Immigration Bill (Fourteenth sitting)

Sarah Champion Excerpts

Tuesday 10th November 2015 Public Bill Committees

[James Brokenshire]

We move to new clauses, having considered the main substantive provisions of the Bill. New clause 14 requires immigration checks and continuing compliance with immigration laws as part of the existing licensing regime for taxis and private hire vehicles. It does so by adapting existing provisions for private hire vehicles in London in the Private Hire Vehicles (London) Act 1998 and for taxis and private hire vehicles in the rest of England and Wales in the Local Government (Miscellaneous Provisions) Act 1976.

The new clause seeks to prevent illegal migrants and migrants whose status does not permit them to work from holding taxi and private hire driver and operator licences. It is important to note that, because the majority of drivers are self-employed, they are not subject to existing right to work checks. In our judgment, that leaves scope for the sector to be exploited by illegal workers.

Licensing authorities already conduct checks to determine whether someone is a fit and proper person to hold a driver or operator licence. However, a licensing authority has discretion as to many of the checks that it undertakes to satisfy itself that someone passes the fit and proper person test. Many licensing authorities make immigration checks, but they are advisory at present. The new clause will make immigration checks mandatory and embed immigration safeguards in the existing licensing regime.

New clause 14 gives effect to new schedule 1, which amends the Private Hire Vehicles (London) Act 1998 for private hire vehicles in London and the Local Government (Miscellaneous Provisions) Act 1976 in respect of taxis and private hire vehicles in the rest of England and Wales. The new provisions also make relevant changes so that the same measures can be implemented in London, where the taxi licensing regime is slightly different, by amending the Metropolitan Public Carriage Act 1869.

We are in the process of consulting with the Northern Ireland Executive and the Scottish Government with a view to making similar changes to the licensing legislation in Scotland and Northern Ireland in the Bill or, if that is not possible, by regulations, for which provision is made in the new clause.

I will now comment in more depth on new schedule 1, the main meat of the provisions. On the changes to the Metropolitan Public Carriage Act 1869 for London, first, the provision ensures that where someone’s immigration leave is time-limited to less than the statutory length for a driver or operator licence, the licence will be issued for a duration that does not exceed the applicant’s period of leave. If someone has so-called section 3C leave under the Immigration Act 1971, because they have, for example, made a valid application to the Home Office to extend their leave, any licence granted will be limited to a period not exceeding six months.

Secondly, if someone is disqualified from continuing to hold a driver or operator licence for immigration reasons, they must return their licence, any copy and their driver’s badge to the licensing authority. Someone who fails to return their licence within seven days without reasonable cause will be committing an offence and, on summary conviction, liable to a fine not exceeding level 3 on the standard scale and, in the case of a continuing offence, a daily fine for each day they fail to return the documents after conviction. Thirdly, the grounds for disqualification—this is for someone who already holds a licence—will include that someone has no lawful status in the UK, or has no right to undertake the work in question.

The Local Government (Miscellaneous Provisions) Act 1976 and the Private Hire Vehicles (London) Act 1998 are similarly amended for operator and driver licences. In addition, the new schedule provides that a licence must not be granted under those Acts to someone who is disqualified by their immigration status. The licensing authority must have regard to any guidance issued by the Secretary of State in making a decision about someone’s immigration status. Importantly, the new schedule also specifies that the conviction of immigration offences and the requirement to pay penalties since the licence was issued are grounds to revoke a driver or operator licence. That is our approach, which intends to catch operators who may seek to engage people who are in the country unlawfully.

[Sarah Champion (Rotherham) (Lab)]

I would like further clarification from the Minister; I did not want to intervene in case he was coming on to this. Will he talk us through the logistics of how the legislation will be enforced?

I welcome the recommendations. I have not gone through the details of them, but it seems that currently different local authorities have different legislation and rules, so there can be confusion about who is responsible for enforcement of the local authority recommendations when people cross the border. Will the Minister talk a little more about how the legislation will be enforced and who will be responsible? He mentioned a seven-day period and said that the local authority would then have to enforce this. How does the local authority find out about that? What will happen with on-the-ground resources to enable the local authority to act? What happens if someone is in violation—will the Home Office or the local authority be responsible for that? I ask for practical ways in which the legislation will work.

[James Brokenshire]

I am grateful to the hon. Lady for her probing questions about enforcement. It is worth underlining that some licensing authorities are already doing basic right to work checks. That is what we are seeking to embed within the overall licensing regime.

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This is a genuine issue. We are not trying to use a great big sledgehammer, but to put some in place basic requirements for right to work checks, as is proportionate. When people have been convicted of immigration offences, that fact should be equally relevant in the context of, for example, whether they hold an operator licence, to make sure that the standards on who is a fit and proper person are properly applied. That is the intention behind the measures.

[Sarah Champion]

I would like just a little more information. At the moment, if someone fails the fit and proper person test they can appeal through a magistrates court. Is it correct that under these measures that right would go and it would become a straight immigration issue?

[James Brokenshire]

Let us look at the provisions. Paragraph 12 of the new schedule amends the Local Government (Miscellaneous Provisions) Act 1976 as follows:

“In section 62(1) (suspension and revocation of operators’ licences) before the “or”…insert…“…that the operator has since the grant of the licence been convicted of an immigration offence or required to pay an immigration penalty”.

The point is that that will be a matter of established fact. The terms are further defined in proposed new section 79B of the 1976 Act, which is inserted by the new schedule, and defines immigration offences and immigration penalties. The measures will be embedded within the overall framework of the licensing arrangements. If the relevant local authority were, for example, to seek to revoke or suspend a licence, a legal process would no doubt be followed. The point is that it would be made clear whether an operator had been subject to these specific measures, because of the nature of the definitions.

The fit and proper person test is built in. It takes place when someone is applying for a licence. Immigration offences are a clear factor that will have to be weighed in any determination of whether someone is a fit and proper person. If someone does not have the right to be here, the new provisions make it clear that they should not be considered a fit and proper person. That is how we are embedding the measures within the existing process. We believe their operation can be effected smoothly. We will issue guidance, as I have already indicated, to assist local authorities in the implementation of the provisions.

This is a question of raising standards, to ensure that abuse does not take place within the sector. These are positive and important new provisions, which will see immigration enforcement agencies working with local authorities—something that, as I have indicated during our discussions, I strongly support. If we can get our activities embedded well, in places where immigration enforcement officers may come across intelligence and information, we can work smartly with other agencies such as local authorities to raise standards more broadly and root out abuse and rogue operators. The measures are important and distinct, and will, we hope, not only deal with immigration offending and people who are in the country unlawfully and engaging in employment or contracts for services, but raise standards in the sector more generally.

Question put and agreed to.

New clause 14 accordingly read a Second time, and added to the Bill.

New Clause 15

Supply of information to Secretary of State

‘(1) Section 20 of the Immigration and Asylum Act 1999 (supply of information to Secretary of State) is amended in accordance with subsections (2) to (10).

(2) For the heading substitute “Power to supply information etc to Secretary of State”.

(3) In subsection (1) for paragraphs (a) to (f) substitute—

“(a) a public authority, or

(b) any specified person, for purposes specified in relation to that person.”

(4) In subsection (1A) in each of paragraphs (a) and (b) for “a person listed in subsection (1) or someone acting on his behalf” substitute “a public authority or someone acting on behalf of a public authority”.

(5) After subsection (1A) insert—

“(1B) This section does not apply to—

(a) information which is held by the Crown Prosecution Service, or

(b) a document or article which comes into the possession of, or is discovered by, the Crown Prosecution Service, or someone acting on behalf of the Crown Prosecution Service,

if section 40 of the UK Borders Act 2007 applies to the information, document or article.”

(6) After subsection (2A) insert—

“(2B) Subsection (2A)(a) does not affect any other power of the Secretary of State to retain a document or article.”

(7) In subsection (3) after paragraph (d) insert—

“(da) anything else that is done in connection with the exercise of a function under any of the Immigration Acts;”.

(8) After subsection (3) insert—

“(3A) “Public authority” means a person with functions of a public nature but does not include—

(a) Her Majesty’s Revenue and Customs,

(b) either House of Parliament or a person exercising functions in connection with proceedings in Parliament,

(c) the Scottish Parliament or a person exercising functions in connection with proceedings in the Scottish Parliament,

(d) the National Assembly for Wales or a person exercising functions in connection with proceedings in that Assembly, or

(e) the Northern Ireland Assembly or a person exercising functions in connection with proceedings in that Assembly.”

(9) Omit subsection (4).

(10) After subsection (6) insert—

“(7) Nothing in this section authorises information, a document or an article to be supplied if to do so would contravene a restriction on the disclosure of information (however imposed).”

(11) After section 20 of the Immigration and Asylum Act 1999 insert—

“20A Duty to supply nationality documents to Secretary of State

(1) This section applies to a nationality document which the Secretary of State has reasonable grounds for believing is lawfully in the possession of a person listed in Schedule A1.

(2) The Secretary of State may direct the person to supply the document to the Secretary of State if the Secretary of State suspects that—

(a) a person to whom the document relates may be liable to removal from the United Kingdom in accordance with a provision of the Immigration Acts, and

(b) the document may facilitate the removal.

(3) A person to whom a direction is given must, as soon as is practicable, supply the document to the Secretary of State.

(4) If the document was originally created in hard copy form and the person possesses the original document, it must be supplied to the Secretary of State unless it is required by the person for the performance of any of the person’s functions.

(5) If the original document is required by the person for the performance of any of the person’s functions—

(a) the person must, as soon as is practicable, supply a copy of the document to the Secretary of State, and

(b) if subsequently the person no longer requires the original document, the person must supply it to the Secretary of State as soon as is practicable after it is no longer required.

(6) Subsection (5)(b) does not apply if the Secretary of State notifies the person that the original document is no longer required.

(7) If subsection (5) applies the person may make a copy of the original document before supplying it to the Secretary of State.

(8) The Secretary of State may retain a nationality document supplied under this section while the Secretary of State suspects that—

(a) a person to whom the document relates may be liable to removal from the United Kingdom in accordance with a provision of the Immigration Acts, and

(b) retention of the document may facilitate the removal.

(9) Subsection (8) does not affect any other power of the Secretary of State to retain a document.

(10) The Secretary of State may dispose of a nationality document supplied under this section in such manner as the Secretary of State thinks appropriate.

(11) Nothing in this section authorises or requires a document to be supplied if to do so would contravene a restriction on the disclosure of information (however imposed).

(12) The Secretary of State may by regulations amend Schedule A1 so as to add, modify or remove a reference to a person or description of person.

(13) Regulations under subsection (12) may not amend Schedule A1 so as to apply this section to—

(a) either House of Parliament or a person exercising functions in connection with proceedings in Parliament,

(b) the Scottish Parliament or a person exercising functions in connection with proceedings in the Scottish Parliament,

(c) the National Assembly for Wales or a person exercising functions in connection with proceedings in that Assembly, or

(d) the Northern Ireland Assembly or a person exercising functions in connection with proceedings in that Assembly.

(14) In this section “nationality document” means a document which might—

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

(b) indicate the place from which a person has travelled to the United Kingdom or to which a person is proposing to go.”

(12) In section 166 of the Immigration and Asylum Act 1999 (regulations and orders)—

(a) after subsection (5) insert—

“(5A) No regulations under section 20A(12) which amend Schedule A1 so as to—

(a) add a reference to a person or description of person, or

(b) modify a reference to a person or description of person otherwise than in consequence of a change of name or transfer of functions,

are to be made unless a draft of the regulations has been laid before Parliament and approved by a resolution of each House.”, and

(b) in subsection (6), before the “or” at the end of paragraph (a) insert—

“(ab) under section 20A(12) and which falls within subsection (5A),”.’

(13) Before Schedule 1 to the Immigration and Asylum Act 1999 insert the Schedule A1 set out in Schedule (Duty to supply nationality documents to Secretary of State: persons to whom duty applies).”—(The Solicitor General.)

This amendment expands the information gateway in section 20 of the Immigration and Asylum Act 1999 for the voluntary supply of information to the Secretary of State for immigration purposes. It also places a duty on authorities listed in new Schedule A1 to that Act (see NS2) to supply nationality documents to the Secretary of State where directed to do so.

Brought up, and read the First time.

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[Sarah Champion]

I will speak very briefly to the new clauses, because they seem logical and non-contentious. I am particularly pleased that they have been tabled in a cross-party manner and that they were developed from a cross-party inquiry by the all-party groups on refugees and on migration. They build on existing legislation, such the Modern Slavery Act 2015; that is particularly true of new clause 1.

We whizzed through all the new clauses and amendments, so I want to read the explanatory statement to new clause 1, which

“would provide that pregnant women, victims of trafficking, torture and sexual violence, and any other group prescribed by the Secretary of State, may not be detained pending an examination or decision by an immigration officer.”

I hope that the groups prescribed by the Secretary of State would include vulnerable adults, particularly those with a learning age that is deemed to be under 18.

I want to focus on women, pre-empting some of the arguments that Ministers might make against the measures, particularly new clause 1. The organisation Women For Refugee Women has said that 72% of asylum seekers have been raped as part of the persecution that they are fleeing, and almost all have been victims of gender-related persecution. I ask the Minister to consider that. The United Nations High Commissioner for Refugees detention guidelines state:

“Victims of torture and other serious physical, psychological or sexual violence also need special attention and should generally not be detained.”

I would also like to draw to the Committee’s attention the work of the Foreign and Commonwealth Office, which is working hard to end sexual violence in conflict by protecting survivors and actively prosecuting perpetrators. It seems to me irrational that while the FCO is working so hard and courageously, and receiving great commendation internationally for doing so, the Bill will effectively re-traumatise victims who have crossed borders to find safety in this country. It is also my understanding that the Home Office’s policy is to detain pregnant women only in exceptional circumstances. I therefore ask Ministers to give serious consideration to new clauses 1 and 3.

[James Brokenshire]

We have had a wide-ranging debate on an area of policy that is challenging and difficult. I say that because a significant proportion of those in immigration removal centres will be foreign national offenders. There has been a lot of discussion about asylum claimants, but if someone has made a claim for asylum, they should be receiving humanitarian protection. Hon. Members will equally know, for example, that we have suspended the detained fast track—a decision I took—to ensure that appropriate issues about vulnerability can be properly reflected in the arrangements.

There is a real challenge, about which I caution hon. Members, because if the official Opposition vote for new clause 3, they will be voting for a change of their policy. I note that exclusions were previously advanced for foreign national offenders and other groups, in recognition of some of the complexities and other challenges in this matter. People will seek to frustrate their removal at all costs. That is why, regrettably, there will always be a need for some level of immigration detention for when individuals fail to comply with requirements to leave the UK, seek to frustrate their removal or seek at times to use time limits as a means to string things out, because they know that they may gain advantage. Having said all of that, we are clear that detention should be used sparingly and only as a last resort.

We take our duty of care to those who are in detention seriously, for example, through healthcare and other provision. I recognise the reports on the issue of vulnerability to which I will come on, but there are many people working in immigration removal centres day in, day out, doing a tough and challenging job. In commenting on a number of the points made today, I put on the record my appreciation for those who are doing that tough job that supports our immigration centres and seeks to ensure that detainees are treated in a just, fair, appropriate and dignified way.

I underline that alternatives to detention should be used where possible, and I recognise that more can be done. The Bill and its new powers are part of the wider work to ensure that the Home Office has the right measures to manage individuals who are not detained and to ensure that they leave the UK when they no longer have any rights to be here. I continue to give great thought to ensuring that we provide an effective system that delivers value for money and seeks the departure or removal of increasing numbers of people who have no right to be here. There is the balance between enforced removal and encouraged or facilitated departure and we have already debated that broadly in respect of family groups.

New clause 1 would introduce a statutory prohibition on the detention of pregnant women and victims of torture, trafficking and sexual abuse. I note the generous way in which the hon. Member for Sheffield Central sought to recognise that it was my hon. Friend the Member for Bedford (Richard Fuller) who, on Second Reading, tabled an amendment on this issue. Along with many other Members of the House, he is tireless in his work on issues of immigration and detention and takes such matters seriously. I pay tribute to the former Member, Sarah Teather, who chaired the all-party group on refugees. While we did not always see eye to eye, I never doubted her focus and determination to ensure that the issues were considered by the House. I know that the hon. Member for Sheffield Central was part of that all-party group and continues that work.

I can tell the Committee that we take such issues extraordinarily seriously and they weigh heavily on Ministers when we seek to deprive people of their liberty. Therefore, in our approach we seek to ensure that detention is part of a removals process, which at times has to take into account issues of public protection as well. The issues of safeguarding and vulnerability are very much in our minds and that is why my right hon. Friend the Home Secretary commissioned Stephen Shaw, the former prisons and probation ombudsman, to undertake an in-depth review of how the Home Office treats vulnerable people who are detained. As I indicated, that is why I suspended the detained fast track, because I could not be satisfied that safeguards were operating effectively.

The Committee will be aware that we have received Mr Shaw’s report and are considering our response to that important issue. We are actively considering the report’s recommendations and we will come back to the House in due course to report on that.

I think that the hon. Member for Sheffield Central was seeking a timeframe from me. We are not seeking to delay; we are considering those issues carefully, but I want to get it right and come back to the House with an appropriate response that recognises the thorough work that Mr Shaw has undertaken.

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[James Brokenshire]

I am making a technical point on the drafting of the new clause. There are issues of principle, but we believe that even if the principle were accepted, there are technical deficiencies in the drafting that Members might wish to reflect on, given that no amendments have been tabled.

[Sarah Champion]

I appreciate the open and generous way in which the Minister has approached the matter. I would like to build on what the hon. Member for Glasgow North East said. If the Committee supported the intention of the new clause, we would be very keen to work with the Minister to try to get the wording in such a state that the Home Office felt comfortable in taking it forward.

[James Brokenshire]

I do not support the new clause. I am certain that the intention behind it is not to undermine immigration control or to reward those who make spurious claims about being a victim of hideous events to avoid enforced removal when they refuse to leave the UK voluntarily. Sadly, those cases exist, which is why this is difficult territory and regrettably, that may be the practical effect of the new clause. However, I recognise that the issue of vulnerable people in detention is a major concern to MPs and to many people outside the House. I therefore ask that the Government are given time fully to consider Stephen Shaw’s review before the House legislates on a very complex issue.

New clause 3 would introduce a statutory time limit on detention unless the individual was listed in the regulations as being exempt from the time limit. There is a common misconception that detention under immigration powers is indefinite. I want to make it clear to the Committee that that is not the case. Although there is no fixed statutory time limit on the duration of detention under immigration powers, it is not the case that there is no time limit. It is limited by statutory measures, the European convention on human rights, the common law, including principles set out in domestic case law, and the legal obligations arising from the Home Office’s published policy, which states:

“Detention must be used sparingly, and for the shortest period necessary.”