Clause 5 amends Schedule 2 to the Immigration Act 1971 to include persons who are “liable to be detained” as being persons in respect of whom steps can be taken for the purposes of identification, such as fingerprinting and photographing. We put down this question on whether the clause should stand part and Amendments 22 and 25 to raise some questions about how this clause will be implemented and why it is considered necessary, not because we are opposed to the use of biometric information or its provision by various people.
It would be helpful if the Minister could indicate what individuals, circumstances or situations would be covered by the words “liable to be detained” that are not currently covered by the existing legislation, including the Immigration Act 1971. It is perfectly reasonable to verify the identity of someone who is detained. The law provides for that to enable us to address the issue of, for example, dealing with people suspected of being in this country illegally. In that situation, the immigration officer can, for example, check the person’s fingerprints either with that person’s consent or following their arrest.
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When this Bill was considered in the other place, the Minister there said that the problem for an immigration officer was that when faced with somebody whom they did not want to arrest but whose information they wanted to check—either to ascertain that they were that person or to check the information suggesting that they might be an illegal immigrant—that officer would have either to let the person go if they did not consent or to arrest them. The Minister went on to say that the objective was to ensure that the immigration officer would be able to check the information and fingerprints to ascertain whether the person was who they thought or suspected they were. That, the Minister said, was the current gap in the legislation.
Frankly, I am still not sure what the gap is. If immigration officers have doubts about the status and identity of someone, they can ask them to have their fingerprints taken. If that person refuses, can they not be arrested and detained so that their fingerprints can be taken? Does that not also apply in the scenario referred to by the Minister in the Commons debate to which I just referred? Who are the people who immigration officers would not want to arrest if they declined to allow their fingerprints to be taken? Presumably the immigration officers would not just let them go, or is that what the Government say would happen? In which
case, who or what comprise this select band and how does Clause 5 enable their fingerprints to be taken if they refuse?
It would also be helpful if the Minister could indicate what steps would be taken to ensure that Clause 5 and its definition “liable to be detained” will not be abused so that people are deemed to come under the terms of the clause who neither the Government nor Parliament intended. What is the definition of “liable to be detained”? How many cases have there been in the last 12 months of people who would have had their fingerprints taken if the “liable to be detained” provision in the Bill had been in force but who could not have their fingerprints taken under the current wording in the Immigration Act 1971? In other words, how significant a problem is this, even though I am not entirely sure what the problem is, and what is the evidence to support the change in legislation that the Government seek to introduce? “Liable to be detained” could potentially include a very wide range of people, including those who are perfectly innocent. The Government need to say what steps will be taken to ensure that this clause is used in only a very limited number of circumstances that will be clearly defined and set out, bearing in mind that the Minister in the Commons said that the gap in legislation was very small.
I turn to Amendments 22 and 25. Amendment 22 relates to Clause 6 and would provide for a photograph to be returned after three years. It is a probing amendment to question the length of time that a photograph can be retained. Clause 6 enables regulations to be made to require those applying to become British citizens to provide biometric information as part of their application. The Government’s fact sheet states:
“If British Citizenship is granted, the biometric record will be deleted”.
Nevertheless, new subsection (1ZD) provides for the person’s photograph to be retained even after they become a citizen and until that person acquires a passport. The Government’s fact sheet further states:
“This will ensure that biometric information is retained where it is likely to be of continued use for immigration or nationality purposes”.
As I said, our amendment is a probing amendment. It would provide that a photograph could not be retained longer than three years. The intention is to give the Government the opportunity to clarify their intention in retaining information for what appears to be an indefinite amount of time. When this was discussed in the Commons, the Minister concerned did not provide an answer. What happens, for example, when someone does not apply for a passport? The Government say, in their statement of intent, that 90% of those who apply for citizenship do, but what about the other 10%? I hope that the Minister when he replies will be able to clarify what the Government’s intentions are and why they have produced this new subsection (1ZD), which does not appear to provide any time limit for the retention of the photograph.
Amendment 25 relates to Clause 10, which provides a single regulation-making power to ensure consistency
in how biometric information is used and retained by the Secretary of State. However, subsection (3) of the new section states that,
“the regulations may include provision permitting biometric information retained by virtue of subsection (2) also to be used … for such other purposes … as the regulations may specify”.
That is an all-embracing power. What kind of circumstances would this all-embracing subsection cover? Has it been put in with any “such other purposes” in mind? If so, what? Or has it just been included because it would avoid having to revise the regulations if another currently unknown “other purpose” arose? I hope that the Minister will be able to clarify the Government’s intentions on these issues.