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Nationality, Immigration and Asylum Act 2002 (Juxtaposed Controls) (Amendment) Order 2006

Volume 686: debated on Monday 30 October 2006

rose to move, That the Grand Committee do report to the House that it has considered the Nationality, Immigration and Asylum Act 2002 (Juxtaposed Controls) (Amendment) Order 2006 [36th Report from the Joint Committee].

The noble Lord said: The primary purpose of this order is to enable two parts of UK immigration legislation to be applied in the juxtaposed control zones at the ports of Calais, Dunkerque and Boulogne. The first purpose of the order is to apply Sections 40 and 41 of the Immigration, Asylum and Nationality Act 2006, which provide a power for the Secretary of State to authorise certain persons other than immigration officers to search ships, aircraft, vehicles or other things to ascertain whether there are individuals whom an immigration officer might wish to examine, to search such persons for specified reasons, to detain such persons for a period as short as reasonably necessary up to a maximum of three hours and to escort them as speedily as reasonably practicable to an immigration officer. The second purpose of the order is to provide for the taking and retention of fingerprints under Sections 141 and 143 of the Immigration and Asylum Act 1999.

This order applies two pieces of English immigration law to the juxtaposed controls in the northern French ports of Calais, Dunkerque and Boulogne. As the Committee will know, the United Kingdom has several international agreements with France to allow UK authorities to carry out immigration and other controls in France, and for French authorities to do the same in the UK. Controls are carried out by UK officers in a defined geographical area and for specified purposes only. These juxtaposed controls, as they are known, provide the United Kingdom with an important opportunity to carry out immigration controls before a person physically enters the UK, and are essential to our ongoing efforts to secure the border.

The juxtaposed controls in Calais, Dunkerqueand Boulogne are provided for at an international level by the Le Touquet treaty, which was signed on4 February 2003 and given domestic effect by the Nationality, Immigration and Asylum Act 2002 (Juxtaposed Controls) Order 2003—I will refer to it as the 2003 order for convenience—which was made under Section 141 of the Nationality, Immigration and Asylum Act 2002. The order under debate amends the 2003 order to apply, first, the power to authorise persons other than immigration officers in Sections 40 and 41 of the Immigration, Asylum and Nationality Act 2006 and, secondly, the power to take and retain fingerprints of certain persons under Sections 141 and 143 of the Immigration and Asylum Act 1999 to the juxtaposed controls.

I shall deal first with the power to authorise persons other than immigration officers to search ships, aircraft, vehicles and so on. Before Sections 40 and 41 of the Immigration, Asylum and Nationality Act 2006 came into force, only an immigration officer had the power to search a ship, aircraft, vehicle or other thing for the purpose of ascertaining whether there were individuals whom an immigration officer might wish to examine. The 2006 Act provides the Secretary of State with a power to authorise the police, HM Revenue and Customs officers or private contractors to carry out these searches. It is important that these powers apply to the juxtaposed controls at Calais, Dunkerque and Boulogne, where the UK Immigration Service has a considerable freight examination operation, and it is intended that private contractors will be authorised to carry out vehicle searches in order to free up immigration officers to concentrate on other areas of more complex work, such as forgery detection, the application of civil penalty and asylum screening and debriefing, for which they have undergone considerable training. Those contracted to undertake this work will be known as authorised search officers—ASOs—and the legislation demands that they are suitably trained and fit for the task assigned to them. If they are not, the Secretary of State will not give authorisation. He can and will revoke any authority should the contracted party fail to perform effectively and in accordance with the standard set.

Careful consideration has been given to the powers of search and detention that ASOs will have. Those powers have been limited to the minimum necessary to enable ASOs to fulfil their function properly. The aim is for ASOs to find people who are seeking to enter the UK clandestinely, to detain them for the shortest period necessary—and for not more than three hours—and to take the person as speedily as is reasonably practicable to an immigration officer for examination. We expect delivery to be swift as the contractor will have a cellular vehicle permanently at his disposal. Checks and balances will be in place to ensure that the ASOs deploy their powers appropriately and efficiently. They will be directed and supervised by the UK Immigration Service on site, and a monitor will be appointed by the Secretary of State to oversee the operation of those powers and to investigate any complaints or failings.

On fingerprinting, when the immigration controls at the juxtaposed controls were initially established, no provision was made for the application of Sections 141 and 143 of the Immigration and Asylum Act 1999. At the time, it was felt that it would not be necessary to take and retain fingerprints, as all persons refused entry at a UK control zone are handed over to the French authorities. The management of their movement within the UK was therefore of no significance, because they would not enter the UK. However, it has become apparent that there is a real need for the identification of certain persons and that we should have the same powers as at UK mainland ports to take fingerprints.

The application of this power in the juxtaposed controls would focus on those persons detected concealed in vehicles who seek to enter the UK clandestinely and those trying to use false documentation. Taking their fingerprints will provide a bank of physical data that can be used to identify people who have previously attempted to enter the UK unlawfully and who subsequently present themselves at the juxtaposed controls. Fingerprinting will support an intelligence-led approach to border security, providing information regarding its efficiency and the level of displacement between ports.

For completeness, I should add that the contracting out of search provisions and taking and retention of fingerprint powers will also be applied when appropriate to the juxtaposed controls in France and Belgium connected with the Channel Tunnel. When secondary legislation is required to do this, it has been done under the Channel Tunnel Act 1987, which provides for a negative procedure. The relevant orders are the Channel Tunnel (International Arrangements) (Amendment) Order 2006 and the Channel Tunnel (Miscellaneous Provisions) (Amendment) Order 2006, which came into effect on 26 October.

The application of these measures—the use of contractors and the power to fingerprint—at juxtaposed controls will increase the security of the border. They will allow warranted immigration staff to concentrate on more complex work and ensure that all those intent on circumventing the controls have physical data recorded for future identification. I commend the order to the Committee. I beg to move.

Moved, That the Grand Committee do report to the House that it has considered the Nationality, Immigration and Asylum Act 2002 (Juxtaposed Controls) (Amendment) Order 2006 [36th Report from the Joint Committee].—(Lord Bassam of Brighton.)

I thank the Minister for explaining the reasons behind this order, and his team for letting me learn a little more every day. When the Minister mentioned the “cellular vehicle”, I wondered whether he was testing our ability to keep awake and follow every word, because it was certainly not something that I had come across before. I wondered whether the cellular telephone had suddenly sprung wings—but we are now informed that it is simply a van that can carry people securely in cells. In this job, I learn something new every day.

The 2003 Le Touquet treaty, to which the Minister referred, allowed French and UK authorities to implement juxtaposed controls at specified ports. It enables UK immigration officials to establish control zones in Calais, Dunkerque and Boulogne. We recognise the value of those zones, because within them the UK immigration authorities have the power to exercise immigration control. Criminal offences and the related powers of arrest are extended to these zones. That has always seemed to us an appropriate measure.

The controls mean that all UK-bound passengers travelling from these ports should be subject to checks by UK immigration officers before they travel, and that passengers should be refused permission to depart for the UK if they do not have proper paperwork. One should remember that the policy of juxtaposed controls was an attempt by the Government to strike a series of deals, at international and EU levels, on asylum and immigration. Previous measures had included the high-profile closure of the Sangatte refugee camp, and the agreement underlying that; improved security around the Channel Tunnel entrances, which is always welcomed; high-tech vehicle scanning for hidden individuals at ferry ports in France, Belgium and Holland; and UK immigration controls at Coquelles and Eurostar stations.

In August 2005, the UK Immigration Service implemented a measure whereby private contractors worked alongside and under immigration officers. That was a potentially controversial measure. The Government tell us in the Explanatory Memorandum to this order that this has been “very successful”. I and other Members of the Committee would be grateful if the Minister could expand a little on that to give a flavour of the level to which the situation has improved as a result of that activity.

The broad effect of the order would be to extend the regime of juxtaposed controls. The Minister explained the two ways in which that will happen. The nub of the matter will always be the fact that suitably qualified persons who are not police or customs officers can be given the authority to carry out searches. That was debated earlier this year, in relation to the 2006 Act. We always took the view that we were prepared to accept the proposals becausethe Government gave assurances—in that case, the Minister dealing with the matter was the noble Baroness, Lady Ashton of Upholland—that the private contractors who carried out the searches would have the appropriate training and be under the appropriate supervision. We note that the regulations are there to put that into effect.

We have throughout supported the imposition and extension of juxtaposed controls, but our support is not open ended. It continues only on the basisthat the training and supervision of the private contractors should be satisfactory. We maintain that, despite the changes introduced by the Government, there are still others that could have a much greater effect on the security of this country. Recently, the noble Lord, Lord Carlile of Berriew, with the independent review of terrorism legislation, produced a report that details the inadequacies of policing at our ports.

My honourable friend Patrick Mercer, who is the shadow Minister for homeland security in another place, has pointed out that we have been calling for the Government to address the problem of policing the ports for many years. There are many practical solutions that the Government could implement to deal with the problem, such as establishing a single, dedicated border police force or a single department for homeland security to co-ordinate our border control efforts. Of course, we wait with patience to see whether at some time the Government might acknowledge the wisdom of our proposals on the matter. In the mean time, with the caveats that I have given about the proper supervision and training of the people taking part in searches, we support the order.

We, too, are grateful to the Minister for the careful and detailed explanation that he gave of the provisions in the order and for giving us the opportunity to continue the discussion that we had during the passage of the 2006 Act, as the noble Baroness said, when these proposals proved to be among the most controversial in the Bill.

If there is a great deal of anxiety about the management of the UK-based detention estate, such as we saw last week, arising from the chief inspector's report on Yarl's Wood, how much greater is the need for concern about what happens at the juxtaposed controls on the other side of the Channel, particularly, as under this order, when private contractors are being employed to arrest, detain, search and fingerprint passengers, without either French or British officials being present? Moreover, as the Independent Race Monitor told the Home Affairs Committee in another place, the likelihood that a person seeking to enter the UK will be refused is greater at these overseas ports than in the UK, which raises questions of the relative fairness of the procedures in the two locations.

We know, for instance, that biometric identification is an imperfect technique, and many asylum seekers are refused on the basis of a match between their fingerprints and ones stored on the Eurodac computer system. It would be interesting to know how many challenges there are on the grounds of false matches at the juxtaposed controls and at UK ports of entry respectively, and, of the challenges, what proportion are successful at each, as an illustration of the fact that greater difficulties are bound to arise at the juxtaposed controls than at UK ports of entry.

We had some assurances from the noble Baroness, Lady Ashton of Upholland, when we discussed these matters on 7 February, as the Explanatory Memorandum recalls, but it was the combination of the employment of private contractors and the fact that they would operate under an overseas jurisdiction that raised our anxieties, not the fact that the contractors themselves would be foreign. We did not say that the French police would not be capable of applying criminal records checks to the staff employed by contractors or that the course material for training staff would be deficient, although we were naturally anxious to ensure that these matters had been covered. The noble Baroness, Lady Anelay, repeated that this afternoon. The noble Baroness, Lady Ashton, undertook to place the training documents in the Library of the House. Will the Minister tell us whether that is being done or whether it has already been done, so that, as the noble Baroness, Lady Anelay, says, we can be satisfied that the training procedures are sufficiently rigorous?

We said that the activities of the contractors who are being given these new powers are intrinsically less liable to come under public scrutiny and are therefore more liable to give rise to errors. There are several reasons for that. First, although a person who claimed that he was wrongfully detained had a right of access to the chief immigration officer and then to the monitor, who is a Crown servant appointed under Section 41 of the Nationality, Immigration and Asylum Act to examine the use made of thepowers conferred on independent contractors, the complainant would have been returned to his country of origin before that process could have led to a result. Will the Minister say—he touched on this in his speech—who has been appointed as monitor? I rather think that he said that a monitor had not yet been appointed, but perhaps he will correct me if I am wrong. If the monitor has been appointed, when did that person assume office? What statistics are to be published on the complaints received, and at what intervals? How were they dealt with in the UK and at the juxtaposed controls respectively? If the monitor has not yet been appointed, will the Minister explain the reason for that delay and how long he expects it to be before the monitor takes up office?

Secondly, allegations of the ill treatment of detainees or of failures in the duty of care in the UK can be pursued by the Chief Inspector of Prisons and, where children are involved, by the Children’s Commissioner. Both of them have access to the juxtaposed controls but, given all their other duties, they may not get around very often to visiting Calais, Dunkerque and Boulogne—the three ports to which the order applies—let alone to the Eurostar stations in France and Belgium where the power to take fingerprints already applies under other orders mentioned in the Explanatory Memorandum, although not for private contractors to arrest, detain and search passengers. So far, the chief inspector has inspected these facilities only once—she visited the short-term residential holding facilities at Calais in August 2005. That, of course, was before the authorised search officers mentioned by the Minister appeared on the scene. At that time, the longest period for which anyone was held in the previous year was 17 hours—much longer than the three hours mentioned in the order—and it would be useful to have at regular intervals more up-to-date information on the average and maximum lengths of detention. As the Minister will no doubt acknowledge, under Article 3(2) of the Le Touquet treaty, which has been mentioned, the maximum period for which a person can lawfully be held is 24 hours, unless otherwise authorised by legislation in the state of arrival. Thirdly, will the Minister say what requirements and procedures to govern this practice have been laid down under the article?

Fourthly, as the Minister will recall, particular concern was expressed throughout the proceedings on the Immigration, Asylum and Nationality Bill about the delegation of responsibility to private contractors for the power to arrest, detain and search unaccompanied children. The Children’s Commissioner visited Yarl’s Wood and said that he was shocked and disappointed by the treatment of children there. He and Anne Owers have both called for a complete overhaul of the detention of children. As I have said before, if things can go wrong under our very noses in this country, how much greater is the risk on the other side of the Channel? Astonishingly, the Children’s Commissioner was not on the list of those consulted about the use of private contractors before the order was laid. Will the Minister explain why Sir Albert was left out, and whether he has nevertheless expressed an opinion on these proposals? In addition, the chief inspector recommended independent monitoring of short-term holding centres, instead of which the Government have introduced monitoring by an official. Why was the chief inspector’s advice ignored and a government official appointed instead of an independent person?

In the consultation document issued last April, it was stated that private searching by ASOs independently of immigration officers was to commence at Calais in August, after they had worked alongside each other since August 2005. No mention is made of ASOs at Boulogne and Dunkerque, and ILPA read the document as extending the use of private contractors only to Calais. It said there would be questions of vires if the order was applied more broadly, yet the order seems to relate to any of the control zones. Is that the correct interpretation, and did the Government put that to the consultees at any stage? What have they to say about ILPA's warning on vires?

Finally, ILPA points out that the treaty on which these arrangements are based provides only that responsible officers of the state of arrival have the power of arrest and detention in the control zone—and that means immigration officers. The contracting parties have the power to modify the treaty by exchange of diplomatic notes under Article 23(2), but are expressly forbidden to change provisions that require legislative authority. I am sure that I am not saying anything that will be new to the Minister, because this was all in the ILPA response to the consultation.

The noble Baroness, Lady Ashton of Upholland, made it clear on Third Reading of the IAN Bill on14 March that the Government were not delegating responsibility for these matters, which remained in the hands of the UK immigration authority. It is difficult to see how the power to arrest, search and detain a passenger can lawfully be exercised by someone who is not a responsible officer within the meaning of the treaty, and if any explanation was given to ILPA we hope that a copy will be placed in the Library of the House, and a brief summary given by the Minister in winding up this debate.

I have a couple more questions to add to those of my noble friend Lord Avebury. First, immigration officers now hold powers akin to those of police officers and are very much part of the process that comes under the Independent Police Complaints Commission when complaints are raised. I refer to the power to arrest, detain, search and so on. Could complaints in the control zones abroad now be investigated by the IPCC? Does the IPCC have power to operate in countries abroad and call for witnesses over there?

The second matter relates to the authorised search officers. Here there is an interesting situation whereby the immigration officers can be dealt with by the IPCC. Could the Minister explain about the accountability of those officers and whether the IPCC has powers to investigate complaints against the authorised search officers? It would be very helpful to know whether they fall within the ambit of the complaints commission.

I am grateful to the noble Baroness, Lady Anelay, for her comments, and to the two noble Lords from the Liberal Democrat Benches, who have a long history of persistently ensuring that we are held to proper account on a delicate area of implementation.

The noble Baroness, Lady Anelay, asked about successes. We think that the way in which the service operates has been very successful. As the noble Baroness probably knows, the contracts are run by Eamus Cork Security—ECS—which has worked with the UK Immigration Service for a number of years, initially at Dunkerque and, since August last year, in Calais. The firm works to assist UK immigration officers with a freight-searching operation at berth side. In the past 10 months, the firm has intercepted some 1,200 clandestines and recently was successful in bidding for the contract to work with the UK Immigration Service in Calais as escorting officers, transporting persons detected concealed in vehicles to an immigration officer at a holding facility in the port. That contract contains an extension that provides for the work of ASOs, which will become effective only if this secondary legislation is approved.

I was wondering how the figure that the noble Lord has given can be said to result from the use of ASOs, bearing in mind that, if they had not been there, identical searches would have been conducted by immigration officers, who presumably would have found those 1,200 people as well. There is not a control group with which you can compare the statistics that have been achieved by ASOs, is there?

It is obviously the case, as I said earlier, that having those contractors there means that immigration officers can concentrate on more rigorous and demanding work. In a sense, the ASOs offer and provide activity that is more in support of the way in which immigration staff work. Of course, the noble Lord is absolutely right in the sense that, if ASOs were not there, we would have to deploy immigration officers. It is a question of having the appropriate level of qualification among staff to carry out particular work.

The personnel who are deployed will have already been subject to rigorous security screening in the UK and France. They will also have undergone extensive training with Centrex, the central police training authority. When it comes to efficiency, they have demonstrated their track record at the port of Dunkerque where, since January 2004, they have intercepted over 3,600 clandestines on behalf of the port authorities and prevented their entry into the UK.

Non-British companies already undertake a freight-searching role for ferry companies and port operators outside the UK and have demonstrated themselves to be highly effective. The performance of the contractors will be scrutinised on a daily basis by the Immigration Service, which will examine any suggestion of underperformance or substandard behaviour. ECS personnel will also come under the scrutiny of the monitor, to which the noble Lord, Lord Avebury, referred.

The noble Lord, Lord Avebury, asked a number of questions and, as best I can, I will respond to them today. If I cannot do so, I hope that the noble Lord will be satisfied by a written response, which I would be more than happy to share with other Members of the Committee. A copy of the training material that is used by ASOs will be put into the public domain, and I am more than happy to ensure that the noble Lord is fully advised on that. He asked about false matches on Eurodac. I find it hard to provide the noble Lord with that information this afternoon, but I undertake to prepare a written response for him as best we can. The database regulations provide a useful structure for ensuring that asylum seekers who are processed elsewhere will have been properly processed. We will ensure that we spell out more of the detail on that.

I do not think that the noble Lord is right in what he said about complainants; they would not have been returned to their country of origin. It is likely that they would be refused entry to the United Kingdom, and we would ensure at that point that they were handed to the French authorities to be processed.

The noble Lord asked me to name the monitor today, but I am not in a position to do that. I can tell the noble Lord that we are at an advanced stage of talks with a Crown servant, and we are confident that we will be able to appoint someone in the very near future. As soon as an agreement is reached, we will, properly, announce the name of the person who has been appointed.

If the complainant is not satisfied with the reply given by the chief immigration officer, to whom does he go? We were told that his route of complaint would be, first, to the chief immigration officer and then, if he was not satisfied with that, to the monitor. If no monitor has been appointed, to whom does he go when he is not satisfied in the first instance?

Under this order, the complaint will be processed and forwarded to the monitor. But, of course, that process will not kick in until the monitor is appointed. I will ensure that the noble Lord, Lord Avebury, is given more information on how the monitor works so that he can be fully satisfied on that point. The noble Lord also asked what requirements have been laid down under Article 3(2) of the Le Touquet agreement. Perhaps I misunderstood, but the maximum period for which an ASO can detain a person is three hours. I cannot see how Article 3(2) is entirely relevant to the order, but we are more than happy to provide the noble Lord with more detail, should he wish it. Perhaps he will flesh out his question so that we can provide a fuller response.

The noble Lord also asked about the detention of children, on which he made a number of points. We have offered to facilitate a meeting between the noble Lord and the Children’s Commissioner, Al Aynsley-Green. I am not aware that that meeting has taken place, but the offer still stands. Children detected are taken immediately to an immigration officer. If the minor does not qualify for entry to the United Kingdom, he or she is handed to the French authorities and is dealt with under its domestic law. The French have well established procedures for the welfare of unaccompanied children.

The noble Lord, Lord Avebury, also asked about ILPA and the question of vires. We will respond to ILPA’s very long and generally helpful comments. We are satisfied that we are acting within our vires and that ILPA’s comments, while useful, are not an issue. Again, I would be happy to share our response with the noble Lord if ILPA is content with that. For the avoidance of doubt, I can confirm that this order relates to the ports at Calais, Dunkerque and Boulogne.

I will undertake to write to the noble Lord, Lord Dholakia, in detail in response to his question on the IPCC, but it is my understanding that the IPCC will not oversee the juxtaposed controls. I shall of course need to ask my officials to ensure that that is the case.

That answers most of the main points but, as I said earlier, I would be more than happy to flesh out some more of the detail and specifics, particularly in relation to the pertinent questions posed by the noble Lord, Lord Avebury.

On Question, Motion agreed to.