Passenger, Crew and Service Information (Civil Penalties) (Amendment) Regulations 2022

Before the introduction of the civil penalty regime in 2015 there was only a criminal offence, under Section 27 of the Immigration Act 1971, with a maximum penalty of six months’ imprisonment. That criminal penalty remains in place, as it should for the most serious cases of non-compliance. The civil penalty regime was introduced due to the challenge of successfully prosecuting overseas operators, particularly for failing to comply with a requirement to provide passenger, crew or service information where that information was being provided from the operators’ systems overseas. In practice, the approach to civil penalties has been, and continues to be, one of collaborative engagement with carriers to address any non-compliance issues and to achieve and maintain their compliance. This has proven extremely successful.

To date, no carrier has needed to be given a penalty notice under the 2015 regulations. There have been several instances where the civil penalty regime has been invoked, formal enforcement action for non-compliance has been initiated and formal notices of potential liability to substantial financial penalties have been given but, so far, in all cases, this has been sufficient to secure carriers’ compliance, meaning penalties have not been required.

Removing the sunset clause will also preserve the deterrent effect of the civil penalty regime which, alongside the passenger, crew and service information requirements, is an important and permanent element of the UK’s border security arrangements. Requirements relating to passenger, crew and service information have been in place since the 1970s, but what began as a paper-based process to help with the examination of arriving passengers is now a real-time data-driven process resulting in immediate decisions to refuse airlines authority to carry certain individuals to the UK or to identify individuals of interest, including those bringing in illegal drugs or taking out criminal cash.

I anticipate that some noble Lords may question the removal of the sunset clause and ask why it could not be extended for another seven years. Equally, some may question the need for a civil penalty regime at all. To both, I say that, to the extent that the sunset clause placed the regulations on probation, they have actually passed. They have demonstrated their deterrent effect and are now an established part of our border security arrangements.

I turn briefly to the other amendment that the Government seek to make through these regulations. Passenger, crew and service information requirements are now imposed on Channel Tunnel rail operators. This was not the case in 2015 and, for that reason, they were not included in the scope of the 2015 regulations. Extending the civil penalty regime to Channel Tunnel rail operators ensures parity in the application of both criminal and civil penalties to all carriers operating scheduled international routes that are required to provide passenger, crew and service information. It is essential that we maintain the civil penalty regime, and these regulations do that for the long term. They maintain the necessary deterrent to help ensure that operators continue to meet their obligations to provide complete, accurate and timely information about individuals intending to travel to and from the UK, the processing of which is a key component of our border security arrangements. I beg to move.

Amendment to the Motion

It basically means that if these transport operators are carrying somebody defined as having entered the European Union illegally, and if the transport operator facilitates this movement across anywhere within Europe, the Commission can take action against the transport operator. This can include—this is key—removal of the right to provide transport services anywhere in the EU. That could cause British Airways, if it happened to be accused and found guilty of carrying one illegal immigrant from Berlin to London, to lose its licence to operate anywhere in the EU. It could apply to trains, coach services or anyone operating services not just on external frontiers such as Spain, Italy or Greece, but between France and Belgium, for example, if it is a British carrier. I do not know whether the European Commission has tried to learn from the British regulations over the years and tried to make them a bit more stringent, but this could mean that if an operator—for example, P&O Ferries or Ryanair—transported an illegal immigrant, as they might be called, from the European Union to the UK, it would suffer twice. It could be fined £10,000 per offence and lose its licence to operate.

Is the Minister aware of this? Whether she is or not, I hope the British Government will have discussions with the European Union to come up with some common policy on dealing with people who are either being smuggled or want to move between the UK and the European Union for whatever reason—that includes Ireland. I hope they could persuade the European Commission that this is not a particularly good idea. I do not think it has got to the European Parliament yet, which is probably a good thing; I do not know what it will say.

This indicates that there are two different means of dealing with the problem of people wishing to come into or leave this country when the Government do not want them for whatever reason. It is really important that there is some commonality of policy, otherwise we are all going to look pretty stupid. I hope I have got it wrong and this does not happen, but this is an opportunity to debate the whole thing and it would be much better if the immigration department looked after immigration and the transport operators were allowed to get on with their jobs, which they are very good at. I beg to move.