Legal: If I’m arrested, do I have to tell the police my nationality?

This is the second part in an ongoing series of articles about the rights of migrants and the powers of the police.

Unlike many European states, the U.K. does not require its citizens to carry a standardised identity card, and you are not obliged to show the police your ID if they stop you in the street. But if they arrest you, things are a bit different.

The Policing and Crime Act 2017 gives police officers (and immigration officers attached to custody suites) the power to demand that a person under arrest for a criminal offence state their nationality if they ‘suspect that the individual may not be a British citizen’. Failure to comply with such a request, either by providing false or incomplete information, or simply refusing to answer, is – under Section 159 of the Act – a criminal offence punishable by up to 51 weeks in prison. However, the police must have already informed the suspect that non-compliance is a crime; if they fail to do so, no offence has been committed.

Section 160 of the PCA also empowers the police to demand that a person released on bail or ‘under investigation’ provide them with a ‘nationality document’ (e.g. a passport) within 72 hours, if officers suspect them of being a foreign national. Failure to comply with such an order without a reasonable excuse is, once again, punishable by up to 12 months inside. Unsurprisingly, deliberately destroying or disposing of said document does not qualify as a reasonable excuse.

The government’s justification of these provisions is refreshingly free of euphemism: the new powers are to help the cops to identify foreign nationals at the earliest opportunity in the criminal process and to speed up deportations (PCA Fact Sheet p.10), as part of a wider effort to ‘remove as many Foreign National Offenders… as quickly as possible to their home countries, to protect the public, to reduce costs and to free up spaces in prison’ (PCA Explanatory Notes p.34).

Even if we accepted that this was a legitimate policy aim – which this writer, for one, does not – the powers introduced by the PCA 2017 clearly legitimise discriminatory policing practices. While the act requires officers to ‘suspect’ that someone may be a foreign national before demanding to see their papers, it does not require this suspicion to be ‘reasonable’. Under UK law, a suspicion is reasonable if it is based on some objective evidence that would entitle a reasonable person – that wasn’t the cop in question – to form that same suspicion. For example, it would be reasonable to suspect that someone was in possession of a ‘bladed article’ if, a few moments prior, you saw them flashing a knife around. Non-reasonable suspicion doesn’t require this objective basis; it can be based on little more than a ‘hunch’. While Section 149 of the Equality Act does impose upon police officers a duty to eliminate unlawful discrimination, it seems obvious that, in practice, people will be suspected of being ‘foreign’ on the basis that they speak English ‘with an accent’ or – given that 10% of the population still openly admit to thinking you have to be white to be English – they are a person of colour.

As Ana Aliverti discusses in this useful – if hideously liberal – blog post, the potential for ‘abuse’ of these powes was explicitly raised during the House of Lords debate on the bill but peers roundly rejected an amendment that would require an officer’s suspicion to be reasonable. The Lords, it seems, understood that legitimising and encouraging the harassment and persecution of those suspected of being migrants was not an abuse of the act’s provisions but their very aim and purpose. We can only hope that more ‘comrades’ come to share this clear-eyed view of the law and its function.

Carl Spender

Image: Philafrenzy, CC BY-SA 4.0