Nationality, Immigration and Asylum Act 2002 (Juxtaposed Controls) (Amendment) Order 2006

We, too, are grateful to the Minister for the careful and detailed explanation that he gave of the provisions in the order and for giving us the opportunity to continue the discussion that we had during the passage of the 2006 Act, as the noble Baroness said, when these proposals proved to be among the most controversial in the Bill. If there is a great deal of anxiety about the management of the UK-based detention estate, such as we saw last week, arising from the chief inspector's report on Yarl's Wood, how much greater is the need for concern about what happens at the juxtaposed controls on the other side of the Channel, particularly, as under this order, when private contractors are being employed to arrest, detain, search and fingerprint passengers, without either French or British officials being present? Moreover, as the Independent Race Monitor told the Home Affairs Committee in another place, the likelihood that a person seeking to enter the UK will be refused is greater at these overseas ports than in the UK, which raises questions of the relative fairness of the procedures in the two locations. We know, for instance, that biometric identification is an imperfect technique, and many asylum seekers are refused on the basis of a match between their fingerprints and ones stored on the Eurodac computer system. It would be interesting to know how many challenges there are on the grounds of false matches at the juxtaposed controls and at UK ports of entry respectively, and, of the challenges, what proportion are successful at each, as an illustration of the fact that greater difficulties are bound to arise at the juxtaposed controls than at UK ports of entry. We had some assurances from the noble Baroness, Lady Ashton of Upholland, when we discussed these matters on 7 February, as the Explanatory Memorandum recalls, but it was the combination of the employment of private contractors and the fact that they would operate under an overseas jurisdiction that raised our anxieties, not the fact that the contractors themselves would be foreign. We did not say that the French police would not be capable of applying criminal records checks to the staff employed by contractors or that the course material for training staff would be deficient, although we were naturally anxious to ensure that these matters had been covered. The noble Baroness, Lady Anelay, repeated that this afternoon. The noble Baroness, Lady Ashton, undertook to place the training documents in the Library of the House. Will the Minister tell us whether that is being done or whether it has already been done, so that, as the noble Baroness, Lady Anelay, says, we can be satisfied that the training procedures are sufficiently rigorous? We said that the activities of the contractors who are being given these new powers are intrinsically less liable to come under public scrutiny and are therefore more liable to give rise to errors. There are several reasons for that. First, although a person who claimed that he was wrongfully detained had a right of access to the chief immigration officer and then to the monitor, who is a Crown servant appointed under Section 41 of the Nationality, Immigration and Asylum Act to examine the use made of thepowers conferred on independent contractors, the complainant would have been returned to his country of origin before that process could have led to a result. Will the Minister say—he touched on this in his speech—who has been appointed as monitor? I rather think that he said that a monitor had not yet been appointed, but perhaps he will correct me if I am wrong. If the monitor has been appointed, when did that person assume office? What statistics are to be published on the complaints received, and at what intervals? How were they dealt with in the UK and at the juxtaposed controls respectively? If the monitor has not yet been appointed, will the Minister explain the reason for that delay and how long he expects it to be before the monitor takes up office? Secondly, allegations of the ill treatment of detainees or of failures in the duty of care in the UK can be pursued by the Chief Inspector of Prisons and, where children are involved, by the Children’s Commissioner. Both of them have access to the juxtaposed controls but, given all their other duties, they may not get around very often to visiting Calais, Dunkerque and Boulogne—the three ports to which the order applies—let alone to the Eurostar stations in France and Belgium where the power to take fingerprints already applies under other orders mentioned in the Explanatory Memorandum, although not for private contractors to arrest, detain and search passengers. So far, the chief inspector has inspected these facilities only once—she visited the short-term residential holding facilities at Calais in August 2005. That, of course, was before the authorised search officers mentioned by the Minister appeared on the scene. At that time, the longest period for which anyone was held in the previous year was 17 hours—much longer than the three hours mentioned in the order—and it would be useful to have at regular intervals more up-to-date information on the average and maximum lengths of detention. As the Minister will no doubt acknowledge, under Article 3(2) of the Le Touquet treaty, which has been mentioned, the maximum period for which a person can lawfully be held is 24 hours, unless otherwise authorised by legislation in the state of arrival. Thirdly, will the Minister say what requirements and procedures to govern this practice have been laid down under the article? Fourthly, as the Minister will recall, particular concern was expressed throughout the proceedings on the Immigration, Asylum and Nationality Bill about the delegation of responsibility to private contractors for the power to arrest, detain and search unaccompanied children. The Children’s Commissioner visited Yarl’s Wood and said that he was shocked and disappointed by the treatment of children there. He and Anne Owers have both called for a complete overhaul of the detention of children. As I have said before, if things can go wrong under our very noses in this country, how much greater is the risk on the other side of the Channel? Astonishingly, the Children’s Commissioner was not on the list of those consulted about the use of private contractors before the order was laid. Will the Minister explain why Sir Albert was left out, and whether he has nevertheless expressed an opinion on these proposals? In addition, the chief inspector recommended independent monitoring of short-term holding centres, instead of which the Government have introduced monitoring by an official. Why was the chief inspector’s advice ignored and a government official appointed instead of an independent person? In the consultation document issued last April, it was stated that private searching by ASOs independently of immigration officers was to commence at Calais in August, after they had worked alongside each other since August 2005. No mention is made of ASOs at Boulogne and Dunkerque, and ILPA read the document as extending the use of private contractors only to Calais. It said there would be questions of vires if the order was applied more broadly, yet the order seems to relate to any of the control zones. Is that the correct interpretation, and did the Government put that to the consultees at any stage? What have they to say about ILPA's warning on vires? Finally, ILPA points out that the treaty on which these arrangements are based provides only that responsible officers of the state of arrival have the power of arrest and detention in the control zone—and that means immigration officers. The contracting parties have the power to modify the treaty by exchange of diplomatic notes under Article 23(2), but are expressly forbidden to change provisions that require legislative authority. I am sure that I am not saying anything that will be new to the Minister, because this was all in the ILPA response to the consultation. The noble Baroness, Lady Ashton of Upholland, made it clear on Third Reading of the IAN Bill on14 March that the Government were not delegating responsibility for these matters, which remained in the hands of the UK immigration authority. It is difficult to see how the power to arrest, search and detain a passenger can lawfully be exercised by someone who is not a responsible officer within the meaning of the treaty, and if any explanation was given to ILPA we hope that a copy will be placed in the Library of the House, and a brief summary given by the Minister in winding up this debate.