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Lord Filkin: As has been indicated during the discussion on Clause 133, this power does not require prior authorisation. It is in response to circumstances which cannot be predicted and to which an immediate response is needed. As I shall seek to amplify, it is for these reasons that the power is extremely limited.
First and foremost, someone has to be liable to arrest as an immigration offender and has to be found on business premises before the power can come into play. It is circumstances where a constable or an immigration officer enters business premises with the intention of arresting a person who is believed to be an immigration offender. That is the first and the major trigger. Unless that happens the power does not exist.
Secondly, the constable or the immigration officer must reasonably believe that an immigration employment offence has been committed in respect of that person. Thirdly, employee records must be present on the premises and of substantial value in the investigation of the alleged immigration offence. All of these subordinate conditions have to be met before the power comes into play.
Our concern about the amendment, which I acknowledge has been argued with tenacity, is if the officer were forced to go to a justice of the peace to obtain his approval before any search is conducted in the very limited circumstances that we are describing and where officers are on the premises with the intent to arrest someone. The employer would have every incentive to destroy any evidence of a Section 8 offence which existed before the officer returned. The fact that the employee had been arrested or was liable to be
arrested, would have alerted the employer to the interest of the enforcement authorities and therefore to the employer's own potential breach of employment and immigration laws in these respects.But as I sought to indicate, we are talking about very narrow and tight circumstances. The immigration officer or the constable cannot just wander into business premises and look to see whether anyone might be creating an immigration offence. These officers cannot go to other business premises and ask to see all the employee records to see if they can spot any names which look suspicious to them. They can only go in when they believe there is someone there and they have grounds to believe that an immigration offence has been committed. Amendment No. 238ZM would render the proposed power ineffective for these reasons and that is why we cannot accept it.
The remaining Amendments Nos. 238ZN and 238ZQ would have the effect of limiting the power under the new Section 28FA to a power of search, seize and retain the records of the person who has been arrested. We do not believe that such a limitation is practicable or desirable.
Amendment No. 238ZN seeks to ensure that the power to search is only triggered when an officer reasonably believes that records of the arrested person will be found on the premises. That is unnecessary. Subsection (2) already makes it clear that the power of search is only triggered if the officer believes that an immigration employment offence has been committed in relation to the person arrested.
Although Amendments Nos. 238ZP and 238ZQ are identical to Amendment No. 238ZN they would entail a change. They would restrict the scope of the search which can be undertaken and the power of seizure and retention of employee records to the records of the arrested person only, as was argued. That is impractical because it is unlikely that the records of a suspected offender will be kept separately from those of other employers. If a constable is searching for a record of that employee, he will almost certainly be required to search the records of other employees to find the one for which they are looking. If, in the course of that search, the constable or immigration officer comes across evidence of other immigration employment offences, or evidence of mass fraud, he simply cannot ignore it. That would be absurd. He must be able to seize and retain that evidence immediately, which is what the clause as drafted provides. If he must go away to get a warrant, when he comes back the chances of the evidence still being there are remote.
I have sought to explain that the circumstances in which such an entry can take place without a warrant are extremely limited and the powers to obtain data to support the potential immigration offence are themselves limited to the tight circumstances that I described. I urge the noble Lord to withdraw his amendment.
Lord Thomas of Gresford: The system that we in this country have of obtaining a warrant from a magistrate
to carry out searches is centuries old. It has a reason behind it: keeping the balance between the freedom of the individual and the need to investigate crime. Parliament holds that balance. Constantly, one hears from the Government that they are being pushed to change the balance against civil liberties. This is just another example of that. We shall reflect carefully on what the Minister has said; we may return to the matter. For the moment, I beg to ask leave to withdraw the amendment.Amendment, by leave, withdrawn.
[Amendments Nos. 238ZN to 238ZQ not moved.]
[Amendment No. 238A not moved.]
Lord Dholakia had given notice of his intention to move Amendment No. 238B:
- Page 105, column 2, leave out lines 32 to 35.
The noble Lord said: I am grateful to the Minister for pointing out that discussion of this amendment would pre-empt debate under Part 5. In the light of that, it is right and proper that I do not move the amendment now but return to discuss it under Part 5.
[Amendment No. 238B not moved.]
Lord Bassam of Brighton moved Amendment No. 240:
- Page 78, line 25, at end insert—
The noble Lord said: It may be for the convenience of the Committee if in moving Amendment No. 240 I briefly refer to Amendment No. 241 and to the following group: Amendments Nos. 242 to 245. By and large, they are minor and technical amendments. I do not intend to address them at any length, but simply to say that Amendments Nos. 240 and 241 enable some provisions relating to accommodation centres and the money provision to commence on Royal Assent.
Amendments Nos. 242 to 245 concern the manner in which the provisions of the Bill will apply to the Channel Islands and the Isle of Man. Unless the Committee wants me to speak in detail about the amendments, I beg to move.
On Question, amendment agreed to.
Lord Bassam of Brighton moved Amendment No. 241:
On Question, amendment agreed to.
Clause 141, as amended, agreed to.
Lord Bassam of Brighton moved Amendments Nos. 242 to 245:
On Question, amendments agreed to.
Clause 142, as amended, agreed to.
Clause 70 [Right of appeal: general]:
Lord Thomas of Gresford moved Amendment No. 194J:
The noble Lord said: Amendments Nos. 194J to 194L would extend the right of appeal to an adjudicator to cover decisions on nationality, specifically a refusal of naturalisation or registration as a British citizen.
The decision whether to grant naturalisation is a matter of discretion for the Minister. At present, there is no possibility of that decision being reviewed, save by judicial review. The limitations of judicial review are well known. The courts will not interfere with a decision on the merits of a case, provided the Minister has followed a fair and proper procedure and his decision is not so outrageous as to come within the limited scope of Wednesbury unreasonableness.
The Government have decided to draw a distinction between a decision not to grant citizenship and a decision to withdraw citizenship that has already been granted. For the former decision, the only challenge available is procedural, by way of judicial review; for the latter, a full right of appeal on the merits of the case is to be granted. I do not understand or appreciate the validity of that distinction.
It is highly unlikely that, in the normal run of things, a Minister will follow a course in deciding whether to grant naturalisation that could be challenged procedurally. There are too many applications, and the machinery is so well oiled, that it is unlikely that that would happen. However, decisions on the granting of naturalisation are based not on procedures but on facts, such as whether a marriage on the basis
Amendment No. 194M, although in the group, covers a different point. On 6th November, 2001, in the Kehinde case, the Immigration Appellate Authority held that applicants served with removal directions had a right to appeal against them, notwithstanding the fact that no new immigration decision had been made. Clause 70 removes that right of appeal and leaves judicial review as the only remedy. Lawyers will not object: a trip to the Divisional Court is more profitable than an appearance before an adjudicator. For lawyers, judicial review means more money in their pocket. However, we must ask whether that is a sensible use of resources. We suggest that the adjudicator should retain the right to decide whether removal directions have been properly made and whether they are supported by a proper factual basis. I beg to move.
"( ) section 14,
( ) section 30(1)(h),
( ) section 34(1),
( ) section 35(1),
( ) section 36,"
Page 78, line 36, at end insert—
", and
( ) section 139."
11 p.m.
Page 79, line 15, after second "Act" insert "or inserts a provision into another Act"
Page 79, line 16, after "repealed" insert "or as the Act into which the insertion is made"
Page 79, line 16, after "ignoring" insert ", in any case,"
Page 79, line 27, after "modification" insert "or adaptation"
Page 39, line 30, after "immigration" insert "or nationality"
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