HL Deb 24 February 2004 vol 658 cc188-94

7.33 p.m.

Baroness Scotland of Asthal rose to move, 'That the draft regulations laid before the House on 21 January be approved [7th Report from the Joint Committee.]

The noble Baroness said: In moving these draft regulations, I will also speak to the Immigration (Leave to Enter and Remain) (Amendment) Order 2004.

There are two statutory instruments to be considered. The first is the draft Immigration (Provision of Physical Data) (Amendment) Regulations 2004 which are made in exercise of the powers conferred on the Secretary of State by Section 126 of the Nationality, Immigration and Asylum Act 2002. Section 126 enables the Secretary of State, by the making of regulations, to require that an immigration application be accompanied by physical data of an external characteristic or to enable an authorised person to require an entrant to provide information of this sort. One set of regulations has already been made under this power—the Immigration (Provision of Physical Data) Regulations 2003. The 2003 regulations required the provision of a record of fingerprints by entry clearance applicants in Colombo.

The second statutory instrument is the draft Immigration (Leave to Enter and Remain) (Amendment) Order 2004, which is made in exercise of the powers conferred by Section 3A of the Immigration Act 1971, as inserted by Section 1 of the Immigration and Asylum Act 1999. Section 3A (3) enables the Secretary of State by order to prescribe the circumstances in which an entry clearance is to have effect as leave to enter the United Kingdom

The purpose of these statutory instruments is to expand the current fingerprinting power in the 2003 regulations to encompass new categories of immigration application. The new provision will require those applying for entry clearance in Djibouti, Ethiopia, Eritrea, Tanzania and Uganda to provide fingerprint data. Holders of 1951 convention travel documents issued outside the UK will also be required to provide fingerprints on making an application for leave to enter the UK. We are amending the Immigration (Leave to Enter and Remain) Order so that this application has to be made on arrival in the UK. This ensures that any 1951 convention document holders who refuse to provide their fingerprints can be refused leave to enter.

Fingerprinting in Colombo will continue. The initial six-month pilot has been concluded and the results were reported to the House in the letter from my right honourable friend Beverley Hughes of 5 February to the chair of the Seventh Standing Committee on Delegated Legislation, a copy of which was placed in the Library of the House. The results of the pilot are encouraging and the Government remain convinced that greater use of biometric technology will support efforts to prevent document and identity fraud. It will enable those who have an entitlement to enter the UK to do so without hindrance while preventing those who seek to circumvent our controls from doing so.

There will be no change to the procedural safeguards already provided as part of the existing fingerprint requirement. Applicants who are under 16 years of age will have their fingerprints taken only in the presence of a responsible adult who is over 18 years of age and not employed by the Government. Those safeguards also apply to the new categories of applicant who will be subject to the fingerprint requirement. Fingerprints collected in Colombo and east Africa will be added to the immigration and asylum fingerprint system database. That will allow for the identification of any visa applicant who subsequently makes either an asylum or immigration application in a different identity. That will, in turn, help establish the nationality of those who no longer have a basis on which to remain in the UK, and so assist with securing their removal.

In common with other data collected in respect of immigration and asylum applications, fingerprints will be shared with the police and other law enforcement agencies for the purposes of the prevention or investigation of crime. All such exchanges will be carried out in compliance with the Data Protection Act 1998. That means that data may only be disclosed when it is necessary for one of the specified purposes set out in the data protection legislation, such as the exercise of statutory, departmental or police functions, and that the disclosure must be conducted in accordance with the data protection principles. An additional safeguard is that, under the regulations, any fingerprints stored on the database are required to be destroyed no more than 10 years from the day on which they were provided.

Any entry clearance application that is not accompanied by the necessary fingerprint data may be treated as invalid. There may be exceptions, including applicants who, because of physical disability or injury, cannot provide fingerprints. The system will be operated in a reasonable way to limit the impact on applicants.

We also propose to fingerprint holders of all 1951 convention travel documents issued outside the UK at the time those people make an application for leave to enter this country. There is some evidence to suggest that, in addition to more conventional document fraud, individuals who have been granted refugee status elsewhere are making asylum applications after arriving in the UK. They do this by travelling to the UK on a convention travel document issued by another country which they destroy on arrival in the UK and subsequently claim asylum. Fingerprinting such people on arrival will allow us to identify the basis on which they entered the UK if they subsequently claim asylum. Again, the safeguards in relation to age and use and storage of fingerprints will apply.

The Immigration (Leave to Enter and Remain) Order 2000 is being amended because, at present, an entry clearance will act as leave to enter. Without this amendment any convention travel document holder with an entry clearance would enjoy a right of entry to the UK. To require such a person to provide fingerprints at the entry clearance stage would require the installation of fingerprinting equipment at every entry clearance post world-wide, as we do not want the fingerprint requirement imposed on convention travel document holders to be limited to those applying in certain countries. To do that would involve vastly disproportionate expense. The order needs to be amended to make clear that the holder of a convention travel document must apply for leave to enter on arrival in the UK even when he or she is in possession of a valid entry clearance. If a convention document holder refuses to provide fingerprint data when seeking entry to the UK, that application for leave can be refused and the individual can, if appropriate, be removed.

We are working with the authorities in relevant east African countries to effect a smooth introduction to the fingerprinting operation. The support and cooperation received is much appreciated by this Government. The UNHCR is also being consulted about these proposals.

As I have said, we believe that the use of biometric technology in the immigration field is an important development that will provide greater certainty over people's identity than has been possible in the past. We are not alone in that view. We are working with our EU partners on proposals for the inclusion of biometric identifiers in visas and residence permits, and noble Lords will be aware that the US authorities are already making greater use of fingerprint data. Those measures will of course provide benefits for us and our controls, but they also provide reassurance to legitimate travellers. By reducing the scope for identity fraud, we reduce the risk that legitimate travellers will have their identity stolen or, because of similar details, will be mistaken for someone else. It is for those reasons we believe that it is essential that we make appropriate use of biometrics. I commend the regulations and the order to the House.

Moved, That the draft regulations laid before the House on 21 January be approved [7th Report from the Joint Committee].—(Baroness Scotland of Asthal.)

Viscount Bridgeman

My Lords, I am most grateful to the Minister for that comprehensive explanation of the two orders. The physical data order extends the entry requirement for both visa and non-visa nationals, which they must obtain for clearance before travelling to the UK. Apart from the saving in time by processing such applications before arrival in the distant country, it also saves the complications that could arise in certain circumstances in which entry would otherwise be refused at the port of entry. That is a policy that we certainly support, and it is clearly a matter of some satisfaction that the pilot scheme in Sri Lanka has worked well. We accordingly support the move to extend the policy to the other countries in east Africa.

We also welcome the tightening of the requirements in respect of the documents relating to documents issued pursuant to the UN convention on refugees by requiring the production of fingerprints to the Immigration Service. We welcome the effect that that will have on applications under another identity or where national security is involved. I am grateful to the Minister for outlining the safeguards that are in place to ensure that that is not abused.

The other, related order tightens up the loophole in the previous order and provides that an entry clearance shall no longer have effect as to leave to entry when that entry clearance is endorsed on a refugee travel document. We are pleased to note that that is not retrospective and applies only to those refugee documents endorsed after 27 February 2004. We on these Benches support the two orders.

Lord Avebury

My Lords, we are also much obliged to the Minister for her comprehensive explanation of the orders. We are in favour in general terms of the better use of physical data in preventing illegal immigration and are aware of the useful work that is already being done on that subject. In Sub-Committee F we had the opportunity to visit Oakington, where we were told that some people who had been refused asylum came round the second time and were being detected by the fingerprint system. To that extent, we are already making good use of biometric data and there is no reason in principle why that should not be extended. However, we need to be assured that the present proposals are both proportionate and compatible with data protection considerations. I am grateful to the Minister for her remarks on those matters.

We do not have the letter referring to proportionality that the Minister said was sent by her colleague in another place to the committee. I asked in the Printed Paper Office and in the Library, and I can tell the Minister that it was not on POLIS. Therefore, I have come into the Chamber without full knowledge of the report made by the Minister in another place, although I have had the opportunity of studying what she said before the Standing Committee on Delegated Legislation.

The Minister in another place explained that the purpose was to extend the use of biometric controls to the countries mentioned today. She also gave some information about the results from the letter; she said that 14,000 fingerprints had been taken in Colombo and that the result was that seven people were positively identified and two of them received prison sentences. In reply to a question from Mr Boswell, she said that if one considered the decline in applications from Colombo and compared it with the equivalents from India and Pakistan, there was a more than proportionate reduction. Therefore, fingerprinting had been effective, not only in catching people who committed offences but in deterring unjustified applications from Colombo. I would very much like to have seen the coloured graphs that the right honourable Lady mentioned in her speech to the Standing Committee; I hope that copies of them can he placed in your Lordships' Library.

The Minister in another place also made the point that sharing the data had to be consistent in all respects with the Data Protection Act 1998, the Human Rights Act 1998 and the common law of confidence. I should like to ask the noble Baroness, when she comes to reply, what consultation she has had with the Information Commissioner on the matter. It is not only what the Government say about the use that is to be made of the data that matters, but what the statutory body set up for the protection of individuals under the Data Protection Act has to say. Personally, I should like there to be a certificate in the legislation, when major extensions are being contemplated in the use of biometric data, saying that the Government have consulted the Information Commissioner and that he has raised no objections to the proposals.

The noble Baroness referred indirectly to the European Union draft directive on the use of biometrics on all passengers arriving at ports of entry into the EU. The report from Sub-Committee F on the proposal, which was published on 12 February, found that an adequate case had not been made out for that proposal, which was of course much more far-reaching than what is in front of us now, because of the considerable burden it would place on carriers and the disproportionate cost in comparison with the results hoped to be achieved. It is unfortunate that we have had no opportunity of debating that report, as we are faced with a creeping extension—although it may be perfectly justified—of the use of physical data without the opportunity to consider the order in the context of the more far-reaching proposals that will be coming down the track. However, that may simply be an accident of our timetable, which could not have been avoided.

Both the UK and the European Union have taken their cue on these matters from the US, where all visitors from non-visa waiver countries must already provide biometric data on arrival. I understand that that is to be extended to everybody who enters the United States, even those who possess standing visas, from October this year. Perhaps we do not have any discretion in this matter, when airlines will be compelled to accept US regulations. There will be very practical reasons for Europe to adopt the same rules. However, we should at least know what it is going to cost, what new obligations are being loaded on to carriers and whether the Government and the Information Commissioner are fully satisfied that adequate steps are being taken to ensure that our data protection legislation is being observed.

I should like to say a word on the imposition of the new requirements on the holders of convention travel documents. I understand what the noble Baroness said about not requiring everyone to obtain fingerprints before they set off, as that would entail an enormous extension of the fingerprinting system to every country from which a CTD holder might arrive. Presumably, however, when CTD holders from the main countries in east Africa—and from Kenya if it is added to the list, as was discussed in the Standing Committee in another place—apply at those posts for an entry certificate, they will automatically be fingerprinted before they set off and will not have to be fingerprinted again on arrival. I also assume that when CTD holders apply for an entry certificate in other countries that are not in east Africa or in Sri Lanka they will be told specifically that they will be asked to give a fingerprint on arrival in the United Kingdom. I hope that the noble Baroness can give those assurances. I welcome this order and these regulations.

Baroness Scotland of Asthal

My Lords, I thank both noble Lords for the warmth of their welcome for the order and regulations, for the utility which they will provide in determining the bona fides of the identity of those seeking to rely on them, and for their generosity and understanding of why they have become necessary. Having said thank you very warmly, I hope, to the noble Viscount, Lord Bridgeman, for his unreserved support, I turn to the questions asked by the noble Lord, Lord Avebury.

The Information Commissioner has not specifically been consulted. However, as the noble Lord will know, the Data Protection Act provides very clear safeguards. We have taken those safeguards very seriously indeed. We are not aware of any issues raised by the commissioner in relation to Sri Lanka but we shall certainly make inquiries about them. As for the issues raised about the CTD holders, the noble Lord's description was correct. The fingerprints should be taken once. We are proposing the amendment so that those who have not had their fingerprints taken can have them taken when they arrive.

The noble Lord also asked whether east African CTD holders will be required to provide fingerprints on arrival. The answer is: no; they will have their fingerprints captured when they apply for a visa overseas prior to arrival. So people will have their fingerprints taken either prior to arrival or on arrival. I thank the noble Lord for his appreciation of the utility of the scheme we have put together. We think that it neatly fits the requirement for a measure which is necessary and proportionate. Of course I note the noble Lord's comments on the regrettability of not having a debate. As always, that is not within our hands; it is a matter for the usual channels.

On Question, Motion agreed to.