 House of Commons |
Session 2006 - 07 Publications on the internet General Committee Debates UK Borders |
UK Borders Bill |
The Committee consisted of the following Members:Emily
Commander, Committee
Clerk
†
attended the
Committee
WitnessesSteve
Symonds, Legal Officer, Immigration Law Practitioners’
Association
Richard
Thomas, Barrister, Immigration Law Practitioners’
Association
Keith
Best, Chief Executive, Immigration Advisory
Service
Nicole
Shepherd, Tribunal Review Councillor, Higher Appeals Unit,
Immigration Advisory Service
Public Bill CommitteeTuesday 27 February 2007(Afternoon)[Mr. David Amess in the Chair]UK Borders Bill4.30
pm
The
Chairman:
As my fellow Chairman said, the Committee may
amend the programme order at any stage in its proceedings. The way to
do that is first through a meeting of the Programming Sub-Committee,
leading to the adoption of an amendment in the main Committee, or
secondly by means of an amendment moved by the Minister, providing that
no member of the Committee objects. I understand that the Minister will
move one or more amendments to the Committee’s order of this
morning. They will not be debateable and they will fall if a single
member of the Committee
objects.
Manuscript
amendment made: In the table, line 14, delete ‘2.30
p.m.’ and insert ‘3.00 p.m.’ and in line 19,
delete ‘3.30 p.m.’ and insert ‘5.00
p.m.’.—[Mr.
Byrne.]
The
Chairman:
We now come to the first evidence session this
afternoon. Will Mr. Thomas and Mr. Symonds kindly
join us? Gentlemen, without any opening statements, will you kindly
introduce yourselves to the
Committee?
Steve
Symonds:
I am Steve Symonds. I am the legal officer
at the Immigration Law Practitioners’
Association.
Richard
Thomas:
My name is Richard Thomas. I am a barrister
at Doughty Street Chambers. I practise in criminal law and with non-UK
nationals within the criminal justice
system.
Q
39
1
David
T.C. Davies (Monmouth) (Con): The first question that I
had for members of the Law Society was on the provision in the early
clauses of the Bill of the maximum sentence of 51 weeks to be conferred
on somebody who attacks an immigration officer. What do the witnesses
think about that and do they think that 51 weeks is long enough to
deter attacks on immigration
staff?
Richard
Thomas:
Perhaps I can answer
that.
The
Chairman:
Order. I wonder whether the technical person
could do something about the microphones. Certainly I had some
difficulty in hearing, and I believe that other Committee members did
too. Please continue to answer, Mr. Thomas, but the
Committee would appreciate it if the person responsible for technical
matters could do something about the
microphones.
Richard
Thomas:
The offence under clause 3 that you are
referring to is limited to an officer exercising their powers under the
detention provisions in clause 2. Clearly if the officer were injured
in a way that could amount to any other criminal offence, such as
actual
bodily harm or grievous bodily harm, the person
could be charged with that and the limits would, of course, be way
above the 51 weeks. My understanding is that that offence is limited in
its scope and that the concerns that you have would be met by powers
already in existence in the criminal justice
system.
Q
2
Paul
Rowen (Rochdale) (LD): Could you tell us what concerns
your association might have about the granting of these new powers to
immigration
officers?
Richard
Thomas:
Having looked at what the members of the
Committee said on Second Reading, I saw that the issue has not been
raised just by yourself. Our concern is that from the 1999, 2002 and
2004 Acts, there have been extended powers to immigration officers.
What has not gone on at the same time has been the support provisions
that go with that for training officers and ensuring that they have
access to the relevant Police and Criminal Evidence Act 1984 training.
Those officers are going to be acting in sensitive situations, some
politically so and some involving vulnerable clients. Such
considerations led to PACE in the first place, to ensure proper faith
in and effective use of the justice system; however one looks at this,
if those powers are to be enforced effectively, that must be done in
the appropriate manner. That happened for the police service with PACE,
which provides protection to the police and to those in their custody.
At the moment, the powers of immigration officers are extending, but we
are concerned that they do not have the appropriate training or
legislative structure to act
within.
Q
3
Paul
Rowen:
This morning the Minister and one of his officials
said that there was already a degree of interoperability between the
various people who work in the ports. Can you tell us about that, from
your own and your members’ experience, and whether there have
been any particular issues or problems, bearing in mind your answer to
the previous
question?
Richard
Thomas:
To clarify, are you asking whether there have
been problems with immigration officers at the
ports?
Paul
Rowen:
No. Let us say customs officers are taking on the
role of an immigration officer, a police officer and so
on.
Richard
Thomas:
My experience comes from the context of the
prosecution of immigration offences. My understanding is that the
extended number of offences has taken up a huge amount of police time,
because there are not enough arrest-trained immigration officers. They
have been given more and more powers, which is creating an additional
strain on the police services at ports. The police there are not able
to concentrate on what they perhaps really want to concentrate on,
which is catching the traffickers or the professional criminals
involved in border crime. A lot of time is taken up doing things
relating to newly introduced immigration offences. So, the problem
arising from my answer to the last question is that there are not
enough trained officers to do the new jobs. They are being given more
and more powers, which they are not in a position to do, and it is
placing a strain on the police and taking away from what I imagine the
public would really want to see policed.
Q
4
Mr.
James Clappison (Hertsmere) (Con): I am quite concerned by
what you have just said. Although all offences are serious, there is a
lot of public concern and in this place about the really serious
offenders, the people traffickers who make big money, work an organised
network and are into all sorts of crime. You have just told us that
your experience is that the police are being distracted from dealing
with such people. How strong is your evidence for saying
that?
Richard
Thomas:
My experience over the last three years is in
dealing with offences in the Crown court and the Court of Appeal in
relation to offences mostly brought in with the 2004 Act, but also
documentary offences. So, on a weekly basis, I speak to police
officers, mostly down at Isleworth Crown court, who have come out of
Heathrow. Of course what I say is anecdotal and from my experience, so
I limit it in that way, but certainly the concern that the officers
have is something that I see on a regular
basis.
The other thing
that I hear about is that under the “Operation Enforcement
Manual” there is a lot of scope for immigration officers not
being able do their own work, but having to do it within police teams.
That is taking resources away from the police. Albeit anecdotal, it is
something that I am confident is a correct view of the
circumstances.
Richard
Thomas:
I know that in recent years the police have
been working on the team work, and that they have a specified role;
there is a job within the police for liaising with the immigration
officers over roles that overlap. I am aware that the police are making
that effort. However, clearly, there are only finite resources, and
arresting five people on Saturday night for arriving without
documents—they are easy targets—produces a vast amount of
paperwork for those officers. Immigration officers have to arrive,
carry out the arrest and go back to the police station and process it,
which takes up their whole evening. They are not then able to focus on
what may be perceived as more serious crimes—although everything
is serious, of course.
Q
6
The
Minister for Immigration, Citizenship and Nationality (Mr.
Liam Byrne):
Does your anecdotal experience point to the
need to strengthen the resources we are investing in the immigration
service alongside the provisions in the
Bill?
Richard
Thomas:
Yes, absolutely.
Q
7
Damian
Green (Ashford) (Con): I am struck that in your evidence
you talk about training, guidance and so on. Do you think that the
immigration officers at ports should not be given the extra powers? Is
it as stark as
that?
Richard
Thomas:
If immigration officers were to be given
these powers, the only benefit would be if they were properly trained.
If there were to be specialist people at ports who had a specialist
understanding of the needs of foreign nationals who are entering and of
the certain circumstances that arise, there would be a
benefit from it. There is not a benefit from creating an ad hoc further
police service at the ports when those people do not have the
appropriate training.
Q
8
Damian
Green:
Do you think that, as of now, the immigration
officers who would be designated under the terms of this measure do not
have the proper training? Is that what you are
saying?
Richard
Thomas:
No.
Q
9
Damian
Green:
To go on from that, you make a point in your
written evidence about children. I would like you to expand on that.
What are the particular problems relating to children which, in your
argument, would be made worse by these extra
powers?
Steve
Symonds:
There is a specific issue about children in
relation to section 11 of the Children Act 2004. That sets out that
various agencies have a duty of care to the child’s welfare.
Immigration officers are excluded from that. Now there are increased
powers where children are again going to come into the hands of
immigration officers; I am thinking of the first clauses in this Bill.
It may be children who are detained under the powers in clauses 1 and
2. They are not, at present, going to have the statutory protection
under section 11 and it seems to us that they should
do.
Q
10
Paul
Rowen:
In terms of what you have just said, what are the
implications for the immigration service if it is actually going to
detain children at ports? What do you think needs to be added to this
Bill that is not in it
now?
Steve
Symonds:
We would like to see an amendment that
incorporated the immigration service within those bodies mentioned in
section 11 of the Children Act. That would be a very big step forward
because it would mean that any immigration officer would have to
receive training around issues that include trafficking matters. They
would have to be concerned about the welfare of children passing
through ports as it would come within their statutory duties. I think
that would be a huge step forward and, because of that, there would be
knock-on effects in terms of the training and guidance issues that have
more generally been discussed.
Q
11
Paul
Rowen:
The Bill talks about designated immigration
officers. In your experience, is it possible to designate certain
officers at a busy port that will deal with young people and therefore
ensure that they get the
training?
Steve
Symonds:
The problem with that is that obviously it
would be possible to designate certain officers to have particular
training in relation to children, but the starting point is that
immigration officers per se, and therefore those designated officers,
are not within those agencies that are covered by section 11. With
respect, the very vague clause 1 refers only to
officers
“who the
Secretary of State thinks are fit...for the purpose, and suitably
trained.”
We do not think
that is at all adequate.
Q
12
Mr.
Byrne:
May I infer from your evidence that it is your view
that these powers should be rolled out only in line with the provision
of specialist training,
and that as a general principle, you would support efforts to ensure
much stronger, clearer, sharper oversight of the immigration and
nationality directorate and the immigration services’
operations?
Steve
Symonds:
Yes.
Q
13
Chris
Mole (Ipswich) (Lab): Do the witnesses have a view as to
whether anything needs to be done to increase the certainty that an
applicant presenting themselves as a minor is indeed a
minor?
Steve
Symonds:
I know that, even as we are discussing the
issue now, the Immigration Law Practitioners’ Association is
sponsoring an investigation into the issues around age disputes. It is
outwith the terms of the Bill. I know that it is a difficult and
contentious issue, but it seems to us that the starting point is that,
if you have someone who presents themselves as a child, unless there
are good reasons to think that they are not a child, one should treat
them as a
child.
Q
14
Mr.
Stewart Jackson (Peterborough) (Con): I have a couple of
questions, starting with a general question. Do you take issue with the
principle of biometric identity documents, or with some of the
practical details? Also, if you do oppose such documents, would you
agree with NO2ID, which basically suggests that people coming to these
shores will be unnecessarily criminalised by them, or do you perhaps
see them as racially divisive, which is the argument that Liberty uses?
What is your view,
generally?
Steve
Symonds:
Broadly speaking, we support the position of
Liberty, which we described in the memorandum that we gave to the
Committee. We certainly do not have the expertise to comment on the
details of biometrics. We also appreciate that, to a degree, this is a
past debate, both in terms of the general move internationally in
relation to people travelling on documents that will have biometric
data about them, and also in relation to the passing of the Identity
Cards Act 2006.
Richard
Thomas:
I do not have anything to add on that
subject.
“The regulations may
include provision permitting the use of information for specified
purposes which do not relate to
immigration.”
The emphasis
is on the last five words.
What is your view on that? What
do you think that the Government have in mind? We are talking about
documents not relating to immigration.
Steve
Symonds:
Our view is essentially a view that we have
in relation to a number of provisions here. The measure is far too
broad—I do not know what it means. I am concerned that powers
such as this, which are so open-ended, should be passed. Obviously, I
know that it is a matter in front of the Committee, but the fact is that
the ordinary situation is that regulations are not amended when they
come before the House. We certainly think that the regulations in
relation to these provisions should be capable of being amended, so
that one could have some scrutiny of the purposes to which it may be
thought they should be put.
“permit the Secretary
of State on issuing a biometric immigration document to require the
surrender of other
documents.”
Would you say
that that is in a similar category to clause
8(2)?
Steve
Symonds:
Yes.
Richard
Thomas:
It is in a similar category to a number of
matters, where certain provisions in the Bill are being used to extend
powers outside the scope of immigration. If you look back at some of
the detention provisions in clause 2, they mean that an immigration
officer can arrest anyone who is liable to be arrested by a police
officer. That is outside the scope of immigration and it seems to be a
sort of trickling, creeping effect. The other problem will be that, if
this information has been requested and is perhaps required for
criminal enforcement, there will be great difficulties in using that
information because it has been gained in this way, and so these
creeping legislative provisions may not do what they are intended to do
and may be pretty worthless.
Q
17
Kerry
McCarthy (Bristol, East) (Lab): Do either of you in your
work come across cases when foreign nationals have real trouble proving
their identity—for example, when they are trying to access
public services in the course of their employment? Do you think that
the use of biometric registration would help them to get around that
problem? If you do not think that biometric ID cards are the answer,
what do you suggest would help to solve their
problems?
Steve
Symonds:
We certainly do see those problems and we
agree that something needs to replace the 16 possible documents to
which the Minister referred earlier and which might have to be
presented. It is quite true that many documents are often presented in
a tatty fashion and probably would convince nobody of right mind that
they demonstrated the entitlement that was put
forward.
One of the
problems with the documents that will need to be looked at in due
course is what would happen to someone whose leave had perhaps come to
its end and who had made an outstanding application. How would the
document be updated to ensure that it still demonstrated their
entitlement, despite the fact that the time of the leave for which they
received it had gone? There are serious issues around that. They will
be looked at quite carefully because someone could have leave to remain
for, say, three years and have made a valid application. It may be one
that was invited under the
rules.
Q
18
Kerry
McCarthy:
That is the problem that people already have
with the documentation: they have to prove their leave to remain at the
moment.
Steve
Symonds:
Absolutely.
Steve
Symonds:
No. Obviously, one will take the opportunity
to address it if it is to be the means forward of solving the
problems.
Q
20
Damian
Green:
I am struck by the second of the three real
problems. Given your points about the vagueness and all-encompassing
nature of many of the powers taken, you imply that there is a
danger of breaching various international conventions to which we have
signed up, such as the 1950 convention and the refugee convention. Will
you expand on
that?
Steve
Symonds:
Clause 16 introduces reporting and residence
requirements. At the moment, there is no limit on how they may be put
into effect. There is no purpose that would control how they were put
into effect. The range of people that they could affect is vast. Among
others, we have highlighted refugees, people on highly skilled migrant
working programmes and international students. A great range of people
could be required to report, yet if someone was required to report
weekly or even daily, that would be within the terms of the Bill,
regardless of whether there was any real need to ask the person to
report in that way and regardless of the interference with article 8. I
am sure that there would be worry if international concerns were used
to a great extent. I could see legal challenges in relation to that.
Obviously, that was not the Bill’s intention, but if we were to
be that intrusive on someone’s private life, no doubt it would
arise.
Q
21
Damian
Green:
Would it make it less likely to be challenged under
article 8 if there were specific restrictions on the classes of people
to whom the Bill could apply and/or reasons for which they could be
applied?
Steve
Symonds:
If Parliament were to explain in the Bill to
whom they were to apply and for what purpose, obviously if they applied
to a particular person for a particular purpose, that would be likely
to deal with most possible
challenges.
Richard
Thomas:
The crucial aspect would be to say,
“In the following circumstances, it may be appropriate to pass
it,” and to have something positive. As a barrister who would
want to be challenging something, I would find it far more difficult if
certain provisions had been allowed for and they were the circumstances
in which the controls had been
placed.
Q
22
Mr.
Byrne:
Does the European convention on human rights
provide a measure of protection for the exercise of powers within the
Bill? Would those protections then fall away if Britain were to
withdraw from the
ECHR?
Steve
Symonds:
The ECHR will provide some protection in
relation to powers in the Bill in the way that I have described.
However, that will only be protection for those who have adequate
access to legal advice and representation and, thus, can access their
protections. That will not necessarily include many of the people who
may be affected under the terms. Yes, if Britain were to withdraw from
the convention, that would remove any protections that the convention
might provide.
Q
23
Paul
Rowen:
Notwithstanding what you said earlier, what
document do you think it is reasonable for the Secretary of State to
hold—or to hold on to, as it says in the Bill—for future
use?
Steve
Symonds:
That depends on the individual
concerned.
Paul
Rowen:
We would be dealing with an
immigrant—possibly an illegal immigrant—or an asylum
seeker. From your experience of working with
them—
Steve
Symonds:
In the case of an illegal entrant
who did not have leave—or who had leave for a period of only six
months under strict provisions because article 3 prevented his removal
and for no other reason—one might expect the immigration service
to want to retain his passport. It might be considering removal in what
in its terms was the near future, and if a passport were available it
would want to hold on to it in case it went missing. That is what
happens at the moment.
Richard
Thomas:
On the other hand, it might be that somebody
had entered under a business agreement—that was his entry
condition—but the officers seized business documentation that he
had brought with him in order to have a quick look at it and make
inquiries about the state of his business. That might not be
appropriate. There is a distinction between immigration officers
exercising powers under the Act and immigration officers having powers
in some nebulous form.
Richard
Thomas:
Yes. The problem is that they get lost. Time
and again, our members see documents being lost within the Home
Office.
Q
25
Paul
Rowen:
Presumably, if the power that this Bill gives
immigration officers to search for nationality documents is exercised,
then the likelihood of that happening will be reduced.
Richard
Thomas:
The likelihood of the documents being
lost?
Q
26
Paul
Rowen:
I am trying to tease out what, in your
view, is reasonable documentation for immigration officers to hold.
They have the power; it is stated here in clause 40. In your view, is
specifying the documentation here all that is
needed?
Richard
Thomas:
My opinion is that it will become more
acceptable for an immigration officer to want to hold on to documents
relating to an individual’s immigration position. The
concern—especially about clause 40—is that you can be
stopped for any sort of arrestable offence if an immigration officer
says, “I think that you are not British.” On what grounds
is he deciding that? He now has powers to search your property for
immigration documents even if you are arrested for a traffic offence,
such as having a rear light that is not working. That starts to create
the sorts of concern about aggressive and overarching policing that led
to PACE in the first place.
Q
27
Paul
Rowen:
Will it say that there is a suspicion of money
laundering or trafficking? Presumably it would have to go
further.
Richard
Thomas:
That would be different; those are
arrestable offences. I imagine that police officers would have to
exercise those powers, including getting a warrant and the like. It is
all very well to give immigration officers powers, but if they do not
have the administrative back-up and training or the manpower to do
anything about it, then nothing is going to come of it.
The Chairman: We now turn
to the treatment of claimants. I think that Mr. Green has
the first question.
Q
28
Damian
Green:
I do have one on clause 16, but it is on that
issue. In your written statement you have understood clause 16, as I
had done, to be essentially toughening powers against serious
criminals. That is because we have read the regulatory impact
assessment and that is what it mentions. This morning, the Ministers
told us that we should look at it in the context of protecting
unaccompanied asylum-seeking children. I was genuinely puzzled at that
difference of interpretation. Can you give me your
interpretation?
Steve
Symonds:
I have had the advantage of the Minister
explaining what that was for and those were the two categories he
kindly mentioned to me and broadly those are the reasons that he also
gave. I have also had a briefing from the Home Office which suggested
that these were initial targets and so it might well be that these were
expanded beyond the two categories that have been identified. Certainly
on the face of the provision there is nothing to stop that.
So far as the protection of
minors is concerned, it would seem to me that it would be a far better
way to protect minors to go back to the matters raised under section
11. That would help protect children. What should be happening is that
unaccompanied minors should be in the care of social services. There
should already be an authority that has close contact with them so
those concerns ought already to have been
addressed.
Q
29
Damian
Green:
That is a very interesting point. To move to the
other side of it, the criminal side, the serious criminals, you seem to
imply that actually this could be almost anyone. For people who come
under the highly skilled migrant programme, the people who come under
the points-based system, this is an all-encompassing set of powers. Is
that what
you—
Steve
Symonds:
It is. You go back to Section 3(1) of the
Immigration Act 1971. As on the face of the clause here, it does apply
to anyone with a limited leave to enter or remain. That is a vast body
of the immigrant population here.
Steve
Symonds:
I have absolutely no idea. We are talking
about hundreds of thousands of people.
Q
31
Paul
Rowen:
On clause 17, support for failed asylum seekers,
are you happy that those particular clauses close any
loophole?
Steve
Symonds:
I am satisfied that the lacuna we understand
it is meant to close will be closed by those provisions,
yes.
The
Chairman:
We now turn to other enforcement issues and I
think Mr. Damian Green has the first
question.
Q
32
Damian
Green:
This is an area where new powers are being extended
to immigration officers so we can take the question and answer about
training and guidance and codes of conduct as read. I assume that is
what you would say. Do you think there are specific points to make in
relation to these specific powers to seize cash and so
on?
Richard
Thomas:
The Proceeds of Crime Act 2002 was brought in
to target serious crime. The understanding was that it was difficult to
prosecute people but that serious criminals can be hurt by having
access to their funds curtailed. Therefore civil forfeiture methods
were brought in where funds could be seized on a balance of
probabilities. It is therefore much easier to target those serious
criminals. That is why the recovery of cash provisions were there in
the Proceeds of Crime Act.
Extending these provisions to
the possible proceeds of someone who has been working in this country,
such as working in Tesco, doing a perfectly legal job which they are
not entitled to is not something I think the Proceeds of Crime Act was
designed to
do.
Q
33
Damian
Green:
If you are making the point that there will be lots
of people who are on relatively low wages who will have what little
they have confiscated, is it your experience that the people most
responsible for that illegal working are the employees or the
employers?
Richard
Thomas:
The people who are responsible for
facilitating this are the employers. From my understanding, and I put
it in context as representing people who have been prosecuted for
making false declarations, they have worked in the NHS for two years,
doing a responsible job, being a nurse and they made a declaration at
the beginning that they could remain indefinitely. That is something
they did not have.
In
my experience, the people they work for must be complicit in the fact
that those people are working. Obviously, there are huge
pressures—they need someone to work and there is someone there
willing to work. Some treat them well and are glad to have an employee.
Large number of others exploit the workers. In these circumstances I
would have more welcomed provisions to extend the criticism and the
offences against the exploiters rather than those who are often
exploited.
Q
34
Damian
Green:
That is very interesting. I am sorry to be
anecdotal about a constituency case, but one of the longest lasting
overstayers and illegal workers who ever presented himself at a
constituency advice bureau had genuinely convinced himself that he was
legal because he had spent five years working as a cook for a local NHS
trust and so thought that the Government somehow must know that he was
here and would have approved it.
Richard
Thomas:
These people have national insurance numbers
and have paid tax. People who spent five years paying tax and national
insurance are being sent to prison. It seems absurd that there are
extra powers to target that. If that is a concern and if illegal
working is something that the Bill wants to target, it may be far more
efficient, albeit harder in the short run, to target the
employers.
Q
35
Mr.
Jackson:
I want to be clear about what you are saying.
Some of your comments are a little confusing. You use the term
“perfectly legal jobs”. Clearly they are not perfectly
legal.
Richard
Thomas:
May I just clarify that? To work on the
check-out at Tesco is a legal job. I am saying that the person filling
it does not have the right immigration leave to fill
it.
Richard
Thomas:
No, I did not say that. It is a
legal
job.
Are you saying
that in your opinion, as a matter of principle, the targeting of
illegal activity in respect of employment should be solely aimed at
people who “exploited”—in other words, employers?
Or are you saying that there should be a balance? You seem to be
implying that there is no causal link: employers are employing people
and it is illegal and there is no responsibility on the part of
the employees. Could you clarify
that?
Richard
Thomas:
Obviously I cannot go as far as to say that
people who are caught working illegally should not face punishment. I
cannot go that far, albeit my experience often is that it seems an
improper use of public money to imprison someone who has been paying
tax and national insurance. I understand your point, but it is not
solely the employers who should be targeted. On the question of whether
employers should be targeted, if we are looking at a balance it should
swing further towards targeting the employers rather than picking up
the easy targets. I have to accept that there has to be a
balance.
Q
37
Mr.
Jackson:
Far be it from me to support the Government, but
the Whip is not here. What other sanction can the Government use in
respect of being focused solely on employees if they cannot use the
sanction contained in the clause?
Richard
Thomas:
Removal. This is my answer to a number of
possible criminal offences. If someone is picked up and they are
working illegally, there are two options. First, they can be taken to
the magistrates court, go through the committal proceedings, go up to
the Crown court, perhaps have a trial and serve a sentence—all
at vast public expense—and then be removed. Or they can simply
be removed. I would say that just removing someone, if appropriate,
after the appropriate procedures have been carried out, would be more
effective than the criminal justice system.
Q
38
Mr.
Byrne:
May I infer from your remarks that you would
support measures to shut down access to things like national insurance
numbers or, indeed, other public services or jobs in the public sector
for those who are here
illegally?
Richard
Thomas:
The position has to be that those who are
accessing national insurance numbers and other matters are inevitably
using false documents. If someone is not entitled to work, the giving
of a national insurance number creates huge confusion. People often get
a national insurance number, get a job and, as in the example that was
given by Mr. Green, feel that they have invested in society
and become part of it. Five years down the line, they find themselves
arrested. Clarity would be of
assistance.
Steve
Symonds:
Broadly speaking, we would support such a
measure, subject to many of the comments that were made on Second
Reading. Someone has to recognise the immediate effect on very large
numbers of people, many of whom are effectively settled here and
working. What will happen to them? How will they be left? If the answer
is that we are going to leave them on the streets and make them
destitute, we would not welcome it.
Steve
Symonds:
Subject to their particular circumstances.
It would be appropriate to remove some of them, but it might not be
appropriate to remove others.
Q
40
Mr.
Byrne:
Measures to make it harder for someone to obtain
something such as a national insurance number illegally would be
welcome?
Richard
Thomas:
I cannot sit here and encourage someone to
obtain a national insurance number
illegally.
Q
41
Paul
Rowen:
Currently, asylum seekers are not allowed to work,
even while their appeals are going through. Would you support moves for
them to be able to work and be less of a burden on the state?
Steve
Symonds:
Yes, very much. We have long supported
that.
Q
42
Paul
Rowen:
I shall now turn to clause 22, particularly
subsections (2) and (5). The provision relates to the disposal of
property whose ownership is uncertain. Where the courts decline to make
an order, the Secretary of State can decide on a whim to dispose of the
property. Do you think that that is a reasonable power for the
Secretary of State to have?
Richard
Thomas:
I read these provisions and found them
slightly bewildering. I think that they are another example of vague
provisions. I am not quite sure what this aspect of the Bill is aimed
at. I do not know whether you had the assistance of the Home
Office to explain it to you this morning. Although it follows
the development sections of the Proceeds of Crime Act 2002, it
is not aimed at civil property forfeiture; it seems to be aimed at
property that happens to come
into the possession of an immigration officer during an offence. I am
not clear about what it is directed at. The short answer to your
question is that I would not support any uncertain powers of the
Secretary of State.
Q
43
Kitty
Ussher (Burnley) (Lab): I want pick up on a couple of
points that have arisen. I should like to consider sanctions on
employers of people that are here illegally. You are the lawyer; am I
right in thinking that clause 23 puts sanctions on
employers?
Richard
Thomas:
There are powers; I am not saying that there
are not. The first powers against employers were brought in under the
1996 Act.
“Clauses 23
and 24 cover the arrest of individuals who knowingly employ an illegal
worker”
and so
on.
Richard
Thomas:
Absolutely. I make no criticism of any
provisions that allow for that. I was directing my comments at the
question of the balance and where it should
lie.
Steve
Symonds:
There should be more effort to exercise the
powers that are there. We are not criticising the particular additions
that you mention, but we are saying that, rather than using the
measures that you have already got plus those proposed here to go out
and target exploited workers disproportionately, let us start using the
powers to deal more with exploitative
employers.
Q
46
Kitty
Ussher:
I am saying that there are new, additional powers
in the Bill to target employers. Do you
agree?
Steve
Symonds:
Yes.
Richard
Thomas:
I am afraid that I
cannot—
Q
48
Kitty
Ussher:
You rightly raised the interesting question of
national insurance numbers. A few minutes ago, you mentioned
that it was possible to obtain national insurance numbers using forged
documentation, which you obviously would not support. Do you think that
if people had compulsory identity cards, whether biometric or
otherwise, that would prevent them from getting national insurance
numbers
fraudulently?
Richard
Thomas:
The sophistication of the techniques that are
used in making forged passports and, no doubt, forged identification
documents is astonishing, from what I see. I do not know what
technology is available for the biometric testing and I am trying to
adopt a neutral position on
that.
Whatever
documents that you have—whether those are certain ID documents
or certain passports—first, I do not know what the technology is
for ensuring that
those cannot be forged and, secondly, to what extent those things are
properly applied. We see passports being used by employers to take on
employees, when they have had a quick flick through them after being
handed over. There has to be a will to properly enforce it. I see where
your point is
going.
Richard
Thomas:
An effective biometric system no doubt would.
But I put that in the context of the objections that have been made in
the broader
sense.
Kitty
Ussher:
But you think that it would help in preventing
illegal national insurance fraud. Yes or
no?
Richard
Thomas:
If you could just give me a
moment.
Q
49
Kitty
Ussher:
Perhaps we will come back to that. I note your
reluctance to give a yes/no
answer.
Finally, you
have said that you have general concerns about the vagueness of some of
the provisions in the legislation. But I have noticed that, on a number
of occasions in the last half hour, when asked by Committee members
about how immigration officers should react in certain circumstances,
you have clearly made the point that it depends on the type of crime
and on the situation and it depends on this or that. I put it to you as
a logical point that, if some discretion is required, the Bill cannot
legislate for each individual circumstance. Therefore, it necessarily
has to be
vague.
Richard
Thomas:
There is a distinction to be made between
discretion on behalf of the Secretary of State, which we think is very
important, and discretion on the part of immigration officers acting at
port. The levels of ability are mixed. When you are talking about
immigration officers at port, I believe that there should be a good
deal of legislative support. That is the reason why the Police and
Criminal Evidence Act 1984 was brought in. Providing a strict
legislative framework in which police operated protected the police and
those in their custody, or those involved with the police. I support a
strict framework for immigration officers to act within, and I am sure
that Steve would as well, and discretion on behalf of the Secretary of
State.
Steve
Symonds:
I think that part of the answer comes back
to something that we discussed earlier. If you have clear purposes that
are clearly defined, the way in which the immigration officer needs to
act to meet the specified purpose may differ from case to case, but the
fact that there is a clear purpose in the provision clearly guides the
immigration officer and ensures that there is some degree of regulation
or oversight over what they are
doing.
Kitty
Ussher:
Of course, the legislation states that the
Secretary of State can make regulations, which would presumably give
the framework that you were looking
for.
Richard
Thomas:
The problem with that, for
example—looking at the words “The Secretary of State may
make regulations”—was that, in relation particularly to
serious crimes under the 1999 Act, the regulations that actually came
out dealt with everything from possession of a nuclear bomb, down to
shoplifting and theft. That is where the concern is. When something says
“The Secretary of State may make regulations”, the actual
regulations are often very different from what was envisaged in the
Bill.
Concerning
your general point on training, which probably applies throughout the
Bill, do you not agree that you do not need to legislate for improving
training standards? It could well go in parallel with what we are
discussing
today.
Richard
Thomas:
Absolutely not. I noted that, on Second
Reading, Paul Rowen
said:
“The real
problems with immigration are administrative, not
legislative”—[Official Report, 5 February 2007;
Vol. 456, c. 618.]
A lot of the
administrative stuff, I completely agree with you, can act separately
from the legislation. Improved training of officers can do that. We are
concerned about legislation moving ahead without the
training.
Q
51
David
T.C. Davies:
Does the Immigration Law
Practitioners’ Association accept that, broadly speaking, too
many people are coming to this country claiming to be asylum seekers
when they are not and that the Government have a right and a duty to
try to tackle
this?
Steve
Symonds:
The answer to that is evidently yes
on both counts. We would maybe differ as to how large the
number is of those who should not be, but yes, obviously the Government
have a duty in relation to
that.
Q
52
David
T.C. Davies:
Does the association not also accept, then,
that if asylum seekers are given the right to work—or rather, if
those who claim to be asylum seekers on arrival are given the right to
work—that will simply encourage more people to come here
claiming to be asylum seekers and make it even harder to direct the
help that all of us agree should go to those who are genuinely fleeing
persecution?
Richard
Thomas:
If asylum seekers are not allowed to work,
what is left is that everyone is just closing their eyes to
what is actually happening. It seems absurd to—I am sorry, you
are looking surprised. The reality is that the London economy is
supported by vast numbers of people who are working illegally. No doubt
if asylum seekers could be allowed to work—if they had the
possibility of working, we are not saying that people should be forced
to—it may be better for people to work within the system, pay
their taxes and not be as much of a burden on the state, as I think
your words
were.
Steve
Symonds:
At the same time you must look at the cost
of the National Asylum Support Service, not just in terms of the sheer
spend per se but in terms of shifting people around the country, often
repeatedly, causing immense distress and disruption in relation to
their asylum claims. It often leads to their claims not being properly
dealt with because they do not have proper access to their lawyers and
cannot keep in touch
with the system. Those are all costs that go with that and might be
addressed if those people, or some of them at least, were able to
support
themselves.
Q
53
David
T.C. Davies:
Do you not accept that that will surely
increase the number of people coming into this country and claiming
asylum?
Steve
Symonds:
Not necessarily,
no.
Richard
Thomas:
No, I don’t think so. If people want
to come to this country and work, there are ways of doing
so.
David
T.C. Davies:
But making it easy, by making it legal for
people to work, will surely increase the number of people who want to
come.
Steve
Symonds:
It certainly is not easy to get to this
country to claim asylum. Many people die trying to do so, and many
others have horrendous experiences in the process of trying to do
so.
Steve
Symonds:
I agree with that,
yes.
Q
54
Mr.
Jackson:
I am puzzled that the anecdotes that you give,
Mr. Thomas, do not seem to be substantiated by any
statistical foundation whatever. The Government, in many dozens of
written parliamentary answers, have been unable to tell us, as has been
officially confirmed by the Home Office, how many illegal immigrants
are in this country, how many people are working, how many failed
asylum seekers there are and where they are dispersed to. With all due
respect, it is supposition and anecdote that you are basing your
arguments
on.
Richard
Thomas:
Absolutely. I said right from the beginning
that the answers that I gave on personal experiences would be from
exactly that—personal experiences. I also agree with you about
the lack of statistics, which is something that we have a difficulty
with in conducting things as a practitioners’ association. What
I am saying is therefore to an extent anecdotal, and you will no doubt
give it whatever value you think. I agree with your main
point.
The
Chairman:
We come now to the subject of the
deportation of foreign criminals, and I think that Kerry McCarthy has
our first
question.
Q
55
Kerry
McCarthy:
You make some points in your submissions about
the human rights of people who might be subjected to these provisions
on the automatic presumption of deportation. What balance do you think
should be struck between the need to protect the public from such
individuals and any rights that they may
have?
Steve
Symonds:
To start with the premise in your question
relating to human rights, we are happy that the balance is as it should
be in international law, and it lies essentially with the European
convention on human rights and to some extent the refugee convention,
although that is limited in the protection that it will give to people
who have committed serious criminal
offences.
Q
56
Kerry
McCarthy:
For example, if somebody who had indefinite
leave to remain committed a very serious offence, do you not think that
there are circumstances in which their rights as a refugee should be
disregarded because of the seriousness of what they have
done?
Steve
Symonds:
Their rights as a refugee maybe should be
disregarded, because under the convention, in particular circumstances,
if they are a danger to the community, they are not entitled to
protection under the refugee convention. However, under the European
convention, they are entitled to not to be removed to a country where
they would be at risk of torture or degrading
treatment.
Q
57
Kerry
McCarthy:
What should be done with somebody who is a
danger to the community because they are likely to reoffend, but who is
given asylum on the basis that they would be subject to such treatment?
Are you saying that they should be able to rely on the convention and
remain in this
country?
Steve
Symonds:
Our position is clear. We are satisfied that
the United Kingdom was right to sign up to the European convention and
is right to accept, as it must being a convention party, that we should
not remove anybody to a place where they face
torture.
Q
58
Kerry
McCarthy:
Do you envisage a situation in which the gravity
of what they have done would override
that?
Steve
Symonds:
No.
Q
59
Kerry
McCarthy:
On the interaction between the clauses before us
and other legislation, you have been quite critical of the need for
extra legislative provisions. Will you say a little more about
that?
Steve
Symonds:
As I am sure that Committee members are
aware, in April last year, the issue of foreign national prisoners came
very much to the forefront of the debate. Since then, the Government
have changed the immigration rules so that there was a presumption of
deportation. It is now much harder for someone convicted of a criminal
offence to resist deportation. The circumstances that enable somebody
to resist are exceptional ones and we see no need, therefore, to extend
the provisions in this way, which will remove the possibility to
exercise any discretion in a very large number of cases, no matter how
exceptional they might be. In fact, we see that as an abrogation of
duty on the part of the
Executive.
Q
60
Paul
Rowen:
On exceptions, clause 29(3) deals with children.
What is your view on the fact that the provisions focus on the date of
conviction, rather than on the date of the commission of the
offence?
Steve
Symonds:
We revised our comments in the memorandum to
say that, as explained, we object to the provisions in their entirety,
but that if we are to have them, we do not see the purpose of focusing
on the age on the date of the conviction. We think that the relevant
age is that on the date when the person committed the
offence.
Q
61
Damian
Green:
On this subject, you said that the word
“automatic” is a misnomer and that it is in effect an
attempt to remove from the Home Secretary responsibility for taking
such decisions. What would you prefer to see
instead?
Steve
Symonds:
I noticed that in the debate, for the most
part, the Minister referred to the provisions as a mandatory
deportation. That is what they are. They mandate that the Secretary of
State must make the deportation order. It does not mean that the
deportation happens or even that the order is made. It just means that
he ought to do
so.
Q
62
Damian
Green:
Clearly, this matter has been a huge problem for
successive Home Secretaries. Do you think that the clauses before us
would improve the
situation?
Steve
Symonds:
No. In one respect, they would lead to a
serious deterioration. The upshot of the provisions in clauses 30 and
32 dealing with the timing of a deportation order and detention
respectively might be that, while the Secretary of State considers
whether to make a mandatory deportation order, someone could serve time
way beyond their sentence, which would clog up the prison system and
lead to the sorts of bottlenecks mentioned in the debate. There would
be no comeback on that because the Secretary of State will be lawfully
entitled to do that under the provisions. In some ways, the provisions
make the system
worse.
Q
63
Mr.
Clappison:
Is it right that, under clauses 30 and 31, the
Secretary of State cannot deport someone if they are appealing, or have
time left in which to do
so?
Steve
Symonds:
Yes, as long as he does not certify—
Q
64
Mr.
Clappison:
Do you think that the Bill would be improved if
there were to be a time limit on that, beyond the period of
appeal?
Steve
Symonds:
We would see that as a modest
improvement.
The
Chairman: Order. I am very sorry, but that brings us to the
end of the time allotted for the Committee to ask questions of our
first panel. I invite Mr. Thomas and Mr. Symonds
to leave—perhaps they would like to go to the back of the
room—and our next set of witnesses to come along. We were
expecting one witness from the Immigration Advisory Service, but I am
delighted to say that we have two. The second witness is Nicole
Shepherd, who is a tribunal review councillor, higher appeals unit with
IAS. With no opening statement, would Mr. Best please
introduce himself?
Keith
Best:
I am Keith Best, chief executive of the
Immigration Advisory Service. We are the largest national charity
giving a legal advice and representation service to immigrants and
asylum seekers. We have 20 offices around the United Kingdom and some
300-plus staff, and we are opening offices overseas as well. On my
right is Nicole Shepherd who, as you have heard, is a tribunal review
councillor. When an appeal has gone before the asylum and immigration
tribunal and we are seeking a reconsideration of the dismissal of that
appeal, she handles the reconsideration
issues.
Q
65
David
T.C. Davies:
I have a specific question to ask, but
perhaps I may start with a slightly more general question, which I put
to the previous witnesses. Does the IAS accept that there are too many
people claiming to be asylum seekers who are not genuinely fleeing
persecution, and that the Government have a right and a duty to tackle
that?
Keith
Best:
If you look at the question in the
international context, it cannot be right that there are many people
who claim asylum but who are not found, on a fair adjudication system,
to come within the provisions of the 1951 convention. One of the
problems is that the 1951 convention is fairly tightly drawn. I shall
not reiterate the provisions because you will all be very familiar with
them. However, they mean that some people in a war-torn area, seeing
loss of life all around them, do not fall within the definition. They
might be entitled to humanitarian protection or discretionary leave,
but will not be recognised as refugees under the convention. That is
not to say that they are bogus—an unfortunate adjective that has
been used in the past—or that they are trying to flout the
system. It means that they are in genuine fear, but they are not
covered by the definition.
Q
66
David
T.C. Davies:
So, to be clear about the answer to the
question, it is the view of the IAS that there are not enough people
coming to Britain and that more people are entitled to claim asylum
seeker status than currently do
so?
Keith
Best:
No. You are putting words in my mouth. The
United Kingdom is one of many signatories to the 1951 convention. It is
reasonable to assume that any Government in the UK will apply the
provisions of the convention in good faith and will apply the
adjudication system individually to each applicant for
asylum.
Those who may
claim asylum are people who are outside their own countries of origin
and, necessarily, within the United Kingdom. In limited cases, somebody
might go to a British post overseas to claim asylum and be
accepted—Aung San Suu Kyi or somebody like that, for example. I
cannot think of many others who would be able to do that; normally,
they would have to get to the UK. The present Government have
consistently tried to make it very difficult for anybody to get to the
UK. Our objection to that is that it is discriminatory against the
genuine asylum seeker, because there is no attempt at that stage to try
to ascertain whether somebody comes within the provisions of the 1951
convention or
not.
Keith
Best:
It is very difficult to get to the United
Kingdom. Deterrence measures do not work because unfortunately they do
not work on the minds of those who might be deterred. I have evidence
of that myself, on which I will elaborate if you wish me to. The fact
is that it is very difficult to get to the United Kingdom now to claim
asylum. That is why more and more people are putting themselves in the
hands of smugglers or, even worse, in the hands of traffickers in order
to escape persecution.
Q
68
David
T.C. Davies:
I am interested in that answer. May I ask a
slightly more specific question on the detention at ports? Are you
supportive of giving immigration officers extra powers to detain people
on arrival or do you think that perhaps there is no need for them to do
so?
Keith
Best:
We do not have a problem with immigration
officers being given the powers necessary to protect the borders of the
United Kingdom properly, as long as they are accountable. It can well
be argued that it is preferable for immigration officers to do that
rather than the police, who have other duties. We have no difficulty
with immigration officers being given extra powers per se as long as
those powers are properly accountable and particularly accountable to a
proper complaints system. We have mentioned that in our
evidence.
The
Chairman:
We inadvertently strayed on to detention at
ports. Before we come to that matter, do hon. Members have any
questions of a general nature that they wish to put to the
witnesses?
Q
69
Damian
Green:
Your members operate at the sharp end of the system
and therefore you will know as well as anyone the huge number of
problems that both the immigration and the asylum systems face. In your
view, is this Bill facing up to the biggest problems or is it missing
some areas? Are there areas that it might actively make
worse?
Q
70
Keith Best:
The overall
impression that one gets from a cursory understanding of the
Bill—most of the general public will have no opportunity to get
anything better—is that all the provisions make life
uncomfortable for immigrants in every respect. Whether that is
something that the Government intend is a matter for Mr.
Byrne to answer, not for me, but it is the overall
impression.
We are
concerned that there is inherent in the Bill the assumption that there
does not need to be the kind of accountability that we think there
should be, although I respect the views of Ministers when they say that
there should be greater accountability for IND. For example, taking
away rights of appeal—that was done in the 2006 legislation,
albeit it is not yet implemented because it will be rolled out with a
points-based system—and further restrictions on appeal rights
enshrined in clause 19, are ways of making the whole system less
accountable.
Q
71
Damian
Green:
When you say it will make life more difficult for
immigrants, will it make life more difficult for legal immigrants as
well as illegal
immigrants?
Keith
Best:
That must inevitably follow from clause 16. The
way clause 16 is drawn, widely as it is, means that it could apply to
students or to anybody coming here under an immigration category. One
can imagine the plight of a working holiday maker who wants to get
around the country and see different parts of the United Kingdom for
the purposes of their holiday who is told that they have to reside in a
particular place and to report regularly.
We cannot see why the clause is
so widely drawn when, in fairness to the Minister, he is giving
examples
of where he wants to see it applied. My understanding is that it will
apply particularly to foreign criminals who cannot be removed and also
to unaccompanied asylum-seeking children when they reach the age of
majority. If that really is the Government’s intention the
clause should be drawn as restrictively. The danger is that it leaves
it wide open for it to be applied much more widely and make life much
more difficult for people who do not really need these
restrictions.
Q
72
Kerry
McCarthy:
May I follow up what you said about the Geneva
convention being too tightly drawn? I am interested that you said it is
not enough for somebody to come from a certain country. For example, I
have a lot of asylum seekers and refugees in my constituency from
Somalia, where we know that anybody—at least in the southern
part—is likely to be caught up in a pretty dangerous situation.
Where do you draw the boundaries? You seem to be saying that they are
drawn too tightly at present, in that someone has to prove that they
are at specific risk. Where do you suggest the boundary be drawn? Would
you say that anyone coming from Somalia ought to be given refuge?
Keith
Best:
Sadly, the international situation is a lottery
and the great majority of the world’s refugees are women and
children. If they are lucky, they get across one international
border—no more, for fairly obvious reasons such as a lack of
mobility. In a way, Britain has been the unwitting beneficiary of those
fleeing persecution who are the most useful to the country where they
end up, because they tend to be young, male, fit, healthy and capable
of work—and, often, people with qualifications and
multi-linguistic skills. You could almost say that those are the
crème de la crème of the world’s refugee
population. We do not see too many of the really dispossessed people
coming to this country, because they have neither the money nor the
physical stamina to get here.
Q
73
Kerry
McCarthy:
Are you saying that we ought to make it easier
for people who fall into those categories of the dispossessed, and how
would we go about changing that law?
Keith
Best:
It is outside the scope of this Bill, but we
have considerable interest in some initiatives that have been mooted
both domestically and in the EU—and, indeed, by the United
Nations High Commissioner for Refugees—to try and create a
better international system: one where you have not only the removal of
persecution at source, so you do not generate refugee flows, but a
better system of identifying who are the refugees, which of them need
protection and where those people can seek
it.
Keith
Best:
I am so old that I remember the Vietnamese boat
people; I was involved with them. I remember the Geneva agreement,
whereby countries agreed to take so many from Hong Kong and so on. Now,
it would probably be impossible to do that on a global scale
with several million people, as some 16 million people or so
are at risk in the world.
Nevertheless, something approaching that way of dealing with the matter
will, ultimately, be needed to have proper burden sharing among
countries around the world and deal with those who are in need of
protection.
Q
75
Paul
Rowen:
I am interested in your last remark, because the
Home Office has a scheme at the moment where 50-odd people from the
Congo have been settled in my Rochdale constituency. At the same time,
I have had cases of asylum seekers from the Congo being deported. What
should the Government be doing to try and get a consistent policy
regarding refugees?
Keith
Best:
I applaud the gateway system that brings in
those who are recognised as refugees into the country. I believe that
Mr. Blunkett announced that initiative when he was Home
Secretary. In the sector where I work, I think that we are all very sad
that more people have not been given the opportunity to come in by that
particular way. We are only talking about hundreds of
people.
Q
76
Paul
Rowen:
Finally, a lot of clauses in the Bill deal with
unaccompanied child asylum seekers. What are your general concerns on
what needs to be done to deal with some of them?
Keith
Best:
I think that we are now talking of about 3,000
children a year coming into this country; there are around that number
falling into the category of unaccompanied asylum-seeking children.
They need particular care; certainly, they need care that will give
them direct and immediate access to legal advice, so that they can be
assisted in their claim. They also need to be treated sympathetically
when they reach that magic age of 18, because it is a traumatic event
to be told that, on your birthday, you will no longer be given any kind
of protection and you will be removed. So there needs to be
sensitivity.
One of the
problems that we have seen, particularly in Oakington, where we operate
as the agency giving legal advice to all those going through the
fast-track system, is the age-disputed cases. It is a particular
problem because even when you get a doctor or social services trying to
adjudicate on an age-dispute case, they can only really give a bracket
of about three years. It is notoriously difficult to try to fix the
age.
Q
77
Mr.
Byrne:
Mr. Best, I was following your evidence
with great interest and attention and I just wanted to check something.
From your remarks, may I infer that you would support measures in the
Bill to strengthen the oversight, transparency and accountability of
IND?
Keith
Best:
Yes, indeed. I welcome the fact that, for
example, serious complaints against IND will be dealt with by the
Independent Police Complaints Commission; that must be a move in the
right direction. You will have more knowledge than I do about what
constitutes a serious complaint and what will happen to the other
complaints. There is a need for a fast-resolution system of what one
might call the minor complaints. They are usually personal complaints
against individual staff of IND, because someone has been rude or
unsympathetic, or refused to give their name, or something of that
nature. I hope that the Government have something in mind to deal with
those complaints in a proper way.
The overriding theme of IAS on
this subject, however, is accountability, and accountability can come
in many ways. One of the material aspects of accountability, to make it
transparent and acceptable, is independence and if there is not going
to be that element of independence, I fear that any system will fall
down and will not gain public confidence. That is why we have been so
vocal in seeking to preserve rights of appeal, because we see that as a
proper way of ensuring accountability; you have an independent
judiciary that examines matters independently of the
Government.
Q
78
David
T.C. Davies:
Is it not the case that the appeal system has
been somewhat abused and that appeal after appeal has been put in for
people who really do not merit it, and that it is because of that abuse
that some sort of action must be taken to reduce the number of
appeals?
Keith
Best:
Of course there has been some abuse—it
would be idle to pretend otherwise. There is abuse in every system;
there is abuse in the social security system, and I understand that
there is abuse even in the Inland Revenue, but that does not mean that
that invalidates the whole system and you sweep it away. Our concern is
that the abuse has been used as an excuse to strip away rights of
appeal, when it should never be used for that reason.
In its report, the Home Affairs
Committee set out very well its concerns about the present appeal
system, whereby, particularly for some cases, the appeal system seems
to be the first hearing instance of much evidence that comes its way,
because that evidence was not presented earlier. That may not
necessarily be the fault of the applicant or the appellant at that
stage; there is a variety of reasons why evidence that is cogent and
necessary for a particular application is not delivered when it should
be. That is why we have some sympathy with the Home Affairs
Committee’s recommendation that there should be a “minded
to refuse” stage, particularly for overseas refusals, to give
people an opportunity to remedy a defect, for example if they have been
unable to submit a document that is material. We do not have a great
deal of confidence in the idea of a so-called administrative review,
not least because we have not seen the details of what that review will
consist of at posts overseas and how transparent and independent it
would be, in order to take account of my earlier contention about what
is needed for a measure to gain public confidence.
Nicole
Shepherd:
It must be remembered that just because an
appeal is not successful, it does not mean that it did not have an
argument to be made. A distinction must be drawn between an abuse of
the appeals process and someone who just did not win for whatever
reason. They are not necessarily abusing the
process.
Nicole
Shepherd:
I would say it is about
50:50.
Keith
Best:
The ones we deal with
do.
Nicole
Shepherd:
The IAS has a much higher success
rate than unrepresented clients. Overall, it would be fair to say that
it was about 50:50. Our current success rate is about 90 per cent. in
some cases on immigration appeals. That is obviously less with asylum
because there is so much more
scope.
Keith
Best:
There is a lot of evidence going back some
distance. It must be 20 years old now, but I remember the report of
Professor Hazel Genn, who looked at the question of those who were
represented and those who were unrepresented in immigration appeals. It
clearly showed that there was a higher success rate for those who were
represented.
Keith
Best:
It very much depends on different
categories.
Keith
Best:
Oh yes. More than 50 per cent. succeed. I am
hazarding a guess here, but we can let the Committee have the figures.
I would say that it is 60 to 70 per cent.
overall.
Mr.
Jackson:
I have two quick questions. On the specific issue
of unaccompanied child asylum seekers, Mr. Best, in your
practical experience are the Government doing enough to offset the
financial burden that is suffered by a small number of local
authorities, principally in west London? They have really struggled
with that issue. Secondly, I thought the submission from the IAS was
very good. Surprisingly, I do not disagree with all of it. You say that
public confidence in the system will be engendered only when statistics
give an accurate picture of who is entering and leaving the UK every
year. Previous witnesses have made that point. Do you think the Bill
will have any meaningful impact on protecting our borders unless the
Government adopt a policy of proper record-keeping and database
management?
Keith
Best:
To answer your first question first: the
problem of unaccompanied asylum-seeking children, in so far as it is a
financial and administrative burden on authorities, clearly needs to be
dealt with centrally by central Government. Kent county council has had
much to say about this in the past. I see Mr. Green nodding.
No doubt he has a constituency interest. I am not in a position to say
whether the Government are adequately compensating local authorities
for that or not. All I can say is that in principle I believe that that
sort of burden is a central rather than a local authority
burden.
On your second
question, we have long advocated proper embarkation controls. We feel
that public confidence in the immigration system will only be regained
if people know that the statistics they read about are verifiable and
accurate. It is not good to run a whole system—sadly the
Government seem to make policy decisions based on this kind of
information—on the international passenger survey, which samples
only 2 per cent. of passenger movements. It says that anyone who comes
into this country for more than 12 months is coming as a permanent
immigrant and that anyone leaving for more than 12 months is a
permanent
emigrant. A lot of it includes you or me going on holiday. It is not
good to try to base an immigration system on those sort of figures. If
one is to deter—as one should—abuse of the immigration
system, particularly by overstaying, it is essential to know how to
count out the people who come in to see whether they have left the
United Kingdom at the end of their limited leave to
remain.
I applaud the
Government for bringing in e-Borders. I am sorry that it will not be
fully rolled out until 2014. We have been advocating it for a long
time. I appreciate that it cannot be done on paper, but that it must be
an electronic exercise. Unfortunately, the history of the association
of the Home Office with technology has not been particularly
felicitous. We can only hope that it will work and will actually give
the public the statistics on which we can have a proper reasoned debate
rather than one that is based on
prejudice.
Q
82
Chris
Mole:
I just want to follow up on that point. You say that
you welcome e-Borders and the need to count in and count out. Do you
agree that an essential component of that is a clearly verifiable
identity check of some sort, so that we know exactly who is being
counted in and who is being counted
out?
Keith
Best:
Certainly. You need to know that the identity
of those leaving is the identity that they purport to have. That is
being done through the fingerprinting system. The biometrics that are
being rolled out now are more and more through entry clearance posts
overseas. I hope that that will have a marked effect on removing the
duplication of applications, so that when someone has been refused in
one identity, they are not likely to come back and try to be accepted
in another identity. I am told that in Pakistan at the moment there is
a lively trade of false exit stamps being put in passports to show that
people left the United Kingdom at a particular time when, clearly, they
did not. However, that is anecdotal
evidence.
There needs
to be that check. It is not for me to decide whether that should be the
full extent of a chip identity card or whether biometrics—to use
the fingerprinting terminology—will be
sufficient.
Q
83
Mr.
Reed:
On that point, is it your view, Mr. Best,
that the lack of transparency and the insufficient information held
about people entering and leaving the country informs and inflames the
prejudice that surrounds the whole
debate?
Keith
Best:
Sadly, there are lots of reasons why this is
such a tendentious subject and leads to such strong feelings. I fear
that the Government have not fully appreciated that the deterrent
measures against asylum seekers, including being dragged through the
courts and found wanting on human rights legislation, which has upset
many of us who take a pride in our country, only fan the flames of
racism. When you legitimise in that way, using a particular section of
the population as a scapegoat by reference to a common characteristic
such as being asylum seekers, unfortunately evidence shows that that
translates directly into violence being visited by a mindless thug
against someone whom they assume is an asylum seeker, but who is
probably a
third-generation British citizen. That is one of the problems and,
although I do not think that my views have been accepted, I have been
at pains to point out to the Government that that sort of deterrent
measure has that inevitable
consequence.
The other
reason why we have such a tendentious debate about such matters is the
absence of proper statistics and knowledge. I fear that that is a major
component. I applaud the Government now taking measures to improve the
statistics. It may be that one has to go further down that route. A
former Immigration Minister, Barbara Roche, has now called for an
independent statistical service to do this and increase public
confidence, and that may be something else that has to be done.
Certainly people will not be able to have a proper debate, and
therefore there will not be confidence in the system, unless they know
that the figures on which the Government are basing their policy, and
on which the public and press are basing their debate, are
proper.
Q
84
Kerry
McCarthy:
I am interested to know whether, in the cases
that you see at the IAS, you see many examples of people who, when they
make their initial asylum claims, use false identities because they are
somehow led to believe that it will help them and that it will be
easier for them to gain asylum, only to be rejected as they work
through the system because their identity is false and then come to you
with their real
identity.
Keith
Best:
I will ask Ms Shepherd to
answer.
Nicole
Shepherd:
It is less an identity issue and more one
of being fed what they are told by agents is a good story to claim
asylum with. I certainly have seen people who have used false
identities to claim asylum, or certain aspects of their identity has
been false—it is not the whole identity that they falsify.
Sometimes it is their date of birth, sometimes their country, but they
use their real names and family details. Certainly there is a healthy
trade in what is good to claim asylum with, from agents and people who
assist in entering the UK
falsely.
Nicole
Shepherd:
I have to say that of the ones that I have
seen a significant proportion, had they told the truth straight off,
would have had a much better claim for asylum, but they were given
stories. The stories fall apart because they do not know them and they
are not their own stories, so they are seen as liars. When they come up
with the real story, because they are seen as liars, why believe the
second story when the first one was false? They are automatically
branded as liars and from then on it is so much
harder.
Keith
Best:
I endorse that view. This is a problem not just
in asylum but in immigration as well. There are still enormous numbers
of rogue advisers, both in this country and particularly overseas, who
will take an applicant’s perfectly legitimate details, which
would probably succeed in an application, and then ruin them by telling
the applicant that they cannot tell that story and they have to tell
another one or have a false document. They then sell them one under the
table—there are things of that nature. I am afraid that we see a
lot of examples,
particularly in our overseas offices, of people being advised, wholly
unscrupulously, to tell a completely false story to an entry clearance
officer in order to succeed. Of course, they do not succeed, because
as Ms Shepherd says, as soon as the forged document or the
duplicitous nature of the application is spotted, that is the end of
it. They are
refused.
Q
86
Kerry
McCarthy:
Do you think that the measures in here about
biometric registration and more proof of identity will in any way help
to address that, or does it not really hinge on
identity?
Keith
Best:
No, identity is not the
problem.
Q
87
Kerry
McCarthy:
There are certain factors such as age or which
part of their country they come from, or the actual country they come
from. In my constituency there are people who claim to be from Somalia
but are actually from Kenya or Ethiopia and have Somali descent. If
there were a requirement to prove their identity, would some of those
factors be nailed
down?
Keith
Best:
Of course what you say is correct. I am not
sure how somebody in Somalia is going to be able to prove their
identity when there is effectively no central Government or registry
office. That is the problem, and of course people are told different
stories. Some people who are clearly minors pretend to be adults
because they think that they will be treated better that way, and vice
versa. It is a major problem to try to get to people who want to come
to the United Kingdom to tell them that honesty is the best policy and
that they will make a mess of their application if they tell a false
story.
Q
88
David
T.C. Davies:
I was interested to see that you have offices
in Lahore and in Sylhet in Bangladesh. I understand that the
Immigration Advisory Service is mainly funded by the Government. Is
that
correct?
Keith
Best:
We used to be funded by the Home Office. In
2004, under the access to justice provisions, the funding provider was
changed from the Home Office to the Legal Services Commission. We are
funded by the commission in exactly the same way as any other
not-for-profit agency, or indeed as a for-profit organisation that does
publicly funded
work.
The
Chairman:
Order. I remind Committee members that we are
scrutinising the Bill, rather than having a general debate on
immigration.
Keith
Best:
I would be happy to correspond with
Mr. Davies outside the Committee, Mr.
Amess.
Q
90
Mr.
Jackson:
I listened carefully to your reply to
Mr. Reed’s question. Obviously you are quite
passionate and sincere and I respect that. Would you agree that the
mismanagement of the National Asylum Support Service and the lack of
transparency and accountability in its actions, which was felt
particularly
in my constituency, where there was little consultation with the local
authority or the regional assembly, contributed to inflaming the
debate, particularly around 2002 when asylum figures
peaked?
Keith
Best:
I think that any act of maladministration, any
wrongful decision or any failure to marry up an application for
extension of leave, for example, with the original file, with the
result that the person concerned has enforcement action taken against
them—these are all examples drawn from our case
load—unfortunately puts the system into disrepute and opens up
the floodgates of criticism of the Government. I hope that that is why
the Government are now taking a considerable number of measures to try
to improve the administration. They have a long way to go, however,
because we are still finding examples of that kind of
maladministration. Once that gets into the public domain, I am afraid
that it further undermines confidence in the
system.
Keith
Best:
I do not have sufficient evidence to say
whether NASS was badly managed inherently. I know that NASS officials
took decisions that turned out to be completely wrong. That is from our
experience. That is not to say that the whole system was failing; I am
afraid that a common feature of any bureaucracy is that wrong decisions
are taken from time to time. The problem arises where the
legislative framework enables those wrong decisions to have a
dramatically deleterious effect on people’s
lives.
I might expand
“detention at ports” to the general use of powers of
immigration officers. One of the most striking things that you said in
your evidence was that too much enforcement activity is operated
against “those most easily available, not the most harmful, such
as those who comply with Home Office requirements to report
regularly” and families with children. Do you think that that is
a serious weakness that is not addressed by the
Bill?
Keith
Best:
I think that the Minister or one of the
Government documents said that part of the five-year plan is to take
action against those who are most abusive of the immigration system.
You can pick on those that I might describe as soft
targets—those reporting regularly, complying with the conditions
and doing other things of that nature—but they are not
necessarily the ones abusing the system the most. There is a mismatch
between those against whom the Government intend to take enforcement
action—those regarded as the most nefarious—and those
against whom action is actually taken. I can understand why action is
taken against them. They are the easiest to pick up and deal
with.
Q
93
Paul
Rowen:
Who do you see the additional powers being directed
at the most and what problems will that
bring?
Nicole
Shepherd:
Clearly, those used to detain people at
ports are likely to be directed either at those under reporting
restrictions returning to their port of entry, or those on initial
arrival. However, I suspect that the powers are more likely to pick up
those required to return and sign in to say that they are still where
they are supposed to be. That has been the experience to date under the
current powers. Evidence within the IAS shows that following the
foreign prisoner scandal more intentions to deport have been expressed
and that they have been made against those who report as required. That
reporting is then used as a jumping-off point in order to detain
somebody
further.
Q
94
Damian
Green:
I want to pick up on a point that you made in reply
to Ms McCarthy. You were discussing the effect of biometrics and new
technologies more generally and made the point very gently that the
marriage between the Home Office and new technology is often not one
made in heaven. Is it possible that the existence of a
secure—presumably—identity document in this country could
actually increase the amount of fraud? As you explained, people obtain
fraudulent documents in order to get here. If they can do that and are
then assigned an identity, after which, no questions will be asked
because the Home Office will trust this biometrically-based document,
could that not increase the amount of fraud in the
system?
Keith
Best:
There is always the worry that forgers will be
one step ahead of the authorities. We have some fears: we are concerned
about the impact of the increased use of technology on identity theft
and forgery, on the mismatching of details and on
transparency—people’s ability to check whether details
held on them are accurate. Furthermore, bearing in mind the numbers of
people coming to this country as well as EU regulations on residence
cards and other things of that nature, maintaining a secure environment
is a daunting prospect for any technology. That is our concern. It
seems to me, however, that the fingerprinting biometrics seem to be
adequate for combating the greatest abuse of duplicate
applications.
Q
95
Paul
Rowen:
I should like to take up your last point. A lot of
attention is focused on illegal immigrants and asylum seekers, but a
lot of my casework deals with relatives in Pakistan, for example, who
want to visit their families. One of my concerns is that already many
delays at Islamabad are caused by the visa-issuing process. What
practical, on-the-ground problems will the introduction of this
technology put on visa-issuing
stations?
Keith
Best:
First, you mentioned the question of illegal
immigrants. We fear that a great opportunity has been missed in the
Bill, which could be remedied, maybe, by amending clause 17, to
actually deal with something that engenders a great deal of public
disquiet and is acknowledged by the Government in their actions to try
to combat it: the number of illegal immigrants in the country. We have
always advocated a regularisation of the system that would give some
people a limited status
that could be renewed and would bring them within the tax system, and so
on. That would be highly advantageous. I will not labour you with all
the details, because they are well
articulated.
We are
particularly concerned about those who may have failed to establish a
legal right to remain in the country, but who cannot be removed for
various reasons. These people are literally in a state of legal limbo.
They are not allowed to work and are not allowed to do anything else
and could be in that situation for a very long time. We feel that that
is unacceptable. There will be a rising number of people in that
situation.
To come back
to your second question about the practicalities, obviously we are
deeply concerned about anything that will further delay the process for
people. We feel that the Government’s intention, expressed in
the phrase “exporting borders”, is a good one. We would
like to think that, by the time people arrived in the United Kingdom,
they had been fully checked and documented, so that there would be
little work for an immigration officer to do—because they would
be satisfied that those people had been properly documented at the time
of the application. That presupposes all sorts of issues about the
entry clearance
process.
Nicole
Shepherd:
Many of my clients are upset at the
repeated fees that they are charged. I suspect that the need to pay for
the technology is likely to be passed on in visa application fees,
which discriminate against visitors from poorer countries. For those
people a once-in-a-lifetime opportunity to visit family members in the
UK can, all of a sudden, be a bit further away in terms of the
administration cost. One of the biggest concerns is that, even when you
succeed in going through a long appeal system, finally getting hold of
the visa in your hand can take another couple of months, at
best—and sometimes much more than
that.
Nicole
Shepherd:
That sounds about
right.
Keith
Best:
Another problem, of course, when an appeal has
been won, is how long it takes for a visa to be issued after that. That
is an issue of grave concern to many applicants and is an area where
the system just is not working
properly.
Q
97
Paul
Rowen:
May I ask you about children and the use of their
biometrics? What is your view on this
clause?
Nicole
Shepherd:
I understand, from discussions regarding
children with other agencies, that there are specific problems with
children’s biometrics, because obviously their data
change—and it depends how you classify “child” and
where you draw the line. I understand that, in the ID legislation that
has gone through, there are exemptions for children, because their data
change. Beyond that, the best we can say is that it is going to have
the same impact as for adults. But if there is a family visit and
people are bringing the whole family, more people have to be catered
for and it takes longer and costs more.
Keith
Best:
Unfortunately, none of these measures is
without pain. I do not think that there is any real answer to this. On
biometrics, we have already heard of examples where people have been
mutilating themselves—their fingers—to try to evade that
sort of check. That does not invalidate biometrics and the need to gain
confidence in the integrity of the system, but sadly, desperate people
will take desperate measures all the
time.
Q
98
Mr.
Reed:
I should like to return to one of the points that
you made earlier, following on from other points made recently. In a
purely exploratory sense—it may be that the evidence will have
to be provided outside this sitting today—where is the
quantitative and qualitative evidence that underpins the assertion that
I think you made earlier, that fingerprinting is adequate biometric
evidence in the main for the efficacy of applications?
Keith
Best:
I do not have the technical knowledge to be
able to give direct evidence of the adequacy of fingerprinting, so my
evidence is second-hand, but based on that of others who are more
technically knowledgeable than I am on this subject, that it is very
difficult to try to forge a fingerprint, if forge is the right word. A
fingerprint is of such an individual nature that it is a pretty secure
means of identification. I would like to think that the Government came
to that conclusion before they started rolling it out around the
world.
Q
99
Damian
Green:
I want to pick up a point that you made earlier.
You said that you welcomed in principle the idea of exporting borders,
so that when people arrive here their paperwork is in such order that
the immigration officer has not much to do. I gently suggest that we
are a very long way from that. We will all have seen the
“Panorama” programme a couple of months ago that showed
that inside the EU it was very easy to buy 20 passports, and that
testing two of those passports, one forged and one stolen, going by
Eurostar through Waterloo, for example, you could get into this
country. Presumably, if that is true around Europe, it is also true in
other parts of the world. So the idea that we are close to a situation
in which we can be sure of the paperwork of those arriving here is,
frankly, a bit optimistic.
Keith
Best:
You may well be right on that, Mr.
Green. One of the problems is being able to spot a forged Polish or
Czech Republic passport. With the increase in EU membership there are
many different passports and people have got to be fairly expert on
what the genuine ones look like. One thinks of the relative porosity of
the eastern borders of the European Union now, and the very large
number of Ukrainians, for example, who come to Poland on a visitor
basis but work illegally, not least to backfill the spaces of those who
have come to the west to work, especially in care homes and so on. Once
you are within the borders of the European Union there must be a
tremendous temptation to get hold of a somewhat obscure European Union
passport and travel around the EU on
that.
Q
100
Damian
Green:
It is already clear from the written evidence and
from the oral evidence we have taken today that clause 16 is one of the
most controversial in the Bill. You and others have argued that it is
too all-encompassing, that it does not seem particularly well directed,
and that it gives fairly draconian powers. What would you do to improve
it?
Keith
Best:
If the Government have perceived a particular
problem with a particular category, the Bill should deal with it.
Mr. Byrne has already mentioned those categories to which I
referred earlier and we could debate whether they are really a problem
or not. But the way the Bill is drafted makes it so wide that it could
be used in a way that could greatly incommode a lot of perfectly
legitimate, law-abiding people who have come to this country under the
immigration rules and find themselves suddenly being told that they
have got to report or to live in a particular
location.
Q
101
Paul
Rowen:
You mentioned earlier your support for asylum
seekers being able to work. Are you happy that clause 17 closes the
legal loophole about support for asylum seekers while the appeal is
still going
on?
Nicole
Shepherd:
I believe so, yes.
Keith
Best:
Yes. We think that is the
case.
Q
102
Damian
Green:
This part of the Bill deals with expanded powers to
seize cash and so on. Do you see that as posing any threat of
unnecessary intrusion, particularly on newly arrived workers who are
quite likely to be badly
paid?
Keith
Best:
There is that danger. Unfortunately, in the UK
with immigration control we have so many people coming from so many
different parts of the world, not least because of our legacy of empire
and the Commonwealth and the fact that institutions in so many other
countries are based on ours, and the fact that we still represent one
of the most—if not the most—culturally, linguistically
and religiously diverse societies in Europe for those reasons. Many
people come from other countries perfectly legitimately to visit their
relatives. But unfortunately, some of those countries have become
notorious for abuse of the immigration system in terms of forgeries or
fraudulent
applications.
The
problem is that, when we start dealing with those issues, it becomes
apparently discriminatory. That is set out also in the successive
reports of the independent monitor. The one before the latest report
talked of a stereotyping of Bangladeshi nationals in refusals of entry
clearance by entrance clearance officers there. There is an inherent
problem that, whenever measures of this nature are
introduced—whether forfeiture of cash or whatever—they
will be employed in a way that will then be seen to be
discriminatory.
Nicole
Shepherd:
I cannot say about seizure of cash, but
there are certainly a number of cases from the asylum and immigration
tribunal in which entry clearance officers have been quite strongly
found against for cut-and-paste refusals along the lines of “You
are from a poor country, therefore you will break the law”. Such
cases have had to go to a higher court to be tried. You are not now
allowed to find that, just because somebody is poor, they are a
criminal. There must be something more in that person’s evidence
or some circumstances that indicate they may break the law, other than
their just being from a poor
country.
Q
104
Chris
Mole:
Mr. Best, is your argument not an
argument against any of the clauses in the Bill, but an argument for
effective diversity training within the immigration and nationality
department?
Keith
Best:
Yes, there is a clear need for that. I hope to
have indicated in my answer that, to a certain extent, when there is
clear evidence of abuse that obtains in some countries rather than
others, it is almost inevitable that there will be a prejudicial
assumption against nationals from those particular countries; and if
those particular countries have citizens of a particular ethnic
background, it will be regarded as discriminatory. That is very
unfortunate. It does not invalidate the system, but it means that you
have to be more careful. You have to scrutinise more fully the
decisions that are taken in respect of those particular countries so as
to avoid stereotyping.
It goes outside
the remit of the Bill, but one of the things that we have advocated in
order to remove the sort of prejudice that exists in people who do the
job day in, day out is to recruit entry clearance officers far more
widely. I can think of all sorts of university leavers, for example,
who would welcome two years in Beijing learning Mandarin at Her
Majesty’s Government’s expense and enhancing their career
prospects when they leave, who would come to the job of an entry
clearance officer without any baggage or prejudice inherent in what
they have done beforehand and who would approach it with an open
mind.
The Government
must grapple with measures such as that to ensure that the people who
administer the system are not so hidebound in what they have been doing
beforehand that they almost subliminally—I acquit people of
doing it consciously in most cases—feel that sense of prejudice
because of what they have been dealing with in the
past.
The
Chairman:
I thank our two witnesses for appearing before
the Committee and giving evidence but, sadly, that concludes our
proceedings according to the knife for time
available.
It being
half-past Six o’clock
, The Chairman
adjourned the Committee without Question put, pursuant to the
Standing
Order.
Adjourned
till Thursday 1 March at Nine
o’clock.
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| ©Parliamentary copyright 2007 | Prepared 28 February 2007 |
