Sixth Standing Committee on Delegated Legislation
Tuesday 25 June 2002
[Mr. Nigel Beard in the Chair]
Immigration (Entry Otherwise than by Sea or Air) Order 2002
The Minister for Citizenship and Immigration (Beverley Hughes): I beg to move,
That the Committee has considered the draft Immigration (Entry Otherwise than by Sea or Air) Order 2002.
It is a pleasure to serve under your chairmanship for the first time, Mr. Beard, and I start by saying, with some trepidation, that this is a small and technical measure, although I am sure that hon. Members will make up their own minds.
The order will close a longstanding and specific loophole in current legal arrangements and relates to people who are travelling to the United Kingdom across the land border between the Republic of Ireland and Northern Ireland and who require leave to enter. Although it applies to both arriving passengers and illegal entrants, its main effect will be in relation to the latter, but I should emphasise that we have no plans to set up immigration controls on the border.
As I have said, the order is a technical measure. The power to set removal directions in respect of an arriving passenger who is refused leave to enter or an illegal entrant is set out in schedule 2 to the Immigration Act 1971. In either case, there is a power to give directions to the captain, owners or agents of the ship or aircraft in which the person to be removed has arrived in the UK. There is a fallback position for when the Secretary of State concludes that it is not practicable or would be ineffective to give those removal directions to the captains, owners or agents of the carrying vessel. The usual reason for that is that one cannot pinpoint the carrying vessel. In those circumstances, the Secretary of State can give removal directions to the owners or agents of any vessel in order to effect the person's removal.
However, that fallback position assumes that the original arrival in the UK was by ship or aircraft. If no ship or aircraft was involved in the means by which the person arrived on UK soil, there can be no captain, owners or agents to give directions to. Consequently, the residual power to remove cannot apply.
That does not mean that someone who enters the UK illegally across the border is immune from removal, but it means that that person cannot be removed as an illegal entrant. If that situation were to pertain, we would have to go through the curious and rather tortuous process of granting such people leave to remain for a short period. At the end of that time, unless they applied for further leave, they would become overstayers and liable to removal as such. For overstayers, removal directions do not refer back to the original arrival, so the problem does not arise.
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I hope that hon. Members can see that that procedure is clearly unsatisfactory. First, it is illogical—to put it mildly—to grant people leave to remain in order to be able legally to remove them. Secondly, and more importantly, once such people have that leave—however short it is—they are no longer liable to detention under Immigration Act powers and have the opportunity to disappear again. The gap in our removal powers has existed for a great many years. I have no evidence that it has been widely abused, but it would nevertheless be undesirable to allow it to continue.
Bob Russell (Colchester): The Minister referred to a loophole that has been in existence for many years, but the explanatory memorandum states:
''The numbers of persons removed as a result of the provisions is not expected to be large.''
Can the Minister indicate how big the loophole is and how large the numbers involved are?
Beverley Hughes: I have just said that I have no evidence that it has been widely abused. If it has, only small numbers are involved. However, I cannot predict what might happen in future, and that is why it is important to close the loophole. The order does that by providing that where someone who requires to enter the United Kingdom or who is the subject of a deportation order either has entered, or is seeking to enter, the UK from the Republic of Ireland, otherwise than by ship or aircraft, the relevant parts of schedule 2 to the 1971 Act apply to that person in a modified form, allowing removal directions to be given immediately. The cost of such removals in those circumstances would be borne by the Secretary of State.
In theory, such directions could be given in respect of an arriving passenger; in practice, of course, they are much more likely to be given in respect of people who have entered illegally. In the case of the former, the order will apply to passengers arriving on or after the date on which the order is made. In the case of illegal entrants, it will apply irrespective of the date of entry.
Mr. Humfrey Malins (Woking): The Minister is kindly going through her brief with care. Would she give the Committee some practical nuts-and-bolts examples of the situation that might have occurred prior to the introduction of the measure? I mean the sort of thing that might have been happening and how it happened. Will the Minister say exactly how the loophole will be filled by the measure?
Beverley Hughes: Certainly. The removal directions as they pertain at present cannot be applied to someone who arrived illegally in the Republic of Ireland, crossed the border into Northern Ireland and then made an application and travelled to the United Kingdom, because that person had not used a ship or an aircraft to get from the Republic of Ireland into Northern Ireland. It is as simple and as technical as that. The law as it applies at present relates only to people arriving and putting their foot on UK soil for the first time having come by a ship or an aircraft. Clearly, there is a route of entry into the UK across that border by land. The order simply makes the
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current removal directions that are applied when someone arrives by air or sea applicable to that means of entry into the UK.
Mr. Peter Kilfoyle (Liverpool, Walton): While we are in the fantasy land evoked by the hon. Member for Woking (Mr. Malins) about what might have happened before the provisions were made in the first place, is the Minister suggesting that if someone were to swim across the Channel, he or she would be outside the scope of the order? That is not as fanciful as it sounds, given that illegal immigrants have tried to swim across the straits of Gibraltar, believe it or not. In the Government's view, is the fact that the measure does not cover people that arrive in other, more innovative ways a loophole?
Beverley Hughes: As I might expect, my hon. Friend is inventive in stretching the hypothetical situations in the debate. I cannot give him a conclusive answer, but I shall write to him on the matter as we will need to check whether there are any other loopholes.
If anyone tried to swim across the Channel, at some point in the journey he or she would almost certainly have been picked up by a vessel. It is hard to imagine people having trained so hard that they could get from France to the United Kingdom without some assistance. However, I shall clarify the point for my hon. Friend and write to him.
Mr. Kilfoyle: I am not being facetious, but what if someone came across the Channel on water-skis, or were to paraglide over? I can see no legal definition that would describe those as either ships or aeroplanes.
Beverley Hughes: Leaving aside whether those modes of transport could feasibly cover such a large distance as the channel, I will certainly check whether they would be covered by our definition of a vessel. My hon. Friend raises some interesting points.
Mr. Malins: It is my fault, but are we talking about entry to the UK across the channel? I think that we are actually talking about entry into Northern Ireland from the Republic of Ireland. I do not think that it can be swum. Have I completely missed a point?
Beverley Hughes: No, the hon. Gentleman has not missed a point. We digressed to hypothetical situations that might, with some fanciful imagination, relate to the provisions as they exist at the moment. This order applies to the circumstance that he outlined: crossing the land border between the Republic and Northern Ireland. Finally, I can reassure hon. Members that the order does not affect anyone's immigration status. People who have come in illegally by this route are already illegal entrants and will continue to be. The difference is that if the order is approved it will be possible to deal with them as illegal entrants, which is not possible at present.
Mr. Malins: May I welcome you to the Chair, Mr. Beard? It is first time I have served under your Chairmanship. The Committee started off in a good-humoured and probably a brief way.
I read the order two or three times without having a clue what it was about. I tried to work out how one got to anywhere in this world other than by ship or air.
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Then it became more or less apparent that it applied to entry into Northern Ireland from southern Ireland, which cannot be done by ship anyway. I recognised the loophole that has to be plugged. I welcome the measure. My hon. Friend the Member for Bridgwater (Mr. Liddell-Grainger) and I will not seek to divide the Committee. Although we do not greet much with great acclamation, we certainly accept the measure as a much needed stopgap.
It occurred to me that those who drafted the 1971 Act possibly missed a trick by limiting this to sea or air. There are obviously other ways of travelling from A to B. I assume that we are really looking at the ability to deal effectively and properly with those who enter Northern Ireland by more orthodox methods, such as lorry, train or vehicle, which are not covered under the provisions. The Minister rightly said that one cannot know whether there has been a problem hitherto and what numbers may have slipped through the net. It would be helpful if she could tell us whether she thinks that it will affect many people.
There is also a cost implication. The order gives the Secretary of State power to direct the owners and agents of vehicles or trains to remove people and the Secretary of State will pick up the costs. I do not think that we are talking about much, but it would help if the Minister would confirm that. Had the measure applied to Eurostar, it would have been a much more interesting debate. Eurostar changes ownership halfway across the channel. As far as I can see, it changes ownership quite a lot, depending on where it is at any time. That is a debate for another day, as is the perpetual issue of the Disney train and the ski train to Bourg St. Maurice, which I have raised several times before. The measure is limited, but it fills a gap. Subject to knowing what the cost is likely to be, I have no other real query. I should simply like to know how big a gap the Minister thinks that it will fill.