My Lords, Clause 5 amends paragraph 18 of Schedule 2 to the Immigration Act 1971 to include persons who are liable to be detained. This will allow immigration officers to check the fingerprints of persons they suspect to be illegal immigrants where there is a question about their identity. The existing power allows for fingerprints to be taken only from persons who have been detained under immigration powers.
The ability to establish an identity is an essential requirement for immigration officers when undertaking immigration enforcement operations. Unless identity is established it is not possible to remove or deport illegal immigrants. At present, where immigration officers
encounter people whom they suspect to be illegal immigrants and have doubts about their identity, they can check the person’s fingerprints only with their consent or following the person’s arrest. In some instances this can lead to unnecessary arrests or result in illegal immigrants not being detected. In answer to the noble Lord, Lord Rosser, surely the Committee does not want innocent people going about their lawful business to be arrested. Secondly, if the suspect does not appear to understand English, how can they give informed consent to have their fingerprints taken?
This power is intended to reflect the conditions under which the police operate. Prior to the changes made to the Police and Criminal Evidence Act 1984 in 2005, the police also needed consent to check fingerprints where a person had not been arrested. The amendment has enabled the police to make fingerprint checks without the need to arrest individuals who are suspected of committing a criminal offence and whose identity might otherwise not be readily ascertained or verified.
This clause will bring immigration officers’ administrative enforcement powers more into line with police powers. The power to check fingerprints will be limited to the purpose of verifying identity as part of an immigration enforcement investigation. The fingerprints will not be retained but rather immediately electronically checked against the immigration biometric database. If there is an existing record, this will confirm the person’s identity and potentially assist the immigration officer to ascertain the person’s immigration status. This will help avoid unnecessary arrests, allowing those legitimately in the UK to go about their business, while quickly identifying illegal immigrants.
I want to assure noble Lords that this power does not mean that immigration officers will be able to stop anyone they encounter. The person required to provide fingerprints for checking must be liable to detention under the immigration Acts. In practice this means that the immigration officer must have reasonable grounds for suspecting that they might be liable for removal from the UK. There will not be any blanket testing of people just because they look foreign. I hope that answers the question from my noble friend Baroness Hamwee about the term “liable to detention”. As I understand it, it is not a new term.
Clause 6 is intended to improve the levels of assurance about persons naturalising or registering as British citizens and to ensure that the identity of British citizens who apply for their first UK passport can be properly identified. Amendment 22 would weaken these proposals.
The power is intended to protect new British citizens from having their identity stolen by impostors by enabling a photograph submitted as part of a passport application to be checked against the new citizen’s record. If we destroy new citizens’ photographs before they obtain a passport, HM Passport Office would be less capable of confirming their identity. It would also expose HM Passport Office to fraudulent applications for British passports.
As observed by the noble Lord, Lord Rosser, over 90% of new British citizens make a passport application within one year, so very few new citizens will have their photograph retained for more than a year. I accept
that this will result in a small minority of new British citizens who decide against applying for a British passport having their photograph retained for a longer period as a consequence of these provisions. However, retaining the photograph will be useful to them in protecting their identities. In particular, new British citizens who retain their other nationalities may opt to have a certificate of entitlement affixed to their non-British passport instead of obtaining a British passport.
This document is a right of abode vignette—passport sticker—that can be issued to, in addition to British citizens, certain other categories of Commonwealth citizens who have a right of abode if they have not ceased to be Commonwealth citizens. It contains a photograph of the holder, which needs to be checked against the photographs that the person may have previously submitted as part of an immigration or nationality application. Holders of valid certificates of entitlement are not allowed to hold a British passport at the same time.
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Other possible reasons for a new citizen not applying for a passport include the person not planning to travel outside the UK, or not wanting confirmation of their UK citizenship status through the naturalisation process. However, it may remain open to them to apply for a passport at some time in the future.
I turn to Amendment 23. Clause 8 is designed to standardise the definition of biometric information so that there is a consistent definition across the various immigration legislation provisions. It makes it clear that external features such as fingerprints, faces and features of the eye’s irises are forms of biometric information that can be taken from persons for immigration identification purposes.
The proposed amendment seeks to remove an order-making power to enable the Secretary of State to prescribe new types of biometric information. This would mean that the Secretary of State was not able to take advantage of new technologies that allowed for identifying information about a person to be taken from an external examination. However, the amendment as currently drafted does not work as there are further lines in the clause that the amendment would leave untouched that refer to the order-making power that the amendment seeks to remove.
I make it clear to the Committee that any such order to include a new biometric definition will require the authority of both Houses of Parliament before it can come into force. Furthermore, this provision specifically excludes DNA from being biometric information, either now or in the future. To do that would therefore require primary legislation. The order-making power will allow new types of biometric information to be included only where such information can be obtained from an external examination of the person. This will ensure that our powers to take biometric information from people for immigration identification purposes do not result in intrusive checks being carried out.
An example of the sort of information that could be prescribed by order in future would be information obtained from an examination of the sub-dermal layers
of a person’s skin, or vein scans. Although this technology has not yet been adopted by the Home Office, we recognise its potential to be very useful when seeking to identify persons whose fingerprints cannot be easily recorded, such as elderly people and those with damaged fingerprints.
Amendments 24 and 25 to Clause 10 would reduce the flexibility of the Secretary of State to use the biometric information that she holds to protect the public. The clause provides a single regulation-making power to ensure consistency in the way that biometric information is used and retained by the Secretary of State. Clause 10 refines Section 8 of the UK Borders Act 2007, which was brought in by the previous Government, by including additional safeguards about how the biometric information held by the Secretary of State may be retained and used.
Amendment 24 would mean that the Secretary of State could not use biometric information to identify an injured person. This clause replicates a provision that is contained in Regulation 9(f) of the Immigration (Biometric Registration) Regulations 2008, made in November 2008. It was introduced using Section 8(2)(f) of the UK Borders Act 2007, which allows the Secretary of State to put into regulations additional purposes for which biometric information might be used. This provision was introduced by the previous Government. We have placed that measure in the Bill because it covers an important purpose for which biometric information is currently used. The measure is intended not to deny people medical treatment but to identify them so that families may be contacted, and to help ascertain facts about their medical records. We would anticipate that biometrics will be used only when it is not possible to identify the person through other means.
Amendment 25 would remove the existing flexibility that the Secretary of State has to prescribe in regulations new circumstances in relation to which biometric information could be used. It would mean that the Secretary of State could not readily respond to new situations that might not have been foreseen. This power is not new but replicates a provision already contained in Section 8 of the UK Borders Act, which has proved useful. As I mentioned, the Secretary of State has already made regulations to allow the use of biometric information that she holds in connection with identifying victims of an event or a situation that has caused loss of human life, or human illness or injury.
In addition, the Secretary of State has also made regulations for the purpose of ascertaining whether any person has failed to comply with the law or has gained, or sought to gain, a benefit or service, or has asserted an entitlement, to which they are not by law entitled. As with the existing provisions, any regulations introduced would in any event require the approval of both Houses of Parliament, and debate, before they came into force. I therefore hope that noble Lords will feel able not to press their amendments and will agree that Clause 5 should stand part of the Bill.