The Police Act 1997 (Criminal Records) (Homes for Ukraine Sponsorship Scheme) (Scotland) Amendment Regulations 2022

2. Introductory information

Questions and Comments

2.1 Summary of proposal

These regulations have been made in response to the "Homes for Ukraine" Sponsorship Scheme announced by the UK Government and the Scottish Government's intention to act as a "super sponsor" for those fleeing the war in Ukraine.

Currently, the Police Act 1997 (Criminal Records) (Homes for Ukraine Sponsorship Scheme) (Scotland) Amendment Regulations 2022 and the Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Homes for Ukraine Sponsorship Scheme) (Scotland) Amendment Order 2022 extend the circumstances in which questions about previous criminal history may be asked of an individual, when assessing their suitability in particular circumstances, to include those persons volunteering to provide accommodation (whether that be within personal homes or via second properties) to a person who has permission to enter or stay in the UK under immigration rules granted in relation to the Homes for Ukraine scheme. Where the individual offering the accommodation is offering a room in their own home, any other individual over the age of 16 years also residing in the household with that individual, can also be subject to the same level of check.

Connected amendments to the statutory framework in relation to self-disclosure were initially made by the Rehabilitation of Offenders Act 1974 (Exclusions And Exceptions) (Scotland) Amendment Order 2022 and subsequently by the Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Homes for Ukraine Sponsorship Scheme) (Scotland) Amendment Order 2022. These Orders ensure that the rules on self-disclosure and state disclosure of convictions are aligned.

There is no separate DPIA for the ROA Amendment Order because it does not affect the way Disclosure Scotland will process or store an individual's personal data. The powers to process and share information are derived from Part V of the Police Act 1997 and the 2010 Regulations.

2.2 Description of the personal data involved

Please also specify if this personal data will be special category data, or relate to criminal convictions or offences

Enhanced disclosure checks, even in these circumstances, may still only be made by persons or organisations registered with Disclosure Scotland under section 120 of the Police Act 1997.

The registered person/countersignatory will collect the personal information relating to specific applications –

this will include name(s), previous names, National Insurance (NI) number, driving licence number, passport number, date of birth, place of birth, nationality, addresses over last five years and contact details.

The countersignatory will conduct identity verification. Disclosure Scotland's Code of Practice for countersignatories sets out that three pieces of information should be requested from an individual to support identification. Where possible one should be photographic (for example, a current passport or new style UK driving licence), one should confirm the name and address of the individual and one should confirm the date of birth of the individual.

In practice, the disclosure applicant will complete the first part of the form (questions 1 to 6) and send it to the countersignatory, who then completes the rest of the form. A link to the form is provided in Annex E.

Completed applications for sponsors and adults within the sponsor accommodation are then sent to dsoperations@disclosurescotland.gov.scot

Application details are checked by Disclosure Scotland against the police databases. When Disclosure Scotland has completed its checks, it will issue an enhanced disclosure certificate to both the counter signatory and the individual sponsor or adult within the sponsor accommodation.

2.3 Will the processing of personal data as a result of the proposal have an impact on decisions made about individuals, groups or categories of persons?

If so, please explain the potential or actual impact. This may include, for example, a denial of an individual's rights, or use of social profiling to inform policy making.

The regulations will not result in the routine processing of data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, data concerning health or data about a person's sex life or sexual orientation. Some biometric data will be processed in the form of fingerprints. The powers to process such data already exist in the Police Act 1997 and are only used in cases where other means of authentication have been unsuccessful. In practice, fingerprints are used vary rarely to confirm someone's identity as part of the application process. However, there are occasions where somebody might have given another person's details when arrested or where the applicant has a very similar name, date of birth and address history as an entry on the Criminal History System ("CHS"). In these circumstances, a criminal record may potentially be attributed to the wrong person during a disclosure check. The CHS uses fingerprints to link a criminal record to the individual. Disclosure Scotland can therefore use fingerprint identification to confirm whether or not the applicant is the same person as the one with the criminal record, thereby ensuring that a criminal record is not wrongly attributed. The process is governed by the 2010 regulations. Disclosure Scotland can refuse to consider a disclosure application in cases where the applicant refuses to provide fingerprints. Disclosure Scotland must ensure the destruction of fingerprints taken for assisting the authentication of identity, once that task is completed.

2.4 Necessity, proportionality, and justification

What issue/public need is the proposal seeking to address?

What policy objective is the legislation trying to meet?

Were less invasive or more privacy-friendly options considered, and if so why were these options rejected?

Are there any potential unintended consequences with regards to the provisions e.g., would the provisions result in unintended surveillance or profiling?

Have you considered whether the intended processing will have appropriate safeguards in place? If so, briefly explain the nature of those safeguards and how any safeguards ensure the balance of any competing interests in relation to the processing.

The Scottish Government's policy intent is to ensure there are adequate levels of vetting checks on those who wish to provide accommodation to displaced Ukrainians.

The Homes for Ukraine scheme (including the 'Warm Scots Welcome' programme which enables displaced Ukrainian persons, when applying for a visa under the scheme, to select the Scottish Government as their super sponsor) is a voluntary scheme whereby members of the public through a UK Government portal can note their interest to become a sponsor and provide accommodation. The guidance that is currently available on the UK Government website clearly states that disclosure checks will be undertaken in relation to those volunteering to be sponsors; where those volunteering are offering to provide accommodation within the same premises that they also reside in, other adult members of their household will also be subject to disclosure checks.

Whilst the vast majority of people coming forward to host refugees will present no risk of harm to them, the Scottish Ministers believe the system (which criminal record checks forms one part of) should be sufficiently robust to protect it from those who may seek to exploit vulnerabilities in the system.

Scottish Government considered the appropriate level of vetting and concluded the policy proposal should be weighted on the side of minimising any risk of placing refugees with an unsuitable individual while allowing for the scheme to achieve its aims and move at a suitable pace. It was determined that the appropriate level of vetting would be achieved by provision of the enhanced criminal record certificate with suitability information relating to children and protected adults, issued under sections 113B, 113CA and 113CB of the Police Act 1997.

2.5 Will the implementation be accompanied by guidance or by an associated Code of Conduct?

If the latter, what will be the status of the Code of Conduct? (statutory or voluntary?

As noted above, enhanced disclosure checks, even in these circumstances, may still only be made by persons or organisations registered with Disclosure Scotland under section 120 of the Police Act 1997.

These organisations must adhere to the existing Code of Practice issued to registered bodies under section 122 of the Police Act 1997.

A link to the existing version of that Code is at Annex B.

In addition, sections 123 and 124 of the Police Act 1997 set out the offence provisions in relation to falsification, unlawful requests for and use of higher level disclosures and unlawful disclosure