Fortieth Report Contents

Statement of Changes to the Immigration Rules (HC 1160) and Immigration (Electronic Travel Authorisations) (Consequential Amendment) Regulations 2023 (SI 2023/305) (linked): Oral Evidence

Oral evidence session with Lord Murray of Blidworth, Parliamentary Under Secretary of State for Migration and Borders, Home Office, Thursday 11 May 2023

These two instruments introduce the Electronic Travel Authorisation (ETA) scheme and, within it, the use of biometric information. Under ETA, all non-British or Irish passengers visiting or transiting through the UK who do not currently need a visa will be required to obtain an ETA in advance. We published a Report on the instruments in March, which criticised the Home Office for providing inadequate explanatory information and identified aspects of the policy that gave rise to further questions.

Lord Murray of Blidworth, Parliamentary Under Secretary of State for Migration and Borders at the Home Office, attended an oral evidence session on the instruments on 11 May 2023. Lord Murray provided some helpful clarifications on the operation of ETAs at the Republic of Ireland/Northern Ireland border and on the introduction of fingerprint technology, but these aspects of the policy are evidently still ‘work in progress’. We look forward to further information in due course.

The point remains that such additional information as Lord Murray made available should have been included in the original Explanatory Memorandums (EMs) to inform the scrutiny process. We are concerned that the Home Office has too narrow a view of the role of the EM.

Background

1.The Home Office laid these two instruments in March 2023. They introduce the Electronic Travel Authorisation (ETA) scheme, under which all non-British or Irish passengers visiting or transiting through the UK who do not currently need a visa will be required to obtain permission in advance and submit biometric information. The Government state that ETA will close a current “gap” in advance permissions and “enhance the Government’s ability to screen arrivals and prevent the travel of those who pose a threat to the UK”. ETA has similarities to the EU’s European Travel Information and Authorisation System.1

2.We published our formal view of the instruments in our 35th Report, drawing them to the special attention of the House on the grounds of policy interest and insufficient information.2 In our Report, we raised the following issues:

3.Having made clear in our recent Report on IAs3 the importance we attach to proper impact information being provided, we asked for oral evidence from the Home Office on why it had been omitted in this case. Accordingly, Lord Murray of Blidworth, Parliamentary Under Secretary of State for Migration and Borders at the Home Office, attended an evidence session on 11 May 2023. We also asked Lord Murray more general questions about the Home Office’s processes for preparing and clearing SIs and their explanatory material. A transcript of the session is available on our website.4

Absence of impact information

4.In the Explanatory Memorandums (EMs) to the instruments, the Home Office said, without giving reasons, that it had prepared an IA but that this would not be published. In subsequent correspondence, the Home Office said that not publishing was because a fee for ETA applications had not yet been agreed, and that “it would be far more beneficial to publish an IA which reflects the final policy”.

5.Our original Report agreed that the level of fees would be an important factor in determining the impact of the ETA. However, we concluded that it would have been helpful to provide this rationale in the EM, and that the EM could and should have provided summary impact information not just relevant to, or affected by, fees.

6.In the evidence session, Lord Murray accepted the importance of transparency, scrutiny and of publishing IAs. He agreed that the absence of impact information should have been explained in the EM. However, he reiterated that any IA on ETAs would be “less useful” without fee information. Lord Murray said that it was the Home Office’s intention to publish an IA for the introduction of ETA once the fee is agreed with HM Treasury, which he hoped would be “shortly”.

7.Our view in this area has not changed. The likely cost of the ETA is a key part of assessing the effects of the scheme but no indicative levels (for example, broadly the same as the EU equivalent) were given. As the Home Office had produced an IA, even in the absence of fee information, the assessment (or a summary of it) should have been provided when the instruments were laid, to inform the scrutiny process. We look forward to the full IA being published in due course.

Republic of Ireland/Northern Ireland border

8.The EMs did not contain any explanation of the operation of ETAs at the Republic of Ireland/Northern Ireland (NI) border. Our further questioning revealed that those who are required to have an ETA to enter the UK will need to have one to cross the land border from the Republic to NI. However, there will be no immigration controls on that border and no routine controls on travel from NI to the rest of the UK.

9.Our original Report questioned the usefulness of a requirement to have an ETA for a journey that would be subject to no checks. We expressed concern that free movement across the border and between NI and mainland UK could undermine the policy intention of preventing the travel of those who pose a threat to the UK. We also noted that the need for an ETA could deter tourism in NI for those initially arriving in the Republic.

10.In the evidence session, Lord Murray agreed that the system presented “risks” but that the chosen approach balanced these with other desirable goals (presumably, including free movement across the Irish border and within the UK). He noted that the same issues already arise in relation to those subject to visa requirements. Lord Murray also stated that the Government were working with tourism bodies on both sides of the border and would make further guidance available on the operation of ETA at the Irish border “shortly”. Lord Murray said that while tourists would not be exempted from ETA, he believed there should not be undue impact on tourism because the ETA process will be “incredibly simple, straightforward and inexpensive”. This is useful information that should have been included in the EM.

11.We recognise that the imperative of free movement across the Irish border presents difficulties for any immigration system and appreciate that a balance must be struck. We agree that a simple and inexpensive system could reduce the effect on tourism but continue to have concerns about the possible impacts. We welcome the Government working with interested parties and look forward to seeing the further guidance in due course.

Introduction of fingerprint biometric information

12.SI 2023/305 would allow the Government to collect and use biometric fingerprint information as part of the ETA system, although responses to our questions suggested the relevant technology has not yet been developed. Our original Report questioned whether it was appropriate to introduce enabling legislation in this area at this stage and requested further information on the costs and benefits of this aspect of ETAs.

13.In the evidence session, Lord Murray said that the technology to collect fingerprints on a remote basis is “nearly there” and will be available in the “medium term”. He stated that legislating now, prior to the adoption of the technology, was appropriate because the same legislative framework is required regardless of the system adopted. Lord Murray anticipated that further information on the provisions would be published before introduction of the measures but that the UK’s approach to fingerprint biometrics would be “smoother” than that in the EU’s similar scheme.

14.We note that many countries already collect fingerprint information as part of their immigration systems. We look forward to further information on the UK’s approach, including on its costs and benefits, being made available in due course. We welcome the intent to create a system that operates smoothly; the House may wish to monitor progress following implementation.

Conclusion

15.The session provided some useful clarifications, particularly that ETAs would be “simple and inexpensive”, that the aim was to produce a smooth fingerprinting system and the assurances to publish further information. However, these remain intentions and the House may wish to ensure the Home Office meets these commitments as work on ETAs progresses.

16.The additional information provided by Lord Murray at the evidence session and in earlier correspondence should have been included in the original EMs. The session also did not change our view that at least some impact information should have been provided when the instruments were laid, to inform the scrutiny process. Lord Murray said that an EM was “describe to a layman the purpose of the regulation”. However, an EM should not just explain what the policy is. It should also make the case for why the policy has been chosen—very often requiring information on the costs and benefits. We are concerned that the Home Office has too narrow a view of the role of the EM.


1 European Union, ‘New requirements to travel to Europe’: https://travel-europe.europa.eu/etias_en [accessed 15 May 2023].

2 Secondary Legislation Scrutiny Committee, 35th Report, Session 2022–23 (HL Paper 177).

3 Secondary Legislation Scrutiny Committee, Losing Impact: why the Government’s impact assessment system is failing Parliament and the public, 12th Report, Session 2022–23 (HL Paper 62).

4 Oral evidence taken before the Secondary Legislation Scrutiny Committee, on Electronic Travel Authorisations, 11 May 2023 (Session 2022–23), QQ 1–15.




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