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Justice and Home Affairs Committee

Corrected oral evidence: Electronic border management systems

Tuesday 12 March 2024

11.30 am

Watch the meeting

Members present: Lord Foster of Bath (The Chair); Lord Bach; Baroness Buscombe; Lord Dubs; Lord Filkin; Lord Henley; Lord McInnes of Kilwinning; Baroness Meacher; Baroness Prashar; Lord Sandhurst; Lord Tope.

Evidence Session No. 4              Heard in Public              Questions 49 - 56

Witnesses

I: Sophie Barrett-Brown, Senior Partner and Head of UK Practice, Laura Devine Immigration, London; Christi Hufford Jackson, Partner and Head of the US Practice, Laura Devine Immigration, London; Monique Hawkins, Interim Co-CEO and Policy & Advocacy Officer, the3million.

USE OF THE TRANSCRIPT

1. This is a corrected transcript of evidence taken in public and webcast on www.parliamentlive.tv.

Examination of witnesses

Sophie Barrett-Brown, Christi Hufford Jackson and Monique Hawkins.

Q49             The Chair: We are now in our second session of the Lords Justice and Home Affairs Committee. We are very grateful to our three new witnesses for coming to see us. Can each of you introduce yourself and the organisation that you are involved with or work for?

Monique Hawkins: I am from the3million. We represent the EU citizens and their family members who made the UK their home before Brexit and as such are covered by the withdrawal agreement.

Sophie Barrett-Brown: I am from Laura Devine Immigration. We are a specialist immigration firm, dealing with immigration coming into the UK and the US. I have practised in this area for about 27 years. We represent corporate clients and individuals, so we see the practical issues day to day.

Christi Hufford Jackson: I work with Sophie at Laura Devine Immigration. I am a US immigration lawyer, so I am qualified in the United States and I assist people going to the US—individuals and companies as well.

The Chair: We are quite tight for time, so if answers have been given by other people, there is no need for everybody to answer every question, but feel free to add to it if you think something is missing. We will start with Baroness Prashar.

Q50             Baroness Prashar: Thank you very much for your time this morning. My question is for Sophie and Christi. Given your vast experience, I would like to hear this from you. What feedback have you received from your clients on pre-travel authorisation systems, as you do both private and corporate work?

Sophie Barrett-Brown: It is very new on the UK side. Christi will have vastly more experience, a similar scheme having operated in the US for many years. At the moment, there have been so few applicants. We are dealing with something that started at the end of last year with one nationality and has grown to more just in February. The numbers are incredibly low compared to the millions that we may see within the course of a year. Most of the feedback that we are receiving is more about future concerns than actual problems that have occurred already, because the numbers are too small to gauge that.

From the corporate perspective, there are concerns about the impact it may have on the ease of business travel. Those who are accustomed to being able to just get on a plane and come to the UK will now need prior clearance and that may bring problems. Individuals have concerns about what it will mean for them: what may be caught, will they qualify or will they not? One of the big areas of concern that we have is the number of applicants who will end up with rejections or refusals. They will then be directed into the visitor visa application route; perhaps I can be indulged to talk a little later about what that means. There are a lot of difficulties with the visitor visa route that I think will become more pronounced as a result of this and that needs to be considered.

Christi Hufford Jackson: I agree. I can talk about the problems that arise when things do not go right. Largely speaking, the US system of ESTA, which is the electronic version of our visa waiver programme—the underlying programme is visa waiver but the electronic application is ESTA—by and large works well. You have probably all been to the United States, having completed your ESTAs and generally it goes well. It is easy for businesses to send people over as visitors quickly, although not as quickly as it once was. There is now a 72-hour delay that they want you to allow but it is sometimes faster. When it goes well, it does go well.

Probably one of the biggest areas where there is a lack of clarity, especially for businesses, is what exactly the traveller is getting by having an ESTA. What can they do in the US? They are just visitors; that is all they can do. A lot of companies come to me and say, “We have sent people to the US to work, so they have 90 days to work”, because they think it is some sort of authorisation to allow them to work, so there is a lot of education on my part that it does not allow that. When it goes wrong, that is quite a different issue that I would be happy to talk about.

Baroness Prashar: I will pursue the question of refusals. What happens in the States if there is a refusal?

Christi Hufford Jackson: Of the ESTA?

Baroness Prashar: Yes.

Christi Hufford Jackson: That is a very broad question. We can talk about reasons why an individual may be refused and some problems that could come from that, but if someone is refused an ESTA, whether it is correct or incorrect, they are not permitted to travel on ESTA. Their ESTA will be denied and it is 99.9% likely it will always be denied. It is not something that is overcome in the future. For example, if someone was denied an ESTA for no reason, they have answered all the questions perfectly and there are no “yes” answers to the security questions and they are still denied, which happens more than you would think, they are forced to then apply for a visitor visa.

The reason that this is problematic, especially when it is related to business travel, is that it is very difficult to get a visitor visa appointment. Our visa applications are done in person at a US embassy or consulate abroad. Wait times for visa appointments have always been bad in a lot of countries and since Covid it is dire. The earliest appointment in London right now is in August, about five months away. If one of you goes online and makes an error in your ESTA application, even if it was an innocent error—or for whatever reason there is something in the back end that has been crossed—and your ESTA is denied but you have a trip to Florida planned for six weeks’ time, you are unlikely to be going on your trip to Florida because you will not get an appointment for a visa. It can be quite an upheaval when someone is denied an ESTA when they think they should not be. Some people apply knowing that they are likely to be denied and that is a different issue to be discussed.

Baroness Prashar: It is early days but what about biases in the technologies? That is another issue that has been raised. Has this been raised with either of you?

Sophie Barrett-Brown: It definitely is an area of concern. In the UK system, a fully automated decision is one that leads to a grant. Where the decision is rejected or refused that will have human intervention, we are told. It will then be directed to a case worker and there is guidance to case workers about how they should interpret that. Yes, there are concerns with any automated system about various forms of bias that may be built into that technology and how that may also then inform the potential bias of the individual decision-maker. We also have concerns about how those decisions will be made by the case workers and the outcomes.

Similar to what Christi has described, it will lead them in a number of cases to refusals or rejections. Rejections will be where it is to do with identity and refusals where it is to do with suitability. That is where they may have identified an adverse immigration history or NHS debt; there is a whole series of things that may lead to that and then directs them into the system to apply for a visitor visa. There is no right of appeal to the refusal of the ETA. There is a right to have it reviewed if it has been a fully automated decision but that would have led to an approval, so that does not really serve any benefit. Where it has led to a refusal, there is no right of appeal. You can only in effect challenge that by making a visa application and tackling whatever the issues were in that.

We do not have the kind of delays in the UK system presently that Christi has just described, but there are areas where the Home Office can have substantial delays and it can take a matter of weeks for a visitor visa application to be considered, so that impacts travel.

The Chair: We may come back to some of those points, but I am slightly conscious of time and I will move us on to Lord Sandhurst.

Q51             Lord Sandhurst: My question is primarily directed at Ms Hufford Jackson because she has the American experience in particular. The US ESTA system has been running now for 15 years. Can you talk us through important issues, to the extent you have not, which arise with the system—not the whole system but what you see as the issues?

Christi Hufford Jackson: Yes, absolutely. I am conscious of the time as well. I could talk for hours but I will summarise some of the things that we see in our office most often.

The system is very inflexible. I am talking primarily about the security questions. We will put to the side someone who has mistyped their passport or something like that. There is a pop-up box to try to stop people by saying, “You have answered yes to this question, do you mean to answer yes?”, yet I still get calls from people saying, “I accidentally said that I was a terrorist”. It happens all the time. I do not know if there is something about the way it is formatted on a mobile phone versus a computer. There was a run of it for a while where I had about six people calling who had said that they were terrorists. They were not terrorists and they certainly were not telling anyone they were. Of course it means that they were required to apply for a visa.

We have a relatively robust entry/exit system of logging. When you are admitted to the United States in any non-immigrant status, including on ESTA, you are issued an I-94. It is electronic. That shows your class of admission, your period of lawful admission, when you need to leave by et cetera. Sometimes the exit does not get logged properly, which could happen for various reasons. Maybe they left to cross the border in Canada and it somehow was not updated or maybe there was a technical issue. It ends up that they appear to have overstayed, which is one of the grounds for not qualifying for ESTA. Someone who definitely never overstayed will say, “No, I did not overstay” to that security question, yet their ESTA is still denied. A lot of money is spent on legal fees, digging to trying to figure it out, and ultimately the recourse is applying for the visa in five months’ time.

The security questions are very black and white. I do not know what the ETA security questions are proposed to be. I will say that ours obviously stem from our legal system in the Immigration and Nationality Act, but for instance one of the questions is, “Have you ever been arrested or convicted of a crime which caused serious harm to a person, property or government authority?” I am paraphrasing. Someone who has shoplifted a lipstick when they were 20 years old would say no, of course that did not cause any harm, but that would render someone inadmissible.

Lord Sandhurst: You mean if they said yes or if they say no and are found out?

Christi Hufford Jackson: If they say no, one of two things could happen. Their ESTA could be approved, and I see this all the time. I have so many clients who have said no when they should have said yes. Their ESTA could be approved and they could travel for many years and at some point at the border they may be told, “You were arrested when you were 20 years old for shoplifting and now you are not admitted”. One of the problems here is that we do not have the insight on the back-end system of what data is being shared. There is no concept of a spent conviction in the US, so here many people will think they had a conviction when they were 20 but it is spent and irrelevant, so they do not need to declare it, when in fact they do. Spent convictions cause a lot of problems, particularly for British nationals. That comes up quite a bit.

I definitely think that some of the language is vague and confusing to an average person. They did try to help. It used to say, “Have you ever been arrested or convicted of a crime involving moral turpitude?” which is the legal standard for inadmissibility, but no one knows what that is. Now we have made it easier to interpret, but I do not think it is and there is no flexibility. There are a few other things that I see. I mentioned before the denial, but for no reasonably explainable cause—

The Chair: Can I ask you to leave that for a second? We want to focus on that very specifically in a minute or two, but pick up the other issue.

Christi Hufford Jackson: Absolutely. We have probably covered the majority. The last thing is that the visibility is low. We do not know why denials have happened and it is very difficult to find out why. Some people are able to contact Customs and Border Protection if they have made an error on their ESTA form but some people cannot. It is not consistent. The information on how to do that and whether it works is not consistent at all and is not readily available information. Those are probably the main issues with the application. There are some other issues with the actual travelling and being admitted, but those are the main issues with the application.

Sophie Barrett-Brown: I will very quickly chime in on the UK side. Where there has been that sort of error and we have accidentally checked the wrong box, there is no ability with the ETA to withdraw, amend or correct. Once it is submitted, it is submitted and will be decided. It will be decided negatively if you have ticked, “Yes, I have a criminal conviction”, or, “I have supported terrorism”.

Christi Hufford Jackson: For ours, once it has been denied it will always be denied.

The Chair: We will come to that in a bit more detail. I will pick up one quick question and then we must move on. In the American system is there really a question that says, “Are you a terrorist?”

Christi Hufford Jackson: There is. I can tell you exactly what it says. It really does. There are some other very bizarre questions there.

The Chair: Perhaps not now. If you would be kind enough to send them to us.

Christi Hufford Jackson: I will leave this with you.

The Chair: That would be very kind. Given we are looking predominantly at the introduction of the UK system, do you want to give us any advice as to recommendations we might make about the type of questions asked?

Christi Hufford Jackson: Obviously, the questions will be developed in a way that corresponds with the framework of the UK legal system and what would make someone admissible or not, and that is fine. It is about making sure that it is clear and that the information is available to explain anything that perhaps is not clear, especially when it surrounds arrests or convictions. That is a huge area. Another one would be violation of immigration permission. That is a question on ours: “Have you ever violated the terms of a visa or overstayed?”. It is just so rigid and inflexible. For instance, people overstayed during Covid. They could not help it. They literally could not get on a plane, but there is no subjective review at all.

The Chair: Is that not always going to be the case if you have what you have described, in your own words, as a fully automated system?

Christi Hufford Jackson: I suppose my point is that it should not be fully automated. A fully automated system does not capture. It filters out people who should not be filtered out.

Lord Sandhurst: You could have a pop-up box if you wanted to exonerate yourself, could you not? It could say, “Was there a special reason?”

Christi Hufford Jackson: And there is not.

Lord Sandhurst: But you could have one.

Christi Hufford Jackson: You should, but if it is fully automated the question is who is on the other end of that pop-up box.

Lord Dubs: One of the problems in going to the States, which I do not think you have not mentioned yet, is whether you have visited any particular countries. This caused me a tangle because I had visited Syria but earlier than the cut-off date, and that was not obvious.

Christi Hufford Jackson: Cuba is the new one, and it is impacting the British population much more than the previous countries, which were Iran, Iraq, Libya, North Korea, Somalia, Sudan, Syria or Yemen. Those were not tourist hotspots so did not cause a lot of problems, but Cuba is causing problems. That stems from our own laws. If the UK does not have any corresponding restrictions on people travelling into the UK if they have visited a certain country, that question really is irrelevant for the UK system. For the US system it stems from all different parts, but terrorist acts.

Lord Dubs: If Cuba is one of the countries I shall not get to the States again.

The Chair: Ditto. I have some other things even more worrying, but we will not go into that.

Lord Tope: I can start with “me too.” I spent a very unhappy Sunday evening just a couple of nights ago in Miami airport on a flight transfer where I was pulled in before Homeland Security, interrogated eventually at some length. As far as I can gather, it was because six or seven years ago I was on a parliamentary delegation to Sudan.

Christi Hufford Jackson: One of the countries.

Lord Tope: I was there with an ESTA granted for two years. I now have my passport and ESTA is granted only until 7 June. Why 7 June I have no idea but I am not in a hurry to go back, I have to say. This is not the question I am supposed to be asking. I would have thought that must be having quite a severe effect on some of the hub airports like Miami. I will not fly via a US airport again if I can possibly avoid it.

Christi Hufford Jackson: That is a really good point. Sophie and I have mentioned this before. Something very different in the US than the UK is that in the US to transit you clear customs and immigration. We do not do airside transits, which means that anyone who is ineligible for ESTA, even if they legitimately are ineligible, cannot even travel via the United States, which is a hot connection point for a lot of countries, without obtaining either a visitor visa or a transit visa. Again, it is just adding more cumbersome steps to travel.

Sophie Barrett-Brown: While that is not the case in the UK, as I am sure the committee will be aware, the intention is that the ETA will cover transit as well, even though transit passengers are not landed in the UK.

Q52             Lord Tope: The question I was supposed to ask you is this. As there is to be no right of administrative review or appeal against the denial of a UK ETA, what are the potential consequences of a denial? I feel I already have some experience of what some of them might be.

Sophie Barrett-Brown: From the UK perspective?

Lord Tope: Yes, from the UK. That is what I am supposed to be asking, but my more recent experience alarms me somewhat.

Sophie Barrett-Brown: The record of the refusal will be present and may form the basis of a future refusal, if somebody applies again under the ETA, but for the most part it is going to require an application for entry clearance as a visitor visa, with all of the issues that entails. I suppose one might take the view on the positive side that then enables the full consideration of the issues—the overstay for whatever reason. Was there or was there not a breach of the person’s conditions, so that full evidence can be provided? Unfortunately, the visitor visa application is unsatisfactory in many respects, not least because that too has no right of appeal or administrative review.

We see a lot of cases where what can appear to be somewhat arbitrary decision-making has occurred with visitors refused, particularly around a criterion known as being a genuine visitor. You must have a genuine intention to come to the UK for one of the permitted purposes for the period that you state and say that you can afford your trip. That is all part of the genuineness requirement. We see a lot of refusals that I am afraid seem somewhat spurious—

The Chair: I am sorry to interrupt the flow. I am genuinely confused. I am sure the rest of my colleagues are not, but I am. If you are telling us categorically there is no right of appeal of any form whatever, why is anybody bringing anything to you? What can you do with it?

Sophie Barrett-Brown: Often, it is about making very compelling legal submissions to challenge it.

The Chair: If there is no right of appeal, what is the mechanism you use legally to address these errors that may or may not have occurred?

Sophie Barrett-Brown: The mechanism legally is usually, first and foremost, reapplying and making a fresh application where you seek to address those issues. Sometimes people get refused multiple times at great expense. Ultimately, the potential recourse of judicial review takes a long time and is also an expensive process. It is very unsatisfactory and my particular concern around the lack of any right of appeal or administrative review is that it does not hold caseworkers to account, and we see cases where there is bad decision-making.

I had a case last year of a woman with a British child who she had been trying for five years to bring to the UK to visit the father, who is a British citizen resident in the UK. She had been refused multiple times for reasons that were wholly inadequate, questioning her genuineness. Ultimately, we resolved that case by contacting a senior individual at the Home Office and getting some common sense applied. Most applicants do not have the ability to do that. That illustrates the unsatisfactory state of affairs and I think we will see an increasing incidence of this sort of thing, because more applicants will be driven towards the visitor visa application route, with all the problems that entails.

The Chair: Lord Tope, I interrupted. Is there anything further?

Lord Tope: You did. I have slightly lost my train of thought on this. The question I had here is: what are the potential consequences of denial? You have stated quite rightly that we have only so far introduced for Qatar and one or two other Gulf states in the last few weeks, so we really do not have any experience. Some of the estimates, which can only be guesses, of how many denials there are likely to be seem, based on my recent experience, enormously underestimated. Is this not going to be quite a serious problem when ETAs are a universal requirement?

Sophie Barrett-Brown: Yes. It is very difficult to predict the numbers. Part of that is connected to the lack of transparency about the processes and the data but, given that the projection is that there will be 29 million applications per year—I think that is what I saw in the impact assessment—we can expect that a significant number will fall for refusal and then get channelled into the visa system.

Lord Tope: It is not really a question for you, but do you know the reason why there is no right of appeal or administrative review? What is the stated reason?

Sophie Barrett-Brown: That is a very good question. Part of it is that it is supposed to be a very quick and straightforward application. The issues that may be the cause of a refusal are those that may need to be considered fully through an application process, but sometimes of course the reason for refusal may be errors in the data. We have concerns about to what extent there will be clarity in any event about what the reasons for refusal are. The guidance to caseworkers does not direct them to give a full explanation of the reasons for refusal. It seems that it is either rejected, and that is to do with identity, or it is refused, and that is to do with suitability. There is a significant problem with the lack of transparency. As we have seen so few cases coming through, it is difficult to say at this point.

The Chair: I am going to move us on.

Q53             Lord McInnes of Kilwinning: We spoke there about experience. One area where we do have experience is digital e-visas. Obviously, since 2018 millions of those have been issued. I am interested in hearing first from Monique because of her experience, especially through EU resettlement. What do you think, to be pessimistic for a moment, are the risks of a fully digital system and what examples have you seen over the last few years?

Monique Hawkins: Thank you very much. I would like to set out as well why this is so relevant. The ETA is literally just one puzzle piece in the universal permission to travel, which you satisfy either by being British or Irish or with an ETA or the fourth box, anyone with a resident status in the UK. That is the box that I am concerned about because those people will have absolutely nothing in their hands to prove their status if something goes wrong.

Before I get to the risks, I want to explain that it is not a digital status in the sense of being a digital document, which is what the withdrawal agreement stated. It is instead a very cumbersome online process. Every time you want to prove your status you must log on by finding a government website, put in details, get a code sent to your phone, put that code in, see your status, press more buttons, give a 10-character or nine-character code to someone else. They must find a different website, put it in there with your date of birth and, if you are lucky, the status comes out saying that you have been approved.

As you say, this has been started with EU citizens. It was also used for the Hong Kong BN(O), but it must be rolled out by the end of this year to about another 2 million to 2.5 million people who have all been issued biometric residence permits. Christi has a BRP that ends at 31 December 2024. That is a hard deadline that they have chosen to put in for years. It is unmoveable. IT projects always overrun and this one is unmoveable. After the end of this year, they all must get this UKVI account and I think they have not yet started rolling it out. There has been a Parliamentary Question, which I think said it is starting in April.

There are three parts to the question about the risks. One part is status holders being unable to navigate this online-only process. The second part is the people checking not understanding this online-only status and the third is where people’s records are broken.

To go into each one of those, for the people who cannot navigate this, first there are digitally-excluded people. The UK Consumer Digital Index of 2023 said that there are 10.2 million people who lack the most basic digital skills and I think there is an additional cohort above that. My mum, who lives in the Netherlands, is really digitally literate. She has her iPad, does all sorts of stuff and was able to manage with the Covid pass to travel to visit me at the time, but she cannot cope with these multistep log-in processes. I do them for her. Finally, you have people who are perfectly digitally literate but at the moment of needing to prove their status there is no internet or wi-fi or they do not have data. It is about circumstances or the Home Office services being down; we have had several outages already.

If we go to the middle thing of those checking not understanding the status, we have seen that everywhere. We have seen banks, universities, employers including state employers and local authorities, government departments, including the Passport Office, embassies and many carriers just not understanding this digital-only status or refusing to engage with it. I have to say even the Dutch embassy, my embassy, says that it does not accept those share codes. You must give them the original decision letter, so there is a lot of misunderstanding there.

The biggest thing that we are concerned about, especially when these borders start being pushed out, is where your record is broken. We see so many cases of that. We see it at all the stages of what I described in that process. There’s people who fall at the first hurdle, where they put in their passport number and date of birth and it just says, “We do not recognise your data, sorry”. We see people who log in and then, quite incredibly, do not see their own data but a mixture of their own data and perhaps someone else’s photograph. As well as being a serious data protection breach, it means that it is useless as a proof of status. Anyone approving must agree that that is a likeness of you, so it is effectively useless. We have people who see their own status correctly, but when they press “share” see a preview of what the checker will see—and at that stage suddenly it has someone else’s photograph or name in it.

We have the issue of where you have had previous refusals. The eGate report, one of the ICIBI reports that came out recently—I know you are interviewing David Neal tomorrow—says that pretty much everyone who has had a refusal followed by a grant of status gets referred from the eGate to a Border Force officer, because the system cannot just give a simple “Yes”. I think every single one of those referrals in the new ETA world is going to lead to someone being told, “No, you cannot board this plane”.

We do not know how many people are affected by this, but I would guess it may be tens of thousands. We have a reporting tool so we get regular reports and our tool must catch only the absolute tip of an iceberg. It is hard to get some of these broken statuses fixed. Sometimes it can take several months of repeated calls to the resolution centre before it gets fixed, even with our intervention. What worries me more than anything is the Home Office’s lack of engagement with us on this. It took me a year and a half to achieve the setting up of a digitalisation forum with the Home Office, which eventually got off the ground last December with draft terms of reference and an initial meeting. That has now been stopped. The person who was heading it has moved on to another job and nobody is replying to our emails about a replacement. I know that there is a replacement earmarked but we are not receiving anything.

We have written about alternative proofs of status, which I think are viable and I can go into later if you would like. At times, such as last June, we had a letter saying, “Yes, let us have a meeting about it” then I write some more and they say, “Look, we have told you before we are not interested in your alternative proposal”. Then, to add insult to injury, the UKVI terms and conditions were published last month. The UKVI account is the account that all those 2 million people have to set up by the end of the year. That has an exclusion of liability term in it, which literally says that the Home Office is not liable for any loss or damage that arises from the use of the UKVI account. It includes any direct, indirect, or consequential loss, any inability to use the UKVI account, any disruption to access to the UKVI account and some more stuff.

I end by saying that if you cannot prove your status it means you cannot access your rights, which in practice is the same thing as not having your rights. That is where I make, without hysteria, a strong link with Windrush. People have rights but they cannot prove them.

The Chair: It has been incredibly helpful to hear your description of the situation and very worrying. I would be enormously grateful if you could provide in writing an expanded, more detailed brief with the examples. I know you have already submitted some evidence but perhaps you can liaise with us so that we have a clear understanding of the concerns that you express.

Lord McInnes of Kilwinning: As a follow-up, have there been any examples of identity theft or misuse of the system, or is it quite secure in terms of any ability for people who wish to misuse the system as it stands?

Monique Hawkins: I do not think I have heard of identity theft. It is more about an individual not being able to assert their rights. I had somebody who had one of these entangled statuses and they were really worried about identity theft, because she did not know how this had come about. Was this something internal in the Home Office or has somebody managed to use hers? I think it is more likely to lie with technical problems in the Home Office but I do not know that.

Lord McInnes of Kilwinning: No, so you cannot have confidence.

Sophie Barrett-Brown: That is certainly a concern. Cybersecurity is a key issue today, so that is a confidence concern for a lot of users of these systems. To add to Monique’s comments, it is a concern that we have as we see among our clients where accessing the correct status is a problem. We have had numerous cases of individuals who have a right to enter the UK being detained at port because their status is not correctly reflected, or where they have difficulty proving that they are entitled to jobs. It is having a real-life impact that affects people financially and in so many other ways.

The Chair: We have touched on the issue of British nationals living in EU countries. We are now going to look at the reverse.

Q54             Baroness Meacher: I will address my question also to Monique Hawkins. What do you think will be the impact on EU nationals living in the UK when the ETA is fully implemented, if their status remains unclear? Can you go into how any impacts and problems might be resolved?

Monique Hawkins: Can I just ask what you mean by their status being unclear? Do you mean that it has not been decided yet or that it has been broken in one of the ways that I described earlier?

Baroness Meacher: Maybe they are unclear about their status, whoever they are. I am not sure. If there is some question about their status it does seem to be absolutely critical.

Monique Hawkins: Yes. The way this is supposed to work once ETA is fully rolled out is, like I said, with this universal permission to travel. The technology behind it is that when you go to check in online you put in your passport number and that is then supposed to send a message to the UK via a mechanism called interactive API—advance passenger information. It comes back hopefully with an “Okay to board” message because they will look up that passport to ask “Is it British? Yes. Is it Irish? Yes. Is it in our ETA database? Yes”. They otherwise look in the other immigration status databases. That is why I am so very worried. From all the problems I described earlier, an awful lot of people are not going to receive an “Okay to board” message. At that point they really have nothing with which to argue. They have this cumbersome view and prove system—the multistep online process that I described—but that is not fit for purpose at a check-in counter or preboarding.

We have proof of that because we have a similar situation at the moment where people under the withdrawal agreement are allowed to travel with national identity cards and the Home Office says “You do not need to check anyone with a national identity card, you can simply send them to the UK— it is fine”. Carriers do not want to do that because if they carry someone who does not have permission, they are responsible for the cost of returning them. They say commercially, “Sorry, Home Office, but we are going to check” and they ask the individual if they are trying to travel with an identity card to prove that they have status and they say, “Yes, fine, I will prove it. Here is my view and prove process” and the boarding staff will say, “That is too cumbersome. I am not engaging with that. I refuse to log into a UK Government website and enter my job title”. It just does not work. We feel that people should have some kind of proper grown-up digital credential that sits on their phone, such as is being developed elsewhere. When it goes wrong, it will leave people stranded abroad.

There has been a lot of talk about Australia, I know, but what is unique here is that two things are happening at once and it is all colliding in one deadline. We are rolling out ETA at the same time as trying to get another 2 million people on to a digital status that has proven problems and they will not engage with us on those problems. In Australia, they rolled out the ETA in 1996 and only started the process of going digital for residents in Australia in 2004. They took 11 years to make that transition and for ages people could have a paper version as a back-up; then there were a few more years where people could have a paper version if they paid for it. We get a lot of people saying to us, “Look, if only I could pay for it I would get a card”. That is not what we are asking for, but in Australia it was a very slow transition. Here there is a massive big bang happening all at once.

We are currently supporting a lady who is stuck somewhere in the EU because she had a biometric residence card. She is a visa national but she has status under the EU settlement scheme because she is the wife of an EU citizen. She was told when her BRC expired that she did not need to renew it because everything is digital now. She has travelled several times on that basis, but this time the airline said, “I am sorry. You are a visa national. I insist on a BRC”. She tried to prove it digitally and they were having none of it. She was then advised by UKVI to apply for a replacement BRP, which is completely wrong because she is not eligible for a BRP. She had a BRC. It is legally a different thing. Her passport has been sent to the UK and we are trying to intervene to get her passport sent back to that EU country so that she can apply for a travel permit instead. It is just a nightmare.

I watched Tony Smith’s evidence earlier in the week. He was saying that ETA is being rolled out gradually and being done in cohorts, and that is sensible. But this part, this digitalisation of the people who live here and therefore do not need an ETA—indeed cannot even get ETAs because they are not visitors—is big bang. The person I am talking about right now cannot board without a physical document. On 1 January, she will not have a physical document and neither will 2.5 million other people. I just think there will be so many people stranded abroad who have gone away for Christmas and new year.

Baroness Meacher: I was hoping that the EU settlement scheme enabling EU nationals and their family members to obtain a UK immigration status might overcome a lot of these problems, but I think you are talking about somebody who has had the benefit of this and yet not resolved their problems at all. Is that right?

Monique Hawkins: Yes, because if you are abroad and cannot convince someone that you have the right to be in the UK they will not let you board. In a sense, having an ETA is almost easier than trying to prove you have UK immigration status. You asked about mitigations as well. Quite genuinely, I think the ETA rollout should be halted completely or should be paused.

Baroness Meacher: That sounds a very good idea.

Monique Hawkins: I really think it should be paused. There needs to be a strong focus on sorting out the technical problems in the databases. There needs to be a focus on providing a proper status to individuals that they can prove—one that is in their hands and not dependent on these websites. We have a proposal on the table that is to do with having 2D barcodes. It is completely compliant with ICAO—the International Civil Aviation Organization, which people spoke about earlier. It is totally compliant with part 13 of ICAO, which is about machine-readable travel documents. Schengen visas use them. In the alternative, they should just refire up the factories that created biometric cards and start issuing new ones that do not end at the end of this year and they should issue them to the 3.5 million EU citizens and Hong Kong citizens who currently have a digital-only status.[1]

What also absolutely needs to happen—sorry, I am almost done—is that there needs to be a 24/7 support line that is available to people from abroad who are denied boarding. There must be very clear and serious compensation abilities. At the moment, both the Home Office and the carriers will say, “No, not my problem” and if somebody is denied boarding, usually it is very costly for that individual. They miss opportunities here and may run the risk of losing a job here; they must pay for accommodation while they are abroad. Nobody is prepared to compensate those people. The airline will say, “I am only following the immigration routes”. The Home Office will say, “That is not our department”, so carrier liability needs to be changed.

Baroness Meacher: Absolutely, and I gather that 99% of refusals are down to eligibility. In other words, people cannot show that they have been resident in the UK for the relevant period. I gather there are all sorts of problems about that, because you now must show that you have been resident in the UK a few years ago. Getting hold of old leases and contracts is incredibly difficult, so that sounds like another bundle of problems.

Monique Hawkins: Yes. I did not address that part of your question about people who have not yet been issued a status. I could put that in writing as I could talk for another half an hour just about the problems of obtaining status even when you are eligible for it. The Home Office made changes last autumn to make it much more difficult to make late applications to the EU settlement scheme.

The Chair: Please feel free. You have an open invitation from the committee to make sure that we fully comprehend the case that you are making. Interestingly, you have on several occasions referred to carriers and even made the point that you sought approval for your scheme from ICAO, which is just the airlines. It is always slightly odd that we have a group of airlines that seem to be determining a lot of things about immigration policy. That is probably another issue, but let us go to Lord Sandhurst on carrier responsibility. 

Q55             Lord Sandhurst: This is again directed at you, Ms Hawkins, on carriers’ responsibility once ETA is implemented fully. Can you explain the core legal and practical consequences and what you see as being imposed upon the carriers and how that might work out?

Monique Hawkins: I want to clarify what I said about ICAO. It is just a standards body. That is all.

The Chair: For clarification to you and perhaps for the committee, I genuinely find it odd that the standards are decided by a group of airlines, not a group of countries.

Monique Hawkins: I see. Thank you. On the carriers’ responsibility, as I understand it they will not be allowed to board anyone who does not have this permission to travel once it is fully rolled out. As I set out, this universal permission to travel is satisfied in one of four ways: a British passport, where no further checks need to be made, an Irish passport, proof of having an ETA or proof of being resident in the UK.

Lord Sandhurst: Which is difficult.

Monique Hawkins: Which is difficult, but it is supposed to be delivered by this interactive advance passenger information system, which is a new system that is being developed. The airlines must develop their software to interact with that IAPI system and if they get a “Do not board this person”, I think that they can be directed to a check-in desk and have further questions. I think they will have access to the Home Office to perhaps still let somebody board, but at the end of the day they are not allowed to board anyone who does not have permission.

We have been told that if the IAPI system is ever down or not operating, the Home Office will say that they can let everybody board, because it would not be fair to not let a whole planeload board. However, the problem with that is it saying, “We will not fine them when they bring passengers to the UK” but the fine is only half of it.

Lord Sandhurst: They have to pay it to go back.

Monique Hawkins: Exactly. Even if you are let off the fine, the airlines still must carry you back. What I guess will probably happen is that the airlines will do their own risk assessments, perhaps profiling—we see that a lot already. Again, there should be a clear compensation structure. I feel that that liability must be looked at again. It is unreasonable that if the IAPI systems are down, carriers should have to bear the cost of returning passengers. That needs to be addressed and changed.

They also ought to be wary of quite a lot of technical things, especially with dual nationals, because when you are a dual national you must in a lot of cases be able to attach a different travel document or passport to separate legs of your journey. With a lot of airlines you only attach one passport to the entire round trip, so there is a real problem there.

I noticed that when you spoke to the people from Getlink and Eurostar they were also talking about advancing to the point where you collect your data once and then use it for different things, which would be great, but those systems must be mindful of having multiple passports. When I travel as a dual national, I always have to be careful to exit the UK on my British passport. Even at St Pancras where the two border controls are right next to each other I must exit on my British, enter on my Dutch, and do the same in reverse when I come back.

The Chair: I am going to move us on. Had we had a bit more time it would have been very interesting to hear particularly the American experience on the same question: how do you respond to carriers in relation to the American system or the Australian? Because we are tight for time, would you be kind enough to write to us on that point? That would be very helpful. I know Lord Filkin has a very brief supplementary question before I bring in Lord Dubs.

Lord Filkin: It is going back a bit, but Monique gave a string of remedies that would address the problems of the 2 million or so people who had right of residence in the UK but who she feared were at serious risk. Do the lawyers agree with those recommendations, or do they not remember them?

Monique Hawkins: You mean these two lawyers? Yes.

The Chair: Perhaps you could huddle together afterwards so you can share the list and comment on whether you think they are sensible solutions.

Monique Hawkins: It could be like a travel credential or physical proof.

Sophie Barrett-Brown: Absolutely, yes.

The Chair: That would be enormously helpful.

Christi Hufford Jackson: On the US side we do. Everyone has evidence. ESTA is electronic but everyone else—permanent residents, Green Card holders, US citizens, visa holders, non-immigrant visa holders—has actual hard proof. We are not digital. We still send faxes.

Sophie Barrett-Brown: May I make a brief observation of the interrelation between the ETA, the digital status and the carriers’ liability? I think the committee will appreciate that the ETA is not an immigration status. That is completely separate. It is just permission to get on the plane. The digital status is your immigration status, so—

The Chair: That is why, for interest, earlier on when you were comparing the visa waiver scheme and ETA, I was going to pick it up and make the point that they are not the same. They are different because one is a permission to travel and one is “You can get into the country”.

Sophie Barrett-Brown: Yes, but they are interrelated. It is that combination of the impacts that Monique describes that we are particularly concerned about. At the moment, when a visitor comes to the UK, if they are a visa national they must have a visa. That is the grant of immigration permission before they come, granted by the Home Office. If they are not a visa national, the carriers are not really interested in them because they can board and whether they meet the visitor requirements is something decided by an immigration officer on arrival to the UK, in most cases.

But once the ETA is in force, the carriers will have to apply their minds to every passenger, so what we will inevitably see is a far greater incidence of passengers being declined boarding in the other country. Part of the reason for that is because of the carrier not being able to satisfy or establish that the person does not need an ETA, because they fall into the group of persons that Monique has so eloquently described who are having difficulty in demonstrating their digital status. These problems are all going to collide together.

The Chair: As I understand it, in America that is not a problem because everybody must have, effectively, a piece of paper.

Christi Hufford Jackson: Either a piece of paper or electronic, as an ESTA which can be verified by the carrier. It is important to note that I think you just said that ESTA is status and it is not. It is also just permission to travel, so you definitely can still be denied entry upon arrival at the airport.

Q56             Lord Dubs: As if things were not complicated enough, can I turn to the common travel area and what the implications are for that? Enforcement of the ETA requirements, for those who are required to have one, may be more difficult for those entering the UK from the common travel area. What is your assessment of the potential legal consequences for individuals who travel?

Sophie Barrett-Brown: Yes, it is an extremely complicated problem. As you may well be aware, when individuals come through the common travel area, they come from the Republic of Ireland to the UK, perhaps by flying from Dublin to London, and do not encounter immigration control. With the ETA coming into force, similarly, nobody will be checking that they have an ETA but some of the passengers will require one. As we understand it, in essence if they are a person who is resident in the Republic of Ireland—let us say a US national who is living there—they will not need an ETA if they then travel into the UK. But if they are in the Republic of Ireland just as a visitor—tourism is the main area that has been raised as a concern—they may indeed inadvertently, with a land border, cross into Northern Ireland and would be technically committing a criminal offence. The response to that has been, “Well, nobody is really checking”. I do not feel that that is a satisfactory response. The absence of a check does not mean that the person has not committed a criminal offence.

It seems a very unsatisfactory state of affairs that we will have individuals who may unwittingly commit offences by crossing that border when they required an ETA but did not understand that and did not have one. Equally, we will see other passengers where it will get identified when they board a flight. The carrier may be checking and it will disrupt travel, with the impacts that will then have. As I say, I understand that tourism is one of the key areas of concern that has been raised because it will impact travel, including business travel. That is the nub of the problem.

The Chair: It is the case, am I not right, that once ETIAS—the European scheme—is introduced, which it has not yet been, your mythical American who travels to the Republic of Ireland will require an ETIAS to get into the Republic of Ireland?

Sophie Barrett-Brown: I believe that may be the case but the ETIAS is outside my specialism.

The Chair: It is a separate scheme but, on the other hand, it gives some sort of security. I am not saying it is perfect, but it is one level of security check that will be done on that individual, who might accidentally walk across the border into Northern Ireland.

Lord Dubs: It would only cover some of it.

The Chair: Absolutely.

Lord Dubs: Is there any way of dealing with this? Have you any suggestions?

Christi Hufford Jackson: I am sure you have all seen the news: we have a lot of discussion about our borders. It is incessant. The northern border with Canada is not as big a concern to anyone as the southern border with Mexico is, nevertheless it is interesting to note that Canadians do not require ESTAs. They do not require anything. Canadian citizens can enter the United States for a period of six months for whatever tourism reasons they wish, whereas Mexican citizens require a visa with an interview.

If we talk about the mythical American in Ireland, as a mythical Brit in Canada you would not be able to enter the US without an ESTA. Most of our borders are relatively secure and everyone is filtered through a checkpoint, but in the event that you wander across the border from Canada—you would not do that from Mexico but in Canada—yes, it is the same problem. We have a very similar concern. I do not know that there is any real answer to that issue.

The Chair: It just so happens that my solution is not correct anyway, as our very efficient clerk has pointed out to me. I was wrong because of course the ETIAS applies only to Schengen countries and the Republic of Ireland is not a Schengen country, so we have no solution.

Lord McInnes of Kilwinning: If an American tourist who came to Dublin then moves on to London as part of their holiday, and then is flying back to the States, the carrier would require them to have an ETA to fly them out, so would they be refused at that stage?

Sophie Barrett-Brown: They require an ETA to transfer from Dublin to London, yes, but no border official is going to check that.

Lord McInnes of Kilwinning: No one has checked them, so then they arrive at Heathrow to fly back to New York. Would the carrier refuse them or would they be unknowing that they had broken the law and just travel through?

Sophie Barrett-Brown: I cannot envisage that that would be an issue because that is exiting the UK.

Christi Hufford Jackson: They are not clearing immigration.

Sophie Barrett-Brown: The more likely problem is whether they may not be able to board the flight when they try to board one in Dublin to come to London, because the carrier will be checking even though they will not pass immigration controls when they arrive.

Lord Dubs: The problem must surely be that many people will not be aware of this. Whose responsibility ought it to be to alert them? If they cross over from Donegal today or wherever, they are in an illegal position.

Sophie Barrett-Brown: There is a low level of awareness currently about ETA because it is very new and affects only a small number of nationalities. That awareness will inevitably grow as it is widened out, but there is a very short timeframe for that. There is still the risk, because of the unique relationship between the Republic of Ireland and the UK—and the lack of any physical land border—that people will not even appreciate that they are crossing the border.

The Chair: We have already gone well over our time. I am enormously grateful and, as you can tell, we could have kept you here for hours. On the offer I made at the beginning, if there are things that you think we need to know, please make sure that you contact us and tell us. Time is quite tight, so do that as early as possible. On behalf of the entire committee, thank you for a very helpful session and for your attendance. We are going to stay briefly, so apologies that we will not come to say farewell to you but thank you very much.