My Lords, I beg to move Amendment 185 standing in my name and that of my noble friend Baroness Hamwee. We also have Amendments 186 through to 193 in this group.
Amendment 185 relates to the power of detainee custody officers, prison officers and prison custody officers to search for nationality documents. The powers set out in Clause 25(6) can be exercised not only when the Secretary of State has made a deportation order in relation to the individual but, as stated in Clause 25(2)(b), when the Secretary of State “intends to make” a deportation order. The briefing from the Immigration Law Practitioners’ Association expresses serious concerns
about the new powers to conduct searches for nationality documents, including strip searches, in the light of the concerns expressed about the treatment of vulnerable persons in immigration detention made by the all-party parliamentary groups on refugees and on migrants. That review was conducted by Stephen Shaw and others.
On the particular issue of the amendment, if the Government mean to extend the power to include cases where the Secretary of State has fulfilled the procedural requirement to give formal notice of her intention to make a deportation order, this should be in the Bill, rather than the current wording, which is simply,
“intends to make, a deportation order”.
Amendments 186, 187, 188 and 189 relate to the circumstance where a nationality document has been seized but the person is not removed from the United Kingdom. Clause 25(13) states that the Secretary of State “may” arrange for the document to be returned, but surely she is under an obligation to return the document, so amendment 185 seeks to replace “may” with “shall”. Amendment 192 covers the same point in relation to documents seized by a detainee custody officer or a prison officer.
Amendment 187 refers to Clause 25(13)(b), which goes on to say that a document can be disposed of and not returned if the Secretary of State thinks that it would not be appropriate to do so. Can the Minister explain in what circumstances a search for a nationality document might produce a document that is not required as part of the process of deporting an individual but should nonetheless be disposed of rather than returned? For example, the Immigration Law Practitioners’ Association reminds us that passports, one of the “nationality documents” listed in the Bill, remain the property of the issuing authority. As such, the Secretary of State has no right to dispose of these documents as she thinks fit.
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Amendment 193 covers the same point in relation to a document seized by a detainee custody officer or prison officer in Clause 26(7)(b) and Amendment 212 covers a similar point in Clause 29(10) and (11) in relation to a document supplied to the Secretary of State by a public body. The amendment suggests that the document is returned to the person who supplied it rather than being disposed of.
Amendment 188 relates to Clause 25(14)(b), which states that if it is it necessary to return a document and it was not found on someone, it should be returned to,
“the location in which it was found”.
The amendment suggests as an alternative that the document should be returned to the person who appears to be entitled to it. It is difficult to envisage that a document seized as potential evidence of an immigration offence would not contain any information about the person to whom it belongs. As it stands, Clause 25(14)(b) could allow for a document that subsequently turns out to be stolen to be replaced where it was found. The Immigration Law Practitioners’ Association has pointed out a flaw in this amendment in cases where someone is seeking asylum and the returning of a nationality
document to the person’s country of origin may place them in danger, but we can address this defect in our amendment at Report if necessary. Amendment 190 covers the same point for a document seized by a detainee custody officer in Clause 26(5)(b).
Amendment 189 was originally intended to challenge the inclusion of “citizenship” and documents that show where the person has come from or is going to in the definition of nationality documents, but we now accept that Section 44(5) of the UK Borders Act 2007 gives a similarly broad list of documents. However, the Immigration Law Practitioners’ Association points out that in the UK Borders Act a,
“‘nationality document’ means a document showing … the individual’s identity, nationality or citizenship”,
whereas this provision defines a nationality document as a document which,
“might … establish a person’s identity, nationality or citizenship”—
a significant widening of the power.
The document that indicates where a person has travelled from could include a guidebook, personal diary or hotel receipt. Will the Minister explain how a personal diary or a travel guide could be defined as a nationality document? If the Government want to be able to search and retain any document found, they should say so on the face of the Bill. Amendment 213 is on the same point in relation to nationality documents supplied by the police, local authorities and other public bodies at Clause 29(11) and (14).
Amendment 191 relates to Clause 26(6), which states:
“The Secretary of State may retain a relevant nationality document”,
discovered during a search of a person detained,
“while the Secretary of State suspects that … a person to whom the document relates may be liable to removal from the United Kingdom … and … retention of the document may facilitate the removal”.
Surely there must be a reasonable level of suspicion before the document can be retained rather than simply a gut instinct or a feeling of suspicion. I beg to move.