Immigration Bill

 

Written evidence submitted by the UK Chamber of Shipping (IB 65)

Immigration Bill – Clause 58: Embarkation Checks

About us

1. The UK Chamber of Shipping is the trade association for the UK shipping industry. We represent all sectors of the commercial shipping industry, but we are submitting this evidence on behalf of the ferry sector only, reflecting the scope of Clause 58 of the Bill. The clause will affect all ferry routes that are subject to control under the Immigration Act 1971: to wit, all routes between the UK and the Continent of Europe. Six ferry companies operate services on such routes, carrying a total of 17 million passengers in 2012.

SUMMARY

2. Clause 58 creates a power to require ferry operators to perform a passport control on people leaving their UK on their ships. Most ferry passengers travel in groups in vehicles and that fact gives rise to serious practical obstacles to such passport checks: chiefly, that check-in staff cannot see all passengers in a vehicle clearly enough to compare their faces with their passport photo and that, on high-volume ferry routes, scanning every passenger’s passport would extend the transaction time for checking-in each vehicle. Long queues of vehicles are likely to build up, causing traffic congestion on the approach roads to ports.

3. The proposed regime of exit checks would represent a costly imposition on the ferry sector, effectively requisitioning resources from productive use and requiring them to be deployed instead on a task which the Home Office has historically acknowledged to be a waste of time. Elements of the proposed regime of exit checks are known to be incompatible with European law on the free movement of persons within the EU – all ferry routes are intra-EU – and it appears that the entire regime may be unlawful in relation to intra-EU travel.

4. There has been no consultation about the proposed regime prior to the publication of this Bill. Serious problems have been identified and, at the very least, a due diligence process is needed to confirm that the regime would be practicable and lawful. As a matter of commonsense and good governance, this should take place before any statutory powers are created.

Background

5. Embarkation checks at UK ferry ports were discontinued on 1 February 1994. Announcing their imminent cessation, the Home Secretary informed Parliament on 15 December 1993 that "these changes should free staff resources for work which contributes more directly to the effectiveness of the immigration control" – or, in other words, that embarkation checks were a pointless waste of resources.

6. It is not clear what has changed since then, except that the Home Office now proposes to waste ferry operators’ (and other carriers’) resources rather than its own. Its proposal to impose a regime of exit checks does not arise from any White Paper or similar consultation process, nor from any Parliamentary debates, nor from any strategic plan for UK border controls published by the Border Force or by the Home Office more generally. The proposal’s most conspicuous pedigree is as an election slogan.

7. The Coalition Programme for Government, published in May 2010, contained an unexplained commitment to "reintroduce exit checks". This reflected the Liberal Democrat election manifesto, which had promised to "immediately reintroduce exit checks at all ports and airports" – a pledge that was preceded by the following analysis: "The immigration system is in chaos after decades of incompetent management. The Government has failed to plan properly for new migrants, making it harder for people to integrate. No-one has any idea how many people are here illegally, and there aren’t even exit checks at all ports and airports to ensure that people here on temporary visas go home on time."

8. The UK Chamber of Shipping, despite having been actively involved in discussions with successive Governments about border controls for more than 40 years, was not party to any consultation process that led to the giving of this commitment. To the best of our knowledge none took place. Nor, so far as we are aware, was any due diligence process undertaken to confirm that the policy was practicable or lawful.

Clause 58 and the proposed regime of exit checks

9. Clause 58 would create new powers for the Home Secretary to direct ferry operators (and other carriers and operators of ports) to examine passengers departing from the UK and to designate their personnel as a kind of ‘Immigration Officer lite’ for this purpose.

10. We have been led to understand, by the Home Office, that the new powers are intended to underpin a regime of exit checks which would work as follows:

· Ferry operators would inspect passengers’ passports at check-in, and in particular to check that each passenger and passport matched one another;

· Ferry operators would capture electronically the data contained within each passport and transmit it in real time to the Border Force;

· Border Force would collate the data and, in the event of identifying a person of interest, would send a snatch squad into the embarkation lanes at the port to extract that individual before he boards his ship.

Analysis – practicability

11. Each element of the regime gives rise to different considerations of practicability, and it will be useful to analyse them separately, in turn:

· Verification of identity / checking that passengers and passports match

12. The practicability of verifying each passenger’s identity, which is a matter of visually comparing their face with the photograph in their passport, varies depending on the type of traffic. In the context of foot passengers, who typically check-in individually at a desk in a terminal building, the task is fairly straightforward. Similarly, it is relatively straightforward in the context of lorry drivers: they, too, typically check-in individually (because they usually travel alone) and their cab is typically on a level with the check-in kiosk, enabling the check-in agent to look straight in and get a good view of the driver. Foot passengers and lorry drivers, however, comprise a small minority of the passengers on most ferry sailings.

13. Most passengers travel in cars or coaches, where the position is very different. At a car check-in kiosk, the check-in agent typically has a clear view only of the person sitting in the car seat nearest to his window (who will be either the driver or front-seat passenger, depending on whether the car is right-hand or left-hand drive); the check-in agent’s view of any other people in the car is obstructed, and very seriously so in respect of passengers in rear seats. In relation to coaches, the check-in agent has no view at all of the passengers; the only person whom the check-in agent can see is the driver. It is, therefore, impossible for the check-in agent to establish that all passengers and passports match.

14. It is worth noting, at this point, that the check-in transaction must be conducted without requiring anyone to get out of their vehicle. Check-in kiosks (which are akin to motorway toll booths) are situated between lanes of constantly moving traffic, and vehicles pass close enough to the kiosk to enable documents to be handed from one to the other. This is not a safe environment either for passengers to get out of their vehicle and stand at a check-in window or for check-in agents to walk around a vehicle peering at the passengers inside.

· Capturing of passport data

15. Capturing passport data is a matter of scanning the passport electronically; again, the practicability of this task depends on the context. On some routes – typically the longer routes across the North Sea or the Western Channel, where sailings are infrequent (say, only once a day) and where passengers arrive for check-in well in advance of the ship’s sailing time – the ferry operator already scans passports and captures data for his own purposes (and shares it with the Border Force). Such routes, however, represent a minority of overall ferry travel – and the circumstances which make the scanning of passports possible on such routes are not replicated elsewhere.

16. Most international ferry passengers leave the UK through the port of Dover, on short crossings to Calais or Dunkirk: 70% of all passengers (and nearly 90% of coaches). Ferries sail from Dover throughout the day and night, and over 100 miles of vehicles pass through the port every 24 hours. The efficient operation of the port depends on the flow of traffic being maintained at all times. Check-in processes are quick and efficient: typically, 35-seconds for a pre-booked car. Scanning a single passport takes 20 seconds – which clearly cannot be absorbed into the existing check-in time. Scanning the passports of a typical family group of four would treble the check-in transaction time for a car. The dynamic is even more striking in relation to coaches: checking-in a coach, which currently takes less than two minutes, would take at least twenty minutes if the passports of every one of the 50 passengers onboard had to be scanned.

17. The cumulative effect of extending the check-in transaction for every car and coach in this way would be very significant. At all but the quietest times of the day, queues of vehicles would build up at the check-in plaza. At busy times, it is reasonable to expect that the queue would extend to the port’s entrance and out onto its approach roads. The situation that already occurs when sailings from Dover (or shuttle trains through the Channel Tunnel) are disrupted by bad weather or strike action, whereby the M20 is closed to traffic and used as a car park for vehicles bound for France, could be expected to occur on a routine basis.

18. The huge inconvenience for those caught in these jams, the choking of the flow of goods on which the UK economy depends, and the wholesale disruption to the functioning of the transport infrastructure of the South East of England is obviously undesirable; and appears unlikely to be sustainable as a matter of public policy.

· Snatch squads in the embarkation lanes

19. A typical international ferry can carry two miles of traffic, and prior to embarkation several hundred vehicles will be parked in the lanes waiting to embarkation. Each lane may contain twenty or more vehicles, and there may be up to thirty lanes for each ship. The practical difficulty of sending a snatch squad into such an environment will be immediately obvious. Simply reaching, say, the eighth car in the twelfth lane, would be a difficult task. Extracting an individual from the vehicle would pose further difficulties, especially if the individual chose to resist being seized by the Border Force or Police snatch squad. Serious concerns would arise for the safety of passengers in nearby vehicles, quite apart from the disruption that would be caused to the embarkation process and consequently to the sailing of the ship.

20. Common sense and all other considerations lead to the conclusion that embarkation lanes – crowded public places, with minimal room to manoeuvre, and the constant hazard of moving traffic – are the least appropriate place to seek to conduct an interview or to apprehend someone.

Compulsion of passengers (and carriers): legal questions

21. It is clear that the proposed regime of exit checks offers no benefits whatsoever for passengers, ferry operators, or ports. In the absence of any benefits, there is no reason to suppose that anyone would willingly subject themselves to the hassle, disruption, and cost that the regime would entail. The regime will therefore rely on compulsion – which, in turn, gives rise to the question of whether the Home Office can lawfully compel passengers, ferry operators or ports to submit to the regime.

22. All international ferry routes to/from the UK are intra-EU, so they are governed by European law on free movement within the Single Market. UK border controls at ferry ports must therefore fit within the framework of European law on the free movement of persons and goods, and must not exceed what is permitted by European law. The Home Office has a record of failing to consider these constraints, and of creating statutory powers that are themselves unlawful.

23. In its e-Borders scheme, for which powers were created in the Immigration, Asylum and Nationality Act 2006, the Home Office sought to make all travel into and out of the UK conditional upon passengers providing their passport data in advance to the UK Border Agency (as was). In that instance, the European Commission ruled that the scheme breached EU law on free movement. In particular, it made clear that the sole formality that the UK was permitted to perform was to check passengers’ passports on entry: it could not separately require passengers to provide their passport data, nor could ferry operators (or other carriers) make it a condition of carriage that passengers provided their passport data for the purposes of border controls.

24. The Home Affairs Committee reached the same conclusion independently, after taking its own legal advice. Its report "The E-Borders Programme", published on 15 December 2009, states (at paragraph 48):

"We conclude that it is only in exceptional cases, based exclusively on the conduct of the individual concerned rather than as part of a blanket requirement, that an EU Member State can impose any requirement other than simple production of a valid identity document to restrict the entry into or exit from that Member State of an EU citizen.   The e-Borders programme is therefore, as far as we can ascertain, likely to be illegal under the EU Treaty.   "

25. In requiring ferry operators to capture their passengers’ passport data, the exit checks regime would have precisely the same effect as the e-Borders scheme. Its legal status must therefore be identical. Indeed, the Home Office has acknowledged in discussions that it cannot require ferry operators to capture their passengers’ passport data – which invites an obvious question as to why it is legislating to do precisely that.

26. Clause 58 also invites a broader question of whether the UK is permitted to introduce any regime of routine controls on passengers seeking to travel to another EU country. As noted above, all travel within the EU is governed by the provisions in the EU Treaty relating to free movement. The UK’s current border controls on passengers arriving from other EU countries rely for their legal base on the UK’s protocol to that treaty, adopted in 1997. The protocol states:

"The United Kingdom shall be entitled, notwithstanding Articles 26 and 77 of the Treaty on the Functioning of the European Union, any other provision of that Treaty or of the Treaty on European Union, any measure adopted under those Treaties, or any international agreement concluded by the Union or by the Union and its Member States with one or more third States, to exercise at its frontiers with other Member States such controls on persons seeking to enter the United Kingdom as it may consider necessary for the purpose:

(a) of verifying the right to enter the United Kingdom of citizens of Member States and of their dependants exercising rights conferred by Union law, as well as citizens of other States on whom such rights have been conferred by an agreement by which the United Kingdom is bound; and

(b) of determining whether or not to grant other persons permission to enter the United Kingdom."

27. It is apparent that the protocol only relates to travel into the UK. It does not mention travel out of the UK and it cannot, therefore, provide a legal basis for routine border controls on passengers traveling outbound. Without such a legal basis, any routine exit checks (be they those envisaged pursuant to Clause 58 or any other sort) would appear to be unlawful in relation to travel to another EU country.

CONCLUSION

28. The regime of exit checks which Clause 58 is intended to support is incompatible with the reality of ferry travel. Essential elements of the regime, such as checking that all passengers and passports match, are impossible in the context of groups travelling in vehicles; and requirements to capture passengers’ passport data are known (and acknowledged by the Home Office) to be unlawful in the context of intra-EU travel. There is a broader question about whether European law permits any routine border controls on individuals travelling to another EU country.

29. The UK Chamber of Shipping would recommend that intra-EU travel should be excluded from the scope of Clause 58, in order to allow due diligence checks to be carried out into the legal queries. This would also allow time for consideration to be given, from first principles, to how any genuine concerns that gave rise to the proposed regime of exit checks could be addressed in a manner that would be compatible with the essential characteristics of ferry travel, as enjoyed by millions of passengers every year. We would gladly pledge our support to such a process.

November 2013

Prepared 20th November 2013