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Nationality, Immigration and Asylum Act 2002 (Juxtaposed Controls) (Amendment) Order 2011

Volume 729: debated on Tuesday 12 July 2011

Considered in Grand Committee

Moved By

That the Grand Committee do report to the House that it has considered the Nationality, Immigration and Asylum Act 2002 (Juxtaposed Controls) (Amendment) Order 2011.

Relevant document: 23rd Report from the Joint Committee on Statutory Instruments.

My Lords, I shall also speak to the Immigration (Provision of Physical Data) (Amendment) Regulations 2011.

We are committed to delivering a safe and secure set of Olympic and Paralympic Games in 2012. As part of this pledge the UK Border Agency will operate a proportionate level of its usual security checks on those taking part, supporting and helping to deliver the Olympic and Paralympic Games, who are commonly collectively referred to as Games family members. Games family members are athletes, coaches, support staff, umpires, technical staff, media personnel and other individuals associated with the Games. The regulations and order ensure that the UK Border Agency can indeed operate a proportionate level of its usual security checks on Games family members by amending respectively the Immigration (Provision of Physical Data) Regulations 2006 and the Nationality, Immigration and Asylum Act 2002 (Juxtaposed Controls) Order 2003.

Before I set out why amendments to the 2006 regulations and 2003 order are required, perhaps I may provide your Lordships with some information about the UK Border Agency’s current use of fingerprints and facial images and the UK’s juxtaposed controls, and also perhaps ask for your Lordships’ patience, because what I have to say is quite detailed and of necessity rather lengthy.

Since 2008, aside from minor exceptions visa nationals have been obliged to provide their fingerprints and facial images when applying for a visa. The collected fingerprints are checked against government databases. Since November 2009 the UK Border Agency has checked the fingerprints of holders of UK-issued biometric visas, entry clearances and biometric residence permits at the UK border to be sure that the passenger seeking entry is the same person who made the application for which the biometrics were collected. The UK Border Agency also uses facial images to facilitate the secure entry of low-risk categories of passengers in to the UK via automated gates, easing their passage through the UK border and allowing agency staff to concentrate on higher-risk categories of passengers.

The agency also collects the fingerprints and facial images of persons already in the UK when they apply for leave to remain in certain categories, where required issuing biometric residence permits and application registration cards. The agency also collects the fingerprints and facial images of persons identified as being illegally present in the country.

By February 2011 the UK Border Agency and its partners have enrolled 8.5 million fingerprints, allowing the agency to match 50,000 people to previous immigration and asylum applications made in the UK and identify more than 6,500 people swapping their biographical details. The UK Border Agency’s use of fingerprints and facial images is therefore vital to assuring individuals’ identities, identifying fraud and securing the UK border.

Now, perhaps I may give some background on the UK’s juxtaposed immigration controls and why they are essential. The juxtaposed controls were first set up in respect of Eurotunnel for shuttle trains operating between Coquelles and Cheriton in 1994. They were then extended to Eurostar terminals in France and Belgium, in June 2001 and October 2004 respectively, to reduce the number of people arriving at Waterloo with inadequate travel documents. Then, in 2004, as part of the agreement to close the Sangatte Red Cross Centre, France agreed to allow the controls to be extended to cover Calais and other French sea ports serving Dover. These arrangements have allowed the UK to shift immigration controls that were historically operated in south-east England to France and Belgium. They have also permitted France and Belgium to operate reciprocal controls in the UK, although the Belgians have not sought to implement any. The French currently operate immigration controls at St Pancras, Ebbsfleet, Ashford, Cheriton and Dover.

The UK’s immigration procedures at the juxtaposed controls complement the immigration procedures of France and Belgium—both part of the Schengen area—and occur just before the passengers depart on the final stage of their journey to the UK. Individuals travelling to the UK via our juxtaposed controls have to seek permission to enter the UK at those juxtaposed controls rather than on arrival in the UK; those requiring leave to enter the UK, such as visa nationals, make their applications to UK Border Agency officers within the control zones of the ports.

The UK currently operates immigration controls in the French channel ports of Calais, Coquelles, Dunkirk and at Eurostar terminals at Calais-Fréthun, Paris-Gare du Nord, Lille and Brussels-Gare du Midi. We are able to exercise full examination powers at all the juxtaposed controls. Additionally, in Coquelles, UK authorities may undertake frontier controls, including customs, health, veterinary and other checks. The juxtaposed controls are vital to UK immigration procedures by allowing us to prevent inadmissible individuals arriving in the UK.

Now let me explain why the 2011 regulations and 2003 order are necessary. Games family members will be required to obtain accreditation for the Olympic or Paralympic Games before participating and will undergo a series of biographical security checks undertaken by the Home Office prior to being granted accreditation and receiving an Olympic or Paralympic identity and accreditation card. Due to commitments given as part of the host city contract for the Games, approximately 20,000 visa national Games family members who would normally require a visa to enter the UK and be required to supply their fingerprints and facial image as part of the visa application process will be able to use their Olympic or Paralympic identity and accreditation card in lieu of a visa during the accreditation period of the Games from 30 March 2012 to 8 November 2012. They will therefore not need to apply for a visa or provide their fingerprints and facial images to the UK Border Agency prior to travelling to the UK, thereby bypassing the fingerprint checks of the visa application process. The UK Border Agency therefore needs to be able to collect and check visa national Games family members’ fingerprints and facial images in the UK and at its juxtaposed controls to operate a proportionate level of its usual security checks on this group of people during the Games.

The UK Border Agency’s current powers to collect fingerprints and facial images in the UK and at our juxtaposed controls are limited and insufficient to collect such biometrics. The agency therefore requires a new power to enable their collection. The 2011 regulations provide this power by providing for the collection of a visa national Games family member’s fingerprints and facial image when they make an application for leave to enter or remain in the UK during the accreditation period of the Games. The 2011 order provides for the collection when a visa national Games family member makes a leave to enter application, as described by Regulation 2(c) of the 2011 regulations, at our juxtaposed controls in the ports of Calais, Boulogne and Dunkirk.

A similar amendment will be made in autumn 2011 to the Channel Tunnel (International Arrangements) Order 1993 and Channel Tunnel (Miscellaneous Provisions) Order 1994 allowing for the same type of collection at our juxtaposed controls at the Channel Tunnel terminal at Coquelles and at Eurostar terminals in Calais-Fréthun, Lille, Paris-Gare du Nord and Brussels-Gare du Midi. All nationals except British citizens, nationals of other European Economic Area countries, those with a right of abode or who are otherwise exempt from immigration control, are required to apply for leave lawfully to enter or stay in the UK. They seek such leave by either applying for leave to enter on arrival to a UK Border Agency officer at the border controls of UK ports, in the UK control zones of the UK’s juxtaposed controls, or if they are already in the UK by making an application for leave to remain.

Linking the collection to an application for leave to enter or remain is therefore the most effective way for the UK Border Agency to collect visa national Games family members’ fingerprints and facial images. In reality the UK Border Agency will only use the 2011 regulations and 2011 order to collect the fingerprints and facial images of visa national Games family members that it does not already hold. Those who are identified as having previously provided their fingerprints and facial images to the UK Border Agency will not have them collected again on arrival in the UK or at the UK’s juxtaposed controls. I hope that noble Lords will unite with me to support these provisions, which will help to deliver a safe and secure set of Olympic and Paralympic Games.

My Lords, we are very grateful to the Minister for his careful explanation of the provisions of these statutory instruments, which deal with the immigration arrangements for the 22,000 expected Olympic and Paralympic accredited contestants and their so-called family members, the categories of which he has enumerated, who will be arriving in the UK during the period from March to November 2012. I just want to be absolutely clear that Games family members actually include the family of the contestants. I should be grateful if the Minister will say when he replies that that is so, and that contestants can bring a spouse and children under these arrangements.

As the Minister has explained, the accreditation is by means of a card issued by the International Olympic Committee and the International Paralympic Committee through their contractor ATOS, but the necessary security and immigration checks are to be conducted by UKBA. They will know whether an applicant is recorded on their system as having ever been in breach of our immigration rules, and I ask my noble friend what they will do if a GFM—or, even more sensitive, an athlete—is flagged up by this check. What other checks will the UKBA undertake to confirm that an applicant for accreditation is not a threat to security or a person whose presence in the country would not be conducive to the public good?

Athletes and GFMs who are visa nationals and in possession of an accreditation card will not generally need a visa to enter the UK, as the Minister has explained; but according to the Explanatory Memorandum, there are 2,000 who will still have to apply for a visa in their countries of origin. Will the Minister explain who are these people, and is the position absolutely clear to them, so that we do not get them turning up at a port of entry thinking that they can get in with just the accreditation card? For the remaining 20,000 visa national athletes and GFMs, the accreditation card allows the holder to enter the UK without a visa but these statutory instruments, as the Minister has explained, permit the UKBA to take their biometrics at the port of entry instead of in the country of origin as would normally be the case. That comes into operation at the beginning of the period on 12 March next year.

There may still be some customer resistance to giving biometrics at the port of entry when the Government say that they are facilitating the entry of Olympians and their entourages, even though LOCOG says that it does not object to the process provided that it is communicated very clearly to the applicants in advance. I respectfully suggest that LOCOG cannot be certain that people will not still complain, but there might be one way of reducing the numbers affected. There is a special visa to be created which allows for a longer stay, enabling the contestants and GFMs to come here in advance for training and acclimatisation. Applicants will then be asked to give their biometrics overseas, as non-Olympian visa nationals already have to do. The Immigration Law Practitioners’ Association has suggested that the uptake would be increased if the special visas were free, but the UKBA has not taken up the idea. What is being charged for the extended visas, and has any estimate been made of the extra spending that would be generated in the UK by making the visas free, to offset the loss of revenue that would arise from waiving the fees?

Next, what will the procedure be if a visa national contestant or other GFM who does not obtain a concession visa shows up on the biometric checks at the port of entry, for example as a person who has overstayed in the past? There should not be many of those because checks will have been undertaken in advance when they received their accreditation. However, if some do slip through and are only detected at the port of entry, are they detained or removed, or is action suspended until after they have finished competing in the Games? Will there be any difference in the treatment of an actual competitor and a member of a competitor’s family or entourage? When a person applies for a visa they know if they are accepted or refused before they travel, but there could be an unpleasant surprise awaiting a few people upon arrival at Heathrow.

Speaking of Heathrow, I wonder if the UKBA thought it necessary to designate that airport as the main Olympic entry point? It is already the busiest of the UK’s airports and can be a real nightmare for travellers from time to time. The Piccadilly line into central London is grossly overcrowded and if Olympians are forced onto the more expensive Heathrow Express, they may suffer problems if it does not have any special arrangements to offer concessions to Olympians or to cope with the extra traffic.

Why does this order not contain all the juxtaposed controls? Why is it necessary to have this order presented now, and another in the autumn dealing with some of the other juxtaposed controls?

The Explanatory Memorandum states in paragraph 7.6 that if a visa national GFM was not required to provide biometrics on arrival, they would have to do so when applying for leave to remain within the Olympic period. What are the categories of people to whom this would apply, and if it is intended for those who originally entered before the biometric capture scheme came into operation, why do we not have one rule for all visa nationals asking for leave to remain after such a long period? I believe the Minister implied as much during his introductory speech.

My Lords, I too would like to thank the Minister for the detailed introduction he gave to the regulations. It was interesting to hear the full explanation, particularly regarding juxtaposed controls—touching places I had never heard of, but that I am sure will feature in future discussions now that we know about them.

I understand why this order is necessary, and the noble Lord, Lord Avebury, has covered some of the ground on this. However, I also have some questions about the way in which this was actually brought into being and some of the points raised within the document. I found the document very difficult to read and the definitions a little confusing and elastic—they seem to slip around a little. For example, the Explanatory Memorandum talks about 20,000 people being involved when in fact the impact assessment gives a range of 20,000 to 25,000, with a median point of 22,500. If we are talking about 25,000 people all the proportions and timings will be changed substantially.

The first point I was confused about—the noble Lord, Lord Avebury, also raised this—is that in paragraph 4.2 of the memorandum there is a statement that persons “would usually” have,

“to apply for a visa”.

However, it does not explain why the GFM personnel get ID cards. Did I hear the Minister say that they would also have Home Office involvement at that stage, in terms of taking some of the demographic details which are being talked about? What exactly is the meaning of “usually” in that circumstance? Are there situations when visas would not be so required or, indeed, when the visa would be required but the biometrics would not be taken? “Usually” has no definitional point attached to it and it is not clear who exactly is being talked about there. The noble Lord, Lord Avebury, also asked about charges and it is also not at all clear whether charges are being made in any or all of these circumstances. I would be grateful if the Minister could give some more information about that.

My next point is also on paragraph 4.2. The wording in the documentation suggests that Her Majesty’s Government signed an agreement so that,

“in specified circumstances there would be no requirement for certain holders of,

ID cards,

“to apply for a visa before travelling to the UK”.

That seemed a very straightforward statement. Yet we now understand that it is a bit of a catch because although anybody with a GFM does not need to apply for a visa before travelling to the UK, that does not mean that they will not be required to provide the usual demographic data that are being talked about—the fingerprints and the photographic information. What are these specified circumstances that Her Majesty’s Government are using for this? It seems that we have signed one thing but are doing another. I would be interested to hear comments on that.

The process under which the regulations were consulted upon also seems rather odd. The statement we have been given is that it was thought necessary only to consult LOCOG. As the noble Lord, Lord Avebury, said, it has not objected provided that everybody involved in this knows about it. It seems extraordinary to introduce such a wide-ranging requirement on what might be 25,000 people without having some sense of whether they are going to object to it. Also, although LOCOG obviously has a key part to play in this, it is not the only body involved. There might have been some attempt made by the Home Office to consult more widely, particularly with the Olympic organisations in the various countries concerned.

Another point I want to make is, again, about the process. The documentation that we have been given suggests that the choices before Ministers when they decided to go ahead on this was either to do nothing— in a sense, to rely on such processes as are currently in place for awarding the GFM and not to do anything for those who had been promised by Her Majesty’s Government that there would be no requirement for ID card holders to apply for a visa before travelling to the UK—or to amend the legislation. That rather stark choice does not seem to involve the many other possibilities that could have been taken into account at that stage, including working more closely with LOCOG in making sure that these things are done more properly.

My final point on this issue is that there is mention in the documentation about a possible review but no specification seems to be given about whether a review will in fact be taken. Given that we have the Commonwealth Games coming up very shortly, there would be lessons to be learnt about this process and it might be sensible for the Home Office to carry out a review. Again, it would be helpful if the Minister could explain what is involved in that. In concluding, I thank the Minister very much for his initial comments and look forward to hearing his response. We will of course be back in the autumn to discuss this again, when we do the Channel Tunnel orders.

My Lords, I thank both my noble friend Lord Avebury and the noble Lord, Lord Stevenson of Balmacara, for their questions, which I will now do my best to respond to. First, my noble friend asked whether Games family members will be able to bring members of their families. Certain Games family members will be eligible to bring an accompanying guest as a result of their accreditation, and that guest can be a family relative. The guest will receive his or her own accreditation card and will need to meet the requirements of the Immigration Rules in order to enter the country.

My noble friend asked how accreditation applications will be assessed. Proposals for the policy and process to decide accreditation applications for both Games have been signed off by the Home Secretary. A detailed refusals policy, including criminality thresholds, has been agreed by the Olympic accreditation decision board following consultation with the police, security and intelligence agencies, the Foreign and Commonwealth Office and the Government Olympic Executive. Each application will be determined on its own merits. Particularly complex or sensitive cases will be reviewed at the Olympic accreditation decision board. Police, immigration and counterterrorism databases will be checked.

My noble friend and the noble Lord, Lord Stevenson, asked about only certain Games family members being able to use their accreditation card in lieu of a visa, and who will and who will not. Each Games family member will be accredited under a specific accreditation category code. The International Olympic Committee advises for each Games on which of these codes the host-city country must confer visa-free access to and on which it is not so obliged. The UKBA is keeping under review the codes that do not confer visa-free access. The types of persons to whom the UK Border Agency is not obliged to grant visa-free access include: additional security personnel, such as fire, police and ambulance services; additional members of the entourages and alternate or reservist athletes; and individuals invited by LOCOG, such as domestic dignitaries or national partners. These people will be told by LOCOG that they need to get a visa before they travel to the United Kingdom.

My noble friend asked about delays at the border, which certainly is a valid concern. We are mitigating the risk of delays by reducing the amount of fingerprints and facial images we need to collect at the UK border by offering a special Olympic visit visa to Games family members, which is currently available, and by seeking to collect visa national Games family members’ fingerprints and facial images on a voluntary basis overseas and in the UK prior to the Games. We are also considering the issue he raised about the visa being issued for free.

My noble friend asked what happens if a GFM refuses to give his fingerprints and facial image. If a visa national GFM refuses to provide fingerprints and a facial image we will make every effort to satisfy ourselves about their identity. If, despite these efforts, we are unable to satisfy ourselves about their identities, we will have to refuse their application for leave to enter the UK. Clearly, if it is a very well-known athlete the process will be made a lot easier. My noble friend also asked what criteria we will use to judge each case on its merits, and the answer is whether we are satisfied of the identity. That is the critical thing. If an individual refuses to provide fingerprints or a facial image it gives rise to the question: what are they trying to hide? I think that my earlier answer goes to that point as well.

My noble friend also asked why we are not dealing with the Channel Tunnel orders now alongside the statutory instruments. We are in the process of consultation with the relevant Belgian authorities about collection at Brussels-Gare du Midi and wish to amend both Channel Tunnel orders via a single amendment order as opposed to two orders to reduce the amount of legislation, and to save preparatory work and parliamentary time. The 2011 regulations are being taken forward now because we need to have secured the legal power to collect the fingerprints and facial images in the UK before procuring the collection equipment and to allow sufficient time to test that equipment.

My noble friend asked about in-country collection circumstances. Visa national GFMs will be advised to use one of the UK’s major ports to enter the UK so that their fingerprints and facial images can be collected when they first arrive here. A visa national GFM who has not already provided fingerprints and a facial image to the UK Border Agency may arrive at a small airfield. If the UKBA is unable to deploy to meet the arriving person, officers will grant the GFM 48 hours’ leave to enter and inform them that they are required to apply for leave to remain within 48 hours at a specific UKBA office.

My noble friend asked about the use of Heathrow. Heathrow Airport has the infrastructure to deal with and process the large volume of Games family members. Therefore, it is best equipped to cope with the Games family members when they arrive.

The noble Lord, Lord Stevenson, asked about the requirements for biometric data now that we have signed an agreement not to request visas. Waiving the visa requirement did not waive the UKBA’s right to legislate to take fingerprints and facial images. The waiving of the visa requirement was agreed to facilitate Games family members’ entry into the UK, by removing the requirement from them to obtain permission to enter the UK prior to travelling. LOCOG and the International Olympic Committee are aware of our policy to collect visa national Games family members’ fingerprints and facial images and are content with it so long as the collection process is clearly communicated in advance.

Our overall aim is to deliver a safe and secure Olympic and Paralympic Games. These statutory instruments will help us to do this by enabling the UK Border Agency to maintain a proportionate level of its usual security checks.

First, I apologise that I was working on other matters Olympic in Stratford and therefore missed the opening remarks. I will place on record, as chairman of the British Olympic Association and as a member of the European Olympic Committee executive, the thanks of many national Olympic committees—205 committees will be coming here—for the professional and courteous way in which the Government, in particular my colleagues in the Home Office, have been receptive to the many concerns that have been raised, particularly about access for Olympic family members to the Games. I will place on record the thanks of all sides of the House and Committee for the hard work that has gone into this. It is of enormous importance that there is smooth entry, in particular for the athletes and their immediate entourage, to ensure a successful Games.

My Lords, I am grateful to my noble friend for raising that point. I share his gratitude to a lot of people who are working very hard to make these Games a success. These statutory instruments will help us to deliver a safe and secure Games by enabling the UK Border Agency to maintain a proportionate level of its usual security checks on visa national Games family members seeking to enter the UK. I commend the order.

Motion agreed.