381.This section extends the current power to fingerprint those subject to immigration control contained in paragraph 18(2) of Schedule 2 and paragraph 2(4) of Schedule 3 to the 1971 Act and section 3 of the Asylum and Immigration Appeals Act 1993 (which is repealed by this Act and consolidated with the new powers).
382.Subsection (3) provides that fingerprints cannot be taken from a child under the age of sixteen unless an adult is present who fulfils one of the criteria set out in the remainder of the subsection. Subsection (3)(a) specifies that the adult can be the child’s parent or guardian. Subsection (3)(b) specifies that the person can be an adult who has temporarily taken responsibility for the child, for example, a social worker. In addition, subsection (12) provides that the authority of a chief immigration officer, or another authorised person of equivalent grade in the case of prison officers, constables and officers of the Secretary of State, has to be given before the fingerprints of a child under the age of sixteen can be taken. Subsection (13) makes it clear that the safeguards relating to the fingerprinting of children do not apply where the authorised person (as defined by subsection (5)) reasonably believes that the individual whose fingerprints are being taken is over the age of 16.
383.Subsection (5) sets out those categories of person who are authorised to take fingerprints. They are:
384.Subsection (7)(a) provides that fingerprints can be taken from an individual (category A) who, when required on arrival to produce a valid passport or some other form of documentation (eg a national identity card) that establishes their identity and nationality or citizenship, fails to do so. But subsection (10) provides that fingerprints can only be taken under subsection (7)(a) if an immigration officer considers that the person concerned did not have a reasonable excuse for failing to produce the documentation.
385.Subsection (7)(b) provides that fingerprints can be taken from any person (category B) who has been refused leave to enter the United Kingdom but is given temporary admission pending removal from the United Kingdom where the immigration officer reasonably suspects that the individual concerned will not comply with the reporting or residence requirements of that temporary admission. Subsection (11) provides that fingerprints cannot be taken from a person in category B unless this has been approved by a chief immigration officer.
386.Subsection (7)(c)(i) provides that fingerprints can be taken where an immigration officer has given removal directions in respect of illegal entrants, overstayers, those who breach the conditions of their temporary admission, those who have obtained leave to remain by deception, and the dependants of any of these. Subsection (7)(c)(ii) provides that fingerprints can be taken where the Secretary of State gives directions in respect of illegal entrants and subsection (7)(c)(iii) provides for fingerprints to be taken where removal directions have been given in respect of someone who is subject to a deportation order.
387.Subsection (7)(d) provides for fingerprints to be taken from those individuals (category D) who have been arrested under paragraph 17 of Schedule 2 to the 1971 Act.
388.Subsection (7)(e) provides for an asylum seeker’s (category E) fingerprints to be taken.
389.Subsection (7)(f) provides that dependants (category F), as defined by subsection (14), of those persons in categories A to E can have their fingerprints taken. Subsection (14) defines the term “dependant” for these purposes as a spouse or child under the age of eighteen who does not have right of abode or indefinite leave to enter or remain in the United Kingdom. This means, for example, that where a person in category A-E has a spouse or child who is a British citizen, the British citizen will not have their fingerprints taken under this section.
Schedule 9 Part VII: Power to arrest, search and fingerprint Section 141: Fingerprinting