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Immigration Act 2016 (Consequential Amendments) (Biometrics and Legal Aid) Regulations 2017

Volume 782: debated on Monday 24 April 2017

Motion to Approve

Moved by

My Lords, the statutory instrument before the House makes consequential amendments to two pieces of primary legislation. The first is the Legal Aid, Sentencing and Punishment of Offenders Act 2012, also known as LASPO. The second is the Immigration and Asylum Act 1999. These amendments are necessary for the commencement of the new immigration bail powers under Schedule 10 to the Immigration Act 2016.

LASPO is being amended in respect of access to legal aid for individuals liable to detention. The Immigration and Asylum Act is being amended in respect of the collection of fingerprints from some individuals in connection with the conditions of their immigration bail. The intention behind the amendments is to maintain the status quo for when legal aid may be accessed and when fingerprints may be taken. This statutory instrument is before your Lordships in the context of the commencement of Schedule 10 to the Immigration Act 2016. When commenced, Schedule 10 will create a new status of immigration bail to replace the complex legal framework under the Immigration Act 1971 in respect of individuals liable to immigration detention.

There are currently a total of six legal statuses relating to bail or release for individuals liable to immigration detention under the 1971 Act. It may be useful to noble Lords if I were to list these. They are: temporary admission or release, under paragraph 21 of Schedule 2; bail, under paragraph 22 of Schedule 2; bail, pending appeal, under paragraph 29 of Schedule 2; bail, pending removal, under paragraph 34 of Schedule 2; bail, pending deportation, under paragraph 3 of Schedule 3; and release on restrictions, under paragraphs 2(5) or 4 of Schedule 3.

Under Schedule 10, these six statuses will be simplified to one single status of immigration bail. This statutory instrument makes the necessary amendments to harmonise the legal framework surrounding release from detention, such that it complements the new system that will be introduced upon commencement of Schedule 10. It follows that the reason for this statutory instrument being before the House today is so that commencement of Schedule 10 can progress smoothly. These changes to primary legislation are necessary to enable the new bail regime to function.

The LASPO amendments are being made to ensure that access to legal aid for immigration bail is neither narrowed nor widened following the commencement of Schedule 10. Indeed, when Schedule 10 is commenced, the provisions to which LASPO refers will be repealed. As I have already made clear, this means that changes to LASPO are required. The changes I refer to are in relation to paragraphs 26 and 27 of Schedule 1 and I will provide some further detail in this respect. Paragraph 26 provides for a person who is temporarily admitted to the UK to be eligible for legal aid. Paragraph 27 provides for a person who has been released on restrictions to be eligible for legal aid. This statutory instrument amends both those paragraphs to reflect the new legal framework under Schedule 10. We are also inserting a new paragraph 27A into the relevant part of LASPO. This does not represent a change of substance, but is a necessary change in order to ensure that those who are currently eligible for legal aid remain so. I ask noble Lords to note that paragraph 25 of Schedule 1 to LASPO does not need to be changed since it relates to people who are being detained. Those in detention are already eligible for legal aid in respect of bail; the move to immigration bail under Schedule 10 does not change this.

This statutory instrument also makes minor changes to the Immigration and Asylum Act 1999 and I will give some context. Schedule 10 will change the reporting conditions that can be attached to what will become immigration bail. Section 141 of the Act provides a power for an authorised person to take fingerprints from an individual in given circumstances. One such circumstance concerns individuals who have been refused leave to enter but who, under current provisions, are temporarily admitted. The power is exercised if an immigration officer reasonably suspects that the individual might break the conditions of temporary admission relating to residence or reporting and must therefore have their fingerprints taken. Section 141 of the Immigration and Asylum Act currently refers only to a condition for reporting to the police or to an immigration officer. However, the new powers under Schedule 10 mean that immigration bail can instead be imposed, subject to a condition requiring a person to report to the Secretary of State or any other such person as may be specified. This statutory instrument makes the necessary amendment to reflect the new provisions.

In conclusion, the consequential amendments made by this statutory instrument are intrinsic to the smooth and orderly commencement of Schedule 10 to the Immigration Act 2016. The amendments ensure that the new power of immigration bail will not adversely impact on anybody. The amendments to LASPO mean that an individual who is subject to the new encompassing status of immigration bail under Schedule 10 will be treated no differently from the way in which they would have been treated had they fallen under one of the six discrete statuses under the Immigration Act 1971. At the same time, this statutory instrument ensures that biometrics will be taken from only the same cohort of individuals as before, in circumstances as outlined in the legislation. I commend this statutory instrument to the House.

My Lords, I wish to intervene in a narrow area. As I understand it, Section 141 of the Immigration and Asylum Act 1999 provides a power for “an authorised person” to take fingerprints from an individual in circumstances as set out in that section. One of those circumstances concerns an individual who has been,

“refused leave to enter … but has been temporarily admitted under paragraph 21 of Schedule 2”.

The power is engaged,

“if an immigration officer reasonably suspects”

that the individual might break the conditions of temporary admission relating to residence or reporting. I understand that that group of persons is regarded as high-risk, and that is the justification for taking that action.

However, in the United States of America, under the US-VISIT programme run by the Department of Homeland Security, at least 10 fingerprints are taken. A digital photograph is also taken to log and register facial characteristics. That is done for a group of persons entering the United States who are considered a lesser risk than the group referred to in these regulations. To what extent should we widen the amount of information that is held in the United Kingdom, which is described generally in the regulations as simply fingerprints? The regulations do not describe how many fingerprints are taken but refer merely to fingerprints. Should not the regulations be widened to cover a more comprehensive acquisition of information in the way that I have suggested? Will the Minister give us more information on precisely why we are not going down the more comprehensive American route? Are we absolutely convinced that the amount of data we are collecting is satisfactory and adequate in the circumstances?

My Lords, the regulations before us are not in themselves controversial. As the Minister outlined, they make relatively minor changes in respect of provisions contained in the Immigration Act 2016, the Immigration and Asylum Act 1999 and LASPO. I have read the regulations and the Explanatory Notes and am content that the Government have the required powers. As I said, these are relatively minor changes. No concerns have been raised by the Joint Committee on Statutory Instruments. My noble friend Lord Campbell-Savours raised an interesting point. I look forward to the Minister responding to it. Paragraph 7 in the Explanatory Notes is particularly helpful as it sets out the policy background and why these regulations are needed. Therefore, I will detain the House no longer. I am content with the regulations.

I thank the two noble Lords who have spoken. I say to the noble Lord, Lord Campbell-Savours, that these statutory instruments make consequential amendments to legislation. Legislation is constantly kept under review. As regards widening the scope of the measure, I cannot predict the decisions of a future Government, who may, of course, not be a Conservative Government. However, I am sure that a future Government will consider that measure when keeping legislation under review. At the moment, we have no plans to extend the current practice. Section 141 does not limit the number of digits from which fingerprints may be taken. However, officials who decide to take fingerprints must ensure that their actions are proportionate to the reasons why they are taking them.

Motion agreed.