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Finally, as we move to the new legal framework and the presumption towards the deportation of foreign prisoners, there is an argument, at least, for examining how we use our prison estate, particularly for foreign prisoners who will be returned to their own country either part way through, or at the end of, their sentence. There is a compelling argument for having prisons where the regime concentrates on such prisoners, the issues that they will face on returning to their country of origin, and their rehabilitation and reintegration needs when they return home. At the moment, most prisons have a significant minority of foreign prisoners, and, by and large, they follow a regime that is designed to return
people to communities and labour markets in this country that are inappropriate for the prisoners we are serving. Ministers should look at this issue. The Government’s new approach, whatever the legal niceties regarding the powers in the Bill, raises the question of what sort of prison estate we should have for foreign prisoners who will not remain in this country when they finish their sentence. I hope that that issue can be addressed.
I welcome the broad direction of the Bill, and I hope that the issues that I have raised—many of which were raised by the Home Affairs Committee—can be used to strengthen the Bill as it makes its way through the House.
6.8 pm
Paul Rowen (Rochdale) (LD): We all want an immigration system that works. We want a system that is fair to everyone, firm where it needs to be firm, properly resourced, and conducted in a measured political climate where judgments are made in the interests of the nation, not in response to fevered headlines. It is therefore deeply worrying that the Bill’s contents have led Liberty to describe it as
“one of the worst examples of cynical legislation”
This is the Government’s third immigration Bill in as many years and their fifth since they were first elected. It is their fifth attempt to get a handle on the system by making extra laws, but by also providing limited enactment and enforcement of existing legislation and rules. The real problems with immigration are administrative, not legislative, and can be blamed on the Government’s use of migration as a political football. Gimmicks, headlines and targets have destroyed any semblance of a managed migration system, and yet another law will not solve it. The introduction of automatic deportation is emblematic of the Government’s whole approach to home affairs. Headline-driven targets and gimmicks push the system to breaking point. Administrative breakdown causes a scandal—in this case, more than 1,000 foreign prisoners being released after completion of their sentences without being considered for deportation.
The Government overreact with “tough” new laws and offences and “tough” new targets that, instead of solving the problem, put even greater burdens on the administrators. The Department is in crisis and Ministers who think that legislation is a substitute for real action are not living in the real world. The issues that affect our constituents are not dealt with by this Bill. For example, I have written to the Minister about the failure in my constituency to remove five husbands whose arranged marriages have broken down. All the information has been provided, but the men have not been removed and continue to harass and harangue their former wives. The Bill does not even begin to address such problems. Nor does it address the length of time taken by the IND to process applications for the right to remain. There is no need for additional powers, but there is a real need for administrative systems to be made to work—to become, in the Home Secretary’s words, “fit for purpose”.
Nonetheless, some elements of the Bill have merit, including turning the immigration and nationality directorate into an independent agency. We will seek to amend some of the proposals in the Bill in Committee,
but we must not pretend that extra powers alone will be enough. Immigration chaos will end only when the Government start doing less to do it better.
The first four clauses give immigration officers at ports new powers to detain people suspected of non-immigration offences. They do not contain any suggestion for an integrated border force. Instead, it is intended to allow the existing border control authorities to work more closely together. A truly integrated force would require new, not just redeployed, resources. It is not enough simply to shift police officers away from their current duties or put existing customs officials in new uniforms. We believe that there should be a unified border force and that the level of integration in the Bill is not enough. For example, at Heathrow airport, four police forces operate in addition to immigration officers, revenue and customs officers and security forces. A unified force would secure our borders more effectively and efficiently. The Government have stated that 24-hour security at all ports of entry would cost only £105 million a year, but they are spending nearly £100,000 a day on unworkable, illiberal ID cards.
The powers seem generally appropriate, though we want to ensure that comprehensive training will be given to immigration officers who are designated in that way. As other hon. Members have said, the powers need also to be exercised in accordance with the Police and Criminal Evidence Act 1984 codes of practice, which provide the framework within which the police operate. Were children to be detained, for example, the immigration officer should have a duty to request the attendance of an appropriate adult.
The proposals for biometric registration seem driven by the need for a dry run for ID cards rather than being solely for the purpose of better immigration management. While the increased use of biometrics on visas and immigration documents has clear advantages, we have serious concerns about the practicalities of the proposals. First, issuing documents to the 3.9 million people already in the UK, many of whom have indefinite leave to remain and therefore no contact with immigration services, will be an administrative nightmare. There is no indication of how much that will cost, where the processing will happen and what provision will be made for those who cannot travel. I could list many more such concerns.
For those coming into the country for the first time, there will be a major problem in processing the extra information at our struggling consulates. What additional resources will be provided at, say, the high commission in Islamabad to cope with the extra work? At the moment, the high commission there is issuing visas for appeals granted last September. One can only imagine what additional delays will be caused to applications for visas for normal and ordinary events such as family weddings.
Because the information to be included in the biometric immigration document is to be provided by regulations, we have no idea of the scope of that, or of what will be demanded. What will happen to the BID of those who are subsequently granted British citizenship? Will the BID be an effective enforcement tool against those who are illegally in the UK? It is clear that the problem is not in finding those who are working or living illegally in the UK, but in enforcing action against them. For
example, in 2004-05, raids found nearly 4,000 illegal workers, but only eight employers were taken to court and found guilty. That is the problem with many of the proposals in the Bill. There are already plenty of powers, but we are not seeing any action.
The Bill also states that the use of BIDs can be specified not just for immigration purposes, but in employment, access to benefits and NHS funding. Can the Minister explain why, for example, the requirement for employers to check biometric information is being introduced without the public consultation that the Department promised last year? Why has there been no published assessment of the financial impact on the public or private sectors of compulsory checking of BIDs?
The proposals on conditional leave to remain pick up on suggestions made by the Liberal Democrats for handling the difficult situation of people who have been ordered by a court to be deported, but who cannot actually be deported for human rights reasons. It is wholly right that people should not be deported to places where they face torture. We suggested developing a way to better monitor those few individuals in the UK who cannot be detained or deported. The proposals in the Bill seem a workable solution, although appropriate protections of proportionality should be built in, especially where they are used for children.
We welcome clause 17, which will ensure that an asylum seeker can continue to be supported at all stages up to an appeal being determined. However, the Bill does not address what happens when asylum seekers go underground and a local authority has to put their children into care.
For enforcement operations, the police will have the power to seize cash in illegal working cases. They will have powers to dispose of seized property. They already have the power to seize it; apparently it is sitting in warehouses. They want to be able to extradite people who are committing UK immigration offences from abroad. Those powers are all welcome, although again we warn that the real problem is enforcement, not a lack of powers. There have been only 15 successful prosecutions of employers of illegal migrants in the last five years. It is also a measure of how badly the Government’s rushed approach to legislation serves us that they took powers to seize goods but not to dispose of them, so that they have warehouses full of things that they cannot dispose of. If matters were more considered, perhaps such holes would not appear.
The provisions on automatic deportation raise the most concerns. Although people who seriously breach the trust under which they are in this country should be deported, automatic deportation, without consideration of other factors, could cause serious problems. That decision has clearly been taken to satisfy the Prime Minister’s rhetoric during the foreign prisoners crisis in April and May last year and his reckless pledge to deport everyone, regardless of human rights or any other considerations. Rules are being changed even though the problem was not the lack of power to deport, but the failure to get around to deporting people.
The Home Secretary has already removed from the immigration rules the capacity to consider factors such as length of residence in the United Kingdom; strength of connections with the United Kingdom; personal
history, including character, conduct and employment record; domestic circumstances; previous criminal record and the nature of any offence of which the person has been convicted; compassionate circumstances; and any representations received on the person’s behalf. What can be the harm in considering those factors?
The overreaction to the foreign prisoners scandal caught up many people who had a strong case for staying in the UK, despite having made a mistake. Deporting every person who commits a crime, even if they have been in the UK for decades and have children and other family in this country, cannot be right, fair or proper.
Mr. Stewart Jackson: The hon. Gentleman is making a reasonably cogent argument, but there does seem to be naivety and a lack of reality. Far be it from me to support the Government, but we are talking about 9,700 people or thereabouts who have committed criminal offences. We must have a degree of reality about that. Our constituents would expect us to deal with those people robustly. Why do not the Liberal Democrats agree with that?
Paul Rowen: The reality is that the judge already has the power to order a deportation. However, a deportation should follow consideration of the case; it should not be automatic. Let me give the hon. Gentleman a few examples to illustrate my point. My hon. Friend the Member for Orkney and Shetland (Mr. Carmichael) dealt with the case of Sakchai Makao, a Thai national who had lived on Shetland for 10 years. He went off the rails after the death of his stepfather and set fire to a car. He served eight months. He committed the crime four years ago, but was rounded up last year. He no longer spoke Thai or had any real family connections in Thailand, yet he was threatened with deportation. Only the strength of feeling among the people of Shetland and their campaign prevented him from being removed.
Ernesto Leal arrived in this country 30 years ago, after fleeing General Pinochet’s regime, under which his father had been tortured. Ernesto Leal’s status in this country had never been in question and, although convicted of a crime, as a first-time offender with no previous convictions he served 18 months on the judge’s recommendation. He was then released and adhered strictly to his probation requirements.
David T.C. Davies: I notice that the hon. Gentleman did not tell us what the crime was.
Paul Rowen: I shall have to get back to the hon. Gentleman about that. Those are real cases, involving people whom the judge could have ordered to be deported. The problem is not that the powers for deportation do not exist, but that they have not been used by the judiciary. We should not make a new rule that makes things manifestly unfair just because the system is not operating properly at the moment.
Mr. Garnier:
Perhaps I can help the hon. Gentleman. The judge does not have a power to deport, but merely a power to recommend that the Home Secretary consider deportation. There is a perfectly good debate to be had about whether deportation should become a sentence, but that is not the position at present, so although the
hon. Gentleman may have complaints about particular sentences and questions about why the individuals who have been recommended for deportation have not been deported, he cannot abuse the judiciary for not deporting people.
Paul Rowen: I thank the hon. and learned Gentleman for that intervention, but I would be interested to know what the Conservative policy is. We agree with the provision whereby a decision to deport will automatically become deportation, but in fact there has always been a presumption of that happening. The fact that it is not happening does not necessarily mean that there is a problem with the law but that we have yet another example of the systemic failure of the Home Office.
Mr. Garnier: That was not the point that the hon. Gentleman was making.
Paul Rowen: No; the point that we were making was that automatic deportation in relation to a period of imprisonment of 12 months is not in itself fair or just and does not take account of the cases and issues that I have mentioned.
After examining the cases of the 1,000 foreign nationals who were not considered for deportation, the Home Office itself said that about 40 per cent. of them were not to be deported. According to its criteria, it did not consider them as necessarily needing deporting. We believe that, instead of automatic deportation, the courts should make the decision on deportation of foreign national offenders according to the facts of the case. We need to beef up the powers in that regard, rather than making the fundamental change that the Government are talking about.
We hope that those concerns can be addressed in Committee to improve the Bill. We will table amendments. We welcome some parts of the Bill, because they offer good and important developments. However, it would be unfortunate if yet another chance to construct an immigration system that works and is fit for purpose was wasted by playing to the tabloid gallery or sidelined by the desire to pilot through an unpopular Identity Cards Bill.
6.26 pm
Mr. Neil Gerrard (Walthamstow) (Lab): I would not say that I was enthusiastic about seeing the Bill, because over the past few years there has been so much legislation on immigration and asylum that I sometimes think the Home Office should be banned from introducing any more legislation for three or four years—Ministers might enjoy that.
I can understand the reasoning behind many parts of the Bill, but I have a real problem with the lack of detail in it about what will happen and how it will work. I am referring to the powers of arrest for immigration officers, powers on illegal working and powers on deportation. In many respects, how the Bill works will become clear only when we see the regulations. An enormous amount is left to regulations, which is a trend that I see in more and more Bills now and which I do not particularly like, because it means that often we do not know precisely how a Bill will work and what it will do.
I understand the point that we do not want too much detail in the Bill, because if we try to put every single dot and comma in the Bill, the tiniest change means coming back for primary legislation. However, in far
too many Bills such an enormous amount is left to regulations that we end up relying on assurances from Ministers about how a Bill will work, despite what appear to be wide powers in the measure. I am not casting aspersions on the good faith of Ministers, but that does mean that there are no guarantees for the future. In addition, of course, regulations cannot be amended. We might think that 90 per cent. of a regulation is acceptable but 10 per cent. is a problem, and there will be no way to amend it as we can amend the primary legislation.
All the way through the Bill, it is the lack of detail and what will come along when we see the regulations that concerns me. I can understand the reasoning for the first few clauses on immigration officers’ powers of detention. Let us say that a British citizen was trying to leave the country and there is a warrant for that person’s arrest or that person was known to have committed a crime. If an immigration officer was the only person at the port and no police were there, he could not stop and detain that person. I understand that a loophole exists, but I am concerned that the rules must be clear on immigration officers’ accountability and the routes for complaint or challenge against the use of their powers.
The suggestion that PACE—the Police and Criminal Evidence Act 1984—should apply has been made already. What happens when the immigration officer tries to detain someone? Does he have the power to question that person? If so, would that happen under caution? How would that relate to PACE? It is important that we get this right, because the Bill includes a criminal offence of obstructing the immigration officer in the carrying out of that function. In effect, there is a criminal offence of not co-operating with the immigration officer, so it is important that we know exactly what the rules are, what the powers are, what the limitations on them are and how they can be challenged if they are used inappropriately.
Clearly, the clauses on biometric registration are steps on the way to ID cards. We know from the debate on the Identity Cards Bill that it was always intended that one of the first groups of people to be subject to ID card legislation would be foreign nationals. There is no surprise in that, but some of the questions that now arise are similar to those that arose about the Identity Cards Act 2006.
It is not clear to me from the Bill where the data that are collected will be stored. Will we have a card with a chip on which the information is stored, so that the information is carried around on the card? Or will we have, as we were promised with the Identity Cards Bill, a major database behind the card? That is important; some of us who have real problems with ID cards would feel less uncomfortable with a chip on the card, rather than one with a big database behind it. The same applies with the Bill and we have questions about who will have access to the data. What will be the data protection regime?
Issues relating to children have been mentioned. When we debated the Identity Cards Bill, we were specifically told that there was no intention to introduce ID cards for children under the age of 16, but there is a specific
reference in clause 6 to the possibility of the registration of under-16s, despite what was said earlier.
Some of the powers look extremely wide and we need to know what they mean and how they will be used. For instance, clause 7 will allow the consequences of a failure to comply with biometric registration
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