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4 Mar 2009 : Column 752
Clause 44: Meaning of references to being in breach of immigration laws
107: Clause 44, page 37, line 21, at end insert—
“( ) For the purposes of subsection (4)(ca), a person has a qualifying CTA entitlement if the person—
(a) is a citizen of the Republic of Ireland,
(b) last arrived in the United Kingdom on a local journey (within the meaning of the Immigration Act 1971) from the Republic of Ireland, and
(c) on that arrival, was a citizen of the Republic of Ireland and was entitled to enter without leave by virtue of section 1(3) of the Immigration Act 1971 (entry from the common travel area).”
Amendments 106 and 107 agreed.
Clause 44, as amended, agreed.
Clause 45: Other interpretation etc.
108: Clause 45, page 39, line 2, at end insert—
“( ) A person has a qualifying CTA entitlement if the person—
(a) is a citizen of the Republic of Ireland,
(b) last arrived in the United Kingdom on a local journey (within the meaning of the Immigration Act 1971) from the Republic of Ireland, and
(c) on that arrival, was a citizen of the Republic of Ireland and was entitled to enter without leave by virtue of section 1(3) of the Immigration Act 1971 (entry from the common travel area).”
Clause 45, as amended, agreed.
Clause 46 : Common Travel Area
108ZA: Clause 46, page 39, line 20, at end insert—
“( ) In section 1 of the Immigration Act 1971 (c. 77) (general principles: the common travel area) after subsection (2) insert—
“(2A) Arrivals by land from the Republic of Ireland to the United Kingdom shall not be subject to immigration control under this Act.””
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Lord Shutt of Greetland: I am making an unexpected guest appearance in Committee on the Bill. I ask noble Lords to bear with me, as I was given the brief at the last minute. Both my colleagues on the Northern Ireland team were hoping to speak to the amendment but cannot do so.
The common travel area has been very much part of my life. In 1946, I was taken as a child to the Isle of Man. I have been there in most years since, and 20 years ago my wife and I bought a cottage in the Republic of Ireland, so I am very much aware of the common travel area as it affects these isles.
In effect, the clause abolishes the common travel area by removing the provision that means that persons departing from or arriving in the UK from within the common travel area are not subject to immigration controls. Since its advent, the common travel area has been suspended only during World War II. Even at the height of the Troubles in Northern Ireland in the 1970s and 1980s, the common travel area was maintained. The rationale given by the Government for these changes is set out in the impact assessment of the recent consultation on strengthening the common travel area. However, little empirical evidence is provided to support or explain the need for the changes, which seem to be unconnected to the reality of the situation on the border between the UK and the Republic of Ireland.
There is also an expressed intention to increase the number of intelligence-led ad hoc immigration checks on the land border. In practical terms, Clause 46 means that immigration officials can challenge an individual whom they suspect of not being in compliance with immigration rules to prove their nationality. This will apply not only to those travelling by sea and air but to those stopped by an ad hoc immigration check near the land border. As this power can be applied to any individual, including British and Irish nationals, it will mean that those living in the border area could be subject to frequent immigration checks on any journey near the border and could therefore feel compelled to carry identity with them on all journeys.
Given our concerns about the basis for the intelligence-led operations, we are concerned that this pressure may be felt most strongly among the ethnic communities living on or near the border and by individuals from these communities contemplating travel between Northern Ireland and the Republic of Ireland. This amendment aims to prohibit explicitly the practice of immigration checks on land crossings of the border between the UK and the Republic of Ireland.
We are extremely concerned at references to mobile checks being made on a risk-led basis. The CTA consultation proposed the introduction of,
The Home Office has subsequently stated that such checks would be intelligence-led on persons both arriving in and leaving Northern Ireland. The Government have not set out what criteria will be used as the basis for these operations or set out transparent monitoring to ensure that they are not relying on racial profiling.
While the Government have stated that no fixed passport or identity document will be required for British and Irish citizens to cross the land border,
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Experience of these actions, in the form of Operation Gull, has been that immigration officers have carried out investigations on a discriminatory basis. On a number of occasions, the High Court has criticised the practices of immigration officers in cases involving Operation Gull which have come before them. The speed and secrecy under which Operation Gull is carried out results in individuals being unable to access independent legal advice that would be able to determine whether they have been detained lawfully. One of the chief concerns is that individuals could be questioned under Operation Gull on grounds of ethnicity or nationality, irrespective of their intentions.
The proposed powers in the CTA consultation will only increase the likelihood of Operation Gull-type operations. It is essential that the circumstances in which such checks may be made are carefully defined, to avoid establishing a broad power of internal immigration control. We are concerned that these measures could have a disproportionate impact on ethnic minority persons crossing or even just living and working near the land border. The potential outcomes of these circumstances would mean that an ethnic minority person would constantly have to carry identity papers or face frequent questioning regarding their status.
A number of cases came before the Northern Ireland High Court, the most recent of which was an application for judicial review by Jamiu Olanreaju Omikunle, a Nigerian student who had obtained a proper student visa and was unlawfully detained by immigration officers at Belfast International Airport on a local journey. The court held that he was detained unlawfully. He had recently been awarded a significant amount of money in compensation for his unlawful detention and the appalling treatment to which he was subjected while in detention.
Approving this provision will endorse such discriminatory policies where ethnic and racial profiling is at the core of their rationale. The significant number of people being adversely affected by Operation Gull prompted the Northern Ireland Human Rights Commission to conduct an investigation into the implementation and conduct of this operation. We understand that the Human Rights Commission is soon to report its findings in relation to its investigation. The Government’s attempt to introduce this provision at this stage is to neutralise its findings.
We would also like a reassurance from the Government that they do not intend to make checks on those travelling between Northern Ireland and the rest of the United Kingdom. The measures proposed in the Bill mean that UK citizens in Northern Ireland will be
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4.45 pm
Moreover, the powers of examination detailed in Schedule 2 to the Immigration Act 1971 refer to and are understood as usually applying to aircraft and ships, and air and sea ports respectively. The Government, through regulation, can determine otherwise. However, in relation to the CTA, they have not indicated an intention to do so and such a move would contradict the stated objective of not introducing fixed control requirements on the land border. This contradiction would also emerge if the Government pursued the extension of examination powers to international railway stations and trains, and even in-county, without exempting CTA routes.
Presently in Northern Ireland, international railway stations would include Newry, Portadown, Lurgan, Lisburn and Belfast Central, all of which are served by the Enterprise express between Belfast and Dublin, which crosses the land border, as well as being used for journeys within Northern Ireland. If the Government’s intention to effectively extend the definition of a port to international rail did not exempt the CTA, this could introduce passport control, control areas and e-Borders to these stations. None of this is referenced as planned in the present CTA reforms. We would like the Government to assure the House that they are not planning to operate such checks. The Home Office has given clear indications that there will be no passport control on the land border for CTA nationals, despite stating its intention for CTA passport control to be introduced only on air and sea routes. That is not explicit in the Bill and is what we hope to achieve with this amendment. I beg to move.
Viscount Bridgeman: I support the amendment in the name of the noble Lord, Lord Shutt. The Government’s utterances on identity checks at the border between Northern Ireland and the Republic have been unclear. In truth, that reflects either muddled thinking by the Government or a reluctance to come clean about what they are planning. The Government have said that there will be no question of establishing full-scale checks on the border, which reflects the practical and political impossibility of doing so. Instead, we will see ad-hoc checks, which we have been assured will be intelligence-led and carefully targeted, a point made by the noble Lord, Lord Shutt.
I do not consider that very reassuring at all. How will this work in practice? If people travelling across the border are to be stopped at random, how will they prove that they are British or Irish citizens, or otherwise have a right to be in the country? If the checks are entirely ad hoc, they will not know when these checks might take place. In other words, the Government are
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If we swallow the argument that these stops will be carefully targeted, we must ask how that will be done. I have also seen the briefing from the Northern Ireland Human Rights Commission, referred to by the noble Lord, Lord Shutt, and I agree with the point that it makes. There is a great danger that the targeted checks will focus on people who look a bit different or foreign. Is that compatible with the noble Lord’s statement on the front of this Bill that this is,
If the security and intelligence services have a genuine suspicion that someone is up to no good, it has ample powers at its disposal already for dealing with them. The Government have utterly failed to explain this measure, which will inconvenience thousands of people going about their lawful business and will not make the borders any more secure.
That raises another point. Why are the Government proposing border checks into Northern Ireland on an ad hoc basis, but making those into Great Britain mandatory? What, exactly, is the threat posed to the people of the British mainland from which they must be protected, and why are British citizens in Northern Ireland to be deemed less at risk from that threat? Why would Northern Ireland need only ad hoc border protection if Great Britain needs stronger protection? If, as my noble friend Lord Glentoran suggested at Second Reading, this Bill is to protect the Great Britain border and not the United Kingdom border, why will the Government not at least be open about it?
Bearing that in mind, will the Minister please spell out the future position of British citizens seeking to travel from Northern Ireland to Great Britain on an entirely domestic journey? Will they be subject to immigration controls to compensate for the ad hoc or non-existent controls on the land border? These government proposals are likely to be so ineffective in their stated aim that either they have not been thought through or are paving the way for an entirely different and more far-reaching measure. I will be most interested to hear the Minister defend this clause, but at this stage I support the amendment from the noble Lord, Lord Shutt.
Lord Teverson: I have not been much involved in this Bill, but I take a great interest in freedom of movement, within Europe and the common travel area, and this provision quite astounded me. Many British citizens take the common travel area for granted, in some ways—when they go to Dublin, perhaps, or when British citizens within Northern Ireland travel within the island of Ireland—but it does not generally receive a great profile. The common travel area is,
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The group of amendments following this one might go more profoundly into Clause 46, but when starting to read about this I took out the Immigration Act 1971 from the Printed Paper Office, to try and understand what this clause does in relation to it. I found great difficulty in following it through, but although I could not understand this entirely from the legislation, I noted that the Explanatory Notes produced for the Bill say, in referring to Clause 46(1), that:
“This amendment will enable the routine control of all persons arriving in or departing from the UK via the CTA by aircraft or ship”.
Perhaps this amendment is not necessary, because if the notes are true it is somehow suggested that the new provision does not include travel over land, but only “by aircraft or ship”. That seems entirely illogical if it is true, so I will be interested in the Minister’s explanation of the Explanatory Notes.
Clearly, it makes no sense at all to control access to the United Kingdom by aircraft or ship if we do not control it by the land border as well. Anybody wanting to enter Great Britain who we would not want here but who is already in, say, the Republic of Ireland—although I understand that this would also include the Channel Islands and the Isle of Man—will clearly just travel by land to Northern Ireland, and thereafter by air or ship on an intra-United Kingdom journey. I do not understand this to be giving any extra security or control to us as British citizens, let alone to those of other jurisdictions within the CTA.
I will be interested to understand from the Minister exactly what benefit this provision has, at the expense of starting to erode strongly something that we should view as precious: the right of all citizens within the CTA to travel freely and without hindrance. As my noble friend Lord Shutt said, that was never seen as something that should be restricted during the Troubles, and I see no reason why it should be the case now.
Lord West of Spithead: I should make it clear at the outset that there is absolutely no intention to abolish the CTA. Indeed, we do not believe that anything in the Bill goes anywhere near to doing that. The CTA has been important and valuable to us in the past and will be in the future.
As the noble Lord, Lord Teverson, mentioned, we are coming on to a series of other amendments on this clause, so I might not go into as much detail on this amendment as on them. There is also a clause stand part question as well.
The Bill looks at the common travel area because we have found that a large number of people are slipping through the hoop, with some very real risks and problems. Therefore, when I was asked after the attacks on Tiger Tiger and Glasgow Airport in 2007 to look at a number of issues, I flagged up elements of border control. We were able to draw on work that had gone on in dealing with loopholes in the arrangements with the Republic of Ireland whereby some unpleasant and nasty people had been moving backwards and forwards, and problems relating to crime, trafficking,
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Amendment 108ZA would restrict the power to control persons travelling across the land border, which would undermine the purpose of the CTA reforms—as I said, we have gone to great length to discuss that with the Republic of Ireland—and prevent the UK Border Agency carrying out effective controls on this route. That would prevent important improvements in our ability and flexibility to combat illegal immigration, terrorism and wider crime.
As has been stated by noble Lords, political and practical considerations—we all know this—mean that fixed controls on the land border are not a viable option. It is clear that they are impractical. I have been on patrol there enough times. It is quite easy to get lost and end up drinking in a pub in the Republic of Ireland rather than Northern Ireland because it is such a difficult border. We have made it clear that we will not introduce routine border controls on the land border between the Republic of Ireland and Northern Ireland. We have also made it clear that we will not require persons to carry a passport or national identity document on this route—I shall come back to that shortly—but we may want to check that a person is entitled to enter the United Kingdom without leave where we have intelligence that they might be entering unlawfully. We will not collect e-Borders data on those who cross the land border, although we will do so for those who travel on aircraft or ships, as e-Borders will spread to all aspects of ship and aircraft travel. We have made it clear that Clause 46 is only part of a process of reform of the CTA and that we will consider further the approach to intelligence-led, risk-based operations to tackle illegal movement over the land border as part of the wider simplification of immigration law. However, we are committed to retaining the CTA. It is an incremental process. It is the first step in making us safer and resolving some of the loopholes.
I was asked by the noble Lord, Lord Shutt, and the noble Viscount, Lord Bridgeman, about the intelligence operations. The controls will not be fixed. We shall not ask every passenger arriving to present their passport to an immigration officer. We will target those who have no entitlement to enter the UK who we think pose a threat. We will use information obtained on the air-sea routes between the Republic of Ireland and the UK through our e-Borders system and other available intelligence.
The noble Lord, Lord Shutt, asked about ethnic-minority communities, which are clearly an issue. Passengers are selected very much on the basis of direct intelligence and risk, drawn from a number of sources—to which I shall come. No passengers will be selected on the basis of race, and we are developing operating procedures, intelligence audit trails and ethnicity impact assessments to ensure no negative impact. We do not employ racial profiling. Under the land border operation on the quieter roads, we often stop a whole number of vehicles. That is not possible on the main Dublin-Belfast road, so we target the odd bus, minibus or taxi, because our experience has shown that those are much more likely to be a threat.
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The noble Lord, Lord Shutt, mentioned Operation Gull, which has highlighted to us the huge number of problems and difficult cases that we have. In the operation, we asked passengers for identification. Ninety per cent carry passports, even though they do not need to. We asked the remaining 10 per cent questions about their nationality and their UK immigration status. We verified that by checks with CID, WICU, CRS, Irish records, and fingerprint checks on the QuickCheck, re-interviewing the people concerned as appropriate when there were discrepancies. We found that a skilled immigration officer can weigh up a person’s nationality and status very quickly through a mixture of good interviewing, IT and mobile databases, and a bit of common sense—which is sadly lacking, very often—both on the border and in Operation Gull. The Irish, of course, do exactly the same in reverse when they are checking persons entering Ireland who have no passport, so it is not an unusual thing to be done.
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It is worth mentioning that we have included refugee travel documents, because we are aware that there might be a number of Tanzanian refugees living along some of the border areas. We have done that to ensure that that is covered.
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