Borders, Citizenship and Immigration Bill [HL]

The noble Baroness’s amendment allows us to explore what powers and functions immigration officers will have when they are acting as customs officers as opposed to what they will not have, which is spelt out in Clause 1(2). The powers of HMRC officers, as far as we know, are specified in the Customs and Excise Management Act 1979 and the Finance Act 2008. They include a number of powers which are clearly not relevant to border posts, such as visiting and inspecting without obtaining consent and searching computer records; and other powers which may be exercisable at the borders, such as invasive physical search, seizure of goods, impounding aircraft and ships, and powers to arrest and detain. What we need to know in each of these cases is whether these powers will be exercisable by immigration officers and where to look for the particular statutory authority that confers those powers on them. The Finance Act 2008 renews the criminal offence of destroying or concealing records and introduces several penalties for non-compliance. It requires a third party to provide information and documents for the purpose of checking a person’s tax position, and the definition of ““tax position”” outlined in the same Act would appear to require the possession of personal data that could be of use in the immigration context. Under existing immigration legislation, requirements relating to third parties are narrowly defined, so the obligation for third parties to provide information for immigration purposes seems to be a major increase in powers and constitutes a substantial intrusion into civil liberties. If that is correct, the Government, so far as I see it, have made no attempt to justify this potential interference with Article 8 rights. HMRC powers of arrest allow a person to be arrested for an offence that was allegedly committed up to 20 years before. Can we have an assurance that that would not apply to immigration offences? What safeguards are there in the Bill against the extension of HMRC arrest powers to immigration offences? We have a broad policy concern, as my noble friend has already said, about the continued association between immigration and criminal activity, which is potentially underlined by the merger of immigration and HMRC powers. The 1979 Act’s search powers for a customs officer are directed at persons who may be carrying any item that is prohibited or restricted, or which is liable to excise duty or tax that has not been paid, and the threshold for suspicion is low. The search may extend to a strip search and an intimate search, and HMRC officials may detain for as long as is reasonably necessary while a search is carried out. If a person does not agree to the search, the customs official may arrest him. Under the Bill, UKBA staff will be able to carry out physical examinations at the border, either of their own volition or at the request of HMRC. Although they have their own powers of detention, the search powers that they have already under the 2007 Act are being enhanced. What assurances can the Government offer that UKBA officials will not inappropriately use powers that are designed for customs purposes in immigration control? Will they be obliged to serve a notice on the subject who is being searched or detained, specifying the Act or SI under which that power is being exercised? Liberty is concerned about the power of HMRC officials to take fingerprints and DNA samples, and we are worried about the progressive extension of taking and retaining biometric information. We are particularly concerned about the failure of the Government to respond to the judgment of the European Court of Human Rights in the S and Marper case, where it was found that our policy on the retention of DNA samples was in breach of Article 8. We will be raising that issue under Amendment 111, but I give notice that I shall be mentioning the particular case of a British citizen who was stopped at Heathrow terminal 1 and required to give fingerprint and DNA samples which are to be retained indefinitely, in contravention of the judgment. I wrote to the Secretary of State about this on 5 December, the day after the judgment, and had an unsatisfactory reply from the Minister of State, Mr Vernon Coaker. I will give the reference so that the Minister can look it up: it was M50/9, dated 14 January 2009. At the time of the judgment, almost 900,000 samples were being retained from people who were never charged or convicted subsequently of any offence. I take a very serious view of this matter, which we will need to discuss in more detail later on.