rose to move, That the Grand Committee do report to the House that it has considered the Immigration (Biometric Registration) (Civil Penalty Code of Practice) Order 2008.

The noble Lord said: I shall take the two measures together. The UK Borders Act 2007 introduced powers for the Secretary of State to make regulations to issue identity cards to foreign nationals who are subject to immigration control. The order and the regulations will enable the UK Border Agency to do that. They are intended to enable the introduction of the first identity cards to be issued to foreign nationals, subject to immigration control, who are staying in the United Kingdom for more than six months.

The first identity cards will be issued from 25 November 2008 to those who are granted limited leave to remain as certain types of students and those who are granted limited leave to remain as spouses, civil partners or unmarried couples under the Immigration Rules. The cards will confirm the holder’s immigration status and entitlements to work and to access public funds in the United Kingdom. The identity card will provide foreign nationals who are subject to immigration control with a secure and reliable immigration document. To achieve this, we need to make regulations under the biometric registration powers contained in the UK Borders Act 2007, allowing the UK Border Agency to enrol biometric features. These will be a photograph and 10 fingerprints. Taking the person’s fingerprints will enable us to fix a person to a single identity and make it possible to verify that identity against centrally held records. At present, around 50 different documents are issued to foreign nationals granted leave to enter or remain in the United Kingdom; I have to say that I was rather surprised by that. This makes it difficult for employers and service providers to check whether a person is entitled to work in the UK before they give them a job or allow them to access public funds.

Identity cards are designed to make it easier for foreign nationals to demonstrate that they are entitled to live and work in the UK. We consider this essential as part of our efforts to tackle illegal working and immigration fraud. In addition, these regulations will be the way that the UK complies with a new European regulation, EC 380/2008, which requires the residence permits that grant leave to remain to be in the form of a card containing the biometric features of the holder.

The identity cards will be credit-card sized and will contain the holder’s unique biometric features, including a photograph and two fingerprints. On the face of the card will be the holder’s photograph and his biographical information, including his name, immigration status, nationality, date and place of birth, and gender. This information will also be stored in a secure embedded microchip, along with the two fingerprints. I have a copy of such a card here, which noble Lords can look at afterwards. I do not think that it is for any specific person. No, it is not.

In April this year, noble Lords kindly approved the Immigration (Biometric Registration) (Pilot) Regulations 2008, which enabled the UK Border Agency to test the biometric enrolment processes and technologies by registering the fingerprints and photographs of a small group of foreign nationals applying for leave to remain. The pilot started on 28 April and since that date noble Lords may be interested to learn that we have enrolled more than 7,500 biometric records and had around 2,000 responses to our applicant survey, with the vast majority of responses being positive.

The pilot enrolment processes and technologies are operating smoothly. Given our experiences with the pilot so far, we expect the technologies and our processes to continue to deliver our business needs when we start to issue identity cards from the end of November 2008. Identity cards are being rolled out incrementally, starting with applicants granted limited leave to remain in certain types of student categories and as spouses, civil partners or unmarried couples under the Immigration Rules. We selected these two categories based on risk and efficiency.

Those who are required to register their biometric identifiers will be able to enrol them at any one of the network of offices around the UK. From November 2008, there will be at least six enrolment venues sited across the country, including locations in Birmingham, Cardiff, Croydon, Glasgow, Liverpool and Sheffield. An additional centre will come on line in the following months in Northern Ireland.

Foreign nationals whose applications are successful will be issued with an identity card that will serve as their document granting them leave. We will not place any vignettes, stickers or stamps within the applicant’s passport.

I shall briefly set out to your Lordships the main differences between these regulations and the pilot regulations. These regulations will apply to foreign nationals in the specified student or family categories making an application from anywhere in the UK, unlike the pilot, which applied only to those making “in person” applications at the Croydon Public Enquiry Office or, if applying for leave by post, those living within a London postcode address. Obligations will be placed on identity card holders to notify the Secretary of State when their circumstances change and to apply for a replacement card in situations when it is cancelled.

We need to define the circumstances when we will require the identity cards for foreign nationals to be used. These regulations impose requirements on holders of the identity cards to provide their cards as part of an immigration process or procedure, where the holder attends a centre to take the “Life in the UK” test and to provide them to an employer. We are also introducing two additional sanctions, which were excluded from the biometric registration pilot. These are a power to curtail or cancel leave and a power to issue a civil penalty notice against persons who fail to comply with the requirements included in these regulations. The bulk of the regulations were developed from the earlier biometric registration pilot regulations. I am happy to answer specific questions about them if Members of the Committee wish to discuss such issues.

The order will bring into force the draft code of practice concerning the sanctions for non-compliance with the biometric registration regulations, which was laid before Parliament on 11 June 2008. The code sets out how the sanctions, which the Secretary of State may impose, will be applied to those who fail to comply with requirements of the biometric registration regulations. An early version of the draft code was published in February 2008 and we consulted the public about its contents. The version before the Committee reflects many of the helpful comments made as part of the consultation process.

We intend the code to work in the following way. Where a person fails to comply with a biometric registration requirement, a sanction may be imposed. There are two categories of requirements, previously known as primary and secondary requirements, which, following the consultation exercise, are now termed application and maintenance requirements. The application requirements relate to the need for foreign nationals to apply for an identity card. Failure to comply with these requirements will attract a more severe sanction than failing to comply with a maintenance requirement, as we regard the requirement for foreign nationals to apply for an identity card as a fundamental step towards protecting our border. The maintenance requirements mainly apply to those who have an identity card and need to keep their records up to date, or they concern the production of the card, essentially for immigration purposes and verification that the person producing the card is the rightful holder. Where a foreign national has existing leave and fails to comply with a requirement, we will normally issue a civil penalty notice to ensure compliance with the requirements rather than curtail or cancel the person’s leave.

As with the biometric registration pilot regulations, where a person is applying for leave and is required to apply for an identity card, we will normally disregard or refuse their immigration application unless they comply with the requirement. However, any decision to refuse, curtail or cancel leave is subject to the United Kingdom’s obligations under the Human Rights Act 1998 and international conventions, such as the 1951 Refugee Convention.

Turning specifically to the civil penalty regime, copies of the sanctions table were circulated to Committee Members and we have more here. It sets out the levels of financial penalties that may be imposed. At present, the maximum is £1,000, with the starting level at £250 or £125, depending on whether the non-compliance is an application or maintenance requirement. These amounts may be increased where the person continues to fail, or subsequently fails, to comply with requirements made under the regulations up to the maximum statutory penalty allowed. As with other civil penalty regimes operated by the UK Border Agency, a person issued with a civil penalty notice will have a right to object to the Secretary of State and to appeal to the courts against the notice. The result of an objection or an appeal may lead to the penalty notice being cancelled, the amount increased or decreased, or the decision being maintained.

I am pleased to have brought these regulations and order before the Committee today. We believe that they will be a useful tool in tackling illegal migration and other identity and immigration abuses. We consider that they will support those who are staying in the UK legally and will form part of our wider national identity scheme. These regulations and the order are the first to enable the rollout of identity cards. When we intend to broaden the categories of foreign nationals who are required to apply for an identity card, we will return to Parliament and seek further approval. That is what the regulations and order seek to achieve. I beg to move.

Moved, That the Grand Committee do report to the House that it has considered the Immigration (Biometric Registration) (Civil Penalty Code of Practice) Order 2008. 22nd Report from the Joint Committee on Statutory Instruments.—(Lord West of Spithead.)

Once again, I am most grateful to the Minister for his clear statement on the background to the order. He will know that, contrary to statements made by the Prime Minister and, I am sorry to say, in Labour Party leaflets distributed in the Crewe and Nantwich by-election, Her Majesty’s Opposition support, in principle, the issuing of biometric information documents to foreign nationals. We take the view that these documents can sensibly be used as one weapon in helping to secure our borders.

Judging from their recent statements, the Liberal Democrats appear not to want to collect biometric data from anyone at all, and I shall be interested to hear the comments of the noble Lord, Lord Avebury, on this matter. While the Government want, in due course, to collect these data from everyone, we in the Official Opposition take what is in our view the sensible middle ground: that the data should be collected when they contribute to the integrity and security of our border and the nation.

I know that the Conservative Party has a different approach to this matter because it supports the identity cards that we are now discussing and is opposed to the use of the national identity card. That seems to me wholly incongruous and inconsistent, as I shall seek to explain.

These orders bring into force identity cards for all foreign nationals, making them a precursor to the comprehensive national identity card scheme, which the Government plan later for everyone legally resident in the UK and which is now being rolled out in accordance with the National Identity Scheme Delivery Plan, published in March. In fact, the BIDs will be designated as ID cards under Section 4 of the Identity Cards Act 2006, as foreshadowed in the Explanatory Memorandum. No doubt the Government calculated that very few people would object to this proposal, as the Joint Committee on Statutory Instruments did not draw attention to it and the consultation on the code of practice attracted very few responses—just a dozen, I think.

The pilot regulations, which these regulations supersede, also aroused very little debate, and no one is likely to quarrel with the objective of making it more difficult for unlawful migrants to enter or remain in the UK. So far as I am aware, even the NO2ID campaign, the leading opponents of identity cards, has had nothing to say about their application to people with limited leave to remain, yet would it not seem discriminatory to argue that biometric ID cards are all well and good for migrants but not for the native population? When this scheme is in full operation, there is a danger, as Liberty pointed out when we dealt with the parent Act, that it will be predominantly BME people who are required to produce the BID to satisfy immigration officers that they are legitimately residing in the UK.

Already, in the periodic drives to pick up suspected illegal entrants, far greater numbers are questioned than are subsequently arrested and deported. The cards might encourage the UKBA to undertake more fishing expeditions in which they inevitably pick up a majority of lawful BME residents, undermining the confidence of those people in our claim to be a racially equal society. The survey conducted as part of the impact assessment showed a perception that the cards would lead to the targeting of people from the subcontinent and Africa and states,

“potentially causing an adverse impact on community relations”.

On the other hand, it could be that as institutions of higher education and employers are required to check the validity of a student’s or worker’s leave to remain, the UKBA would have less reason to examine the migrants directly, but would rely on the sponsors, who, as the Minister explained, face civil penalties if they fail to make the prescribed checks.

We note that the intention is to introduce the cards for foreign nationals incrementally, starting with students, their spouses and their dependants, amounting to some 163,000 decisions a year in this order. As we understand it, within three years, all who apply successfully for an extension of leave to remain will receive a card, and the Minister will perhaps be able to let us have that number too.

Could he also tell us what the procedure will be if no decision on an application for extension of leave to remain has been made by the date on which a person's existing leave expires, and how many people that would have applied to if the scheme had been in operation in 2007? While the application is under consideration, and the identity card shows that a person’s existing leave to remain has expired, as it would by reference to the information it gives under Regulation 15(1)(h) of the biometric registration regulations, the holder would be in danger of being picked up as an overstayer whenever he produced it to a UKBA official.

That is only one of the traps for the unwary migrant in these proposals. Under Section 16 of the UK Borders Act 2007, the Secretary of State has power to order any person, with limited leave to remain, to reside at a given address. If that person moves and for any reason fails to notify the Secretary of State, as he is required to do under Regulation 18(d), the Secretary of State may cancel his leave to remain, and he may be removed or, if the Secretary of State is in a good mood, he might simply face a civil penalty.

Will foreign nationals now be legally obliged to inform the Secretary of State every time they change circumstances, as the Minister implied in his introduction, even if they would still be qualified to enter or remain under the paragraph of the rules under which they were given leave to enter or remain? For instance, would the students who are to be covered under this order have to notify the Secretary of State every time they change from one faculty to another or from one college to another? The Minister said that we need to define very closely the changes in circumstances that need to be notified to the Secretary of State. I examined the Explanatory Memorandum closely, and I was none the wiser on the questions I have just put to the Minister. When the BIDs are extended to workers admitted under the points-based system, what are the implications for employers who unwittingly take on or continue to employ a foreign worker with limited leave to remain who has failed to notify the UKBA of a change in his circumstances? How will the UKBA inform migrants, universities, employers and others who may have new duties of what they have to do and what information they have to provide?

Let me give one example of the sort of difficulty that may arise. If it had not been for the recent case of GO and others v the Secretary of State, in which the Court of Appeal ruled that a student could change from one course to another without invalidating her leave to remain, switching courses might have amounted to a change in circumstances falling within Regulation 18(d) requiring the student to notify the Secretary of State. May I assume that as a result of that case, the student who changes his course does not have an obligation to notify the Secretary of State of that fact?

Under Regulation 7, children under the age of 18 are to provide fingerprints and facial photographs. With no lower limit on the age given in the order, the only condition is that a responsible adult, such as the parent or guardian, must be present when the biometric information is being obtained. In the Explanatory Memorandum on the code of practice, there are three paragraphs referring to compliance with EU regulations on a uniform format for residence permits for third-country nationals, to be phased in over two to three years from the agreement of technical standards. The impact assessment states that one of the benefits is that the cards are interoperable with those in place across the whole of the European Union. Surely this has to mean that the technical standards have already been agreed, so that they can be applied to the documents covered by this order. I would be grateful if the Minister could give us an assurance on that point.

We have opted in to agreements on residence permits in the EU, but not on visas, where the European Parliament adopted a report on 10 July dealing with the collection of biometric data from applicants for Schengen visas. Although we are not in the Schengen system, the rules for collection and storage of biometric information for visas obviously should be aligned with those for residence permits, even if they are dealt with under different provisions of European legislation. My noble friend Lady Ludford is the European Parliament rapporteur on the biometric visa system, and she tells me that they have been unable to reach agreement with the Council on the fingerprinting and photographing of children under the age of 16. The Council wants biometric data to be taken from children over five, while the European Parliament is saying that 12 should be the minimum age.

Meanwhile, as was mentioned by the Minister, the Council has already provided, in Regulation 380/2008, that for residence permits, children are to be fingerprinted from at least six onwards and even younger at the discretion of member states. In our case, the impact assessment seems to imply, on page 13, that up to the age of six, children's biometrics will be confined to a digitalised photograph, although the order itself allows both photographs and fingerprints to be taken from babies. Would the Minister please clarify the Government's intentions on age? Whatever age is chosen as the minimum, do they envisage that, for children, the biometrics will last throughout their lives or will they have to renew them periodically, and if so how often? Is the renewal of children’s biometrics built into the estimated £187.6 million present value costs of the scheme over the first 10 years given on page 14 of the impact assessment?

My noble friend Mr Tom Brake got no answer in another place to his question about the calculated savings from the whole scheme of £29.8 million over 10 years because the Minister, Meg Hillier, said that she had already explained that figure, when all that she had actually said was that it was “based on economic evidence”. It would be useful if the Minister could give us a bit more information about how this saving was calculated than the Commons managed to extract from Ms Hillier when they discussed this matter. If the Minister wishes to place the information in the Library of the House rather than going into it in detail this afternoon, that will be perfectly acceptable.

In the impact assessment, we are told about the enrolment pilot, to which the Minister also referred, being conducted on spouses, civil partners and students applying for extensions of their leave to remain to pressure-test the enrolment processes and technology. We noted that the time needed to take fingerprints was less than expected, and we would like to know whether it enables the UKBA to verify or to amend the paper calculation of the operational costs. What was the practice on recording the applicants' children's biometrics in the pilot, and although only a vignette was issued to the applicants, and not the card now provided for in these regulations, will the people who have been through the pilot—the Minister mentioned 7,500 people—now receive cards using the biometrics already obtained?

Although we are not in Schengen, is it the Government’s intention to comply with European decisions on the biometric visa system? If so, or if our own visa system is to impose similar requirements, will everybody entering the UK legitimately from outside the EEA area have had their biometrics taken already? Will there be arrangements to transfer the electronic images of fingerprints and facial images taken for the purposes of granting the visa in the country of origin to the UKBA so that they can be incorporated in the BID so that new biometrics do not have to be taken once the migrant reaches the United Kingdom?

Finally, in Committee on the then UK Borders Bill, we suggested that an independent monitor be appointed to oversee the rollout and particularly to ensure compliance with discrimination legislation. The Information Commissioner will have the responsibility of ensuring that the personal biometric information collected from the millions of persons granted limited leave to remain is collected, stored, transferred and processed in accordance with the Data Protection Act and used only for the purposes specified by Parliament. That is a huge addition to his responsibilities. However, in view of the concerns expressed by Liberty, ILPA and others and the need to ensure that we are in step with the rest of the EU, as well as the very significant cost uncertainties arising, the appointment of an independent monitor is a necessary and prudent safeguard.

I did not expect, after my reference to the noble Lord, Lord Avebury, that we would get anything but his usual detailed and courteous explanation of why we should see the error of our ways. For that the Committee can be grateful, but I must emphasise that there are fundamental differences between our parties on this one. Our position, as I set out earlier, is that we support these measures for this limited objective. When we come to deal with the matter of ID cards later, we will have a very robust attitude, but for the moment we support the Government on these measures.

I thank noble Lords for the useful input. I thank the noble Viscount for his support on this measure. I am sure that we will have a much longer debate on the more general question of ID cards, which is still to come.

It is important to say that we regard the integrity and security of our border and nation extremely seriously. In general terms, what has come over from the pilot study and from all our consultation is that the people whom we have talked to, including students and spouses, have welcomed this and found it very useful. I mentioned there being 50 different forms; this is something that has utility for them.

On whether this covers EU nationals, no, it does not. EU nationals are completely separate. They are not part of this equation. The noble Lord made a point about this being something that would affect only BMEs and that there were real dangers of this causing major problems. These people cannot be stopped by the police and asked to present their identity card; that is not how these things work. They will use them when they do specific things, make claims for specific things and that sort of thing. There is absolutely nothing within this to say that people have to carry these things round and that the police can stop them and say, “Show me your identity card”. The fear that we will cause a division in society is just not real. I do not believe that that will be the case at all.

As a practical precaution, immigrants are likely to carry the card around because if somebody asks for it and they cannot produce it they will have to turn up at a police station, which will cause them a lot of additional problems. So most people will carry the card around with them.

They may carry it because they feel that it is useful to have, but the police cannot stop someone and ask to see his identity card. They are not allowed to do that; that is not part of what we are proposing.

I did not say that. If somebody is stopped for any other purpose and he has a black or dark face, he will be asked to produce the card to show that he is legitimately in the United Kingdom.

I do not believe that that is the case. That is not how the police would behave. They are not allowed to ask for that. When they stop and search, they cannot ask somebody to provide even his name and address, let alone an ID card. It is more an apparent than a real concern.

The noble Lord raised a number of questions regarding children. We anticipate that it would usually be the child’s parent who accompanied him in these circumstances. If that were not possible, someone over the age of 18, who we would expect to have a connection with the child, may take responsibility. It may be someone from the school or the place where the person was studying.

We are committed to keeping children safe. There is no doubt that by their having a clear identity we are able to keep them much safer. It is children who have no clear identity, or multiple identities, who are trafficked across borders. An accurate identity makes them safer.

As regards biometrics for young children, children aged six years and under will be required to provide only a facial image, which is similar to the requirement for those who are physically incapable of providing fingerprints. On updating biometrics as children become older, current regulations stipulate that a child’s card will expire after five years at the latest. After that, another application will have to be made because dramatic changes take place when children are at that age.

The noble Lord asked whether those who applied under the pilot will receive a card. The answer is no. Those who apply under the pilot are issued with a vignette and we will not now send them a card. Those who apply for leave in these categories after November will be issued with a card.

I am conscious that a large number of questions were asked. I am afraid that I might miss some of them in my reply. We will certainly check in Hansard and make sure that we reply to them in writing.

I asked my team how much the cards will cost. The best figure that I have is that it will probably cost us more than £10 million overall over 10 years, the rest being covered by people buying the cards. Part of the cost is the setting-up of the scheme. Once we run on from the 10 years, it will be self-financing. That is just pure cash, but the benefits of the cards are huge. A whole raft of gains makes them worth that amount of money over that period. If that figure is not accurate, I will write to noble Lords.

I know that a number of other points were raised. Unless noble Lords wish me to answer something in particular now, I hope that they will forgive me if I check Hansard and write to them on the specifics.

This is a very sensible move. I am glad that it has been accepted as so by most people. There will be a bigger debate on the ID cards. It is right that there should be some penalty if people do not obey the new law and that they be held if they are meant to have an ID card. I commend the order to the Committee.

On Question, Motion agreed to.