Clause 2 - Entering United Kingdom without passport

Asylum and Immigration (Treatment of Claimants, etc.) Bill – in a Public Bill Committee at 9:45 am on 8th January 2004.

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Photo of David Heath David Heath Shadow Spokesperson (Home Affairs) 9:45 am, 8th January 2004

I beg to move amendment No. 49, in

clause 2, page 2, line 2, leave out 'A person' and insert 'An adult'.

Photo of Mrs Marion Roe Mrs Marion Roe Conservative, Broxbourne

With this it will be convenient to discuss amendment No. 63A, in

clause 2, page 3, line 15, at end add—

'(12) No prosecution shall be brought against a child in respect of the offences contained in this section.'.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs)

I hope that this is a simple starter for 10 for the Committee. I believe that my amendment is entirely in tune with what I hope is the Minister's intention with the Bill; I cannot believe that she anticipates that the offences created under clause 2 would be applicable to a child entering the country unaccompanied. There is, of course, provision for a child who is dependent on another person entering the country but it would be entirely inappropriate for a child entering the country unaccompanied, who had been told by a carrier to destroy their passport, to be subject to the criminal law.

Amendment No. 49 would establish that, in this instance, the term ''person'' refers to an adult. The terms ''adult'' and ''child'' are well construed in immigration law, so I do no think that there is a need for subsequent definitions of those terms. I seek from the Minister reassurance that it would not be appropriate to use the clause against a child, who may have been pressured or may have misunderstood what to do. A child could certainly not be held responsible for maintaining the accuracy of their immigration documents. An adult could, quite properly, be held responsible for destroying their passport or other travel documents. We accept that principle.

Can the Minister reassure me of her intention? I hope that she will accept my amendment. If not, could she explain why there is an understanding that ''person'' in this instance means an adult, rather than an adult or child, which would be that phrase's normal construction?

Photo of Edward Garnier Edward Garnier Conservative, Harborough

I wonder whether the hon. Gentleman has looked at subsection (4). Can he construe that subsection in the context of his arguments? It says:

''It is a defence for a person charged with an offence under subsection (2) in respect of a child to prove'' and so on. I accept that the language is somewhat difficult and complicated, but might not that provide some sort of let-out for an unaccompanied child? Perhaps the language should be sorted out. I fully accept the difficulties for unaccompanied children that the hon. Gentleman is describing. They are proper concerns. However, I wonder whether I have been obtuse in failing to understand the clause, or doubly obtuse in failing to understand whether he has taken into account subsection (4). Perhaps he could help us before he finishes speaking.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs)

The hon. and learned Gentleman is never obtuse, but I think that he is wrong in interpreting subsection (4) in that way. It refers to subsection (2), which relates to the instance of a person who arrives and is travelling with a dependent child. Therefore, that would not apply to an unaccompanied child without another dependent child in tow. There is a problem, but I am hopeful that the Minister can solve the riddle without our having to take a great deal of time over it. I feel strongly that a child should not be put in peril of the offence. From the hon. and learned Gentleman's intervention, I suspect that he agrees with that point.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

I hope that I can satisfy the hon. Gentleman with regard to what I think is the spirit of his intentions but, for reasons that I shall outline, I cannot accept the amendment. First, it would mean that, unlike in the rest of criminal law, this offence could be committed only by an adult—a term, in addition, that is not defined. There is a different approach in the rest of the law, under which we do not make that distinction. There is an age of criminal liability, and a judgment is made on the basis of the circumstances of the case as to whether a prosecution should be brought. The amendment would mean an entirely different approach from that which we adopt in relation to children in other parts of the law.

Photo of Mr Jon Owen Jones Mr Jon Owen Jones Labour/Co-operative, Cardiff Central

Is it the Minister's opinion that the amendment would mean that traffickers would tell 17-year-olds that they could destroy their documents with complete impunity?

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

My hon. Friend anticipates my second point. The first point was the difference that the amendment would create from the rest of the law. The second point is that there is obviously considerable variability in the circumstances in which unaccompanied asylum-seeking children enter this country. There is a great deal of difference, as my hon. Friend points out, between a 17-year-old turning up in the country and deliberately destroying his passport, knowing the impact and effect of that, and a situation involving a younger child.

Photo of Mr Jon Owen Jones Mr Jon Owen Jones Labour/Co-operative, Cardiff Central

To continue the point, is it not true that, if the amendment were accepted, not only a 17-year-old but someone saying that they were 17 would be able to get away with that?

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

My hon. Friend races ahead of me again, because that is my third point. On the second point, we clearly need the ability to consider whether a prosecution would be right for a 17-year-old who deliberately destroyed his passport so that he could evade proper immigration control and, at the end of the process, removal. It would not be acceptable if we could not take action against an individual in those circumstances.

The third point is that such an inability to act would provide a huge incentive for the phenomenon that we already experience of adults coming into the country claiming to be under 18. We have enormous difficulty, particularly with people who are on the cusp of that age, in establishing whether they have reached the age of majority. To be unable to prosecute in the relevant circumstances would send an entirely wrong signal.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs)

The Minister has introduced to a raft of material, to which I shall respond in due course. I want to refer to her first comment on what I have suggested, which was that it would introduce a new anomaly. However, that is in the clause now. Already, children accompanied by an adult are not criminally responsible and would not be charged with the offence set out in clause 2. The distinction is in the Bill, but the Minister would withdraw it in the absence of a suitable adult who could be indicted in the relevant circumstances.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

There is a well accepted principle that, if an adult and child are together and an offence is committed, in most circumstances, the adult would be subject to the law. However, we believe that the framework of the law should include the potential to prosecute an older young person who enters the country alone and deliberately destroys their documents.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

I accept that latter proposition about the destruction of documents. However, there is a big difference between destroying documents and not having any. As far as I can see, both are offences under the clause. Every year, there are in the world 50 million births that are not registered—that is 30 per cent. of all births. An awful lot of children do not have birth certificates, which means that they cannot obtain any documents. Children need to be considered very carefully. The difference between tearing documents up and not having any comes into play in that context.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

I certainly agree with that point. It is a fundamental point in the clause generally in relation to adults as well. However, it is not the point that we are debating on the amendment. We are debating whether children should be removed completely from the effects of the clause.

Having explained why we do not want to accept the amendment, I want to assure the hon. Member for Somerton and Frome that I accept that some individuals, particularly younger children, will be more likely to follow the instructions of facilitators. Because of their vulnerability, they should not, when they act in that way, be caught by the clause. It is not our intention that vulnerable people and, in particular, younger children should be convicted of the offence in question.

Photo of Ms Annabelle Ewing Ms Annabelle Ewing Scottish National Party, Perth

The Minister referred to older young people. Presumably, that leaves another category of younger young people. Will she define the ages of majority and of criminal responsibility being used in this context? Of course, as a Scots MP, I know that different ages apply north and south of the border but in relation to the age of majority I wonder what is meant by older young people.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

We clearly cannot define rigid age thresholds. I was going on to say that the prosecution would need to take into account the circumstances of the case—the alleged age and what is established to be the child's age—in determining whether to bring a prosecution. Guidelines will be needed and they will be defined with reference to the police, the immigration service and the Crown Prosecution Service. They will attend carefully to issues relating to the prosecution of children.

The Committee cannot, even in the Bill, establish in any a priori way the age thresholds. That must be done in relation to the circumstances of the case. I gave the example of a 17-year-old who, it was felt, had knowingly and deliberately disposed of or destroyed their documents. We need the option to consider a prosecution in those circumstances. On other cases,

when the factors are different, the authorities will have to judge whether a prosecution is both relevant and appropriate in the circumstances.

I hope that the hon. Member for Somerton and Frome accepts my assurance about our intention concerning children and that it is right to have the facility in certain circumstances to consider a prosecution for people aged under 18. With that assurance, I hope that he will withdraw his amendment.

Photo of Edward Garnier Edward Garnier Conservative, Harborough 10:00 am, 8th January 2004

Again, I do not want to detain the Committee longer than is strictly necessary. This intervention demonstrates the futility of some of my interventions.

I assure the hon. Member for Somerton and Frome that I fully accept his concern but, surprisingly—the Minister may be shocked to hear this—I broadly agree with what she said in her response. Throughout the criminal law, we tend not to make a distinction in the definition of the offence based on age. It is an offence to commit theft. It is an offence to burgle. It is an offence to commit murder. The age of criminal responsibility in England and Wales—it is different in Scotland—is determined. If a six-year-old in this country commits theft, the police and the Crown Prosecution Service will not prosecute because they are below the age of criminal consent. It would overburden the Bill to set out age ranges when they are already in our criminal justice system.

The Crown Prosecution Service, the immigration officer, the police or whoever is conducting the inquiry will make a judgment based on the apparent age of the child or young person. They may have to engage in an investigation to establish as best they can the age of the child—I agree that a great number of people who come to this country look 25 when they are only 16. The hon. and bearded Member for Brent, North (Mr. Gardiner) is an example of that. Many hirsute people from overseas are rather hairier than their English and British contemporaries. That is just a niggle that we must deal with and I am not sure that we need to overburden the legislation with the sort of detail that my temporary hon. Friend the Member for Somerton and Frome is asking for. I ask him to allow discretion on prosecution to those who are prosecuting and to the courts, rather than put too much detail in this part of the Bill. The time will come during our discussions when he and I will be inseparable in our opposition to some aspects of the Bill, but on this occasion I am inclined to agree with the Minister, who invited him to withdraw his amendment.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

I, too, say gently to the hon. Member for Somerton and Frome that I share the opinion of my hon. and learned Friend the Member for Harborough. I completely understand the hon. Gentleman's thinking on the matter but I, too, take the view that the prosecuting authorities should have discretion with some children, as there is in the existing criminal law, under which those who take such decisions approach the matter sensitively.

I leave the Minister with the thought that, as we shall discuss later, there is a big difference between the wilful destruction of documents, which is terrible, and travelling without documents, which is an offence in the Bill. We need to look at that more carefully. The discretion to which she referred is appropriate in respect of the Bill and I do not support the amendment, although I completely understand the way in which he has approached the matter.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs)

This debate has been important and useful. I intended to find out from the Minister what her intentions were with regard to prosecution. I hoped that she might have said explicitly that the enforcement and prosecution guidelines would clearly state when it was appropriate to use this offence against someone who was under 18. I believe that hon. Members on both sides of the Committee agree that there are many circumstances in which such a use would be entirely inappropriate.

I share the concerns of the hon. Member for Woking about people who are fleeing from areas where it is impossible to obtain travel documents—the Democratic Republic of the Congo or Somalia come to mind—although that matter is outwith the precise terms of the amendment. We will return to it at a later stage in our consideration of the Bill.

There is an uneasy connection between clauses 2 and 4. We have already outlined one of our principal concerns—the ability to apply duress to a vulnerable person, be that a person who is under age or someone who is vulnerable in other ways. The result of that would be that the person who destroyed the documents—the victim of duress—became the offender. There are wider arguments about consideration of someone's true age. In such cases, the credibility of the applicant would be the better way of dealing with the matter. I understand that that is the way in which that difficult matter is dealt with under Canadian legislation—a country with a legal system that is not dissimilar to ours—without recourse to a provision such as this.

I understand the problems, and although some of the arguments that were advanced were not entirely cogent, I recognise that it is better not to make a distinction between an adult and a child in terms of offence—the point made by the hon. and learned Member for Harborough. If it is clear that guidance will be given in the prosecution guidelines—the Minister nods, so I invite her to intervene and to say so explicitly, because that would be helpful.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

I did not intervene because I thought that I had said explicitly in my contribution that there would be guidelines for the police, the immigration service and the CPS, and that those guidelines would pay particular attention to the circumstances in which it was appropriate to consider an offence against a child. There will be prosecuting guidelines, as there always are.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs)

The degree of explicitness related to the Minister's wish that they would take that into account and whether that would be written into the guidelines.

I am grateful to the Minister for giving me that assurance and I therefore beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

I beg to move amendment No. 3, in

clause 2, page 2, line 3, leave out 'in the United Kingdom' and insert

'at a United Kingdom airport'.

Photo of Mrs Marion Roe Mrs Marion Roe Conservative, Broxbourne

With this it will be convenient to discuss the following:

Amendment No. 50, in

clause 2, page 2, line 3, after 'arrival', insert 'at an airport'.

Amendment No. 53, in

clause 2, page 2, line 7, after 'arrival', insert 'at an airport'.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

This is an important clause, which makes it a criminal offence, punishable by up to two years' imprisonment on indictment, not to have and present to an immigration officer on arrival in the United Kingdom an immigration document that is in force. In general, my colleagues and I understand why the Government have introduced the clause. We believe the general message behind it to be a good and powerful one, and we are likely to support the Government on its general principles. However, in five different groups of amendments, I have sought to improve and to tighten the clause. Those groups involve the scope of the clause, the strict duty on the potential defendant, the document type, the defences, and the question of the punishments.

I said that we recognise only too well the mischief that the Government are trying to deal with. Like the Government and any right-thinking people, we think that boarding an aircraft having produced documentation and a passport—false or not—and then at some time between boarding the aircraft and reaching immigration control at an airport destroying the documents, cannot in any circumstances be excused and should be punished as a criminal offence. Of that there can be little doubt. Those who destroy documents should not have our sympathy.

The purpose of the amendment in limiting the clause's scope to airports will become apparent when the Committee realises that the destruction of documents, which is the principal mischief that we are seeking to redress, nearly always—no amendment is perfect— applies to those who travel by air rather than in other ways.

Photo of Gwyn Prosser Gwyn Prosser Labour, Dover

Is the hon. Gentleman aware that in the port of Dover there is regular evidence—not just hearsay—of passports being torn up, destroyed and stuffed down the back of the transport that takes people from the ferries to the immigration service? Just before Second Reading, I was sent two such documents anonymously, which had been picked up by the bus driver. It is a real issue, but it is not limited to airports. Perhaps he should reconsider.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

The hon. Gentleman makes a good point. I slightly pre-empted him by pointing to the imperfection of my amendment. It is important to add

that we are dealing not just with airports but possibly with ports such as Dover in some respects. He referred to the same situation on which I am focusing: people who destroy, hide or throw away existing documents. Why are the documents necessary? When one makes an application for asylum, it is important and helpful to the receiving country to have something that says, ''This is me, this is my passport, this is the country from which I have come, this is my nationality and this is my background,'' to avoid the terrible mischief that the Home Office faces much of the time with people who destroy documents and stay quiet, putting it in a difficult position.

Photo of Mr Jon Owen Jones Mr Jon Owen Jones Labour/Co-operative, Cardiff Central

Surely everyone who gets on to a ferry legally does so by displaying documents, whether they are forged or otherwise? They should therefore have those documents when they come off the ferry.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking 10:15 am, 8th January 2004

The hon. Gentleman points out the ferry position, which is true. I imagine that the type of documents required for a ferry are perhaps not scanned or looked at as carefully as those at airports. Nevertheless, there is a document requirement. Judging by the hon. Gentleman's interventions so far, I owe him an apology for my earlier observations about no contributions and the lack of interest from Government Members. As soon as I said it, I wished I had not but that happens to me quite a lot.

There is a difference between the people whom we want to deal with in terms of that mischief, and the other group of people who do not have documents. It is well known that some 80 per cent. of applicants for asylum both at port and in country do not have documents. For example, there is the group of people to whom I referred on Second Reading. The hon. Member for Dover will recall the incident all too well. In 2000, some 58 young Chinese people who were probably going to claim asylum in this country—who knows?—were found suffocated in the back of a van at Dover. Their background contrasts with somebody who, for example, boards an aeroplane and then destroys their document.

Those young people were probably fleeing persecution from a ghastly regime and never had documents. Far from going to an airport or boarding a ferry, they were smuggled across Asia to Europe, in the back of a van throughout, by the snakeheads or the triads—I think that $16,000 was the price in June 2000.

I seek in the amendment to distinguish sharply between the tearer-upper of documents at the airport, for whom I have no sympathy whatever and on whom I am trying to focus the clause, and those who have never had or could not obtain documents and who arrive by other methods—to be blunt, illegally. I do not want them all necessarily to be guilty of a criminal offence, which they would be as the clause is phrased. We have a duty in Committee to tease out the different levels of mischief and that is what I am trying to do.

Photo of Tom Harris Tom Harris Labour, Glasgow Cathcart

I entirely agree with the hon. Gentleman's comments that the amendment is not particularly appropriate to the clause. In his view, how can an officer interviewing an asylum seeker who has perhaps arrived 24 or 48 hours beforehand be certain that that person arrived by air, if they are no longer at the airport? His amendment does not take into account people who claim to have arrived by other means. As we all know, if people are not telling the truth about having papers, they may not be telling the truth about the point at which they arrived.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

Interviewing officers must make their judgment based on what they believe to be the credibility of the applicant at the time. That point applies not only to the interviewing officer and the person who makes the initial decision but to the adjudicator.

I do not pretend that those judgments are easy but I return to the central point, which I hope Government Members understand. The clause as drafted penalises, with up to two years in prison, someone who does not have the relevant documents when making an application for asylum. If the clause is not limited, it could penalise genuine refugees and expose them to the risk of prosecution. The clause does not necessarily reflect the true context of refugee flight, to which I referred earlier. Some of the strongest claims to asylum have been from individuals who have been forced to enter either on invalid documents or, more often, with no documentation whatever. In a way, the more the Government tighten the system with juxtaposed controls and so on—the right thing to do—the more people are driven into the hands of smugglers and Chinese gangs.

I hope that we will move in due course to clause stand part, because there are matters that I should like to raise then but will not raise in my remarks on the amendment. I want to discuss, for instance, article 31 of the refugee convention, which offers a protection for people who are undocumented, as well as other criminal offences that could be brought into play. I hope that there will be a stand part debate in which I can raise those matters.

I am concerned that the clause will punish not only those who are, in the minds of all right-thinking people, doing something nasty, evil and wrong by destroying their documents at the airport, on the plane or between the two—those who, as the hon. Member for Dover rightly says, are seeking to deceive the system by destroying, hiding or throwing away documents, perhaps at the port of entry. No decent person could have any sympathy with that. I am trying to distinguish between that and the policy approach, and the genuine, poverty-stricken refugee who flees in the back of a lorry from some godforsaken regime elsewhere, who has never had a document and could never get one—I referred to birth certificates—and who may find themselves subject to the offences listed later in the clause. Such a person is to be criminalised, whatever discretion the Minister may say is included in the clause. That could create a sad situation, which is the reason for the amendment.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs)

Amendments Nos. 50 and 53 are almost identical to amendment No. 3. They were prepared and tabled at similar times, and seek the same objective. I do not disagree with anything that the hon. Member for Woking said. The Minister's intention is clearly to deal with mischief that we all accept needs to be dealt with. We need to deal with someone who has a passport and travel documents, boards a plane—they cannot do so without them, so there is no doubt that they have them—and then destroys those documents on the flight or at the airport, before their first interview with immigration officials, with the express intention of deceiving the immigration officer or creating a delay in the process. What the Minister has said suggests that the clause is designed principally to deal with someone who can be shown to have had travel documents at their point of embarkation but who does not have them at the point of disembarkation.

I must say straight away that my amendments, like those of the hon. Member for Woking, do not deal specifically with ships and boats arriving in the country, a circumstance to which some of the same provisions can be said to apply when we are talking about someone who is a legally documented passenger as opposed to a stowaway. That is an imperfection in our amendments. However, a serious question remains. The clause appears to apply to those who cannot be reasonably expected to have any documentation, who may never have had any documentation, or who, because of the terms of their flight from the part of the world they came from, would have nothing to substantiate their claim. It is almost impossible to board a plane without such documentation because of the way in which airports and embarkation are organised. Indeed, many of the problems are caused by the effectiveness of some existing measures. People who genuinely seek asylum often find it very difficult to get as far as a British port of disembarkation. Barriers at the other side of the English channel or at the airport prevent from them from doing so.

The hon. Member for Woking asked almost in parenthesis about article 31 of the refugee convention. Article 31 is crucial to our understanding of the clause and the amendments to it. We have the bizarre situation whereby someone can travel properly on a falsified passport or other document and board a plane. Provided that they do not destroy that false passport on the way, they are not committing an offence when they arrive in this country, and they are secure, as we know from previous court cases, from prosecution under the convention and can be dealt with properly. But if they had a genuine passport and put it in the bin on the way, they would be subject to prosecution. That seems a bizarre set of circumstances.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

Is the hon. Gentleman saying that to travel on a forged passport is not a criminal offence? If that is the case, I have wrongly sent people to prison.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs)

That is not what I am saying. I am saying that a person who travels on such a document, provided they do not destroy it in the process, will be

properly considered for asylum in this country and that it will not be an impediment to their consideration, because the Government lost a case on exactly those grounds in the 1980s and as a result had to pay compensation to a considerable number of people. My concern is simply that we use the power in the way I believe the Government intend and not against those to whom it cannot be reasonably applied.

I have said ''at an airport'', as the hon. Member for Woking has. We accept that documents may be destroyed at ports. If the hon. Member for Isle of Wight (Mr. Turner) were here and had tabled his amendment in time, he would be extending the provision to tractors arriving in the Isle of Wight and rockets—so ET beware. If an extra-terrestrial happens to land in the Isle of Wight, he had better have his travel documents in proper order.

That amendment is not under consideration within this group, but there is a serious point that I ask the Minister to consider. She has given us to understand her intentions. She also gave evidence before the Select Committee on Home Affairs that reinforced that view. We now need to have that view clearly expressed in this Committee, so that we are clear about the Government's intentions. Although we may still have misgivings that we have a blunderbuss approach, which is intended to hit a fairly narrow target, we will be reassured if the Minister gives us a clear indication of how she anticipates the provision will be used.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

Amendment No. 3, and some of the following amendments, rightly—I understand entirely why—attempt to clarify, as the hon. Members for Woking and for Somerton and Frome have said, the Government's policy intention. Our intention is to be able as a result of this clause to prosecute people who deliberately destroy or dispose of their documents between embarkation and claiming asylum in this country. It is absolutely not our intention to try to prosecute people where we believe that they never had documents in the first place or that they have not destroyed documents, whether false or not.

I do not accept that the clause is a blunderbuss. We have a difficulty. If we circumscribe the clause's formulation so tightly that it applies only to circumstances at airports where we can be very sure that someone started their journey with a document, we will exclude from the potential offence in the clause other groups of people who deliberately destroy or dispose of their documents. Hon. Members have mentioned sea travel and ferries, which is an obvious example. My hon. Friend the Member for Dover has considerable experience, as he outlined, of people destroying the documents with which they have boarded a ferry. Eurostar is another method of travel where people board with documents and then at the end of the journey say that they do not have them. There are circumstances in which we would want the opportunity to prosecute people who turn up at a screening unit and say that they have no documents.

On most occasions, there is no problem when people turn up in the country with no documents and we cannot establish that they ever had any: we shall not prosecute in such circumstances. However, we have

been working for some time on intelligence that tells us that there are certain groups of people—sometimes groups that have already been granted refugee status in another EU country—who come into the UK with bona fide section 51 documents, turn up at Croydon to claim asylum and say that they have no documents. That is organised, sophisticated activity.

We are taking clear action against such groups of people, where we have the intelligence. We fingerprint them when they claim and try to match those fingerprints where other EU countries have fingerprint records, to enable us to return those people. Because some people will have been given refugee status before other EU countries started to fingerprint, we cannot, in many instances, make that match. That is one example of a category of people whom it would be right to prosecute under this offence. We must send a strong message, both to organised criminals and ordinary people, that they cannot abuse the system in that way.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking 10:30 am, 8th January 2004

I am grateful for the Minister's last few observations, which make good sense. The policy that she outlines is right. Such conspiracies must go on—we do not dissent from that at all. However, it is difficult in practice to distinguish between those who behave so appallingly and those who tell the truth that they have never had any documents. I am not yet sure how we can surmount the difficulty of deciding whether to prosecute.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

What I am trying to clarify is that we expect that the criminal offence will, in practice, be most commonly applied in ''on arrival'' cases, when people arrive by plane. We want that facility for other means of transport into the country. Our policy intention is to prosecute people who are deliberately getting rid of their documents. As I have explained, we have the intelligence and the suspicion that people have entered the country with documents but have destroyed them. We think that the offence ought to apply to such groups of people.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs)

I am listening carefully to the right hon. Lady and I understand the points that she made. However, will she consider whether there is scope within the framing of the offence for a requirement of evidence, at least, that a person had travel documents at some a stage in their transit? Our greatest difficulty is that it is an absolute offence. There is no requirement for evidence to be adduced that a person ever had travel documents. All of us want to do something about those who deliberately destroy documents, but many of us feel that there needs to be some evidence, either that a person legally boarded a ferry or aeroplane, or presented documents at some stage to an immigration official, before it can be reasonably assumed that they destroyed them.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

The difficulty is where hon. Members want to put the responsibility for establishing that evidence. I understand from the hon.

Gentleman that he would like the clause to be formulated in such a way that the authorities—the police, the immigration service, the Crown Prosecution Service—were required to have evidence that someone had a document at the start of the journey. That links to a point relating to other amendments, but I shall make it briefly now. The difficulty is that the evidence as to whether someone had a document is in the claimant's head. The authorities cannot easily establish it. That is precisely why parliamentary counsel—understanding completely our policy intention, which I have outlined clearly—formulated the clause in this way. It was done primarily because of that difficulty.

The clause provides for a defence, which is that the claimant has a reasonable excuse for being unable to present a document. Clearly, never having had a document would be a reasonable excuse. Placing the onus on the authorities here to establish the veracity of the detail of people's histories in countries far from this one would be unreasonable and make it very difficult to bring any kind of prosecution.

I hope that hon. Members are assured as to the policy intention and have understood that there are categories of people outside those who arrive by plane to whom we want the clause to apply.

Photo of Angela Watkinson Angela Watkinson Opposition Whip (Commons)

The clause is intended to include people who arrive by sea. We heard evidence from the hon. Member for Dover that there are people who destroy documents on arrival, but there is also the very big problem of people arriving without documents, having stowed away in the backs of lorries. A big challenge in dealing with asylum and immigration is the huge volume of people to deal with. Would it not be better if that category of people were prevented from even embarking on to ferries by the more efficient checking of lorries for stowaways at Calais? I understand that only 12 per cent. of lorries are checked for stowaways. Checking 100 per cent. of lorries would be an obvious way to reduce the number of people who need to be dealt with when they arrive at Dover.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

I agree that the prevention of illegal immigration is an important objective in its own right, quite apart from how we deter unfounded asylum claims. The Government have been actively pursuing that through the detection equipment that we have instituted in France and the move towards full juxtaposed controls, which will commence in February this year, now that the French have passed their legislation. That is unprecedented. It will mean that British police officers and immigration officers will in effect move our border to Calais and be able to inspect all passengers before they come on to British soil. That work is ongoing.

The hon. Lady's figures about the extent to which lorries have been surveyed are not correct. I understand that, through the work that P and O has done and the detection equipment that we have provided to the French authorities, the vast majority of lorries, through one or other of those systems, are screened. Those screening methods, whether they

involve CO2, heartbeat or the passive millimetre-wave machines, are not 100 per cent. effective, but certainly the majority of lorries are screened.

The hon. Lady's point is rather different from that made by the hon. Member for Woking. He made a point about whether the offence would catch people who might get through in the back of a lorry and say that they never had a document. He wants reassurance that the offence will not apply in those circumstances. I have been trying to assure him of a quite different point, which is that unless we are fairly sure that someone had a document and deliberately destroyed it we do not intend to pursue a prosecution under clause 2.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

It may be that I am making a third and very different point. However, am I right in thinking that there are United States immigration officials based in, for example, Heathrow and Gatwick, and that before people board flights to places such as New York those officials go through an immigration exercise in the United Kingdom? The advantage of that is of course that if they are dissatisfied about someone's travel status that person does not leave the United Kingdom. The problem is contained here, as far as the United States authorities are concerned, and there is no need to deal with those issues at the arrival airport, whether that be John F. Kennedy or Dulles. That point is perhaps similar to the one made by my hon. Friend the Member for Upminster, but surely there are plenty of practical approaches to the issue.

As to the absence of evidence, the Minister may have misunderstood what my hon. Friend the Member for Woking was saying. There must be plenty of occasions when the prosecution has to rely on circumstantial evidence to build an inferential case, albeit that there is no direct evidence of a crime being committed by a particular individual. There seems to be a perfectly respectable way through the problem that the Minister appears to be having trouble with.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

On the first point, and to conclude this rather diversionary discussion about what we are doing about illegal immigration, the action that we are taking in France will achieve—and indeed has been achieving—the same thing. In advance of our obtaining full juxtaposed control and the legal power for our officers to operate in France, the French authorities have taken responsibility for all the relevant people detected in France.

This year, several thousand people have been detected in France, who would have entered the country in the back of lorries had we not instituted the detection regime and provided the equipment. Juxtaposed control will increase the potential for that. The French authorities have also accepted responsibility for anyone on their side of the channel who is prevented from entering the UK.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

If the controls on the French side become, in the Minister's words, watertight, will the controls at Dover, such as heartbeat and other machinery and checks, be removed entirely? If not, why will they still be necessary?

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

No, they will not be removed entirely. However, the hon. Gentleman is right to suggest that our intention is to put the emphasis and effort on the other side of the channel. I am grateful that the French have agreed to that, and have legislated accordingly. The reason, as the hon. Gentleman will know, is that we are an island and once someone reaches here and claims asylum we must deal with them. Our agreement with the French, by which we are effectively moving controls on to their soil, includes an agreement that they will deal with anyone who is detected or stopped as a result of the measures.

I do not, as was suggested, have difficulty with the clause. I am trying to explain why the clause is formulated as it is. Our declared and clear policy intention is that it should be directed at those who deliberately destroy or dispose of their documents. However, the nature of the activity and the fact that evidence about whether someone possessed a document in the first place is not easily available to authorities in this country, but is easily available to the claimant, have led us to formulate the clause to provide a general offence, with a defence for the claimant.

Now that I have made our intentions clear and given some assurances, I hope that hon. Members will not press their amendments. I hope that they can see that they would circumscribe the application of the offence so tightly as to exclude some important groups of people whom we should be able to prosecute because they are destroying documents, which all hon. Members who have spoken so far concede is unacceptable. It is important that we send deterrent signals to claimants themselves, but we should also try to break the power of the facilitators and the agents who instruct claimants to do that because it helps their business.

Indeed, it makes it very difficult for the authorities here to identify people, and that is partly why it is so difficult to remove people to their homeland if and when their claims fail. Quite understandably, other countries want assurances that the people we want to sent back to them are indeed their nationals. We would want that assurance, and it is difficult to remove people if we cannot give it. For all those reasons, I hope that the hon. Gentleman will withdraw the amendment.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking 10:45 am, 8th January 2004

This was a probing amendment, and as a result we have had a most informed and informative debate. The hon. Member for Dover properly pointed out a deficiency in my amendment. It does not include ports, where the mischief of which we all complain can equally apply. I also found the Minister's comments on the conspiracy among certain gangs and groups to destroy documents after arrival and then to present without documents most helpful and persuasive. I now realise that the amendment in its present form is too narrow.

I am really grateful, a feeling that I am sure is shared by the whole Committee, for the Minister's acknowledgement that the principal mischief that she is trying to address is the one that we all know about:

destroying documents is a nasty and improper thing to do. She made helpful comments about the approach that she and those responsible for the administration of justice would take in the cases of those to whom I alluded who are fleeing for their lives and who do not have, and have never had, proper documentation. The debate will show to the outside world that there is, as is often the case, a great deal of common feeling across the Committee about this. The matter will probably come up again on Report or in the other place. It is a debate worth continuing. I thank the Minister for her response and I beg to ask leave to withdraw the amendment

Amendment, by leave, withdrawn.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

I beg to move amendment No. 2, in

clause 2, page 2, line 3, after 'him', insert

', or fails to produce to an immigration officer within three days,'.

Photo of Mrs Marion Roe Mrs Marion Roe Conservative, Broxbourne

With this it will be convenient to discuss the following amendments:

No. 6, in

clause 2, page 2, line 9, after 'him', insert

', or fails to produce to an immigration officer within three days,'.

No. 58, in

clause 2, page 2, line 38, leave out

'to an immigration officer on request' and insert

'without reasonable excuse following a request from an immigration officer, within a reasonable period, which shall be no less than seven days from the date of that request.'.

No. 16, in

clause 2, page 2, line 39, at end insert 'or within three days'.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

This is a very brief amendment. We have already discussed much of the general principle, although I hope not too much, Mrs. Roe, or you would not allow a stand part debate. The amendment seeks to permit the production of the appropriate document to the immigration officer either, as the clause requires, at the first interview, or ''within three days''. I have in mind the following possibility, which I want to be sure is covered. A person from a perfectly safe country comes into this country entirely lawfully on a visit. If the situation in that person's country so changes for the worse during that visit, following pronouncements by some frightful dictator about the persecution that will follow against that individual or his type, a valid claim for asylum may arise while he is lawfully here. He may go to the appropriate Home Office outlet in Croydon, explain that he had come here on a flight, but that the position in such-and-such country is now so bleak that he wants to claim asylum.

As I understand it, if that person is not in a position to produce his or her documents on the spot, he or she commits an offence under the Bill. That situation will not arise very often, but the amendment would allow for a person who has left their documents at the home of a friend 100 miles away to be told, ''Bring them back in a couple of days and we'll see then.''

There is a slight parallel with motoring law. Many of us carry our driving licences on us—perhaps to boast of endorsements in the past—but many of us do not. When a policeman taps us on the shoulder and says, ''Could you just produce your driving licence?'' many of us do not have it with us. Of course, one is issued with a HORT1—the Home Office road traffic document—which requires one to produce one's licence within seven days. One then produces it within seven days, and that is the end of the story—no crime has been committed. This is a debate for another day, but I also wonder what will happen regarding the ability to produce identity cards on demand or within three days.

I tabled my narrow amendment because I want to be sure that the Bill will protect a person who is here lawfully with documents, but whose position at home changes. He may claim asylum, but forget to take the documents, although he could produce them two or three days later. That is perhaps a fanciful example, but it is not intended to be. Under the Bill as it stands, that person commits an offence.

Photo of Tom Harris Tom Harris Labour, Glasgow Cathcart

I will make a few brief comments in response to the hon. Gentleman. I would have framed my remarks in the form of an intervention, but as the idea went through my head I realised that it would have been out of order to make such a long intervention.

I have some sympathy with what the hon. Gentleman said, but also some concerns. First, I wonder whether including the proposed time scale in legislation, so that someone could claim asylum and then have three days in which to provide papers, would be an invitation to certain individuals to approach people on the black market for false documents. I do not know whether the Home Office has any intelligence to justify that concern, but the amendment gives rise to it.

Secondly, if an individual who approaches an officer to claim asylum but falls foul of the legislation as it stands can produce legitimate documents at a later date, it is surely for a court to decide whether that is a legitimate defence. I am not sure whether establishing such provisions in legislation is necessary, because it is not assumed by the Home Office or in the Bill that every person who is prosecuted in such circumstances will automatically be found guilty. After all, everyone has to go to court to plead their case, and they will be given the opportunity to mount a defence. Even if someone who has their documents falls foul of the procedure, they will be able to appeal to the discretion of the court, and their case will, I hope, be given a fair hearing.

I ask the hon. Member for Woking: if someone was in this country on holiday or business, circumstances changed in their country back home and they felt that they needed to apply for asylum, why would they do so without taking with them the documentation with which they arrived in the first place? If people are in this country, for whatever reason, they must be aware of the need to have brought their formal legal documentation with them.

I find it hard to believe that any individual, after seeing television pictures of their home country and realising that things have gone from bad to worse, would approach the asylum service to ask for asylum without realising that they should produce a passport or other travel documents to do so. I will be interested to hear what my right hon. Friend the Minister has to say. I just wanted to put on record my concerns about the amendments.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs)

I will speak to amendment No. 58, which I tabled and which is similar to No. 2. It specifies a different time frame, but that is immaterial to the argument.

It was interesting to listen to the hon. Member for Glasgow, Cathcart (Mr. Harris), as he expressed some sensible views. However, there is a difficulty. In the previous debate, the Minister explained how she anticipated that the provisions would operate well beyond ports of entry to deal with other areas where there is evidence or anticipation of malpractice. In subsection (6) there is an instantaneous presumption of guilt, and because of how the whole clause is formulated, at the point at which a person does not produce the document, they are effectively guilty of not having a document. Subsection (8) allows for a power of summary arrest at that point without warrant. Therefore, if somebody cannot produce a document, they are presumed to have committed an offence and are subject to immediate arrest.

That process opens up an unintended scenario of problems. It is reminiscent of the old sus laws in terms of how it might apply to those who are in this country without having yet gone through the asylum and immigration system. We must be extremely careful. I understand the practical difficulties that the hon. Member for Glasgow, Cathcart has outlined, which is why more careful thought may be needed as to how we deal with the problem in light of the practical difficulties that he correctly identified.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

The hon. Gentleman is making a good point. He alluded to the fact that such a person would be liable to immediate arrest and would be taken into custody. He might agree that the position is even more draconian, because it is not just a properly trained police constable who can make the arrest and take the person into custody, but an immigration officer as well. That is something of a departure.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs)

The hon. Gentleman tempts me into debating a later group of amendments, but I will resist that temptation. He is right, and we will return to that subject in a moment.

Photo of Bob Blizzard Bob Blizzard Labour, Waveney

Looking at subsections (6) and (8), I see no mention of guilt. Subsection (6) is a definition of what it means not to produce an immigration document, and subsection (8) talks simply about arrest, which is not guilt.

I draw the attention of the hon. Member for Somerton and Frome to subsection (3)(b), which refers to ''a reasonable excuse''. I put it to him that the circumstances outlined by the hon. Member for Woking would constitute a reasonable excuse. Given

those circumstances, what would happen to a person—if they were not arrested—during the three days? Would such a person be free to go, and to disappear? The person would surely have to be detained, given that they would have three days to produce the documents. What is the difference between that and an arrest?

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs) 11:00 am, 8th January 2004

First, the presumption of guilt is made by the arresting person and not the court. Unless the arresting officer presumes guilt, an arrest should not be made. That is the premise on which a person is arrested and brought for indictment.

Secondly, the hon. Gentleman is right to say that there is a defence of reasonable excuse, but that would be a difficult defence for a person in those circumstances to make. I accept his premise that the courts will determine whether the fact that travel documents were in the possession of, perhaps, another family member who cannot be contacted at short notice constitutes a reasonable excuse. Under the circumstances, it would not be easy for a person to prove that they have put their passport into Auntie Flo's handbag and that she has disappeared to the far end of the country. Given the adverse presumption that is inherent in the clause, how on earth could that be established to the satisfaction of a court?

The amendments simply suggest allowing an amount of time to produce the documents. After that, the process of arrest and of bringing someone to trial for an offence would resume. The practical difficulty—and it is a genuine one—concerns the two scenarios described by the hon. Member for Glasgow, Cathcart: a person in that intervening time will either find a way of producing false documents or abscond and be untraceable. I accept that that is the problem, and I want the Bill to strike the proper balance between the human rights of individuals and the need for the system to be effective and to counter possible abuses. I am simply suggesting that we might not have that quite right.

Neither amendment—No. 2 or No. 58—necessarily offers an answer; we may need to find another path. The issue needs to be examined carefully and the Minister needs to engage with it. The hon. Member for Waveney (Mr. Blizzard) has a touching faith in the system and those who run it, which I do not always share. Many officers are doing an extremely good job, but on occasion there are abuses on the official side by those who are not doing their job as well as they might. I do not want to allow scope for that as a result of badly drafted legislation. I want the legislation to be as well worded as possible.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

I am grateful to my hon. Friend the Member for Woking for moving the amendment in the way that he did. This short debate provides us with an opportunity to point out the potential for injustice—I say no more than potential—caused by the perhaps necessarily tight drafting of the clause. I fully accept the points made by the hon. Members for Glasgow, Cathcart and for Waveney, but they do not undermine

my point that there is a potential for injustice, as my hon. Friend the Member for Woking and the hon. Member for Somerton and Frome suggested.

The problem could arise from the wording of subsection (1), which states:

''A person commits an offence if when he is first interviewed by an immigration officer after arrival in the United Kingdom''.

I suppose that it depends on how one defines an interview. Is arrival at the airport passport desk deemed to be an interview, or is the interview something rather more formal? Is it done under caution, or is it simply a conversation between a man in a suit on one side of a desk or screen and the traveller on the other side? Using the adjective ''first'' in front of the verb or participle ''interviewed'' needs careful thought, especially when considered in the context of the phrase

''after arrival in the United Kingdom''.

As my hon. Friend the Member for Woking pointed out, many people who arrive in this country go through the green box and are not interviewed because they come from friendly countries with a democratic system of government. Such people do not need to be interviewed, in any sense, by the immigration official at the port of entry. However, circumstances may change—and the relationship that the traveller has with his own country, and therefore with this country, may change with them.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs)

The hon. and learned Gentleman and I share a concern over the definition of ''first interview''. Indeed, he may care to cast his eye over amendment No. 60, which deals specifically with whether the first interview is conducted under proper regulation.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

I am grateful to the hon. Gentleman for pointing that out.

I do not want to be accused of being excessively pedantic, but I want to frame my earlier remarks in this context. I accept that a defence is provided under subsection (3). For instance, a person charged with an offence under subsection (1) has a defence under paragraph (b) if he can show

''that he has a reasonable excuse for not being in possession of a document of the kind specified in subsection (1).''

I do not want such people to have to advance a defence. I want the system to work much earlier than in court proceedings, and a defence cannot be operable until the person has been charged and brought to court. I want the immigration officer to be persuaded, one way or the other, without the need for proceedings. A defence is a defence to a charge, not a refutation of a reasonable suspicion; and it is the immigration officer's ''reasonable suspicion'' that will lead to arrest and detention under clause 8. Draconian powers are available at an early stage on the basis of reasonable suspicion, but the reasonable excuse may not bite upon the mind of a reasonably suspicious immigration officer and may not prevent uncalled for or unforeseen detention.

Photo of Tom Harris Tom Harris Labour, Glasgow Cathcart

Does the hon. and learned Gentleman agree that if the interviewing officer were to be given discretion on whether to charge someone—the Bill does not do so as it stands—it would give asylum seekers one more reason to dispose of their documents? They might prefer to take the chance of being able to persuade the interviewing officer that they had a reasonable excuse for not having documents. In other words, the provision would not provide the intended disincentive if people thought that they had the opportunity of persuading the interviewing officer to use his discretion.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

I do not dissent from that. Indeed, I accept the policy behind the clause, which is to prevent people from cheating the system by dishonestly destroying their travel documents. That is an acceptable end for the Government to want to achieve. However, I am concerned about a potential for injustice that is curable. The point of Committee discussions is to alert ourselves and the Government to niggles that ought to be ironed out before the Bill is enacted. I hope that the hon. Gentleman will agree that our present discussion is part of that process. We want to be able to leave this building once the Bill has received Royal Assent knowing that we have done something useful.

I should like to highlight further points where potential injustice lies. The maximum penalty of two years under subsection (7)(a) is not for indictment for illegal immigration, but for not being in possession of a document, which is quite a draconian penalty.

Beverley Hughes rose—

Photo of Edward Garnier Edward Garnier Conservative, Harborough

I am about to be corrected.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

The focus of the whole clause is on those who are not in possession of a document without a reasonable excuse. As I have made clear, the intention is for the offence to bite on people who deliberately destroy and dispose of such documents, not on those who simply do not have them.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

Again, I accept what the Minister's policy is, and I can see that it has merit, but I am concerned that people could arrive in this country, for good or ill, and in theory be sent to prison for two years for not possessing a document. That needs to be thought about before we pass it into law. There may be good reasons for sending people to prison for illegally entering this country, but we should be careful before we pass into law a provision that says that because a person does not have a document when an immigration officer first interviews them, they can be sent to prison for two years.

Some people might think, ''Well, that's a jolly good thing. Anyone without a relevant document in front of an immigration officer should get five years.'' I happen to disagree, but in any case, if we are to go down that path, for goodness' sake let us be clear in our language, so that there is not an injustice. My hon. Friend the Member for Woking was quite candid: to paraphrase him, he accepted that there will be very few cases in which his concerns ought to be considered with care.

However, it does not matter whether there is one case or a thousand. If we legislate and create a potential injustice, we should do so deliberately, because we have thought about it and are prepared to be unjust—either that or we should legislate in another way.

My plea to the Government is to look carefully at what they are doing in the clause before they nail themselves to that cross. If they can justify the proposals in their own mind and demonstrate that they are fair and meet their policy goals, that is okay—they should go ahead and introduce them. However, they should do so not by mistake but on purpose, and be clear about what they are doing. They should understand that people could go to prison for two years for not having a document, which in certain circumstances would be unfair. The potential for injustice is there and I simply point it out. I accept the Government's policy behind the clause and I thank my hon. Friend the Member for Woking for providing me with this opportunity to set out my concerns.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

As hon. Members have made clear, the amendments would limit the circumstances under which the offence would apply. A person could avoid committing the offence if they produced an immigration document immediately or within either three days of an immigration officer making the request, as suggested by the hon. Member for Woking, or seven days, according to the hon. Member for Somerton and Frome. I entirely understand and concur with the wish for the law not to penalise those who are not seeking to frustrate immigration controls. However, I hope that I can assure hon. Members that the amendments that they seek for assurance on that point are not necessary and, for reasons that my hon. Friend the Member for Glasgow, Cathcart identified, would not be appropriate.

In other debates hon. Members have acknowledged, and I have agreed, that the majority of cases to which the clause is likely to apply are those in which a person comes in at a port. People arriving by plane, sea or Eurostar would need an immigration document to begin their journey, so they should have it with them to present themselves to UK immigration control.

I am sure that hon. Members will accept that in those cases, the introduction of a three or seven-day period of grace is simply not appropriate. Everybody has to present their documents at immigration control. We are talking about the unlikely event—I am grateful that the hon. Member for Woking acknowledged that it is unlikely—of a case in which a person might have a reason for not having an immigration document either on arrival at an airport or, more likely, in country.

By providing the defence of ''reasonable excuse'', the clause allows for those unlikely cases in which someone at an airport might be able to argue that they had bribed someone to get them on to the plane—I am not sure: there is a possibility. However, in the example outlined by the hon. Member for Woking, who sought certain assurances, we are probably talking about people who turn up in country and do not have the

document with them at that time. He hypothesised that such a person might have, or would say that they had, the document elsewhere and could obtain it. In such circumstances, because of the requirements on the immigration service in subsections (6) and (8), immigration officials would, if they accepted such an explanation, say to them that they could produce their document on another occasion—obviously, in a day or two.

Subsection (6) does not assume guilt. It states:

''A person shall be presumed for the purposes of this section not to have a document with him if he fails to produce it''

That is self-evident: the person does not have a document. Subsection (8) states that if the constable or official

''reasonably suspects that a person has committed an offence . . . he may arrest the person''.

If the official is given an explanation why the person does not have a passport—for example, ''It is 100 miles away; I can get it to you in two days,'' it is questionable whether the official can reasonably suspect that an offence has been committed. In those circumstances, we would expect that if the immigration officer believed that person—there would be an issue of credibility—they would have the power not to arrest that person, and to allow them leeway and more time to produce the document. We have to allow officials the discretion to make such reasonable judgments on the basis of whether the facts given by a person add up to a coherent explanation, which it would be reasonable for the officer to believe, and thus allow the person more time to present the document.

For those reasons, I ask both hon. Gentlemen not to press their amendments. The clause as drafted, with the assurances that I have given, should enable hon. Members to feel that in those circumstances in which it is clear that someone is not trying to frustrate or deceive immigration control, and has given a reasonable explanation that the officer finds credible, an arrest is not required. In such circumstances, the officer has the opportunity to allow a document to be produced, and I expect that that would happen.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking 11:15 am, 8th January 2004

This has again been a useful debate, but towards the end of her remarks, the Minister seems to have been mildly confused about the two uses of the word ''reasonable''. I return to my example of the person who flies in and arrives lawfully with a passport, but the situation in the home country changes dramatically—I accept that the hon. Members for Glasgow, Cathcart and for Waveney made valid points on this—and on reading about it, the person, who has left his document at home with his auntie 100 miles away, makes an application for asylum. The problem about the use of the word ''reasonable'' is that the Minister started to say, in effect, that if in the official's mind the person concerned had a reasonable excuse, they would not be arrested. We need to be careful about that, because the question of a reasonable excuse does not come into play until the court hearing is under way and the case is before the district judge or a jury, not before an immigration officer.

What comes up before the immigration officer is a reasonable suspicion that the person has committed an offence. That is where the word ''reasonable'' comes in; of course, it is not only a reasonable suspicion that a person has committed the offence but a blinding certainty if they turn up without a document. It would be an interesting immigration officer who did not have a reasonable suspicion that a person did not have a document with them if indeed they did not have it with them. It would be rather strange not to have a reasonable suspicion in those circumstances.

Photo of Bob Blizzard Bob Blizzard Labour, Waveney

The hon. Gentleman is assuming automatic prosecution. Is he right to do so?

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

I understand the hon. Gentleman's point but we must be clear what the Bill states. There was the same problem in the Criminal Justice Bill last year about under-age teenagers kissing each other. It is no good the Government putting something in statute and then saying, ''We shall issue guidance to say never prosecute.'' That is not a satisfactory way to proceed. It would be better to make something clear in statute rather than relying on guidelines.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs)

The hon. Gentleman makes exactly the right point. The problem with the clause is that the offence is not having the document; there is no reasonable excuse at that point. Under subsection (6) a person shall be ''presumed'' not to have a document if he does not present it at first interview; the immigration officer is allowed no discretion then. The only point at which the arresting officer can use his discretion is when he reasonably suspects that a person has committed the offence, which, as the hon. Gentleman says, he clearly has if he has not complied with the previous subsections.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

To put it another way, I would be amazed at the calibre of an immigration officer who did not have a reasonable suspicion that a person has committed an offence when they do not produce a document, as the Bill states that that is an offence.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

Does the hon. Gentleman accept that in the wording of subsection (8), if the officer reasonably suspects that a person has committed an offence—that is, he does not have the document—he may proceed to arrest? If, as in the hon. Gentleman's example, the person then says, ''Ah, but I do have a document and I can produce it,'' there is a question whether the officer is reasonable in his suspicion. That is what I was trying to explain. The officer then has to make a judgment as to whether the claim to have a document that is producible is credible. It is credible if, in the circumstances that the hon. Gentleman outlined, the officer believes that a document can be produced. It clearly would not be in the public interest to proceed to arrest in those circumstances rather than to allow that document to be produced, because if the document can be produced, an offence has not been committed.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

It is true that it would be in the public interest for the officer not to make an arrest, but the officer does not have the opportunity to engage in beliefs about whether or not the document is in Solihull and can be produced tomorrow morning. The officer is concerned only with the offence. Later, the district judge will be concerned with the reasonable excuse. We shall discuss what is an interview in another debate. I will not steal the thunder of the hon. Member for Somerton and Frome, but if I were that person from Zimbabwe, when making my application for asylum and being asked for my document, I would be frightfully tempted to say, ''I haven't got it, it is back in Tunbridge Wells. I'm going to go home and get it.'' On being told, ''You can't do that. You have committed an offence,'' I should be further tempted to say, ''I withdraw my application for asylum,'' and make it next week. What will be done then?

Beverley Hughes rose—

It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past Two o'clock.