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Part 3 of the 2015 Immigration Bill – enforcement

Part 3 of the Immigration Bill gives a host of new, wide powers to immigration officers.

A person with leave to enter arrives in at the airport. Schedule 19(1) and (2) – the first section of Part 3 – gives immigration officers the power to curtail leave, rather to simply determine whether leave has been given and act accordingly. So someone arriving in the UK even with the appropriate leave will now have a lingering uncertainty as to whether they will be allowed in. This is likely to affect few migrants, but is indicative of the greater powers given to immigration officers throughout the Bill.

The rest of schedule 19, and schedule 20, provide that immigration officers who are already lawfully on premises may search for documents which: may be evidence to curtail leave to enter or remain in the UK; might help determine whether a person has employed an illegal worker; or might help determine whether a person has leased premises to those not in the UK legally.

Clamping down on illegal immigration — and the unscrupulous people who seek to exploit it for their own gain — requires many different government departments and agencies to work together. Enhancing the powers immigration officers have will not only help them cary out their own work more effectively, but will also be of benefit to other law enforcement agencies who are working hard to tackle crime.So says James Broken-shire

If they find any such documents, the Bill gives the immigration officers the power to seize and keep them as long as they have reasonable grounds to believe that the documents are needed for the purpose for which they were taken, or in dealing with an objection to the penalty imposed, or for the purposes of any legal proceedings or appeals. The power to seize information includes taking computers on which documents are stored, if those documents cannot be printed.

For these powers to kick in, the person liable to be detained must be on the premises (so there can be no searches behind the person’s back); the immigration officer must have reasonable grounds to believe that there are such documents on the premises; and the immigration officer can only search the premises to the extent that it is reasonably required for the purpose of discovering such documents.

These provisions chime in with the general increases of powers of immigration officers to resemble police powers, especially given the ominously wide wording, “has reasonable grounds for believing”. Owing to the wide wording, a challenge to excessively disruptive searches by overzealous immigration officers would appear difficult unless the searches border on the ludicrous.

The Bill provides additional powers of search and seizure. Typically this may involve searching for evidence of illegal working such as pay slips or time sheets, and evidence of illegal renting such as tenancy agreements and letting paperwork.Overarching impact assessment to the Immigration Bill
Government factsheet: immigration officers are becoming like policemen - just less regulated
Government factsheet: immigration officers are becoming like policemen – just less regulated

The next section of the Bill – schedules 21 to 23 – will allow immigration officers, while carrying out their immigration duties, to seize anything which they reasonably believe to have been obtained in the commission of a criminal offence – that is, stolen – or is evidence in relation to an offence, if they reasonably believe that would be necessary to prevent the items being concealed, lost, tampered with or destroyed. The Bill gives immigration officers the duty to pass this information on to the relevant police or investigative officer as soon as is reasonably practicable. If there is no such person, the items must be returned. Items seized may be retained so long as is necessary in all the circumstances, but particularly if it will be used as evidence in a criminal trial or in a criminal investigation, or, if the item was stolen, to establish its true owner.

Subsection (9) gives an employer or landlord the right to access documents that have been seized and copy them. However, if there are reasonable grounds to believe that this access would jeopardize an investigation, access will be denied.Explanatory notes to the Immigration Bill

This section makes sense in obvious cases, where there are drugs lying on a table, but most of the time it is more difficult to tell what might be evidence for an offence. Immigration officers are unlikely to have as much training as the police on evidence-gathering, and will certainly have less experience than them in deciding what might be criminal evidence. Therefore giving immigration officers these new powers is likely to result in a significant number of mistakes, where documents are seized which do not turn out to be evidence of a crime. These searches are, by their nature, likely to focus on foreign-owned small businesses and those employing migrants. The 2015 Immigration Bill adds many provisions which will function as disincentives to employ migrant labour, of which this is one. In practice, it will be disruptive to foreign-owned small businesses, the vast majority of which operate legitimately. This provision will add to the atmosphere of xenophobia which the current government is fostering.

Schedule 25 gives the Secretary of State the power to direct an officer of a detention removal centre, prison, young offender institution, or short-term holding facility to order a detainee or prisoner to hand over all the relevant nationality documents in their possession. The relevant officer may, in the course of other search duties, also seize nationality documents, but must seek the consent of the Secretary of State to retain the document. The officer may search the person, any of the person’s belongings, the person’s accommodation, or any item of the person’s property in the detention centre or prison. This includes a strip search, but thankfully not intimate searches (of orifices which are not the mouth). Strip searches may be carried out in front of fellow detainees of the same sex but not of the opposite sex, or in front of other officers. The statute is fatally unclear whether the officer conducting the search may be of the same sex; it is silent on this point except for stating that a strip search may not be carried out in the presence of the opposite sex. Here is the vague section for you to see yourself.

Immigration Bill 2015-16, Schedule 25:

(6) The powers referred to subsections (1), (2) and (4) are—

(a) to require the person to hand over to the relevant officer all relevant
nationality documents in his or her possession,

(b) to search for such documents and to take possession of any that the
relevant officer finds,

(c) to inspect any relevant nationality documents obtained in the course of
the exercise of a power in paragraph (a) or (b), and

(d) to seize and retain any such documents so obtained.

(7) The power in subsection (6)(b) is a power to search any of the following—

(a) the person;

(b) anything the person has with him or her;

(c) the person’s accommodation in the removal centre, short-term holding
facility, prison or young offender institution;

(d) any item of the person’s property in the removal centre, short-term
holding facility, prison or young offender institution.

(8) A strip search may be carried out under subsection (7)(a); but such a search
may not be carried out in the presence of—

(a) another person detained as mentioned in subsection (1) or (2), or

(b) a person of the opposite sex.

(9) An intimate search may not be carried out under subsection (7)(a).

(10) A relevant officer may if necessary use reasonable force for the purposes of
exercising a power in subsection (6)(a) or (b).

This power is quite startling. The general strip search powers given to the police make it clear that strip searches should be done in private, where no-one else can see, by a member of the same sex. To be strip searched by a member of the opposite sex, especially for those from religious communities, is extremely distressing. In addition, for many, particularly those identifying as LGBT/Q, as many asylum seekers do, being strip searched in front of members of the same sex, or indeed anyone, would be greatly uncomfortable. Those in immigration detention have not committed any crime. So the strip search powers given to immigration officers in detention centres, at most, should be in line with those given to the police. It would be far simpler, more respectful, and more consistent to require complete privacy for those strip searched. These clauses, from a Bill introduced in 2015, have all the sensitivity of the 1950s.

Example

Doris, a religious Muslim migrant, is in an immigration detention centre. Bob, an officer at the centre, is directed by the Secretary of State to order Doris to hand over all the documents relating to her nationality. Bob brings his fellow officers Marcia and Lee in, to make sure nothing gets out of hand. Doris’ cell is opposite that of Andy, and he can see all that happens in her cell. Doris does not have the documents on her or with her belongings, so Bob decides to strip search her to make sure she is not hiding anything. Doris objects that it is improper for a man to search her, and says that she is embarrassed that Andy might see her naked. Doris at first resists, but then Bob physically forces her to co-operate while he searches her.

The statute is unclear on this point but it seems that Bob would be allowed to search her. However, he should not have searched Doris in the presence of Lee or Andy. The immigration officer conducting the search is allowed under the 2015 Bill to use reasonable force to ensure the search happens, so if he physically forces her to co-operate using reasonable levels of force, that would be allowed.

While the Bill is unclear on whether an officer of the opposite sex may conduct a strip search, the European Union Asylum Procedures Directive is crystal clear. Its provisions only apply to asylum seekers, and so it would only cover asylum seekers. The date by which Member States had to transpose the Directive’s main contents has passed – it was 20 July 2015. Section 13d of the Directive states as follows:

The competent authorities may search the applicant and the items which he or she is carrying. Without prejudice to any search carried out for security reasons, a search of the applicant’s person under this Directive shall be carried out by a person of the same sex with full respect for the principles of human dignity and of physical and psychological integrity;

A search carried out in order to seize nationality documents is not one carried out for security reasons, which would be directed to the question of whether they might have weapons on them. Consequently if Doris were an asylum seeker, Bob searching her would be a breach of EU law. Because of this Directive, any interpretation as regards asylum seekers which would allow searches by members of the opposite sex would be incompatible with the Directive and consequently a breach of EU law. It would be opaque, perverse and unacceptable for there to be two concurrent interpretations of exactly the same section of statute, one for asylum seekers and one for all other immigrants. Consequently this blog would encourage a change in the wording of the Bill to make it clear that only officers of the same sex may strip search migrants, full stop.

The only limit on this power is that the Secretary of State must have reasonable grounds to believe the relevant nationality document will be found by exercising the power. While this clause prevents harassment, it is rather obvious that the Home Office would only order documents to be produced if they thought that the documents would be produced. Given how distressing handing over all your documents is, one would hope there might be more safeguards than this. If the officer finds documents, they may seize and retain them, but must pass them as quickly as possible to the Secretary of State. The Secretary of State may keep them so long as they suspect that retention of the document may facilitate the removal of the person to whom the document relates – this suspicion will be almost impossible to disprove in court. Once that suspicion has ended, the documents must be returned to the person who previously possessed them.

The final section, Schedule 30, of Part 3 of the Immigration Bill irons out an existing gap in the statutes. The current situation is that when someone with valid leave to remain breaches their conditions, for instance through fraud, or gaining employment when a condition of their leave is not to work, they will have their leave immediately curtailed, be detained, and be given notice of removal. However, this procedure does not, at the moment, apply when, after someone has applied for further leave to remain, that person has been given interim leave by operation of section 3C of the British Nationality Act 1971. That interim leave, which will be beyond the date of expiry of the original period of leave, is not currently capable of being curtailed. This section of the Bill brings that situation into line.

All in all, this part of the Bill sees immigration officers given search powers akin to the police – in some cases even wider than those of the police. This is done in the name of synchronising the work of immigration officers and the police so that they can work together more efficiently in the future. This is a laudable goal. However, the way the government proposes to do this will by its operation target foreign-owned businesses, detained migrants and asylum seekers. The social and economic harm which this will cause is grossly disproportionate to the possible benefit to immigration officers and the police.

Paul Erdunast
Paul Erdunast LLM student at Cambridge University. Formerly a full-time Education and Community Care Paralegal at Just for Kids Law, Intern at Hackney Community Law Centre and Legal Caseworker at the AIRE Centre. GDL graduate from City University. Previously studied Classics at Worcester College, Oxford. Interested in immigration, asylum and refugee law and policy.

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