The Home Office has published new guidance on ‘arrest and restraint’, which, unfortunately, changes their policy on pursuit for the worse. We publish this update with two caveats.
Firstly, it’s important to remember that the specifics of the law around raids is mostly informed by Home Office guidance, and much of it has not been challenged or clarified in the courts. As such, some of it may not be lawful. For example, in 2014 the Independent Chief Inspector of Borders and Immigration (ICIBI) reviewed Immigration Enforcement’s policy of using internal authorisation letters for raids (‘AD letters’), and found it to be unlawful in nearly two thirds of cases, a finding that has led to the apparent abandonment of this power in the past year. In response, Immigration Enforcement have shifted away from AD letters to the use of “informed consent” to gain entry, a power which shopkeepers and the ICIBI suggest is also being frequently abused.
Secondly, it’s worth remembering that its very unlikely that a person without lawful immigration status has anything to gain by remaining on a site that is being raided: their odds are generally speaking likely to be higher if they can leave the site, especially without detection. Officers tend to block the exits and surround individuals to force them to engage with questioning, which means even the most polite and compliant person is going to have difficulty fighting their corner if they do not have legal status.
Previously, IE guidance said that where an individual was seen to leave the premises, officers could not to pursue them unless they were aware of their immigration status. Therefore, if someone had managed to escape before confirming their identity as the suspect, or disclosing information that confirmed they too were an immigration offender, then – according to IE’s own guidance – that person should not be chased.
However, IE changed this policy last month to allow leaving the premises itself to amount to reasonable suspicion that the person is an immigration offender, which could then potentially be used to justify arrest. The section is badly written and displays circular logic, as in the next section it clearly states that pursuit must not be given “where there are no reasonable grounds to suspect that the person is an immigration offender”. We assume that what they actually mean by that is that the person fleeing the premises is white.
Once again, we reiterate that their new guidance has not been challenged in court nor subject to the review of the watchdog. The idea that a person’s arrest could potentially be justified on the basis of leaving a building during a raid brings to mind obvious questions around how customers will be treated during raids on businesses, given that people often try to leave before being trapped by the mobs of antagonists in bullet-proof vests. Will they be arrested too?
In practice we suspect that this is going to give officers more confidence to chase people. Our message however, remains the same: leave if you can without engaging in conversation, ideally in ways that will not draw attention to yourself.
“Reasonable grounds to justify pursuit
An attempt to leave the premises is not in itself grounds to suspect that a person is an immigration offender. A person who is not under arrest is free to leave the premises if they wish. However, the circumstances of the encounter may give rise to a reasonable suspicion that they are an immigration offender. It is not possible to detail all circumstances that might provide a reasonable suspicion that a person is an offender. Reasonable grounds can only be provided by a general assessment of the known facts, the situation as it is known at the time and a reasonable conclusion drawn from the many possible circumstances that exist.
These might include:
• the nature of the premises and the purpose for which it is being used
• the circumstances of other people located on the premises, for instance, where they are known immigration offenders
• any apparent criminality detected on the premises including trafficking
There may also be reasonable grounds to suspect that a person is an immigration offender based on their behaviour on being confronted by immigration officers who are clearly identifiable.
On entering the premises the officer executing the warrant, or gaining informed consent, must identify themselves and other officers present, and explain their role and purpose to those present. If you see a person clearly attempting to evade contact with other officers you may reasonably suspect that the person was aware they were about to be questioned about their immigration status, and were trying to avoid questioning by leaving the premises immediately. You must take into account any other circumstances of the type listed above.
If you are a cover officer outside the premises you must consider that those you encounter leaving may not know that immigration officers are on the site or may misunderstand the nature of the visit and the enquiries being made. You must, immediately on detecting a person leaving the premises, identify yourself, your role and purpose. If the person then shows no signs of stopping, this may give you reasonable suspicion that the individual is an immigration offender who may be arrested.”