Immigration (Carriers' Liability Prescribed Sum) Order 1991 (SI 1991/ 1497)

HL Deb 22 October 1991 vol 531 cc1454-80

5.10 p.m.

Lord Harris of Greenwich rose to move, That an humble Address be presented to Her Majesty praying that the order, laid before the House on 2nd July, be annulled.

The noble Lord said: My Lords, I understand that the noble Lord the Leader of the House will reply to the debate in view of certain problems affecting the timetable for the Minister of State at the Home Office. We understand those problems and welcome the fact that the noble Lord will reply to the debate since he was among those responsible for putting the Act on to the statute book in 1987. I intend to quote—I may say with warm approval—much of what he said on that occasion.

The background to the debate can be summarised briefly. The Immigration (Carriers' Liability) Act was put on the statute book by the present Government in 1987 in an attempt to reduce the number of foreign nationals seeking asylum in the United Kingdom. The method chosen by the Government was to compel airlines and shipping companies to pay a civil charge of £1,000 for every passenger carried into the United Kingdom without valid documentation. The airlines and shipping companies were in reality conscripted to be agents of the immigration service, with penalties for any errors of judgment on the part of their staff. By this order, the Government have increased the penalty from £1,000 to £2,000 for every error committed by the airline or shipping company concerned—"error" as defined exclusively by agents of the state.

In my judgment, it is not the purpose of this debate to re-open the arguments as to whether or not the 1987 Act was necessary or whether or not we are faced with a serious problem of asylum seekers and others. I accept that there are, and may be in the future, significant problems associated with the attempted entry into this country and other members of the European Community of what the Government describe as "economic refugees".

My purpose this evening is not to concentrate on the issues to which I referred—important though they are—but to discuss the procedures which have been introduced by the Government as a result of this legislation, the effects on the airlines and other carriers, and to examine whether the assurances given by the Government at the time of the passage of the legislation have been honoured.

Perhaps I may deal first with the assurances that were given when the legislation was in the House of Commons. They were given by the noble Lord the Leader of the House. During the Committee stage of the Bill on 26th March 1987, at col. 628 of Commons Hansard he said: We cannot expect carriers to stop clever forgeries or skilful impersonations. The Bill does not expect them to do that. There is no liability if the falsity is not reasonably apparent … The Bill will be operated sensibly and reasonably". Later, at col. 629, he said that the Bill, imposes burdens on all carriers—ferry companies and airlines. The standard is not demanding. Carriers are not expected to have the type of skills expected of immigration officers". Later still he said: I emphasise that discretion will be used sensibly. It is open to my right hon. Friend not to ask for payment in respect of an infringement of the legislation". The airlines and shipping companies say that there is no relationship whatever between those assurances given to the House of Commons and what has happened since the passage of the legislation.

Perhaps I may give examples of what has happened. First, there is the case of 65 Turkish nationals from Cairo with valid tickets to Lisbon via London on a direct airside transfer. Their documentation was checked by the staff of British Airways and was considered to be in order. When they arrived at London they did not go to the Lisbon flight; instead, they presented themselves to the immigration authorities and said, "We want political asylum".

It was then discovered that they had flushed their travel documents down the lavatory; therefore, there was nothing for the immigration authorities to see—none of the evidence which was given to the British Airways employees at Cairo. As a result of that episode British Airways was fined. That is what a civil charge is, a fine. It was fined no less than £65,000 for landing the Turkish nationals. Under this order it would have been fined £130,000. British Airways then made three appeals to the Home Office against the fines. All were rejected. Perhaps the noble Lord will tell us precisely how the staff of British Airways at Cairo could have known that those 65 ladies and gentlemen would flush their travel documents down the lavatory. It seems that one expects of the staff of British Airways remarkable powers of anticipation if that is expected of them.

Then there is the case of the baby from Iceland flown to Great Ormond Street Hospital for an emergency operation. The child did not have a passport because it was an emergency situation. It was admitted to Britain as a result of the intervention of a local chaplain. The airline was then fined £1,000; now it would be £2,000. Two appeals were required before it was agreed to waive the fine. Why should there have been a fine in the first place? It seems to me quite an extraordinary episode. No doubt the noble Lord, Lord Waddington, will be good enough to give an explanation for the necessity for two appeals.

There was also the case of an addition to a family; the name of the baby was quite properly put on the mother's passport but the mother did not return to the British consulate to get the visa endorsed. The result was a fine of £1,000 on the airline concerned.

Next there was the case of a foreign businessman coming to Britain. He had a perfectly valid visa in his possession; unhappily, it was a single-entry only visa. While he was here, his company asked him to go over to Frankfurt in order to conduct some of the company's business. He then returned to London. The airline was fined £1,000 as a result of that trip caused by him following the instructions given by his company.

I remind the noble Lord, Lord Waddington, of his own words: The Bill will be operated sensibly and reasonably". How can he possibly reconcile that assurance with the examples I have given in regard to the airlines? I am sure that he will not be at all surprised to know that I have at least 20 or 30 other cases that I could describe were there to be time this afternoon.

I turn to the position with the shipping lines. This is one of the most bizarre examples. On 3rd September this year, 16 members of a Nepalese military band arrived at the Hoverspeed Dover hoverport. They were in uniform and therefore I should have thought not likely to be political refugees, or even economic refugees. They had been travelling in the UK and on the Continent playing, no doubt, Nepalese military music. All had entered the United Kingdom on a single-entry visa and had departed from Dover to Calais on 28th August 1991. They were returning in transit to Heathrow to return home on the following day; that is, 4th September. Hoverspeed was then fined £32,000—£2,000 for each of the 16 Nepalese musicians—even though all of them were allowed into the United Kingdom to continue their journey home to Nepal. The problem concerned the single-entry visa. I apologise for again reminding the noble Lord, Lord Waddington, of those admirable words he used in 1987 when he referred to this measure as "sensible and reasonable". How can anyone define such ludicrous behaviour in those terms?

I suspect that one of the problems associated with this matter, and one of the reasons we have got into this farcical situation, is because some of the admirable assurances which I am sure were given in good faith—I do not suggest the contrary for a moment—have not been passed on to those who are responsible for administering the immigration procedures. I have no doubt that advice was given to staff in the immigration department of the Home Office on how the Act was to be interpreted. However, I ask the noble Lord whether the words to which I have referred were included in that advice. I should be immensely grateful if the Minister could answer that question.

I have no doubt that the noble Lord, Lord Waddington, will tell us that the Government believe this measure and the 1987 Act are justified because of the backlog of a very substantial number of cases where people have applied for asylum in this country. I have indicated already that I accept there is a problem here—it would be absurd to indicate the contrary—but the implication of past statements by Ministers is that these people have been brought into the United Kingdom, both by the airlines and the cross-Channel ferries, with false papers. In fact, most of the people in the backlog of asylum cases entered this country with perfectly proper documents. Once they had entered this country legally on the basis of the documents they rightly possessed they then decided they did not wish to return to their own countries and made applications to remain in Britain.

I shall now turn to some of the other consequences of this order. There is the problem of those airlines which have extremely limited resources and which are based in countries which have very small quantities of foreign exchange. I wish to examine what happens when such airlines discover that they have inadvertently brought some asylum seekers into this country. In order to avoid paying a fine those airlines sometimes resort to desperate measures. In August of last year, for example, four Eritreans were held captive on a plane of Czechoslovak Airlines in London and were not allowed to present their case to the immigration authorities. I am informed by Amnesty International that the following month two young Eritreans were dragged back on to a Kenya Airways plane at Heathrow without any consideration having been given to their asylum claim. One of the Eritreans was a former political prisoner who had suffered severe torture while imprisoned. He gave the following account of the incident that occurred: We were towards the end of the queue of passengers leaving the 'plane. Some way into the tunnel we were stopped by a man. He looked at our passports briefly, then passed us to a man and a woman. They took us to a room with seating in it. The woman considered our passports. She began shouting at us, saying how could we come in this way without proper documents, now we would go back to Addis Ababa. When she said this we were so distressed that we fell on our knees weeping and pleading. The woman laughed at us—she thought that it was funny that we were on our hands and knees She said: 'We don't want Ethiopians, there are too many". They took my brother by his legs and dragged him along the ground. Then the woman took me by the wrists and pushed me on to the 'plane". I recognise that that is one side of the story. However, I find it deeply distasteful that episodes of that kind—there are others—are taking place in this country without any consideration being given to the cases of those who are being treated in this unacceptable manner.

How precisely does the noble Lord, Lord Waddington, and his colleagues suggest that airline staff should handle the case of an asylum seeker who believes that he is in imminent risk of his life? Only a few weeks ago we witnessed an example of a democratically-elected government being overthrown by a murderous military regime. There have been, unhappily, plenty of other examples of that in the past. Let us imagine that a person from that democratically-elected government turned up at an airport the night after a coup and says that he is at risk of being murdered by the new military regime. Faced with that situation, what would airline staff do? I should be extremely grateful if the Minister could tell us what would occur. Would an airline employee say, "Yes, I shall let you on the plane to London", or would he say "Sorry. Perhaps you will be murdered tomorrow as you claim but I am not prepared to do anything"? I hope the Minister will tell us what advice the airlines are supposed to follow in such cases.

I believe I have said enough to demonstrate the serious problems that are associated with this order. No informed person would deny for a moment that there is a risk of substantial immigration of economic refugees into this country. However, the consequences of the passage of this order not only place unacceptable burdens on the airlines but also make it extremely difficult to allow genuine political refugees into this country. It imposes harsh and capricious penalties on airlines and other carriers—I have demonstrated that through the examples I have given—when, in the eyes of any reasonable person, there has not been any act of negligence on the part of the airline or shipping company concerned. If there have to be penalties there should be a final right of appeal on paper and not through an oral hearing. That right of appeal should be conducted by a legally qualified person who is independent of government and who would be entitled to review the papers of a case. It is wholly wrong for these matters to be determined exclusively by servants of the state.

I hope the Minister can give us an assurance on a further point. We are told that there will be a Bill on asylum seekers in the next Session of Parliament. We are in the extraordinary position of having had the entire contents of the Queen's Speech leaked to the press. Can the Minister give us an assurance that the Long Title of that Bill will enable us to discuss the 1987 Act again? It is entirely reasonable that after a period of five years there should be an opportunity for Ministers to explain to Parliament what has happened since 1987. If necessary, we should have the right to table amendments to that legislation.

This afternoon I have described the concern I feel at the situation surrounding asylum seekers and at the situation of the airlines and shipping companies that have been affected by the order. However, the issue goes far wider than that. This is a matter of whether the Executive, having given repeated assurances to Parliament that it will operate powers given to it sensibly and reasonably—I again repeat the words used by the noble Lord, Lord Waddington—is to be allowed simply to ignore those assurances. I believe that is the issue before the House this afternoon.

Moved, That an humble Address be presented to Her Majesty praying that the order, laid before the House on 2nd July, be annulled.— (Lord Harris of Greenwich.)

5.30 p.m.

Lord King of Wartnaby

My Lords, it is with some trepidation that I rise after listening to the style, manner and eloquence with which the noble Lord, Lord Harris of Greenwich, outlined the problem. However, I declare an interest and ask noble Lords to hear a little more. I am chairman of British Airways, which is the largest carrier of international passengers and more adversely affected by the Act than any other company.

Since the Act was introduced four years ago £6 million has been claimed by the immigration department in penalties from British Airways. Some £1½ million of that sum has been waived by exercise of the Home Office's administrative discretion. Does that mean that British Airways has been less diligent or co-operative than other carriers in complying with the Act? On the contrary, British Airways is alleged to have carried 4,500 passengers who arrived in this country without proper documents, but in the period in question British Airways carried 100 million passengers.

Does it mean that British Airways has brought into the country 4,500 illegal immigrants? Certainly not. Seventy per cent. of that number were passengers admitted as genuine visitors or permitted by the Home Office to stay. The majority were people who had passports without visas or visas that were out of date. Some were transit passengers who missed their connections. Others were persons who thought that they had a visa but had already made a trip which had exhausted the validity of the visa.

On any view, the absence of correct documents in such cases is a minor matter which causes no damage to the public interest; rather the contrary. Those passengers bring an economic benefit to the United Kingdom. Nevertheless, in each case the airline was fined £1,000. In every case British Airways was penalised just as heavily as if the passenger in question had deliberately attempted to enter the United Kingdom knowing that he would not be permitted to do so.

The Home Secretary has made and tabled a Statutory Instrument which, unless cancelled by either House, will double the charges from £1,000 to £2,000. That would mean that in the period I have described the airline would have incurred charges not of £4.5 million but of no less than £9 million, a sum equivalent to British Airways' profits for the first three months of this year.

Does that mean that the Government believe that British Airways has not co-operated in the application of the law? Not at all. The Home Office has acknowledged that British Airways has made great efforts to train its staff in the complexities of immigration requirements. I am sure that the Minister will confirm that. We have spent over £1 million on additional overseas airport staff, special training and communications to meet the requirements of the law.

The Government say that they are doubling the penalties under the Act because the number of infringements has increased sharply from 6,000 in 1989 to 12,000 in 1990. They accept that the rate of increase in ordinary offences per 1,000 passengers carried by British Airways has not increased significantly but say that they cannot treat British Airways exceptionally. All carriers must be treated alike. Why must all carriers be treated alike? Why should British Airways and other carriers which have made great efforts to comply with the Act be treated as though they had made no effort at all? Indeed, why should those carriers be charged anything at all in the vast majority of cases?

Refusing to adapt the penalty to the offence and refusing to distinguish between those who are co-operating with the Act and those who are not is not being even handed. It is being heavy handed, in a way which works against what the Home Office is trying to achieve.

Countries such as Canada reward reasonable behaviour on the part of the carrier by waiving penalties. Why do the Government adamantly refuse to amend the legislation to permit a more flexible regime? Until such amendments are made the Government should require a more sympathetic exercise of administrative discretion by immigration officers. When this draconian law was passed assurances were given by Ministers in both Houses that the Act would be operated fairly and sensibly. I do not believe that the Government have honoured their undertakings.

This Act is an unprincipled and pernicious piece of legislation which is incompatible with our parliamentary traditions and civilised procedure. It creates an absolute liability. It imposes a penalty, now doubled, which Home Office Ministers make plain is intended to be a deterrent. Yet the liability is civil, not criminal. Reasonable behaviour, lawful excuse, good intent and the normal protections afforded by the criminal law are no defence. If a passenger has arrived without documents, the carrier is guilty and fined £2,000.

The legislation was introduced without any prior consultation with the industry. My company, alone, and in consultation with other airlines and with the Board of Airline Representatives in the United Kingdom, has made repeated representations for a more appropriate and reasonable regime. All the representations have been brushed aside. The force of some of our arguments has been conceded but the conclusion disregarded. When a government disregard reasonable argument and request they expose themselves to accusations of arrogance in the exercise of power. In the old days that used to be called tyranny. I urge the Home Secretary to consider the points which have been made in this debate.

I fully understand the growing seriousness of the problem of illegal immigration, especially of so-called economic immigrants. The carriers wish to help, but there are things they can do and things they cannot do. What airline staff can never be is immigration officers. Airline staff were trained to welcome customers and to serve them and encourage them to fly with their airlines. The immigration officer has the precisely opposite function of preventing people entering the country.

Airline check-in staff are being asked to make judgments about the intentions of passengers who have valid tickets to a destination beyond London and valid documents for that journey. It should be borne in mind that I am not talking about British check-in staff at Heathrow. I am talking about check-in staff at overseas airports who are not UK nationals and in many cases not employees of the airline in question. The check-in operator is expected to make judgments about whether a particular passenger will complete his journey or jump ship and whether he or she is likely to destroy documents and seek asylum. That is more than should be asked of our staff.

Check-in staff are supposed to ask themselves questions such as, "Does this transit passenger look like someone travelling to such and such a country on holiday?" "Does he look as if he can afford such a holiday?" "How much luggage is the passenger taking?" They are even supposed to ask questions about ethnic origin such as, "Does this Turkish passport holder look like a Kurd?" and "Does this Sri Lank an passport holder look like a Tamil?" Do not your Lordships think it wholly unreasonable of the Home Office to impose such requirements on airline staff?

If a businessman or woman from one of several designated countries travelling through London without a visa misses his or her connection because of air traffic delays and is obliged to spend the night at an airport hotel, is it not preposterous that the airline should be fined £2,000 for what the Home Office says is an illegal entry? If a mother has a baby on her passport but not on her visa, the airline is liable to a fine of £2,000 for bringing in a baby without documents. Is that not preposterous?

Such a draconian and indiscriminate regime creates antagonism between the immigration department and the airlines when what we should be promoting is co-operation. Government and carriers should be co-operating in tackling the ever-more complex efforts of deliberate illegality.

The Government should produce a system of documentation that is readily workable in the actual circumstances prevailing at overseas airports. In some cases the documentation is so confusing as to be virtually unintelligible to anyone other than trained immigration personnel. We should have machine-readable documents. The airlines are willing to help develop the necessary technology. We should be working more closely together to identify the organised criminal rings that seek to subvert the law. The Government must face up to the realities of the growing problem of illegal entry and stop trying to shuffle off responsibility to the carriers.

The Home Office should make available at overseas airports their own immigration officers to whom airline check-in staff can refer cases of doubt and difficulty. The Home Office needs to put resources on the round in the embarkation ports where problems originate. Beating the airlines about the head will not solve the problem of illegal immigration and I am disappointed that Home Office Ministers should think that it will.

Doubling, trebling or quadrupling the fines will not solve the problem but it will impose a tax that, ultimately, passengers will have to pay. Tourism is our major industry. Tourists already pay more for visas to this country than almost anywhere else. This regime causes further damage to the industry, which is our greatest earner of foreign exchange, and leaves a major problem unresolved. How much better to secur, the co-operation and help of airlines by flexible regimes reasonably applied.

I have been speaking in this debate as a friend of the Government. It is with regret that, in the absence of an assurance from Ministers that the forthcoming immigration Bill will introduce a more flexible regime which will then be applied with understanding, I support the Prayer to annul the order.

5.43 p.m.

Lord Greenway

My Lords, I am grateful to the noble Lord, Lord Harris of Greenwich, for having given the House the opportunity to discuss the workings of the order and for having introduced the debate in such a concise way.

I understand that the Act originally came about to discourage dishonest airlines from encouraging illegal immigration. Not unnaturally, the noble Lord, Lord King, has put forward the point of view of the airlines. I hope that he will forgive me if I bring the debate back to sea level.

I realise that the huge increase in the numbers of would-be asylum seekers presents a real problem. Ferry companies and ocean carriers are only too cognisant of that fact. However, they are finding it more and more difficult, within the limited resources and manpower available to them, to avoid incurring an increasing burden of penalties arising out of infringements of the Act.

Perhaps I might enlarge on that point. Certain sectors of the ferry business are a high-volume, high-frequency operation with as many as 1,500 passengers and, say, 400 cars to be checked in a comparatively short time, sometimes as little as half an hour. Inevitably, there are times when it will not be possible to check everyone's passport. In addition, the safety aspects of passenger numbers, correctly completed tickets and boarding cards are, quite rightly, a far greater priority for shipping companies.

It is true that the staff of shipping companies who have to do the checking—the car park marshals and the receptionists—have received some training from the immigration department but there is no way that they can ever be regarded as experts. There is some evidence to suggest that the checks they carry out are more rigorous than those performed by the official authorities in some countries—a fact which in itself gave rise to certain problems initially because it was against the law of certain countries for unofficial people to carry out such checks. I understand that France has now amended that anomaly, but, as far as I am aware, it is still illegal in Belgium for an unauthorised person to carry out checks of passports. Perhaps the Leader of the House will confirm that that is still so.

One of the frequent problems that arises is the case of a would-be asylum seeker who presents what appears to be the correct documentation on embarkation and subsequently loses it during the passage—something that he has all the time in the world to do when crossing by sea. How is that to be prevented? Will the ferry companies have to photocopy every document? That would delay the ship and it would never sail. They cannot keep everyone on board in strait-jackets during the passage so that they cannot throw their passports overboard. What are they to do?

One great difference between the airlines and the shipping companies is that the normal ferry company probably receives on average no more than £10 for a foot passenger to cross the Channel. If, as so often happens, someone is detained for not having the right documentation and subsequently incurs supplementary costs for detention and repatriation, how will the ferry company possibly recoup that amount of money when it only receives in the first place such a small fare?

It seems to me that an intolerable burden—increasingly so since the doubling of the fine to £2,000 in July—is being placed on the ferry companies which are, by and large, doing their best to comply with the Act. I know of one company that has introduced a bonus scheme for its checkers in France. If they find a document that is not in order, they receive a small bonus. That has gone some way towards cutting down the number of fines, but it is still not enough. I have heard it rumoured that the fines are to be increased again. I sincerely hope that that is not so and that the Leader of the House will confirm that.

I gather that, generally, relations between the ferry companies and their local immigration officers are fairly good. If the latter were given more discretionary powers, a rather larger number of potential fines, particularly those involving a technical offence, would be waived. However, I cannot help feeling that a hard line is being imposed from the top and that the local officers are simply being required to deliver a budgeted amount of fines and at the same time provide a nice little earner for the Treasury.

The noble Lord, Lord Harris, instanced a number of typical cases. It is not necessary to spend too much time detailing more; I shall just mention one example. Such things happen quite often. Let us suppose that a party of schoolchildren from France comes over here for a visit and arrives at a Channel port. Among those French schoolchildren is a youngster who comes from, say, Mauritania. Is the official of the ferry company to turn back the whole party? Is he to allow the majority of the party to proceed leaving one poor youngster to find his own way back to Paris or wherever? Not so. Normally, the whole party is allowed to proceed. So one member of the party does not have the right papers when he gets to England and the ferry company is fined £2,000.

It is not only the ferry companies which suffer from this legislation. I can quote a recent case involving a small passenger ship coming to this country from St. Helena. On the way here the ship stopped to pick up some seamen from a sinking trawler. The seamen were Ghanaians. While the ship was on passage to this country the company which owned the ship received assurances that the Foreign Office would take care of the repatriation of those seamen. When the ship arrived in the West country, the documents which the Foreign Office supposedly were to produce had been lost somewhere. The company immediately became liable for £2,000 per person for those distressed fishermen. In this case, after some discussion, the fine was waived but the immigration department got its money anyway because it charged the shipping company £220 an hour for its services for a special call-out to go and sort out the problem.

Finally, I should like to ask the noble Lord the Leader of the House about the proposed immigration arrangements for the Channel Tunnel. During the passage of the Channel Tunnel Bill in this House much was made of the need to prevent the ferry operators being put at a financial disadvantage. Will the noble Lord confirm whether it is proposed to juxtapose officials from the UK and France at either end of the tunnel? If so, it would amount to an unfair advantage for the tunnel. Moreover, if someone happened to be turned away from the tunnel, what is to prevent him from going 10 minutes up the coast to Calais, somehow getting past the ferry check—sometimes it is not too difficult—and arriving in Dover without the correct documents, resulting in the ferry company being fined?

This whole vexed question needs to be looked at again. The coming of 1993 will no doubt complicate matters. So will the eventual outcome of the situation in Yugoslavia, with the ever present possibility of serious unrest spreading to the whole of middle Europe and giving rise to yet further tides of refugees. It is not an easy problem to solve, nor will it go away. The Government have my sympathy. However, surely a more equitable way to tackle the problem than that existing at present can and must be found.

5.54 p.m.

Lord Mottistone

My Lords, I should like to congratulate the noble Lord, Lord Harris of Greenwich, on introducing this Prayer. It seems to me that this new little order is an almost pointless addition to the imposition of penalties which I questioned when the Bill came before Parliament four years ago. At that time I was being advised by the ferry companies in particular. However, I see the matter now as a general problem. I also congratulate my noble friend Lord King on his contribution to the debate and for showing this order to be highly doubtful.

If my question can be answered in the time available, I should like to ask my noble friend the Leader of the House whether the Government have any positive evidence that this way of trying to reduce the numbers of people who enter with illegal documents is achieving what it set out to do. As I see it, when the legislation was first introduced it was based on a guess; and one questions whether there has been any evidence in the meantime to show that the situation has got better since this legislation came into force. From what we have heard it appears that the legislation has not been as effective as the Government wanted. Rather than asking themselves whether this is the right way to proceed, perhaps they should ask whether doubling the penalty will be more effective. I rather question whether that is the case.

Like other noble Lords, I sympathise greatly with the Government in what they seek to do and hope that they will be able to achieve their goal. However, I cannot believe that this is the right way to tackle the problem, particularly in relation to very large companies such as British Airways, which has the greater number of potential passengers on whom it cannot check and which is doing its level best to try to help solve the problem. Perhaps the point made by my noble friend Lord King about whether all carriers should be treated alike should be looked at again. I hope that my noble friend will take it up. It seems to me that reputable companies, whether they are shipping companies or airlines, will do their best. It is not in their interests to carry people who should not be carried. They want to carry people who are genuine, increase their proper trade, encourage the tourism of the country, and so on.

There are probably some companies, both shipping companies and little airlines, which do not try hard enot4,h to prevent such things happening and perhaps they need particular treatment. However, to deal with the matter in a broad brush fashion, as the legislation does, does not seem to be tackling the problem in the right way. Therefore, whatever my noble friend is able to say at this point in answer to the various questions put to him I hope that he will go back to his colleagues in the Home Office and say to them, "Look here, study this problem again. Take up the offer of the noble Lord, Lord King, to discuss the matter together with people who have experience of trying to put into effect this Act, the validity of which is doubtful. See whether you cannot come up with another way of working which does not penalise people who should not be penalised and which tackles the problem at source."

5.57 p.m.

Earl Russell

My Lords, these regulations are not merely a case of inflation and consolidation of fines regulations. The increase in the penalty on the carrier is 100 per cent. I do not think that anyone on this side of the House has suggested that during this Parliament inflation has been at the level of 100 per cent. In fact I believe that the correct figure is 31.1 per cent. So there i s a penal increase in a burden which we believe should not have been placed on the carriers in the first place.

I understand that we are not discussing the 1987 Act but I hope that I shall be forgiven one single observation on it. I have never got my mind around the requirement that a refugee must have the correct documentation. That strikes me as a little like a law making it a crime to be burgled when not properly dressed. I was very much disconcerted to discover that it is an offence for the carrier to carry any person whom he suspects of intending to seek asylum. My noble friend Lord Harris of Greenwich is quite right. That requires the carrier to be a clairvoyant.

In fact, it reminds me of the most ridiculous prosecution that I can remember. As your Lordships will understand from the substance, it was some time ago. Four eight year-olds were prosecuted in a juvenile court for loitering with intent to press Button B. The magistrate very properly threw out the charge. Apart from any question of clairvoyance, there is a question of justice. Being suspected is not a crime. Being suspected is not a proper ground for being deprived of rights.

It is possible—for example, in the case of re-entry visas—that somebody may be denied entry in a situation whereby they suffer substantial damage. The loss of a contract is a possibility. The people making that demand, the agents of the carrier, are not Crown servants. I am not a lawyer but I should be surprised if they enjoy Crown immunity. Are the agents of the airline then liable for an action in damages from the person refused entry or from his company? It does not seem fair to penalise people for being suspected. I should have thought that a representative of a Government who complain of being suspected of many things of which they say they are not guilty would appreciate that.

Another aspect which concerns me is the delegation of administrative functions to private citizens, the employees of private companies. We have come across that in other contexts; for example, the certification of students in the Student Loans Bill. It strikes me increasingly that the Government do not have an adequate sense of the majesty of the state as a public entity. They do not have a sense of the danger of transferring away from the state what ought to be public functions.

The process of transferring administrative functions to private citizens has been tried before. It has almost invariably run into trouble for the perfectly good reason that it tends to lead to a conflict of interest. Anyone exercising the power of preventing people from boarding ought to be aiming at achieving justice. The noble Lord, Lord Greenway, illustrated the point with his story about the bonus. That person has to consider not only the interests of justice but the commercial interests of his company. That is inevitable. However, it seems to create a conflict of interest, which illustrates why the carrier should not have had that function in the first place.

I hope that the Government will consider withdrawing the regulations and will refrain from increasing the penalty while the matter is given further consideration and the interests of justice are remembered a little more than they have been hitherto.

6.2 p.m.

Lord Mountevans

My Lords, like other noble Lords, I am grateful to the noble Lord, Lord Harris of Greenwich, for bringing this Prayer before us today.

At the outset I should declare an interest as an adviser to the British Tourist Authority. Having been involved with it for 19 years, I have inevitably built up a large address book of carrier contacts. I understand the authority's concerns and those of the carriers about the proposed doubling of the fine or levy. Quite rightly, the authority sees the doubling as a threat to the achievement of its own main objective—maximising Britain's income from foreign visitors, a topic which was touched upon by my noble friend Lord King in his excellent speech.

The authority also sees its principal allies, the carriers, and especially the British carriers, as threatened. Earlier today at Question Time we discussed national interest in respect of carriers. I believe that it is essential, at a time when both aviation and shipping are going through difficulties, that British carriers, both afloat and in the air, are as strong as possible.

The order goes against that desire. It hurts most British Airways and P & O European, because they are the largest carriers in their respective UK fields. My colleagues in the authority are gathering evidence that the carriers' liability order is giving Britain a bad press abroad, which is damaging to its actions and intentions. They have evidence that our airlines in particular are losing interline business through London. The authority is also deeply concerned that immigration policy is hazarding the Government's wish to see the development of strong regional airports—a subject to which I shall return later.

The noble Lord, Lord Harris of Greenwich, and others have quoted the words of my noble friend the Leader of the House when taking the Bill originally through another place. I certainly agreed then, as now, that we must preserve our reputation as a country to which legitimate refugees can look. However, at the same time we must preserve our economic interests. We must make absolutely sure that any abusers of our system are caught.

As we have been told already, at Second Reading in another place and subsequently, the airlines were promised all the help that the Government could give. They had the impression that the orders would be applied sympathetically—a view subsequently reinforced by my noble friend, when again he referred to sensible interpretation, as we have been reminded. Just over three years later we find figures that make one wonder whether the good intentions and methodology are working. They convince me that they are not.

From Written Answers in another place on 18th July, I discover that the airlines alone—not just the British airlines—had incurred 30,694 liability notices in the three years to 10th July of this year. The penalty had been waived in respect of 2,301 passengers. It had been paid in about 13,500 instances, implying that the airlines felt that they could no longer contest liability. However, there were unpaid fines amounting to £14.85 million, which under the £1,000 rule amounts to 14,850 passengers.

The gap between the earnest intentions announced when the underlying Bill was debated and the liability notices incurred by those 31,000 passengers suggests that somewhere along the way we are getting it wrong. There will doubtless always be airlines that quite simply do not care. There will doubtless always be those who seek criminally to enter the country. However, as my noble friend Lord King has argued, there will be other carriers, such as his own, which take the situation very seriously.

In America earlier this month I became aware how seriously BA staff are addressing the issue. Rightly, BA staff in America feel that they have become the first line of British immigration control. They check passports and visas for validity, aware that 42 per cent. of passengers trapped by the present system have no valid visa, another 12 per cent. have forged documents, 11 per cent. are passengers in transit through London without visas valid for their ultimate destinations and 8 per cent. have invalid or out-of-date passports. Such figures, and the generation of them, are a tribute to the effort that British Airways has put into the problem. Furthermore, its staff have a form guide reflecting nationalities who, documentary evidence indicates, are likely to seek to abuse the system.

In the light of that, I believe that the front-line troops are doing all that they can. To ensure that this is so, I was interested to note that the passengers are identified in respect of the check-in staff who accept them for travel so that mishaps can be traced back and action taken, often in consultation with the immigration authorities in this country. Both the airlines and the Home Office are doing a certain amount. The airlines are doing much but as others have said, I fear that the Home Office is not doing enough.

A major problem—indeed a growth area among abusers—is the destruction of documents in flight. People tear them up, flush them down the toilet, throw them into the sea or (in aviation terms a terrible thought) burn them on board the plane. I am at a loss to see what airlines—indeed any carrier—can do in such cases.

The real problems are those which occur on arrival in the UK. For whatever reason, the immigration officer finds the documents invalid. He is a professional in immigration terms. I would argue that airline staff are not. They are professionals in airline terms. He too is in the front line and does his duty. The airlines, in spite of taking all reasonable steps, have got it wrong and, as far as I can understand, the liability order is issued. I believe that more flexibility than is currently the norm is called for in those circumstances. I am delighted to hear today that I am not alone in that sentiment.

Genuine cases of mishap by the carrier—and one must remember that its staff are working in a commercial world under commercial pressures—should be sympathetically treated in respect of the fine, if that is the right word. The fine should also be waived for those who are subsequently given indefinite leave to stay, which is not the case at present. I believe that we also need to establish a more equal means of dealing with those who, coached with criminal intent, destroy their documents.

I mentioned the British Tourist Authority's anxiety about the effects of this order in terms of the Government's wish to see our regional airports develop strongly, which was reiterated in another place as recently as last Wednesday. My fear is a variant on that argued by the noble Lord, Lord Greenway, in respect of the cost of the fine vis-à-vis the revenue per ferry passenger. In airline terms there is a similar problem in that many relevant services are a matter of small planes to small airports. Two thousand pounds wipes out not only the profits from a given flight; it can often wipe out the entire passenger revenue from that flight. The way ahead is to be more flexible rather than to double the fine. Otherwise our regional colleagues will be left without many of their hard fought for services.

Flexibility—a word that has cropped up again and again and may well crop up later—is my way ahead. I accept the need to protect the real refugee and to frustrate the false one. But I also accept that we need viable carriers. Provided that they continue to take all reasonable steps I believe that they should be less severely penalised than the Government currently envisage. Airline personnel believe that they are the first line of immigration control. Immigration officers do likewise. I hope that my noble friend will have some suggestions as to how we might bridge the gap between them and bridge it soon.

6.11 p.m.

Lord Richard

My Lords, I reiterate what has already been said: I thank the noble Lord, Lord Harris, for giving the House the opportunity to discuss these matters. The order is straightforward; it increases from £1,000 to £2,000 the fine payable.

The House should not neglect the fact that doubling the fine was announced by the Home Secretary, Mr. Kenneth Baker, as part of the Government's Statement on asylum. It was part of the Statement which included the withdrawal of legal aid in immigration and asylum cases and the so-called fast-track procedures for dealing with claims which are, to quote the Home Secretary, "clearly unfounded".

At the same time the Government announced plans to station immigration officers at overseas airports in order to advise airline personnel on the validity of passengers' travel documents. It is also worth recalling that since 1987 a total of £30.3 million worth of fines has been imposed under the Act, but the Government are facing difficulties in collecting all the money.

Perhaps I may begin by looking at the impact of the proposals on potential refugees. The main criticism of the operation of the Immigration (Carriers' Liability) Act is that it does not distinguish between genuine seekers of asylum and others. A further criticism has been that its operation may prevent people who are genuinely fleeing human rights violations from travelling to the UK.

Genuine asylum seekers may well be facing situations of violence and persecution in their own countries and are likely to experience difficulties in obtaining passports and valid travel documents. They may need to use a false identity in order to evade controls on departure. I refer your Lordships to the worth of Mr. Justice Schiemann when considering the matter in a case last year. In wise and perceptive words he stated: He who wishes to obtain asylum in this country, short of a prior contact with the Home Secretary offering him asylum"— which your Lordships may agree is a somewhat rare event— has the option of lying to the UK authorities in [his] country in order to obtain a tourist or some other sort of visa: obtaining a credible forgery of a visa or obtaining an airline ticket to a third country with a stop over in the UK". Even with a valid passport there is no provision in UK immigration law to grant a visa to a person in his home country to enable him to come to the UK as a refugee. By definition a person is not a refugee until he has left his own country. It is difficult for someone who is a refugee, who wishes to be a refugee or who in practice is the victim of persecution in his own country to become a refugee sufficiently for the United Kingdom to consider him as such. It is a nightmare situation.

Amnesty International has recently investigated the situation. In a recent report it stated that the operation of the Immigration (Carriers' Liability) Act and this order intentionally restrict access to the UK's asylum procedures. Indeed, in a letter from the Home Secretary to Amnesty International the Government conceded that the Act and associated visa requirements: do indeed prevent some asylum seekers from coming to the UK". By placing the onus of responsibility on the airline and other carriers—we must not forget the shipping carriers, although the airlines have made the running in opposition to the order—to act as an immigration control the measures have the consequence that potential asylum seekers may be turned away before having a fair chance to state their case. In other words, they may not be able to come here to state their case because an airline ticket seller, who may not be a British subject, may on the basis of his imprecise training decide that a passport or visa is invalid. Such action may have the severe effect of restricting a genuine asylum seeker from having a chance to state his case.

It has also been argued that immigration controls are incompatible with 1951 United Nations Convention on Refugees. The UN High Commissioner for Refugees notes that such controls: work indiscriminately to …hinder the access by refugees to status determination procedures and the rights and protection these persons should enjoy". Amnesty International notes that international standards: are quite clear in stating that governments must ensure that visa and carrier sanctions 'have no detrimental effect on the fundamental principles of international protection'". The Home Secretary in his Statement on asylum in July stated: It does not oblige parties to facilitate, still less to encourage, the arrival of asylum applicants". It may well be true that the convention imposes no such obligation but it does impose an obligation on the Government not to obstruct access to their asylum procedures by those in need of protection. Talk in the context of Britain's "long tradition of providing refuge", to which the Home Secretary referred begins to sound a little hollow.

What is the position of the carriers? I do not believe that it is reasonable to expect airlines to perform the role of judging genuine asylum seekers. As the chairman of the Board of Airlines Representatives, Mr. Conor McGrath, said in the Independent on 10th July: We are being asked to act as the first line of immigration officials". He also stated that some airlines had tried to station people outside the aircraft as they docked to check documents and so prevented asylum seekers from reaching immigration. Again by definition, unless one is in the country one cannot be considered and if one does not land one is not subject to such procedures.

It is clear that carrier operators, in particular the airlines, have adopted practices aimed at minimising the number of fines incurred. I am not surprised; one would expect that. Some airlines now carry out checks on passengers' documentation prior to embarkation. In effect, they are shifting the burden of immigration control to airline personnel, who are not trained or qualified to carry out such work. In other cases would-be asylum seekers have been prevented from disembarking upon arrival in the UK after carrier staff have belatedly discovered the falsity or absence of their documentation.

All noble Lords have details of cases in which fines have been imposed but on which most sensible people would take the opposite view. The idiocy of one case is such that I must share it with the House tonight. An airline flying from New York to Copenhagen was diverted to Glasgow. There was no airside transit lounge for passengers to wait in so they were taken from the aircraft. One passenger should have had a British visa but did not, so the airline was fined. When it was pointed out to him that the airline had been fined because he did not have a British visa, he is supposed to have said that he could not understand why because he did not want to be in the UK in any event.

All I can say to the Leader of the House is that if that is the system that the Government are trying to force airlines and carriers to operate, they have created an almost absolute offence in which the reasonableness or otherwise of the way in which the airline behaves is not considered. If it is considered, it is considered by Home Office immigration officials on the basis of making a gracious concession to the airlines that a fine will not be imposed although there is power to do so.

The present system is unfair and dangerous. It is unfair because of the lack of flexibility which it imposes on airlines in cases in which most people would agree that fairness demands that fines should not be levied.

It is dangerous because it is wrong that carriers should be forced to act as immigration officers. It is not their function, nor should it be. The provision of extra training for airline staff, which the Government are apparently contemplating, in the detection of forged passports and visas emphasises and does not detract from the point I am making. The Government are trying to make airline staff better immigration officials than they otherwise would be by giving additional training in the detection of forged passports and visas.

It is dangerous also because training airline personnel is no substitute for a proper and fair system of immigration control. As my right honourable friend Mr. Hattersley said in his response in another place to the Home Secretary's Statement on 2nd July, it is important to ensure that genuine asylum seekers are not denied entry because of the obsession with keeping out bogus applicants.

The Government should think again about this matter. I do not believe that they have it right. The system which is being administered is neither fair nor flexible. I hope that the Leader of the House can give us some joy.

6.23 p.m.

Lord Waddington

My Lords, I am not sure about that. First, my noble friend Lord Ferrers has asked me to apologise to the House. He had hoped to reply to the debate but he feared that if he remained until the end of the debate, he would be unable to fulfil an engagement at Westminster Abbey this evening which involves accompanying a member of the Royal Family. I am quite sure that the House will excuse him. I hope that your Lordships will bear in mind that I have taken over from my noble friend at short notice. However, I do not believe that that will do me much good because I cannot pretend to have no knowledge of the history of the matter.

The Act was passed in order to stem a sharp increase in the number of passengers who were arriving in our country without passports or visas or with forged documents. It enables my right honourable friend the Home Secretary to levy a charge against a carrier who has brought to this country a person who does not possess proper documents.

A growing number of such people had been arriving here before the passage of the Act. Some had been allowed to board planes without having passports or visas. Others had apparently gone through passport control in the country of embarkation with a passport and visa and then had either disposed of the documents or passed them to an agent so that he could use them again. Either way the passengers arrived in the United Kingdom with no means of identification, posing great problems for immigration officers and adding considerably to the burden of our immigration control.

I must tell your Lordships that the problem continues. I must also tell your Lordships—and this must be important in deciding whether the Government are adopting the right approach—that the problem is not unique to the United Kingdom. Other countries are experiencing the same problem and they have adopted similar solutions to deal with it. At present some 16 countries, including Canada, Australia, Germany, Belgium and Denmark, have laws similar to our own, and the rest of our European Community partners have indicated that they intend to follow suit.

I can say with confidence that the difficulties posed by inadequately documented passengers and the responsibility of carriers to help combat the problem are now well recognised both by governments and by such international transport bodies as the International Air Transport Association and the International Civil Aviation Organisation.

I readily recognise that carriers' liability measures cannot be a complete solution to the problem with which we are faced but they can be a considerable help. It is difficult to say precisely what help they are but I do not believe that those countries which are following our lead have had any difficulty in reaching the conclusion—and I say this in reply to my noble friend Lord Mottistone—that they can help. Indeed, their potency is one of the annoyances to the airlines.

The Act provides for a carrier to be liable to pay a charge of £1,000 or such sum as is prescribed by my right honourable friend the Home Secretary for each passenger who is brought here with inadequate documents. The order which we are debating today increases the sum liable to be paid to £2,000.

Since the Act was passed many carriers have taken steps to ensure that their passengers possess the necessary documents and permits to gain entry to this country. I am bound to tell your Lordships that in our view some carriers have not fully faced up to their responsibilities under the Act although I hasten to add that I am not putting the airline of which my noble friend Lord King is such a distinguished head into that category.

Since 1987, just four years ago, some 30,000 people have arrived in the United Kingdom without proper documents. They have therefore given rise to a charge under the Act. Last year alone there were some 12,000 cases. In view of those figures and in order to bring home to all carriers their responsibilities, we decided that it would be right to increase the sum prescribed under the Act.

I do not believe that we set carriers an impossible task under the Act. I stand by the words I used in 1987 which were quoted by the noble Lord, Lord Harris. I said then that we cannot expect carriers to stop clever forgeries and they are not obliged to do so. My noble friend Lord King said that airline staff are being asked to make judgments about the intentions of people with valid documents. I must say to my noble friend that that is a misapprehension. The airlines must see that people have documents which give them the right to enter this country.

Various cases have been quoted. Some were fanciful. I believe that my noble friend Lord King quoted the example of a mother having a baby on board an aircraft and the airline being fined when the mother arrived with the baby.

Lori King of Wartnaby

My Lords, I said that she had a baby with her. I did not say when it was delivered.

Lord Waddington

My Lords, if the baby was delivered before the lady went through embarkation control then there is no point in the case because if that was the situation, there was no valid documentation for two passengers. Therefore, the requirements under the Act would not be fulfilled.

Lord Harris of Greenwich

My Lords, is the noble Lord, Lord Waddington, suggesting that the baby was likely to be an economic refugee? What is the point of fining an airline £1,000 because a baby was brought in with its mother?

Lord Waddington

My Lords, I should like to assure the noble Lord that as far as I am aware there is no such case. We are discussing a case conjured up as a possibility.

Lord King of Wartnaby

My Lords, I will send the evidence regarding the child to the noble Lord. It may come in useful.

Lord Waddington

My Lords, I say again to my noble friend that a straightforward case of a mother and baby boarding a plane when there is only documentation for the mother, provides no difficulty for the airline staff in distinguishing two from one and recognising that documentation exists for only one person and not two. I therefore leapt to the conclusion that my noble friend was thinking of a more complicated case such as where the baby was born after the mother had gone through immigration control. Clearly there cannot be a problem for the airline staff if the baby is born before the mother goes through immigration control.

There was quoted also the case of the citizens of Turkey. There is no doubt that guidance to carriers makes clear that nationals of certain countries, including Turkey, require a visa. Equally, guidance is given to carriers that nationals of Nepal require a visa. The case of the baby from Iceland is not a good example of intolerance by immigration staff. That is a case where the penalty under the carriers' Act was waived, which was not surprising in the circumstances.

It is true that carriers must have some knowledge of United Kingdom entry requirements in the sense of needing to know whether a specific national requires a visa in order to enter Britain. That is the kind of knowledge which an official of an airline must possess. However, I repeat that there is certainly not placed on the shoulders of an airline official the duty of distinguishing between a person who intends to ask for refugee status when he arrives in this country and a person who does not. That answers one of the principal points made by the noble Earl, Lord Russell.

Printed guides have been sent to all carriers. We provide training material. Teams of immigration officers have given training directly to airline staff on some 60 visits overseas covering over 30 countries. A further 14 visits have taken place under the auspices of the International Air Transport Association. My noble friend Lord King is right that the airlines can benefit from advice from the immigration service, and that is precisely what they have been receiving. My noble friend said that the Home Office should put people on the ground. He will recall that in his Statement of 2nd July my right honourable friend the Home Secretary announced that we proposed to provide document specialists at selected overseas airports to advise carriers regarding the authenticity of travel documents. One such team has operated successfully at Lagos airport in Nigeria and more are being arranged.

It is an exaggeration to suggest, as some do, that the Act requires carriers to become experts in detecting forgeries. That is not what the Act says. Section 1(4) of the Act states quite clearly that a document shall be regarded as being what it purports to be unless its falsity is reasonably apparent. Unfortunately, many examples of well executed forgery turn up at our airports. They give rise to no liability under the Act, and that position will not be affected in any way by the order which we are debating this evening.

The Government do not expect miracles of detection from carriers. But we do expect them to carry out checks to a standard which is achievable with reasonable care and training. Half of all the charges which are levied under the Act arise in absolutely straightforward cases in which a person who requires a visa simply does not have one.

During the first six months of 1991 3,153 cases of passengers without visas were recorded and 2,743 cases of passengers without passports or other documentation. That is unacceptable. On the other hand, £2.5 million of charges have been waived on review. That does not paint a picture of lack of flexibility which was alleged by my noble friends Lord King and Lord Mountevans. A substantial number of charges are waived as a result of representations being made by the airlines.

A person who presents himself at a port of entry in the United Kingdom without a visa will not be allowed to enter. However, he will have travelled to the country and produces all the problems of whether he should be allowed in or sent away, and to where and by whom. It is therefore essential that the possession of a visa, where that is required, is checked before the person embarks from the country of origin. All carriers must realise that if they do not accept their responsibilities under legislation which has been passed by the United Kingdom Parliament they will face a charge. That is the purpose of the order.

I mentioned earlier that some passengers who arrive with no documents at all may have held documents when they checked in for their flights. Subsequently, perhaps in the departure lounge or indeed on the aircraft itself, they may have destroyed them or handed them over to an agent for re-use. That is a growing practice, and I understand the difficulty that carriers face with those cases. However, Section 1(2) of the 1987 Act states clearly that no liability is incurred if the carrier can show that the passenger had a proper document on embarkation. The best safeguard is to place a check at the departure gate. Some carriers already do that and are experiencing considerable success as a result.

With regard to the suggestion that our system of charging under the Act is too rigid, I like to think that not only are we flexible on that matter but also that we are sympathetic. I believe that to be proved by the waiver of £2.5 million in liabilities since the Act became law.

The carrier may first raise the matter with the immigration inspector at the port or airport at which the charge was incurred. If he is not satisfied with the result of that review, he may raise it with immigration service headquarters.

I am aware that some countries favour rising scales of charges rather than a single flat rate as under our own legislation. We keep in touch with those countries, but there is no evidence so far that such a system is more effective in preventing the arrival of undocumented passengers, and it is certainly a more complex system.

I have acknowledged that some carriers have addressed their responsibilities under the 1987 Act. But, as I explained, some carriers have not. No government can accept the continued arrival at our ports of large numbers of undocumented passengers. The obvious people who can determine who should fly in their aircraft, or sail in their ships, are the carriers themselves. The order is necessary in order to bring home to all carriers the need—and indeed their legal responsibility—to check that their passengers have the necessary documents to enter our country. That is clearly an important and increasingly necessary safeguard.

I believe that I have dealt with a number of points raised by the noble Lord, Lord Harris. However, in addition to dealing with the specific points he mentioned, I must add that in certain cases people who may have wished to make a claim of asylum were, by the carriers themselves, put back on planes and taken away. That is clearly unacceptable and we are doing all we can to prevent that happening.

The noble Lord, Lord Harris of Greenwich, posed the question of how staff at an airport should treat an asylum seeker in imminent danger of his life. One can always invent cases. One can speculate about all kinds of cases which may appear in fiction. In fact, that case is particularly unreal. What better way of advertising one's presence in the country where one says that one is going in fear than to turn up at the airport in that country in order to go to the British Airways' desk and say that you wish to claim asylum? When we were debating the matter in another place a long time ago, I found that all kinds of hypothetical cases were put forward. But it is very difficult to put your finger on cases where, in reality, a person would be frustrated in making a proper claim for asylum in the way suggested by the noble Lord.

The noble Lord asked whether the new Bill, when presented, will allow amendments to the Act. I do not know the answer. The noble Lord will have to wait until he sees the Long Title. In any event it is not a matter for me. Presumably, it is a matter for the Clerks of this House and of another place to say how wide the Long Title is. My opinion is that it is unlikely that the whole field of law and asylum will not be within the scope of the Bill. I cannot promise that to be the case, but it would be pretty unlikely if that were not the situation.

I was asked whether, after my speech in 1987, the kinds of undertakings I had given in another place were communicated to immigration officers. Clearly, the precise words were not, but clear instructions were given to immigration officers that they had a discretion which they should exercise reasonably. In my opinion they clearly have. There are one or two points in answer to my noble friend Lord King of Wartnaby. The position is that the majority of people who claim asylum do so having got here legally. They may have come as visitors. However, about one quarter of the people who get here have passports without visas or are without passports at all and then claim asylum. I believe that we try to distinguish between those who co-operate and those who do not. That is why one has a comparatively large number of fees waived.

I believe that I mentioned before, when replying to the noble Lord, that airline staff are not being asked to make judgments about the intentions of people with valid documents. That is not what the Act or the law say. All they have to decide is whether a person has a passport and valid documentation for entry into Britain. In reply to the noble Lord, Lord Greenway, I understand the position to be that it is intended to have juxtaposition of controls when the Channel Tunnel is opened. To exclude the ferry operators from the scheme of the Act would have driven a coach and horses through the legislation. Thirty per cent. of the traffic into Great Britain comes by sea. Many determined to get here when they had no right to would not find it difficult to give up their plans to travel by air and travel by sea instead. But the difficulties for the shipping companies can be exaggerated because the vast majority of people who travel to this country by sea from the Continent, which is well over 80 per cent., are either British citizens or citizens of the EC. The Act relates only to those who require leave to enter the country and the vast majority of ferry passengers do not require that leave.

The noble Lord, Lord Greenway, said that an operator has no power under French or Belgian law to inspect documents. That matter is being considered at present. The law is being considered by the Treasury Solicitor, but I cannot say more at the present time. I believe that I answered the point made by my noble friend Lord Mottistone about positive evidence that the Act was doing good. I also answered the point made by the noble Earl, Lord Russell, about the terms of the Act.

I do not believe that my noble friend Lord Mountevans was right when he said that carriers' liability is giving us a bad press abroad. In fact, the lie to it is given by the fact that many other countries are adopting our legislation because they have decided that A is necessary in order to avoid abuse of immigration controls. In answer to the noble Lord, Lord Richard, the United Kingdom's obligations under the refugee convention relate to asylum seekers in this country or arriving at our ports. All those who claim asylum on arrival will have their applications considered under the criteria of the convention, but the convention does not impose an obligation on us to facilitate the travel of individuals from all over the world who may wish to claim asylum here. The convention's aim is to ensure that refugees find protection and not a guarantee that they can migrate to the country that they find most attractive.

It is sometimes said that genuine refugees are unlikely to have correct documentation because they would have been able to escape only by having forged documents. In fact relatively few asylum seekers arrive here directly from their own countries. Most of them have been in transit in one or more countries on the way and board a plane for Britain in a safe country. Where an asylum seeker has reached a safe third count y but feels that the United Kingdom would be a more appropriate place of refuge, it is open to him to apply at a British diplomatic post for consideration of his application. A refugee would be allowed to come to the United Kingdom—if this was the most suitable place to receive him—if, for example, he had close lies here. But we acknowledge no responsibility to receive people with no such ties and who have already reached safety in another country.

The noble Lord, Lord Richard, mentioned the case of someone on a flight from New York to Copenhagen which was diverted to Glasgow. That charge was waived. No absolute offence is created, but there is a charge in order to reinforce our immigration control. However, there is a discretion which, as I have said, is frequently exercised. In all the circumstances I ask noble Lords to accept that this measure is an important and valuable tool to make a reality of our immigration control. If it were thrown out of the window we would not be telling the truth if we said that we wanted to have firm immigration control.

Lord Renton

My Lords, my noble friend may wish to correct one small slip of the tongue which could give rise to serious misunderstanding. When speaking of people arriving in this country with forged passports, he said that no liability would arise unless it was reasonably apparent on the face of the passport that it was forged. My noble friend clearly meant that no liability would arise for the carrier in those circumstances, but for a great many other people such a liability could arise.

Lord Waddington

My Lords, my noble friend is right. I meant that no liability would rest on the shoulders of the carrier.

6.49 p.m.

Lord Harris of Greenwich

My Lords, at this time of the evening it would be unreasonable to go through the various arguments which have been deployed during the course of this relatively brief debate. It has been a pretty one-sided debate. There was not a single speech from any part of the House in support of the intention of the Government to increase the fine, for fine is what it is, from £1,000 to £2,000.

I say at once that, like many noble Lords, I found the speech of the noble Lord, Lord King, especially powerful, particularly when he drew attention to a point which was no doubt self-evident—it was nevertheless right that it should have been made—that the object of airline staff is to welcome potential passengers and not subject them to the kind of interrogation that is in some cases appropriate so far as concerns the immigration service. That is particularly appropriate—I hope that on this point I shall have the noble Lord the Leader of the House with me—when the Government are talking about introducing a Citizen's Charter. A Citizen's Charter is aimed at improving the quality of service offered not only by state agencies but also by the private sector. It is remarkably inconsistent to promote the approach set out in the order and to say at the same time that the Government want to have a Citizen's Charter to improve the quality of service offered—in this case to the travelling public.

Having referred to the speech of the noble Lord, Lord King, he will forgive me, I know, if I deal primarily with what the noble Lord the Leader of the House said. I give an unqualified welcome to what he said about the Kenyan case, the Czechoslovak case and other similar cases. I was reassured by what he said and I am sure that the matter will be looked into. We cannot allow episodes of that kind to take place in this country. There were one or two points on which I fear I did not find his argument quite so persuasive, as I am sure the noble Lord will accept. I come back to the Turkish and Nepalese cases. I still do not understand how British Airways was supposed to protect itself when more than 60 Turks boarded a plane in Cairo to go via London to Lisbon and then destroyed their travel documents in the lavatory. Why is it right to fine an airline in such a situation when it cannot possibly have committed any act of negligence?

The second case involved the Nepalese military band which turned up in uniform at Dover. The noble Lord, Lord Waddington, said that a special watch has to be kept on the Nepalese. That may be wholly true—if the noble Lord says that it is, I am sure it is true. But this was a uniformed military band. Were its members going to be economic refugees? I should have thought it slightly unlikely. However, the ferry line concerned has been fined the astonishing sum of more than £30,000 for allowing those people back into this country when they were en route to Heathrow Airport. They had the tickets available. How can it be right to fine the ferry line more than £30,000? How can it be "sensible and reasonable"? Those were the words of the noble Lord, Lord Waddington, when Minister of State at the Home Office, in giving a guarantee that that was the way in which the immigration service would approach its responsibilities.

I ask the noble Lord specifically whether the words "sensible and reasonable" were drawn to the attention of the service which has the duty of implementing the regulations. The noble Lord said that he was not sure that the specific words necessarily had been used. The fact of the matter is that they should have been used. In the case of the Icelandic baby a fine was imposed, but on the second appeal the appeal was successful. But why was there a fine in the first place? The idea of a baby being brought into this country for an emergency operation and someone deciding to impose a fine on the airline concerned is frankly ludicrous. No one can possibly suggest that there is any relationship between what the noble Lord said when Minister of State at the Home Office and the way in which these procedures are being implemented by the immigration service.

I do not want to say this as I sit down because I want to give the noble Lord, Lord Waddington, notice of what I am going to say. Normally—but not always—matters of this kind are not put to a vote. I have no particular desire to vote this evening, subject to one important qualification. If the noble Lord will give me an undertaking that this issue will not be excluded from the Long Title of the Bill on asylum I will certainly not insist on a vote this evening. I have no desire to hold up the proceedings of the House. However, as the noble Lord will recognise, there is widespread alarm in all parts of the House about what is going on. What is going on is wholly unacceptable, as a number of the noble Lord's noble friends have said. We know that there is to be a Bill. It has been leaked already—indeed, it has been announced already. The Bill will already have been drafted and therefore the Long Title will be available. If the noble Lord will give me an undertaking, I shall not put the matter to a vote. However, it is quite impossible for the House to let this matter pass unless we are guaranteed that there will be an opportunity to raise it again.

The only other matter I wish to raise with the noble Lord concerns a point which I do not think he dealt with in his reply. I should be perfectly content for the matter to be dealt with by means of correspondence. I asked the noble Lord whether a legally qualified person outside the public service could be brought into these procedures as a final court of appeal. He would not conduct oral hearings—that would be ridiculous—but he would look at the documents. There is at the moment a three-stage appeal process; first, to the immigration officer at the airport; then to Lunar House; and then to a senior officer of the department. We are asking that the final court of appeal—an independent, legally qualified person—should make a decision exclusively on the papers. It seems to me right that that final court of appeal should be someone from outside the public service. It is wrong that officers of the state should impose fines of more than £30 million without any person outside the public service looking at the papers. Having given the noble Lord an opportunity to reflect on what I have just said, I shall gladly give way to him if he would like to intervene.

Lord Waddington

My Lords, before the noble Lord sits down, I am grateful to him for having said that he will write to me about the second point. Clearly it is a matter which ought to be considered by colleagues. I am in some difficulty on the first point. I cannot give an undertaking on behalf of the whole Government while standing on my feet at the end of a debate. However, I can repeat what I said before: that I should be very surprised indeed if the scope of the Bill was not wide enough. I should certainly like to see all these matters ventilated when we come to discuss refugee status, as we all believe we shall do before very long.

Lord Harris of Greenwich

My Lords, we recognise the noble Lord to be an honourable man in every sense of the term. He has said something which I have reflected upon. He has given an indication of his own position on the matter. If he communicates that view to his right honourable friend the Home Secretary, I should be very surprised if his right honourable friend took a contrary view. Thus I shall not press this matter to a Division on the basis that that will be done. Nevertheless I hope that in the period between this debate and the next occasion on which we come back to the matter the Government will look at it again. I am sure the noble Lord recognises the widespread concern in all parts of the House about what has been going on, particularly regarding the procedural points. I very much hope that these matters will be looked at before we return to the issue. On that basis, I beg leave to withdraw the Motion.

Motion, by leave, withdrawn.