My Lords, I will be brief, because we had a long debate on this issue in Committee. It is, however, an issue that goes to the heart of the Bill—changing the definition of the offence to one of arrival rather than entry. I am, therefore, very pleased to move Amendment 55 and to speak to Amendment 58 in my name and those of the noble Lord, Lord Paddick, and my noble friend Lord Blunkett. This is a fundamental change to immigration law that many of us are worried will criminalise asylum, full stop. One can only imagine what effect a similar law would have in Poland now, with people fleeing across the border. No doubt the Minister will say that it does not apply in those circumstances, and so on. The fact is, however, that the Bill changes the offence from entering to arriving, which raises serious issues and has serious consequences for us all.
For example, aside from those seeking asylum, would this provision apply to a person who arrives in the UK with the wrong paperwork? They have arrived and they have broken the rules: would that be a criminal offence under the Bill? The Home Secretary has presided over this situation for a number of days but has just recently announced that people can safely bring elderly relatives and parents from Ukraine into this country. On the basis of this clause, would those elderly parents be considered criminals if they arrived here without the right paperwork? The Government’s proposed legislative changes have real consequences for real people, as highlighted by the recent horrific events in Ukraine.
This clause should be removed from the Bill on both principled and practical grounds. I have guidance that the CPS has announced, in consultation with the National Crime Agency, the Home Office and the police, which says that those seeking asylum should not be prosecuted under existing offences of entering the UK illegally. That is in recognition of the fact that it is not in the public interest, and that asylum seekers
“often have no choice in how they travel and face exploitation by organised crime groups”.
That is in a press statement from the CPS. The Government are asking us to widen the offence to include arrival when the CPS and Border Force do not believe that the existing offence should even be used. Similarly, the Government’s answer has been that the powers will be used in only exceptional and limited circumstances, such as where a person has breached a deportation order—in which case, we should pass a power for those circumstances.
It is not right to ask the House to pass these powers —on the basis that the Government’s own agencies say that they will not use them—or to criminalise a person who arrives in the UK to ask for asylum from war and persecution. It is late, but this change in the offence will have serious consequences for the way our asylum and refugee system works. I beg to move.
My Lords, this is more important than it looks. Frankly, it is rather absurd that people can turn up in their tens of thousands on our beaches and there will have been no offence. That is not to say that they should be charged, but there must surely be some legal impediment to people just turning up.
My Lords, the Bill does two things. It criminalises and treats genuine refugees as second class if they arrive via a so-called safe third country. Also, this clause potentially criminalises everyone who arrives in the UK to claim asylum even when they have flown directly to the UK. It effectively criminalises all asylum seekers arriving in the UK unless they have been resettled through a government scheme—resettlement schemes that range from few and far between to non-existent.
From what the Minister said in Committee, I understand that the idea of the clause was to ensure that migrants crossing the channel in small boats who were rescued and brought to the UK could still be prosecuted, even though they had arrived legally. She said that the new offence would cover all claimants
“who arrive without the necessary entry clearance.”—[
Someone who secures a visitor visa, for example, flies non-stop to the UK and claims asylum at the UK border would be guilty of an offence because their entry clearance was only to visit, not to claim asylum and stay permanently.
The Minister tried to reassure the House that this was not the Government’s intention, that the offence was intended to be prosecuted in only the most egregious cases and that the Government would be talking to the CPS. There are two issues with this. First, as the noble Baroness, Lady Chakrabarti, said in Committee, this is the very definition of an overbroad criminal offence that relies on the offence being prosecuted in only a subset of cases. The second issue is the potential for government interference with the independent Crown Prosecution Service. The next thing will be the Government telling the CPS to prosecute some political activists and not others. This is a very dangerous road to go down.
Amendment 55, in the names of the noble Lords, Lord Coaker and Lord Blunkett, to which I have added my name, would remove the offence of arriving in the UK without valid entry clearance from the Bill. We will vote with the noble Lord, Lord Coaker, when he divides the House.
I thank both noble Lords for speaking to these amendments. I have listened carefully to the arguments raised by the noble Lords, Lord Coaker and Lord Paddick, and I appreciate the reasoning behind the amendments in their names, but I remain convinced that we must have offences which apply to arrival in the UK in addition to those of entry.
I cannot overstate that the differences between the terms “entry” and “arrival” are fundamental to how offences are identified and prosecuted. The definition in Section 11 of the Immigration Act 1971 concerning entry is based on assumptions that no longer address the methods that have emerged for migrants to evade our border controls.
It might help if I explained the effect of the amendment and the consequence of not getting it right. I remind the House that the Court of Appeal has held that an asylum seeker who merely attempts to arrive at the frontiers of the United Kingdom to make a claim is not entering or attempting to enter the country unlawfully in accordance with the definition of “entry” in Section 11. This means that individuals who step foot in the UK because their small boat was rescued by Border Force do not “enter” the UK in the technical sense. They simply “arrive”. Where there is no unlawful entry or attempt at entry, the unscrupulous people smugglers sending people across the channel in unseaworthy vessels that require rescue cannot be held to account for facilitating a breach of immigration law.
Amending these offences to refer to “enters” rather than “arrives in” renders them unworkable. It is wrong that an individual and those facilitating their journey should be able to evade sanction by allowing themselves to be intercepted and brought to shore. It encourages individuals to unnecessarily endanger themselves and others by travelling in small craft wholly unsuitable for the crossing.
If there is no offence of illegal arrival and if, as proposed in Amendment 58, this is not added as a breach of immigration law for the facilitation offence, then we will have practically eroded our ability to prosecute any people smugglers who are involved in risking migrants’ lives by putting them into small inadequate boats.
It is right that we should ensure that the tools exist to deter and prevent these actions for the good of all. We must provide the CPS with the ability to prosecute appropriate cases when in the public interest, so Clause 39 must refer to both those who enter the UK and those who arrive in the UK. I appreciate the concerns raised but am convinced that the proposed amendments, if accepted, would give only comfort to those who exploit and persuade people to make the perilous and unnecessary journey across the English Channel.
The noble Lord, Lord Paddick, made a point about interference with the CPS. That is not the case. An MOU between immigration and the CPS has been updated and will be published. With those words, I hope that noble Lords will be happy not to press their amendments.
I thank the Minister for her reply. It was interesting in that reply, with respect to Amendment 55, that the whole raison d’être for the change to established immigration and asylum practice in this country is that the Government have lost control of migration across the channel. Panic has broken out, measure after measure has been tried, yet the numbers keep going up, and the public pressure to do something about it keeps going up. The Prime Minister has complained to the Home Secretary about it, so they have come up with a new measure which drives a coach and horses through the established procedures we have, has far wider implications than the channel, and affects every potential asylum seeker who enters the UK at the moment. That is why it is completely unsatisfactory to change things on the basis of what is happening, so I wish to test the opinion of the House.
Ayes 101, Noes 96.
As Amendment 55 has been agreed, I cannot call Amendment 56 by reason of pre-emption.
Amendments 57 and 58 not moved.