Immigration Bill Committee

Written evidence submitted by Superintendent Paul Keasey, National Roads Policing Intelligence Forum, and Chief Superintendent David Snelling, National Police Chiefs’ Council Vehicle Recovery Group (IB 11)

Purpose

The purpose of this report is to provide a high level overview from a Roads Policing perspective of the proposed new Immigration Bill 2015.

Background – Strategic Overview

The Government is committed to operating proper controls on immigration, to reducing net migration, and to ensuring that public confidence in the system is rebuilt and pressures on communities and public services are alleviated.

The Government is also determined to reduce illegal immigration and to take a tougher approach to dealing with those who have either entered the country illegally or overstayed their visa. The Immigration Bill contains a number of important measures to make it more difficult for illegal migrants to live in the UK, encouraging them to depart.

The Bill has three main themes: first, the Bill will crack down on exploitation of low-skilled workers, increase the consequences for employing illegal migrants and strengthen the sanctions for working illegally. A new Director of Labour Market Enforcement will coordinate our strategy for tackling worker exploitation. Those who work illegally will face criminal penalties. Measures in the Bill will also ensure that those working illegally or employing illegal workers cannot gain or retain licences to sell alcohol or late night refreshments. Immigration officers will also have new powers to close businesses where illegal working is being conducted, with new powers for the courts to then order the close supervision of the business to prevent any continued use of illegal workers.

Secondly, the Bill will build on the Immigration Act 2014 to ensure that only those migrants who are lawfully present in the UK can access services, such as rent accommodation, hold a driving licence and use UK bank accounts. New powers will make it easier for landlords to evict those with no right to be in UK, and enable immigration staff to seize driving licences from illegal migrants and close or freeze their bank accounts. Those convicted of the new offence of working illegally will face confiscation of any money made through illegal activity.

Thirdly, to make it easier to remove people who should not be in the UK, the Bill will implement Conservative manifesto commitments to tag foreign criminals released on bail and to extend ‘deport now, appeal later’ certification powers to more immigration cases. The Bill will also equip immigration officers with additional search and seizure powers to better enforce our immigration laws.

In addition to these three key areas, the Bill will: reform support arrangements for certain categories of migrant, strengthen our sea and air borders, make sure that only those with good English language skills can gain employment in customer-facing public sector roles, impose a new skills charge on businesses bringing migrant labour into the country and reform fees charged by the Home Office in relation to passports and civil registration.

Roads Policing

In relation to Roads Policing, Part 2 of the Immigration Bill specifically relates to the seizing of driving licences.

"Part 2:- Would build on existing measures to restrict irregular migrants' access to residential tenancies, driving and bank accounts. It creates four new offences applicable to landlords and letting agents who let properties to migrants who do not have a valid immigration status, and gives landlords new powers to evict tenants who do not have a 'right to rent'. There are new powers to search for and seize driving licences held by irregular migrants and a new offence of driving a vehicle when unlawfully in the UK. The Bill also introduces obligations on banks to carry out immigration status checks on current account holders."

The Governments Driving Licences factsheet in relation to the Immigration Bill identifies the salient background points regarding the specific issue of seizing driving licences, namely:-

· UK driving licences can be used as a form of identification which can help an individual access UK services, such as financial services and accommodation, which facilitate a settled life in the UK.

· The Immigration Act 2014 provided the power to revoke UK driving licences held by

illegal migrants. Foreign issued licences cannot be revoked by the UK Government.

· Over 11,000 UK driving licences have been revoked under the powers in the Immigration Act 2014.

· Immigration officers do not currently have the power to seize revoked UK licences that they encounter. It is the responsibility of the licence holder to return the revoked licence to the DVLA and failure to do so is a criminal offence.

· The Immigration Bill 2015 will provide two new measures which build on the driving licence related powers in the 2014 Act. It will:

Ø Provide a power for police and immigration officers to search people and premises, in order to seize the UK driving licences (whether revoked or not) of illegal migrants.

Ø Create a new criminal offence of driving whilst unlawfully present in the UK, which carries a custodial sentence of 6 months and/or a fine of up to the statutory maximum. The vehicle used may be detained and, upon conviction, the court may order its forfeiture.

Roads Policing – Points for Consideration

The National Police Chiefs’ Council (NPCC) lead for roads policing (Chief Constable Suzette Davenport) helps support forces to tackle crime and keep the public safe by joining up policing operations on the roads. It brings together 43 operationally independent and locally accountable chief constables to coordinate national roads policing activities.

A 5 year strategy, "Policing the Roads in Partnership" (2015 – 2020) provides a partnership based approach for safe, secure and efficient roads. The strategy is underpinned by a more detailed annual action plan of police and partner activities, concentrating collective efforts on those threats and risks that impact disproportionately on the most vulnerable.

Two specific Roads Policing operations have occurred that highlight current issues in relation to road safety and criminal activity involving foreign national drivers in the UK:-

Op Mercury:-

Between November 2014 and February 2015 a joint Roads Policing and DVLA initiative was undertaken within the Midlands motorway region, in relation to foreign vehicles being driven on the UK roads illegally. During this period 775 vehicles were stopped resulting in 507 vehicles seized (65.4 % seizure rate) primarily for offences relating to no vehicle excise duty, no insurance or the driver had no valid driving licence.

Op Trivium 4:-

Operation Trivium is designed to:-

Disrupt criminality through denying foreign national mobile organised crime groups the use of the road and enhancing levels of trust and confidence in local communities through delivering enforcement, road safety and educational activity.

During 5 days in June 2015, Operation Trivium recorded the following results:-

• 11,009 vehicles stopped

• 656 vehicles seized

• 13,415 people encountered

• 897 people arrested

• 8455 enforcement actions

These outputs related to a multitude of offences ranging from road safety interventions to targeting facilitation of illegal immigration and trafficking in human beings. Specific note is the high volume of enforcement actions processed during the 5 day operation. Often these will relate to traffic document offences, including driving licences.

Changing landscape

The roads policing landscape has changed significantly and forces now collaborate within geographical areas and regions to deliver roads policing services. There are pockets of good and effective practice, where collaborative forces share resource and information with Highways England to deliver improved outcomes for all road users e.g. Central Motorway Police Group.

As resource levels fall, there is a risk that the remaining resource time is taken up dealing with reactive demand, with fewer resources for preventive work and discretionary activity. This situation is not likely to change and could get a lot worse due to the increased demands on police resources in tackling new and emerging crimes, as well making significant financial savings as a consequence of the forthcoming Government Comprehensive Spending Review (CSR).

Points for Consideration

Roads Policing is a key enabler to tackling criminals who utilise the road network and reducing road casualties. It is anticipated that the Immigration Bill could assist police forces in both of these areas. However clarity and consideration is sought in two primary areas of the Bill:-

1) Authorisation for property searches:-

There is no definition of a ‘Senior Officer’ for the Police. If I read the Bill correctly, the term is defined for other enforcement agencies but not for the police. As searching seems to depend upon authorisation by a Senior Officer, defining the rank which this applies to would alleviate this issue e.g. as per searching of properties (sec 18 PACE, 32 etc. require an Inspectors rank authority).

2) The seizure of vehicles :-

Vehicle registration:- The provisions detailed within the Bill do not differentiate between vehicles which are registered in the UK and those which are not. Whilst it is unlikely that non EU vehicles would be in the UK and used by illegal immigrants, it is highly plausible that illegal immigrants might be using either UK or EU registered vehicles, therefore consideration could be given in respect of these vehicles too. However it is recommended that when formulating the Regulations consideration be given to the fact that some vehicles seized may not be UK registered.

Financial Cost:- The retention of seized vehicles may cause additional financial burden upon police forces. The financial implications of recovery and storage may inhibit forces to pro-actively enforce the new legislation.

The Bill appears to envisage additional provisions, to add to the flora of regulations with uncoordinated provisions made under other enactments such as Section 165A Road Traffic Act; the Road Traffic Regulation Act; Criminal Justice and Public Order Act; Police Sec 59 Reform Act; Vehicles Excise Act, Powers of Criminal Courts (Sentencing) Act; Road Safety Act etc..

The costs of recovery and storage were investigated by Government in 2008 and rates were then set for several of the above enactments at a minimum of £150 for recovery and a minimum of £20 per day for storage. The Home Office, in setting these rates after consultation, stated that these rates were intended to cover the costs of the recovery and of the vehicles’ storage. The Home Office further advised that the rates were not intended to provide revenue to the police or be punitive to the public. They could therefore be considered as ‘cost recovery’.

The provisions in the Immigration Bill appear to envisage a process similar to that contained in the Powers of Criminal Courts (Sentencing) Act. Under that Act there is a requirement placed upon the police to retain the vehicle until the court case. After forfeiture, the vehicle must further be retained for six months before any disposal may take place (to allow for third party claimants to come forward) and, moreover, any proceeds of disposal must then be paid into the Police Act Fund and, after deduction of legitimate expenses, may therefore only be used for charitable purposes.

As the Bill foresees application to the courts for possession of seized vehicles in the possession of an illegal immigrant, it can reasonably be envisaged that considerable court time and expense could be exercised to enable employers and finance companies to seek return of vehicles which were being used by the illegal immigrant (as might be their right under Human Rights legislation?). Enabling those people to reclaim their vehicles without recourse may provide a viable option for consideration.

Vehicle Retention Amendment Option:- Utilising existing legislation and wording under Section 165A RTA, may alleviate some of the aforementioned concerns. A vehicle might be seized where there is reasonable cause to believe that the person driving it is an illegal immigrant. Following seizure, that vehicle may then be automatically disposed of after a prescribed period unless collected in accordance with the provisions and the fees paid.

The same, harmonised, charging rates would apply and the vehicle may be released to a person who can show that:

a. They have a right to be in the UK

b. They are the registered keeper or owner (not being the illegal immigrant)

c. A finance or lease company who has the vehicle on lease or finance

d. The immigrant – if s/he has shown that they have been arrested and not charged (vehicle would then be returned without charge)

The provisions would thus exclude collection by the illegal immigrant unless the person can show that they were arrested and no further action taken against them.

In this way the police are pre-authorised to dispose of the vehicle and may dispose of anything after the prescribed period of retention.

If the vehicle is disposed of by the police, the driver would have up to 12 months from disposal within which to claim the net proceeds – or perhaps the court could, in lieu of forfeiture, extinguish this right upon conviction?

Vehicle Excise Duty:- The Immigration Bill might provide an ideal opportunity to make changes to the Vehicle Excise Act so that overstaying EU vehicles may be retained until they are re-registered in the UK. It should be noted that Operation Jessica, led by the DVLA, is looking at options to ensure that overstaying foreign registered vehicles are made compliant with UK legislation before release from a pound. Currently an owner may simply pay a surety and reclaim the vehicle to be used again, exported or simply have different plates added to them.

Effective Enforcement:- A process which allows effective enforcement of the registration and licensing and compliance with insurance and licensing requirements should also be applied to all seizure events – i.e. licences and insurance must be produced in all cases and compliance with the Registration and Licensing Acts be checked, and if need be, enforced, before return of any seized vehicle.

Harmonisation of Retention Powers:- Whilst not forming part of the Immigration Bill, the authors note that it would be advantageous to use this as an opportunity to consider harmonising the various existing powers for retaining vehicles seized by Police. An extract from a report outlining the issues is appended below:

Introduction

In 2014, it is estimated that police recovery schemes in England and Wales recovered approximately 420,000 vehicles, thereafter managing the security, return and disposal of those vehicles and the property in them, subsequently disposing of those vehicles which remained unclaimed by their owners.

Statutory charges, amounting to about £70 million, were collected for forces. The disposal (sale and scrapping) of unclaimed vehicles was valued at a further £14.5m. With such levels of public money passing through police forces, and the associated VAT liabilities, it is important that recovery schemes are correctly and adequately managed.
In the interests of reducing bureaucracy and increasing efficiency, it is requested that the Home Office and Department for Transport be asked to review and harmonise the many pieces of legislation, of which there at least six, which deal with the retention, return and disposal of vehicles which have been seized or removed.

It is not suggested that any of the actual seizure powers be revisited but only the secondary provisions relating to the retention, release and disposal of the vehicles, once seized, and the fees which are charged to cover the recovery, storage and disposal of them.

If harmonised, it is suggested that it could simplify the returns process, improving compliance with Road Traffic and Registration and Licensing legislation, whilst improving comprehension.


With a common procedure and charging regime, making regular inflation based adjustments to the associated charges would be less onerous.

The Legislation Concerned and the Parent Legislation

Whilst several of these provisions are similar, none are identical in respect to fees or requirements for storage or return. Specifically, the charges; all of which are intended to represent the same typical costs of recovery, storage and disposal, vary significantly between statutory instruments.

Whilst most provisions have been updated within the past few years, to reflect inflation, the Criminal Justice and Public Order Act charges, formerly harmonised with the Road Traffic Regulation Act charges, have not been reviewed or revised since 1995.

In Section 165B Road Traffic Act, the police are asked to validate the driving licence and insurance of the vehicle claimant before returning the vehicle. There is no requirement in the legislation to ensure that the requirements of the Vehicles Excise and Registration Act (VERA) are adhered to, despite a correctly registered vehicle being imperative for effective enforcement.

Conversely, the DVLA legislation requires compliance with VERA but makes no requirement in respect of the validation of driving licence or insurance.


There is no requirement at all to validate documents for the other provisions – even under Section 59 Police Reform Act – careless driving or driving off the highway.

It is recommended that the plethora of retention, return and disposal regulations be harmonised and incorporated, if possible, into a single Retention and Disposal Regulation, with the same fees and similar, or identical requirements, to evidence compliance with the requirements relating to all of the driving licensing, insurance and registration and licensing provisions

Where possible, it would be helpful to provide a harmonised method of retaining and disposing of all vehicles which come into the possession of the police (or other enforcement agencies eg DVSA).

Much police time and expense is expended in trying to dispose of vehicles which have been seized under the provisions of the Police & Criminal Evidence Act 1984 and which remain unclaimed and which cannot be disposed of other than under the provisions of the Police Property Act and subordinate regulations.

Provisions which could be Harmonised

Retention Return & Disposal Regs

Parent Legislation

Power of Seizure in respect of vehicles:

Road Traffic Act 1988 (Retention and Disposal of Seized Motor Vehicles) (Amendment) Regulations 2008.

Section 165A Road Traffic Act 1988 (as amended)

being driven without insurance or driving licence

Police (Retention and Disposal of Motor Vehicles) Regulations 2002

Section 59 Police Reform Act 2002

causing alarm distress or annoyance

Road Traffic Act 1988 (Retention and Disposal of Seized Motor Vehicles) (Amendment) Regulations 2008.

Road Traffic Regulation Act 1984 & Removal & Disposal of Vehicles Regs 1986

abandoned or causing danger or obstruction

The Road Safety (Immobilisation, Removal and Disposal of

Vehicles) Regulations 2009

Schedule 4 Road Safety Act 2006

which have been tested and found to be in a dangerous condition

Police (Retention and Disposal of Vehicles) Regulations 1995

Sec 62C Criminal Justice and Public Order Act 1994

involved in unlawful trespass and not removed upon demand

The Vehicle Excise Duty (Immobilisation, Removal and Disposal of Vehicles) (Amendment) Regulations 2008

Sections 57(1), (2) and (3) of, and Schedule 2A to, the Vehicle Excise and Registration Act 1994

used where there is outstanding VED

No specific additional provisions as to retention, return, disposal or costs of recovery

Subject to decision of the courts. May order a forfeiture order under Section 9(2) of the Act

Section 8(4) Hunting Act 2004

Seizure of vehicles used in illegal hunting activities

Subject to decision of the courts.

Section 19 Police and Criminal Evidence Act

Evidence of an offence

Current Seizure Powers:-

It should be noted that Section 164(3) Road Traffic Act 1988 permits a constable or vehicle examiner to require a person to produce a revoked or suspended driving licence, and upon its being produced may seize it and deliver it to the Secretary of State.

Conclusion

The Immigration Bill contains a raft of important measures to prevent illegal immigration and remove incentives for illegal migrants to enter or remain in the UK and encourage them to depart. From a Roads Policing perspective, to ensure the successful operational delivery of the Immigration Bill it is envisaged that there will be additional enforcement activities and costs associated with the implementation of the new Bill e.g. searching of addresses, vehicle recovery and retention costs, language interpreter fees etc…

In addition, due to the multi-cultural, diverse nature of our society careful consideration is required to how the measures detailed within the Bill are effectively communicated and the impact of operational delivery monitored /assessed from a community perspective.

October 2015

Prepared 22nd October 2015