Only a few days to go: We’re raising £25,000 to keep TheyWorkForYou running and make sure people across the UK can hold their elected representatives to account.Donate to our crowdfunder
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Baroness Scotland of Asthal.)
After Clause 1, insert the following new clause—
"PROVISION OF PASSENGER INFORMATION
(1) A carrier of a person from outside the United Kingdom to a United Kingdom airport commits an offence if it fails to present the person's travel documents, or a copy of those documents, to an immigration officer in the United Kingdom on request.
(2) A carrier guilty of an offence under this section shall be liable to a fine not exceeding the statutory maximum for any one offence.
(3) A carrier shall be entitled to be reimbursed by the Secretary of State all reasonable costs incurred by it in relation to this section."
All of these are probing amendments and are intended to ask the Government to clarify the intention behind Clause 2 and its impact on both the asylum seeker and the carrier which has brought the asylum seeker here, whether by air, sea or Eurostar. The clause was improved by the Government on Report in another place but we still have some concern.
Amendment No. A1 introduces a new clause which addresses the linked issue of how far the carrier should be responsible for ensuring that any document that has been used to gain access to plane, ship or train is both valid and available for inspection when the passenger reaches the UK. I note that an Unstarred Question on this issue has been tabled for
I am grateful to the representatives of airlines such as British Airways and Britannia Airways who have briefed me on this matter. It is clear that the carriers are supportive of the Government's objective of ensuring that documentation that is available upon boarding is still available to be checked by an immigration officer.
The issue is about making sure that the system works well and is proportionate in its impact upon business. I tabled a new clause instead of seeking to amend the Government's own new Clause 11 for a very particular reason. I wanted to be able to signal clearly that I do not object to the Government's new Clause 11, which was inserted with virtually no debate on Report in another place. I do not want to damage it in any way. This is a stand-alone debate separate from that.
My questions are as follows. Why did the Government allow only six days for consultation on the regulatory impact assessment? Why has the Home Office rejected any parallel between fishing vessels—where Defra recently agreed to fund the installation of tracking equipment required under EU regulations—and carriers, who will be required to invest in data capture systems to do the work of the IND as their agent? What is the benefit to the carrier's business of this investment in technology, which is to provide information to the IND? What information will be required and from which categories of travellers?
I understand that the Home Office is considering covering 10 airports at the moment. Is there not a risk that the traffickers will simply switch to other airports? What account has the Home Office taken of that risk? Will the Minister give an undertaking that the order giving effect to the Home Office proposals will not be drafted, still less laid, until the following three conditions have been satisfied: first, there has been full consultation, following Cabinet Office guidelines, on all options for data capture; secondly, that the Home Office has agreed proportionality with all stakeholders; and thirdly, that the software for data capture and transmission that the Home Office needs has been developed by the Home Office in consultation with carriers?
I turn to the other issues in Clause 2 which directly affect the person who is being trafficked. We say it is right that we should make sure that people who come here to seek asylum should not deliberately destroy documents in their possession that are relevant to their claim, in order intentionally to frustrate the system. We strongly support the objective of the Government's Clause 2, provided—and it is a strong proviso—that the Government intend to punish only those who intentionally destroy documents, without being under duress from somebody such as the trafficker. We know all too well that this can be the case. We also need to consider the position of those who have never had travel or immigration documents or passports. Indeed, as I commented at Second Reading, many people would not be allowed to have such documents, for the reason that they are being persecuted in their own country from which they have to flee to seek asylum. The Home Office has, on occasion, recognised that many of the strongest applications for asylum come from individuals who have been forced to enter this country with no, or invalid, documents. It is a very fine distinction to make. Amendments Nos. 2 and 5 therefore replace the requirement for an immigration document—commonly one would expect a passport—with one for a document that would satisfactorily establish identity.
Of course, none of my arguments are new. They have been rehearsed in another place and by organisations that have briefed noble Lords and the Government, so I do not expect that any of the comments I have made so far come as a surprise to the Minister. Indeed, I anticipate that the Minister may say, in response to my amendments on Clause 2, that asylum seekers will be protected by the provisions of Clause 2(4)(c), since that establishes a defence if one has a reasonable excuse for not being in possession of a document that is specified in subsection (1). But, as my honourable friend Humfrey Malins made clear in another place, our problem with that is that the subsection does not confer certainty to the asylum seeker. If the Minster can today give an assurance that somebody who has not possessed the relevant document would always come within the reasonable excuse provision, then I would be more content.
Amendment No. 4—the same basic subject, but a rather different approach—comes to me as a result of a briefing from the Refugee Children's Consortium. I thank it for its briefing on this, and its careful and full briefing on the rest of the Bill. It is, as always, a very responsible and excellent resource. As I remarked earlier, the Government did improve the Bill in another place. But it seems that they have inadvertently created a problem whereby they cast the net of the offence wider than they originally intended in subsection (2) by the way in which they refer to the dependency of a child. My amendment would ensure that there is no risk of a person being prosecuted for a dependent child's lack of documents, when the two of them travelled separately and the dependency of the child on the adult arose only after the arrival in the United Kingdom. I hope we are able to make progress on that particular point during the course of the Bill. I beg to move.
My Lords, the noble Lord, Lord McNally, asks very relevant questions. One I can answer, the second can only be answered by the Government. The first is that it has been represented to me by the carriers that they do not anticipate that the Government would bear the whole cost of the provision of the data capture systems. I know the noble Lord, Lord McNally, is an expert in matters of data protection and data capture, so I am treading very warily in my answers here. But, as my noble friend Lord Bridgeman will go into more detail on April 20, our concern is that the Government have not yet worked out with the carriers the full system by which this will be implemented. For example, it has been put to me that for the airline procedures at Johannesburg—which comes top of the list of those countries from which people arrive undocumented—some form of digital camera could be provided at the final desk. There will be a camera at your check-in desk and a camera at the final desk before you actually enter the aircraft. That could then capture the documentation. Those cameras could be used by the airlines for other purposes, and anti-terrorism purposes. The difficulty is that, at the moment, neither the Government nor the carriers can hold up their hands and say exactly what the cost will be. As noble Lords who travel widely throughout the world will know, British Airways flights do not always exit through the same glass door, if I can put it as baldly as that. It may be that you are shuffled around particular parts of an airport. If the Government subsequently wish to extend the process to other airports, we may end up with a rather interesting situation, such as that put to me by Brittania Airways. There is one Greek island where the electricity is only turned on once a week so that the Britannia Airways aircraft can land. So we are talking of the unknown. I have given a long answer. I can promise the noble Lord, Lord McNally, that I have even more information, but that will test the Committee even further than that.
I think the answer to my noble friend Lord McNally's question may well emerge in the course of our later discussions, and the Minister may have some news for us concerning the discussions that have been going on between the airlines and Government, on the scheme which is to be introduced under Clause 11. I am not absolutely clear, even after listening carefully to what the noble Baroness, Lady Anelay, said, why she had to put down an amendment at this point, rather than deal with it as part of the discussions on Clause 11, unless it was that she just wanted to get her amendment down at the beginning of the day to pre-empt any discussions on other matters regarding Clause 2. But I may be maligning her. There may be a perfectly innocent explanation for the rather bizarre grouping which we confront in this first group of amendments.
As I say, when the former Minister, Ms Beverley Hughes, was questioned about the scheme in Clause 11 in another place, she said:
"There are currently joint discussions over the practical details of a trial to provide a more precise estimate of the costs involved and to test the process".—[Official Report, Commons, 2/2/04; col. 707W]
The discussions would presumably include the apportionment of the costs between the Government and the airlines. The Minister went on to say that the power would not be implemented unless the trial demonstrated that it is practical and cost-effective, and that it would be deployed only on selected routes as and when there was a problem with undocumented arrivals.
Perhaps the Minister could tell us when replying to the amendment what stage that pilot has reached; when it is going to be held; how it will be funded; and who will pick up the tab—to take my noble friend's point—when a general scheme is rolled out. I raise the matter at this stage because when deciding an application in the new criminal offence under Clause 2, we have to consider whether the power is a proportionate response and what other means of dealing with the problem may be readily available, of which this is one.
A draft EU directive is coming down the track, a previous version of which was considered by Sub-Committee F in its report entitled Fighting Illegal Immigration: Should carriers carry the burden? Under the latest version of the proposals, air carriers will be obliged to transmit passenger data electronically before the end of check-in. I understand that while the Government are broadly satisfied with the version as amended, they are undertaking a regulatory impact assessment.
I can see difficulties of timing between the introduction of the Home Office's "e-borders initiative", the RIA itself and the implementation of the directive. I should be grateful if the Minister could say something about how these developments are to be sequenced so that there can be proper discussion on each by Parliament.
I saw an article by Raphael Minder in the Financial Times at the end of last week. He said that the EU justice and home affairs Ministers had reached agreement on the provision of advance passenger information by airlines. So, presumably the Government signed up to those proposals last week without waiting for the RIA. Perhaps the Government could confirm that, as it seems rather pointless to undertake the assessment if it is already too late for it to have any influence on the wording of the directive.
Our Amendments Nos. 3 and 6, which are grouped with Amendment No. A1, would leave out the requirement that the immigration document referred to in Clause 2 should be "in force". I have no idea what the intellectual process was by which those obligations on carriers, which we are discussing under Amendment No. A1, were grouped with a new offence which may be committed by an asylum seeker, though in one sense it might be claimed that a link exists between them. If there are other means of reducing the number of passengers who arrive with false documents or without any documents, the necessity for creating a new criminal offence is by that amount correspondingly reduced.
Regarding our amendments, the refugee convention does not require an asylum seeker to be in possession of an immigration document, let alone one that is in force. It follows that we also agree with the noble Baroness, Lady Anelay, in her Amendments Nos. 2 and 5 in the group. If the passenger is in possession of an expired document, it is adequate for the purpose of identifying the asylum seeker; and, as far as I am aware, there has been no problem here that justifies the use of criminal sanctions.
Indeed, we are not satisfied that additional criminal sanctions are the best way of tackling undocumented arrivals. We support the Government in the other measures they have taken to solve the problem and to make things as hard as they can for the illegal facilitators. We are not going to achieve that by putting the victims behind bars.
I was unavoidably prevented from taking part in Second Reading. A great deal of water has gone under the bridge since then. We are all looking at the situation with new eyes, because the claims the noble and learned Lord the Lord Chancellor made at Second Reading have turned out to be due not only to measures that we knew about but to other measures carried out behind the scenes.
It is absolutely critical that the clause should work well. It is the clue to trying to get at the weaknesses of the system that exist at the moment. A grip has to be got on what is in fact a runaway situation. My noble friend's suggestion seems to me to be very sound—that not only should we expect carriers to carry responsibility, but that they should play a bigger part in the system. As I understand it, my noble friend's amendments suggest that the asylum seeker or would-be immigrant would simply have to have identification to show that he or she was the person on the immigration papers. Having used the papers to get out of his or her home country, the passenger would then hand them to the carrier, who would be responsible for producing those papers on arrival.
That would be an expensive business for the carrier. The noble Lord, Lord McNally, quite rightly asked whether my noble friend's intention was that the Government should pay for the whole thing. It seems a very sound idea that it should be done in that way. If it is to be a criminal offence for the carrier to fail to do this, surely it is only right that it should be made possible to do it properly through expenses being paid.
There is an interesting aspect to this whole thing, as perceived in Scotland. The First Minister, Mr McConnell, is very keen that the population of Scotland should increase and should stop decreasing. He is right in that. Too many people are leaving Scotland and not enough people are being born. We need immigrants. But he is using the fact that the Government are trying to limit illegal immigration and wrongful asylum as an action against Scotland. He is very much confusing the situation. That seems to me extremely unwise, because Scotland needs to know who comes into Scotland, just as much as any one else.
The recent so-called "scams", some of which the Home Secretary has evidently stopped at the moment, are just as damaging to Scotland as to anywhere else. So, I hope the Minister will communicate with Mr McConnell from time to time, or will encourage the Home Secretary to do so, to make it plain that all the Government are trying to do—immigration is a reserved not a devolved matter—is to make sure that Scotland knows who intends to immigrate or claim asylum; otherwise, Scotland will be in just as much danger of acquiring new inhabitants as will England.
That is very dangerous. I hope the Minister will take note of that in passing. I think it is an important issue, but I do support my noble friend's amendment. It seems rather strange that the Liberal Democrats are suggesting that it would not matter at all if the papers someone brought and put before the Government were out of date. That does not seem to be very sensible. I would hope that under my noble friend's amendment we should be quite sure that they were valid papers. But again we need to know who we are getting.
Perhaps I might enlarge on that. It does matter; but Clause 2 as presently drafted is not in the real world. An applicant from Sri Lanka—the Bishop of Ripon used to be such a tremendous help to the House on that issue—was once refused entry on the grounds that he came on his own passport with papers that were in order. The Home Office's argument in that case was that if the applicant's papers were in order it proved that he could not have been in real danger and therefore could not have a well founded fear of persecution.
That argument was an exaggeration. However, it is a little nearer the real world than the world of Clause 2, which is a little like the action of the sort of minor public school that will round up people who have escaped from a fire in a dormitory to have them all charged with being improperly dressed. There is absolutely no sense here of the genuine emergency that may result.
The name of Slobodan Milosevic should not be so quickly forgotten. He turned the destruction of Kosovar documents into a deliberate instrument of policy. He went all the way round the country finding these documents and burning them. How is a person to whom that has happened to come in to a country, except on forged documents? When you find someone who is capable of forging documents sufficient to deceive at least a first glance from the British authorities, you do not then give him away, because you do not want to kill the goose that lays the golden eggs on which other members of your family might escape. After all, most people have other friends who are suffering the same danger to whom they would wish the gift of life, if it were in their power to give it.
It is well known that journalists who come into possession of unauthorised faxes usually cut off the heading of the fax before they show it to other people when they print it. The process is similar. I speak for myself here, although I do not think that there is necessarily major dissent. The whole process of refugee escape from persecution cannot work unless it is accepted by Clause 31(1) of the Refugee Convention that it may necessarily, in many cases, involve the use of forged papers.
I am still not in any way reconciled to the use of the airlines as an instrument of government, in a field in which they are not competent, cannot be competent, and should not be made to pay to become competent. Airlines have enough to do keeping planes in the air and out of each other's way, especially now that we have so many more of them. It is not their business to act as custodians of our citizenship. I have a good deal more to say about this, but I will keep it until we get to Amendments Nos. 7 and 10, in the names of my noble friends Lord McNally and Lord Avebury.
At one time, prior to 1997, I spoke for the then opposition on these matters. I am troubled by certain parts of Clause 2. Precisely what consultations have been carried out by the Government with the carriers, or the organisations representing the carriers, concerning the implementation of this clause? I agree that carriers should have some responsibility, but they are not immigration officers, and they do not have the training of immigration officers. When I was in opposition, I argued this case against the government of the day.
We must be careful how we proceed. As part of that, intense deliberations on the part of the Government with the carriers are absolutely essential. We must carry them with us. At the moment, I am not sure that we have done that. Perhaps the Government will have second thoughts about this—I hope so. Whether it is by land, sea or air, the organisations representing the carriers should have a duty to respond to the Government's concerns but, at the same time, the Government must also listen to the carriers. I am not entirely sure that they have done so.
I thank the noble Baroness, Lady Anelay, for indicating that the amendments tabled in her name are probing amendments. I understand the concerns that she has highlighted, together with the concerns raised by the noble Lord, Lord Avebury, for the Liberal Democrat Benches. I say to my noble friend Lord Clinton-Davis that we are aware of the need to consult and take people with us, but that responsibility, to play a part in making sure that our procedures are as robust as possible, is shared with many others. The Government cannot take the total responsibility for this on our own. We are committed to developing a range of effective ways to deter people from deliberately destroying or disposing of their travel documents and to lessen the impact of such behaviour. That is why, after careful consideration, we introduced Clause 11. The noble Baroness does not seem in any way to impinge on that Clause 11, and it is important that we have an opportunity to debate these matters.
We are not persuaded that the proposals set out in the amendments proposed by the noble Baroness offer any clear advantages over and above Clause 11. It would not be as effective in addressing the problem of deliberate document destruction and disposal, while placing an unnecessary and excessive burden on carriers, which Clause 11 would not do. It is also a question of how practical this would be. We feel that it would be impractical to take the actual travel document from a passenger for the duration of the flight. To meet the objective of this clause, a document could be reunited with a passenger only at immigration control. This may lead to considerable chaos and confusion at a busy immigration control, where passengers from several different flights present themselves all together.
The alternative permitted by this proposal is for the entire document to be copied. We consider this is disproportionate to the purpose of establishing identity. Only part of the document—the bio data page—would be necessary to achieve that. Copying the entire document is therefore an unnecessarily onerous obligation to place on a carrier, and one that would have significant implications of time and cost. Clause 11 would permit an immigration officer to request only part of a travel document, for example, the bio data page—
Before my noble friend proceeds, what consultation does she have in mind with the carriers, whether by land, sea or air, or the organisations representing them? This is germane to everything about this clause. I am not against the idea at all, but we should carry the carriers with us. So far, she has not said a word about that.
I was just about to turn to that issue. I said at the beginning of my remarks that it was important for there to be consultation, and I accepted the thrust of the comment made by my noble friend, Lord Clinton-Davis. Both the noble Baroness, Lady Anelay, and my noble friend raised this issue. I am aware of the concerns of carriers over the short consultation period before we introduce Clause 11, but I hope that noble Lords will agree that we needed to act quickly to combat the problems posed by undocumented arrivals. However, dialogue with carriers has been, and will remain, ongoing.
We did not include our proposal to require carriers to take copies of travel documents on introduction of the Bill exactly because we wanted to continue this dialogue. We are working together with the airlines on the trial scheme, and we are seeking to develop a technical solution that meets their concerns. At the conclusion of the trial, we will publish a full regulatory impact assessment that evaluates all the options. We will not seek to utilise Clause 11 unless the RIA demonstrates that it is reasonable to do this and any subsequent voluntary scheme proves ineffective.
We are looking at portable technical solutions. We anticipate the start of the trial in May. The cost of the equipment or trial will be met by the Home Office as the technology is untried at the moment. That is right and proper.
The noble Lord, Lord Avebury, asked about the EU API directive. That has been agreed in principle, but it does not make information collection mandatory or define the process for using the data. The regulatory impact assessment looks at the process and will, we hope, demonstrate how and when we can use this information. The two are not in any way inconsistent. I hope that that deals with the question of sequencing.
The result of this trial will inform the extent to which we ask carriers to copy documents. It is not a foregone conclusion that we will target 10 airports or that we would need necessarily to target all flights from an airport.
Clause 11 allows requests to be made relating to: a particular ship, aircraft or carrier; particular ships or aircraft of a carrier; or all a carrier's ships or aircraft. These different categories give us more flexibility. This will allow a more targeted, precise approach to the problem than simply listing a specific number of airports. That approach would be inflexible if such people switched airports, a point on which the noble Baroness, Lady Anelay, commented. We do not want them simply to move elsewhere.
We are not persuaded that there is any parallel between fishing vessels—where Defra recently agreed to fund the installation of tracking equipment—and the provision of a copy of a travel document. An immigration officer can already request a carrier to provide "passenger information", as that term is defined in paragraph 27(b) of Schedule 2 to the Immigration Act 1971 and the Immigration (Passenger Information) Order 2000. Where such a request is made the information must be provided at the carrier's expense.
I am not persuaded that there is a justification for reimbursement of costs in providing copies of documents that contain information an immigration officer can already request a carrier to provide under paragraph 27(b) of Schedule 2 to the Immigration Act 1971.
Amendments Nos. 2 and 5 would mean that if a person could produce a document other than a passport—or a document designed for the same purpose—which is in force and satisfactorily establishes identity and nationality or citizenship, then no offence would be committed. We understand that Amendment No. 2 has been tabled to protect those people who come to the UK, despite having been unable to obtain a travel document, and arrive undocumented but fully co-operate with immigration control. We appreciate the sentiment behind this amendment, but it is unnecessary. I should like to reassure the noble Earl, Lord Russell, on this point. Clause 2 already has safeguards for such individuals, as it contains a defence of reasonable excuse, as foreshadowed in the remarks made by the noble Baroness. Assurances were made several times in another place, and I repeat them here in accordance with the noble Baroness's invitation. Never having had a document would, we believe, normally be a reasonable excuse for not having one on arrival in the UK.
This offence is not intended for, and will not be used against, those who do not have passports when they start their journeys. But it must be effective against those who do, but who destroy or dispose of them on the way.
These amendments would mean that a person would not commit an offence even where there was clear evidence that he or she had deliberately destroyed his or her passport on the journey, if he or she produced alternative means of identification. That is not the noble Baroness's intention, but that would be the effect.
My Lords, how will an immigration officer distinguish between somebody who claims never to have had a document and is therefore unable to produce one on application for asylum, and someone who has destroyed a document en route—that is, the type of person that the noble Baroness is trying to catch?
My Lords, the noble Lord knows that it will depend on the facts of the case.
At some airports it is virtually impossible to get through the immigration controls without having some sort of travel document. At others, people can smuggle their way in to the country through one means or another. They may not appear at any port and not go through the authorised procedures. The decision as to which is right will depend on each individual case.
These provisions ally closely to the later provisions. Having taken the opportunity to check documentation at source as people come through, there will be greater opportunity to verify whether someone did or did not have a document when they started their journey. If they do not have their document by the time they get off the aeroplane, that is a good indication as to what may have happened to that document, and an explanation will be called for.
My Lords, I would genuinely like to seek information. With modern methods of photocopying and email, is it not possible for a machine to take photographs of people as they get on an aeroplane, and then immediately transmit those through a broadband system to the other end so everybody knows where they are?
There must be technical methods of doing this that do not have the clogging effect, on which I am in agreement with the noble Baroness.
My Lords, the whole point of the work that we are doing is to try to find that technological solution to this very problem. There are issues in relation to how documents can be scanned. I recently mentioned that we hope that there will be a technological solution to this problem, and we are anxious to craft this provision in a way that would be suitable and acceptable to the industry, that would have utility and that would work well. That is why this issue is going to be given a trial, why we are going to look at the costs of the necessary equipment, and why the technology will initially be paid for by the Home Office. This is new technology and we are going to discharge that part of our duty.
The noble Earl is right. As technology becomes more easily available—faster, more efficient, more effective and less burdensome in operation—our ability to do this will be enhanced.
These amendments would mean that a person would not commit an offence in the way described. I have already said that I do not believe that that was the noble Baroness's intention. The destruction of passports is, in many cases, clearly motivated by a desire to disrupt proper immigration procedures, and we must be able to take action against it.
As well as preventing prosecutions in these circumstances, these amendments would make operating the offence far more time-consuming. Investigators would have to determine whether the documents were genuine, issued by a trusted authority and the property of the holder. If a prosecution did proceed, prosecutors would have to prove that the documentation relied on was not in force and/or did not satisfactorily establish identity and so on.
Ultimately, what would be viewed as satisfactory documentation by the courts might be insufficient identification for the authorities of the country to accept the return of that individual, should we want to return them at the end of the process. If the original purpose of destroying a passport was to thwart removal and evade immigration control, then that aim might well be achieved and without consequence if these amendments were allowed.
Finally, people need passports—not student cards, not driving licences, not residents' permits—in order to embark for the UK. If they do not have them at embarkation—but nevertheless manage to travel to the UK— then they will, in the most part, have a reasonable excuse. However, if they have a passport at embarkation, they should have a passport when they arrive in the United Kingdom. Producing another document should not be an excuse for not having that passport.
Amendments Nos. 3 and 6 would mean that if a person could produce an immigration document which was not in force but which satisfactorily established his or her identity and nationality or citizenship, no offence would have been committed. In order to embark for the United Kingdom, a person will be required to present an immigration document which is in force. They should not be able to begin a journey without a valid passport. In most cases, when a person arrives with only a very old or perhaps invalidated passport, that will not have been the document they used to get on the plane. The implication, therefore, is that they used other documentation, such as their current passport which they might not, for one reason or another, want—
What if the passenger has been smuggled on to the plane by a corrupt official? He has paid a bribe to the official who may be the commander of the airport, for example, and who has got him on to the plane with an out-of-date or invalid document. What happens when the person arrives and presents it, clearly proving his identity, and has an explanation for why he produced that document rather than something valid?
I understand what the noble Lord says. Let us look at that particular example: did the person go through the proper channels to get on to the aeroplane? Was he part of the passenger list? When did he produce that document? All those issues would have to be answered before I could give noble Lords a proper answer in relation to each and every scenario, and each and every scenario changes. One scenario may be that the person had no proper documents; he was not properly listed on the flight documentation; and he arrived at the immigration desk with no document of any nature and said, "I am an asylum seeker". The fact that he does not have a document in those circumstances may assist him and not disprove what he says. All such cases turn on the particular facts, and we could debate a series of them.
In many cases, we have to accept that documents are destroyed to hinder consideration of claims and, ultimately, thwart removal. While a document may establish identity and nationality, if it is not in force it may not be sufficient for a country to allow an individual to be repatriated, and further resources may be required to obtain a valid passport, and that could delay removal.
We recognise that there are concerns about those who inadvertently travel to the United Kingdom on a slightly out-of-date passport, which is spotted only on their arrival here. Let me assure the Committee that in cases of a genuine oversight, we will not prosecute someone under this offence. A number of us rush off to places far afield with a passport that is in date and come back a day or two later when that may not be the case. So let me assure noble Lords that if that were to happen, it would not fall foul of the provisions.
Where someone can establish a reasonable excuse for not having a valid passport, no offence has been committed. For example, the person who arrives in the United Kingdom with a recently expired passport and who was able to board the plane with it would have a reasonable excuse for not having a valid passport on arrival.
I shall begin my comments on Amendment No. 4 with two general comments about Clause 2, which are relevant to the issues raised by the amendment. First, the offence is designed to catch those who have a passport or similar document when beginning their journey to the United Kingdom but do not have it when presenting themselves to IND authorities and have no reasonable excuse for not having it.
Secondly, we expect to use the offence most commonly for port cases, simply because it is in those cases that we are more likely to have evidence to show that a passport must have been destroyed or disposed of. However, we need to have the scope to prosecute those who dispose of passports without reasonable excuse and who make in-country claims.
The amendment is concerned with adults with dependent children with whom they claim to be living—in effect, those cases where the adult is already in the United Kingdom and is seeking leave to remain here. It would provide that an offence was committed in such cases only where an adult who failed to provide a passport for the dependent child was not only living with the child but had travelled to the United Kingdom with him or her.
Again, I understand the concern that we should not be prosecuting an adult where they cannot be held responsible for being unable to produce a passport on behalf of a child for whom they are now responsible. So where a child comes to live with an adult here and does not have a passport at that stage, it is very unlikely that we would prosecute the adult for failure to produce it when they apply for leave. Clause 2 contains a reasonable excuse defence and it would normally be a reasonable excuse to say that from the time the adult had been responsible for the child, there had been no passport. I can, I hope, therefore assure the noble Baroness that the concern which the amendment understandably addresses will not materialise. The amendment, I respectfully suggest, is therefore unnecessary.
There is also a reason why we would not want to accept the amendment. There will be some cases—albeit not necessarily that many—where a child travels separately to the United Kingdom and joins an adult here, where we can be satisfied that the child must have had a passport at that stage and where the adult subsequently applies for leave and is unable to furnish a passport for that child. In such cases, it is right that the adult should be expected to produce the child's passport and, if they do not, it is right that they should be required to explain why they are unable to do so. If they have no reasonable explanation, it is, again, right that we have the possibility to prosecute them.
On the basis of what I have said, I invite the noble Baroness to withdraw the amendment.
Before my noble friend sits down, let me say that her very welcome remarks put a great burden on immigration officers. I am by no means satisfied that that burden can be assumed safely. What training is to be available to immigration officers if the huge burdens on them are to be satisfactorily dealt with?
Significant training is already available. We will look at that in part, when we turn to Amendments Nos. 15 and 16 in the name of the noble Baroness, Lady Anelay, on the need for the DPP to give training as well as advice. A small cadre of immigration officers has specific specialist training. Those officers will be asked to discharge the ability to arrest. They are not only specially trained but are then designated to use the arrest powers. We absolutely understand that the immigration officers who will have to discharge these new skills will have to be appropriately trained to enable them to do so.
I did not agree to the grouping of Amendment No. 4 with this group—that happened late on Friday evening. I had a list of the groupings late on Friday evening, and Amendment No. 4 was grouped separately. Anyway, I am simply giving the Committee notification now that I propose to deal with Amendment No. 4 separately.
I think it is appropriate that I intervene at this stage. I will, in my winding-up speech, address the remarks made in his opening speech by the noble Lord, Lord Avebury, with regard to the groupings. Let me make it clear that my name appears first on Amendment No. 4, and it always has. I tabled it as soon as I had met the Refugee Children's Consortium, at its request. I was most delighted when the Liberal Democrats added their names to it because I know that they are always very keen to work on these subjects with me when it is possible to do so. Therefore, it was up to me to agree the grouping as soon as it was available.
In my very first e-mail, which was not late on Friday night, I made it clear that the amendment was to be grouped with Amendment No. A1. Unfortunately, due to nothing more than human error, the Public Bill Office published my Amendment No. A1 after, instead of before, Clause 2 in the first Marshalled List. It apologised for that error and put it right. Therefore, any allegation about groupings would be completely incorrect, because the grouping of amendments is a matter between all noble Lords and the Bill team. The Bill team grouped the amendments as early as it possibly could, which is why I addressed my remarks to Amendment No. 4. I will be most disappointed if the noble Lord, Lord Avebury, decides not to speak on Amendment No. 4 now, but to take it later. Of course, he has every right to do that, because all noble Lords may speak to any amendment at any stage.
I certainly would not like the noble Baroness to be disappointed. Therefore, I shall speak to Amendment No. 4 now. However, I must preface my remarks by repeating that the grouping of amendments is a real dog's dinner. Initially, the grouping was perfectly normal, with our Amendments Nos. 1, 3 and 6 in the first group, but then, all of a sudden, Amendment No. 13 was placed in front of ours without having anything to do with Clause 2. It was properly to be taken in connection with Clause 11. We now find that somebody has made a change in the groupings again, so that Amendment No. 4, which deals with an entirely discrete point, has been lumped with the amendments that we are now considering. However, as I understood it, Amendment No. 4 dealt with a completely separate point; namely, where a child becomes dependent on a person after the child had arrived in the UK, such a person is at no risk of being charged with an offence under the clause. As I understand the clause as it has been drafted, a person who has been appointed by the child's parents or guardian to look after him while he is in the UK would be so liable to prosecution. Where a country of origin is in a state of incipient genocide, and a child is put by his parents on a UK-bound plane without a document, it could well be that an adult sibling or an uncle, or even a more distant relation, has been nominated to look after the child in the UK. I acknowledge that unaccompanied children can be trafficked into the UK and that the person who is supposedly appointed to look after that child may be in league with the traffickers—we have seen examples of that—but those cases would attract far more serious criminal penalties than those described by the Bill. I agree that stringent checks should be made on any adult to whose care an unaccompanied child asylum seeker is committed, but where the authorities are satisfied that the child's best interests are served by allowing him to reside with a relative who is living in the UK, that person should not be exposed to the potential risk of being prosecuted just because the child entered without documents.
Human error is always with us. With that in mind, I shall take the Minister back to a question that is a little more central: what constitutes "a reasonable excuse" for destroying a document? First and foremost, where does the burden of proof rest in arguing that there is a reasonable excuse? Secondly, I would welcome slightly more clarification of what type of excuse will be regarded as reasonable. Does the Home Office understand that refugees tend to come from a world in which it is simply dangerous to be oneself, without any further action?
I was interested to hear the case, advanced by my noble friend Lord Avebury, of the person who manages to obtain an exit document by corruption, because I happen to have come across exactly such a case among my pupils. She was Cambodian by birth and is now a distinguished member of the US Department of Justice. Her mother succeeded in bribing Pol Pot's guards with a large collection of her jewellery in order to secure the papers that allowed her out of the country and safely into the United States. It would obviously have been an ungenerous return for those people to leave them to the tender mercies of Pol Pot for having done what they had done, so the temptation to destroy such a document would be strong. She was only seven at the time. I did not cross-examine her on those matters; I do not believe that she knew all the answers. However, let us assume for a moment that her mother destroyed such a document. Would the Minister regard that as a destruction done with reasonable excuse?
An impossible burden is being placed on my noble friend. She cannot list all the possibilities of what is reasonable and what is not. That is why I said that the immigration officers should be properly trained. That is an important part of the way that the clause is administered. However, to place on the Minister the burden of showing that all the devices that may be used have to be reasonable is to ask the impossible. It is vital that the immigration officers should be sympathetic when they approach their task. However, it is for them to decide how the clause should be administered. If they behave unreasonably, there should be recourse to the courts, but to place on my noble friend the burden of signifying what is reasonable and what is not is to ask the impossible.
May I respectfully agree with my noble friend? The whole point of "a reasonable excuse" is to allow us latitude in which to consider the various excuses that may be given. Noble Lords will appreciate that those will be different in virtually every circumstance that we encounter. The Bill sets out those excuses that we do not consider to be reasonable, but I have also tried to make clear to my noble friend and to the noble Baroness, Lady Anelay, what would constitute a reasonable excuse; for example, those who have never had any documents and may, as the noble Earl, Lord Russell, indicated, have been deprived of an opportunity of having such documents.
We shall speak about "reasonable excuse" when considering the amendments of the noble Lords, Lord McNally and Lord Avebury, which follow the amendment before us. We shall discuss the issue at greater length then.
Will the Minister confirm to the House that the Government have not ruled out the kind of arrangements that my noble friend has suggested in her amendment? Without going into the possibilities of photography, will she agree that the clogging effect of having to return to their owners documents that the carrier has brought to this country could be worthwhile? It might not be any greater than the clogging effect of obtaining the photographs in the first place. That idea should not be ruled out. Will the Minister reassure us of that? I realise that she has provided sensitive answers to many questions—and I was greatly relieved to hear them—but will she explain the mechanical issue of how people should be prevented from destroying their papers?
Of course I hear what the noble Baroness, Lady Carnegy, says on this issue. I tried to be very careful in responding to the suggestions made by the noble Baroness, Lady Anelay, and to appreciate why she makes her suggestions. She is seeking a clear exposition of those circumstances which may preclude someone relying on a reasonable excuse and she is seeking greater clarity. I understand that, but in responding as I did, I tried to explain in relation to each amendment why we thought that the way in which those amendments were put did not inure to the advantage of the system.
We have not ruled things out in terms of development in the future, but we can say that, as of today, the suggestions made in those amendments do not appear to add greater value than that which we already have, both in this section and in relation to Clause 11. I hope the noble Baroness will understand why I say that.
I also accepted that the noble Baroness was quite properly probing to make sure that we had clearly set out the parameters within which we sought to work, and I hope I will have satisfied her on that, too.
It might be helpful if I address the technical issues, because I certainly do not like to upset the noble Lord, Lord Avebury, with the way in which matters are grouped.
He was concerned again about Amendment No. 13. It was unlucky 13—it should never have been there, as I sought to explain earlier on. The Public Bill Office quite simply tabled the amendment in the wrong position in the first place, and put it after Clause 2—which made it Amendment No. 13. They apologised to me, but it was only brought to my attention by my noble friend, Lord Kingsland, first thing on Friday morning. He happened to be in the House; I was not. I then, therefore, would not have seen the Marshalled List until it appeared on the website. I checked on Wednesday with the Public Bill Office that instead of after Clause 2 it appeared before Clause 2, because it seemed—as night follows day, or as day follows night—that you talk about how people get here before the fact that they have got here. I give way to the noble Lord—it seems we are taking up the time of the House, a heck of a long time on rather a minor matter.
After consultation with the carriers, I put the amendment where it is because I wanted to make clear, as I said in my opening remarks, that I in no way at all wish to draw any attention to any imperfection in Clause 11, because I am not going to amend it. I give that undertaking now and throughout the Bill. We are talking about a probing amendment where the carriers themselves are very keen to signal that they do not wish to undermine what the Government are trying to do.
Of course, like other noble Lords, when I am briefed by outside organisations I do not always do what they say. I do not always do what they do not say, but I do take their advice into account. They certainly want to make it clear that they are very much on the side of the Government on this but concerned about the process, the actual administration.
So that is how the grouping arose. The noble Lord, Lord Avebury, also correctly asked why, with the Unstarred Question coming up, I did not leave this until the UQ. That is a good question. The simple answer is that I tabled the amendment long before the UQ date was fixed. I checked back with the carriers after that to see if they still wanted to go ahead. They did because, as they pointed out, an Unstarred Question will be one hour. My noble friend, when he comes to respond to put our points, may perhaps only get three minutes. We have had more than that. It was the right opportunity within the context of this Bill to press ahead with some of the questions and I am very grateful indeed to the Minister for the care with which she has sought to address them. I will certainly look carefully at her answers. As she said herself, it is a moving issue because the Government are continuing to have discussions with the carriers and technology is developing.
The noble Lord, Lord Clinton-Davies, raised the interesting point about training from the point of view of the IND. The Minister pointed to later parts of the Bill, when we talk about training or advice from the DPP on the legal issues. Certainly I will look further at the point made by the noble Lord because his remarks have made me think about training in operating the technical equipment because one of the issues of which I am aware is that even if the IND has a digital photo, somebody is still going to have to scroll through them to identify undocumented passengers—an exercise, we are told, which will be hugely time-consuming and open to significant human error. That is before the inbound passengers have cleared immigration in the UK. Already the 150 resolution which is currently in our passports is not adequate for this purpose, which is why we are moving to a resolution of 300 by the middle of 2005. So I think the noble Lord, Lord Clinton-Davies, in his question opened up a whole new can of worms that I will need to think about between now and Report stage.
I will refer back to the carriers' organisations just to see if there are any further issues they wish to address, and I will myself carefully consider what the noble Baroness said. She referred at one point to the fact that one needs to know that the person has the same passport at beginning and end. One of the issues is that people can get on to an aircraft with a different document from that which they presented at the check-in desk, and while they are on the aircraft they can swap it again for another piece of documentation. So one needs to be able to track what documents they have throughout the system.
With regard to Amendment Nos. 2 and 5 concerning the defence of reasonable excuse, I am grateful to the noble Baroness for the assurance that she gave in response to my amendments. I am very much aware that that will continue to be a matter of great debate in respect of other amendments. However, with regard to Amendment No. 4, which derived from the concerns of the Refugee Children's Consortium on the matter of dependent children travelling with adults, she gave a very full answer. I will not only consider this myself, but refer back to the RCC to see whether it feels that that has fully addressed its concerns. However, at this stage, I beg leave to withdraw the amendment.
My Lords, provided there have been no more eleventh hour changes in groupings, I shall move Amendment No. 1. In moving the amendment I shall also speak to Amendments Nos. 7 and 10. Before coming to the detail of these amendments, and the others in Clause 2, I shall make some further, general observations about the clause, about the large numbers of people who arrive in the UK without proper documentation and about whether the best means of dealing with the matter is by prosecuting the passengers.
We acknowledge that there are a large number of people arriving without documents at UK ports of entry, and that it presents immigration authorities with a serious and growing problem. We were told in Sub-Committee F by the Immigration Service that there were 4,260 in 2001, 10,694 in 2002 and 8,032 in the first three quarters of 2003. Those figures concealed a very remarkable switch of undocumented passengers from Waterloo to other ports of entry following the introduction of juxtaposed controls on Eurostar. That resulted in a 90 per cent reduction in the numbers arriving at Waterloo. It looks as though similar controls now operating at other channel ports—which were debated by your Lordships in June 2003—will have the same effect as on new arrivals at Dover.
However, the fully juxtaposed control scheme at French Channel ports was not expected to be in full operation until February this year, according to the former Minister when she gave evidence to the Home Affairs Select Committee last October. There were at that time further such controls envisaged at Ostend, Zeebrugge, and Brussels Gare du Midi. It would be useful to know from the Minister what progress had been made with those initiatives.
The effect could be that passengers who would have taken rail or sea routes are now arriving mainly by air, and particularly at the four Heathrow terminals. If that is so, we cannot say that the juxtaposed controls have been entirely successful. They may not have decreased the number of undocumented passengers who are actually an increasing proportion of asylum seekers generally; they may simply have diverted the flow to ports of entry where the controls do not apply. We shall not know until we see the figures for undocumented arrivals for the second quarter of 2004.
As Mr Bill Jeffrey said, at the hearing that I have just mentioned, the principle underlying juxtaposed controls—that it is better to stop people from embarking on a journey to this country when they do not have the necessary documentation—applies to air travel just as much as to sea travel. IND staff were operating at airports throughout the world to ensure that carriers fully understood the need to verify that passengers were in the possession of correct documentation.
There are two further initiatives to deal with the problems, apart from those that were discussed under the previous amendment. One is Eurodac, a computerised system of fingerprinting asylum seekers, to which I shall refer in more detail under a later amendment. The second is the use of biometric and data controls, first piloted in Colombo and now extended to east African countries except for Kenya, which were discussed by noble Lords in the debate on Immigration (Provision of Physical Data) (Amendment) Regulations 2004 on
It is in the context of those initiatives that we should consider whether it is fair and proportionate to create a new offence of an asylum seeker not having an immigration document that is in force, or not having a document that satisfactorily identifies him, his nationality or his citizenship. That catches not only those who destroy or dispose of the document but also people who produce a document belonging to someone else, a document obtained by deception or a forged document.
In answer to Question 825 from the Chairman of the Select Committee in another place on
"people who deliberately destroy their documents".
That is what Amendment No. 1 sets out to achieve.
In passing, I refer to the particular case of Zimbabwe, of which the Minister is well aware. Obviously, people cannot get documents from the Mugabe regime if they want to leave the country, so they flock to the neighbouring states, especially to South Africa, and obtain documentation in South Africa, which may be genuine but apply to someone else, or may be forged or provided by some corrupt means through the normal passport system. In any case, very large numbers are arriving from those states with documentation that may appear to be correct but which does not apply to them. Will the Minister assure me that special treatment will be given to people who say that they are Zimbabweans and that they will not be fast-tracked until it is definitely established one way or the other what their nationality is? There are means of doing that. I have asked that question in writing but did not get a very satisfactory answer.
The Select Committee said that it understood the intention behind the new measure and that it was important to strike at the illegal facilitators and to discourage the deliberate loss or destruction of valid documentation. The IND has been successful in linking 84 per cent of arrivals at Heathrow back to the flight of arrival, and it has introduced better surveillance methods in restricted zones of the airport so as to target the facilitators. Presumably, criminals may employ agents to retrieve the documents from their clients at some location before the immigration check so that they can be used again. Better security on the air side should not only reduce the undocumented arrivals but ensure that the facilitators are caught and prosecuted. What Clause 2 actually says is that the passenger,
"commits an offence if . . . he does not have . . . an immigration document which . . . is in force, and . . . satisfactorily establishes his identity and nationality or citizenship".
It says that he must have a "reasonable excuse" for not being in possession of such a document, but there is no definition of a "reasonable excuse". We discussed that matter under the previous amendment.
It is not clear under what circumstances the presentation of a false document of one kind or another will immunise the person against being charged with a criminal offence. As ILPA has pointed out, initially it is for an immigration officer to decide whether the excuse given for presenting a false document is reasonable. In most cases, the passenger will have obtained a document through an agent, but there may be very good reasons why he needs to keep quiet about that. My noble friend Lord Russell mentioned a particular case in the debate on the previous amendment. The agent may be able to retaliate against family members in the country of origin if his activities are exposed, or he may be unwilling to help other family members still at risk in that country.
The same considerations apply when the person has returned the document to an agent, or destroyed it. He is very unlikely to know that he is risking a two-year prison sentence and, if the circumstances of the case are such that it would be unreasonable to expect non-compliance with the facilitator's instructions, affording him a theoretical excuse under subsection (7)(b)(iii), the nature of those circumstances may make it even more hazardous for him to reveal them. We shall have the opportunity to discuss that matter in more detail when we come to Amendment No. 8.
In those circumstances, shifting the burden of proof on to the defendant in subsection (1) is unconscionable. The least that should be done is to mitigate the effect of the clause as a whole in order to rectify that anomaly, replacing,
"does not have with him", with,
"has, without reasonable excuse, destroyed or disposed of".
That would mean that it would not be up to the asylum seeker to prove that he had a reasonable excuse for its absence.
Under our Amendment No. 1, the prosecution would have to prove, first, that the passenger destroyed or disposed of the document and, secondly, that he did so without reasonable excuse. Proving those matters beyond reasonable doubt will make it more difficult to secure convictions, but that is as it should be, when the offence carries a maximum of a two-year prison sentence, which can exclude the person from consideration under the convention. That is the purpose of Amendment No. 1.
Amendment No. 7 probes the Government's intention with regard to children under the clause. First, we need to be clear whether subsection (1) can apply to an unaccompanied child. The Refugee Children's Consortium is under the impression that an unaccompanied child, without documentation, could be prosecuted. The subsection does not specifically say that it is confined to adults. Under subsection (2), which relates to a dependent child travelling or living with an adult, the legislation does not say that the child has to be dependent on that particular adult, but the wording is ambiguous.
The child might be travelling with someone who has been put in charge of him purely for the flight. One can imagine a situation such as I have mentioned already, in which genocide is developing in the country of origin—in Rwanda, for example. The parents might have brought their child to an airport and placed her in the care of a stranger just to get her out of the country. Considering how the international community ignored the Rwanda genocide at the time, the adult performing that humanitarian service should not have risked prosecution.
Amendment No. 10 is intended to shift the burden of proof for prosecutions under Clause 2 back to the prosecution. There was a good deal of discussion in the Commons Standing Committee of the unfairness of the standard and burden of proof for the new Clause 2 offence. In her letter to the Committee, on
In the same letter the then Minister refers to the comparison made in Committee with defences such as self-defence in which, as she says, the burden on the defence is merely evidential. But Blackstone's Criminal Practice explains—in the 2002 edition cited by the Minister and in the current 2004 edition—that unlike the legal burden, that is not in fact a burden of proof at all, but the requirement that the defence adduce sufficient evidence to satisfy the judge that the defence raised should be properly laid before a jury. It is settled law that in such cases the legal burden of disproving the defence rests on the prosecution to the standard of beyond reasonable doubt. The authority cited for that by Blackstone is Lobell.
The Minister went on to assert the obvious, that the burden in Clause 2 rests with the defendant, but without offering any explanation why that should be so. We believe that that is disproportionate; that it is inconsistent with the law in other criminal cases; and that it is inconsistent with the convention itself. I beg to move.
I am rather unhappy about the possibility of engaging in semantics. Although I have a great deal of sympathy with the argument that the burden of proof should rest on the prosecution, I am very aware of the possibility that it is a very easy burden of proof. After all, the prosecution simply need to prove that the defendant behaved irresponsibly. In other words, we are engaging in an exercise that is not real. In my view it is important that the defendant knows, or should know, what went on and no one can argue against that. When a defendant has wantonly destroyed documents, the burden of showing that he or she behaved reasonably in those circumstances should rest with the defendant.
I am troubled by the whole argument. Perhaps my noble friend will be able to describe more emphatically what has gone on in the mind of the Government in relation to this issue. The noble Lord who introduced the issue has not addressed the problem. It is a very real problem. Therefore, I invite my noble friend to discuss the issue in more depth than we have done so far.
I support this group of amendments, particularly Amendment No. 10. With the leave of the House, I should first like to say a few words as a matter of courtesy. I offer the Minister my apologies if I am asking her to answer impossible questions. I have been influenced by the desire to know what the legislation will mean in practice. I agree with the view of the Earl of Strafford:
"Let the mark be set on the door where the plague is and then let him that will enter in die".
If the Minister cannot answer the questions I would be more likely to blame the Bill than the Minister. I hope that she will take all my comments in that spirit.
Secondly, I give the Minister notice—I believe she will need notice—of a matter that I intend to raise at the next stage of the Bill. On
Today I want to raise the case of Slovenia, which should not be too much of a surprise to the Minister. It is mentioned in the morning's papers and it probably appeared on the Minister's desk this morning. Slovenia is listed as one of the safe countries where there is no in-country right of appeal against refusal. It is a case for the non-suspensive appeal. Although it is a safe country, safety is a somewhat comparative issue. This weekend there was a referendum which it is believed has been won by those who want to support the suspending of citizenship rights for a large number of Slovenians. It is thought that approximately 130,000 people who are not Slovenian by birth are affected—Bosnians, Serbs, Albanians and many others who originate from outside Slovenia. They were required to register, but that requirement was not particularly widely communicated.
Last Friday in the Independent reference was made to a case which illustrates the kind of matters that have taken place. A certain Mr Alexander Todorovic, who is a Serb, had a daughter in 1993. When he went to the records office to try to obtain a birth certificate for the baby, he was told that his name could not be put into the record because it was not in any record. He thought that was a mistake; after all, administrations have been known to make mistakes. He produced his ID card to show that he genuinely existed. On the spot, his ID card was taken from him and torn up. He did not exist; he was an "unperson". That means that he cannot have a social security number; he cannot receive healthcare; he cannot have a driving licence; he cannot have a job; and, most materially for our purposes, he cannot have a passport.
Let us assume—it is not an irrational assumption—that one such Slovenian "unperson" appears at Heathrow claiming asylum. He will not have any documents because he is not allowed to have any. There will be a prima facie assumption that the documents have been destroyed, against which he will want to make an appeal. The appeal will have to be non-suspensive, so he will be returned to Slovenia, but Slovenia will not admit him because he does not have any Slovenian documents and the Slovenians do not recognise that he exists.
I can see such a case causing considerable expense to the world's airlines, quite apart from considerable dismay to the Slovenian concerned. As I understand it, he cannot even make his claims to freedom of movement within the EU because there is no way, without any papers to prove that he is a Slovenian, that he can prove that he is a citizen of the EU. I do not know what the European Court of Justice might make of this matter, but I am certain that it would cause the British courts a good deal of difficulty.
I should like a categoric assurance that that would be regarded as a reasonable excuse within the meaning of Amendment No. 10. If the Minister has any further comments to make on that, which she might have because it has to be on her plate at the moment, I would hear them with very great interest. It is a situation which I can see breeding a great deal of trouble over the next few months.
My Lords, if the Bill goes through in the form in which it is drafted, a certain number of people each year will be charged and convicted of an offence and they may then be sent to prison for up to two years, or in some cases up to six months. I would like to explore this matter from the point of view of the present prison population in this country. What thought has the Home Office given to this matter? I should add that this is a very important group of amendments, with which I have a good deal of sympathy.
I am somewhat afraid that it may be a case where, in putting this Bill together, the Home Office wanted to have the first shot and had not sufficiently reflected on the consequences for our prisons.
My Lords, I will deal with the amendments first and then turn to the additional matters that have arisen secondly.
To some extent these three amendments need to be taken together, but I will comment primarily on Amendment No.1 and the issues it raises. Amendment No. 1 would change the offence to one of destroying or disposing of documents. The Government have said several times that it is our intention to address precisely this kind of behaviour. As noble Lords know—and many have acknowledged—many thousands of people arrive every year at UK ports without documents, despite in almost all cases having had them on embarkation. That causes delays in the handling of asylum claims and other applications while we try to establish identity and nationality, and can severely disrupt efforts to remove those who are refused leave in the United Kingdom. I believe that we all agree that we need effective sanctions to stop people from destroying or disposing of their documents.
Although it is this behaviour which we seek to address, we cannot accept the amendments. To do so would make the offence virtually impotent.
First, we would be able to penalise only those people who destroyed or disposed of documents within the United Kingdom's jurisdiction. If that were the case, very quickly we would find that people destroyed—or claimed to have destroyed—their documents before arriving in the United Kingdom; for example, before take off in another country.
Secondly, showing beyond reasonable doubt that a person had destroyed or disposed of their passport would be very difficult to do. It could, for example, involve tracing back where they arrived from, which plane they were on, when they left, who they travelled with and what they did en route. We would only very rarely have sufficient evidence to be able to prosecute anyone. All those facts would be peculiarly within the knowledge of the person involved. The clause was drafted very much conscious of those difficulties.
The Government think that because of the circumstances that are peculiar to when this offence occurs and the extent of the problem of people arriving undocumented, we are fully justified in taking this approach. It is also the reason why we have a reverse burden of proof—although that is on the balance of probability—for establishing the defence of a reasonable excuse. Therefore my noble friend Lord Clinton-Davis is right in his comments because these issues are very much within the knowledge and belief of the person who seeks to rely on that reasonable excuse.
Where someone has a reasonable excuse for not having a document at a leave or asylum interview, the details of that excuse will usually be solely within the knowledge of that individual. For example, if the individual had been smuggled on to a plane by a corrupt official—as was mentioned earlier by the noble Lord—and he or she had never had a document, only he or she would know the details of how and when that happened. It is not unreasonable to ask the defendant to prove on the balance of probability that it did occur.
We believe, therefore, that it is justifiable to require the defendant to prove this himself or herself. I am pleased that the Joint Committee on Human Rights agrees with the Government. The chair of the committee said:
"In light of the Government's response, we accept in principle that it can be regarded as justifiable to place the burden on the defendant of proving that he or she is entitled to the benefit of the excuse".
The extent of the problem of people destroying their documents should not be underestimated. The majority of people who claim asylum do not have documents on arrival. That slows consideration of their claims and if they are refused can delay or prevent removal. We need an offence which deters people from destroying their documents and it must have the necessary teeth to achieve that goal.
I turn briefly to the other two amendments. Amendment No. 10 is unnecessary since it is already the case that the offence in Clause 2 must be proved to the criminal standard. The issue is what it is that is being proved to that standard—a matter covered by my earlier comments.
Amendment No. 7 would build a reasonable excuse provision into the offence of not having a valid passport for a dependent child and would have the effect of requiring the prosecution to show beyond reasonable doubt that such an excuse did not exist. For the reasons already given, we do not consider it right that the prosecution should be left to show that a reasonable excuse exists—that should be a matter for the applicant.
I will now deal with some of the issues raised by the noble Earl, Lord Russell, though first I should deal with the comments of the noble Lord, Lord Avebury, about Zimbabwe. I say in parenthesis that anyone who arrives in the United Kingdom with a false passport and satisfies us that that is the passport with which they embarked, then they would not be prosecuted as they would have a reasonable excuse for not having a valid passport—that is, that they had never had a valid passport.
We are aware of some of the problems to which the noble Lord referred in relation to Zimbabwe concerning people with South African passports claiming that they are from Zimbabwe. Where a person provides some potentially credible information that they are from Zimbabwe we would not treat them as being from South Africa—and hence subject to the non-suspensive appeals process—until we had satisfied ourselves through proper investigation that they are from South Africa. We understand the difficulty to which the noble Lord referred.
My Lords, I am grateful to the Minister for giving way. On that absolutely crucial point that given that it is extremely difficult for a person to receive a passport or other document from certain tyrannical or dictatorial governments, do the Government take into account not only the special case of Zimbabwe but other similar cases where the government concerned—and the DRC might be such an example—are most unlikely to give a passport to anybody known to be an opponent of a regime?
My Lords, the noble Baroness, Lady Williams, raises very important issues. One therefore has to look at these issues on a case-by-case basis. The noble Baroness will know that a number of people who come to this country will say, "I belong to a certain tribe, or a certain party". They may be able to produce clear indications that that is the case. They may also have false documents or no documents at all. If they produce the documents on which they embarked, we will have some basis on which to discern whether their comments are true. That is the point.
As the noble Baroness will know, many people come forward and say, "I have this document, which is false. I was not able to obtain a real document because of my name, my tribe or my political affiliation. So this, I tell you in truth, is what I had to do to get out of the country. This is the means I took". That enables us to make an informed judgment on whether it is true and reliable.
In many of these cases, the difficulty we face is that the documents on which the person relied to embark have been destroyed. It is extremely difficult afterwards to determine whether the claims they make are bona fide. We are currently not able to retain falsely obtained documents for reasonable reasons, in order to make that sort of decision. That is the very mischief that we seek to address.
We cannot accept the amendments because we feel that we have to have some basis on which to make these judgments. We would be able to penalise only those who destroyed or disposed of documents within the United Kingdom's jurisdiction. If that were the case, I think that we would very quickly, as I said, find that people had destroyed or claimed to have destroyed their documents earlier. There would be real difficulties.
We think that the shift to require the overall case to be proved beyond reasonable doubt is proper, whereas those seeking to rely on a reasonable excuse would have to show on the balance of probabilities that they had such a reasonable excuse. I am therefore grateful, as I said, to see that the JCHR has concurred with that position.
I turn to the issue raised by the noble Earl, Lord Russell, and the points he raised about Kosovo. I am instructed that no enforced returns to Kosovo have occurred since
On Slovenia, as the Government have said many times before, if a person satisfies us that they embarked for the United Kingdom without an appropriate travel document we would not prosecute them. The link to non-suspensive appeals is not present. If we were seeking to prosecute someone under Clause 2 we would not be seeking to remove them to Slovenia or elsewhere. As from
I turn to the questions on the prison population asked by the noble Lord, Lord Hylton. Of course it is right to look at the nature of the defence and at appropriate sentences. As the noble Lord will know, this provision sets the maximum penalty in relation to all offences. It does not mean that every person will necessarily be sentenced to a term of imprisonment or that that term will be as much as two years. We have considered the effect on the prison population. The offence is intended to deter people from destroying or disposing of their documents. We do not expect a large number of people to be convicted and do not expect custody to be used extensively. However, it is right that we should have that benchmark.
As the noble Lord will also know, in dealing with these offences and with the sorts of sentences available, all the provisions in the Criminal Justice Act 2003 and the Courts Act 2003 will bite in relation to the ambit and range of the sentences available to the court when a two-year sentence is available. However, we hope that the deterrent effect will bite hardest of all.
Before the noble Baroness concludes, I seek clarification on just one point. Let us suppose that a person gets on a plane with false documents and, in her or his fear—which, if they were genuine refugees might well be the case—she or he thought that possessing false documents was much more likely to be an offence than possessing true ones, and destroyed them for that reason, would that not be a quite understandable thing for a person in that frame of mind to do? Would it be a reasonable excuse?
I can understand why the right reverend Prelate says that there is a frame of mind, but we are trying to make it absolutely clear that it is not reasonable to destroy the documents. I can understand why he would say that the person's frame of mind might make them fearful. We are trying to encourage people to make full and frank disclosure of what has happened to them, so they can receive sympathy and understanding, and to keep the documents they may have so they can demonstrate from whence they came. Nothing in this legislation would indicate that that would necessarily be a reasonable excuse. However, it would be for the person to describe to the authorities what happened, why he did it and what threats or other things might have played on his mind which caused him to believe that he had reasonable excuse so to do.
I declare an interest as a lay member of the Immigration Appeal Tribunal. Is it not correct that some people come over having never held their documents in their hands? Their documents are held by an agent. They are taken through immigration control by the agent and they are dumped at UK immigration control by the agent. So they have neither wilfully destroyed nor disposed of the documents because they have never had them in their hands. So the noble Lord's amendment would not cover all the facts.
Are Her Majesty's Government not familiar with situations such as the case cited by the noble Earl, Lord Russell? Chinese asylum seekers, for example, have not been able to return to China because the Chinese Government have refused to accept them, although I understand that that is changing now. So it is not a new situation. The same happens with the DRC.
We know that the situation is not new. The problem is that we have to grapple with the situation that we face. The noble Countess is right to say that where we do not have clear documentation to tell us from whence these individuals may have come, it is very difficult to get replacement documents for them so they can go back. We need to try to retain the documentation that will illustrate where the person embarked, and obtain a clear explanation from them about what has happened to them on their journey. I reiterate that our difficulty is that that information is peculiarly within the individual's knowledge. It is for the individual to explain to the authorities what caused them to travel, what fear was the basis of their flight from the country from whence they came and what documentation they had or did not have.
If, as the noble Baroness describes, they never had a valid passport—it was never given to them; they never had control of it—then it is very important for them to make that clear to the authorities. If they have a reasonable excuse, that will give us an opportunity to hear it, to make an assessment of it and then to make a judgment. These provisions will help us to do that more easily.
I am most grateful to the noble Lords, Lord Clinton-Davis and Lord Hylton, my noble friend Lord Russell, the right reverend Prelate and the noble Countess, Lady Mar, for their interventions which assisted us to clarify some, but not all, of the issues.
The comment made by the right reverend Prelate neatly illustrates the problems with this clause. As it was necessary for him to ask that question, he presumably did not know the answer until he heard it in the Chamber. The Minister was able to explain to him that a person who destroys his document, thinking that it will be worse to have a false document than none at all, may render himself liable to prosecution. All noble Lords present in this Committee now understand that. But somebody entering the country from Harare via Johannesburg does not have the faintest idea of what has been said in your Lordships' House. He will think, unless somebody has explained the contrary to him, that it would be more sensible for him to destroy his document en route and to come with nothing at all than to show an immigration officer the false document with which he embarked. That is the fallacy behind the clause. One can explain it in this House until one is blue in the face, but that will not get it across to people in repressive dictatorships or in parts of the world where they do not read Hansard.
Nevertheless, I am extremely grateful to the Minister for the attempt that she has made to answer the questions, even though she ignored, if I may say so, the whole of the preamble to my discussion of the amendments themselves. I was trying to show that there are several other methods of dealing with undocumented arrivals that have not been fully applied or tested. As one of the examples, I gave the use of juxtaposed controls that have been successful in reducing the number of undocumented arrivals at Waterloo by 90 per cent. I went on to say that that seems to have meant the diversion of the flow of undocumented arrivals to other ports of entry, particularly to the four terminals at Heathrow. Nevertheless, we were told that immigration officers have been successful in tying 84 per cent of undocumented arrivals to their flights of arrival. It is not true, as the Minister was saying to noble Lords, that it is impossible to find out which plane they came on. The IND has been increasingly successful in doing that and therefore in identifying the countries from which people without documents have arrived.
There is also the question of language testing, which the Minister does not seem to have taken into consideration. She said that sometimes it is very difficult to establish whether somebody's claim to belong to a particular tribe is correct. Since language testing has been introduced, it has been possible to identify one in five people claiming to be of Somali origin as coming from one of the other countries of east Africa. This has been an effective tool in tying somebody who is undocumented to a particular country.
I may have misheard the noble Lord, Lord Avebury. Was he suggesting that I said that it was impossible to identify individual tribes? What I was saying in answer to the noble Baroness, Lady Williams, was that on a number of occasions it has been said that somebody came from a certain tribe, which would indicate that they may have had difficulties. I was not by any means saying that it was impossible. I outlined the difficulties that may occur, but I was not suggesting that it was impossible to do, simply that it was difficult, cumbersome and possibly unnecessary to go down that road.
The Minister had just been discussing the question of Zimbabwe, and the possibility that undocumented arrivals might have produced essentially credible evidence that they came from that country. She went on to broaden her comments by saying that many people claim to belong to a particular tribe or group but that the matters that they state are peculiarly within their own knowledge and it is very difficult or impossible for an immigration officer to test their stories. I was merely saying that, in the case of language, we now have tools that, according to the Home Office, are turning out to be very effective. That is illustrated by the fact that it was possible to label one in five persons claiming to be from Somalia as coming from some other country. The same is true, if I may broaden the discussion, with those coming from Zimbabwe. It is possible to identify a person who speaks Ndebele as coming from a particular area of Zimbabwe. If he comes from South Africa and is pretending to be a Ndebele, it is possible for the language testers to prove it to be false.
I can see that we are not going to get any further on these matters than they did in the other place and so I shall not hold noble Lords up by prolonging the reply to the debate. I can only say that, from the discussion that we have had so far, I think that we have not heard the end of these matters and we shall have to return to them at a later stage of the Bill. Meanwhile, I beg leave to withdraw the amendment.
My Lords, Amendment No. 8 is designed to ascertain the circumstances in which it would be unreasonable to expect non-compliance with the instructions or advice that has been given by the facilitator of the asylum-seeker's arrival in the UK. In another place, the Minister said that the Government wish to send out the message that if people destroy their documents, even if it is at the behest of a facilitator or agent, they would be liable to prosecution. The noble Baroness has reiterated that in the answer that she gave to the previous amendment. But how are asylum seekers expected to know that destroying their documents as part of the bargain with the facilitator is a criminal offence? In another place, there was some discussion of warning notices at the airports but, assuming that they are prominently displayed in the immigration hall, it could be too late by then because the passenger will already have destroyed the document on his way from the landing stage to the place where he has to present it.
It has been acknowledged by the Government, in the aftermath of the Morecambe Bay tragedy, that people who enter the country illegally, in that case for economic reasons, are in fear of the power of the facilitators, and that dread is even worse for asylum seekers. We very much welcomed the Government's amendment to subsection (7)(b)(iii) on Report in another place, to add the words allowing a person to comply with the facilitator's instruction to dispose of his document where it would be unreasonable to expect him not to do so. But I looked in vain for any explanation of the "rare situations", as the Minister described them on Report on
The Refugee Children's Consortium is particularly anxious that a generous interpretation for children should be put on this exception because they are clearly more vulnerable to threats and intimidation by adult facilitators. Children from some parts of Africa, for instance, may well be silenced by the fear of witchcraft. In response to a question by Mr Hilton Dawson in another place, the Minister said that the guidance would make reference to children who destroy documents under duress. We believe that it would always be unreasonable to expect children not to comply with instructions from an adult who arranged their travel, and I hope that the Minister will give us that assurance. As regards adults, surely there are many situations where the facilitator has power in the country of origin and could make life difficult for the remainder of the family still there.
On Friday I listened to four cases at the tribunal, all of which were remitted for reconsideration by the adjudicator, where one judge said that problems were increasingly being encountered with determinations made under pressure. One case was of an Iranian member of the Workers Communist Party of Iran—an organisation whose existence was apparently unknown to both CIPU and to the judge himself. The appellant had said that his escape across the border into Turkey—which, I remind the Committee, has had a pact with Iran to refoule each other's dissidents since 1994—had been facilitated by his uncle who was a military officer on the border. I do not know whether that appellant had arrived without documentation, and clearly there was no secret about the manner of his arrival but it might well have been necessary for him to keep quiet about the details to protect his uncle. Incidentally, if an asylum seeker did arrive direct from Iran with a valid passport, it might be prudent to treat his application with some caution. There are agents of the regime dotted around Europe spying on the opposition, and those people may well have had genuine documentation. I think, on the whole, that Iran is not a country whose refugees find it necessary to destroy their documents and perhaps the Minister could give some statistical information on the countries of origin from which undocumented passengers are now arriving where that has been identified. That might give the Committee some idea of whether in the particular circumstances of those countries it would be expedient for asylum seekers to conceal their travel arrangements.
I turn to Amendment No. 9. In Section 31 of the Nationality, Immigration and Asylum Act a defence is available under Article 31 of the Refugee Convention where a person is alleged to have committed any of the offences listed there relating to false documentation. The defence applies only to a person who comes,
"directly from a country where his life or freedom was threatened within the meaning of the Refugee Convention", or, if he comes via another country, that he,
"could not reasonably have expected to be given protection under the Refugee Convention in that other country".
We believe that without a similar safeguard here there is a significantly increased risk that convention rights will be breached, and that genuine refugees will be detained and punished for seeking protection here, contrary to the UK's international obligations.
UNHCR has expressed concern that as drafted the Bill undermines Article 31(1) of the convention, which provides that no refugee should be prosecuted for illegal entry or presence in a country if he presents himself without delay and shows good cause for his entry or presence. It says that the "reasonable excuse" provision does not go far enough to guarantee protection of refugees in accordance with that principle.
The question of Article 31 protection has been well rehearsed on previous legislation, particularly in the debates on the Immigration and Asylum Act 1999. Section 31 of that Act was introduced late in the proceedings by Lord Williams of Mostyn as a direct consequence of the High Court's finding in the case of R v Uxbridge Magistrates ex parte Adimi and others (1999 INLR 490), that asylum seekers had been unlawfully prosecuted for the possession of false documents, contrary to Article 31(1). A number of "Adimi" compensation claims for wrongful imprisonment were settled later for, I understand, around £40,000 per claimant. We do not want to repeat the same mistake now, and we respectfully challenge the Minister's assurance in another place that the two safeguards built into the clause,
"ensure that the offence is not inconsistent with a proper interpretation of the protection afforded to certain refugees under article 31".—[Official Report, Commons, 1/3/04; col. 620.]
She said that the "reasonable excuse" defence covered the situations where the claimants had no documents when they began their journey, though surely that was a little disingenuous. The example that the Minister gave, both in Committee and on Report, was of a person who had been smuggled on board the plane by a corrupt official, and she said that as the circumstances were peculiarly within the knowledge of that person—a phrase that was repeated by the noble Baroness this afternoon—it was not unreasonable to ask him to prove, on the balance of probability, that it did occur. But it is precisely because the burden of proof is on the asylum seeker that we are uneasy about the compatibility of this provision with Article 31 because we all know that when the credibility of the applicant is an issue, he is in trouble.
The second safeguard, the Minister said, was that the amended subsection (5)(b)(iii) made,
"allowances for those rare situations in which a person's actions in deliberately destroying the document might be considered a reasonable cause for the purposes of article 31".—[Official Report, Commons, 1/3/04; col. 620.]
We agree that in the majority of cases where documents are destroyed the motive is to frustrate the immigration authorities in their duty of evaluating the claim for asylum or, at the very least, to block their return to their country of origin. But the Minister has acknowledged that in these rare cases there may have been a good reason for the destruction, and we believe that in those cases alone, as with the offences under the 1999 Act, it should be possible for the defendant to invoke Article 31 direct. I beg to move.
I listened with great care to what the noble Lord, Lord Avebury, said in relation to these amendments. I absolutely understand that Amendment No. 8 seeks to remove from the list of unacceptable defences outlined in the clause the destruction or disposal of documents upon the advice or instructions of a facilitator.
As currently drafted, Clause 2 allows a person who relies on the destruction or disposal of their document as their reason for not being in possession of it to rely on the fact that they destroyed or disposed of it on the instructions of their agent or facilitator if it would be unreasonable to expect them to have done otherwise. We believe that this will cover those exceptional circumstances where a refugee or any other applicant may be so vulnerable and so dependent upon their facilitator for ensuring their safe flight from persecution in their country that they may innocently agree to destroy or dispose of their passport at their behest. However, as a general rule we do not consider it acceptable for people to dispose of their passports simply because they were told to do so, and it is important that we make that point clear on the face of the Bill.
Destroying or disposing of documents is behaviour aimed at avoiding proper immigration, as the noble Lord, Lord Avebury, acknowledged. This offence is about changing such behaviour, encouraging people to be honest and co-operative. If people are being instructed and advised to destroy their documents, we need to make it clear that they must not heed those instructions or that advice. If this defence were to be routinely allowed, this offence would become less potent and the effect on people's behaviour would be reduced.
We shall make efforts to ensure that people are aware, both before embarking for the United Kingdom and before reaching immigration control in the United Kingdom, that not having a document when or if they seek leave to enter or claim asylum is a criminal offence.
Amendment No. 9 would create a further defence to the offence under this clause where a person could show that they met the requirements of Section 31 of the Immigration and Asylum Act 1999. Those requirements, in summary, are that a person be a refugee who has applied for asylum as soon as reasonably practicable upon arrival in the United Kingdom and can show good cause for his illegal entry or presence. Section 31 was introduced to reflect the United Kingdom's obligations under Article 31 of the 1951 Refugee Convention.
The reason we oppose this amendment relates to the nature of the offence and the two safeguards that we have put in place to ensure that that offence is consistent with our obligation under Article 31.
Clause 2 is not there to prosecute those who arrive without documents and can show good reason for not having them. I hope that we have made that clear in the past couple of hours that we have debated this issue this afternoon. Not having a document at the start of your journey would qualify as a good reason. So a refugee forced to flee their country without papers would not be caught by Clause 2.
The behaviour that the offence in Clause 2 is designed to criminalise is the destruction or disposal of a document which a person had when they began their journey. We do not think that a person should be automatically protected against prosecution or conviction for such behaviour when they are a refugee who can show that they meet the other requirements of Section 31. In such cases, the person will have had a passport when he left the country where he feared persecution. Having left that country, there is no reason why he would need to destroy or dispose of his passport.
As I mentioned previously, two safeguards exist to ensure that the offence provided for by Clause 2 is consistent with Article 31 of the 1951 convention. First, we believe that, for the most part, a person who can establish that he never had a document will be able to demonstrate that he has a reasonable excuse for not being in possession of one.
Secondly, a government amendment to subsection (7)(b)(iii), which we have already debated, was made in another place and makes allowances for the exceptional situations where it may be reasonable for a person to follow his facilitator's instructions to destroy or dispose of his document; for example, where a refugee is so vulnerable and so dependent upon his facilitator for ensuring his safe flight from persecution in his country that he may innocently agree to dispose of his passport at the behest of his facilitator. We listened very carefully to what was said in the other place and have sought to close the loophole identified and give the exception in the way that we have drafted it.
The noble Lord, Lord Avebury, also asked about data. We do not have the data, broken down by nationality, relating to the percentage of applicants arriving undocumented. However, overall, more than half of asylum applicants—perhaps as many as 70 to 80 per cent—arrive without documents. Therefore, this is a widespread problem which needs to be addressed. It does not follow that if a high percentage of certain nationalities arrive undocumented, asylum seekers cannot obtain documents. It could mean that they are destroying family documents en route to the United Kingdom. We think that that issue is appropriately and proportionately addressed in the new arrangements that we now have.
As I made clear, Clause 2 is phrased so that it will catch only those who seek unreasonably to flout the rules and take advantage of them so that they can make unmerited claims. It is not there to catch the innocent or the unwary.
I am grateful to the noble Baroness for her reply, even though I cannot say that I took much comfort from it. As I understood what she said, it would be the intention of the Government to prosecute people under these provisions, even if it subsequently emerged that they had a perfectly genuine case. They would come here as refugees; they would qualify under the convention; and they would be allowed to remain here as requiring asylum under the convention. Nevertheless, we are going to start by putting them in prison. That seems to be a curious way of helping someone to resettle when he has escaped from a foreign dictatorship. That is how I took the noble Baroness's—
I am sorry that the noble Lord took it that way. We are trying to send a very clear signal. The noble Lord will know that on a number of occasions when policies have changed, people pick up on the new signals. We are sending a very clear signal that the destruction of documents is not to be advised and that those who come here with a genuine claim can do so with false documentation and make their claim. We are not saying that those who have genuine cases should in any way be treated disadvantageously. We are trying to persuade people to be honest, frank and open so that we can help them.
As I said during the debate on the previous amendment, the noble Baroness can explain that in this House and she can probably get it across to your Lordships. However, she cannot persuade people in Mogadishu who are creating false documentation to send people here to escape carnage and suffering in that country that they must comply with the rules established by your Lordships. That is the difficulty. I am afraid that it is not a clear signal. One can put up notices at Heathrow or Dover or wherever but, by that time, it is too late.
If the noble Baroness really means what she says—that she intends to give a clear signal that if people come here they will be prosecuted for this offence—the place to put up the notices will be Mogadishu or any place from which large numbers of asylum seekers appear on our doorstep. That would not be very difficult because the Home Office's asylum statistics show that about a dozen countries appear at the top of the league. Iran, Iraq, Somalia, Pakistan and so on are there regularly, quarter after quarter.
Therefore, if the noble Baroness can assure me that she will undertake a publicity campaign in places from which asylum seekers arrive in this country, I shall be much happier than I am when I hear assurances about notices at Heathrow or Dover. I notice that the noble Baroness is not leaping to her feet and so I assume that there will not be any such campaign and that people will, inevitably, set off on such journeys without having the knowledge of this legislation or of the prosecutions to which they may be liable when they arrive in the United Kingdom. Having said that, I am convinced that we shall not make further headway on this matter this afternoon and we shall have to think about whether to return to it at a later stage. Meanwhile, I beg leave to withdraw the amendment.
The purpose of this amendment is to ensure that the new offence in Clause 2 does not apply to immigration interviews where the applicant is not an asylum seeker. This subsection was debated at some length in Committee in another place and the Government tabled amendments on Report to meet some of the points that were raised. In particular, it was argued that a person could have better reasons for not having a passport when attending an interview some time after his arrival than someone who had just disembarked from a plane. The Minister acknowledged that to be so.
The Minister said that the intention behind the amendments tabled by the Government on Report was to,
"cover any interview in which a person seeks leave to enter or remain and, so far as they are not already covered, claims that removal would breach our obligations under the refugee convention or the European convention on human rights".—[Official Report, Commons; 1/3/04; col. 619.]
That may have been a slip of the tongue because, later in the speech, she said that all interviews, whether for asylum or another purpose, were covered by these provisions.
The people who turn up for interviews without documentation, whether at the ports or in-country, are mainly asylum seekers, whereas the Minister said that people already given refugee status in other European countries are entering the UK on a CTD or otherwise and then arriving at the asylum screening unit without the documents and claiming asylum.
Since the beginning of 2003, asylum seekers have been fingerprinted in all EU countries under the Eurodac scheme, and new applicants are routinely checked against that database. That means that if an asylum seeker enters the EU through another member state, applies for asylum on entry and then travels to the UK, destroying his documents on the way, he can be picked up and returned to the first country under the Dublin II convention.
In evidence before the Home Affairs Select Committee in another place last October, Mr Bill Jeffrey, director general of the IND, said that so far his organisation had identified 1,454 passengers who had already made an application elsewhere and that the number was running at 140 a month, or just over 15 per cent of all undocumented arrivals. Presumably there would be a time-lag because some of the arrivals at that time would have crossed into the EU before Eurodac came into operation and we could expect to see a further increase in the proportion of the undocumented arrivals as belonging to some other country. If the Minister could give us more up-to-date figures, that would certainly be very useful.
I hope that the Eurodac scheme will be increasingly successful at preventing these undocumented arrivals from European countries. But, for the purposes of this amendment, we are talking about interviews where the applicant is not an asylum seeker and where there may be a different set of considerations.
People in these situations would have no reason for not producing their passport if they were able to do so. We are talking of people who had a limited leave to remain some time in the past and who are pursuing some lawful right to continue residing here for the same or another purpose; for example a student who has lost his passport moving between flats or hostels but has no proof and cannot remember precisely when the loss occurred, or an overstayer whose passport was lost by a previous representative and whose office has now been closed down, but who is married to a British citizen and seeks to remain in that regard.
It is not unknown either for passports to be lost within the Home Office, as I am sure the noble Baroness will acknowledge. The only exception to the rule that people should be able to produce passports on those occasions would be those who have entered clandestinely, as presumably some of those employed by the gang masters did, and who do not apply for asylum. As they would have no right to remain under any other heading, it would be futile to prosecute them and instead we should get them documented and returned to their countries of origin as soon as possible. I beg to move.
I speak in support of Amendment No. 27, which helpfully sets out the kind of factors which need to be studied with great care, whether or not the amendment should be accepted. I refer in particular to paragraph 3 on disseminating the guidance that will be necessary, and to paragraph 4, which deals in part with the existing and new offences of trafficking, and goes on to refer to interpreters, a matter to which I have referred on a considerable number of occasions during the passage of past Bills on this subject. The quality of interpretation is crucial. Paragraph 4 refers also to training for work with children and with survivors of torture and organised violence. On those grounds, the amendment is very helpful.
I thank the noble Lords, Lord Avebury and Lord Hylton, for their comments. I hope that they will not be too disappointed if I say that I do not feel able to agree the amendments.
The Bill provides that the scope of the offence extends to any interview relating to an application for leave to enter or remain in the United Kingdom or any interview relating to an asylum or human rights claim. The amendment would restrict the scope of the offence to any interview relating to an application for leave to enter or remain which is based upon asylum or human rights but nothing else. So only those applying for asylum or making a human rights claim would be potentially liable under the Clause 2 offence. It is unusual and somewhat paradoxical for the noble Lord to seek to put asylum seekers and those falling into the position of applicants of human rights claims into a more onerous position than others.
Clause 2 is designed to catch the mischief of people disposing of their passport. Such behaviour is unacceptable, whatever the basis on which a person is seeking to enter or stay in the United Kingdom, so it is necessary that the scope of the offence covers all types of applications and not just those based on asylum or human rights grounds.
It may well be in practice that the majority of people who are tempted to dispose of their passport go on to claim asylum or human rights. However, there are occasions when someone seeks leave on other grounds after having disposed of their passport for no acceptable reason. They might, for example, feel that that would hide their true identity and frustrate their removal. We need the offence in Clause 2 to be available for those types of cases.
There are many occasions where, for example, we pick up a person who is a legal entrant and are in the process of removing them when they seek to prevent that removal by saying that it would breach their rights under the Refugee Convention or the ECHR. It is debatable whether in doing that the person would be seeking leave to enter or remain as opposed to simply resisting removal. As we want to ensure that such situations are covered by the offence, we have inserted specific reference to asylum and human rights.
I hope that I have explained why Clause 2 needs to cover all applications. The position with Clause 7, which is concerned with assessment, is somewhat different. It is unlikely that many people seeking leave on grounds other than asylum or human rights would follow the sort of behaviour set out in the clause in order to enhance their claim. Being unco-operative and/or failing to produce a passport is, for example, unlikely to lead to a successful outcome. Where, nevertheless, a person seeking leave on non-asylum or human rights grounds adopts the sort of behaviour outlined in Clause 7, the normal outcome is that their claim will be refused on the basis that they have not met the requirements of the immigration rules. In particular, paragraph 320(3) makes failure to provide a valid passport a mandatory refusal under the rules. So, there is no need to get into issues of credibility. The application would be refused and the person removed.
The noble Lord, Lord Hylton, raises, as he always does, quite properly, the issue of interpreters and the need for high-quality interpretation so that what is said is accurately recorded and reported and so that improper misunderstandings are eradicated. Who could disagree with him? I shall not disagree with him on this occasion as I have not on any other when he has raised this issue.
However, in relation to these issues I do not think that the amendments take us very much further. I am very glad that the noble Lord, Lord Avebury, recognised the success of Eurodac. We shall continue to seek the maximum number of third country removals to the EU countries and that will not be affected by Clause 2. The Government will listen carefully to all the arguments made during this debate and seek to further clarify issues. For example, the noble Lord, Lord Avebury, raised the question of notices in other countries. We shall look to see what we can do to ensure that this policy is better understood by all those who need to know of it. I am sure that our agencies and embassies in other countries will do their duty, as they have done. If I do not specifically say that in relation to each and every amendment, I hope that noble Lords will understand it as a general comment that we shall review everything that is said in Committee. If there are matters that we can clarify, we shall endeavour so to do.
I am particularly grateful to the noble Baroness for her remarks on my suggestion that we need publicity in countries of origin and not at Heathrow or Dover, where it would be too late. I hope that we can perhaps have a discussion on that matter offline to see what could be done, as the Minister said, via the embassies or carriers.
One thought that occurs to me off the top of my head is that when a ticket is sold from one of the places of origin to Heathrow, a little notice could automatically be sent with it stating that people who arrive at the other end without documentation or with false documentation may be liable to prosecution under Clause 2 of this Bill. That would not be very expensive, although I take the point made on a previous occasion by the noble Baroness, Lady Anelay, that we are burdening the airlines in some respects with additional duties to which they should not be liable. They are not immigration authorities, and this would have to be done with their consent.
Regarding this amendment, I was thinking primarily of the cases where somebody who was already in the country was interviewed for a further extension of their leave to remain and had, for any reason, lost or mislaid their passport. I fully take the point that the noble Baroness, Lady Scotland, made about somebody who has entered as an illegal entrant and is then picked up by the authorities and immediately applies for asylum on the grounds of human rights. It is important that those people should be identified, and I agree with her that means have to be found in the legislation for doing so. Persons who are already here having applied for asylum would have been picked up by Eurodac, as I am sure she acknowledges, because it has been in operation since the beginning of 2003. So any person who presented himself under a different identity, thinking that his previous claim was not going to be successful or having claimed in another country, whether successfully or not, and who wished to start a new claim in the United Kingdom, would have been automatically picked up. I take it that as time goes on and every single entrant who applies for asylum is fingerprinted under Eurodac, there will be a very small number who still remain who are not identifiable through that system. But I do not intend to pursue this further at the moment, and I beg leave to withdraw the amendment.
moved Amendment No. 12:
Page 4, line 8, at end insert—
"(17) The Secretary of State shall, before commencement of this section, and thereafter from time to time as he may decide necessary, publish detailed regulations on the implementation of this section and of section 31 of the Immigration and Asylum Act 1999 (c. 33) (defences based on Article 31(1) of the Refugee Convention).
(18) Schedule (Prosecution of documentation offences) shall have effect.
(19) Guidance issued under subsection (17) shall not be made unless a draft has been laid before Parliament and approved by a resolution of each House."
About a week ago your Lordships approved an order to deprive asylum seekers of the right to representation at the initial interview, with certain exceptions. We have now been asked to enact an offence which may be committed by any undocumented passenger at that interview, where he will now have no legal representative to advise him on what constitutes a reasonable excuse for not possessing a document, and on the possible consequences in terms of prosecution and imprisonment if he fails to provide that excuse. I think that must be what is meant by "joined-up government": we passed an order last week depriving someone of representation, and this week we create an offence to which that person might become liable.
These amendments will at least ensure that the guidance on this and other documentation offences under the 1999 Act are clearly set out in statute and that the safeguards needed to prevent breaches of Article 31, to which references have been made, are not dependent on the assurances we have already been given. Amendment No. 12 further ensures that the offence does not come into force until the guidance has been published and is understood by those responsible for the prosecution and trial of the offence. The new schedule provides that the promised guidance exists and is in the public domain before Clause 2 comes into effect, so that the rights of persons accused of destroying their documents can be protected in a practical way. Those concerned with potential or actual prosecutions would have to understand the rights of asylum seekers under Article 31, and the bearing that they have on the defences allowed under the clause. It also ensures that Parliament and the public would have a mechanism for examining the use made of these offences from time to time, which is not available for offences under the 1999 Act.
The Government have rejected amendments to bring Clause 2 offences into line with the offences contained in the 1999 Act and, in the light of current Home Office instructions, even those offences would benefit only to the extent of a very narrow construction. The Home Office's Miscellaneous Guidance for Caseworkers, Article 31 of the 1951 Convention and Section 31 of the Immigration and Asylum Act 1999, after observing that Section 31 of the 1999 Act supersedes the interpretation of Article 31 given by the High Court in the Adimi case, says that in the case of Hussein,
"the Divisional Court ruled that the courts and the Crown Prosecution Service are necessarily obliged to have regard to the terms of section 31 of the Act as laying down authoritatively the nature of the UK's obligations under Article 31 of the 1951 Refugee Convention. The primary focus for the CPS following the enactment of section 31 has to be upon the law found in section 31 and not the law in relation to Article 31 to be found in the Adimi judgement".
We respectfully disagree that Article 31 itself can be ignored, and that the CPS can rely entirely on Hussain and other judgements, without considering whether prosecutions relying on those judgments can be fully reconciled with the convention. We understand that UNHCR agrees with us on this point, although we have not raised it specifically with it. We would like to know whether the Ministers have had any discussion with the UNHCR, and what advice it gave.
It appears that, since the new guidance was issued, there has been an increase in false document prosecutions and that at least one case is pending in the High Court on administrative review, concerning a CPS decision to prosecute contrary to Article 31. Unfortunately, there are no recent statistics that I know of, but for all immigration offences there was an increase from 323 prosecutions in 2000 to 643 in 2002. While only a fraction of these cases might benefit from Article 31 protection, since more attention is being given to the whole area of these offences, we consider it important to see that proper guidance, training and appropriate criminal standards are applied to this and other documentation offences.
Currently, no guidance is given to magistrates on sentencing, nor on the statutory defences applicable to these offences. We are advised by ILPA that it is not aware of any convictions under Section 31 which have resulted in a fine or other alternative to a custodial sentence or of any call for pre-sentencing reports which would normally be required for a first offender committing any other type of crime. The noble Lord, Lord Hylton, referred earlier to the likelihood that more people would be sent to prison as a result of this provision. The noble Baroness, Lady Scotland, rather dismissed his fear, but there is no question but that having the offence on the statute book will lead to some people being sent to prison, as it did under the 1999 Act.
We have been told by ILPA of a number of cases of women given prison sentences of four to six months for documentation offences under the 1999 Act. It is said that people transiting the UK en route to Canada, as in the Adimi scenario, are frequently prosecuted now. It mentioned two cases of Nigerian women, one of whom had two young children who had to be fostered during her imprisonment. After her release, it took three months to get her children back from the social services, as there was a lack of documentary evidence that she was the mother and it took that long for the DNA tests to confirm that she was. The other was a girl of 17, pregnant at the time of her arrest, who gave birth in prison. Her story was of rape, attempted murder and forced prostitution to her facilitator.
It is apparent from these two cases that vulnerable asylum seekers are being prosecuted, sentenced and given custodial sentences because they do not meet the limited interpretation of Article 31 now being applied in the 1999 Act cases, and because the public interest test for prosecutions is, in my submission, not being properly applied. When the Lord Chief Justice said in his Rose Lecture in November 2002 that prison overcrowding was,
"The Government agrees with the Lord Chief Justice that prison overcrowding is a serious problem . . . that is why it is incumbent on the judiciary to . . . reduce the number of short prison sentences which provide little opportunity for rehabilitation".
Yet here we are, encouraging the courts to clog up prisons still further, with children as well as adults, who are likely to be sent back to their countries of origin after release. That makes no sense at all to me.
The Government did undertake to produce guidance on the operation of this new offence,
"before the Bill is enacted".—[Official Report, Commons, 1/3/04; col.622.]
We do not think it is safe to rely on that promise. During the proceedings on the 1999 Act, they gave assurances that they would publish guidance on the Article 31 defence contained in Section 31 of that Act, but no guidance to the CPS has yet appeared. We are particularly concerned that the guidance as regards children should be developed in co-operation with children's NGOs. We should like an assurance on that point. We believe that only in the most exceptional circumstances should children be prosecuted either for this offence or for the documentation offences in the 1999 Act. The Law Society says, "Never". I beg to move.
One difficulty that I may not be the only person experiencing is that one is tempted to say of nearly every amendment that it goes to the heart of the purpose of the Bill. Therefore, it is with some effort that one restrains oneself from making a Second Reading speech. I want to support the amendment on that basis.
I support most of what the noble Lord, Lord Avebury, has said, but I want to say something about the Bill and what the amendment would do. It seems to me that at the heart of the difficulty that many of us have about these proposals is the fact that they manifest what I can only call "a defect of imagination". I am not of course accusing anyone, least of all the Minister, of that defect.
However, it seems to me that the arguments I have heard this afternoon, let alone the arguments one hears in more public discussion and in the media, suggest that we have lost touch with what it might be like to be in a situation of terror. Therefore it is extremely important to make absolutely clear and exceptional the criminalisation of people who come from situations that are extremely difficult for us to imagine. For example, one hears government spokespeople, and in particular the Minister, saying that we are trying to encourage people to be honest. It is very difficult for us to be fully aware of the fact that that is precisely the expression that torturers use—all they are doing is encouraging people to be honest.
The Government's intentions are, of course, wildly different from those of torturers. But the ethos generated by creating new offences must be one in which the level of fear is increased and in which people are not understood to experience levels of pressure which make it impossible for them precisely to be honest and precisely to assume that they will be treated with the best construction of their motives. I understand that the amendment—and I obviously do not speak for its mover, so I may have made a mistake—sets out the exceptionality, the caution and the clarity with which we need to approach the question of prosecuting anyone who might have been through that experience; and the need for public accountability in relation to that process.
There is the need for clarity because a generalised assumption that people are guilty of a criminal offence can only make the situation even worse for people who are genuine refugees. I suppose that at the heart of the discussion of any of these amendments is whether one thinks the problem is how to avoid sending one person back to a country where he will suffer persecution or whether it is how to avoid admitting perhaps 10 people who are not genuine. I am quite clear that the first is the primary problem that we need to address.
Therefore, I think the amendment has that much to be said for it; it would introduce—no doubt there needs to be further work on the detail—the notion of clarity and exceptionality into the possibility of prosecuting someone who is a genuine refugee.
I do not know whether the Minister is going to look at the question of regulations in the context that the amendment has been moved, and to which the right reverend Prelate has spoken, but I think that the right reverend Prelate must accept that one has to have enormous sympathy for the Government of the day. They have to separate the treatment of people who have arrived in genuine terror—and I have no reason to think that the Government do not accept that people arrive in genuine terror and therefore have to be treated in one way—and the massive so-called "scam", which is being worked by people who want to come to this country illegally. That has nothing to do with terror; they just want to improve their lot. We want them, but we want to know whom we are getting. I think that the right reverend Prelate must accept that there are two quite different problems.
I am sure we all agree with what the right reverend Prelate says about the problem—and it is an individual problem—of whether terror arises. There are difficulties in even identifying countries from which a person is bound to arrive—a matter to which we shall come. The question of regulations may or may not help those people of whom the right reverend Prelate has been speaking, but I do think we have to accept the Government's problem. It is an enormous problem. They are struggling to find solutions to it. We must assist them in that. It is a problem about two different categories of people.
I agree with virtually everything that the right reverend Prelate the Bishop of Worcester has said on these two amendments. In so doing, I apologise for somewhat prematurely having said in the previous grouping what I wanted to say about Amendment No. 27.
The whole context surely is that asylum applications have fallen by nearly half. That gives everyone a better chance to improve procedures and to make sure that they are fairer in all respects.
I thank the noble Baroness, Lady Carnegy, for her understanding. I say to the right reverend Prelate—and I say it with due humility and much gentleness—that these provisions are as far away from the tools of a torturer as one could possibly define. We are trying to introduce a system that is fair and robust and which will enable those for whom we have huge sympathy—those who come to this country to seek refuge and asylum—to be treated with humility, humanity and properly.
Amendments Nos. 12 and 27 seek to regulate the use of Clause 2 and the offences listed in Section 31 of the Immigration and Asylum Act 1999, in particular in cases where Article 31 may be relevant and other cases where vulnerable individuals may be involved. I say straightaway that I agree that those who are investigating offences under Clause 2 will need guidance on how to do so. Immigration officers already have instructions about what actions should be taken if they come across other immigration offences, such as leave gained by deception. We will produce detailed guidelines on the offences in the Bill before it is enacted.
I can assure the noble Lord and the right reverend Prelate the Bishop of Worcester that much of the detail that the noble Lord, Lord Avebury, has tabled in the new schedule will be included in those guidelines; for example, consideration of Article 31, the assessment of reasonable excuse before proceeding with an investigation or arrest or prosecution and treatment of vulnerable individuals, such as victims of trafficking. I know how keenly the noble Lord, Lord Hylton, and others have cared about those particularly vulnerable people. Although this guidance is necessary, to provide for it in statute makes for an overly cumbersome process. It is not the way we deal with other offences and, frankly, there are no special factors that make statutory guidance appropriate here.
Similarly, I agree that training for the use of this offence is necessary. The guidance should go a long way to satisfying that need. We will also be providing seminars and road shows about these offences for immigration officers, as we did for offences brought in by the Nationality, Immigration and Asylum Act 2002. It is not just knowing about these provisions, it is knowing how to operate them fairly. However, statutory provision for the training of immigration officers, police officers, prosecutors, legal representatives and the judiciary in working with children is surely not appropriate for a Bill dealing mainly with asylum. If the police and judges need training on working with children, they need it for all offences, and not just the offences in this Bill. Noble Lords will know the many situations now where we are looking at ways in which we can train professionals together, so that the holistic approach that we wish to have is better understood, better shared, and better delivered.
Other assurances that the schedule seeks to introduce are unnecessary. For example, paragraph 2(e) seeks to ensure that certain offences that the Director of Public Prosecutions may advise immigration officers about will be within the scope of Clause 6. They are already within the scope of this clause, so nothing further is needed. The regulation that no arrest or prosecution shall take place unless a person is reasonably suspected of disposing of, or destroying their document, is similarly unnecessary. The guidance will instruct immigration officers to consider whether a person has a reasonable excuse for having no document. In most cases, a person who does not have a document, for a reason other than destroying or disposing of it, will have a reasonable excuse for that, such as having had the document stolen.
There will also be rare circumstances where, even if a person has destroyed or disposed of their document, they will have a reasonable excuse. Immigration officers will thus need to consider the broader question of whether, in the circumstances, a person has a reasonable excuse for destroying or disposing of their documents, not solely whether they suspect that they have done so. All these issues are important. As for the provision of statistics about the use of the offence in Clause 2, these will be published, along with all statistics about criminal offences that are published, at least yearly by the Home Office. I certainly see no use or need to govern their publication in this Bill.
The noble Lord, Lord Avebury, raised concerns about the CPS, the police, and the Immigration Service. They do have guidelines on how to take account of Section 31 defence in the prosecution of relevant offences. We are not aware of any examples of inappropriate prosecutions where the possible relevance of Section 31 has come up. If the noble Lord has any details on that, we would be happy to hear them. We have been in discussion with the Immigration Law Practitioners' Association, among others, on the Section 31 guidelines. We will review these as necessary as we develop guidelines on Clause 2. I reassure the Committee that we are not at odds with the mischief that these amendments seek to address. We believe that guidance will be appropriate. That guidance will be forthcoming; we simply do not think that it is necessary to put it in a statutory form.
I hope that the noble Lord, Lord Avebury, and the right reverend Prelate the Bishop of Worcester will be reassured that the Government do understand the complexity, the nature and the tragedy of some of these asylum cases and those who suffer from breaches of human rights in other countries. We are determined to give them appropriate succour, and we seek honesty and frankness. We hope that these provisions will enable that, as opposed to frustrating it.
I am most grateful to the noble Baroness, Lady Carnegy, the right reverend Prelate the Bishop of Worcester and the noble Lord, Lord Hylton. I agree with the noble Baroness that this is an enormous problem. I gave some statistics earlier of the number of people arriving undocumented at ports of entry. The difference between us and the Government is in how to tackle that.
I have explained what we think the way forward is that we extend the measures that the Government have already introduced, such as the juxtaposed controls, which are still not fully enforced in relation to the Channel ports of entry, let alone to the various ports of origin from which people are arriving at Heathrow. There is the Eurodac, advance passenger information, language testing—all these measures that the Government have already introduced that we hope will reduce the number of people who could theoretically be liable to prosecution under this clause. That would be a better way forward than introducing the new offence.
That being so, in having to confront it, we must do the best we can to ensure that it is properly handled. I am afraid that it is not satisfactory to take it on trust that all the matters about which anxiety has been expressed will be dealt with in guidance, or that it will appear by the time this Bill reaches the statute book. If it appears at the eleventh hour, when noble Lords no longer have an opportunity to debate it, it is academic whether it appears before or after the Bill comes into force. We would like to have some idea of whether the matters contained in Amendment No. 27 will be fully covered. We have assurances on a few of them, but perhaps this is a matter on which I could have a discussion with the noble Baroness, to see whether she can give me some indication of the extent to which the guidance, when it does appear, will satisfy the anxieties that I and other noble Lords have expressed.
Yes, it is necessary to provide training, and yes, it is necessary to provide guidance. We are informed by the Immigration Law Practitioners' Association, that the guidance on the Section 31 offences to the CPS has not yet been published, but the noble Baroness has corrected me on that. I will have to go back to ILPA and take further advice from it, because that was said in its brief. I thought that if the Government took that long to produce guidance for the CPS on how it prosecutes under the Section 31 offences of the 1999 Act, it was not safe to rely on the assurances that we have been given by the Government that guidance is about to appear on legislation that is much more recent. Obviously, I shall have to rely on the undertaking given by the noble Baroness, and I beg leave to withdraw the amendment.
I am grateful to the noble Lords, Lord McNally and Lord Avebury, for their support. I have tabled this probing amendment in response to a concern raised by the Refugee Children's Consortium in its Second Reading briefing. I referred to it briefly at Second Reading. The consortium warmly welcomes Clause 4, as do we on these Benches. The clause introduces a new offence of trafficking for exploitation. The Government amended the clause in another place to seek to address the consortium's concerns that the definition of exploitation did not provide sufficient protection for children, because it dealt only with the use of violence or deception. Not all children who are exploited are deceived. They may not understand what is being done to them.
The Government's new paragraph 4(4)(d), which has not yet been debated, improves the clause, which still appears to allow some people who traffic children and families to escape prosecution. I am sure that no one would wish that. It is contrary to the consortium's wishes, certainly to my wishes, and—the consortium believes—the wishes of the Government.
The references to "request or inducement" in subsection (4)(d), and the attempt to produce an exhaustive list of positions of vulnerability, still appear to the consortium not to cover all forms of exploitation that involve an abuse of power or of a position of vulnerability. That is the wording adopted in the United Nations Palermo Protocol on trafficking.
My amendment would make the clause reflect the international definition of trafficking as contained in the Palermo Protocol, so that all recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation should be penalised as trafficking whatever the particular methods used. I hope that the Minister will be able to reassure me that further amendments may be brought forward by the Government to cover this matter at a later stage. I beg to move.
My Lords, it was only a couple of weeks ago that we dealt with the need for greater support for the victims of trafficking, following a Question raised by the noble Lord, Lord Hylton. The subject has come up a number of times since the debates on the previous Bill in 2002.
It is generally acknowledged that trafficking in human beings is an evil that is growing. We also warmly welcome Clause 4, which makes it an offence for a person to arrange travel to, or within, the UK for another, intending to exploit that other person or believing that someone else is likely to exploit her.
The definition of exploitation is set out in subsection (4), and it was improved on Report in another place—as the noble Baroness has explained—by adding the case involving a person who,
"is mentally or physically ill or disabled . . . young, or . . . has a family relationship", and who has complied with the request to do something, but who would have been likely to refuse if she had not been such a person.
The clause now covers some, but not all, of the cases of exploitation dealt with in the Palermo Protocol, as the noble Baroness, Lady Anelay, has explained. That came into force in December 2003. No doubt we are signatories. Can the noble Baroness confirm that we are signed up to both the Palermo Protocol and its parent convention?
If the wording of Clause 4 is compared with the Palermo Protocol, there is a lot missing. Article 3 of the Palermo Protocol defines "trafficking in persons" to include the,
"recruitment, transportation, transfer, harbouring or receipt of persons", by means that include,
"the abuse of power or of a position or vulnerability", as in the noble Baroness's amendment.
We ought not to narrow the circumstances in which power may be abused, or the victim may be vulnerable, to the particular situations which were enumerated in the clause as amended. As the noble Baroness remarked, Clause 4(4)(d) was never discussed in another place, so if we agree to the amendment it will give the opportunity for honourable Members in another place to have a discussion that they missed because of shortage of time.
Relationships between human beings are infinitely variable, and we ought not to attempt to define the cases where a person has power over his victim, or the victim is vulnerable. The obvious example—where the trafficker has some hold over the family in the country of origin—has already been mentioned in previous debates.
I was struck by the example given in a paper provided by the Refugee Children's Consortium of the case of Victoria Climbie, who, they said, could be seen as a victim of trafficking for benefits. As the clause is drafted, a victim is exploited, "if (and only if)", the conditions in paragraphs (a) to (d) are satisfied.
A person who brings a child into this country for the purposes of gain but who has not requested or induced the child to do anything has not committed an offence under this clause, no matter how atrociously he may treat the child.
The Minister may say that if the authorities had known how that child was being treated, her guardians would have been prosecuted for other offences. It is possible to imagine situations where the conduct of a guardian fell short of physical ill treatment, but would constitute exploitation in the ordinary meaning of the word. For instance, a child might be made to do an excessive amount of domestic work, and the guardian might say that it was normal in her community. I hope that the noble Baroness will agree to this amendment.
My Lords, I am glad that this is only a probing amendment, because it seems to me extremely widely drawn.
The noble Baroness, Lady Anelay, is understandably concerned to protect children. But as I interpret the clause—although I am open to correction—it is not confined to children but also includes adults of all ages.
Take, for example, the phrase:
"he is subjected to an abuse of power".
"Abuse of power" is not qualified in any way. There can be extremely minor abuses of power, such as when police stop a motorist on the spurious grounds that his or her car has mud on the number plate. The motorist has therefore committed a moving traffic offence, and that gives the police a legitimate excuse to breathalyse the driver. There can also be gross abuses of power, and there is no need to give examples of those.
Similarly, consider the phrase "a position of vulnerability". However confident, strong and self-assured individuals may be, we can all in certain circumstances be in a position of vulnerability. As it stands, the amendment is far too vague and widely drawn. But it is a probing amendment and perhaps it can be tightened up next time round.
The Refugee Children's Consortium has a case in this regard. It is anxious that all sorts of exploitation of children should be covered. Subsection (4)(d) defines exploitation as follows: a person is exploited if,
"he is requested or induced to undertake any activity, having been chosen as the subject of the request or inducement on the grounds that"— as is stated in subsection (4)(d)(ii)—
"a person without the . . . youth . . . would be likely to refuse the request or resist the inducement".
The consortium says that some children—many children, probably—will not realise that they are requested or induced to do anything. As my noble friend said, they will not understand what is happening to them. That is why they want this addition to the clause. I do not think that it is too general in that context. It is a good amendment and the Government should contemplate accepting it.
I was a child in the years of the black market and rationing after the war. Experience shows that people are most likely to be abused in these ways if the system is too tight. If there is not a transparency, fairness and openness about it—given the disordered world that we live in and some of the countries from which these people—it is easy for systems to be set up and people to be abused. We then need clauses of this sort to put things into law that all of us find to be wholly and totally unacceptable. But if we want to stop the practice, we have to ask whether we making the system so tight that we are constantly subjecting people to such possibilities.
My Lords, the right reverend Prelate the Bishop of Chelmsford asks if we are making it too tight; clearly, we do not believe that we are. But this matter stays in our minds when trying to decide whether the rules that we make are proportionate.
I understand that the noble Baroness's amendment is a probing one. If it were not, I would have to agree with the noble Lord, Lord Monson, because subsection (4)(d) has been drafted carefully to ensure that only cases where there is true exploitation are caught by the provision. The amendment of the noble Baroness is drawn much more widely and would, we believe, include those other than children who are described as vulnerable. However, I understood that the noble Baroness had drafted the amendment to allow us to have a discussion, so I have no intention of going through it and identifying why we think it does not match.
Amendment No. 14 would amend Clause 4 to provide that a person is exploited if he is subjected to an abuse of power or is in a position of vulnerability. I understand the mischief to which that is directed. I say to the noble Baroness, I hope by way of reassurance, that we think that mischief is caught by subsection (4)(d). In saying that, let me make it clear that the Government are absolutely committed to tackling human trafficking in all its forms. The noble Baroness is absolutely right to say that we are at one in that purpose.
Noble Lords will be aware of the offence of trafficking for prostitution in Section 145 of the Nationality, Immigration and Asylum Act 2002 and the more comprehensive offences covering trafficking for sexual exploitation included in the Sexual Offences Act 2003. The new offences of trafficking people for exploitation in Clause 4 adds to these other offences to provide a comprehensive legislative response to the crime of human trafficking. We are therefore anxious to ensure that the offences are drafted in such a way as to cover all behaviour that should properly be included. One such situation is clearly where the trafficker takes advantage of a person's vulnerability to get that person to do something which a person without that vulnerability would not do. In such cases, it may not be necessary for the trafficker to employ force, threats or deception to induce the victim to do something due to the victim's vulnerability.
This is the sort of scenario at which the amendment is aimed, and we agree that the offences should cover this situation. However, we do not consider that an amendment is necessary to achieve this. We moved an amendment on Report in the other place to provide protection for vulnerable people, in Clause 4(4)(d), to which the noble Baroness, Lady Carnegy, directed our attention. That now provides that a person is exploited if he is requested or induced to do something, having been chosen on the grounds that he is ill, disabled, young or related to a person, in circumstances where a person without the illness, disability, youth or family relationship would be likely to refuse or resist. We consider that this gives the appropriate level of protection to vulnerable people in the way that the noble Baroness seeks.
I hope that this explanation of the effect of the amendment already made to Clause 4 is sufficient to reassure noble Lords that the offence will cover those who prey on the vulnerable, and that the amendment can be withdrawn. We do not believe that they would have to do anything more than that which is set out in subsection (4)(d). We think that that provision catches the very people whom the noble Baroness would want to be caught by the provision relating to vulnerability.
I understand that. Let me make it clear that a child will not have to know that they are being requested or induced to do something for an offence to be committed. As long as there is an inducement or request, that is sufficient. The whole point of the vulnerability provision is that children and those who are ill can be manipulated and induced without being conscious that that is being done to them. So it is not their understanding but whether there is an inducement or a request that is sufficient which would have to be proved. We think that a child in that situation would be capable of getting the protection from subsection (4)(d) and that there is not, therefore, a lacuna, which needs to be addressed or filled by this amendment.
I think I am right in saying that the Refugee Children's Consortium drew attention to the position of very small children with whom there may not be any verbal or written communication. How can a request or inducement be made to such a child? Would the exploitation of such a child be a criminal offence, notwithstanding the fact that there was no direct inducement? Will the Minister comment on the possibility that children might be trafficked for benefits and how that would be caught by the wording in the Bill?
Will the Minister also confirm, just for the record, that we are signatories of the Palermo Protocol? If that is the case, does she think that we have fully complied with its requirements? If we are signatories, it obliges us to take action against,
"the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation".
That seems a good deal broader that what is in the Bill. But if the noble Baroness assures me that the Bill's wording complies with the obligations under the Palermo Protocol, I shall be happy.
We are signatories, and I am advised that this provision is compliant with that protocol. Obviously if, on further scrutiny, we discover that that is not the case, I will write to noble Lords. However, I am advised that that is the position.
On "inducement"—one could almost say, "caused to undertake"—there are a number of physical things one could do to ensure that a child complies with what one wants them to do. It would be perfectly capable of bringing that behaviour within, if not a verbal request, an inducement to undertake any activities. By the situation in which one places children, one can make them do all sorts of things which are outwith their control. We believe that these activities would and should be caught. I am very conscious of the Pepper v Hart basis on which I say that.
The point about benefits is that the child does not have to do anything. The parent or guardian obtains pecuniary advantage from social security from having the child in the household without the child's knowledge or consent.
I do not know what words I can use to make it clearer that if those facts are established, they will, in many cases, speak for themselves regarding whether they comply with the provisions of subsection (4)(d). If we thought there was a lacuna, we would want it plugged. The draftsmen and others believe that the mischief which noble Lords have highlighted is covered.
I think those are the most reassuring words of the whole debate. That constructive approach to the amendment and to this part of the clause will be at the forefront of our minds between now and Report.
I was grateful to the noble Lord, Lord Avebury, for teasing out the fact that we are a signatory to the Palermo Protocol. The noble Baroness's response was very important in that this provision is seen to comply with it.
The noble Lord, Lord Monson, teased me somewhat over the drafting of the amendment. In saying that it is in response to a request from the Refugee Children's Consortium, I should make it clear that the wording was my own and is not its fault whatever. It was the only way I could find of adding two subsections without damaging a definition of exploitation that the Minister claimed to be comprehensive in any case. She assures me that I should not be so concerned. I certainly would not have tested the opinion of the Committee on such a broadly drafted amendment.
I feel very much at one with the right reverend Prelate the Bishop of Chelmsford, who said that one should not draw the definition too tightly. As he was speaking, I looked again at the briefing of the Refugee Children's Consortium. It pointed out:
"The only people who have anything to fear from a broad definition are those who trade in other human beings".
I shall certainly bear that in mind.
I thank my noble friend Lady Carnegy for the way in which she persuaded the Minister to define more clearly what is covered by Clause 4(4)(d). I shall now go back to the Refugee Children's Consortium and consider with it the responses that we have heard today. I shall bear in the mind the Minister's belief that Clause 4(4)(d) meets my concerns. I shall also bear in mind her final commitment that absolutely no lacuna is intended. I beg leave to withdraw the amendment.
In moving Amendment No. 15, I shall speak also to Amendment No. 16. We now reach the first of the new clauses that were added by the Government on Report in another place. They were not debated there, nor were they explained or introduced by the Ministers. As ever, that was due to lack of time rather than wilfulness.
Although I note the Government's letter about the amendments to my honourable friend Mrs Roe—who was the chairman at that stage—was placed in the Library in another place, it does not mean that the amendments have been discussed. My amendments are probing amendments to enable the Government to clarify the outline information that they have given to the House in the Explanatory Notes. Those notes state that Clause 6 amends Section 3(2) of the Prosecution of Offences Act 1985 to allow the Director of Public Prosecutions to,
"give immigration officers advice on criminal offences for which the latter have a power of arrest prior to proceedings being instituted in respect of those offences".
That sounds like good common sense and is very welcome. However, I have several questions for the Minister. How extensive could the DPP advice be? Do the Government have to accept it? If they do not and something goes wrong, what happens next? Will the advice be given on a case-by-case basis or will it be generic training for the whole range of issues that has to be addressed by the officers? Will there be extra training, for example, for immigration officers on criminal offences? What training do they receive now for those? That question harks back to a point raised earlier by the noble Lord, Lord Clinton-Davis. Finally, does the last line of the Explanatory Notes mean that the DPP's advice is given in respect of a case on which an arrest is about to be made, or will there be general advice from time to time? I beg to move.
I am not sure that the DPP is best able, or resourced, to offer training to immigration officers on all matters relating to the criminal offences over which they have a power of arrest. Immigration officers will undoubtedly need training in the exercise of their enormously increased powers of arrest under Clause 9, when they form a reasonable suspicion that a person has committed any one of the offences listed. The person may or may not be of direct interest to the immigration officer for having committed any offence under the immigration laws themselves; for instance, she may be a person who has bigamously married an immigrant, whether with a view to conferring on him a right to remain or otherwise. The knowledge of other areas of the law that will be required of immigration officers will be hugely extended and, no doubt, their training will be expanded to cover those areas.
I am anxious about one point as regards which I would be grateful for the advice of the noble Baroness, Lady Carnegy. Some of the offences listed in Clause 9, for which immigration officers are to have a power of arrest, are offences under the law of Scotland or Northern Ireland; for example, bigamy under the common law of Scotland. Would it not be appropriate for the Lord Advocate and the Director of Public Prosecutions for Northern Ireland to give any advice that might be needed in relation to those offences? Have the drafters missed that point or am I making an elementary mistake of some kind? Is it the Government's intention to arrange training of their own officers in the exercise of their new powers of arrest? Will that training be organised separately for immigration officers who may be located in Scotland and Northern Ireland?
The noble Lord has shot my flocks. The Director of Public Prosecutions is not the person to advise immigration officers about Scots law. As the noble Lord said, a number of offences listed in the Bill would be offences under Scots law, so the Lord Advocate should probably be included. Has the Minister thought of that or not? I expect that the same applies for Northern Ireland.
I hope that I can answer that question shortly. I may not have thought of it, but I am jolly sure that someone else will have. I share the belief of the noble Baroness, Lady Anelay, that it is essential that those charged with arresting suspects and pursuing prosecutions are properly trained and provided with the necessary skills to operate effectively.
Only immigration officers who have undertaken a comprehensive training course, which includes training on the provisions of the PACE codes of practice, are allowed to exercise the powers of arrest contained in the Immigration Act 1971. Apropos my conversation with the noble Lord, Lord Avebury, on Clause 2, if a person is under consideration for a charge under that clause, he would be interviewed in accordance with PACE, so legal representation would be available for free in those circumstances. This is an opportunity for me to clarify that to the noble Lord. The noble Lord had an anxiety that does not need to remain.
In addition, immigration officers who are engaged in criminal investigation teams undertake a three-week training course in investigative skills. That course, which is provided by the IND College, includes an element on preparing cases and working with the Crown Prosecution Service and it teaches staff how to proceed with a case from the arrest to the appearance in court.
We are satisfied that that training is adequate and gives staff the necessary skills to mount successful prosecutions. In the circumstances, to place a legislative requirement on the DPP to provide training would be an unnecessary, additional burden. Therefore, I would urge the noble Baroness not to pursue that matter.
Nor are we persuaded that the provision of advice by the DPP should be restricted to those offences for which immigration officers have a power of arrest. It is a fact that many of those apprehended by the immigration crime teams have committed a number of crimes, including many for which an immigration officer has no power of arrest.
If the amendment were to be accepted, it would require the immigration officer either to submit cases on which the DPP has been able to advise only in part or to seek the assistance of another agency, such as the police. Neither of those options would aid good administration. In any event, Clause 6 as drafted obliges the Director of Public Prosecutions to give advice only to such an extent as he considers appropriate and it would be open to him to refuse to give advice were he to consider it inappropriate. For that reason too, I invite the noble Baroness not to pursue the matter. Advice will be given on a case-by-case basis. Advice is not binding, but given in good faith, and refusing it would have to be for a good reason.
As to training, I have already said that there is a three-week arrest course and then a three-week investigative skills course. Scotland and Northern Ireland do not come within the training at present. In Scotland, the training would be a devolved matter. I hope that I have answered all the questions raised in the debate.
I am sorry but the noble Baroness has not answered the question about the advice. We did say that advice on the Scottish offences should be given by the Lord Advocate and on the Northern Ireland offences by the Director of Public Prosecutions for Northern Ireland. Is it appropriate that the DPP should give advice on Scottish and Northern Ireland offences?
We are not proposing that that should happen. I have already said that the training and advice that is at present provided is provided by the Scottish authorities in Scotland and by Northern Ireland separately. The issue of training and advice, I believe, comes under devolved issues. We are not proposing—as far as I am aware—to extend that training or advice either to our Northern Ireland or to our Scottish counterparts.
I do not think the noble Baroness has quite answered the question. The Bill finds it necessary to say that training for and advice to immigration officers on matters relating to this Bill have to be provided. That is done under the Prosecution of Offences Act 1985, which is not a piece of Scots legislation—evidently. Surely an equivalent provision relating to Scotland should be inserted. Just because somebody is saying that training of immigration officers goes on already, that does not specify in the way this part of the Bill does what should happen in relation to this Bill. Will the noble Baroness consider that point to make quite sure that the whole thing is all right? I am sure that the Scottish Executive would want Scotland to have the same protection in this way as England.
I shall ensure that this specific issue is considered. By the time this matter comes back on Report, I shall endeavour to have a definitive answer. In the interim, if I have an answer more quickly, I undertake to write to both the noble Lord and the noble Baroness. I shall also ensure that a copy is made available to all noble Lords who have taken part in the Committee stage debate and I shall place a copy in the Library.
The noble Baroness's offer in that respect has made it possible for me now to be very brief. It is important that we try to ensure that all Scottish matters in particular, but also Northern Ireland matters—before I get into trouble with Northern Ireland—are covered too. We do not want there to be a lacuna.
These were very much probing amendments. I agree entirely with what the noble Lord, Lord Avebury, said about the DPP not having the resources to carry out the training. Certainly, I am grateful for the information the noble Baroness has given about the training that is undertaken. I beg leave to withdraw the amendment.
moved Amendment No. 17:
After Clause 6, insert the following new clause—
:TITLE3:"Treatment of trafficked passengers
TREATMENT OF TRAFFICKED PASSENGERS
(1) It shall be the duty of the Secretary of State to give passengers trafficked into the United Kingdom an adequate period of time to decide their future plans, in particular, to allow such persons to consider whether—
(a) to leave the United Kingdom;
(b) to try legally to remain in the United Kingdom;
(c) to participate in any prosecution under section 4 or for a related offence.
(2) The Secretary of State may grant residence or permissions to work to passengers trafficked into the United Kingdom who cooperate with the authorities, or give evidence in proceedings, in relation to a prosecution under section 4 or for a related offence."
The purpose of this amendment is, first, to provide for a reflection period and, secondly, to allow the Secretary of State to benefit or reward trafficked people of any age who co-operate with the authorities here or give evidence against traffickers and their associates. These issues have previously been debated in your Lordships' House; for example, in a debate initiated by my noble friend Lord Alton and on the sexual offences legislation of 2003. At Second Reading the noble Baroness said that every application from a victim of trafficking will be treated on its individual merits. That sounds good, but I suggest it is not itself sufficient. I hope to persuade the noble Baroness to go further tonight.
We have to imagine the state in which those trafficked to this country find themselves once they are free. They will have been transported for hundreds—if not thousands—of miles. They have been the victims of force, coercion, fraud, deception, abuse of power or vulnerability. They seldom know anything about British law, justice or immigration rules. They may not even speak English. They are therefore liable to be completely disoriented. That will often be particularly true of those who have suffered rape or prostitution.
That is why they need a period of calm reflection, during which the situation here can be patiently explained. They need time to decide whether or not to return to their home country. There may be serious risks in so doing—both to themselves and to their families—because traffickers are part, usually, of organised crime and belong to mafias with very long arms.
Whether or not trafficked persons decide to return home in the short-term or later, they also need time to decide about giving evidence against their traffickers. This again is by no means risk-free, however good the witness protection may be. No one should be pressured into giving evidence if that is likely to result in serious harm to themselves or to their families. Some may well decide to give information or intelligence about trafficking operations without also appearing in court. The decisions I have mentioned are ones that can be taken only by the victim of trafficking. Both time and quiet thought are absolutely necessary, all the more so if the person is under 18.
I come now to the wording of my new clause and find myself quite surprised at my own moderation. In subsection (1), I have made it a duty on the Secretary of State to provide an adequate period of time for the three crucial decisions to be taken. This provides a high degree of flexibility, according to the nature of the individual case. It would be possible to specify various lengths of period—up to six months—from the point at which the victim becomes free. There are precedents from other states for periods of various length. I have avoided over-prescription, provided that the time allowed is adequate.
As to subsection (2), I have not made it a duty to grant residence or permission to work. Instead, it is a permissive power which the Secretary of State has discretion to use or not to use. On both subsections, I could have taken a stronger line, but deliberately chose not to do so. I hope that the Minister appreciates my approach.
I have also discussed my clause with Home Office officials, who surmised that the Government might take the line that the new clause was unnecessary in a Bill that sets out to create new offences. They also indicated that my clause might open a new loophole for abuse. I should like to deal with both objections.
First, immigration and police officers need to know clearly, beyond any possible doubt, what they should do with a person who appears, prima facie, to have suffered trafficking. That is why it is so important to have a duty inscribed in the Bill. Secondly, the Secretary of State may already have a whole armoury of discretionary powers that he can use to reward people who have been co-operative or who bravely come forward to give evidence in criminal cases. His subordinate officers, however, may not always know that, and they would be helped by an obvious reference in the Bill itself. I am sure that the Committee will appreciate that the power to help people who co-operate or give evidence will quite often be the crucial factor for someone faced with a very difficult decision. This power should be known throughout the whole system.
As to the loophole theory, I suggest that in practice the number of cases will not be very large. Before the question of how to treat trafficked persons can arise, they must first have escaped or been rescued, perhaps by police or customs officers. Other states provide reflection periods and, no doubt, also have discretionary powers, but that does not seem to have attracted huge numbers of pseudo-victims to their shores.
In my effort to persuade the Minister to say much more than she did at the last stage, I should explain that my amendment has a certain probing quality to it. Can the Minister give me cast-iron assurances, for instance, that every official likely to meet victims of trafficking, will be given clear instructions on what to do? Can she say that all officials in a position to exercise discretion on behalf of the Secretary of State will know exactly how far they can go in eliciting co-operation and criminal evidence? Those issues of ways and means are of great importance because, in the nature of things, not every circular receives the most careful reading and, no doubt, much guidance goes straight into the waste-paper basket. Even if top officials are conscientious, does the correct message always get through to the case worker?
There is a further reason why the Minister should look favourably on my amendment—a reason she may not have known on
The Government should therefore be warned of the kind of directive that will in due course emerge. Surely it would be wise to put in place now as much victim protection as possible, in advance of the directive, rather than just wait and do little for the benefit of victims. Why not do it this year instead of being obliged to comply next year, or soon after? I therefore look forward to the Government's reply. I beg to move.
I congratulate the noble Lord, Lord Hylton, who has raised this issue on a number of occasions—most recently on
The noble Lord asked about the protection of victims, and the Minister replied by referring him to the White Paper, which was published more than four years ago. We have moved on a bit since then; certainly, the Minister confirmed that when she said that we had signed up to the Palermo protocol, which was mentioned under another amendment. That imposes certain obligations on us, which may have been spelt out in more detail by the Council directive mentioned by the noble Lord, Lord Hylton. The protocol requires that:
"Each State Party shall consider implementing measures to provide for the physical, psychological and social recovery of victims of trafficking in persons, including, in appropriate cases, in cooperation with non-governmental organizations, other relevant organizations and other elements of civil society, and, in particular, the provision of:
(a) Appropriate housing;
(b) Counselling and information, in particular as regards their legal rights, in a language that the victims of trafficking in persons can understand;
(c) Medical, psychological and material assistance; and
(d) Employment, educational and training opportunities . . .
Each State Party shall take into account, in applying the provisions of this article, the age, gender and special needs of victims of trafficking in persons, in particular the special needs of children, including appropriate housing, education and care".
The Minister may disagree with me if she believes that I am wrong, but it must follow from that wording that, if these benefits are to be provided to the victims of trafficking, they must be allowed to remain in the United Kingdom for an appropriate period—especially for the time that it takes them to recover physically, psychologically and socially. In any case, Article 7 of the protocol requires us to consider adopting legislative or other appropriate measures that permit the victims of trafficking in persons to remain in the territory temporarily or permanently in appropriate cases. Clearly, one such case, although certainly not the only one, ought to be when the victim is prepared to assist the authorities by providing information that may lead to the trafficker's arrest or giving evidence at his trial.
If the Minister does not like the wording proposed by the noble Lord, Lord Hylton, are the Government undertaking any formal consideration of the legislative measures that may be required? That is the very least that they can do under the protocol. If they complied with the spirit of the protocol, they would also want to enter into consultations with the appropriate non-governmental organisations on the nature of the legislation required.
I support the amendment and hope that, in replying to the debate, the Government will say what steps they are taking to comply with the protocol as it affects the victims of traffic in general.
I speak to this amendment in support of my noble friend Lord Hylton. I speak having dealt with these matters in the city of Liverpool and on Merseyside.
Liverpool, like Croydon, has particular experience of the needs of asylum seekers. The Churches and voluntary organisations such as Support for Asylum Seekers and Asylum Link Merseyside are working strenuously to care for asylum seekers on a day-to-day basis, helping those made destitute through our present system. We have formed views based on hundreds of cases of hardship. The amendment, as the Committee is fully aware, is not a consolation to traffickers, who need to be penalised severely, but an acknowledgement that asylum seekers when fleeing terror will, like any of us should we find ourselves drowning, reach for a life raft even when it is manned by a pirate.
The Government are aware that the Bill sends out signals. It is those signals that I am particularly aware of, and why I am speaking to the amendment. How we treat asylum seekers and especially the victims of traffickers, particularly those from Iraq, sends out contradictory messages. We went to war out of concern for the Iraqi people and now we are treating some asylum seekers from that country in an inhumane way. Some of them may end up as future leaders in their home country. Their experience of life in Britain is already undermining the reconstruction process in Iraq, for their family members left behind in that country know full well what is happening here and the harsh regime under which some of their family members live. Britain is under the spotlight on the international stage and we must get it right for long-term stability internationally.
Graffiti found on the wall of a tower block in Everton used for housing hundreds of asylum seekers says:
"I came to this country to live, but now I just want to die".
We need to ensure a fair and humane system for dealing with the victims of traffickers so that we can set a good example to countries that are under reconstruction, an example where justice is well tempered with mercy.
I, too, support my noble friend's amendment, which raises the important issue of protection. It proposes a period of reflection and the possibility of co-operation in prosecutions. I declare an interest as a council member of Anti-Slavery International. I have also spoken to ECPAT UK and the Eaves Poppy Project. The noble Baroness may remember that I expressed surprise at Second Reading that the Bill did not contain more explicit references to protection. I argued that prevention and protection often go together and that more legislative attention could be given to the victims of trafficking, as has been said, in the light of experience in other countries. There is no need to wait for the European Union. My noble friend is right to press his too modest amendment.
I shall provide an example. The Poppy Project was set up to provide accommodation and support to women trafficked into prostitution. The charity is now finding, however, that more and more cases fall outside this fairly narrow definition. For example, women who are trafficked into domestic labour and suffer appalling violence and abuse at the hands of one person are not eligible for the refuges under the present rules. One woman who actually escaped from a private address after being raped and abused on a regular basis could not get support because she was not strictly working in prostitution. So the definition needs to be broadened.
I also briefly remind noble Lords of the problem of re-trafficking which is the subject of a recent Anti-Slavery International report. For example, women who are returned to a safe house in Albania, even under a three-month resettlement scheme, remain vulnerable to traffickers if for various reasons they cannot live with their own families, as is often the case. They need to be given skills or retraining of some kind which will give them independence, perhaps under a reciprocal arrangement between Albania, the United Kingdom and a country such as Canada.
I mention those ideas only in summary, but it is another area in which the Home Office should be interested because it will prevent re-trafficking. At this stage the noble Baroness will recognise that we are not tabling more amendments. We simply wish to reinforce the concern expressed and seek assurance that the Government will see the link with prevention and find statutory ways of extending the scope of its present support for safe houses and other forms of protection to trafficked persons, as already outlined by the noble Lord, Lord Avebury.
I support the amendment. On a number of occasions, my colleagues and I on European Union Sub-Committee F have looked at the issue of the trafficking of people. There is no doubt that it is a horrendous crime. The vulnerable and frightened people who are brought into this country undoubtedly suffer the traumas of their ordeals even when they have been lucky enough to be freed from their traffickers. Unfortunately, trafficking is increasing throughout the world. When I saw this amendment I recognised that people who are trafficked into this country desperately need support and help. The amendment brings forward positive proposals to help and it is worthy of consideration.
I, too, speak in favour of the amendment. Over the past few years many have taken part in debates on trafficking. Time has perhaps dulled our sensitivities. The word "trafficking" imports the incapacity of the trafficked to have control over their lives. In the title to Clause 4 the Bill speaks of trafficking for exploitation; in other words, exploiting the bodies of human beings for the pleasure or profit of others. I find it difficult to conceive of a much more despicable offence than that.
If our own nationals were the victims of trafficking we would consider a sentence of 14 years to be the appropriate maximum. We would surely have in place a system of care and support in the short term, once such people have been taken into protection, and a vision about their care in the longer term. Why should a child from another country, trafficked for exploitation, be regarded as any less worthy of such care?
I appreciate that the terms of the amendment may benefit from revision; I appreciate that what I have spoken of involves other ministries apart from the Home Office; but if the Government want to make an impact upon public opinion about the gravity with which they treat this offence, they should match it with the care and merciful consideration that they show to other victims of the offence.
I am grateful to the noble Lord, Lord Hylton, for tabling the amendment. It is important that we consider the situation of a person who is trafficked who may also be the victim of that self-same crime of trafficking. The words of the noble Lord, Lord Brennan, homed in on the difficulty related to the drafting of the amendment. It refers to trafficking without tying it down to the offence of trafficking in Clause 4. I accept that some people who are trafficked are content with that—they have not been trafficked for exploitation. I know full well that the noble Lord, Lord Hylton, is concentrating his mind and ours on the circumstances in which someone is exploited. The reason why I have not supported the amendment by adding my name—even if there were room—is that I do not believe that it covers all the circumstances that I suspect, as it happened quite rightly, that the noble Lord, Lord Hylton, wanted to address.
One difficulty is that we do not know who are the trafficked people. We do not know who is in this country illegally. Before all the chaos of the past two weeks—I almost managed to avoid referring to it—the Home Secretary David Blunkett, on several occasions on the Floor of the House and to the media, has said that he does not know how many people are here illegally. Therefore, we are trying to assist a group of the population who are unknown to us. That is a severe problem for them because even if we can offer them the assistance that they need, we do not know how to get that help to them.
Another difficulty that I have with the amendment is that the noble Lord, Lord Hylton, said that the amendment is modest—I cannot remember his exact words. It refers to an "adequate period of time". I have great difficulty with that. The noble Lord seeks to put a duty on the Secretary of State to allow adequate time. "Adequate" can mean anything to anyone. Although I accept that the noble Lord was trying to be modest, I believe that he was being a little immodest in the drafting of the amendment.
It is important that the Minister responds in the way that she is invited to by the noble Lord, Lord Hylton, and puts on the record the steps that the Government will take now and in the future to give those who are trafficked for exploitation a chance to consider their position. That can happen only when their presence is detected. Sadly, it may go undetected until there is a tragedy as there was with the cockle pickers in the north-west, and nobody wishes anything of that nature to happen again.
When their presence is detected, in what circumstances are such persons able to remain in the United Kingdom? What about those who co-operate with the authorities regarding the prosecution of the traffickers? What is their quid pro quo both now and in the future? The noble Lord, Lord Hylton, referred to the problems that can happen on witness protection programmes. He was absolutely right to do so. A short while ago, the Minister repeated a Statement here that was read in another place by the Home Secretary about the creation of the Serious Organised Crime Agency. As part of that Statement, the Government referred to the fact that they wanted to put together a co-ordinated national protection strategy for witnesses. That is something that we would all welcome. But it is right that we need to know what happens now and in the future to protect people who are trafficked illegally for exploitation, are discovered and then seek to do their best to bring those evil people—the traffickers—to book.
It is almost impossible to do anything to a trafficker without the evidence given by those who are trafficked. The noble Baroness, Lady Anelay, may be right that there are those who are voluntarily trafficked. But all that we can concern ourselves with as makers of secular law is giving opportunities to reach freedom for those who are involuntarily trafficked. That means giving them the courage to come forward, give evidence and tell their story.
In a number of very poor places—some in eastern Europe, some in Africa, some in other parts of the world—trafficking is often done, especially in the case of children, with the consent of the family, because it is the only way the family can get enough to eat. That obviously should not be the case, but this is neither the time nor the place to discuss the practices of the World Trade Organisation and how they ought to change.
What will particularly concern those trafficked is that they should not be sent home, sent back to the village which has sent them away to make money that the village has then not made or has made under false pretences. That can put those trafficked in grave danger. The reluctance of those trafficked to be sent home is the traffickers' real weapon of power. The only thing that can break that power is an absolutely clear declaration in British law of indemnity; that those who give evidence as the result of which a trafficker is convicted will not be sent home to their own country. They will be allowed to remain here, in safety, and continue to live a lawful life in ways that they themselves choose.
That is the only way that freedom can be given back. Without that, however many times you punish the trafficker, however many years you sentence him to, it will be just the occasional one in a million. At that level, punishment has to be awfully severe to be an effective deterrent. So you must make the trafficked safe, or nothing will come right.
I thank the noble Lord, Lord Hylton, for the amendment. He can rest assured that the Government are determined to do all that they can to bring a halt to the abhorrent practice of trafficking people.
I will take up one of the comments made by the noble Earl, Lord Russell. The noble Earl said that we would have to make the punishment quite severe in order to make the traffickers take any notice, in effect, of what we do. It is probably right that I indicate now that the Government have said that we are considering increasing the penalty for those employing illegal workers to send out a stronger message that such behaviour is both illegal and unacceptable. We propose to table an amendment on Report to do that. I will write to noble Lords with the full details of that amendment as soon as possible. I say to the noble Earl that we understand what is said about punishment; that is something which we will certainly seek to address.
What the noble Lord, Lord Hylton, said about protection was equally important, and it found its echo in the words of the right reverend Prelate the Bishop of Liverpool, the noble Earl, Lord Sandwich, and my noble friends Lady Gibson and Lord Brennan. But the noble Baroness, Lady Anelay, was right to highlight the difficulty with the amendment. It refers to "trafficking" and not "trafficking for exploitation", which is what the noble Lords in this debate addressed their remarks to.
The Government clearly set out their strategy for tackling the issue of trafficking in human beings in the White Paper Secure Borders, Safe Haven. We adopted a four-pronged approach founded on enforcement, prevention, protection for victims and international co-operation to combat human trafficking. The noble Lord, Lord Hylton, was right to say that those four things have to go together if we are to make an impact on this dreadful crime.
Since the White Paper was published in 2002, much has been achieved. We introduced trafficking offences in the Nationality, Immigration and Asylum Act 2002 and the Sexual Offences Act 2003; further offences are proposed in the Bill. In March 2000, a multi-agency government task force, Reflex, about which we have previously spoken, chaired by the National Crime Squad, was set up to deal with organised immigration crime, including trafficking. We have embarked on a number of projects overseas—through either the FCO or DfID, or through other agencies—that have sought to tackle trafficking at source. That very much deals with the prevention angle.
An essential part of the strategy—as the Committee will know, and the noble Lord, Lord Hylton, highlighted—is protection for the victims of trafficking. The noble Lord will be well aware that since 2002 the Home Office has been working in partnership with the voluntary sector to put in place provision for victims who have been trafficked for the purposes of sexual exploitation. In March of last year, a Home Office-funded pilot project was launched which provided safe accommodation and support for female victims who have been trafficked into prostitution, provided the victims are willing to come forward to, and actively assist, the authorities. I was delighted that the noble Earl, Lord Sandwich, made reference to that project. The funding has been agreed for the Poppy project throughout the financial year 2004–05. We will use the period up to April 2005 to consider in detail the evaluation evidence and to take decisions on the type and extent of support needed in the future. But, to respond to the noble Lord's question, we have kept the criteria for entry under review. Changes have been made and may be made in the future to address some of the issues that have arisen; we are evaluating the project.
I am grateful to the noble Baroness for giving way. She mentioned—if I heard her right—female victims of prostitution. Would the Government consider extending that protection equally to male victims of prostitution? They both exist, and they are both entitled to liberty.
Prostitution in whichever form is a matter of acute concern to the Government. We are currently reviewing our whole strategy in relation to prostitution generally. I can certainly say to the noble Earl that the prostitution of male and female victims is a matter of concern to the Government. I cannot tell the Committee precisely what if any projects relate specifically to male prostitution. If I have that information, I am more than happy to write to the noble Earl about it.
I can also agree with the noble Lord, Lord Hylton, that all of those who claim to be a victim of trafficking should be cared for. However, I cannot agree that an extended period of reflection should be granted to all of them to decide what they wish to do next or that residence permits should be granted to those who agree to co-operate with the appropriate authorities. In making that response I am mindful of the comments in the report from the European Parliament—the noble Lord kindly provided us with an outline of it.
One of our first difficulties with this proposed new clause is related to determining when a person is "trafficked", a point highlighted also by the noble Baroness, Lady Anelay. For example, would a person who, with a view to getting to the United Kingdom, pays another person to facilitate his arrival here be "trafficked" in the same way as a person who is brought to the UK by another person with a view to exploiting him or her either sexually or otherwise? In the first scenario, the facilitator could be prosecuted under Section 25 of the 1971 Act, but in the second scenario it would seem to be more appropriate to charge with the offence in Clause 4 of the Bill or the relevant offence in the Sexual Offences Act 2003.
I have always taken it that the noble Lord, Lord Hylton, and other noble Lords who have spoken on this issue have been addressing the second category—those who are trafficked for exploitation.
Can I take it, then, that the noble Lord believes that someone who wishes to come to this country for gain and who pays a trafficker to get him to this country—after which he is free to go about his business in employment and to make a home, and is not under the direct control of the trafficker—should also be given a period of reflection? I had not understood that that is what the noble Lord intended.
That is the point I am seeking to make. The noble Lord is thinking of a situation where someone is trafficked for exploitation or gain and kept within the control of the trafficker. I understood that that was the mischief that the noble Lord was particularly anxious to address. With respect, I agree with him. However, the definition of "trafficking" enables one to describe someone as having been trafficked even if they have paid willingly for that to be facilitated and they themselves have derived from it a direct benefit or advantage. That is the difficulty.
I have given the example of a person who pays another to facilitate his arrival here to be trafficked in the same way as a person who is brought to the United Kingdom. We think that there is a distinction between the two. Our point is that "trafficking" is a very vague term with no specific legal meaning as far as we can discern. In particular, we are aware that the definition of "trafficking" in Article 3 of the Trafficking Protocol to the UN Convention Against Transnational Organised Crime states that trafficking can take place regardless of whether the passenger consents. In that sense, it could refer to the example given by the noble Earl, Lord Russell, of someone who was trafficked almost as if they had no choice because the choice had been made by their families or by others in control. By the same token, however, it can also involve someone who genuinely consents and uses the trafficker simply as a means of getting here.
Article 3 of the Trafficking Protocol to the UN Convention Against Transnational Organised Crime makes that clear. If that were the case, the amendment would give benefits to the person cited in my first example. That seems unreasonable given that the "victim" in that scenario was likely to have wanted to get here in the first place and may even have paid for the service.
In addition to the absence of clarity on the definition of trafficking, there is currently a lack of hard data on the scale and extent of the problem and on the effects of measures designed to counter it, such as introducing reflection periods. We therefore believe that more evidence is required before measures such as those proposed by the noble Lord could realistically be considered. However, I want to reassure him that we also want to address the mischief that he wishes to address. There is no difference in our purpose, but there is a difference in how we can do it and when we will have the empirical data to make the sort of informed decision that we need to make.
With regard to the period of reflection, very real fears remain that such a process would be subject to abuse. Rather than providing a time for those who have genuinely been traumatised to recover and consider what steps to take next, it is feared that it will be seized upon by the unscrupulous to delay their removal from the United Kingdom and to make good their disappearance. In addition, large numbers of victims making false claims of having been trafficked would stretch support services to the extent that provision for genuine cases may suffer. That would not be in the interests of genuine victims.
That is not to say that we do not offer protection to those in genuine need; we do. There is existing provision within current United Kingdom immigration legislation for the exercise of discretion to hold removal action in abeyance in specific circumstances. It is also the case that all relevant information, including previous co-operation with the authorities and the likelihood that a person has put themselves or their family at risk from reprisals in their country of origin, is considered when assessing any application to enter or remain in the United Kingdom. Given this existing flexibility, we do not see the value in a blanket requirement on parties to introduce measures along the lines proposed.
So when I say that we approach this on a case-by-case basis, that is very important. No two of these cases are exactly the same. What we have to do to support one case we may not have to do in another. Issuing a residence permit to victims would hamper the Immigration Service's ability to take action against those who have entered the country illegally, even in cases where it has been shown that their application was fraudulent and the offer of co-operation was unfulfilled. The diversion of resources into investigating such wrongful or unsupported claims would have a significant impact on our ability to take action against traffickers.
The report from the Committee on Citizens' Freedoms and Rights of the European Parliament relates to the proposed EU directive seeking the issue of short-term residence permits for both the victims of trafficking and those who have been the subject of an action to facilitate illegal immigration who co-operate with the authorities. In effect, it will benefit not only the woman who is kidnapped and brought here to work in the most brutal of circumstances—whom we believe none of us would hesitate to describe as a victim deserving of our help and assistance—but also someone who paid a lorry driver to hide him in the back of his wagon so that he might enter the United Kingdom and seek illegal employment, as long as that individual decides to provide evidence against those who helped him.
We do not believe that the latter could properly be described as a "victim" in quite the same way as the former. We think that the diversion of resources to help such cases would be an unwelcome development. It is for that very reason—and the potentially considerable number of cases to which it could apply—that the United Kingdom decided not to opt-in to that directive. I understand that the directive is undergoing some revision, and I can assure noble Lords that we will consider our position once a final draft is produced and adopted. We remain absolutely committed to combating and preventing all forms of human trafficking and to providing appropriate support to the victims of such abuse. But we do not think that we can adopt these particular proposals now.
The noble Lord, Lord Hylton, raised the issue of what guidance was given to staff in relation to trafficking. We have a trafficking toolkit that is available to all staff, especially immigration officers, to help them to identify victims of trafficking. The Committee will know that training is provided, but I cannot stand here and guarantee that absolutely every immigration officer to whom we have given proper training and the toolkit will use it appropriately on each and every occasion. I wish that I had the power to do so. All I can tell the Committee is that we will use our best endeavours to ensure that appropriate training and advice and the toolkit are made available for use. Whether immigration officers follow instruction seems very much to be a matter for themselves.
I am extremely grateful to those noble Lords who were kind enough to add their names to my amendment. I also express my thanks to all noble Lords who have taken part in this short debate, which was helpful to me at least, for the degree of support and sympathy that I received from nearly all quarters. The wider ramifications of the question have been well brought out tonight. I am also grateful to the Minister for the spirit in which she gave her complicated and analytical response. She also brought out the great complexity of the subject matter. I am grateful to her for a number of the things that she said. I realise that my amendment is perhaps premature and that its wording is almost certainly inadequate. At this time of the night, given the probability of needing to come back to this at the next stage, I beg leave to withdraw the amendment.
In view of the hour, this would be an appropriate moment for the House to resume. I propose that the Committee resume no later than 8.35 p.m. I therefore beg to move that the House do now resume.