real cause for concern, particularly in the light of the Yarl’s Wood example. What practical steps can be taken to turn the assurances the Solicitor General is rightly giving into reality on the ground?

Robert Buckland Portrait The Solicitor General
- Hansard - -

We are going to provide additional guidance on the power to search under clause 24. That is for those who are directing the search on behalf of the Secretary of State and those who are conducting the search. Detainee custody officers, prison officers and prisoner custody officers are trained in the use of search powers, which includes strip searches. Detention services order 9/2012 provides instructions to detainee custody officers, and prison service instructions 67/2011 and 16/2014 provide instructions for searching persons in prisons and young offenders institutions respectively. We will build on those and ensure that the new provisions contain clear guidance.

The hon. Member for Rotherham made a point about the wording, “in the presence of”. We would say that the words are clear: it obviously means the person conducting the search as well. I hope that the explanation that I give as the Minister presenting the clause will be sufficient clarification to allay her fears on that point.

Sarah Champion Portrait Sarah Champion
- Hansard - - - Excerpts

I thank the Minister for that clarification, and now that he has specifically put that on record, I am comfortable with that. I know that the Minister is always honourable in his intentions. Could I ask him to answer my point about youth offenders? At what age does he think it acceptable for young people and children to go through this search?

Robert Buckland Portrait The Solicitor General
- Hansard - -

I was coming on to that very point. The power to search children in this way will only be used in exceptional circumstances. Let me explain the background. The Government’s policy is not to detain children in immigration and removal centres, so as part of the family removal process where children are held in a short-term holding facility a few days prior to removal, we believe that this search power will not be necessary because we will have the travel documents in place already.

Regarding young offender institutions, children under the age of 18 are exempt from the automatic deportation provisions for foreign national criminals, so one ground is already removed. Let me give me an example of exceptional circumstances. A 17-year-old male might be held in a young offender institution following a conviction of rape. He is facing deportation on conducive grounds because of this sentence and gang affiliations. If the Secretary of State has reasonable grounds to believe that he may have nationality documents in his possession, then it may be necessary for officers to conduct a full search in the way that we have described. I hope that gives the hon. Lady reassurance that we really are talking about exceptional circumstances, such as an older male who has perhaps been convicted of a very serious offence, where there is a clear public interest in making sure that all reasonable steps are taken before removal from the UK.

Keir Starmer Portrait Keir Starmer
- Hansard - - - Excerpts

The example that the Solicitor General gives is a 17-year-old male. What does he see as the limits on children under the age of 17? At what age does it become inappropriate to ever exercise this power? I know that is a difficult question in general but this is a sensitive area. A 17-year-old male is one thing—he has given a good example, but there are clearly other examples of concern. What are the limits as the age goes down?

Robert Buckland Portrait The Solicitor General
- Hansard - -

The only answer I can give is that it will depend on a thorough case-by-case analysis. For example, it might be somebody younger who is a persistent offender who has committed a very serious offence. It would be wrong to say that there would be a hard and fast threshold, other than one that would be based on a genuine case-by-case analysis. Many people in this room have had experience of the youth offending system. I think that with training and guidance, we can get this right and make sure that the power is not used in a disproportionate way that reasonable people would regard as an infringement and an inappropriate use of the power with regard to young people. [Interruption.] There is Ministry of Justice guidance which says that searches of males in young offender institutions must be risk based or following intelligence on a case-by-case basis. That is the guidance that will be followed. There will be a read-over and therefore the fear of randomness and of arbitrary judgment is removed by the use of that guidance and careful case-by-case analysis.

Keir Starmer Portrait Keir Starmer
- Hansard - - - Excerpts

I appreciate that to some extent we are exploring the limits of this as we go along and I am grateful for the way that the Minister is dealing with that. It may be a simple question of reassurance but are there any circumstances where under this provision, a child under the age of 10 would be subject to a search? I do not think that would be available under any other provision in criminal law because they would be under the age of criminal responsibility. This is a genuine concern. I am not asking for an instant answer if it is impossible. It may be something that is better done in writing. I think for all criminal law provisions, 10 would be the lower trigger for obvious reasons.

Robert Buckland Portrait The Solicitor General
- Hansard - -

I think, in asking the question, the hon. and learned Gentleman is almost answering the point. In that case, a child under 10 would not have been convicted of any criminal offence. That is an important start. I am happy to give the assurance that the measure would not apply to a child under 10.

Keir Starmer Portrait Keir Starmer
- Hansard - - - Excerpts

Of course, the question answers itself regarding young offender institutions. I was not exploring that aspect but I am grateful for the Solicitor General’s assistance. My concern relates to those and any other centres. It is an exploring question, rather than one that may be capable of being answered straight off the cuff.

Robert Buckland Portrait The Solicitor General
- Hansard - -

I am happy to give a direct answer. In any circumstance, this will not apply to children under 10.

None Portrait The Chair
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Has the Solicitor General finished?

Keir Starmer Portrait Keir Starmer
- Hansard - - - Excerpts

I have said all that I need to say on amendment 197. I wish to press the amendment to a vote.

Question put, That the amendment be made.

--- Later in debate ---
Robert Buckland Portrait The Solicitor General
- Hansard - -

The definition given in clause 24 is frequently used elsewhere in immigration legislation where immigration and police officers have various powers to search for, seize and retain documents that will facilitate a person’s removal from the UK. When it is not possible to obtain passports and identification cards, other documents that contain information such as date of birth, place of birth or right of residence can indeed assist foreign Governments to identify their nationals and provide travel documents for them. Those could include: birth, marriage or civil partnership certificates; divorce documents; adoption papers; maritime or military discharge certificates; tickets for travel in and out of the UK; stubs of boarding passes; resident status documents; and visas and vignettes.

The effect of the amendment would be to hinder the efforts of the Home Office to secure emergency travel documents and to remove people with no leave to enter or remain in the UK. We therefore fear that, despite the understandable intentions of the hon. and learned Gentleman, it does not reflect the reality of what we are trying to achieve, which is to help foreign Governments to facilitate the return of foreign nationals who, after having exhausted due process, are no longer entitled to be here.

--- Later in debate ---
Keir Starmer Portrait Keir Starmer
- Hansard - - - Excerpts

I appreciate that the definition has been used elsewhere. It is the combination of that definition with the strip search that is of such great concern, although in the circumstances, and given the assurances on strip searches, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 24 ordered to stand part of the Bill.

Clause 25

Seizure of nationality documents by detainee custody officers etc

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

Robert Buckland Portrait The Solicitor General
- Hansard - -

Clause 25, like clause 24, deals with a gap in the powers of officers charged with the care and security of immigration detainees and foreign national prisoners who are liable to deportation to obtain nationality documents to help the Home Office remove these people from the United Kingdom. As noted on a number of occasions, the ability to remove foreign nationals who have no right to remain here is often delayed by the need to obtain a passport or other travel document. We need to take all necessary steps to obtain those documents that will facilitate removal. This clause allows relevant officers to seize nationality documents that are found in the course of a routine search conducted using their existing powers and to seek the Secretary of State’s consent to retain that document and to pass it on to the Home Office where the Secretary of State has reasonable grounds to believe the document will help with the person’s removal from the UK.

Question put and agreed to.

Clause 25 accordingly ordered to stand part of the Bill.

Clause 26

Amendments relating to sections 24 and 25

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

Robert Buckland Portrait The Solicitor General
- Hansard - -

Clause 26 amends schedule 11 of the Immigration and Asylum Act 1999, as a consequence of clause 24, by expanding the offences of assaulting or obstructing a detainee custody officer to include where an officer is performing functions under clause 24 to search for nationality documents. It ensures that a reference to a detainee custody officer in this context also includes a reference to a prison officer or a prisoner custody officer. It is only right, in extending the functions of those officers, that they are covered by existing offences of assault and obstruction. They deserve a degree of protection by criminal law if they are assaulted in the course of their duties.

Question put and agreed to.

Clause 26 accordingly ordered to stand part of the Bill.

Clause 27 ordered to stand part of the Bill.

Schedule 4

Amendments to search warrant provisions

Robert Buckland Portrait The Solicitor General
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I beg to move amendment 24, in schedule 4, page 73, line 17, leave out from “application” to “, or” in line 19.

This amendment and amendments 25 and 28 to 30 are to clarify that the definition of “specific premises warrant” in section 28K(13A) of the Immigration Act 1971 inserted by paragraph 5(8) of Schedule 4 to the Bill applies to any warrant under that Act which is not an all premises warrant.

None Portrait The Chair
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With this it will be convenient to discuss Government amendments 25, 49, 50, 51, 26 to 28, 52, 53, 29 and 30.

Robert Buckland Portrait The Solicitor General
- Hansard - -

These amendments to schedule 4 amend the provisions for immigration warrants. I am happy to say that they have been tabled as a result of lengthy dialogue with the Scottish Government—I know that will please and satisfy hon. Members, including the hon. Member for Glasgow North East. Amendments 26 and 27 remove the requirement for immigration search warrants obtained in Scotland to be returned after they have been executed. At the moment, under section 28K of the 1971 Act, warrants must be returned if issued by a justice of the peace in Scotland to the clerk of the district court for the commission area for which the justice of the peace was appointed or, if issued by the sheriff, to the sheriff clerk. These amendments will make it easier for the warrants to be available to the procurator fiscal as productions in criminal proceedings in Scotland, making the process a better way of working with our friends in the Scottish criminal justice system.

Amendments 24, 25, 28, 29 and 30 are technical amendments that clarify the definition of what is known as a specific premises warrant, which allows officers to enter only the address named on the warrant. Schedule 4 to the Bill introduces all-premises warrants, which allow officers to enter more than one set of premises occupied or controlled by a person who has to be specified in the warrant application, even if only one address is actually specified on the warrant. These amendments would make it clear that any warrant that is not defined as an all-premises warrant is therefore a specific premises warrant.

Amendments 49 to 53 are minor and technical amendments that ensure that the provisions regarding warrants in sections 28J and 28K of the 1971 Act, as amended by schedule 4, also apply to a warrant obtained for entering premises to detain a vehicle.

Amendment 24 agreed to.

Amendments made: 25, in schedule 4, page 74, line 14, leave out from “application” to “, or” in line 16.

See the explanatory statement for amendment 24.

Amendment 49, schedule 4, page 75, line 40, after “section” insert “24DA(6)(b),”.

This amendment and amendments 50 to 53 ensure that the provisions regarding warrants in sections 28J and 28K of the Immigration Act 1971 as amended by Schedule 4 also apply to a warrant obtained for entering premises to detain a vehicle.

Amendment 50, in schedule 4, page 75, line 43, after “section” insert “24DA(8),”.

See the explanatory statement for amendment 49.

Amendment 51, in schedule 4, page 76, line 5, after “seizure” insert “or detention”.

See the explanatory statement for amendment 49.

Amendment 26, in schedule 4, page 76, line 23, after “(8B)” insert “Subject to subsection (8C),”.

This amendment and amendment 27 reflect Scottish criminal law by removing the requirement for immigration search warrants obtained in Scotland to be returned to the clerk of the district court or the sheriff clerk after they have been executed, allowing for them to be retained for use by the Procurator Fiscal in court.

Amendment 27, in schedule 4, page 76, line 28, at end insert—

‘(8C) Subsection (8B) does not apply to a warrant issued by a justice of the peace in Scotland or by the sheriff if the warrant has been executed.””.

See the explanatory statement for amendment 26.

Amendment 28, in schedule 4, page 76, line 33, leave out from “warrant” to end of line 35 and insert “which is not an all premises warrant;”.

See the explanatory statement for amendment 24.

Amendment 52, in schedule 4, page 76, line 37, after “section” insert “24DA(6)(b),”.

See the explanatory statement for amendment 49.

Amendment 53, in schedule 4, page 76, line 40, after “section” insert “24DA(8),”.

See the explanatory statement for amendment 49.

Amendment 29, in schedule 4, page 77, line 8, leave out from “application” to “, or” in line 10.—(The Solicitor General.)

See the explanatory statement for amendment 24.

--- Later in debate ---
Keir Starmer Portrait Keir Starmer
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Let me start by setting out the purpose of these two amendments. Amendment 220 is intended to make mandatory the issuing of the code of practice that immigration officers must follow. Amendment 221 would delay the entrance into force of the provisions of part 3—which concerns enforcement, under the sub-heading “Powers of immigration officers etc”—until such time as the Secretary of State has made a direction under section 145 of the Immigration and Asylum Act 1999, and has laid the code specified in that direction before both Houses of Parliament. The context here is an agreement across the House that there has to be care, professionalism, necessity and proportionality in the exercise of all the powers that we have been discussing this afternoon.

The amendments are prompted by the current mismatch between Home Office guidance and the successive reports of the chief inspector of borders and immigration. To elaborate on that, the Home Office guidance by and large suggests that enforcement raids on premises and businesses are directed on the basis of specific intelligence about an individual who does not have leave to be in the UK. However, successive reports by the chief inspector of borders and immigration paint a different picture. In the inspection that the chief inspector conducted from October to November 2013, he reported that 59% of the cases he examined lacked the required justification for the use of the power and that in a further 12% there was insufficient information for him to form an opinion. Taken together, that 71% is a very high percentage of cases that the inspector is reporting. There is a mismatch between the guidance being issued and what is happening on the ground.

In the same report that related to October and November 2013, the chief inspector reported high varying use of the power across the country. In south London it was used in two-thirds of illegal working operations, and in east London it was used in 3% of cases. Therefore, the purpose of the amendments is to bolster the provisions for a code, to make the code mandatory and to delay the provisions until the code is laid before the Houses of Parliament.

Robert Buckland Portrait The Solicitor General
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In essence, our objections to these amendments are, with respect, that they have no substantial effect, given that it is already the case that immigration officers’ coercive powers are subject to the Immigration (PACE Codes of Practice) Direction 2013 and that the specified codes themselves—that is, the PACE codes of practice—have been laid before both Houses of Parliament.

Section 145 of the Immigration and Asylum Act 1999 makes it mandatory that immigration officers should have regard to such provisions as the PACE codes of practice as may be specified. “Specified” means in a direction given by the Secretary of State. It is already the case that the 2013 direction applies the relevant parts of the PACE codes of practice to the powers exercised by immigration officers. This direction is available in the Libraries of both Houses and is also published on the gov.uk website. Hon. Members will be well aware that any changes to the PACE codes of practice are laid before Parliament. We will of course update the immigration direction to reflect the new immigration powers in part 3 of the Bill and will ensure that is done in time for the commencement of these enforcement powers.

The hon. and learned Gentleman raised some points about a criticism about the use of enforcement powers, for which I am grateful to him. I think it was Liberty that referenced some statistics from the independent chief inspector of borders and immigration’s report on the use of the power to enter business premises without a search warrant—that was published in March of last year. An internal review had already highlighted that as an area for improvement, and the inspector’s report noted the following:

“During the course of our inspection, the Home Office moved quickly to address the issues that we identified. This was positive and demonstrated that the Home Office was, for the first time, starting to exert a much stronger grip on how the power was used by its staff.”

I hope that that is encouraging information for all Members present.

Where immigration officers are entering premises using a warrant, in order for that warrant to be issued, they will have to have satisfied the court that there are reasonable grounds for suspecting that a person who is liable to be arrested for a relevant offence is to be found on the premises or that there are reasonable grounds for believing that material that is likely to be relevant evidence of an immigration offence is on the premises. The safeguards for the use of these warrants is set out in sections 28J and 28K of the Immigration Act 1971 and reflect those provisions in the Police and Criminal Evidence Act 1984.

In the light of those points, I hope that the hon. and learned Gentleman will agree to withdraw his well-intentioned amendment.

Keir Starmer Portrait Keir Starmer
- Hansard - - - Excerpts

I am grateful for the Minister’s explanations and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: 30, in schedule 4, page 78, line 1, leave out from “application” to “, or” in line 3.—(The Solicitor General.)

See the explanatory statement for amendment 24.

Schedule 4, as amended, agreed to.

Clause 28 ordered to stand part of the Bill.

Clause 29

Immigration bail

--- Later in debate ---
Keir Starmer Portrait Keir Starmer
- Hansard - - - Excerpts

I apologise for coming to very technical amendments at this stage of the day and the proceedings; we seem to have been dealing with technical amendments for some time. Perhaps it will be possible for the Minister to give an assurance; the purpose of the two amendments is to ensure that individuals in the circumstances set out in the explanatory statements will not be in a worse position under the Bill than they are now.

Robert Buckland Portrait The Solicitor General
- Hansard - -

Amendment 216 seeks to change the way the leave that is extended by section 3C of the Immigration Act 1971 operates. With respect, there has been a misunderstanding of the current position. The effect of the amendment would be that where a person applies for leave to remain and their application is refused while they still have immigration leave, their leave would be extended by section 3C while they bring an appeal or administrative review. Where an appeal or administrative review is lodged, leave will continue to be extended until any appeal or administrative review is no longer pending.

It was said that the reason for the tabling of the amendment is that people in that situation do not have their leave extended by section 3C, and that is an unintended consequence of the Immigration Act 2014. That is not the case. In fact, if anything, the 2014 Act actually improved the position with regard to section 3C. It has always been the case that, where an application is refused while the applicant still has immigration leave, leave is not extended by section 3C while a challenge to the refusal can be brought. In other words, section 3C applies only to undetermined applications. Where somebody is still waiting for an application to be dealt with, section 3C kicks in to allow the delay to be remedied.

Keir Starmer Portrait Keir Starmer
- Hansard - - - Excerpts

Just to clarify that point, what is the position if the Secretary of State cancels the leave during that period?

Robert Buckland Portrait The Solicitor General
- Hansard - -

The whole purpose of the provision is to deal with the question of cancellation where there has been a breach of the conditions. I will come on to that point in the clause stand part debate. At this stage, we see no reason to change the position in the way that is outlined in amendment 216.

Amendment 217 would have highly undesirable consequences and is unnecessary. With respect to the hon. and learned Gentleman, he does not fully outline the Government’s case in the Iqbal case, the Court of Appeal judgment by Lord Justice Elias that was reported earlier this year. The amendment, as outlined by the hon. and learned Gentleman, would mean that immigration leave would be extended by virtue of section 3C for anyone who makes an invalid application for further leave.

The problem is that that is clearly open to potential abuse. A person could deliberately make an invalid application, for example by neglecting to pay the required fee or by failing to provide mandatory documents, and continue to remain in the UK lawfully. That leave would continue until the Home Office determined that the application was invalid. That, I am afraid, would potentially be a charter for exploitation by unscrupulous people who could make invalid applications simply to extend their immigration leave and to take advantage of the section 3C provision.

The amendment is also unnecessary, because our rules and guidance set out clearly how to make a valid application, and an opportunity is provided for mistakes that lead to an application becoming invalid to be made good. That provides a safeguard for people who, from time to time, make a genuine error. Where a fee is paid, we will contact those who make invalid applications to tell them what steps they need to take to make their application valid. Where people respond within the specified time limit and provide the missing information, they will be deemed to have made a valid application, and their leave will be extended by section 3C if the application was made before the expiration of their previous leave. That point was dealt with chiefly in the case of Iqbal.

The safeguard works. More than 650,000 applications were made between April last year and June this year, of which only 2.45% were rejected as invalid. I understand the concerns expressed about access to services and about the offences that the Bill introduces for those who work illegally or drive while unlawfully in the UK. However, in practice, those measures will not be applied to individuals until the Home Office has determined whether an invalid application has been made.