HC Deb 19 October 1971 vol 823 cc655-67

Lords Amendment: No. 63, in page 39, line 6, at end insert: (5) An immigration officer, for the purpose of satisfying himself whether there are persons he may wish to examine under paragraph 2 below, may search any ship or aircraft and anything on board it, or any vehicle taken off a ship or aircraft on which it has been brought to the United Kingdom.

Mr. Sharples

I beg to move, That this House doth agree with the Lords in the said Amendment.

This Amendment adds a provision giving immigration officers power to search ships, aircraft and vehicles brought into this country by sea or air by people who are liable to examination under paragraph (2).

Under the law—and under the Bill as originally drafted—immigration officers have no power to search for smuggled immigrants in the way that Customs officers have power to search for smuggled goods. Their only power of search relates to passengers and their baggage.

I think it fair to say that the growth in recent years of a traffic in illegal immigrants makes it desirable that there should be the power given by the Amendment to search ships, aircraft and vehicles. One thinks, in particular, of the vehicle coming in by ferry, in which there may be someone concealed in the boot. At present, there is no power to search that vehicle.

Question put and agreed to.

Lords Amendment: No. 64, in page 40, line 27, leave out from "with" to "proceedings" in line 28.

Mr. Sharples

I beg to move, That this House doth agree with the Lords in the said Amendment.

Mr. Deputy Speaker (Sir Robert Grant-Ferris)

We can conveniently consider at the same time Lords Amendment No. 65, in page 40, line 28, after "Act" insert "or for an offence".

Mr. Sharples

Paragraph 4(4) of Schedule 2 in its present form provides that any documents produced by, or found on, a passenger when examined by an immigration officer may be detained by the officer for up to seven days in any case and for longer if he is of opinion that they may be needed in connection with legal proceedings. We discussed this matter at some length in Standing Committee, and it was felt by some hon. Members, notably by the hon. and learned Member for Rowley Regis and Tipton (Mr. Peter Archer), I think, that an immigration officer should not have power to retain documents in connection with civil proceedings. I gave an undertaking that I would consider the point and try to meet it.

The effect of the Amendments is that a document may be retained only if the immigration officer is of opinion that it may be needed in connection with proceedings on an appeal under the Bill or for an offence. That meets the undertaking which I gave.

Mr. Peter Archer

We are most grateful to the Minister of State. He has completely fulfilled his undertaking.

Question put and agreed to.

Subsequent Lords Amendments agreed to.

Lords Amendment: No. 67, in page 47, line 4, at end insert:

".—(1) Subject to the provisions of this paragraph, in either of the following cases. that is to say,—

  1. (a) where directions are given in respect of an illegal entrant under paragraph 9 of 10 above; and
  2. (b) where a person has lawfully entered the United Kingdom without leave by virtue of section 8(1) of this Act, but directions are given in respect of him under paragraph 13(2)(a) above or, in a case within paragraph 13(2)(a), under paragraph 14;
the owners or agents of the ship or aircraft in which he arrived in the United Kingdom shall be liable to pay the Secretary of State on demand any expenses incurred by the latter in respect of the custody, accommodation or main tenance of that person at any time after his arrival while he was detained or liable to be detained under paragraph 16 above.

(2) If, before the directions for a person's removal from the United Kingdom have been tarried out, he is given leave to remain in he United Kingdom, no sum shall be demanded under sub-paragraph (I) above for expenses incurred in respect of that person and any sum already demanded and paid shall be refunded.

(3) Sub-paragraph (1) above shall not have effect in relation to directions which, in consequence of an appeal under this Act, are for the time being of no effect; and the expenses to which that sub-paragraph applies include expenses in conveying the person in question to and from the place where he is detained or accommodated unless the journey is made for the purpose of attending an appeal by him under this Act."

Mr. Sharples

I beg to move, That this House doth agree with the Lords in the said Amendment.

The Amendment inserts into Schedule 2 an additional paragraph relating to the liability of carrying companies for detention costs. Paragraph 19 of the Schedule already provides, with certain exceptions, that where leave to enter has been refused the cost of detaining a passenger pending removal is to be borne by the carrying company which brought him here. The corresponding provision of the existing law, under the Immigration Appeals Act, 1969 and the Aliens Order, 1969, apply not only where entry has been refused but also where directions are given for removal of an illegal immigrant or a crew member, without express refusal.

These cases were overlooked while the the Bill was being prepared. It is our intention that the situation should be exactly what it was before, and that is the purpose of the Amendment.

Question put and agreed to.

Subsequent Lords Amendment agreed to.

Lords Amendment: No. 69, in page 47, line 14, at end insert:

"20A.—(1) A person detained under paragraph 16(1) above pending examination may, if seven days have elapsed since the date of his arrival in the United Kingdom, be released on bail by an adjudicator on his entering into a recognizance or, in Scotland, bail bond conditioned for his appearance before an immigration officer at a time and place named in the recognizance or bail bond or at such other time or place as may in the meantime be notified to him in writing by an immigration officer.

(2) The conditions of a recognizance or bail bond taken under this paragraph may include conditions appearing to the adjudicator to be likely to result in the appearance of the person bailed at the required time and place; and any recognizance shall be with or without sureties as the adjudicator may determine.

(3) In any case in which an adjudicator has power under this paragraph to release a person on bail, the adjudicator may, instead of taking the bail, fix the amount and conditions of the bail (including the amount in which any sureties are to be bound) with a view to its being taken subsequently by any such person as may be specified by the adjudicator; and on the recognizance or bail bond being so taken the person to be bailed shall be released.

20B.—(1) Where a recognizance entered into under paragraph 20A above appears to an adjudicator to be forfeited, the adjudicator may by order declare it to be forfeited and adjudge the persons bound thereby, whether as principal or sureties, or any of them, to pay the sum in which they are respectively bound or such part of it, if any, as the adjudicator thinks fit; and an order tinder this sub-paragraph shall specify a magistrates' court or, in Northern Ireland, court of summary jurisdiction, and—

  1. (a) the recognizance shall be treated for the purposes of collection, enforcement and remission of the sum forfeited as having been forfeited by the court so specified: and
  2. (b) the adjudicator shall, as soon as practicable, give particulars of the recognizance to the clerk of that court.

(2) Where a person released on bail under paragraph 20A above as it applies in Scotland fails to comply with the terms of his bail bond, an adjudicator may declare the bail to be forfeited, and any bail so forfeited shall be transmitted by the adjudicator to the sheriff court having jurisdiction in the area where the proceedings took place, and shall be treated as having been forfeited by that court.

(3) Any sum the payment of which is enforceable by a magistrates' court in England or Wales by virtue of this paragraph shall be treated for the purposes of the Justices, of the Peace Act 1949 and, in particular, section 27 thereof as being due under a recognizance forfeited by such a court and as being Exchequer moneys.

(4) Any sum the payment of which is enforceable by virtue of this paragraph by a court of summary jurisdiction in Northern Ireland shall, for the purposes of section 20(5) of the Administration of Justice Act (Northern Ireland) 1954, be treated as a forfeited recognizance.

20C.—(1) An immigration officer or constable may arrest without warrant a person who has been released by virtue of paragraph 20A above—

  1. (a) if he has reasonable grounds for believing that that person is likely to break the condition of his recognizance or bail bond that he will appear at the time and place required or to break any other condition of it, or has reasonable ground to suspect that that person is breaking or has broken any such other condition; or
  2. (b) if, a recognizance with sureties having been taken, he is notified in writing by any surety of the surety's belief that that person is likely to break the first-mentioned condition, and of the surety's wish for that reason to be relieved of his obligations as a surety;
and paragraph 17(2) above shall apply for the arrest of a person under this paragraph as it applies for the arrest of a person under paragraph 17.

(2) A person arrested under this paragraph—

  1. (a) if not required by a condition on which he was released to appear before an immigration officer within twenty-four hours after the time of his arrest, shall as soon as practicable be brought before an adjudicator or, if that is not practicable within those twenty-four hours, before a justice of the peace acting for the petty sessions area in which he is arrested or, in Scotland, the sheriff; and
  2. (b) if required by such a condition to appear within those twenty-four hours before an immigration officer, shall be brought before that officer.

(3) An adjudicator, justice of the peace or sheriff before whom a person is brought by virtue of sub-paragraph (2)(a) above—

  1. (a) if of the opinion that that person has broken or is likely to break any condition on which he was released, may either—
    1. (i) direct that he be detained under the authority of the person by whom he was arrested; or
    2. (ii) release him, on his original recognizance or on a new recognizance, with or without sureties, or, in Scotland, on his original bail or on new bail; and
  2. (b) if not of that opinion, shall release him on his original recognizance or bail.

20D. The power to make rules of procedure conferred by section 22 of this Act shall include power to make rules with respect to applications to an adjudicator under paragraphs 20A to 20C above and matters arising out of such applications."

Mr. Sharples

I beg to move, That this House doth agree with the Lords in the said Amendment.

On Report an Amendment was moved by the Opposition to provide that a person detained under paragraph 16(1) of Schedule 2—that is, pending a decision on whether he is to be admitted—should not be kept in detention for longer than seven days unless the magistrates were satisfied that there were reasonable grounds for continuing to detain him.

When I replied on that occasion I agreed in principle that for a longer period of detention under paragraph 16(1) there should be some form of reference to an independent authority, and I undertook that a Government Amendment would be introduced in another place to meet the point. The Government Amendment which we have before us now provides that a person who is still detained under paragraph 16(1) seven days after his arrival in the United Kingdom, without his examination under paragraph 2 being completed, is to have the same right to apply to an adjudicator for bail as is given by paragraph 24 of the Schedule to someone appealing against refusal of entry. That meets the undertaking which I then gave.

Mr. Peter Archer

I hope that the Minister of State, who has been most helpful throughout these proceedings, will not feel that we always unleash upon his head the wrath which some of us feel against the way the Government have handled some of these matters. We are grateful for his undertaking, which was a concession, and we are grateful that he has faithfully fulfilled it. But this is a difficult and complicated Amendment, as anyone can see by a glance at the Paper.

Once again, we can only wish that we had a little more time to study the Amendment. There are technicalities here which will have to be sorted out by courts which are not yet convened, by judges who have not yet been appointed, and, probably, by unhappy detainees who have not as yet been detained. It would have been so much better for all concerned if we had had a little more time to think about it.

8.45 p.m.

I want to put this on the record because at some stage someone will no doubt say that if the Government got it wrong the Opposition did not point it out. In Committee I understood the Solicitor-General to assure us that any powers which we required existed already. Incidentally, I did not give him notice that I would make this point. We raised the matter again on Report, and the Minister of State then undertook to study it. The Amendment was introduced without a great deal of explanation in Committee in another place, and I make no complaint about that. All that I can attempt to do now is to look through it and make one or two comments about some of the more obvious points. I hope that some of my hon. Friends can make up for my shortcomings.

We begin with the fact that it is an immigration officer to whom this substantial power over the freedom of individuals is entrusted. I make no complaint about the normal standard of immigration officers, most of whom are dedicated men, trying hard to do a very difficult job, and perhaps not sufficiently often being complimented. Perhaps they receive more kicks than recognition of their services in the House as well as in other places. But I am old-fashioned enough to believe that where possible it should be to the ordinary system of courts that the power to control the freedom of the individual to safeguard the elementary rights of individuals to personal freedom is entrusted. I cannot think of any other administrative system in this country in which we entrust powers over bail of this kind to administrative authorities. I am less than happy about it, and I am still not convinced of the reasons why it should not be to the courts that the power is entrusted.

Secondly, I notice that: An immigration officer or constable may arrest without warrant a person who has been released under these powers of bail (a) if he has reasonable grounds for believing that that person is likely to break the conditions of his recognizance …". We appreciate the difficulties. We are dealing with a matter in which there is a grave danger that some people will attempt to evade the law. Where there is such a danger, and if it is then decided that a person might properly be released upon bail, someone obviously must also have the power to ensure that he does not suddenly melt away into the underworld and disappear. But those concerned presumably have someone here in a position to vouch for them and act as surety.

We are sometimes led to wonder whether the Administration, in which term I include the whole body of officials and Ministers, is not only too ready to give someone the power to arrest without warrant. Perhaps it is in the nature of Government. We entrust that power to our police officers only under very limited conditions, but here we have an immigration officer being entrusted with the power, not where someone has actually committed an offence—the question of an offence does not arise—but where that person at some stage may have been suspected of requiring further investigation, and where there are reasonable grounds for believing that he might in future be in breach of the conditions of his recognizance. Could not a formula have been found that was a little more mindful of the right of ordinary individuals not to be too readily imprisoned, not to put too fine a point on it?

It may be because of the breakneck speed with which we were confronted with the document, the late hour of the evening, and the fact that some of my hon. Friends, particularly my hon. Friend the Member for Leeds, South (Mr. Merlyn Rees) and I, have been trying desperately to keep abreast of Amendments, not all of which we have had an opportunity to study, that when I looked at paragraph 20 C (2) I had to read it four times before appreciating what it meant.

Subparagraph (2)(a) says: if not required by a condition on which he was released to appear before an immigration officer within twenty-four hours after the time of his arrest, shall as soon as practicable be brought before an adjudicator If someone is required by a condition of his bail to appear before an immigration officer once he is arrested it is no longer a voluntary matter at what time he appears before the immigration officer. It might have been a little more happily drafted, but I now understand what is meant. The effective words are "the time". Taking the time of his arrest, and then taking the time when bail was granted, one asks whether it was within 24 hours of that time that he was required voluntarily to appear before an immigration officer. For once, it might have been better if this had appeared in the rules, because then we should have had time to think about it and perhaps have improved upon it. We have not had time to think about a possible redrafting. We can only comment on it in passing.

As my noble Friend, Lord Gardiner, said in another place, our immigration law in general already tends to be less than hospitable, and less than democratic. Foreigners are expected to put up with things which would arouse an outcry if they were applied to citizens of this country. We are all too ready to arrest without warrant, to restrict the right to appeal, and to remove from the courts the power to safeguard their freedom.

I recognise that this is a difficult question. We cannot run the risk that someone can effectively and successfully evade the immigration law under cover of these provisions. However, because it is a difficult question it is important to get the balance right and to ensure that this is as accurate as human thought could get it.

There have been many examples during the course of the proceedings on the Bill when the Government did not get matters right in the first place and when it took a succession of appeals to the Government over a succession of stages before finally we got a concession which sometimes commended itself to this side. Sometimes the concession did not go far enough.

This is an example of a provision which required careful thought over a number of stages. Once again I have unleashed on the head of the Minister of State, who is not personally responsible for the short notice that we have had, our complaint that where he has attempted helpfully to fulfil an undertaking that he gave to us he has not given us an opportunity to investigate his homework. That, for him, may be a matter of relief. For us it is a matter of some anxiety.

Mr. Clinton Davis

I join my hon. and learned Friend the Member for Rowley Regis and Tipton (Mr. Peter Archer) in complaining bitterly about the shortage of time allotted for us to consider a matter of grave import regarding civil liberties. It is scandalous. We have not been given an opportunity to consider Amendments that we might otherwise have moved to these provisions.

At some stage someone will say that the Opposition was not sufficiently vigilant in these matters. That assertion would be untrue. It is wrong that the Government should impose this burden upon the House. It is wrong that we should deal so casually with such matters.

The most important of these provisions deal with bail, which is regarded in this country as a right. I agree with my hon. and learned Friend the Member for Rowley Regis and Tipton that bail should be dealt with by the courts. Adjudicators do not yet have the every-day experience of judges and magistrates.

There is no provision for an appeal against a decision by the adjudicator, and that is a grave deficiency. Will the Government have second thoughts? If not, will they explain why these provisions are drafted in this way? Why have the Government not seriously considered these matters until the eleventh hour? I strongly urge the need for an appeal to somebody, preferably a judge in chambers, as we argued in Committee.

I also agree with my hon. and learned Friend about the powers vested in the police. I am sorry to upset the Under-Secretary of State at the Foreign Office, who has played such a notable part in the debates this evening. No doubt he wants to get away, but he will have to be detained here a little longer.

The Under-Secretary of State for Foreign and Commonwealth Affairs (Mr. Anthony Kershaw)

I am here to answer the Adjournment debate.

Mr. Davis

I sympathise with the hon. Gentleman. I am delighted to be able to give him the opportunity for further education.

We are here vesting in the police powers which they do not have in other respects. They will be able to arrest if they believe that someone might commit an offence. That is a very grave power, which caused Lord Gardiner serious concern.

There have been many instances of people being detained and waiting for a long time for a decision from the Home Office as to whether they are to be deported. This is a serious reflection on the present procedure. I hope that the Minister of State will encourage the Home Office to take much speedier decisions when representations have been made. I know of a number of instances of people being kept waiting in prison month after month. Whatever the result of the determination of the Home Office, the decision should be communicated much more quickly, for there is hardly anything which causes people more anxiety than not knowing what the future holds for them.

Mr. Sharples

By leave of the House; I entirely agree with the last words of the hon. Member for Hackney, Central (Mr. Clinton Davis). All of us who have to deal with these cases are concerned that there is sometimes a long period when a person has to be kept in detention, or waiting, while a decision is made. The hon. Member for Leeds, South (Mr. Merlyn Rees) will know that the reason is often that inquiries have to be made in the country of origin, and it is sometimes very difficult to get answers to them. One is often faced with the choice of making a decision which may, in the absence of sufficient information, be adverse to the person concerned, or keeping him waiting while the search continues, references are made, and inquiries are pursued. Nonetheless, it is a matter of concern to my right hon. Friend and to me that from time to time people have had to be kept in detention much longer than one would wish.

9.0 p.m.

This is the first time that any form of appeals machinery has been introduced. This is an appeal to an adjudicator. We considered carefully whether it should be an appeal to an adjudicator or to the courts. We came down in favour of an appeal to the adjudicator because these are cases of people who have not been admitted to this country. The adjudicator, unlike the court, is used to dealing with immigration cases, and has the experience which will enable him to judge whether a person is likely to abscond. He is dealing with cases like this all the time. The hon. Member for Hackney, Central asked whether there should be further appeal machinery. I presume that he was thinking of appeal to the court or tribunal. I do not think that in this case, where we are introducing an appeal for the first time, further appeal machinery is either right or necessary. In cases of this kind we want to try to release the person and make the decision as soon as possible. If a decision cannot be made we want to release the person under the conditions discussed earlier, subject to his reporting to an immigration officer or to the police.

It is not in the interests of the Home Office that a person should be kept in detention longer than is necessary if he is not likely to abscond or take advantage of his liberty.

Mr. Clinton Davis

I do not think that will do. In the case of an appeal against a refusal—an appeal from a magistrates court—the matter can go to a judge in chambers that very day, or a day or two later. There is no question of immense delay or hardship to the person seeking leave to appeal. A man may feel that he has been deprived wrongly of that benefit and he has no safeguards under the present provision. Why cannot the additional safeguard which applies to the ordinary criminal offence be available in such cases, with an appeal to a judge in chambers?

Mr. Sharples

We are dealing not with a criminal offence but with the detention of a person not admitted to this country—a person detained because if he is released it is thought that it will not be possible to keep track of him. It is for that reason that we have decided that the appeal should go to an adjudicator.

I appreciate that these Amendments are extremely complex. One of the reasons why it took some time for them to be tabled is their very complexity. I made clear earlier that this was bound to be a fairly complex operation. I appreciate the situation and apologise to the Opposition and the House for the very short notice that there has been. I realise that there has been very little time to consider this most complex matter. The hon. and learned Member for Rowley Regis and Tipton (Mr. Peter Archer) will understand why so little time has been available.

Mr. Peter Archer

I was not in any way complaining about the tardiness on the Minister's part in tabling the Amendments, but about the fact that we have had this debate foisted upon us today, after being told earlier that it was not proposed that the Act should come into operation until some time next year.

Mr. Sharples

The hon. and learned Gentleman will appreciate the difficulties faced by a Government at the end of a Session of Parliament. I need say no more.

Question put and agreed to.