Immigration, Asylum and Nationality Act 2006: Police Officers powers in respect of e-Borders

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A decision made 12 July 2013:

Decision Reference: MD-HA-2013-0045
Decision Summary Title :	Law drafting request – Police Officers powers in respect of e-Borders		Date of Decision Summary:	5 July 2013
Decision Summary Author:	Executive Officer Home Affairs		Decision Summary: Public or Exempt? (State clauses from Code of Practice booklet)	Public
Type of Report: Oral or Written?	Written		Person Giving Oral Report:	n/a
Written Report Title :	Request for an Order under section 32 of the Immigration, Asylum and Nationality Act 2006 to give police officers powers in relation to e-Borders		Date of Written Report:	14 May 2013
Written Report Author:	Executive Officer Home Affairs		Written Report : Public or Exempt? (State clauses from Code of Practice booklet)	Public
Subject: Request for an Order under section 32 of the Immigration, Asylum and Nationality Act 2006 (‘the 2006 Act’) to give police officers powers in relation to e-Borders.
Decision(s): The Minister approved the request for an Order under section 32 of the 2006 Act, as extended to Jersey, to give police officers powers in relation to e-Borders and asked the Executive Officer, Home Affairs, to liaise with the Law Draftsman to request the preparation of the Order.
Reason(s) for Decision: The Island has indicated that it is keen to participate fully in the development and implementation of the e-Borders programme, which will improve security at borders and help in combating organised crime and illegal immigration. In order for the collection and sharing of passenger data to take place, it is necessary for Jersey legislation to be compatible with the UK system. To enable officers of the States of Jersey Police to have access to e-Borders information, an Order is required under Section 32 of the 2006 Act.
Resource Implications: There are no additional resource or manpower implications for the Home Affairs Department arising from this decision.
Action required: The Executive Officer, Home Affairs, to liaise with the Law Draftsman to request that an Order be prepared.
Signature:		Position: Minister for Home Affairs
Date Signed:		Date of Decision (If different from Date Signed):

Immigration, Asylum and Nationality Act 2006: Police Officers powers in respect of e-Borders

Report for the Minister for Home Affairs

Request for an Order under section 32 of the Immigration, Asylum and Nationality Act 2006, as extended to Jersey, to give Police Officers powers in relation to e-Borders

In February 2008, the Ministry of Justice wrote to the Island authorities to enquire whether Jersey wished to be part of the UK e-Borders programme. The main purpose of e-Borders is to collect and analyse information on passengers and crew, provided by the air and sea carriers, in respect of journeys to and from the UK from outside the common travel area. The data is provided in advance of travel and is checked against watch lists, analysed, risk assessed and shared between the relevant authorities. The effect of this is to improve security at borders and to help in combating organised crime and illegal immigration.

The Island indicated that it was keen to participate fully in the development and implementation of the e-Borders programme. In order for the collection and sharing of passenger data to take place, it was necessary for Jersey legislation to be compatible with the UK system. This required the extension, by Order in Council, of sections 31, 32, 34 and 49 of the Immigration, Asylum and Nationality Act, 2006 (‘the 2006 Act’) and of section 18 of the Immigration and Asylum Act, 1999. The Immigration (Jersey) Order 2012 modifies and extends to Jersey these sections.

The Minister will wish to note that officers of the Jersey Customs and Immigration Service already have access to the e-Borders information by virtue of the Immigration (Passenger, Crew and Service Information) (Jersey) Directions, 2013 which were made by the Lieutenant-Governor and came into force on 1 March 2013. The Directions are made under paragraphs 27 and 27B of Schedule 2 to the Immigration Act 1971, as extended to Jersey by the Immigration (Jersey) Order 2003 and amended by the 2006 Act, as extended to Jersey by the Immigration (Jersey) Order 2012. In order for officers of the States of Jersey Police to have access to the e-Borders information, an Order, made by the Minister for Home Affairs is required under Section 32 of the 2006 Act.

Section 32 of the 2006 Act, as extended to Jersey, reads as follows:

32 Passenger and crew information: police powers

(1) This section applies to ships and aircraft which are –

(a) arriving, or expected to arrive, in the [Bailiwick of Jersey], or

(b) leaving, or expected to leave, the [Bailiwick of Jersey].

(2) The owner or agent of a ship or aircraft shall comply with any requirement imposed by a [police officer of the rank of chief inspector or above] to provide passenger or service information.

(3) A passenger or member of crew shall provide to the owner or agent of a ship or aircraft any information that he requires for the purpose of complying with a requirement imposed by virtue of subsection (2).

[(4) A police officer may impose a requirement under subsection (2) only if he thinks it necessary for police purposes.]

(5) In this section –

(a) “passenger or service information” means information which is of a kind specified [by Order of the Minister for Home Affairs] and which relates to –

(i) passengers,

(ii) members of crew, or

(iii) a voyage or flight,

[(b) “police purposes” means any of the following –

(i) the prevention, detection, investigation or prosecution of criminal offences;

(ii) safeguarding national security;

(iii) such other purposes as may be specified by Order of the Minister for Home Affairs.]

[(c) “police officer” means a member of the States of Jersey Police Force, and

(d) “ship” includes –

(i) every description of vessel used in navigation, and

(ii) hovercraft.]

(6) A requirement imposed under subsection (2) –

(a) must be in writing,

(b) may apply generally or only to one or more specified ships or aircraft,

(c) must specify a period, not exceeding six months and beginning with the date on which it is imposed, during which it has effect,

(d) must state –

(i) the information required, and

(ii) the date or time by which it is to be provided.

(7) The [Minister for Home Affairs may make an Order] specifying a kind of information under subsection (5)(a) only if satisfied that the nature of the information is such that there are likely to be circumstances in which it can be required under subsection (2) without breaching Convention rights [(within the meaning of the Human Rights (Jersey) Law 2000)].

(8) An [Order] under subsection (5)(a) –

(a) may apply generally or only to specified cases or circumstances,

(b) may make different provision for different cases or circumstances, [and]

(d) * * * * *

(e) * * * * *

[(9) The Subordinate Legislation (Jersey) Law 19608 shall apply to Orders under subsection (5).]

As can be seen, Section 32(5) of the Act contains an Order making power for the Minister for Home Affairs. The proposed Order would specify the passenger or service information that a police officer, of the rank of chief inspector or above, can require an owner or agent of a ship or aircraft to provide. The information would have to be necessary for police purposes.

Assistance has been given by the Law Officers’ Department in preparing the relevant law drafting instructions, which are attached. It is intended that the Order will follow the same lines as the equivalent subordinate legislation in the UK (the Immigration and Police (Passenger, Crew and Service Information) (Order) 2008 (SI 2008 No.5)), although reference in that SI is made to arrivals and departures by train, which are not relevant to Jersey.

Recommendation

It is recommended that the Minister approves the drafting instructions for the preparation of the relevant Order to give certain officers of the States of Jersey Police the ability to obtain e-Border information.

Executive Officer, Home Affairs

14 May 2013