Borders, Citizenship and Immigration Bill [HL]

I am making an unexpected guest appearance in Committee on the Bill. I ask noble Lords to bear with me, as I was given the brief at the last minute. Both my colleagues on the Northern Ireland team were hoping to speak to the amendment but cannot do so. The common travel area has been very much part of my life. In 1946, I was taken as a child to the Isle of Man. I have been there in most years since, and 20 years ago my wife and I bought a cottage in the Republic of Ireland, so I am very much aware of the common travel area as it affects these isles. In effect, the clause abolishes the common travel area by removing the provision that means that persons departing from or arriving in the UK from within the common travel area are not subject to immigration controls. Since its advent, the common travel area has been suspended only during World War II. Even at the height of the Troubles in Northern Ireland in the 1970s and 1980s, the common travel area was maintained. The rationale given by the Government for these changes is set out in the impact assessment of the recent consultation on strengthening the common travel area. However, little empirical evidence is provided to support or explain the need for the changes, which seem to be unconnected to the reality of the situation on the border between the UK and the Republic of Ireland. There is also an expressed intention to increase the number of intelligence-led ad hoc immigration checks on the land border. In practical terms, Clause 46 means that immigration officials can challenge an individual whom they suspect of not being in compliance with immigration rules to prove their nationality. This will apply not only to those travelling by sea and air but to those stopped by an ad hoc immigration check near the land border. As this power can be applied to any individual, including British and Irish nationals, it will mean that those living in the border area could be subject to frequent immigration checks on any journey near the border and could therefore feel compelled to carry identity with them on all journeys. Given our concerns about the basis for the intelligence-led operations, we are concerned that this pressure may be felt most strongly among the ethnic communities living on or near the border and by individuals from these communities contemplating travel between Northern Ireland and the Republic of Ireland. This amendment aims to prohibit explicitly the practice of immigration checks on land crossings of the border between the UK and the Republic of Ireland. We are extremely concerned at references to mobile checks being made on a risk-led basis. The CTA consultation proposed the introduction of, ""ad hoc immigration checks on vehicles … to target non-CTA nationals"." The Home Office has subsequently stated that such checks would be intelligence-led on persons both arriving in and leaving Northern Ireland. The Government have not set out what criteria will be used as the basis for these operations or set out transparent monitoring to ensure that they are not relying on racial profiling. While the Government have stated that no fixed passport or identity document will be required for British and Irish citizens to cross the land border, clearly those stopped under enforcement operations will be expected to satisfy UK Border Agency officers that they are British or Irish citizens by producing passports, national ID cards or otherwise, as will non-CTA nationals. The clear question, in the context of ethnic diversity, is: will those policing the land border be able to tell who is a British or Irish citizen and who is not? Who, on indicating that they are not carrying particular travel documents, will be allowed to proceed and who will be subject to further examination and even detention until identity is verified? Experience of these actions, in the form of Operation Gull, has been that immigration officers have carried out investigations on a discriminatory basis. On a number of occasions, the High Court has criticised the practices of immigration officers in cases involving Operation Gull which have come before them. The speed and secrecy under which Operation Gull is carried out results in individuals being unable to access independent legal advice that would be able to determine whether they have been detained lawfully. One of the chief concerns is that individuals could be questioned under Operation Gull on grounds of ethnicity or nationality, irrespective of their intentions. The proposed powers in the CTA consultation will only increase the likelihood of Operation Gull-type operations. It is essential that the circumstances in which such checks may be made are carefully defined, to avoid establishing a broad power of internal immigration control. We are concerned that these measures could have a disproportionate impact on ethnic minority persons crossing or even just living and working near the land border. The potential outcomes of these circumstances would mean that an ethnic minority person would constantly have to carry identity papers or face frequent questioning regarding their status. A number of cases came before the Northern Ireland High Court, the most recent of which was an application for judicial review by Jamiu Olanreaju Omikunle, a Nigerian student who had obtained a proper student visa and was unlawfully detained by immigration officers at Belfast International Airport on a local journey. The court held that he was detained unlawfully. He had recently been awarded a significant amount of money in compensation for his unlawful detention and the appalling treatment to which he was subjected while in detention. Approving this provision will endorse such discriminatory policies where ethnic and racial profiling is at the core of their rationale. The significant number of people being adversely affected by Operation Gull prompted the Northern Ireland Human Rights Commission to conduct an investigation into the implementation and conduct of this operation. We understand that the Human Rights Commission is soon to report its findings in relation to its investigation. The Government’s attempt to introduce this provision at this stage is to neutralise its findings. We would also like a reassurance from the Government that they do not intend to make checks on those travelling between Northern Ireland and the rest of the United Kingdom. The measures proposed in the Bill mean that UK citizens in Northern Ireland will be subject to travel controls that are not imposed on UK citizens travelling from one region of Britain to another, as journeys across the border from Northern Ireland into the Republic are as common as journeys from England into either Scotland or Wales for those living along the Welsh or Scottish borders. It would be completely unacceptable for the Government to place controls on British citizens travelling from Belfast to the rest of the UK. Moreover, the powers of examination detailed in Schedule 2 to the Immigration Act 1971 refer to and are understood as usually applying to aircraft and ships, and air and sea ports respectively. The Government, through regulation, can determine otherwise. However, in relation to the CTA, they have not indicated an intention to do so and such a move would contradict the stated objective of not introducing fixed control requirements on the land border. This contradiction would also emerge if the Government pursued the extension of examination powers to international railway stations and trains, and even in-county, without exempting CTA routes. Presently in Northern Ireland, international railway stations would include Newry, Portadown, Lurgan, Lisburn and Belfast Central, all of which are served by the Enterprise express between Belfast and Dublin, which crosses the land border, as well as being used for journeys within Northern Ireland. If the Government’s intention to effectively extend the definition of a port to international rail did not exempt the CTA, this could introduce passport control, control areas and e-Borders to these stations. None of this is referenced as planned in the present CTA reforms. We would like the Government to assure the House that they are not planning to operate such checks. The Home Office has given clear indications that there will be no passport control on the land border for CTA nationals, despite stating its intention for CTA passport control to be introduced only on air and sea routes. That is not explicit in the Bill and is what we hope to achieve with this amendment. I beg to move.