HL Deb 23 July 2002 vol 638 cc261-9

7.5 p.m.

The Parliamentary Under-Secretary of State, Home Office (Lord Filkin)

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Lord Filkin.)

On Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (Baroness Turner of Camden) in the Chair.]

Clause 124 [Assisting unlawful immigration, &c.]:

Lord Avebury moved Amendment No. 238ZGA: Page 65, line 16, after "act" insert "for financial gain

The noble Lord said: In moving Amendment No. 238ZGA, I shall speak also to Amendments Nos. 238ZGK and 238ZGP. I begin by explaining that Clause 124 replaces the provisions of Section 25 of the Immigration Act 1971 concerning offences relating to assisting unlawful entry. But in Amendment No. 238ZGA's formulation we have the missing ingredient that the offence is committed for gain.

Existing Section 25 of the 1971 Act refers to entry into the United Kingdom while this clause concerns those who facilitate a breach of immigration laws, meaning a breach of any law which has effect in a member state controlling entry into the state, transit across the state or being present in a member stale. So it also extends our extraterritorial jurisdiction to cover breaches of immigration law in every state in the European Union, which of course we are required to do in order to comply with Article 27 of the Schengen convention.

Article 27 of the Schengen convention provides: The Contracting Parties undertake to impose appropriate penalties on any person who, for purposes of gain, assists or tries to assist an alien to enter or reside within the territory of one of the Contractual Parties contrary to the laws of that Contracting Party on the entry and residence of aliens".

Thus it is clear, I hope, that we are only obliged to act against those persons doing those things for gain, as was in the case of the previous Section 25 of the Immigration Act 1971. We think that the words "for gain" are essential to restore the position as it was in the 1971 Act. We hope that the Minister will agree to that proposition.

On Amendment 238ZGK we are concerned that the suggested penalty of 14 years' imprisonment fails to take into account the difference in substance and effect between the offence of facilitation and the far more serious crimes of trafficking for sexual and other forms of exploitation. The maximum term of imprisonment on conviction of an offence under this provision is set at 14 years. We are concerned that that is far too high for the nature of the offence. It is to be compared with the trafficking offences where that same maximum penalty has been imposed. We believe that the penalties for facilitation should reflect the fact that no harm to a person is incurred by the act of facilitation. We agree that there is a difference in kind between people operating in organised gangs on a large scale and someone helping an individual to evade controls as a one-off exercise. We do not see that reflected in the existing provisions of the Bill. I believe that two years would be a more appropriate penalty for this offence: it corresponds with offences of a similar nature which are already on the statute book. I beg to move.

Earl Russell

The last time we were discussing this Bill, very late in the evening, I asked the Minister if he could tell us of any legal route by which a lawful asylum seeker, who was nevertheless an illegal immigrant, could enter this country in order to claim asylum. I have not yet heard an answer to that question. Whether I hear one before the conclusion of this debate will materially influence the case and the position I ultimately take.

This clause seems to be treating asylum seekers in much the same way as in the 17th century they treated ships coming from countries where they had the plague; as something so dangerous that it was not safe even to allow one of them near our shore. The right to claim asylum is a lawful right enshrined in international law and confirmed by treaty to which this country is a party. I hope that it is clear to all Members of the Committee that a legal asylum seeker and an illegal immigrant may be, and very often are, one and the same person. What I want to know is how is a person who is a lawful asylum seeker, but who is nevertheless an illegal immigrant, to gain entry to this country where he can make his claim for asylum in safety?

I appreciate that this amendment is designed against traffickers. I have no wish to defend them. In particular, I have no wish to defend traffickers who traffic in women for purposes of prostitution or who traffic in children for the same purpose, and of whom there are too many. When we reach those clauses in the Bill I will support in principle what the Government are trying to do, although try to make one or two changes in it.

What appears to me to be an attempt to keep asylum seekers away from our shores absolutely and completely causes me very deep dismay. Even where one deals with traffickers in asylum seekers—as I remarked when we were discussing carriers' liability—if there is a big enough demand for something the market will satisfy it, legally or illegally. The Minister ought to bear that in mind. The best way of putting illegal traffickers out of business is to allow a legal route of entry.

If anything like this clause had been in force in the 1930s, I believe that my parents and most of their friends would have ended up serving 14-year sentences in prison because almost all of them knew quite well somebody who was Jewish and an academic scholar in one of the countries where the Nazis came to power. Almost all of them had done unlawful things to help these people to enter this country, many of whom have now become among its most distinguished citizens.

I remember attending a degree ceremony at the University of London where one of the honorary degrees was given to the person who had organised the reception network for these academics. Two honorary degrees were given to people she had helped to enter this country and two more were given to people who were the children of those whom she had helped to enter.

To serve a 14-year prison sentence for doing that seems to me to be rather perverse. If one had been in Kosovo in 1999 and had encountered an Albanian and the Serbs had burned down the house next door and expected them to come back the next night, I wonder how many of us would not have been prepared to give help. I appreciate that one cannot combine the privileges of being a legislator and announcing a willingness to break the law. I bear that in mind constantly. However, although not from a religious point of view, I respect the principle that there is a point where a law actually commands one to sin where it is extremely difficult to obey it. Were this law to be on the statute book I could imagine circumstances in which I would find the task of obeying it gave me very great difficulty. As a legislator that is the point at which I must stop.

7.15 p.m.

Lord Hylton

I support the first amendment moved by the noble Lord, Lord Avebury. If it were accepted it would enable resources to be concentrated on the pursuit, prosecution and dealing severely with traffickers. It would also leave out of the equation people who, for some reason or other, have made a breach of immigration rules or laws by inadvertence.

As regards the amendment in the name of the noble Baroness, Lady Anelay, I believe it is necessary in defence of not only non-governmental organisations, but also of asylum seekers. We then come to Amendment No. 238ZGK. I agree thoroughly with the noble Earl, Lord Russell, that the maximum penalty stated on the face of the Bill is far too high.

Baroness Anelay of St Johns

I speak to Amendment No. 238ZGC in this group which stands in my name. I welcome the support given to that amendment by the noble Lord, Lord Hylton.

Amendment No. 238ZGC seeks to probe the scope of the offence to be created by the new Section 25 of the Immigration Act 1971, as substituted by Clause 124. As the noble Lord, Lord Avebury, has already made clear, in new Section 25A the Government seek to reproduce existing provisions in Section 25 of the 1971 Act relating to facilitating the entry of asylum seekers for gain to the United Kingdom. A person has a defence under subsection (3) of the new Section 25A if he is acting on behalf of an organisation which aims to assist asylum seekers and does not charge for its services.

My amendment seeks to probe the issue of whether or not non-profit making organisations which assist asylum seekers might be caught by the provisions of the offence in new Section 25. But while a defence is available in respect of the offence contained in new Section 25A, which relates only to the United Kingdom, have the Government considered whether non-profit organisations which assist asylum seekers might fall foul of the provisions of the immigration laws of other member states of the EU? If so, would they then be caught under the new offence which extends to the laws of those states, and would they not have a defence under the new Section 25?

Finally, I refer to Amendment No. 238ZGK, spoken to by the noble Lord, Lord Avebury, as regards the reduction of the penalty from 14 years to two years. I found his explanation interesting as regards the provenance of that particular amendment in that he seeks to have a difference in definition between facilitation and trafficking. I certainly see some troublesome issues in trying to define when someone is facilitating rather than trafficking. I invite the Minister to give the Committee an explanation of whether or not there would be problems or whether the Government would be able to define it and therefore take the matter on board. When I first looked at the amendment I felt that my support would be with the Government for wanting to mark that a serious offence was created by this part of the Bill.

Lord Thomas of Gresford

I find it somewhat ironic that I sat here until one o'clock in the morning the other day with a view to proposing this amendment which stands in my name and yet I missed the beginning of the Committee's deliberations on this particular amendment now. What concerns me about new Section 25 is the maximum sentence of 14 years, or an unlimited fine, that it imposes. The level of sentencing implies something serious. The Committee should appreciate that when there is a maximum sentence of such a degree, that has an effect upon sentences all through the calendar.

Previously, the offence of harbouring an illegal immigrant carried a maximum sentence of six months, but upping the tariff to this extent, making the maximum 14 years, suggests that the offence is aimed at trafficking in people, which would explain why it carries the same maximum as that in new Section 25A, which covers the offence of helping asylum seekers to enter the United Kingdom. But in proposed new Section 25A, the offence contains the vital words that the offence is to be committed, knowingly and for gain". That is why we tabled Amendment No. 238ZGA, which would import into new Section 25 the concept of financial gain.

As an alternative approach, in Amendment No. 238ZGP we attempt to clarify the meaning of the words "for gain" in new Section 25A(1)(a). Again, the maximum sentence of 14 years indicates a serious criminal offence, aimed at the "snakehead", as they describe them in Hong Kong, who smuggles people into the country. One way or the other, the maximum sentence imposed in the new section is excessive.

Lord Filkin

I regret that at the start of our sixth day in Committee on the Bill, I am unable to accept the amendment. Let me explain why.

Turning to Amendment No. 238ZGA, the Government do not accept that assisting someone to break the law should not be an offence unless done for financial gain. Let me give the Committee an illustration from reports in the newspapers last week. A woman arrived in Italy with her boyfriend in her suitcase, claiming that she was transporting a pile of ornamental bricks. I assume that that comes under seeking to break the immigration rules for love rather than for financial gain. Nevertheless, it is an offence.

Turning to Amendment No. 238ZGC, I am aware that it replicates a provision in new Section 25A. The provision is necessary in that section, but we are not persuaded that it is necessary here. We accept that people who work for organisations of the kind described may be involved in assisting the arrival of asylum seekers in the United Kingdom, and that it is appropriate to make special provision for them for that offence. However, we do not believe that their work requires them to assist persons to breach immigration laws, so we do not think that a special defence is necessary or desirable.

For example, while those organisations may assist asylum seekers to arrive in the UK, we do not accept that they need to resort to smuggling them through immigration control once they arrive. Neither do we accept that there is any need to bring them through other member states in breach of the laws of those countries. Similarly, if a person who has entered illegally claims asylum and is given temporary admission, they are then not remaining here illegally and it is therefore not an offence under new Section 25 to assist or facilitate that.

However, if someone enters illegally or overstays, does not claim asylum and receives assistance that facilitates their remaining illegally, there is no reason why someone acting on behalf of an organisation of the kind specified should necessarily be immune from prosecution, as would be the case under the amendment. As drafted, the amendment would apply to anyone employed by an organisation of the kind described, whether or not the immigration offender whom they assisted was an asylum seeker. We see no good reason why we should want to provide an exemption in such circumstances.

I turn to Amendment No. 238ZGK. The amendment proposes to reduce the maximum level of the penalty to two years. As the Committee will know, the maximum penalty for the present offence is 10 years' imprisonment, so the amendment would reduce it to substantially less than the seven years that the House recognised as insufficient only three years ago.

We estimate that about three-quarters of recorded illegal entrants receive assistance from organised criminal gangs. It is a multi-million—indeed, multi-billion—pound industry, and a maximum penalty of two years' imprisonment would be utterly inadequate. When we debate later amendments, we shall discuss whether it should be possible to try some immigration offences summarily. As the Committee may anticipate, we will affirm the importance of retaining that provision. That is because a wide spectrum of offences will be covered under immigration law, some of which one may view as criminal but relatively venal, as opposed to repeated multiple traffickers. Allowing trial under summary procedure would, of course, involve only a two-year maximum sentence, and therefore appropriately preserve the options of prosecuting authorities.

Turning to Amendment No. 238ZGP, the parliamentary draftsman opted for the phrase "for gain". But in neither case is the gain limited to financial gain, as would be the case under the amendment. The current drafting would catch someone whose recompense is not hard cash, but some sort of benefit in kind.

I turn to the question of the noble Lord, Lord Avebury, about the insertion of the words "for gain" in the Immigration Act 1971. I will check, but my understanding is that Section 25 covers, Any person knowingly concerned in making or carrying out arrangements". We do not think that the words "for gain" appear in that section, but we will check, rather than have a possibly erroneous debate

The noble Earl, Lord Russell, repeated his challenge: is it possible to have a legal route for entry to the United Kingdom and to make an asylum claim? An illegal entrant has, by definition, entered illegally and committed an offence. That is self-evident. But a lawful asylum seeker may claim entry in safety at a point of arrival. At that point, he will not yet have entered until he passes through control. Therefore, the strict answer is that a person who has arrived in this country, wants to claim asylum and, at the point where he meets with the immigration officer, claims asylum is not at that point in breach of immigration laws.

The noble Earl also invited a debate about whether, if legal routes of entry were wider and easier, we would see an end to asylum claims that are used by some—not all—who are economic migrants. I wish that I believed that that was entirely true; unfortunately, I do not. The number of people who may want to come to the United Kingdom—for work or other reasons—is so large that, even if we considerably increase the managed migration route, I still believe that there would be such people. But I agree with the thrust of his argument that it is important to develop managed migration, which is why we have doubled the number of work permits issued during the past two years and may well go substantially further.

I would also stress that it is important that, when countries have got a grip on the confusion between asylum claimants and work migrants, it may be possible to expand resettlement as a process that many of us believe would deal with justice with people who have need for asylum but cannot reach the United Kingdom or other countries.

On the point raised by the noble Lord, Lord Hylton, I think that I have already addressed why we think that the words "for gain" are appropriate.

The noble Baroness, Lady Anelay, asked about non-profit organisations. I have sought to explain why I think that it is possible to leave them free to carry out the work that they perform, which in the broad measure of cases is good, right and necessary, and not to incriminate themselves. She asked a tough question about whether they should be exempt from European Union laws. We will be obliged—we support this—to incorporate as part of the Schengen agreement, or the parts of Schengen with which we agree, to support other EU countries on their migration and asylum and immigration routes. We think that it is right and proper that we should do so. Therefore, they must act within those laws.

Can I distinguish between "facilitating" and "trafficking"? Perhaps not off the cuff. My impromptu response is that "trafficking" has the connotation of being substantial and extensive. I shall, however, reflect on that matter and come back to the House on it when there is more time. I shall write accordingly.

I suggest that, for the reasons that I have given, it might be appropriate to withdraw the amendments.

7.30 p.m.

Earl Russell

I thank the Minister for his answer about the lawful asylum seeker. It was a good and fair answer, and I accept it. Does the Minister think that the rest of the Bill is in line with the answer that he gave? For example, will the clauses apply to people who assist illegal immigrants who nevertheless make a claim for asylum and, even more, to people who make a claim for asylum that is ultimately successful?

The same question might be asked about carriers' liability. Like the sun, that provision is meant to shine both on the just and the unjust. How can the Minister avoid penalising those who enter intending to claim asylum, do so lawfully and are successful?

Lord Filkin

I am reluctant to go further than the answer that I gave, using a specific example of how it was possible for someone to come into the country and make an asylum claim without being in breach of immigration law. In essence, the noble Earl's question touches on the challenge that faces most western European countries and many others.

The noble Earl has himself asked how we can find ways of giving a fair hearing and a refuge to people who claim asylum while so many people—for reasons that are understandable but which we cannot accept—seek entry to the country to work and use asylum as their route for doing so. All governments face a major problem in dealing with the convergence of those two streams. I will reflect on the noble Earl's point; if I can give a further answer over the summer, I will be pleased to do so.

Lord Thomas of Gresford

I was delighted to hear the Minister say that he recognised the difference between facilitating and trafficking. Trafficking is essentially exploitative; facilitating is a different concept. It is not right that there should be the same maximum sentence in both situations.

I was interested in the example that the Minister gave of the lady who carried her boyfriend in a suitcase. It took me back to a case that I did in Hong Kong, in which a bank manager was carried out of a hotel in a suitcase. Unfortunately, he was not alive at the time, and it had rather more serious consequences for him. The jury did not believe that a person could be put in a suitcase, until a detective demonstrated in court that it was possible to get into "Exhibit 1" without too many problems.

The Minister should reflect on the matter of the maximum sentence and come back with more firmly stated views.

Lord Avebury

I agree with my noble friend Lord Thomas of Gresford. I can see no reason why the penalties should have been so drastically increased since the last time that we considered them and amended what is now Section 25, as amended, of the 1971 Act. In that section, the penalties are not 14 years, and the offences are much the same as those set out in this Bill.

I might have misled the Committee slightly. I was referring to all the offences provided for under Section 25, and I should have distinguished between, on the one hand, facilitation with a view to securing the entry into the United Kingdom of somebody whom the offender knows to be an asylum claimant and, on the other, all the other offences in Section 25 of the 1971 Act. Facilitating the entry of an applicant for asylum is an offence only if it is done for gain. All the other offences of facilitation are equally penalised, whether they are for gain or not. That is why we made the distinction. It was a useful distinction, and we should perpetuate it in this Bill.

As suggested by the remarks made by my noble friend Lord Russell about the situation in the 1930s, we must make a moral choice—even if it is not set out in the Bill—between somebody who helps an asylum claimant to enter the United Kingdom and somebody such as the lady—mentioned by the Minister—who wanted to get her boyfriend in, disguised as a pile of bricks. Some might think that she ought to have got some marks for the ingenuity of that solution. I would have no objection to a slightly higher sentence in cases in which somebody facilitates entry neither for gain nor for asylum purposes. However, my noble friend referred to cases from the 1930s, such as we or our parents will remember, of helping asylum applicants to escape from Nazi Germany. There are more recent examples, too. There are all the people who escaped from Pinochet's Chile; we facilitated their entry. We facilitated the entry of people from South Africa. Donald Woods, a good friend of mine, escaped from South Africa and sought asylum in this country. In future, someone who helps someone like Donald Woods to escape and enter this country will, under the Bill, be guilty of an absolute offence, regardless of the merits of the asylum claim. We have got that wrong.

I shall withdraw the amendment now, but we will have to return to the matter on Report, if I can persuade my colleagues that we should do so. I agree that we have not made a good job of making the necessary distinction in this amendment, but we will make a second attempt to make a proper distinction between persons facilitating the entry of asylum applicants and persons facilitating the entry of immigrants for any other purpose. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bassam of Brighton

I beg to move that the House do now resume. In moving the Motion, I suggest that the House resume consideration of the Bill not before 8.36 p.m.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.