- BY Ralph Davies
Gone Fishin’
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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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6 responses
On London’s “bendy” buses, now almost all phased out, it was easy and tempting to dodge paying your fare, especially for folk who wanted to stay under the radar of the smart-card system. There were inspections, and I have twice heard with my own ears British Transport Police asking immigration status of those caught without a ticket.
Definitely the biggest of the 3 sins committed by the UKBA last weekend.
I feel sorry for Mr Clark. Easing queues for travellers who have been double checked by the airline staff, gone through their own countries Embarkation controls, checked in transit if their flight was not direct, and then partially checked by UK border staff, is hardly a security risk. The visa checks during application should in any case have highlighted any security risks.
The general powers claimed by immigration officers has the same hallmarks as the police citing the Terrorism Act as a way to stop and search anyone. The last Government was heavily criticised for this and drawing the UK more towards a police state. It seems old habits die hard at the Home Office. They have clearly forgotten that ID cards were scrapped.
I’m not sure that this has anything to do with the ID card issue as opposed to moral panic about immigration. I am a Swiss citizen and have an ID card, here in Switzerland I am not obliged to carry it around and have never been asked to show it in a control such as that detailed in the article. Yet when visiting the UK where ID cards were abolished it seems it would be wise/easiest to carry it around at all times just in case.
I wonder what happens if someone has no proof of ID, whether they are then detained and taken home or wherever they claim their ID is. Given a lot of British citizens don’t have a passport and a drivers licence doesn’t prove citizenship/immigration status, such raids could create interesting court cases.
I somehow suspect that the choice of Liverpool is not accidental: there is a further submissions unit there where refused asylum seekers have to submit their requests in person.
There is also an issue when travelling between Northern Ireland and Britain, not only is there operation gull – which usually involves id checks at points of entry in NI, but travellers between Belfast will regularly be asked for some form of Id, when they land at Leeds airport and on occasions other airports. Interestingly at these airports the officers do not rely on 1971 Act powers, instead they quote from one of the schedules in the 2000 Terrorism Act (unfortunately I cannot recall the exact provision now – I think schedule 8).
I have always wondered whether they are lawfully entitled to ask for id, but have never had the courage or time to test the lawfulness of their actions!
My wife always ushers me through immigration control in case I do or say something that causes us to end up being detained, deported, strip searched or whatever. The use of Terrorism Act powers sounds like a classic bit of mission creep.