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UK Border Force searches – what are your rights? (16 October 2019)

Date: 16/10/2019
Duncan Lewis, Legal News Solicitors, UK Border Force searches – what are your rights?

Immigration director Gabor Nagy sheds light on the rights British citizens are entitled to exercise when the UK Border Force conducts a search on them. Whilst Gabor usually deals with cases concerning asylum-seekers, a recent case concerning two British Citizens, who upon returning to the UK, were searched by UK Border Force and subsequently arrested and subjected to internal testing after the search triggered a false positive for cocaine, has prompted him to inform British citizens of their rights at the border.

“I think the public have a right to know what officers can and can’t do and what procedure they should follow, which from what I have seen so far, they are failing.”

The pair was later released without further action and the Home Office acknowledged the search had a number of shortcomings and was procedurally flawed, but argued that the high cocaine readings could not be overlooked. Gabor’s clients received compensation for their ordeal at the border. As the UK Border Force is an operational command of the Home Office, the overall responsibility rests with the Secretary of State to ensure that her civil servants conduct searches in accordance with the law.

Below, Gabor answers some of the most pressing questions involving searches by the UK Border Force.

Do officers need to provide you with information prior to a baggage search?

The answer to this question is dependent on which statute the search is being carried out under by the Border Force Officer (BFO). Searches can be sub-divided into the following three categories:

  • Immigration Act 1971

  • Customs and Excise Management Act 1979

  • Schedule 7 of the Terrorism Act 2000

The BFO can exercise either immigration or customs powers depending on their appointment as either an Immigration Officer or Customs Officer. The answer to this question depends on which functions the BFO is exercising.

Immigration Officer

Immigration Officers can only search a person and their belongings until they are satisfied that the person is a British citizen, someone who may enter the UK without leave (e.g. EEA nationals), or a person with leave to enter the UK. This power is enshrined in Paragraph 2 (1) of Schedule 2 of the Immigration Act 1971.

Moreover, they could subject the person who has been examined to further examination under Paragraph 2 (3) of Schedule 2 to the Immigration Act 1971. This notice, however, has to be in writing on a form called IS 81.

From professional experience, not everyone who is subjected to further examination is issued with this form. In addition, previous Border Force’s guidance was that passengers should not be detained for more than four hours on Form IS81, but again this is not adhered to in many cases that I have seen.

Immigration Officers can also examine transit passengers or crew members of aircrafts, even if these individuals do not seek leave to enter the UK. However, where these individuals want to remain airside or they wish to remain on the aircraft, they must not be prevented from leaving by their intended aircraft as a result of being subjected to further examination unless there is an exclusion or deportation order against them.

The Immigration Officer can search for any relevant documents which establish the person’s immigration status and ID, meaning the person’s belongings – including electronic devices - could be searched. Failure to submit to such a search may constitute an offence under Section 26 (1) (b) of the Immigration Act 1971 or could lead to the electronic device being seized under paragraph 15A (7) of Schedule 2 to the 1971 Act.

Customs Officer

The Customs and Excise Management Act (CEMA) 1979 permits Customs Officers to question passengers regarding their baggage and anything carried with them in order to prevent the importation of prohibited items where there are reasonable grounds. As part of the examination they can also request access to electronic devices. Unless it is a Search of Person under Section 164 of CEMA, it is doubtful that they need to provide you with any prior written notice and I have not come across such a document.

‘Baggage Search Pro-Forma’ documents are prepared by UK Border Force officers detailing their findings regarding the baggage search but I have not seen any advance document which notifies the passenger of upcoming the baggage search. I have seen many ‘seizure notices’ during my career, which are given to the passenger in case an item is confiscated (this could be an excess of tobacco or alcohol), and I have also seen seizure notices regarding suspected prohibited items such as Class B controlled substances.

Customs Officers need to communicate the reasons for the baggage search and they must have reasonable grounds for undertaking the search in the first place. This can include behavioural indicators, prior intelligence, K9 dog alerts or instances of repeat offenders. They will also only keep a record of the search where the baggage is actually opened.

Where the search moves onto a Search of Person (SoP), the passenger needs to be given prior notice of their right of appeal against the search and they also need to be given a copy of the SoP record form post search. As part of their search, customs officers routinely ‘swab’ the belongings to detect any controlled substances. This may lead to a SoP if the readings are positive for a prohibited substance.

Schedule 7 Terrorism Act 2000 searches

Schedule 7 of the Terrorism Act 2000 allows an examining officer to stop, question and where necessary, to detain and search any individual travelling through a port, airport or international rail station, to determine whether that person appears to be someone concerned in the commission, preparation or instigation of acts of terrorism. The search is usually administered by police officers at the border, but could also be carried out by a BFO.

Persons detained under the Terrorism Act must be given a notice of detention under Schedule 7 to the Terrorism Act 2000 which will inform them of their obligations. During the process, if you willingly obstruct or seek to frustrate the search or examination, then you could be prosecuted. This could result in a three months prison sentence and/or a fine of up to £2,500.

Earlier this year, on February 12th the Counter-Terrorism and Border Security Act 2019 received royal assent. While it is too early to see the effects of the act, it does seem to widen law enforcement powers to stop, question and detain individuals. It also defines hostile activity as any activity that;

  • Threatens national security

  • Threatens the economic well-being of the UK in a way relevant to the interests of national security

  • Is an act of serious crime

As such, the definition is perhaps intentionally broad so as to include all potential violations of the law.

Additionally, section 1 (7) of Schedule 3 of the 2019 Act, alarmingly states that it is immaterial whether a person is aware that the activity in which they are or have been engaged in is in fact hostile activity. Legally, this could result in the detained person not having a defence in order to clear their name. Furthermore, the Act also states that access to a solicitor could be denied by the examining officer, if they believe that the time it would take to consult a solicitor would likely prejudice determination of the relevant matters. What exactly is meant by ‘prejudice’ or ‘relevant matters’ is not succinctly defined.

Are you allowed to make any phone calls? Can they take away your phone?

You will be allowed to make a phone call, however the call will usually be made on your behalf by an officer. This is because the device might be used and admitted as evidence.

For instance, if the passenger is a suspected drug mule, an officer will usually confiscate the mobile phone immediately. The officer will anticipate a call from the dealer to the suspect, enquiring about the package once the plane has landed. This allows customs to easily trace the call back to the dealer.

BFOs have the authority to search the contents of the device. They are not limited to mobile phones and can confiscate and search any electronic devices.

Is it a criminal offence to refuse to be searched or answer certain questions?

There are severe consequences of refusing to be searched and interrogated. For instance, under the Terrorism Act 2000 you could be prosecuted and imprisoned for three months and/or fined a maximum of £2,500.

Moreover, you could also be prosecuted under Section 26 (1) (b) of the Immigration Act 1971, if you fail to submit to a search.

How do you determine why a person has been detained? What are some of the most common reasons?

The actual reason for detention might only become apparent after a person has been detained. Some form of document (as outlined above) will be provided and so there will be some limited understanding at the time of detention. Further information will normally come to light once a solicitor requests the Subject Access documents from the Border Force.

The most common reasons for detention are related to immigration and customs. The Border Force can detain EU, non-EU and British citizens alike. In immigration cases, detentions commonly occur because the BFO needs to carry out further enquiries before they can determine whether or not the passenger can be given leave to enter the UK. In cases where a BFO suspects that the passenger has arrived to work, they can carry out a baggage search in order to substantiate this. There are also cases where a passenger arrives, claiming to be a British citizen without any travel documents in which case they are detained until it can be established whether or not they are a British citizen. In other circumstances, passengers are detained as a suspect involved in sham marriage arrangements.

In my experience, the most common reasons for detention in customs cases involve drug related offences. Suspects are detained under CEMA in order to carry out a baggage and SoP search on the passenger. The indicators for suspecting a passenger can vary from behavioural indicators such as evasiveness, to prior intelligence on repeat offenders. When it comes to Schedule 7 detentions, detainees are issued with a notice so that they are fully aware that they were being detained under the Terrorism Act.

If someone is being repeatedly stopped how can they resolve the matter?

The first step would be to obtain a copy of your information, held by the UK Border Force under the GDPR. As of May 2018 this service has been free of charge. The information provided to you will be heavily redacted but nevertheless is an invaluable first step. Ensure that you obtain this information prior to lodging a complaint with the Border Force or your MP. The application can be made online.

Next, a complaint should be lodged with the Border Force. The issues need to be fully explained and they will then investigate the matter. If successful, the Border Force is usually able to remove the ‘stop indicators’ from the Warnings Index – the notification system used by officers at control points when processing passengers.

As a solicitor experienced in Border Force cases, what tips would you give people who are stopped?

As a general rule, I would advise passengers to always specifically ask the Border Force Officer (BFO) which statute and/or Act they are being stopped or detained under. My advice would be to co-operate calmly and fully and to only answer the questions that the BFO directs at them.
I strongly advise against being un-cooperative, as this could lead to criminal prosecution and most definitely will not resolve anything. However, I also strongly advise keeping a record of any documents provided. If a report has been prepared, the passenger should ask for a copy under GDPR/ Data Protection Act. A copy of all the documents the passenger was asked to sign should also be obtained.

It is also good practice to ask for the BFO’s number. They will not disclose their names but they must disclose their epaulette number, this is so the relevant officer can be later identified. I also recommend that, if possible, passengers note down the exact time, date and location of the incident and the details of the Chief Immigration Officer (CIO) who was on duty at the time. Depending on the severity of the incident, the details of the HM Inspector at the port of entry should also be sought.

About Gabor Nagy

Gabor Nagy is the Director of Immigration with Duncan Lewis is a ‘recommended lawyer’ by The Legal 500 2020, and has a broad practice across all areas of private and publicly funded (legal aid) immigration, asylum and public law matters. He has extensive experience in representing clients in detained and port removal cases, EEA applications, citizenship and naturalisation and immigration or civil liberties related Judicial Review claimant cases.

To contact Gabor, please call 02072752780 or email gaborn@duncanlewis.com

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