Immigration Offences (Amendment) Bill (Hansard, 6 April 1984)

§ Mr. Ivan Lawrence (Burton)

I beg to move, That the Bill be now read a Second time.

I begin by paying tribute to my hon. Friend the Member for Dudley, West (Dr. Blackburn) who cannot, unfortunately, be here to move the Second Reading of his Bill. He has been ill but the House will be delighted to hear that he is well on the road to recovery and we look forward to seeing him, perhaps before the Bill completes its passage through the House.

The Bill deals with a specific but important detail of immigration law. The first impression of hon. Members may be that it seeks an obscure technical change to little obvious effect. In fact, it is of considerable practical importance for the efficient administration of immigration control.

The Bill deals with overstaying—that is, remaining in Britain for longer than the period for which authority has been given. Under section 24(1)(b)(i) of the Immigration Act 1971 a person commits an offence if he has only a limited leave to enter or to remain in the United Kingdom and knowingly remains here beyond the time limited by that leave. On conviction of this offence, as with other offences punishable with imprisonment, the court may recommend the person for deportation.

The Act also provides for the administrative deportation of overstayers without recourse to the courts. It is clearly crucial to any system of immigration control that effective sanctions should be available in cases in which people are admitted for temporary purposes but then refuse to go when their authority to remain has expired. Prosecution is one of the sanctions envisaged by the 1971 Act, but its effectiveness has been considerably reduced by decisions of the courts in interpreting section 24(1)(b)(i). The Bill seeks to restore the provision that was believed to exist when the 1971 Act came into force.

The crucial question is whether the offence of overstaying is a continuing one—that is to say, whether an overstayer continues to commit an offence throughout the portion of his stay in Britain which follows the expiry of a limited leave to enter or remain, or whether the offence is more limited than that.

Before the 1971 Act was passed there was no doubt that overstaying was a continuing offence. Section 4(1) of the Commonwealth Immigrants Act 1962 and article 5(5) of the Aliens Order 1953 both state explicitly that an offence is committed throughout the period during which a person remains after the expiry of a limited leave. Section 24(1) (b)(i) of the 1971 Act does not include an explicit statement along those lines, but it is arguable that an offence committed by an act of remaining is by strong implication one that must continue. There is certainly no sign in the record of the debates in the House on the 1971 Act that anyone supposed that any change was intended.

However, the position was changed in 1973 by the decision of the Divisional Court in the case of Gurdev Singh. Largely because section 24(3) of the 1971 Act, read in conjunction with section 28, provides an extended time limit of up to three years for the prosecution of overstayers, the court decided that the offence could only be committed on a single day.

1324 Of itself, the decision in Gurdev Singh did not greatly hinder the ability of the police to prosecute overstayers. Provided that the case was brought within three years of the expiry of leave, the charge could say simply that the offence was committed at some point between that date and the date of the overstayer's detection. But severe practical difficulties followed the later judgment given in the other place in April 1982 in the case of Grant v Borg. It was then ruled that the offence could be committed on the day after a person's limited leave expired, and on that day only. The police now have to prove that the person knew on that specific day that he was overstaying.

There are broad categories of overstaying cases in which prosecution is now difficult or even impossible. There are particular difficulties if the person has appealed against a refusal to grant him further leave to remain. Since he is not required to leave the country until his appeal has been decided, which may be a long time after his original leave expired, it can clearly be hard for the police to show knowledge of overstaying on the relevant day. There are also problems when a person has been dealing with the Home Office through an agent, or when his leave has been extended automatically by the Immigration (Variation of Leave) Order 1976 while a further application is considered. It cannot always be shown satisfactorily that the person was precisely aware of his position on the single day which is now relevant.

It may be argued in answer to all this that if the cases of particular individuals do not meet the criteria required by the courts, so be it—they should not be prosecuted. The provisions for administrative deportation under the Act can always be used against any overstayer, irrespective of his knowledge on the day after his leave expired or the length of time that elapsed before his detection. The power to prosecute is, therefore, some might say, superfluous. My reply to that is that this was not the view the House took in 1971 in passing the Immigration Act. It is plain that the Act envisages prosecution as the appropriate response to wilful overstaying, and there is no reason why the clear intention of the Act should be frustrated by a technical problem of this kind. In the final analysis, the remedy for overstaying is removal from this country, whether it be by administrative deportation or on the recommendation of a court; but the deterrent value of conviction and sentence should not be dismissed.

Administrative deportation has the disadvantage that it is a much slower and more cumbersome procedure than deportation on the recommendation of a court. It also involves an important and immediate practical difficulty. Under the powers of administrative deportation it is difficult to apprehend an overstayer. While the police may arrest an overstayer whom they intend to prosecute, and he is liable to be detained after a court has convicted him and recommended him for deportation, a special detention order must be signed by the Home Secretary if it is necessary to hold a person who is to be deported administratively before a deportation order is made. Thus, when the police or immigration service question a person to find that he is an overstayer who is not prosecutable, but no detention order has been made against him, they must let him go. And, of course, it is not surprising if people who have contrived to evade detection for a substantial period gratefully take their chance and go to ground once more. As things stand, it is often those cases of lengthy 1325 overstaying in which prosecution would seem to be most appropriate that cannot be taken to court. For the Home Office, prosecution is quicker, easier and more certain.

Hon. Members will have noticed that this is a very short Bill, comprising only two clauses. Subsection (1) of clause 1 amends section 24(1)(b)(i) of the Immigration Act to state specifically that overstaying is a continuing offence. Subsection (2) removes overstaying from the list of immigration offences with an extended time limit for prosecution, which seems unavoidable in the light of the Divisional Court ruling in Gurdev Singh; and subsection (3) ensures that the effect of the changes will not be retrospective. Clause 2 is concerned wholly with citation, commencement and extent.

This is clearly a most important change in the law that has been brought about by an unforesseable change in the immigration rules as the courts have interpreted them. I commend the Bill to the House as a simple and straightforward measure that will restore what was envisaged by the 1971 Act and contribute significantly to efficient enforcement of a matter which is important to all right hon. and hon. Members—immigration control.