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Gone Fishin’

Gone Fishin’

My attention was drawn to this article in The Observer of 6 November 2011.

It seems that UKBA enforcement officers in Liverpool have been off on their fishing trips at, amongst other places, the local bus and train stations, which to the best of my knowledge serve no international traffic. As described in the newspaper, it would appear that with a view to apprehending unsuspecting immigration offenders, the UKBA officials are giving bus and train passengers ‘a tug’ just to see what turns up. One affronted passenger, a British citizen, wrote to the UKBA and received a reply from the inspector at Liverpool UKBA office to the effect that the powers for immigration officers to conduct such checks are contained within the Immigration Act 1971, yet The Observer comments that the Act provides for no such thing.

It was a quiet Sunday afternoon, so I decided to see what I could find out…..

Contrary to what is stated in the article, immigration officers actually do have the power to examine an individual post-entry, as held in Baljinder Singh v Hammond [1987] 1 All ER 829, [1987] Crim LR 332. This permits an Immigration Officer to examine someone already in the UK in order to establish whether he is “a British citizen and if not whether he may enter the United Kingdom without leave, and if not whether he should be given leave and on what conditions”, the power being derived from Sch. 2 para 2 of the ’71 Act.

However, it must be questioned whether the blanket approach of requesting identification of every person who happens to be disembarking from a given bus or train is intra vires.

The UKBA’s published Enforcement Instructions and Guidance (31.19) set out the procedures IOs are meant to follow, including having to have a ‘reasonable suspicion’ as well as regard to the Race Relations Act 1976. The incidence cited in The Observer report indicates that the UKBA, in Liverpool at least, are seeking to address the terms of the Race Relations Act by requiring everyone onboard a disembarking bus or train to produce identification, but this in turn raises questions of ‘reasonable suspicion’.

So, either a British citizen, or an EEA national or a foreign national lawfully in the UK is required to demonstrate their right of abode, presence under Directive 38/2004 or lawful status under the Immigration Rules whilst travelling within the UK? Such a blanket requirement hardly gives grounds for a ‘reasonable suspicion’ and must be ultra vires.

As someone commented to me:-

“Certainly, I would have simply pushed my way past and prayed some overzealous Immigration Officer or copper arrested me – the compo would certainly be in the £5000 – £25,000 range.”

Ralph Davies

(The author is an OISC-registered immigration adviser and ex-immigration officer.)

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