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We consider that that offers Parliament sufficient scrutiny and oversight of the costs of biometric immigration documents and the fees that may be charged without the need for a code of practice. So, we anticipate that the majority of applications for the initial allocation of biometric immigration documents will be processed alongside immigration applications and completed within existing published service levels. Obviously, some cases may take longer for a variety of reasons, and that will include cases in which we have to make further inquiries.
We do not consider it necessary to have a code of practice setting service levels and maximum costs for issuing biometric documents, given the wide-ranging and complex nature of the applications we process. As I have made plain, those making an application will be charged and that will be included in the immigration application charge fee. I cannot provide the noble Lords with precise details, but I am happy to write in response to the general fall-out of questions put to me today to which I have not been able to provide direct answers.
The noble Lord, Lord Avebury, asked about time periods. No decision has been made to reduce the length of time beyond which a person is required to have a BID from six months to three, as the noble Lord suggested. The noble Lord, Lord Hylton, asked about short-term visitors. Visa nationals coming for a
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Lord Dholakia: Will the Minister look seriously at the position of asylum seekers, whom we expect will be those carrying ID cards? We have been approached by representatives of the Refugee Council about the impact of this. Does the Minister consider it would be appropriate to provide an exemption from fees for asylum seekers, bearing in mind that this group is one of the poorest and most vulnerable in our society? Asylum seekers are unable to work and receive less financial support than British citizens. This should be regarded as a question of humanitarian protection, and asylum seekers should be exempted from the charges on a discretionary basis. I hope that the Minister will be able to consider this. It would be helpful if a response were made before the Report stage so that we can narrow any future amendment on this subject.
Lord Avebury: Could the Minister deal with my question on whether the basis on which the fees are charged will be on the costs incurred by the providers or whether, as is the case for certain other fees recently, the charges will be higher than the costs? I refer to the fee to apply for indefinite leave to remain which was raised recently from £350 to £750. I ask the question because UK universities are already anxious about competition from abroad diminishing the supply of foreign students entering our universities and thus having a severe impact on their finances. If applicants to higher education courses are suddenly faced with a large additional bill for BIDs, that could have a serious effect on university intake.
Before the Government reach any conclusion on these issues, I would ask them to hold discussions with the universities, and I would be grateful for an assurance from the Minister that that will be so. Further, since he said that no decision has been made on whether to reduce the period from six months to three, I extend that request also to representatives of the tourist industry. If you start charging people for BIDs when they are coming in only for a short holiday, I am sorry to say that the impact on our tourist industry could be very severe. It would be outrageous if the Government were to undertake such a step without proper consultation with the interests concerned. I hope that the noble Lord can give me assurances, on both the universities and the representatives of the tourist industry, and that they will hold those discussions before any final decisions are made on these matters.
Lord Bassam of Brighton: I thought that I had dealt with the short-term visitor issue, which the noble Lord, Lord Hylton, raised. For the avoidance of doubt, visa nationals coming for a short visit,
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I want to make the point about refugee status clear. When a recognised refugee is granted leave and is issued with a BID for the first time, they will not be charged. They may be charged when that BID is later renewed, when it expires after 10 years. There is not going to be the problem that the noble Lord envisaged.
On the point about UK universities, I expect that we would consult them in any event. We consult them in detail about students, and they do not always agree with us, but we go through that process. As I understand it, our rates are very competitive internationally, which is one reason why we continue to be one of the favoured destinations for students across the world who come to study out of their home country.
The Earl of Sandwich: As far as I understood the point made by the noble Lord, Lord Dholakia, he was referring to asylum seekers and not to registered or accepted refugees. That is a major point, which I am sure we shall bring back. Will the Minister reflect further on that, without responding now?
Lord Bassam of Brighton: Asylum seekers are issued with the ARC card, and we do not charge for that, so that is not a terribly relevant point. However, I hear what the noble Earl says, and if I have anything further to offer for clarification I will do so, but this is not quite the problem that the Committee imagine.
Lord Avebury: We will all be grateful for the assurance that asylum seekers will not be charged and that the documents issued to them will be free. I want to add to the list of bodies that I hope the Government will consult before finalising the arrangements. They should include the Refugee Council. Surely that is a reasonable thing to ask, considering that there may be people who come within the sphere of interest of the Refugee Council who may need to apply for BIDs. When they come to the end of the process and are granted asylum, they will not have a large sum of money at their disposal, and it may be unreasonable to ask them to suddenly cough up.
As the noble Lord, Lord Hylton, has pointed out to me, there may be also a backlog of old cases that will need to be dealt with, and we need to ensure that they are dealt with fairly and that people do not suddenly find themselves in financial difficulties as a result of the imposition of these requirements. I am grateful for the assurance that the Government will consult the UK universities. I hope that they will also consult the tourist industry and the Refugee Council,
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Amendment, by leave, withdrawn.
Clause 5, as amended, agreed to.
Clause 7 [Effect of non-compliance]:
Baroness Anelay of St Johns moved Amendment No. 21:
The noble Baroness said: Amendment No. 21 arose from discussions I had with the Refugee Children’s Consortium. I was looking at some of its amendments. Peculiarity struck me—I suppose one could say—when looking at Clause 7. My amendment would remove the words “in particular”. I am trying to get an idea of why that phrase is required. Clause 7 makes provision for the effect of non-compliance by those who fail to comply with the biometric registration rules.
The Bill gives an initial list of those punishments that may be applied by regulations. Officials would be empowered to do the following: refuse an application for a biometric immigration document; refuse an application or claim in connection with immigration; cancel the variation of leave to enter or remain in the UK; require the Secretary of State to consider whether she should give a notice under Section 9; and provide for the consequence of a failure to be at the discretion of the Secretary of State.
The clause is drafted so that these are the punishments that may be applied. I am trying to see whether that list covers every eventuality. It seems to—especially that last part. My amendment has been tabled to ask the Minister to explain what other punishments the Government consider they might need to add by regulations in the future that could not adequately already be covered by that list of examples. Subsection (2) is introduced by the words,
do all this. If that is the particular, what else will be added on? Could it be something so controversial that it really would not be appropriate for it to be added by regulations? I want to try to get a feel at this stage for what else the Government might seek to do in the future. The issue was not addressed in another place. I beg to move.
Lord Avebury: The penalties provided in subsection (2) are already pretty drastic. I dread to think what the Government might have in mind to add to them. I treat this as a very important subject. When you are talking about hundreds of thousands of people in possession of BIDs—in the end that could run into millions—the accidental failure to comply with requirement regulations is a point that needs to be seriously considered. The Secretary of State appears
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A new requirement is imposed and half a million people are supposed to comply with it. Suppose only a handful, say a few dozen, are not aware of the announcements which the Minister has assured us will be widely disseminated through television and other means, and, as far as possible, through direct communication with the holders of BIDs. As the noble Lord will be aware, the postal system is not 100 per cent reliable, and people change addresses. There are bound to be people who do not receive direct communication and therefore will fail to comply with some requirement of the regulations through inadvertence and through no fault of their own. Would it be a defence to a charge of failure to comply that the person was not aware of the notification or did not receive it? I was not sure exactly what the Minister replied to that.
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The amendment of the noble Baroness, Lady Anelay, to remove the words “in particular” is absolutely necessary because we have no idea what further regulations might be contemplated under this clause. The list that we have here is bad enough and I foresee all kinds of errors arising from, as I say, nothing to do with mala fides or wishing to evade the regulations but simply through omission. I take this extremely seriously and I hope that the Minister will accept this amendment.
Lord Bassam of Brighton: I am very grateful to the noble Baroness, Lady Anelay, for tabling the amendment because the explanation is very simple. As the clause stands, the consequences of failing to comply with a requirement of regulations made under the biometric registration provisions are set out. The clause also gives the Secretary of State the discretion to decide which of the listed consequences is appropriate in the circumstances of the particular case. Therefore, one could argue that it is graduated.
The existing provisions do not give the Secretary of State a power to impose sanctions, other than the ones listed in Clause 7(2). I reassure the Committee that it is not our intention that the Secretary of State should be able to use any other sanction, other than the ones already listed in Clause 7(2).
The noble Lord, Lord Avebury, asked where there might be a right of appeal to. I refer him to Clause 11, which covers penalties and appeals. I think that he will find the answer there. For immigration matters he should refer to the Nationality, Immigration and Asylum Act 2002.
Finally, before the Secretary of State imposes a sanction, he or she—she at present—will, of course, consider all relevant circumstances. That will include reasons why the person did not comply. The noble Lord, Lord Avebury, focused on that point earlier. It has to be right that sanctions will not be imposed unreasonably. Therefore, a test of reasonableness will be in place.
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Baroness Anelay of St Johns: I realise that the Minister is trying to be helpful. He is trying to say that the drafting of Clause 7(2) is intended to deliver what I want—a closed list and not an open list. The noble Lord agrees with that. The difficulty is that my experience of our discussions on a similar drafting in the context of the Serious Crime Bill earlier this year led me to believe that the words “in particular” would result in an open list, not a closed list, and would give the Government the opportunity to extend the list of punishments later by regulation.
Will the Minister and Home Office officials look at our consideration of Schedule 6 to the Serious Crime Bill? That gives permission for the Secretary of State to extend the purposes for which data matching may take place. As originally drafted, the Serious Crime Bill gave examples of the purposes which might be added. The Government agreed to my request that the words “in particular” should be knocked out because that restricted the list from being one of examples—an open list—to being a closed list. That is where my confusion arises. The Minister is trying to say, “You’ve got what you want here”, but I am saying, “I don’t think I have if what we did in the Serious Crime Bill delivered what I required in that instance”. I appreciate that this appears to be semantics, but it is not intended to be. It might be helpful if I talk to the Minister between now and Report. I hope that there will be a way of resolving the matter. We may need to consider the progress of the Serious Crime Bill in another place because the drafting of these Bills needs to be consistent. For the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Bassam of Brighton moved Amendment No. 21A:
“(3) The regulations may also permit the Secretary of State to designate an adult as the person responsible for ensuring that a child complies with requirements of the regulations; and for that purpose—
The noble Lord said: This amendment is necessary to ensure that we are able to enforce compliance with the requirement that children coming to the United Kingdom apply for a biometric immigration document.
The Government believe that it is just as important to ensure that children have secure documents as evidence of their immigration status as adults. One of the many objectives for the registration of biometrics is to assist our law enforcement activities against human trafficking and exploitation. We had a significant debate on that only last week, led by noble Lords from the opposition parties. It was very helpful indeed. Enforcement was one of the issues that arose in that debate. We want to tackle the problem head on, and have stated our clear commitment to dealing with matters such as human trafficking, particularly of children who can
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As a matter of policy, we would not want to issue penalty notices against children who are unable or unwilling to comply with a requirement of the legislation. It is therefore right that a responsible adult is held accountable for the non-compliance of a child in their care. The amendment is also comparable to a provision in the Identity Cards Act that would enable the Secretary of State to designate certain adults to assume responsibility for the obligations imposed on children under the Act, should regulations be made to lower the minimum age for registration on the national identity register to children under 16. I beg to move.
Lord Avebury: We were very grateful for the Minister’s letter, in which he argued that recording biometrics helps to combat human trafficking, particularly of children who may be smuggled into the UK using other children’s identities. The noble Lord rightly repeated that argument, which we take very seriously. We agree that the debate on human trafficking, which your Lordships held last week, was a very useful contribution to the joint working of all parties in all sections of the community in supporting the Government’s actions against trafficking.
The Minister said in that debate, and the noble Lord repeated, that the BID will help us to be certain of children’s identity. In the near future, however, everyone entering the UK from outside the EEA will have a biometric visa; so a child entering openly through a port could not take on another child’s identity at that point. Nor would there be any point in the child’s carers doing so when applying for a BID, as, having entered legitimately, the child would be entitled to a BID in his own right. On the other hand, if the child has entered clandestinely, the trafficker could not obtain a BID for him because his biometrics would not match those on the database, although one must enter the caveat that the EU says that sufficiently reliable technology is not yet available for the one-to-many searches requirement, as I said before.
We agree that a parent or guardian should be given the responsibility for ensuring that the child has a BID, including the process of taking the biometrics for that purpose. Here we return to the question of the minimum age at which it is useful to take a child’s biometrics in the light of the evidence that was given to the Public Bill Committee of the changes that occur in the child’s fingerprints in the years before he reaches the age of 16. I reiterate that the committee was told that this would not have been an issue if the iris had been chosen as the principal biometric, because the iris remains constant from a very early age. It seems that it was decided to go down the fingerprint route because it was convenient for matching up with the police legacy systems. That is very unfortunate because iris technology looks to be the winner in the long run. It has already been adopted successfully by the immigration authorities in Dubai, by the British Airports Authority, and by several other airport authorities around the world to authenticate passengers entering fast-track processes.
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As the Bill stands, there will be nothing to prevent us from using iris recognition later on, but as I asked before, is the Home Office doing any work on this so that we are not committed for ever to what may become obsolescent technology?
The age at which a parent will have to apply for a BID on behalf of a child has not yet been determined, but from our previous discussions it will certainly be less than 16, and it may be as low as five or six. I asked the noble Lord, and perhaps he can tell the Committee, what the age limit is at present for biometric visas in overseas posts. Is it the intention of the Government to align the minimum age requirement for visas and BIDs? Whatever age is chosen as the minimum for biometrics, will there be arguments about age determination similar to those that we have now about whether a child is over or under the age of 18? If the visa and BID minimum age is the same, any disputes would arise in the country of origin, because once the fingerprints of a child had been taken for visa purposes, it would presumably follow that they could be taken for BIDs.
Lord Bassam of Brighton: It may well be that I have to conduct some longer correspondence than I had hoped on these points. As ever, the noble Lord has come up with some questions to which I do not yet have an answer. In general terms, we need to continue to develop the technologies that the noble Lord referred to, but this is something that, as the noble Lord said, would be practical for development in the future. We intend to keep iris recognition technology under review. However, the provisions in the EU biometric residence permit regulations currently relate only to face and fingerprint recognition.
On double checking, there is a possibility of child X—who is actually child Y—being cared for by one adult, which would be double checked when applying for a BID. That element is there in the way in which this will work. I am happy to consider further the points that the noble Lord has raised. Perhaps it is worth adding that, considering the EC regulation, it will require us to use fingerprint and facial recognition, largely because it is tried and tested and because we have existing databases to check against. We will of course keep our minds open regarding iris recognition technology. The other point was about age. Currently, a child of five or over who applies for a visa is fingerprinted. That is under our existing regulations.
Lord Avebury: My point about age was that we now have arguments about whether a child is over or under the age of 18, but we could be having similar arguments about whether a child is over or under the age that is specified as the minimum for taking fingerprints. A child has to have a BID, as I understand the Minister, if the child is over five or six. Equally, there could be arguments about whether the age of the child is accurately claimed by the parent or guardian. They want to subject this five or six year-old child to the sort of procedures that are now in contemplation for determining whether a child is over or under the age of 18. I hope that is not true, but it is one possibility that is raised by having a very low minimum age at which a child would have to register to get a BID.
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