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Authority to Carry Scheme and Civil Penalties Regulations 2023

Volume 827: debated on Tuesday 21 February 2023

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Authority to Carry Scheme and Civil Penalties Regulations 2023.

Relevant documents: 26th Report from the Secondary Legislation Scrutiny Committee

My Lords, the purpose of these regulations, laid under Sections 23(2) and 24(7) of the Counter-Terrorism and Security Act 2015, is to give effect to the Authority to Carry Scheme 2023, which I will refer to as the 2023 scheme. This makes consequential amendments to the Authority to Carry Scheme (Civil Penalties) Regulations 2015 and revokes the Authority to Carry Scheme and Civil Penalties Regulations 2021. Once given effect, the 2023 scheme will in turn revoke and replace the Authority to Carry Scheme 2021.

Authority to carry is, in effect, the UK’s “no fly” scheme. It is operated to prevent individuals, including known terrorists, serious criminals and those subject to sanctions, being able to travel to and from the United Kingdom. The scheme is operated by the National Border Targeting Centre, which processes information about individuals—both passengers and crew—intending to travel to or from the United Kingdom. Where an individual is identified as being in a class of persons described in the scheme, the carrier may be refused authority to carry the individual to or from the United Kingdom.

The 2023 scheme applies to aircraft, ships and trains whose operators have been required by law to provide passenger and crew information before departure. It applies on all international routes, including journeys within the common travel area, where advance passenger and crew information is received from a carrier.

The authority to carry scheme continues to be extremely successful. Since its introduction in March 2015, the National Border Targeting Centre has refused carriers authority on more than 11,200 occasions. It is a daily occurrence. These are all individuals who would otherwise have arrived in the United Kingdom and been refused leave to enter by Border Force officers.

The primary reason we are introducing the 2023 scheme is in preparation for the introduction of the electronic travel authorisation—a key component of a universal permission to travel, which will require all individuals to have valid permission before travelling to this country. There will be some individuals who apply for an electronic travel authorisation but whose application is refused. Others may be granted one that is subsequently cancelled—for example, if it is established that a false declaration has been made about their previous good conduct. By including these classes of individuals in the 2023 scheme, we can ensure that they are prevented from travelling to the United Kingdom.

We are also taking the opportunity to make additional amendments to existing classes of individuals in the 2021 scheme: namely, first, individuals who were subject to deportation proceedings but left the UK before those proceedings were concluded; secondly, individuals who have been or would be refused entry clearance or a visa under the Immigration Rules, not only on non-conducive grounds, as in the 2021 scheme; thirdly, individuals who are using an invalid travel document that was not issued to them or is otherwise not valid for international travel—this will include documents being misused but not reported, or not yet reported, lost or stolen, and so called “fantasy documents” not issued by a recognised national or international authority —and, fourthly, as an additional class, individuals whose indefinite leave to enter or remain in the United Kingdom has been revoked under Section 76 of the Nationality, Immigration and Asylum Act 2002.

It is important to note that the Crown dependencies are aligning with the United Kingdom by introducing their own electronic travel authorisation schemes, and collectively we will recognise these other schemes. Therefore, carriers operating to the UK may be refused authority to carry individuals whose electronic travel authorisation has been refused, or would be refused, or has been issued and subsequently cancelled under any of the Crown dependencies’ schemes.

The additions to the 2023 scheme which I have outlined will ensure that the authority to carry policy continues to operate effectively and will reflect the wider developments of the UK’s border security measures, particularly the introduction of the electronic travel authorisation for non-visa nationals. Like the previous authority to carry schemes, the proposed 2023 scheme will be an important element of our multilayered approach to border security, alongside the visa regime, universal permission to travel and our checks at the border. The Government are committed to ensuring the continued safety and security of the UK border. This new authority to carry scheme is central to that effort. I commend these regulations to the Committee .

I thank the Minister for explaining the regulations and the scheme in such detail. I am afraid I have some questions—even though I know he takes the view that debates are opportunities for debate rather than asking questions.

I appreciate and understand that the scheme is to align with the electronic travel authorisation system. The regulations and therefore the scheme come into effect when the instrument is made, as I understand it. I spoke to the Public Bill Office about this this morning, because I wanted to be clear about it. The Minister has just said that when the new scheme comes into effect, the 2021 scheme will be revoked. That seems to suggest that there has to be some very careful timing. As the regulations are not replacing earlier regulations, if there is a problem under the earlier scheme, the new regulations can cope with it smoothly. That is how the PBO explained it. Is that actually the case? Does the timing have to align with the EU’s new border arrangements? Most particularly, when will the ETA come into effect? I know we still await details of it: how it will be implemented, its cost and how its application will be approved. There is obviously a lot of concern about practical aspects for both carriers and travellers.

Paragraph 14(d) of the scheme provides that authority to carry may be refused for individuals

“in relation to whom the Secretary of State is in the process of making a decision that the individual be made subject of an exclusion order”.

In other words, it can bite before an order is made. Do I have that right? If so, can that be right? The Secretary of State surely needs to make an order; it is not automatic.

It is similar for individuals who—the Minister has used this terminology already—

“would be refused entry clearance or a visa”

under the new rules and for individuals who

“would be refused an ETA”,

entry clearance or a visa under the rules. That is even further away from the decision. Perhaps the Minister can tell the Committee—because I assume that quite a lot of this replicates the earlier schemes, so they are not just hypotheticals—how this is proper. Immigration Rules are subject to change without parliamentary involvement. What right of appeal is there, particularly if there is a refusal before the Secretary of State has reached a decision? It does not feel comfortable to me.

We are told in the Explanatory Memorandum that an ETA may be cancelled when that is in the public interest, and that, under the earlier schemes, authority has been refused in respect of—it has now gone up to—11,200 individuals. That is a lot of individuals, each one of whom, and their family in many cases, is no less affected. As the Explanatory Memorandum points out, as a percentage of all arrivals it is quite small—but it is a lot of individual people. Does the Minister know how many of the 11,200 were UK residents? How will the Government ensure that certain nationalities or ethnicities will not be disproportionately affected by the scheme? The Minister also mentioned revocation of leave. If or when that happens, will the individual be notified? Will he be aware of that revocation?

There has been praise for the bespoke schemes for Ukrainians fleeing the war. How will the travel authorisation schemes operate to ensure that the UK’s response to other humanitarian crises is not hindered? Sadly, there are many other conflict areas and an awful lot of people affected by the earthquake in Turkey and Syria.

I am sure the Minister is not thrown by having a number of questions raised without notice; I looked at this only over the weekend. The questions I raise may sound like matters of detail, but I think that in fact they are all matters of principle.

My Lords, I thank the Minister for introducing this statutory instrument. The SI replaces the 2021 no-fly scheme that prevents terrorists, serious criminals and others travelling into the UK via aircraft, ships or trains. The scheme was introduced in 2012 and was updated by statutory instrument in 2015 and 2021.

The 2023 scheme extends the range of people who carriers can be refused authority to carry to those refused an ETA or those travelling without a valid document or travelling on the document of another person. Penalties of up to £50,000 were put in place on carriers that breached the terms of the scheme. The maximum penalty has not increased since the original scheme in 2015. Is there any scope for increasing this maximum, along the lines of inflation or something like that? This question was asked in 2021, but I am not sure that my noble friend who asked it got a reply.

The ETA scheme has not been introduced, nor have details been released on how it would work, who would need to apply for it, how much it would cost or on what grounds it would be revoked. As we have heard, the Government have stated that it will be in place by the end of 2024. Can the Minister confirm that that is still the case for when it will be introduced?

The noble Baroness, Lady Hamwee, asked a number of pertinent questions about the alignment of the ETA with EU regulations and how it will work with the wider carrier network, if I can put it like that.

In response to questions raised in the Commons this month, the Minister stated that 23 penalties have been imposed over the seven years of the scheme and that the number of people prevented from travelling has stayed consistent over this time. The figures given were that 1,702 people were prevented from boarding in 2016-17 and 1,700 in 2022-23. In the 2021 Lords debate, the Minister did not respond to questions about whether some carriers had been repeat offenders. I do not know whether the Minister has any information on whether particular carriers are repeat offenders when fines are given to them.

The Explanatory Memorandum states:

“Updated guidance will be provided to industry”,

but no detail has been provided on when that will take place. Can the Minister tell us when that updated guidance may be available?

Finally, there is the status of transit passengers. How are they brought into the scope of these regulations and will they be affected? Having said that, we support the statutory instrument.

I thank noble Lords for their contributions and questions. I think I have answers to them all, and I will take them in turn.

I turn first to matters raised by the noble Baroness, Lady Hamwee, who asked when the 2023 scheme will come into effect. Regulation 2 of the draft instrument provides that:

“The Authority to Carry Scheme … comes into force on the day on which these Regulations come into force.”

That is mirrored in paragraph 28 of the scheme, which observes that it will come into force on the day the authority to carry scheme regulations come into force. Obviously, that is the date on which the new scheme will be in force. I can put the noble Baroness’s mind at rest. If she were to compare the 2021 scheme and the 2023 scheme, a lot of the text is the same. The changes introduced by the new scheme are simply to effect the changes that I outlined in my earlier remarks. There will not be any gap that will affect the implementation of the scheme or proceedings brought under the earlier scheme, because they will then simply be under the new scheme that is in force.

The noble Baroness asked whether the scheme has to align with broader issues. I hope I have already addressed that; it is making only minor changes, so it should align and there should not be any difficulties. The provisions about ETAs are there in readiness for the implementation of ETAs along the lines of the timetable suggested by the noble Lord, Lord Ponsonby.

I was asked what right of appeal exists to decisions of the Secretary of State to make various decisions, such as the revocation of leave to remain. It right to say that those sorts of decisions, or refusal of permission to enter, are capable of judicial review in the courts: indeed, there have been a number of such cases. I was then asked how many of the 11,200 who have been refused permission were UK residents. The answer is none. On whether notice is given of revocation of immigration decisions, the answer is yes, in most cases. Revocation notices are provided where contact can be established with the applicant.

I turn to the questions asked by the noble Lord, Lord Ponsonby, on the increase in the financial penalty. I note the concerns raised that the maximum penalty has not been increased. However, the imposition of civil penalties of up to £50,000 on carriers who breach the requirements of the scheme is considerable, particularly at a time when the travel industry is facing global economic pressures. We recognise this and therefore have not sought to increase the maximum penalty amount. Obviously, that matter can be kept under review in any further iterations of the rules.

This ties in with a question that I was asked on whether there are repeat offenders. There are, and you have to pay a greater fine if you are one. If you are a very regular offender, with the £50,000 maximum, all of the penalties will cumulatively add to a significant figure, as one can imagine. That is how the financial penalty provisions work. I hope that that answers the question.

I turn to when there will be updated guidance. When the ETA scheme is brought in, further guidance will be provided with its implementation. I am not aware of any plans to produce further guidance on the authority to carry scheme when it is included.

Transit passengers are included in the scope of the scheme, not least because they may seek to enter the United Kingdom while they are in transit. Authority to carry has been refused in the past for transit passengers, for example where they have previously been deported from the United Kingdom.

As I set out in my opening remarks, the authority to carry scheme is intended to prevent certain individuals travelling to or from the UK when necessary in the public interest. With the introduction of the universal permission to travel and electronic travel authorisations, it is important that we can prevent individuals who would have been or would be refused electronic travel authorisation or whose electronic travel authorisation has been cancelled travelling to the UK. Bringing these additional cohorts within the scope of the scheme means that its proven effectiveness can be further extended, but necessarily and proportionately.

The 2023 scheme applies to all carriers operating on international routes to and from the UK, including the common travel area, which have been required to provide passenger and crew information in advance of departure. As such, it is an important part of the UK’s border security arrangements.

As the Minister is coming to the end of his response, I remind him about my questions on how it will work when there is to be a refusal in relation to someone whom the Secretary of State is in the process of making a decision about or where someone would be refused entry clearance or would be refused under the rules and so on. These are issues of quite considerable importance and principle because they are proposing that refusals may be made before the Secretary of State has made a decision. Can the Minister say anything about that?

Forgive me: I covered that in my own mind when I explained the scheme, but I realise that I should have spelled it out more clearly, which I will now do. Those parts of the scheme are unchanged; these changes do not affect that part of the scheme, but I can certainly answer the noble Baroness’s question.

Where the Secretary of State is considering somebody’s application, they cannot travel. They can travel only once they have authority to enter the United Kingdom. It is not the position that we are refusing their application because we are still considering it; the point is that that passenger should not be trying to travel without a valid authority to travel. In the event that somebody applies for a visa and it is refused, it is open to them to apply to review that decision, internally or by legal proceedings. Of course they are entitled to do that, but people will not, and passengers do not, try to travel while their decision is still being determined because they do not have permission at that point to travel.

The scheme uses language such as:

“Individuals … in relation to whom the Secretary of State is in the process of making a decision that the individual be made subject of an exclusion order”.

That does not seem completely to reflect what the Minister said. Perhaps I am just not sufficiently familiar with scheme-speak.

This is the reference in paragraph 14(d) of the draft scheme. Clearly, this is not being added by these changes. However, I can reassure the noble Baroness that the courts have found in favour of decisions to refuse authority to carry where the Secretary of State is in the process of making a decision to exclude. Obviously, if a person has made an application and the exclusion order is not made, they are free to travel once they have their visa. It does not have the effect of precluding their travelling; it simply means that they cannot travel on that occasion. If, however, they are the subject of an exclusion order, repeated applications will simply result in the same outcome: they will be refused authority to travel by the carrier.

My Lords, I hope my asking a question is in order; I have been here throughout the debate. On a couple of occasions, the Minister said that this scheme applies to all carriers that are required to provide details of passengers and crew, on international routes and from the Republic of Ireland. Does that mean all carriers, or all carriers that are required to provide that information? If it is the latter, on what basis do the Government require some carriers to provide that information and not others?

As I sought to make clear in my earlier remarks, the common travel area is obviously where the slight difficulty arises as there is no obligation to show your passport to get in and out. It is only that category of cases; for every other international flight we would anticipate that the scheme applies. If one were taking an internal flight, obviously there would be no need to provide that sort of information, as you would expect. I hope that answers the noble Lord’s question.

Again, I am grateful for the contributions made and the points raised. By giving effect to the authority to carry scheme 2023 we will build on the existing policy, which has proven effective to date. It will underpin the operation of a critical element of our future border and immigration system, namely universal permission to travel, and will ensure the continued safety and security of the UK border.

Motion agreed.

Committee adjourned at 5.09 pm.