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Nationality, Immigration and Asylum Act 2002 (Authority to Carry) Regulations 2012

Volume 738: debated on Thursday 12 July 2012

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 (Authority to Carry) Regulations 2012.

Relevant document: 1st Report from the Joint Committee on Statutory Instruments.

My Lords, the purpose of the regulations and the Security and Travel Bans Authority to Carry Scheme 2012 is to prevent specific foreign national individuals who pose a terrorist threat flying to the UK. The objective is to enhance the protection of aircraft flying to the UK and to prevent certain individuals doing harm on board the aircraft or on arrival in the United Kingdom.

Aviation remains a target for terrorists. On Christmas Day 2009, we saw an attempted terrorist attack on board an aircraft over Detroit. The recently foiled plot by al-Qaeda in the Arabian Peninsula to repeat that type of attack demonstrates an enduring intent to attack commercial aircraft. This Government gave a commitment in the strategic defence and security review to,

“make changes to pre-departure checks to identify better the people who pose a terrorist threat and prevent them flying to or from UK”.

The provision under which the regulations and the scheme are being made is Section 124 of the Nationality, Immigration and Asylum Act 2002. The regulations and accompanying scheme will, first, require carriers to which the scheme applies to provide advance passenger information to the e-Borders system and seek authority to carry to the UK certain foreign national passengers specified in the scheme before. Secondly, they will make carriers liable to a civil penalty of up to £10,000 if, without reasonable excuse, they carry a passenger without seeking authority or if they carry a passenger for whom that authority was denied.

I do not anticipate the scheme having a dramatic impact on aviation industry operations. Our current estimate is that refusal of authority to carry might occur two or three times a year. Preventing just one terrorist attack must justify its introduction. The scheme will apply to all air carriers operating to the UK issued with an IS72 form. This is a written notice requiring the submission of passenger data to e-Borders. The scheme does not apply to British nationals. It applies to passengers on flights to the UK who are third-country nationals, EEA nationals who have been excluded or deported from the UK because they pose a threat to public security, and individuals who are the subject of an UN or EU terrorist-related travel ban.

Individuals in respect of whom authority to carry will be refused and who would be refused leave to enter the UK are those EEA nationals who are the subjects of travel bans; third-country nationals who have been excluded or deported from the UK on grounds of national security; and third-country nationals who have been or would be refused a visa because of national security. The scheme will not affect the free-movement rights of EAA nationals and carriers will not be required to seek authority to carry in respect of any EEA national exercising those rights.

The regulations and the scheme concern inbound foreign nationals only. The strengthening of pre-departure checks also extends to outbound journeys and the threat posed by British nationals. For outbound journeys, the National Border Targeting Centre will use e-Borders data to alert ports police to intercept any individuals travelling from the UK who pose a terrorist threat and are subject to legal restrictions preventing them from travelling internationally.

There is a power to make directions under the Aviation Security Act 1982 to prevent the boarding of British nationals who are assessed to pose a direct threat of terrorism to aircraft. I commend the order to the Committee.

My Lords, I am grateful to the Minister for that introduction. I have read all the documents about this with considerable interest. Before I comment on the regulations, perhaps I may say that I am also grateful to the Minister for the improvements that appear to have been made to the Eurostar immigration services. I came back yesterday and there seemed to have been some improvements. Much more work has to be done, and I am sure that we will have many more meetings, but it was good.

My concern about this draft regulation is its exact purpose. The second paragraph of the evidence base document which came with the draft regulation states:

“Existing powers are available to direct airlines not to carry a UK national who poses a threat to an aircraft, and to prevent people who pose a terrorist threat”,

within the country. The end of the paragraph says that this provision is to close a gap.

Can the Minister explain whether the real purpose is to prevent people blowing up an aircraft; to prevent them coming here to do nasty things on the ground, so to speak; or whether it is a bit of both? I can totally understand it if the purpose concerns the aircraft—in that respect, it all looks quite reasonable, and I shall come on to some of the detail later. However, if it concerns people coming to the UK generally, presumably it would be possible for them to avoid any problem by travelling across the frontier from the Republic of Ireland to Northern Ireland, or coming in by sea on a ferry, or coming in by train. I think that one of those means is included in these regulations, and I am pleased about that, as it might plug one gap. However, there might be one or two other gaps that should be looked at. Alternatively, we might need to consider whether this is all necessary.

I was interested in the consultation responses. I do not always read consultation responses but there is a long paragraph, in which it says:

“A response was received from a member of the public who was very supportive”.

If only one member of the public was supportive and nobody thought it was a bad idea, does that justify going to all this length? In a telephone conversation, a civil liberties group was also “supportive”. That is good, but to push these as the only two responses to the whole consultation indicates that people either did not understand it, were bored by it or did not think it would do any good anyway. If the Minister has any comments on that, I would be glad to hear them, because one could say that it was a bit of a job creation scheme and not much else.

Paragraph 18 of the Explanatory Memorandum says:

“Carriers will be informed by the Home Office if they do not have authority to carry any of those passengers. Those passengers should not be brought to the UK”.

I think that there is already legislation to enable those who come in to Heathrow or another airport to be turned round and sent away again. If the aim is to avoid terrorists doing bad things in this country as opposed to on an airplane, why do we need this if they can be turned round and sent back anyway without it?

From a practical point of view, if the airlines are happy that they have to send all this information in and the Immigration Service can respond within 15 minutes to a list of several hundred passengers, all I can say is, “Good luck to them”, and I hope that there will be a certain amount of settling-down time before people start sending out lots of fines. Frankly, it looks quite challenging, even if the Home Office’s computers work properly, which I do not think they do all the time.

My final point concerns the evidence base for this. I do not know whether it is a joke or we are supposed to take this seriously, but it talks about “hit” rates and “false positive” assessments, and the “movement search” covering five years of travel using the e-Borders system. It then uses a planning projection that is made by multiplying the result by 300%,

“which allows for a reasonable margin of error and ensures a prudent planning response”.

It goes on to say:

“Where the result is zero, the planning projection is taken to be 3 (as zero cannot be multiplied upwards)”,

which is helpful. I do not know who has produced this but is such a load of rubbish really value for money? “You cannot multiply zero by three”. Perhaps the Minister can suggest to his officials that they think of something better to do because if this is not a job creation scheme, I do not know what is. Apart from that, I will be pleased to hear the Minister’s response to my comments.

I wonder if the Minister can answer a very simple question; if he cannot, perhaps he can write to me. If people arrive here by plane, train or ferry who have not got permission to enter the country, is it possible for the carrier to send them straight back to wherever they came from without them getting any recourse to the immigration procedure?

The Minister has explained the purpose of the regulations, which, as I understand it, is to require carriers to provide advance passenger information and seek authority to carry to this country certain foreign national passengers specified in the scheme. As the Minister has said, the regulations also make carriers liable to a penalty of up to £10,000 if they carry a passenger without seeking authority when required to do so, or if they carry a passenger for whom authority was denied. The people for whom prior authority will be required will be those who pose a known security or immigration control threat, and the documentation indicates that through doing that it seeks to reduce,

“the probability of a terrorist attack on an aircraft bound for the UK”.

As I understand it, the Government’s estimate is that the exercise of this power to refuse a carrier authority to carry a specific passenger will be likely to occur on only a limited number of occasions a year. Of course, that is not the same as the number of times an airline will need to seek authority. Can the Minister say a little more about the process? I take it that it involves the airline providing details of foreign nationals on each flight to the UK before the flight leaves the point of departure—that is, the names of all foreign nationals on that flight—although perhaps the Minister could clarify that. As I understand it, the air carriers involved are likely to be issued with an IS72 form.

And that will be for some or all of their routes. In the hope that it does not breach national security, can the Minister say a little more about the considerations that would determine whether an airline was going to be issued with an IS72 form?

Queries have already been raised about the length of time it will take to give authority, and I appreciate that that is dealt with in the documentation. But what is the maximum length of time it is expected to take for authority to be given one way or the other to an airline? And is one to assume that until that authority has been given or refused, the flight concerned cannot leave its point of departure for the UK?

Finally, I have one question about the fine of up to £10,000. How will the Secretary of State decide what level to impose? Will there be clear criteria laid down which all occupants of the Secretary of State’s position over the years will be required to adhere to? Or will it be an entirely subjective decision with the approach potentially varying from one Secretary of State for the Home Department to another?

That is a very interesting question given the range of Home Secretaries under the previous Government. I will have to come back to it at the end of my remarks.

First were the questions put by the noble Lord, Lord Berkeley, about the purpose of the regulations. I can give him assurance that, although the risks are pretty small, it is all about security. As I said in opening, the objective is to enhance the protection of aircraft flying to the United Kingdom and to prevent certain individuals from arriving here and doing harm on board the aircraft or on arrival in the United Kingdom. The purpose is to prevent such individuals boarding aircraft to the United Kingdom in the first place, both for the protection of that airplane and of the United Kingdom.

The noble Lords, Lord Rosser and Lord Berkeley, asked about the process and how quickly the airlines would get a response. Our aim is to give a response to the airlines within 15 minutes, which is relatively easy with modern communications. Airlines are required as of now to submit passenger information no later than 30 minutes before departure. We encourage airlines to provide that earlier if they possibly can but we are offering an assurance that we will be able to respond within 15 minutes.

The noble Lord, Lord Berkeley, also had some concerns about the consultation. He cited the fact that there was one response from a member of the public. I am very grateful that at least one member of the public put their name forward.

The noble Lord says that it was not himself. This is one of the problems with consultations; not necessarily everyone with an interest responded. I can say, with regard to the important people in the airline industry, that we had respondents from three representative groups with a total membership of 161 different airlines. I cannot remember how many airlines there are in the world, but that number probably means that most of those who have an interest and who had concerns about this made an effort to respond.

The noble Lord, Lord Rosser, asked about IS72s. These are being rolled out across carriers and ultimately we envisage making sure that they are served on all of them, but that is not the case at the moment. He also asked whether imposing fines—as the order says, the level is up to £10,000—was purely a matter for the Home Secretary. The important thing is not the level of fines; obviously, for some of the big airlines a fine of £10,000 is neither here nor there, although I imagine that if there were a lot of fines they might begin to worry about them. We want to work with the airlines and prevent harm to their aircraft and to the UK. I think that I can say to the noble Lord that fines will be imposed only in fairly extreme circumstances.

If I may consider the matter of the level of the fines, which was the other matter that he asked about, I would prefer to write to him. As I said, though, at the moment there is a fairly free discretion that might allow, thinking of the different sorts of Home Secretary that we had between 1997 and 2010, for a fairly broad range of penalties being imposed.

My noble friend Lord Bradshaw also asked a simple, straightforward question: if a passenger is refused leave to enter the UK, is the carrier responsible for removing them from the UK? I assure him that that is the case. Whether or not the passenger has any appeal rights will depend on the circumstances of the case itself.

On this occasion, I think that I have answered every single point that the noble Lord, Lord Rosser, and other noble Lords have put. However, I see that the noble Lord, Lord Berkeley, wants to intervene again.

I am grateful to the Minister for his explanation of the purpose, because it is important that we understand it. However, I then said to myself, “Well, if people are going to do harm, they can come in by ferry or small boat or across the land frontier from Ireland, and can still do harm in this country, although they’d have more of a job in sorting out an aeroplane because they haven’t got an airport”. Ours is not a completely secure boundary from that point of view. I am assuming that the real purpose of this is the problem of the aircraft itself, and I support that.

My Lords, obviously we have certain advantages in that we are an island entire unto ourselves—I think I could probably quote a bit more from John of Gaunt’s death speech in “Richard II”. There are easier ways in and harder ways in. We will continue to look at all different routes and at what is possible—what we can and cannot do. Airlines are important. That is why we are doing this.

Perhaps I could ask the Minister one more question in the light of the response he gave. I wonder whether I heard that correctly. He confirmed that it was the case that an IS72 would be issued to some carriers, which might apply to all or some of their routes. Did he go on to say—or did I mishear this?—that eventually it might be applied to all carriers? If that is the case, would it then become in effect a blanket requirement for every carrier flying people into the UK?

Motion agreed.