HC Deb 11 January 1993 vol 216 cc660-6

'.—(1) A person shall be guilty of an offence punishable on summary conviction by a fine of not more than level 5 on the standard scale or by imprisonment for not more than six months, or by both, in any of the following cases:—

  1. (a) he either by himself or in conjunction with any other person prevents any asylum seeker who has arrived or attempted to arrive in the territory of the United Kingdom from being lawfully examined by an immigration officer;
  2. (b) he either by himself or in conjunction with any other person or persons hinders or delays the asylum seeker who has arrived or attempted to arrive in the territory of the United Kingdom from being lawfully examined by an immigration officer;
  3. (c) if being an immigration officer he conducts the examination either without authority or in such a manner as to render that examination unlawful;
  4. (d) if as owner or agent of a ship or aircraft he procures, assists or permits any employee, servant or agent or any other person to commit an offence under subsection (a) or (b) above;

(2) Subsection (1) above applies to matters both within and outside the territory of the United Kingdom.'.—[Mr. Fraser.]

Brought up, and read the First time.

Mr. John Fraser (Norwood)

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

One welcome aspect of the Bill is that, for the first time, applicants for political asylum who arrive at a port in the United Kingdom will have a statutory right of appeal. About three quarters of those who are already here and apply for political asylum already have that right, but it is generally agreed that those who flee from another country and arrive at a port probably have the most pressing need to claim refuge.

There are many unwelcome aspects of the Bill, but the one that I have mentioned is a welcome one. However, it is tarnished and corroded by two main elements in the Bill: first, the removal of the right of appeal for visitors, with which I shall deal later; and, secondly, the legislative barbed wire barrier which the Bill flings out. The barbed wire barrier is designed to prevent people from ever availing themselves of the right to claim political asylum in the United Kingdom in the first place.

The underlying principle of the Bill is getting one's foot in the door. Unless the applicant gets his or her foot in the door, it is impossible to exercise the right to claim asylum and a right of appeal. The Government have a hidden and rather sinister strategy to ensure that as few people as possible get that foot in the door. If people do not get their foot in the door, the Government do not have to say yes or no or provide any right of appeal.

There are two particular barbs on the legal barbed wire barrier to refugees. The first is the practice of requiring visas to he granted to people from countries from which people are likely to flee and to seek political asylum. The rule is easily forecast. If Kurds want to come from Turkey to claim political asylum, impose a visa regime on Turkey. If Tamils want to come from Sri Lanka to claim political asylum because of undoubted problems in that country, impose a visa. If people want to come from former Yugoslavia to claim political asylum in Britain, impose a visa to prevent them from getting a foot in the door to make that application. That is the first barb in the legal barbed wire harrier that has been put around the country.

6.45 pm

The second barb is the Immigration (Carriers' Liability) Act 1987. If people who know that they need a visa to come to the United Kingdom are foolish enough to apply in an overseas country for a visa to visit the United Kingdom and disclose, as did the Bosnian refugees, that they are likely to claim persecution, it follows as night follows day that the application will be refused. Therefore, people have no possibility of making an application for asylum which is subject to an appeal. That brings into play the carriers' liability Act.

If an applicant boards an aircraft or ship without a visa, arrives in the United Kingdom and claims political asylum —that is to say, if that person gets a foot in the door—the carrier of the applicant for political asylum will be fined £2,000 without any right of appeal. The Act puts a £2,000 premium on the carrier. It physically prevents people from making an application to an immigration officer in the United Kingdom.

United Kingdom law will perhaps not apply for the whole of the journey. It depends on the carrier and the ship. The system which the Government have put together to prevent people from arriving here almost encourages bounty hunters who will pick out prospective applicants whose presence in the United Kingdom could otherwise cost the carrier £2,000 per person. We know that the fines imposed on carriers amount to many millions of pounds.

I understand that there have been examples of people being physically prevented from reaching an immigration officer in the United Kingdom. The new clause would make that a criminal offence.

The new clause also deals with the rarer circumstances —I do not suggest that they arise often—in which an immigration officer might interview an applicant for admission to the United Kingdom but not admit of the fact that an application for political asylum was made and then return that person to a third country. That is what happens to people who arrive in the United Kingdom and claim admission. If they come from a visa country and do not make an application for political asylum, they can be removed almost within hours and sent back to a third country. The new clause would equally make a refusal under those circumstances a criminal offence.

The carriers' liability Act puts a £2,000 price on the head of every visaless refugee who comes to Britain. The new clause would at least be a discouragement to claiming that price. The evil with which the new clause proposes to deal is not imagined. There have been several examples in which a price has been claimed. It is possible that the increase in the fine on carriers from £1,000 to £2,000, together with events in various parts of the world, will make the process of claiming a price on the head of prospective applicants more attractive than ever to carriers and disreputable people.

If the Government are making it a criminal offence for applicants for political asylum not to give their fingerprints, surely they should make it a criminal offence for anyone to prevent such people from reaching an immigration officer to have even the opportunity to have their fingerprints taken.

Sir Teddy Taylor (Southend, East)

I want to ask the Minister a question which arises from subsection (1)(c) of the new clause. Unless I am seriously misguided, I hope that the Government will not accept the new clause because of the massive problems that paragraph (c) could create for immigration officers.

Most of the debates today, in Committee and elsewhere have been based on the false premise that the British Parliament and Government control immigration policy and the right of people to come to this country. As we well know, significant changes have been imposed on us by our membership of the European Community. First, every citizen of a European Community country is entitled to come here. Secondly, we will shortly face the problem of citizens of some overseas colonies who will have the automatic right of admission. The citizens of a small Portuguese colony, not far from Hong Kong, will shortly be fully entitled to come to this country, as the Government are well aware, which could create problems if people from Hong Kong go to that colony.

I have a high regard for the Under-Secretary of State and have never doubted his integrity. I hope that he will give us some guidance on the position of the Government and of immigration officers in the event of a case being taken to the European Court, as is likely, to decide whether a person coming to an EC country from a third-world country will have the automatic right of admission to the United Kingdom.

Mr. Allen

Perhaps the hon. Gentleman would help me to understand his argument. Is he criticising the fact that most immigration decisions are made by meetings of European Community Ministers? Is he criticising the fact that none of the decisions comes before the European Commission or the European Parliament? If that happened, would it not give us a better chance to scrutinise what goes on in the Trevi group and the ad hoc group of' Immigration Ministers?

Sir Teddy Taylor

If the hon. Gentleman believes that argument, he should consider the matter more carefully. As he well knows, there is no way that the European Parliament, or any other such body, could consider such matters. It would be different if we were to start all over again and have a European Government and a European Parliament, but the hon. Gentleman is living in cloud cuckoo land. As he is well aware, the decisions will be taken by the European Court—a political court, which is not controlled by any democratic body. Irrespective of whether one considers that that is a good or a bad thing, the basic issue is important.

The Government will be well aware that the Home Secretary has had long discussions with Commissioner Bangemann because it was assumed that article 7 might allow any person from a third-world country who was entitled to come to any part of the European Community to come to the United Kingdom. It was assumed that a bona fide visitor to Greece, Portugal or Italy would have an automatic right of entry here, despite our laws. The Home Secretary has had long discussions with Mr. Bangemann and it seems that a decision has been delayed for a year or more. However, as the Minister knows well, that agreement does not prevent anyone from a third-world country from going to the European Court to claim that, because of article 7, he or she should have right of admission into the United Kingdom. Although we cannot prejudge such matters, the signs are that the European Court would find in favour of such an application and in those circumstances we could face considerable problems. Italy is virtually an open house country, to which it is easy to gain admission, and Greece poses a problem because, although Athens is tightly controlled, it is easy to gain entry to the rest of the country.

I do not wish simply to peddle an EC argument; I wish to point out the dangers if we do not have effective controls. I think that all hon. Members have been horrified at recent events in Germany, which have happened not because the Germans are nasty people but because they gained the impression—rightly or wrongly—that there was no effective control over people coming to their country from the eastern bloc. For that reason, some horrible things happened, horrible deeds were done and horrible things were said.

Hon. Members on both sides of the House who are anxious to preserve good race relations in this country are also anxious to prevent a situation in which we will have limited control over the admission of people from third-world countries to this country. We are well aware that there is a huge demand from people in third-world countries to come here because of economic considerations, although those are not as vital during a time of great depression, and because of the bonds between the United Kingdom and parts of the third world. Every hon. Member knows of the numbers of people from Bangladesh and Pakistan who want to come to this country because of our historic links and the successes of fellow citizens who have settled here. The Minister knows that if we did not have effective immigration controls the good relations that many people—including some Ministers in the Department—fight hard to maintain could be undermined.

Can the Government give us any indication of the advice that they will give to immigration officers if such a case should be taken to the European Court? We know that court decisions take about one year and all kinds of problems could arise during the deliberations. If, after one year, the decision went against the Government, what on earth would be the position of immigration officers and Department officials who had refused entry to people in the meantime? Considerable damage could result. Considerable difficulties can arise in law if one deprives someone of something to which he is later found to be legally entitled. Can the Minister tell us what advice he will give to immigration officers if we were to lose such a case?

I have sat in this House for far too long not to appreciate that he and other Ministers must get fed up with people asking hypothetical questions. However, the Minister and officials at the Department are well aware that this is in no sense a hypothetical issue. The problem will arise, either because someone takes a case to the European Court, or because of the eventual agreement between the Government and Mr. Bangemann because of what is contained in article 7.

I hope that the Minister will give us some guidance about what he thinks will be the legal position of immigration officers while a court decision is being taken, and what Government policy will be if the decision goes against them, which I fear will be the case. That will pose a serious problem and I am sure that it worries Members on both sides of the House. We cannot run away from it.

Knowing the Minister as I do, I hope that he will make a statement now, rather than causing panic if such a case came to the European Court. How much better it would be for the Government to face up to the decision and to make an early statement about what they intend to do.

Knowing the Minister as I do and knowing of his integrity, as I said before—something that I have said of only one other Minister—I hope that the Minister will take the matter seriously, will face up to it and will tell us, on behalf of the Government, about their approach to the issue.

Mr. Charles Wardle

My hon. Friend the Member for Southend, East (Sir T. Taylor) is a man of considerable charm, but I am not used to his laying it on with a trowel in the fashion that he has just done. He is inviting me to speculate on a hypothetical situation—a case that he has dreamt up. I shall respond, as best I can, by saying where we are now, and I shall let him draw his conclusions and take what he will to the debates on Maastricht later this week and in following weeks. The Government will strongly resist any such case. On the back of expert legal advice, we are confident that we would be successful.

I shall make three points which may help my hon. Friend, although I appreciate that he is an expert on the Maastricht treaty. The House will be aware that only two immigration issues come within treaty competence: a common visa list will be established for member countries, as well as a standard visa format. Everything else to do with immigration which is sometimes debated in this House and elsewhere will come under the pillar of co-operation, with Immigration Ministers of the different countries meeting on a regular basis and seeking to harmonise their policies, but not seeking to establish a standard set of policies.

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Mr. Fraser

Are we not being a little misled? Is there not a provision in the Maastricht treaty to the effect that a majority, which could exclude the United Kingdom, could impose a visa restriction when, in the words of that treaty, there is a threat to entry to the Community?

Mr. Wardle

I am sure that the hon. Gentleman is right about that, but, in terms of the practical arrangements for our normal day-to-day immigration controls, I am sure that the hon. Gentleman would agree that the two features I have outlined will come within treaty competence. However, I accept the advice that the hon. Gentleman has offered to the House.

I should like to raise two more points in answer to my hon. Friend the Member for Southend, East and then I shall consider the points raised by the hon. Member for Norwood (Mr. Fraser).

Undoubtedly the Commission has a different interpretation of these matters and we dispute its interpretation of article 8A. We are absolutely clear that it does not apply to third-country nationals—people from non-EC countries—who were at the crux of the hypothetical situation which my hon. Friend described. We shall continue to maintain the check on the identity of all passengers coming into the United Kingdom to establish whether they are third-country nationals or not.

As the hon. Member for Nottingham, North (Mr. Allen) frequently reminded us in Committee, we are not a member of the Schengen group. However, we applaud the efforts made by the nine EC countries which are members of it to improve their frontier controls. As my hon. Friend the Member for Southend, East rightly said, those countries face huge problems with their long land-locked borders and controls are difficult. That is another reason why we shall continue to hold to our interpretation of article 8A and maintain our checks on non-EC nationals.

The hon. Member for Norwood spoke of allegations that some asylum applicants have been physically prevented from gaining access to an immigration officer to make their application. The whole House shares the hon. Gentleman's concern that people who come to this country wishing to claim asylum should have an unfettered opportunity to do so.

I am aware that it has been alleged that, in some cases, passengers have been prevented from disembarking or from approaching immigration control. I assure the House, as I assured the Committee on the same subject, that the Government would not condone such behaviour. Immigration officers have clear instructions that a person who claims asylum while on United Kingdom soil must have his or her application referred to the asylum division of the Home Office.

I am pleased to say that there is no evidence that immigration officers have been involved in unauthorised removals, which would be contrary to their instructions. Having said that, I very much doubt that the creation of the new criminal offence, as proposed in the new clause, would be an appropriate response to that issue.

It is equally unacceptable that airlines should seek physically to prevent a passenger from approaching immigration control. Once the passenger has arrived in the United Kingdom, it is too late for the airline to ask itself whether it should have carried that passenger.

I must take issue with subsection (2) of the new clause, which says that an offence would be committed even if the act in question took place outside the United Kingdom. That would be an extraordinary extension of extraterritorial jurisdiction and, in any case, it would not be enforceable. I assume that it is intended to render the Immigration (Carriers' Liability) Act 1987 unworkable, because airlines would argue that they were prevented from denying boarding to undocumented passengers.

I have already made clear, as did my right hon. and learned Friend the Secretary of State earlier today, that we shall abide by our obligations under the 1951 convention in relation to people who have arrived in this country and who seek our protection. There is no obligation upon us, however, to facilitate the passage of that person to the United Kingdom. Moreover, as the hon. Member for Norwood allowed, it is frequently the pattern these days that passengers do not embark for the United Kingdom directly from the country of alleged persecution; they first find their way to a country of transit.

The new clause would effectively render the 1987 Act unworkable, and for that reason I urge the House to reject it.

Question put and negatived.

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