Commentary on Sections Schedule 8: Powers to seize invalid passports etc
426.Paragraph 1 sets out the interpretation of key terms in the Schedule. Paragraph 1(1) defines an examining officer as a constable, an immigration officer, or a customs official. Paragraph 1(2) defines a travel document. Paragraph 1(3) defines what constitutes an invalid travel document. Paragraph 1(4) defines a port.
427.Paragraph 2 provides powers to examining officers at ports in respect of invalid travel documents, which are primarily passports issued by the government of any state but can include other documents such as emergency travel documents. These powers may be exercised when the officer believes a person is entering or leaving Great Britain or Northern Ireland, or travelling by air within Great Britain or within Northern Ireland (paragraph 2(1)). They empower an examining officer to require a person to hand over all travel documents, to search for travel documents, to inspect travel documents for the purpose of checking their validity, to retain such a document while its validity is checked, and to retain any travel document believed to be invalid (paragraph 2(2)). Paragraph 2(3) provides that the power to search applies to searches of the person, his or her possessions and any vehicle in which he or she has been or is about to be travelling. Paragraph 2(4) provides that in exercising these powers, an examining officer may, if necessary, use reasonable force. The officer may also authorise another person to carry out a search on his or her behalf. It is a matter for the examining officer to decide how to exercise this power, but it would appear for example that a police community support officer might, if convenient and appropriate, be authorised by such an officer to exercise this power. An examining officer may also stop a person or vehicle for the purpose of exercising the powers in paragraph 2.
428.Paragraph 3 affords powers of search and seizure to constables in respect of certain cancelled UK passports; these powers are not available to other examining officers. Paragraph 3(1) provides that these powers are available outside a port in the case of a person whom the constable reasonably believes to be in a possession of a passport that meets all the criteria in paragraph 3(2): that it was issued by or for Her Majesty’s Government; it has been cancelled by the Secretary of State (in practice, the Home Secretary) on grounds of involvement in activities so undesirable that it is contrary to the public interest for the person to have access to passport facilities; and the Secretary of State has specified the passport in an authorisation issued for the use of the powers under this paragraph. Paragraph 3(3) provides constables with the power to require the production of travel documents for inspection, to search for and take possession of travel documents, to retain any such documents while their validity is checked, and to retain travel documents that are believed to be invalid. Paragraph 3(4) provides that the power of search includes the powers to search the person, his or her possessions, any vehicle in which he or she has been travelling or is about to travel, and any premises on which the constable is lawfully present. Paragraph 3(5) provides that a constable may, if necessary, use reasonable force in exercising the powers under this paragraph, and also that a constable may authorise a person to carry out a search on his or her behalf.
429.Paragraph 4 makes further provisions in relation to the retention and return of seized documents. Paragraph 4(1) provides that a document that is retained while its validity is investigated must be checked as soon as possible. If it is found to be valid, or invalid only because it has expired, it must be returned straight away (paragraph 4(2)). A passport cannot be retained for checks for longer than seven days unless it has already been found to be invalid for a reason other than expiry (paragraph 4(3)). This is because there may be legitimate uses for an expired passport, for example, if it incorporated an extant visa issued by another country. However, a requirement to return an expired travel document does not apply if the officer concerned reasonably believes it to have been intended for use for purposes for which it is no longer valid (paragraph 4(4)). A requirement to return a travel document under this paragraph has effect subject to any other provision outside the Schedule under which it may lawfully be retained (paragraph 4(5)).
430.Paragraphs 5(1) and 5(2) create two offences in relation to the operation of the new powers. These are respectively the offence of failing to hand over travel documents without reasonable excuse, and obstructing or frustrating a search. Both are summary offences with maximum penalties of six months’ imprisonment, or a fine (which in Scotland and Northern Ireland may not exceed £5,000), or both (paragraph 5(3)).
431.Paragraph 6 provides an examining officer with the same power of arrest as a constable in respect of these new offences or offences under section 4 or 6 of the Identity Documents Act 2011 (possession of false identity documents with improper intention or without reasonable excuse).