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Mr. Keith Vaz (Leicester, East): My hon. Friend says that more categories of people could be included, but that would not include anyone who had received indefinite leave to remain, would it?
Ms Winterton: I was about to refer to the type of people who would be covered. The basis of the functionality of ARCs is a biometric representation of fingerprints, so it is unlikely that an ARC could be issued to anyone who could not be fingerprinted under section 141 of the Immigration and Asylum Act 1999. That helps to explain that the categories are limited to the people who could be fingerprinted.
I could give some examples if that would assist hon. Members. For example, people who fail to produce a valid passport with a photograph or other document satisfactorily establishing their identity and nationality on arrival in the United Kingdom could perhaps be given ARCs on the basis that their identity is open to doubt. We do not know their true identity or necessarily where they came from. Even if we know both those things, to remove them from the United Kingdom we would need the co-operation of their country of origin, which is by no means a forgone conclusion. I could give other examples, but I hope that I have reassured the hon. Gentleman that we seek only to extend the categories to those people.
I now come to Government amendment No. 207. Section 28B of the Immigration Act 1971 allows a justice of the peace to issue a warrant authorising an immigration officer to enter premises to arrest a person suspected of committing a relevant offence. A relevant offence for the purposes of that section is defined in subsection (5) and includes the current offence of harbouring an illegal entrant or overstayer under section 25(2).
Clause 123(2) will add new offences relating to ARCs and the possession of an immigration stamp to the list of relevant offences. However, the present 25(2) offence will be subsumed into the general offences under proposed new sections 25 and 25B, inserted by clause 117. The power to enter to effect an arrest for those offences will come under section 28C of the 1971 Act, so there is no need for the section 25(2) offence to be a relevant offence for the purposes of section 28B. Indeed, proposed new section 25(2) does not contain a separate offence. That is why we have tabled Government amendment No. 207. I very much hope that, with those reassurances, the hon. Member for Sheffield, Hallam will withdraw the amendment and accept Government amendment No. 207.
Mr. Allan: I thank the Minister for gently and courteously informing me that I have been tilting at the wrong windmill and seeking to limit the Government's power to specify the offences involving registration cards, rather than dealing with the registration cards themselves. It remains a great joy to me that we often end up talking about things by proxy when we debate legislation in the House. For example, primary legislation is not needed to introduce the registration cards, but it is needed to create the offences that relate to them. I am sure that we shall
return to registration cards on many other occasions, but having heard the Minister's argument, I think it appropriate to beg to ask leave to withdraw the amendment.Amendment, by leave, withdrawn.
Amendment made: No. 207, in page 69, line 15, leave out "25(2),".—[Ms Rosie Winterton.]
Clause 125
8.45 pm
Beverley Hughes: I beg to move amendment No. 90, in page 70, line 44, after "28CA", insert ", 28FA or 28FB".
Mr. Deputy Speaker (Sir Michael Lord): With this it will be convenient to discuss the following: Government amendment No. 91.
Amendment No. 74, in clause 126, page 71, line 16, leave out from "if" to end of line 17 and insert—
'on application made by an immigration officer a justice of the peace is satisfied that there are reasonable grounds for believing'.
Amendment No. 75, in page 71, line 20, leave out "employee records" and insert "records of that employee".
Government amendments Nos. 92 and 93.
Amendment No. 76, in page 71, line 25, leave out "employee records" and insert "records of that employee".
Amendment No. 77, in page 71, line 33, leave out "employee records" and insert "records of that employee".
Government amendments Nos. 95 to 102.
Beverley Hughes: These amendments relate to the new powers of entry to business premises and the power to search employee records. Section 146(1) of the Immigration and Asylum Act 1999 already allows an immigration officer exercising his or her powers under the Immigration Act 1971 to use reasonable force if necessary. Subsection (2) confers an equivalent power on anyone exercising the fingerprinting powers in section 141 or 142 of the 1999 Act or powers under regulations made under section 144, which relate to other methods of collecting information about physical characteristics apart from fingerprinting.
An immigration officer exercising the new powers of entry and search created by clauses 125 and 126 will be able to use reasonable force because these powers are being inserted into the 1971 Act. The use of reasonable force by anyone else, however, requires express provision to be made. As the clauses also confer powers on constables and, in the case of clause 125, on detainee custody officers, express provision has to be made to allow them to use reasonable force.
That has already been done in respect of the power of entry. The first of these amendments therefore makes the equivalent provision when a police constable is using the new powers to search for personnel records. The second makes the necessary consequential change to the title of the sections.
The power to inspect employee records under the new section 28FA, which is inserted by clause 126, is very limited. It is a power that does not require a warrant because, for reasons that I shall explain, we believe that that is the only effective way in which it can be exercised. We also believe that we have provided sufficient safeguards in the exercise of the power to ensure that the rights of all parties will be properly protected.
The new power to inspect employee records can be exercised only when a person has been arrested on business premises for one of the specified offences, or when someone is present on business premises who is liable to be arrested for one of those offences. In other words, it requires that a person is identified who is thought to be an immigration offender. If, in addition, the constable or immigration officer reasonably believes that an offence under section 8 of the Asylum and Immigration Act 1996 may have been committed, and that employee records on the premises will be of substantial value to the investigation of the offence, this clause allows him or her to search for, seize and retain those records.
By way of an example, let us suppose that someone has been arrested on business premises for being an illegal entrant. In that case, such a person would not have permission to work in the UK. That would mean that the employer is likely to be committing an offence under section 8 of the 1996 Act by employing that person. When an officer reasonably believes that the employer has committed this offence, and that there will be records on the premises that will substantially assist the investigation of it, he or she can search the premises.
If amendment No. 74, tabled by the hon. Member for Southwark, North and Bermondsey (Simon Hughes), were to be accepted, however, once someone liable to arrest had been identified, everything would have to stop while an immigration officer went off and applied to a magistrate for a warrant to search for the relevant employee records. Quite what the constable would do in those circumstances is unclear because, under the amendment, only an immigration officer would be allowed to apply for a warrant for that purpose.
If the officer were forced to go to the magistrates court to obtain a warrant, the employer would clearly have every incentive and opportunity to destroy any evidence of the section 8 offence that had existed before the officer returned. The fact that the employee had been arrested or identified as liable to arrest would clearly have alerted the employer to the interest of the enforcement authorities. In these circumstances, we believe that a power to search without warrant is necessary and proportionate. The amendment would therefore render the new power in the new section 28FA completely ineffective. That is why we cannot accept it.
Amendments Nos. 75 to 77 would limit the power to search for personnel records under the new section 28FA to a power to search for, seize and retain the records of the person who has been arrested or believed to be liable to arrest. We do not believe that such limitations are practical or desirable. Amendment No. 75 seeks to ensure that the power of search is triggered only when an officer reasonably believes that the records of the arrested person will be found on the premises. The amendment is unnecessary. The proposed new subsection (2) already
makes it clear that the power of search will be triggered only if the officer reasonably believes that an immigration employment offence has been committed in relation to the person arrested and that employee records will be found that will be of substantial value in the investigation of that offence.Amendments Nos. 76 and 77 seek to restrict the scope of the search that can be undertaken and the powers of seizure and retention of employment records to the records of the arrested person. Again, we believe that that limitation is impractical and does not take into account the realities of conducting a search of personnel records: one has to search a whole drawer of records to try to find the one that relates to the person arrested or who is liable to arrest. It is impractical—I would say impossible—not to search through other records to try to find the record one wants. It is highly unlikely that the records of the suspected offender will be kept separately from those of other employees.
If a constable or immigration officer is searching for the records of that employee, he or she must of necessity have to search through the records of all employees. If, in the course of that search, the constable or immigration officer comes across evidence of other immigration employment offences or evidence of NASS fraud, that person cannot simply ignore it. That would be absurd. He or she needs to be able to seize and retain that evidence immediately. That is what the clause allows.
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