Clause 2 - Entering United Kingdom without passport

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

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Amendment proposed [this day]: No. 2, in

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

', or fails to produce to an immigration officer within three days,'.—[Mr. Malins.]

Question again proposed, That the amendment be made.

Photo of Mrs Marion Roe Mrs Marion Roe Conservative, Broxbourne 2:30 pm, 8th January 2004

I remind the Committee that with this we are discussing 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

I was about to give way to the Minister just before the lunch break, so I will do so now.

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 hon. Gentleman said that, in the circumstances that he outlined, an immigration officer at a screening unit who was presented with somebody without a document would, in practice, invariably arrest that person on the reasonable suspicion that they had committed an offence by not having a document. Does he not accept that where a person claimed that they had entered the UK lawfully and had, therefore, used a passport, the official would check the facts, assess the story's credibility—including claims that the situation in that person's country had changed substantially—and make a judgment? Does he not accept that immigration officials make judgments about credibility all the time, at every stage of the process? If there were no reasonable suspicion that the person had no document, the reasonable thing—this is what I would expect—would be to allow that person to produce the document that they claimed to possess.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

The Minister is right to the extent that where an in-country applicant who claimed asylum was asked to produce a document and said, ''I've left it back at home, a hundred miles away, but I'll have it here by tomorrow,'' the immigration officer would inevitably have the good sense to say, ''Go and fetch it and bring it back tomorrow.'' However, I fear that the Bill is drafted in such a way that the immigration officer would undoubtedly have a reasonable suspicion that an offence had been committed; he would not be concerned with a reasonable excuse, and could—though, in practice, he surely never would—make the arrest and take the person into custody.

We have had a good debate about whether to allow someone to produce a document within three days. I remain of the view that no harm or mischief would be caused by agreeing to the amendment. As I said, there are reasons why in-country applicants, in particular, may not have the relevant documents when they are first interviewed by an immigration officer. They may simply have left them at home or in the safekeeping of a family member. They may, indeed, have left them with a court or even with the Home Office in connection with a family member. Such documents may also need to be obtained from abroad from time to time. To return to the parallel with the driving licence—it is perhaps not the best parallel—there is an argument for saying, ''If you don't have the document on you, produce it within a few days.'' That is what happens in the motoring world.

Having said that, I think that the Minister understands the thrust of our arguments. I am reassured by one or two of her comments, if not by the totality of what she has said. In those circumstances, 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. 4, in

clause 2, page 2, line 4, after 'immigration', insert 'or other'.

Photo of Mrs Marion Roe Mrs Marion Roe Conservative, Broxbourne

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

No. 5, in

clause 2, page 2, line 5, after 'is', insert 'or has been'.

No. 52, in

clause 2, page 2, line 6, leave out 'and' and insert ','.

No. 54, in

clause 2, page 2, line 9, leave out 'an immigration' and insert 'a'.

No. 7, in

clause 2, page 2, line 9, after 'immigration', insert 'or other'.

No. 8, in

clause 2, page 2, line 10, after 'is', insert 'or has been'.

No. 55, in

clause 2, page 2, line 11, leave out 'and' and insert ','.

No. 61, in

clause 2, page 3, line 10, leave out from 'time)' to end of line 15.

No. 62, in

clause 2, page 3, line 12, leave out paragraphs (a) and (b) and insert

'any document which contains sufficient information to identify that person or dependent child or their nationality or citizenship.'.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

I welcome my hon. Friend the Member for South Norfolk (Mr. Bacon) to the Committee.

Amendment No. 4 relates to the production of identification documents. It would permit the applicant at the first interview to produce another document that has been in force even if it is not currently in force. The purpose is straightforward. Why is it necessary for someone to produce a document when first interviewed by an immigration officer? The obvious answer is to establish who that person is. That is the mischief of which the Government complain in the explanatory notes on clause 2. By destruction of documents or something similar, too many people do not give immigration officers or other officials a clue as to who they are and where they are from.

Can that be cured? Yes. Can it be cured by the production of an immigration document, which according to the explanatory notes is effectively a passport or ''equivalent document'', whatever that may mean? Yes, that is one possible cure. Is it possible or sensible to amend the clause to give the person presenting himself the opportunity to present, if not a passport or other equivalent document, some other satisfactory means of identification? It would be all to the good if that was possible.

As I mentioned earlier, a huge proportion of births across the world go unregistered, meaning that the person has no birth certificate and it is difficult for them to get a passport. Huge numbers of people would not have a passport or equivalent document, such as travel permission from their country, but such people may have a document that can satisfactorily identify them. Some countries may, for example, have a military call-up document. We all carry documents that can establish who we are to a reasonably satisfactory degree. There is a variety of such documents in the UK.

If, on first interview, an asylum applicant was unable to produce a passport or relevant travel document, because they had never had or been given one, would it be satisfactory if they said, ''This is me, here is another document that adequately establishes who I am, and I am doing my best to co-operate with the authorities''? My amendment would allow them to do that.

The same general point emerges from amendment No. 5, which would allow someone to use an immigration document that either is or has been in force, by which I mean an expired document. It is a question of slightly widening the range of documents that are satisfactory on first interview.

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

I have tabled a series of amendments in the group, and they fall into two distinct sets. One set would achieve exactly the same as the amendments tabled by the hon. Member for Woking (Mr. Malins), so I will not expand at length. Amendment No. 52 would delete the word ''and'' in the phrase

''identity and nationality or citizenship''.

In the absence of something that specifically refers to nationality or citizenship, and given that the one should and could lead to the other, that would allow

for another acceptable means of properly identifying a person. Replacing the ''and'' with a comma would extend the range of documentation that is appropriate for the identification of an individual, which seems right. The argument is exactly the one that has been expounded by the hon. Member for Woking, so I shall not repeat it. I hope that that is sufficient to explain amendments Nos. 52, 55 and 62.

I confess that I am slightly puzzled about why amendment No. 51 was not selected, as it is analogous to amendment No. 54 but relates to a different subsection. It was an attempt to improve the Bill's structure. I do not claim superiority of any kind, but I find it puzzling that the term ''immigration document'' is used in two consecutive clauses but defined differently. That is confusing and unnecessary. If you would give me the leeway, Mrs. Roe, I would like to explain what amendment No. 51 would have done had it been selected, as it will help the argument. I hope that I shall not be straying too far from the scope of the group.

Amendment No. 51 would have removed ''immigration'' from subsections (1) and (2), so the clause would have read ''if he does not have with him a document which (a) is in force, and (b) satisfactorily establishes his identity and nationality or citizenship.'' The clause would define the document for the stated purpose. Such wording would have avoided difficulties that might have arisen because the same term is defined in two different ways in two consecutive clauses. If the provision were self-defining, one would not need the definition of an immigration document in subsection (10).

I am not going to die in the ditch over that, but it might improve the Bill's structure, which should avoid later difficulties. I would be grateful for the Minister's consideration of whether that might be appropriate.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

I do not want to die in any ditches either, particularly after today's rain, but I invite the Government to have another think.

I want to deal with the question of the immigration document. The hon. Member for Somerton and Frome (Mr. Heath) pointed out that there is a different definition for ''immigration document'' in clause 2 from that in clause 3. Clause 3(3) amends the Forgery and Counterfeiting Act 1981 so that ''immigration document'' means a

''card, adhesive label or other instrument''.

Applicants for asylum who go before the immigration officer may not have a piece of paper that comes under the definition of a passport or a document that relates to a national of a state other than the United Kingdom and is designed to serve the same purpose as a passport. However, to use an historical example, what would happen to someone who escaped from a Nazi concentration camp during the second world war but had an identity number tattooed on his arm? Is that not one way of establishing the identity of the bearer of that tattoo? But it is not a document. Had the Bill been in force in 1940 to 1945 or thereabouts, that person would not have been able to establish to the

satisfaction of the immigration officer that he had a means of identification that came within the terms of the Bill, still less within the terms of clause 3.

We need to be a little more imaginative about ways of establishing identity. That is our important objective here. We want to prevent people from presenting themselves at ports of entry and deceiving immigration officers about their identity. It is unimportant whether they have a passport or some other means of identification—what is really important is who they are and whether that can be established to the officer's satisfaction. Passports can be forged. Other documents can be forged. We need to consider other means of establishing identity.

Let me give another example. What about a military dog tag? Soldiers in action have around their necks a chain with a brass plate engraved with their name and military number. If a Government lose their authority because of a rebellion or a revolution and a former member of that country's armed forces ends up at Heathrow, is he to be denied the right to establish his identity simply because he can produce only a military dog tag? I ask the Committee to forget about all the difficulties of getting on a plane without a passport and so on. I merely mention the problem to show that while subsections (1) and (10) and clause 3(3) look neat and tidy they may produce opportunities for the sorts of injustices that I was describing before we adjourned this morning.

It is easy to dismiss my concerns as mere debating points, but I hope that the Minister will take them rather more seriously than that. Even if she does not accept my detailed examples, perhaps she will accept my motive for presenting them, so that she can deal with them rather more cogently than I have. There it is. The Bill, whatever its general policy, throws up some problems, and it is the duty of all members of the Committee to consider them. I trust that the Minister will be able to deal with the points that I have raised.

Photo of Tom Harris Tom Harris Labour, Glasgow Cathcart 2:45 pm, 8th January 2004

I rise briefly in defence of the comma, and specifically to talk about amendment No. 52. One of the joys of serving on Committees is that, as someone who is not a trained lawyer, and therefore probably in a minority, I find it interesting to look at how syntax and punctuation can change the meaning of sentences. I was given as a Christmas present by my son a book by Lynne Truss called, ''Eats, Shoots & Leaves''. At the risk of boring the Committee, I should explain that the title is based on a story of a panda who walks into a cafe, orders and eats a sandwich, and then stands up, takes out a gun, fires two shots in the air and walks out. When the waiter asks him why he is doing that, the animal says, ''I'm a panda, look it up,'' and throws the waiter a badly punctuated dictionary. The definition of panda says, ''Eats, shoots and leaves.'' Amendment No. 52 would insert a comma after the word ''identity'' which would render the sentence completely different from that in the clause as drafted and mean that establishing the person's identity would be an option. We should not frame measures that allow people who come into

the country to establish which country they came from and perhaps their citizenship but not to establish who they actually are. Surely, the point of the Bill is to identify who individuals are. It is far easier to impersonate a citizen of a specified country than it is to impersonate a specific individual. If the amendment were accepted it would undermine the point of the clause.

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 amendments would make it not an offence to arrive without a valid passport or other document for that purpose if a person can produce some other documentation, including an out-of-date passport, which satisfactorily establishes identity and nationality or citizenship for themselves or their children. That would mean that a person could produce any sort of document purporting to establish their identity, nationality or citizenship.

I shall make some specific points, but it is important at the outset to go back to the intention of the clause, which we discussed this morning: it is to catch those who deliberately destroy the documents that they used for embarkation to the UK in the first place. It is not to catch the people who may be able to arrive here without the passport or other documentation that enables them to travel but perhaps with some evidence of experiences testifying to their claim to be refugees and in need of asylum. The clause is not to catch those people; it is precisely to catch people who we believe have deliberately destroyed their documents.

There are several reasons why accepting the amendments would compromise the intention of the clause. First, if someone could produce any other sort of document to establish their identity, nationality or citizenship, the task for the immigration service, the police and the prosecution would be to prove beyond a reasonable doubt that the documents did not establish any of these, or indeed were forgeries. Given that the documents could come from any part of the world, possibly from different kinds of organisation, and by definition, in comparison with a passport, could be easily forged, the burden of proof beyond reasonable doubt on our prosecuting authorities would be very difficult and unreasonable.

Secondly, even if we or the courts were satisfied that the documents established identity, nationality or citizenship, there is no guarantee at the end of the asylum process, if people's claims are not accepted, that the country of nationality or citizenship would be satisfied that that document was sufficient for them to accept back a person whom we needed to return.

I made it clear to hon. Members that as well as trying to change people's behaviour so that they do not destroy documents, one of the main purposes of the proposal is to ensure that, at the point of claim, by avoiding the destruction of documents, as far as possible we can identify a person and establish their nationality with a high level of credibility. Thus we can do what hon. Members on both sides of the Committee want: return more people whose claims fail. That would be very difficult if we accepted at the outset of the process a document that the very countries from which those people came would not accept as sufficient proof of nationality.

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

My right hon. Friend stated that all hon. Members present want to ensure that we can send back people whose claims are false. Presumably, at some point in our proceedings, some parties will table amendments that are designed to help us in that process. It is early days yet, and so far all the amendments have been weakening amendments, but at some point certain parties may table strengthening amendments.

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 am sure that, in saying that, my hon. Friend has in mind the comments made at the outset by the hon. Member for Woking that there is shame on any system if people are not returned successfully when their claims fail. The intention of the clause is that at the point at which we receive people, when we know that they had a document at embarkation, they retain that document, precisely so that we can return people. I would be interested in any amendments from any quarter that help us to strengthen the potential of the clause.

The amendments would have problematic consequences in terms of the overall intention and objective of the clause. Let us consider the amendments from another point of view. Widening the scope of the clause in this way might have unintended consequences, even given what may be the hon. Gentleman's objectives. Let us say that the clause was amended to include other documents, and we applied the same approach to other documents as the clause applies to passports and the rest of the documents identified in subsection (10). A much wider group of people—the kind that he described, who perhaps had never had a passport but could be expected to have another kind of identity document—could be at risk of prosecution if we thought that they should have had a lesser identity document but had destroyed it en route.

Let us suppose that people entered the country clandestinely, hidden in a vehicle, and did not have a passport, but we reasonably thought that they might have had some identity document. They then claimed asylum in country at a screening unit and either admitted that they had destroyed such a document so that we could not identify them, or were believed by us to have done so. Such people would, under the amendment, be within the scope of prosecution under the clause.

I have made it clear that, according to the limits of the definitions in subsection (10), the clause is intended to catch only people who deliberately destroy either a passport or another travel document of the same level of authenticity.

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

The Minister is right in saying that, but it does not actually concern me, because the purpose of the clause seems to be to deal with those who deliberately destroy the documents on which they would otherwise rely to establish their identity and citizenship. It is immaterial to me whether that is a passport or, in the case of someone who does not have a passport, for whatever reason, another document. If they destroy those documents deliberately to mislead

the authorities, it is right to prosecute them on the basis of the clause, but if they do not do so deliberately and have an alternative means of identification on which they rely to establish their identity, it is equally right not to prosecute them simply for not having a passport.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism) 3:00 pm, 8th January 2004

I return to the point that I made at the outset, which is that the intention behind the clause is to be able successfully to prosecute people who deliberately destroy documents that we know that they had on embarkation. Someone getting on a plane, a sea ferry or Eurostar would not be able to embark on those methods of transport unless they had a valid travel document. For most of the citizens that we are discussing, that would not normally be some form of identity card. It would be a passport, or a document equivalent to a passport.

For those reasons, the clause as drafted rightly specifies immigration documents to a high standard. We can be sure that people had a document at the point at which they got on, for example, a plane. They could not get on a plane with some other form of identification, such as a birth certificate. They would have to have a passport or a document that satisfied the requirements in subsection (10)(b). To widen the scope of the clause to other documents would not only frustrate its intention but muddy the waters as to whom we are intending to prosecute with the offence.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

We are trying to prevent people pretending that they are one sort of person when they are another. We are trying to prevent people coming into the UK claiming to be asylum seekers when, in fact, they are economic or other migrants. A passport, or in the absence of a passport or travel document, some other document such as that referred to in subsection (10)(b), will not help the Government to establish the proper status of a person presenting themselves at the port of entry.

The Minister is allowing herself to be seduced into confusing the way in which she and I might accept a passport with the question of identity. A passport may not help us to establish a person's identity. It may simply be a document containing a self-serving statement, ''This is me, and I'm telling you it's me.'' Someone cannot really corroborate their own evidence in that respect. We should be careful that we are not lazily accepting that the passport or its equivalent is the best and only way of establishing identity. If we concentrate on the evil that we are trying to prevent, rather than on the means of establishing identity, we will reach a better conclusion. At present, the Minister is more concerned with process than with substance, although I accept that process is often important.

I agree that personal reminiscences are not always helpful when we are trying to establish law, but I shall recount a brief anecdote. I was able to travel from a hotel in Spain across the border to Gibraltar and back to Gatwick airport and home on no more than a Barclaycard—I had left my passport in the hotel in Spain. I was travelling within the European Union but, none the less, my identity could not be established

except by the fact that I said I was who I was. I said that my name was Edward Garnier, and the only way in which I could ''prove'' it—it was no proof—was to say, ''Here is a credit card, with my illegible signature on the back, and E. H. Garnier printed on the front.'' No one bothered to check whether I was Edward Garnier, and my wife—no doubt for good reasons—was not admitting that I was Edward Garnier. I think that I have just demonstrated why it is not always helpful to include personal reminiscences in matters such as this—although I am still married to her, by the way.

That anecdote demonstrates to me that we should be careful about getting too excited about particular sorts of documents. We are trying to establish the real identity, in so far as one ever can, of the individual claiming to be an asylum applicant in front of the immigration officer.

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 the hon. and learned Gentleman rightly admitted when he was recounting the anecdote, the journey that he undertook was by an EU citizen entirely within the EU. For that purpose, there are various mutual recognition agreements between EU countries on a number of documents that are not passports. However, that is not relevant in this context.

We are not discussing issues concerned with the validity of the claim. Identity is important, and it is one of the reasons we want to introduce clause 2. We want to try to preserve information where we think people have started a journey with a record of identity, even if it is a false record or passport, because it helps us to track the route they came from and therefore their probable country of origin.

The primary purpose of the clause, however, is to change people's behaviour—to stop them destroying documents, because that makes it more difficult for us to identify people. Hon. Members must remember that if we want to prosecute people we will have to take cases through courts of law. In those circumstances, it seems important that we restrict the cases, as we said that we largely would do, to those circumstances where we are sure that, because of the mode of travel—or, in some special circumstances, because of intelligence we have received—the person embarked with a document that met the requirements of the country they were leaving and their immigration control. That is a passport or a document that relates to a national of a state, as outlined in subsection (10)(b).

In order to be able to apply the clause successfully and to be able to take cases successfully to the courts, it is important that we restrict our definition of ''immigration document'' to those documents that are internationally recognised as authentic documents for identity, nationality and the purposes of travel. It is in that way that we can successfully apply the clause, obtain some successful prosecutions and therefore reinforce the signal we are trying to send. Destroying documents is not acceptable behaviour and we will respond to that behaviour with prosecutions and therefore, I hope, start to break the power of the facilitators, who often tell people to destroy their

documents. If people keep their documents, we will be able to identify them and take them through the process in a better way.

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

The Minister has not addressed the—what was intended to be helpful—drafting of my amendments. I pull her up on that. She has partly answered them en passant in saying that she needs the definition of a passport or something similar. I hope that she might agree that it is still unhelpful to have the term ''immigration document'' in consecutive clauses defined in different ways. In this clause, she is talking about a travel document, not an immigration document as defined in clause 3. Will she look at the matter to see if there is a more felicitous way of wording the two clauses?

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 raised the matter myself. As Members will have discovered for themselves as they have gone through the Bill in some detail, although superficially it looks confusing that ''immigration document'' is defined one way in clause 2 and another in clause 3, that is because the documents referred to in those clauses are completely different documents.

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

But I do not think that it is unreasonable. The term ''immigration document'' is a generic term used in the legislation, but within the confines of each of those clauses it is defined specifically. Here, as the hon. Gentleman rightly says, it is restricted to a travel document that would be accepted internationally, but in clause 3 it refers to additions to travel documents such as cards, stickers and vignettes.

It is right that the different definitions are pointed out. ''Immigration document'' is a very wide generic term. It could mean many other things besides those referred to in clauses 2 and 3, but in each of those clauses there is a specific definition to say which immigration document is being referred to for the purposes of each of the two clauses. With that, I hope that I have reassured the hon. Gentleman that to go down the route of the amendments would not achieve what he seeks. It would muddy the waters on the clause's implementation. I respectfully ask him not to press the amendment.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

I am not convinced by the Minister's reply. Periodically, during her speech, she said that the Government's intention is only to catch people who destroy documents that we know that they had. We all agree with that. I assure the Minister—let her be in no doubt—that no member of the Committee dissents from the view that those who destroy their travel documents with the intention of denying to the host country the ability to find out who they are, should be punished for that. However, that is not what the clause says. If the clause said what the Minister says she has in mind as the mischief, we should understand it, but the clause does not say that at all. It does not use the phrase ''destruction of documents''. It uses the phrase

''does not have with him'' an immigration document. That is potentially a different scenario.

As I told the Minister earlier, there must be thousands of genuine refugees who have never had a passport, and cannot get one or its equivalent. When they arrive in this country, there is no doubt that, under the clause, they will be guilty of an offence. Is the Minister seeking a method whereby people's identity must be known to the immigration officer? Is not that what she wants? The immigration officer must know with whom he or she is dealing and from what country they come.

What about Zimbabweans, for example? Removals to Zimbabwe have been suspended for, I think, a couple of years. However, what about somebody who is a member of the opposition party, the Movement for Democratic Change, and is being prosecuted? First, they cannot obtain a passport in Zimbabwe—end of story. Secondly, they cannot obtain the equivalent of a document giving them lawful permission to travel. So what do they do? They go over the border to South Africa, usually. They will probably obtain a visa to enter the UK and buy a South African passport or travel document. Interestingly, their genuineness as a refugee may not be open to doubt, but they will arrive at Heathrow with a false travel document and passport from South Africa in their pocket. It will become plain within hours, from documentary evidence, that they are a leading member of the Zimbabwean opposition and undoubtedly entitled, as such, to have their asylum claim heard and decided. The lack of flexibility in the clause means that they cannot pray in aid their proof that they are a member of the Zimbabwean opposition. They have not, by the way, destroyed their passport or travel documents, but those are not valid. They cannot be enforced, because false documents cannot be enforced.

My amendment seeks to highlight the problem of those tens of thousands of people who cannot obtain the documentation that the Minister requires of them because, under the clause, an immigration document is a passport or a document that is designed to serve the same purpose as a passport. Thousands of people who are genuine refugees have never had such documentation and cannot obtain it. What does the Minister want from them? She does not actually want a passport. She does not actually want a travel document. She wants proof of who they are, which is what is required.

All my amendment seeks to do is to widen the clause a little to enable people, through another document, to prove who they are, because they cannot obtain the first two documents. That is what the Minister wants and my amendment would help towards that end.

Photo of Edward Garnier Edward Garnier Conservative, Harborough 3:15 pm, 8th January 2004

Even though the Zimbabwean opposition member to whom my hon. Friend refers has a defence under subsection (3)(b), which is that

''he has a reasonable excuse for not being in possession of'' the limited sort of identity document that is required under the Bill, we are wasting a lot of time and public money, when the evil that we are trying to stop is the improper use of our safe haven system. Surely no one with any common sense would expect the Zimbabwean official opposition member to be taken to court, so that he could raise the defence of having a reasonable excuse for not being in possession of a Zimbabwean travel document, be it a passport or something else. We all know that he could not have obtained one legitimately as a member of the MDC or another party that is antipathetic to the current regime in Zimbabwe.

It is no good for the Government to say, ''Just look at clause 3'', when all they would be doing is wasting time and public money, not dealing with the criminal behaviour that we all want stopped.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

My hon. and learned Friend is absolutely right. It is probably plain that, under the subsection, there would be a defence. We would not expect the immigration officer to make a judgment on such a difficult issue. It would have to go before a court. Otherwise, the immigration officer would be setting himself or herself up as judge and jury. The matter of whether such an excuse is reasonable would have to go before the district judge or jury. I believe that such an excuse would be reasonable, but much time, money and effort would be wasted. The issue that we are considering is proof of identity. My amendment is concerned with proving who a person is.

Photo of Bob Blizzard Bob Blizzard Labour, Waveney

Under the system that the hon. Gentleman is describing, what would be the safeguard against someone who was not a member of the Zimbabwean opposition, who does not have a good case for asylum and is trying to play the system to enter the country, after which time he proves to be impossible to deport because he does not have a passport, so it cannot be known from where he came? What would the safeguard be against such action under the system proposed by the hon. Gentleman?

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

There is no safeguard under any system against a false claim. It is up to the adjudicator and the tribunal to decide the merits of a claim. My narrow amendment would merely help the Government with the vexed issue concerning those who chuck away, burn or tear to bits any documentation in their possession, whether it was a genuine passport or travel document or other genuine documents that prove who they are. All the amendment seeks to do is to help the Government. The mischief that we are trying to deal with is that carried out by the person who destroys such documentation. The clause is about that. I need also, however, to protect from time to time those people who have not ever been able to obtain a passport or travel document, but who can prove who they are. They should not be subject to a criminal charge.

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, in terms of the first scenario to which he referred about the Zimbabwean person, that a person who arrives

with a false passport, does not destroy it and produces it at immigration control would not be caught by the Bill? That person would have a reasonable excuse for not having a valid passport in the first place. Does he not agree that his amendment would allow somebody who embarked with a valid passport and destroyed it before presenting themselves to an immigration officer, to present another, lesser, possibly forged form of identity, thereby potentially taking themselves outside the scope of the offence? It is precisely that latter group of people to whom we want the offence to apply—those who deliberately destroy their document.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

The point was made earlier by my hon. and learned Friend the Member for Harborough that the issue of a reasonable excuse, which is a defence to a charge, is something that that Zimbabwean might well, should well and would well raise in court, where it would have to be decided by the judicial authorities. However, reasonable excuse does not come within the purview of the decision making of the immigration officer. That is a matter for the court to decide further down the line.

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

I am delighted to oblige the hon. Gentleman, as he has obliged me. The debates we have had so far on the various groups confirm, in my view, that the Minister could satisfy many of the issues that the hon. Gentleman raised, and might have raised, by simply changing the point of insertion of the reasonable excuse to qualify the initial offence, rather than be a defensive law at the point of trial. Does he agree?

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

The hon. Gentleman makes a fair point. It follows from what my hon. and learned Friend and I said that the reasonable excuse position currently under the clause, operates down the line when the matter gets to court. It is not for the defendant in this case to put his reasonable excuse to the immigration officer, because the immigration officer would then have to judge reasonable excuses in relation to the rest of the criteria in the clause. The immigration officer is not concerned with these matters. Rather, the immigration officer is concerned with the issue of whether there is a reasonable suspicion that the person has committed an offence. Of course there is reasonable suspicion that a person has committed an offence if he or she turns up without the document. That is as far as the immigration officer can go.

The immigration officer is not expected to make judgments about whether the document was destroyed for a reasonable cause. Those are matters for the courts. I believe that the hon. and learned Member for Somerset and Frome may have a point. It is a matter for the drafting of the Bill and if the issue of reasonable suspicion came up at the first stage, it might be more helpful. Is it not within the powers of those who draft Bills for the Minister to understand the purpose of our amendment? Are the parliamentary draftsmen capable of understanding the points that have been made by the hon. Gentleman? If they follow it and believe that

we are on to something, it must be possible for them to come forward at a later stage during the proceedings, with suitable draft amendments.

I do not want to labour the point further. The Minister knows exactly where we stand on it. It is deeply unsatisfactory to have the clause in its present state. She knows that it is deeply unsatisfactory for her simply to say to us, ''Listen, the purpose of this is only to deal with people who tear up their documents''. Whether that may be the purpose of the clause, it is not what the clause says. Therefore, changes must be made to the clause on this and other areas between now and Report. Meanwhile, having flagged it up, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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 beg to move amendment No. 67, in

clause 2, page 2, line 15, after 'national', insert—

'(aa) that he is a member of the family of an EEA national and that he is exercising a right under the Community Treaties in respect of entry to or residence in the United Kingdom,'.

Photo of Mrs Marion Roe Mrs Marion Roe Conservative, Broxbourne

With this it will be convenient to discuss Government amendment No. 68.

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 these amendments will be satisfactory to the Committee. As hon. Members will be aware, as the provision is drafted, being an European economic area national is a defence in clause 2. EEA nationals may exercise treaty rights to stay in the UK and, therefore, would be unlikely to destroy documents in order to evade immigration control. As I keep rehearsing, that is the behaviour that we are trying to tackle.

The amendments bring family members of European economic area nationals in line with EEA nationals themselves. Those family members also have derivative treaty rights under EU law, and it would not be appropriate to exclude them from the scope of the defence that the Bill would provide. I hope that that is sufficient explanation for what is a fairly technical amendment.

Amendment agreed to.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

I beg to move amendment No. 9, in

clause 2, page 2, line 17, at end insert

', or

'(c) that he has not, in the last five years, possessed such a document.'.

Photo of Mrs Marion Roe Mrs Marion Roe Conservative, Broxbourne

With this it will be convenient to discuss amendment No. 10, in

clause 2, page 2, line 22, at end insert

', or

'(c) that the person has not, in the last five years, possessed such a document.'.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

We now come to the part of the clause that deals with defences. To be clear, we are talking about a defence in a court of law, not a defence to be considered by the immigration officer. I will not labour amendment No. 9, which would give a reasonable excuse to a person who could show that they had not possessed such a document in the last five years, on the

basis that many of those acting in good faith may never have had—or may not have had for years—the sort of document required.

Amendment No. 11, which deals with whether there should be a defence where a document has been destroyed under duress, is more interesting and has not been debated. The clause states that it is not a defence to say that such destruction resulted from complying with instructions or advice given by another person. I think that, if a document is destroyed by somebody as a result of duress from others, there are occasions on which that should be a specific defence. As the Minister knows, people frequently set out from their country of origin—say, the far east—with documents, perhaps a passport if not a valid travel document, and come under the influence of criminal gangs that move them from A to B.

Like the Minister, we want to destroy the influence and unpleasantness of those gangs, which exploit people, take money off them and often have a long-term hold over the victims or their families either in this country or abroad. They often make threats of violence or worse, not to the victim alone, but to their family in the UK or in their country of origin. Those threats can last for years. That is nasty and ties in with cases in which victims of the smuggling gangs set out with such documents as they have, perhaps including a travel document, but during the journey are told by the gangs to destroy them under some sort of threat—hence the reference to duress as a defence.

The amendments are merely a peg on which to hang a shortish argument, and a way of bringing into play the issue of criminal gangs and the influence that they have over some of the people whom they transport. I hope that we will hear more from the Minister on that subject.

Photo of Mrs Marion Roe Mrs Marion Roe Conservative, Broxbourne 3:30 pm, 8th January 2004

It might help the Committee to consider also amendment No. 11 as it is similar to the amendments in this group. Of course, if the hon. Gentleman wants to have a vote on it later, he could.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

I am grateful to you, Mrs. Roe. I think that I strayed on to amendment No. 11.

Photo of Mrs Marion Roe Mrs Marion Roe Conservative, Broxbourne

I am formalising the matter.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

That is extremely kind of you, Mrs Roe. There is no question of wanting a vote on either amendment. One of the difficult things about Committee work is getting one's pagination, numbering and all the relevant bits of paper in the right place at the right time. I strayed on to the next group of amendments, so thank you for your indulgence, Mrs Roe. These are probing amendments and if the result of a short debate is a little more explanation and background, all to the good.

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

I was not intending to speak to this group, but as we have now included amendment No. 11 and the hon. Gentleman strayed on to it, I want to add an observation. I broadly support the hon.

Gentleman's points, and we will return later to the business of trafficking and the subject of destroying documents under duress, which we all accept happens.

One of the tragedies of having stricter arrangements for preventing people from exercising any rights that they may claim under the convention on refugees within our shores is that people are pushed into traffickers' hands. If there is no legitimate way of them reaching United Kingdom shores to have their claim addressed, they are far more likely to find themselves in the hands of those who are unscrupulous, manipulative and seeking to make money out of other people's distress, and who will employ the sorts of measures that are the subject of the amendment. We need to recognise that, when framing legislation, the more effective we are at preventing people from making legitimate claims, the more likely it is that they will use illegitimate routes to make a claim.

If we are to have a humane, appropriate and responsive immigration and asylum policy, we must strike a balance between bearing down hard on those who wish to exploit people in distress and leaving a door open for those legitimately seeking asylum on our shores. I am not sure that that door is open, and that is a great concern.

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

When the Minister responds, can she tell us why the Government chose the words ''reasonable excuse'' over the equivalent language in the 1951 convention, ''to show good cause''. I wonder what the thinking was behind the UK Government's failure to incorporate that specific language into the Bill. Is she also able to tell us what kinds of situations would be viewed as meeting the requirements of the defence of reasonable excuse? Does she foresee what kinds of situations would be deemed to fall outwith that defence?

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

First, I will deal with amendments Nos. 9 and 10, which seek to add a defence of not having possessed a passport, or a document for the same purpose, for the last five years.

I should start by repeating what I have said a number of times: it is not our intention to penalise people who began their journeys without passports and where it would be a reasonable excuse for them to show that they did not begin their journey with a document. The test of whether to proceed along the lines of arrest and possible charging will be, ''Could this person have begun their journey with a passport—would they have had to have done so?'' If the answer to that is no, we do not intend to use the power in this clause. If the answer is yes and they then present without documents, that is the group for whom clause 2 has specifically been designed. Somebody who has not had a passport for five years or less prior to the journey would have a reasonable excuse.

However, during the debates on the last few amendments, I have been thinking about this matter. It is clear that Opposition Members want more reassurance: although ''a reasonable excuse'' is written into the legislation with regard to the stage at which a court may deliberate on individual circumstances, they are not reassured at present about two things. First,

what will be the behaviour of an immigration officer or police officer towards a person who presents with no documents, and in most cases where somebody appears without a document will the immigration officer proceed to arrest? Secondly, if somebody is arrested, what will be the criteria that the police and prosecuting authorities will use to judge whether to proceed to charge and prosecution? If it will be helpful, I am willing formally to write to Committee members to set out what we expect will be the case in both of those circumstances.

I think that Committee members are most exercised by the first circumstance: how will immigration or police officers behave when presented with an individual and what will be the criteria they use to decide whether to arrest a person?

Photo of Tom Harris Tom Harris Labour, Glasgow Cathcart

The Minister may have to reserve some of her comments for the letter which will be useful. However, I seek clarification about the argument that she is making. It seems to me that the hon. Member for Woking is right: whether or not a person is arrested by the officer is almost immaterial. As the Bill is currently drafted, someone breaks the law by simply turning up without a passport. There is then the option whether to make an arrest, but whether or not it is made is irrelevant to the fact that someone who turns up without a passport is currently committing an offence regardless of their background or their reason. I am concerned about that. Can my hon. Friend tell me if I am misinterpreting this matter?

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 is right, although I would add another word. As the clause is currently drafted, a person who presents without their documents is potentially committing an offence unless they can establish a reasonable excuse. The clause goes on to define what will not be accepted as reasonable excuses in some circumstances. Technically, at the point at which a person presents without documents, they are potentially liable to be arrested for 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)

If I may, I will develop this argument. Unfortunately, the hon. Gentleman did not hear most of the points that I made this morning, and I would like to complete my remarks on this topic.

I understand that hon. Members are concerned and want more detail on how the immigration officer's decision about whether to proceed to arrest will be made on the basis of the facts presented by the claimant. In fairness to myself, I have already said that the immigration or police officer will act reasonably. Under the Bill, they may proceed to arrest if they have a reasonable suspicion, and they will have to satisfy themselves, as public servants, that that suspicion is reasonable. However, I understand that hon. Members will want further detail about how we envisage those decisions being made. Generally, we expect immigration officials to act reasonably—and I will spell that out in writing. They will have guidelines on what to consider before deciding whether to make an arrest.

If a person were undocumented, there would be no arrest if it were clear that there would be a reasonable defence, for example, if they have never been documented, if they claim that they could bring a passport in one or two days—we have heard an example of that today—or if the circumstances arising from their not appearing with a passport that day are credible. A person may, for example, have already come into the country legally. I am happy to put that in writing. If the reasonable excuse were not clear-cut, the immigration officer might decide to proceed to arrest so that the process of testing it could proceed.

I do not share some hon. Member's concerns about what might happen if an arrest were made. We are talking about a situation that applies whenever a person is arrested for a particular offence. The police and prosecuting authorities consider the evidence, the likelihood of a successful prosecution and whether it is in the public interest to proceed to a prosecution. I hope that hon. Members accept that there ought to be less concern about that stage of the process, because it will mirror what already happens when people are arrested for every other kind of offence. I am willing to put in writing what we expect of immigration officials at the point at which they are presented with somebody without documents and hear an account that is put forward as an excuse.

Photo of Richard Bacon Richard Bacon Conservative, South Norfolk

The Minister has provided some explanation and a degree of reassurance. None the less, she said that in subsection (1) a person potentially commits an offence. However, that subsection is a complete sentence, which says that

''A person commits an offence if when he is first interviewed by an immigration officer after arrival in the United Kingdom he does not have with him an immigration document''.

Then such a document is defined. The subsection does not say, ''potentially''; it says, ''commits an offence''. As the hon. Lady said a minute ago, the act of turning up in the United Kingdom without an immigration document is an offence, not a potential offence.

I take note of what my hon. and learned Friend the Member for Harborough (Mr. Garnier) said about the danger of personal reminiscences. Nevertheless, I sought to go to Brussels a few months ago and was not able to, because I had forgotten my passport—I left it at home. Although I never left the UK, colleagues of mine say that they have, on occasion, succeeded in going to Brussels for the day without a passport. If I had got to Brussels without a passport—which is possible—according to the Bill, the moment that I returned I would be entering the UK without a passport and would have committed an offence—full stop. That is what it says at the end of subsection (1).

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 point at issue in my response to my hon. Friend the Member for Glasgow, Cathcart (Mr. Harris), was whether somebody would be potentially guilty of that offence. Of course, subsection (1) must be read in conjunction with further subsections that clearly provide for a defence in law against that offence and only prescribe certain circumstances that will not constitute an offence. I

accept, to a point, that the clause is formulated in a particular way—if that is the point that the hon. Gentleman is making.

This morning, I gave some of the reasons why parliamentary counsel formulated the clause in that way. They concern an issue that we will come to later: the issue of evidence, and where the burden of evidence inevitably has to lie because of such situations. If the clause had been framed much more directly and said that a person commits an offence if he disposes of documents prior to arrival in the UK, the burden of proof would be solely on the authorities in a situation in which the ability or access to the facts to establish beyond reasonable doubt would be outside the province of the authorities.

My advice from parliamentary counsel is that the provisions are the only reasonable way to fulfil our policy intentions without imposing upon ourselves a burden or something that is almost unachievable in terms of proof, and which means that there cannot be successful prosecutions.

Photo of Bob Blizzard Bob Blizzard Labour, Waveney 3:45 pm, 8th January 2004

I wonder whether I may contribute a personal travel anecdote. I discovered on Friday that it is possible to fly from Turin to this country without a passport. I had my passport with me, but no one asked to look at it until I arrived in this country. It occurred to me while I moved through Turin airport and when I was on the plane that that was a loophole that someone seeking illegally to gain entry to the country might exploit.

My constituents would be relieved and reassured that the line proposed is being taken to ensure that such latitude—or the system within the EU, or whatever it is—will not be an undesirable means by which people who want to exploit the system might gain entry to this country.

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 thank my hon. Friend for that helpful interjection. I suspect that, before we finish the Bill, we will hear anecdotes of travel experiences from most members of the Committee.

I agreed that I would allow the hon. Member for Perth (Annabelle Ewing) to intervene, and I apologise for not having done so.

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

I will spare the Committee my travel anecdotes—

Photo of Tom Harris Tom Harris Labour, Glasgow Cathcart

Go on.

Annabelle Ewing—not least because I am not sure whether it would get me into difficulties with the law and being a lawyer and an officer of the court. I do not want to go down that route. I am sure that the hon. Member for Glasgow, Cathcart would have been particularly interested in my anecdote.

The Bill introduces a statutory offence, and as a lawyer I think that it is important to try to work out, as far as possible, what the scope of the statutory defence would be. The Minister mentioned that ''reasonable excuse'' was defined, but of course it is not defined per

se; it is defined only with respect to the deliberate destruction of documents. It may be that the Minister did not mean to say that, but that was what might appear on the record. However, I assume that that is not the case. It is simply with respect to the deliberate destruction of documents that we have any indication as to what ''reasonable excuse'' is, or is not, to mean.

Looking to the future, what are the courts to do under the Bill? Obviously, we are talking about a question of fact, but that question of fact will, I imagine, presuppose a particular knowledge of a particular country's situation. If the courts are to receive no guidance from the Bill, what are they expected to do when hearing such defences?

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 can, as we do with other offences, trust the courts to avail themselves of all the relevant information that they need to make a judgment as to whether the excuse that a person put forward for appearing without a document was reasonable. Also, if someone claimed that they had to destroy the document—they admitted destroying it but said that they had a reasonable cause for doing so, or said that it was beyond their control—the courts are there to evaluate the credibility of that person's evidence against the facts presented, including country information and any other information that may be relevant.

I am sure that once there have been some test cases, a body of case law from court judgments will build up, as it always does, on what would be accepted as reasonable cause in relation to such destruction, or what would constitute reasonable excuse in terms of someone arriving without a document.

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

Will the Minister help me with one matter raised by the Law Society in terms of reasonable cause for destruction? It posited an instance where someone deliberately destroyed their documents because they had a well-founded or other belief that to do so would protect the interests or safety of people in the place of origin. It questioned whether that would be included within the errors that might be considered reasonable cause for the destruction of documents. Does the Minister have a view?

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 will not be drawn on that point for the reason that I have just outlined. By the time a case gets to the point at which the claim of reasonable cause is invoked by someone who has admitted destroying documents it is for the courts to start to evaluate and to establish case law for everyone that can then be used in the future to inform decisions about whether to prosecute. We need to depend on the courts for that.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

I suppose the Minister will tell the Committee that under this clause, strictly speaking, once a case has gone to the Crown Court it could go to the Court of Appeal and then the House of Lords, in stark contrast to clause 10. Is that right?

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 need to take advice on the matter. Unlike myself, the hon. Gentleman is trained in the law. Clearly, any case in which a person is

charged with an offence under the law can proceed in so far as the appellant obtains permission to proceed to the next stage. It is possible within the framework of our legislation, if someone received permission to go to a higher court, for the case to go to a higher court. It is within the province of the judges whether they give permission.

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 will come to clause 10 later. Amendment No. 11 raises an important issue, which I am glad the hon. Gentleman raised, about situations where people may be acting under duress, and whether that could be relied on as good cause for the deliberate destruction of an immigration document and therefore be an excuse for not being in possession of one. I agree entirely that where a person destroys a document because they are under duress, they should not and will not be guilty of an offence. That is already the case. Acting under duress is materially different from following instructions or advice, so we consider that someone genuinely acting under duress in destroying a document would not be excluded from relying on the reasonable excuse in subsection (5). Someone acting under duress would therefore not be guilty of that offence because destruction in those circumstances would be either for a reasonable cause or beyond their control. The amendment adds nothing to the availability of a defence of duress already inherent in the clause.

For those reasons, and in conclusion, I ask the hon. Member to withdraw his amendment.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

Again, this has been a useful debate. On this occasion I find myself accepting much of what the Minister said and, certainly, the way in which she said it. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No. 68, in

clause 2, page 2, line 20, after 'national', insert—

'(aa) that the child is a member of the family of an EEA national and that the child is exercising a right under the Community Treaties in respect of entry to or residence in the United Kingdom,'.—[Beverley Hughes.]

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

I beg to move amendment No. 56, in

clause 2, page 2, line 22, at end insert—

'(4A) Where a person is charged with an offence under subsections (1) and (2), and relies on a defence under subsections (3) and (4), if the person adduces evidence which is sufficient to raise an issue with respect to the matter, the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not.'.

I am indebted to the Immigration Law Practitioners Association for suggesting the amendment, and to my noble Friend Lord Goodhart, who has taken an interest in the Bill. The amendment concerns the burden of proof, to which the Minister has already alluded. I understand that the Minister does not want to be in a position in which prosecutions cannot succeed because the evidence on which they are based cannot and will not be available to the prosecuting authorities. However, that must be balanced with the

fact that we are dealing with a criminal offence in the United Kingdom against an individual where there must be a proper defence.

The Minister sets out, quite properly, the statutory defences that subsections (3) and (4) make available to a citizen who is charged under clause 2. I do not accept that, simply because it is difficult to find appropriate evidence, the burden of proof should be moved to a lower level in order to establish an easier route to prosecution. The amendment seeks to apply a burden of proof of an appropriate criminal standard to the defences available, so that if a point of law is successfully raised in court, there is an obligation on the prosecution to prove beyond reasonable doubt that such a defence is not appropriate for the court to uphold.

The words may seem familiar to the Minister—I hope that they will—because they closely mirror section 118 of the Terrorism Act 2000. Bizarrely, we are currently prepared to allow a greater procedural safeguard to a terrorist than to an asylum seeker who finds himself in difficulties under the measure. My amendment would bring the two to an equivalent standard. That does not seem to be an unreasonable request. I hope that I am not unfairly anticipating the Minister's response by saying that she has already suggested that the difficulty is that the prosecuting authorities will find it hard to establish why somebody has no appropriate identity document and that they had one at the point of departure.

The Committee will debate amendments later that would improve the evidence available to the authorities of whether somebody had a passport or other travel document at the point of embarkation. I do not want to pre-empt that, but I think that we can trust the courts to take appropriate action when they consider such cases. If a defence is cogent, it would be entirely reasonable that if the prosecution wishes to argue with that defence—the defence of ''reasonable excuse'' to destroy documents—it must provide significant evidence to support its contention. My amendment would provide for that. I should be interested to hear the Minister's response; I may have misjudged her intention. I repeat that it seems perverse in law to treat a fact in the case of somebody seeking asylum in this country as requiring a lower standard of proof than the proof of a fact in the case of a terrorist facing action under the Terrorism Act 2000. It seems perverse and I hope that that is not the way that the Government will run this country's affairs.

Photo of Neil Gerrard Neil Gerrard Labour, Walthamstow 4:00 pm, 8th January 2004

I have some sympathy with the points that the hon. Gentleman has just made. We return to the question of what is reasonable doubt, what is a reasonable excuse and where the burden of proof should lie. Some of the points that have been made have rather ignored other parts of the law. One could find substantial pieces of legislation that talk about reasonable excuse as a defence. I do not want to anticipate what the Minister will say in her letter to us, but I expect that the Crown Prosecution Service, in deciding whether to bring a

prosecution, will consider the strength of the case. It will look at the possibility of a conviction, how the evidence that the prosecution may wish to bring stands up and how it relates to what may be a possible defence.

The question of the burden of proof, which amendment No. 56 addresses, is quite important. Who must produce the evidence? I can think of several reasons why someone may not have a document or may destroy a document, which may or may not be reasonable excuses. People may destroy documents because they know that if they are found in their possession it would harm their claim. We have talked throughout the debate as if this were entirely about asylum, yet the clause does not mention asylum at all. The person who is being questioned about their immigration documents does not have to be an asylum seeker to fall under the provisions of the clause.

The word ''asylum'' is not used in the clause. It could be anyone who is seeking to enter the country for any reason and who is subject to immigration control, including, on the face of it, a British citizen. A British citizen would not normally be interviewed by an immigration officer after arriving in the UK. Some people may think that they should destroy false documents because having them may cause a problem. The Minister said in earlier debates that not having documents at all and not being able to have those documents would be a reasonable excuse.

The burden of proof seems quite important. How does one prove that one could or could not have had access to those documents? I can recall seeing cases of people whose asylum claims have been rejected on the grounds that they had certain documents. It was argued that the fact that they had those documents showed that they had not been threatened in their country of origin. Possession of documents can sometimes work in the opposite direction.

One of the big questions about the clause is: how often will it be used? Figures, which I believe came from a Home Office consultation document, suggest that in the first nine months of this year there were around 13,000 inadequately documented arrivals in the UK, 8,000 of whom were undocumented. I cannot believe that we will have 8,000 or 13,000 prosecutions under the clause and that every person who arrives will be prosecuted. It is important to know what the criteria will be, how the clause will be applied, what will be regarded as reasonable doubt and where the burden of proof will lie.

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

My hon. Friend makes a reasonable point. But surely the purpose of this legislation—indeed, any law—is to dissuade people from breaking it. The current rate, without such legislation, is 13,000 or whatever. Presumably the purpose of the legislation is for the number to be far lower.

Photo of Neil Gerrard Neil Gerrard Labour, Walthamstow

I take the point that that is the purpose of the legislation, but I am not necessarily convinced that that will be its effect. The two are not quite the same. Let us say that we go down the road of making

what we are discussing a criminal offence. First, I am not sure that six months, which is the penalty on summary conviction, will necessarily be much of a deterrent to some highly organised people. Secondly, I suspect that more people who seek to come in by totally illegal routes will avoid airports and immigration controls where they may be asked to produce documents. There will simply be more pressure on other illegal forms of entry.

We must also be careful about confusing issues about someone's credibility in their asylum claim with the question of documentation. Many of the same issues will arise under clause 6. We should be thinking about whether we want criminal offences, or the possibility of a criminal offence, to apply to large numbers of people. We should, where possible, decide on the asylum claim and, if it is not valid, enforce the decision of removal, rather than keep people in prison for a couple of years. There are questions about how the clause should be used. How decisions to prosecute will be taken and where the burden of proof will be is a major issue. That depends on the scale on which the clause is used. I do not believe that it can be used on a large scale, and that is when those decisions become critical.

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

There are not enough prison spaces.

Photo of Neil Gerrard Neil Gerrard Labour, Walthamstow

Indeed, there are not enough prison spaces.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

This has been an interesting debate and I have little to add to it, but we are moving into interesting territory of where the burden of proof lies in a case in which a reasonable excuse is offered. The standard position is that in every single criminal case, it is for the prosecution to prove the defendant's guilt. The burden is on the prosecution from beginning to end; it is, and remains throughout, with the prosecution. The defendant does not have to prove anything. Furthermore, the standard is high. A case can be found to be proved only if the court is sure of guilt. Those standard directions are given by any judge in any case, but of course there are interesting cases in parallel to what we are discussing in which slightly offbeat rules apply.

Let us take the case of an assault in which the defence is self-defence. The law is clear that if an assault is in self-defence, it is not an offence, so the standard direction to a jury in a case involving self-defence is as follows. The defendant, charged with punching someone, has raised the issue of self-defence. That issue having been raised, he does not have to prove it. It is for the prosecution to prove that self-defence did not exist. That is the subtle difference. There is a shift.

That is an interesting parallel to the situation that we have been discussing. In effect, the amendment says the same thing: once the proposition of a reasonable excuse is put forward, it is for the Crown to prove that it does not exist. That is a nice parallel with the position on self-defence. Indeed, I can see no other logical way forward than that proposed in the amendment. Once the matter is raised, it is for the

Crown to prove that it does not exist, rather than the other way round. I congratulate the hon. Member for Somerton and Frome on the careful drafting of his amendment and the excellent way he spoke to it. It is always a privilege to hear what the hon. Member for Walthamstow (Mr. Gerrard) has to say on these matters.

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

This has been a useful and interesting debate. I hope that I can convince the hon. Member for Somerton and Frome, who anticipated my response correctly, that the amendment would in practice make completely impotent the intention of the clause. I remind hon. Members that its sole intention is not to prosecute inadequately documented arrivals—people who arrive without any documentation and who never had any—but to prosecute people who deliberately destroy their documents. They leave country A and arrive in the UK and destroy the documents they must have had in order to start their journey.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

Is the Minister specifically saying that the clause will be used only to prosecute those who destroy documents? Is any discussion about non-documented arrivals who have not destroyed documents worthless? Is it only those we know have destroyed them, or can it be others?

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 said, and I say it again, unreservedly, that our intention is only to prosecute people who deliberately destroy documents.

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 have said so many times during the debates on amendments. We drafted the clause only to prosecute people who deliberately destroy documents. I have been at great pains to explain why we are not interested in prosecuting, nor could we in practice prosecute, people who simply arrive without documents because they did not have to have a valid travel document at the start of their journey in order to get on to the mode of transport that brought them to the UK. That being said, the amendment would mean that the prosecution would have to prove beyond reasonable doubt that any defence raised by the defendant did not amount to a reasonable excuse for not having a document. As the hon. Gentleman said, in the clause as drafted it is for the defendant to prove the existence of the defence on the balance of probability. I alluded to the point earlier and I repeat: we drafted the offence in that way because of the particular circumstances peculiar to when the offence occurs and because of the extent of the problem of people destroying their documents.

When someone has a reasonable excuse for not having a document on arrival, the details of that excuse will in almost every case be solely within the knowledge of the individual. If, for example, the individual had been smuggled on to a plane by a corrupt official and had never had a document, only he or she would know how and when that happened. In those circumstances, I do not think it is unreasonable to ask the defendant to prove, on the balance of probability, not beyond reasonable doubt, that that

occurred. That is why it is justifiable in those circumstances to require the defendant to prove it him or herself.

Photo of Ms Annabelle Ewing Ms Annabelle Ewing Scottish National Party, Perth 4:15 pm, 8th January 2004

The Minister referred to the fact that in her understanding of the Bill, the reasonable excuse would require to be proved only at the level of the balance of probabilities. Where does it say that in the Bill?

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 will need to check that point, but the reverse burden, which is what is required in this case, is on the balance of probability. As I understand it, that is always the case. If it is not included in the Bill, that may be because it is not necessary to do so. In those circumstances, that may be the level of proof required; the burden is on the applicant to establish the defence.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

The hon. Lady makes an interesting point. The normal position in criminal proceedings—and we are dealing with crime—is that proof, unless otherwise stated, is to the criminal standard. Perhaps it should be otherwise stated in this case, so that we know that the proof has to be only on the balance of probability.

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

That is a technical point related to the law, which I am happy to—and would want to—establish for myself. If necessary, I shall respond to that point on Report.

My hon. Friend the Member for Cardiff, Central (Mr. Jones) raised an important point about the extent of the problem. It is not simply one of inadequately documented people or people arriving who have never had documents, but of people deliberately destroying documents: sometimes because they are told to, but often because they do not want their identity to be easily established.

In response to the point made by my hon. Friend the Member for Walthamstow, I do not believe it necessary for every one of the many tens of thousands of people who could be prosecuted for destroying their documents to be prosecuted. The successful prosecution of a number of cases will start to achieve what we want the clause to achieve, which is not to trammel the resources of the police, the immigration service and the Crown Prosecution Service in thousands of cases, but to demonstrate, perhaps in a few high profile cases, that we are prepared to prosecute and thereby start to change people's behaviour, so that they stop destroying their documents. We do not want to achieve thousands of prosecutions under the clause, but we want to convince people that they must keep hold of the documents with which they leave a country, and present those same documents when they arrive in the UK.

I hope that the hon. Member for Somerton and Frome will withdraw his amendment. I hope that he accepts that if he were to persist with it and we were to accept it, it would neuter the clause.

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

Would it not be reasonable to make the assumption, if someone is shown to have deliberately destroyed their documents, that their reason for doing so was that their claim for asylum was false?

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

There is no need to bother with the courts at all.

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 have not taken that further step of linking in law the deliberate destruction of documents with an adverse presumption about someone's asylum claim. However, my hon. Friend makes a good point, to the extent that many people destroy their documents in order to make it more difficult to assess the validity of their claim.

The hon. Member for Perth made the point about the burden of proof not being included in the Bill. I am informed that the speculative answer that I gave her, based not on legal expertise, but on common sense, was correct. It is established law that where an offence is structured in the way that clause 2 is, the defence should be established on the balance of probability. That is different from the requirement on the prosecution. In conclusion, I ask the hon. Member for Somerton and Frome to withdraw the amendment.

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

We have had a useful debate, but the Minister's parting shot has left me more confused than I was at the beginning. She has stated that it is sufficient for the defence to establish on the balance of probabilities that there is a defence available under the clause. The corollary of that should be, under normal criminal procedure, that it is for the prosecution to establish beyond reasonable doubt that that is not the case. Yet she says that that would destroy the efficacy of the clause, were it to be the case as a result of the amendment.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

The hon. Gentleman must be right. I return to the defence of self-defence in a criminal assault case: the direction there is that, the defence having raised the matter, it is for the prosecution to make the jury sure that the defendant did not act in self-defence. Those are the words—''sure that'' self-defence did not apply. The hon. Gentleman has the right point and the Minister has the wrong one.

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

I am delighted to have the hon. Gentleman's support, because he is a lawyer and I am not. I always feel at a distinct disadvantage when I attempt to deal with legal concepts.

If that were the case, my amendment would either be accepted and acceptable, or it would be redundant because it would already be the case. The Minister has argued that the amendment is not accepted, acceptable or redundant, because it would harm her intention in the original wording. Therefore, I must assume that the circumstances that I have suggested do not apply and that it is for the prosecution to establish beyond reasonable doubt that the defence is not acceptable in law. That worries me because it means that the procedure for such criminal trials is different from that of the generality of criminal trials, and that we have changed the burden of proof for these particular

defendants in a way in which we would not for other defendants in other criminal cases. We will have to return to that.

The matter is complex and I sympathise with the Minister, who is as untrained in law as I am. We are both reliant on advice from others; I do not expect her to give a definitive response today. Having looked at the record, we may both have to reflect on the matter.

Photo of Tom Harris Tom Harris Labour, Glasgow Cathcart

The hon. Member for Somerton and Frome will know that previous legislation in this Parliament has also gone into the area of changing the burden of proof. I refer to the Proceeds of Crime Act 2002.

Photo of Tom Harris Tom Harris Labour, Glasgow Cathcart

The Hon. Lady says ''exceptional circumstances'' from a sedentary position—of course they are exceptional circumstances. However, these are also exceptional circumstances and we have already started going down that road. We make such a change where the problems that we face seem insurmountable under the current legal framework and we have to make radical changes. I would hope that the hon. Gentleman's party would table at least one amendment that would strengthen the Bill rather than weaken it.

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

I believe that one strengthens the Bill if one provides for justice to be done. I am grateful to the hon. Gentleman for his contribution; at least he gets my constituency right, which is not always the case with hon. Members.

It is worrying if Government Members go down that road with open eyes, saying, ''Well, yes, we have changed the burden of proof for such cases, and we are doing so again. There are probably more cases for which we need to remove jury trial or reduce the burden of proof, because we are not getting enough prosecutions. It would be better if everyone went to prison, wouldn't it? Then we would be in a safe society.'' Illiberal Governments do that and it should be resisted by members of the legislature, who should look carefully at what Executives propose. They should take such action in the interests not only of their constituents, but of justice. That is what we are about in respect of the Bill. If Labour Members are not, it worries me. However, I do not believe that that is the case. I know the hon. Member for Glasgow, Cathcart sufficiently well to appreciate that he takes an intelligent interest in such matters, but he gave the impression that it did not matter if we just gently rubbed the edges off the justice system until we achieve what we want. Such action needs to be resisted.

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

The Proceeds of Crime Act 2002 was referred to a moment ago, but the analogy was not a good one. The confiscation proceedings with respect of the seizure of assets obtained via illegal activities are civil proceedings. That is different from what we are discussing, which is the creation of a statutory offence. To play fast and loose with the burden of proof is not the way forward, and certainly not so in relation to the principles under Scots law. We have a separate

criminal, legal system. The hon. Gentleman's amendment No. 56 is extremely important and I am certainly happy to support it.

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

I am grateful to the hon. Lady. She is right. The constant confusion in the mind of the present Government between civil and criminal law and the standards of proof is a great cause for concern. I do not expect the Home Secretary to understand such matters. In his every utterance, he makes it absolutely plain that he is determined not to understand, which is one of the reasons why I advocate the establishment of a Ministry for justice to take away such matters from the responsibility of the Home Secretary. The problem is that the Lord High Chancellor does not understand such matters either. Given his background as a civil lawyer, he makes it clear that the balance of probabilities is sufficient if it provides for successful prosecutions. We have a serious problem with the Government. We want them to understand the basic legal concepts of which even a layman, such as myself, has some grasp. However, it seems that some hon. Gentlemen who are lawyers do not. Clearly, we must return to such matters.

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

In defence of my colleague, the hon. Member for Glasgow, Cathcart, we share the experience of dealing week in, week out with large numbers of asylum seekers in our constituencies. Surely there is no justice in a system which is completely ineffective in separating those with reasonable and just claims for asylum from those who do not. The hon. Member for Somerton and Frome referred to a balance. That would come about by having a legal system that is fair and that works. If so many safeguards are introduced, they will ensure that the legal system is inoperable. It may not be making unfair decisions in one direction, but it will destroy the legitimacy of the asylum system itself.

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

I hear what the hon. Gentleman says. He prays in aid his experience. Of course, he is right. There are huge inadequacies in the present asylum and immigration system. I do not deal with many immigration cases in my constituency compared with the hon. Gentleman or the hon. Member for Glasgow, Cathcart. I will not claim that I do. However, given the number of cases with which my hon. Friend the Member for Southwark, North and Bermondsey (Simon Hughes), who previously spoke on home affairs, has to deal, we could outflank the two hon. Gentlemen combined. He would make the same arguments as I am today. Indeed, the hon. Member for Walthamstow, who has much experience in such matters, has put forward similar arguments to mine.

We do not improve administrative systems by introducing bad law. That is the crux of our argument and why we oppose the Bill. It is not because we do not want improvements to be made to the asylum and immigration system or that we do not recognise some of the problems to which the Minister alluded. It is simply that we do not think that the results of the Department's labours are an appropriate response to the problems that we face.

I do not want to take up any more of the Committee's time. I can promise the Minister that we will return to the subject in the later stages of the Bill. We will do so on Report, and I have absolutely no doubt that we will do so with still greater vigour in the other House.

Mr. Garnier rose—

Photo of Edward Garnier Edward Garnier Conservative, Harborough

I was hoping to catch the Chairman's eye in due course.

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

I was about to withdraw my amendment, so it might be better for the hon. Gentleman to intervene on me now—or perhaps I should sit down and allow him to make a contribution.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

If the hon. Gentleman has finished, I shall speak now. I must apologise for not catching the first part of the debate, owing to duties elsewhere. I am provoked to speak because I read amendment No. 56 before the debate and, from what the hon. Gentleman says and from a private conversation with my hon. Friend the Member for Woking, it strikes me as strange that the Government find anything objectionable in amendment No. 56. The hon. Member for Somerton and Frome is not introducing a new concept into criminal law; he is merely reinforcing the existing state of affairs.

My hon. Friend the Member for Woking said that he has already mentioned what happens when the defence of self-defence is raised in a criminal case in this country. He and I, if I may modestly say so, have some experience of trying criminal cases. Both of us are Crown court recorders, so have to deal from time to time with cases in which the defendant is required to raise an issue in order for it to be considered by the court. Self-defence is, of course, the obvious example—and the hon. Member for Somerton and Frome mentioned it—in which, the issue having been raised, it is for the Crown or prosecution to prove its unavailability as a defence on the criminal standard of proof.

The clause gives us another example of a defendant being provided with a statutory defence. Clearly, it is for him to raise the issue to show that he had a reasonable excuse. On the usual principles of criminal law—which I had hoped were universally accepted—the issue having been raised, it is clearly no good for the defendant to stand up in court and say, ''I've got a reasonable excuse''; he has to explain himself. He has to do more than simply use those words. So long as there is sufficient material upon which the court can bite, it is up to the Crown to adduce material that knocks out that defence and persuades the jury, or tribunal of fact, that that defence is not available. It must be persuaded beyond all reasonable doubt—or, as we say nowadays, ''so that it is sure''—that that defence is no longer available. That is not new.

The hon. Member for Somerton and Frome is not doing anything radical or anything that destroys the policy behind the Bill. I am happy to say that I agree with him and I want to provoke him into inviting us to vote on the issue, so that we can demonstrate where the division between civilised and uncivilised conduct lies when it comes to the discussion of matters of justice. I hope that I do provoke him, because if he is not provoked by me, I shall provoke myself into pressing the amendment to a Division, because I think that the issue is sufficiently important as a matter of principle.

We are to create new criminal offences in order to deal with things that we all accept are wrong—and we all accept that cheating the immigration and asylum system is wrong, because it damages worthy asylum seekers' applications and it brings into disrepute the whole country's immigration system. If we are to criminalise those whom we think ought to be criminalised, we should have the self-confidence to do so in a way that is just, and not to catch people unjustly under a new criminal offence.

I again apologise for not being here at the outset. It means that I have not heard what the Minister had to say in defence of the allegations that I am making. I am sure that she thinks that she is behaving in an entirely civilised and proper way. I am no longer surprised, but I am none the less shocked by some of the things that this Government do in the field of criminal law and justice. The ends do not always justify the means. If we are to maintain a reputation for being a safe haven for those fleeing despotism and tyranny, we should not undermine the very thing that reinforces our reputation: a proper justice system. If one says to a person that they can go to prison for two years for not having a document, the least that we can do is place the burden on the Crown to disprove to the requisite standard of proof. Having got that off my chest and having apologised for the third time, this cock will sit down and stop crowing.

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

I am glad that I allowed the hon. and learned Gentleman to make his contribution, because I now find that I have the support of two recorders and an officer of the court of Scotland. That gives me a great deal of confidence that my points are appropriate.

I am entirely unpersuaded—indeed, worse than unpersuaded—by what the Minister and her colleagues have said. The more I consider the Minister's response, the more I think that what she has said has made things worse rather than better. It is clear that this is not an error of drafting or anything other than deliberate; it is a determination to reduce the standard burden of proof in a prosecution to achieve easier prosecutions and thereby will erode the British criminal legal system. I cannot accept that.

The hon. and learned Gentleman gives me a problem. This is such an important issue that I want the advice of the House. Indeed, I am determined to have it. Dividing on this amendment this afternoon may make it difficult to do so on Report, but I am determined that we shall.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

It is not for me to give the hon. Gentleman advice on the procedures of this House; there are better and other sources of advice for that sort of thing. However, as I understand the position, the Speaker will not inhibit a further debate along these lines simply because we have voted on it in Committee. I am also happy to say that we are not yet a unicameral Parliament, so there is another place that should be encouraged by the stand that the hon. Gentleman, my hon. Friend the Member for Woking, my other two hon. Friends, the hon. Member for Perth and I have taken. I cannot believe that the Speaker would be advised that it was a good idea not to allow a discussion about justice in a Bill as important as this. I therefore say to the hon. Gentleman: go for it.

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

I am much emboldened by the hon. and learned Gentleman's advice. This is a crucial matter for us, which is why we tabled an amendment. The benefit of the debate over the past few minutes has been to emphasise the fact that this matter will not go away, which might assist the Speaker in selection at a later stage.

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 9.

Division number 2 Adults Abused in Childhood — Clause 2 - Entering United Kingdom without passport

Aye: 6 MPs

No: 9 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Photo of Mrs Marion Roe Mrs Marion Roe Conservative, Broxbourne

With this it will be convenient to discuss Government amendment No. 70.

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

These are technical amendments that ensure that individuals who hand their passports to someone else, rather than destroy them, cannot rely on the defences set out in subsection (5). Although I believe that the drafting already allows for that, it would be nonsensical if a person who had destroyed their passport were treated differently from someone who disposed of it or handed it to someone else. It is sensible to make it plain that we intend such cases to be treated in exactly the same way. I beg to move the amendment.

Amendment agreed to.

Amendment made: No. 70, in

clause 2, page 2, line 26, after 'destruction', insert 'or disposal'.—[Beverley Hughes.]

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

I beg to move amendment No. 57, in

clause 2, page 2, line 28, leave out from 'offence' to end of line 36.

Photo of Mrs Marion Roe Mrs Marion Roe Conservative, Broxbourne

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

No. 12, in

clause 2, page 2, line 33, leave out from 'application' to end of line 36.

No. 13, in

clause 2, page 2, line 34, leave out 'instructions or'.

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

Amendment No. 57 deals with the exclusions from the reasonable cause for deliberate destruction or disposal of travel documents. It might be helpful if I say from the start, to pace the hon. and learned Member for Harborough, that I do not intend to press the amendment to a Division. I want the Minister to consider the matter carefully. I have grave concerns about whether these exceptions can be of any value in a court of law in providing for a defence or a prosecution. Let me explain why I take that view.

Subsections 5(b)(i) and (ii) require the court to take a view about the purpose of the person involved in destroying their travel documents. How could that purpose be determined? It could, perhaps, be determined by an admission by the defendant under caution—if we are indeed dealing with a first interview under caution under the Police and Criminal Evidence Act 1984. If that person were to volunteer the information that the reason he or she had destroyed the documents was in order to delay the handling or resolution of a claim or application, or the making of a decision—or, alternatively, to increase the chances of success of a claim or application—the court could properly take the view that that was an established cause that did not constitute a reasonable cause. However, in the absence of that, we are dealing entirely with an assertion by an immigration officer or a police constable that that is what they believe might have been the person's purpose in destroying the documents. I do not think that that adds in any way to the court's consideration, under subsection (5)(a)(i), of ''a reasonable cause''. In the absence of a clear admission under caution, how would a prosecution set about establishing that the purpose was subsection (5)(b)(i) or (5)(b)(ii)?

Subsection (5)(b)(iii) deals with an important issue, which we have already touched on, when the trafficker or facilitator requires or advises the person who is entering the country to destroy the document. It is clear that additional evidence could be adduced—evidence from a third party, written material, and so forth. We have established that it would not be used when duress was involved. The unequal balance of power between the person seeking entry to the country and the person who is facilitating that entry would often constitute duress. Few people would have the economic or psychological power to resist what they are told to do by somebody who is facilitating their entry to the country.

This is where we get into difficulties with article 31 of the 1951 convention. It could be said that if, because of what are clearly identified within the scope of the

convention as being possible circumstances for a person who is appropriately seeking asylum in this country—they arrive without papers because of the circumstances of their form of transport and the fact that they have illegitimately entered the country, and part of the process of doing so was that they destroyed their travel documents on the advice of an operator—there is immediately a conflict. This proposal suggests that that then invalidates a defence that the person may have reasonable cause for destroying the documents, and it puts the Government in the position of facing a challenge about whether they are fully complying with article 31.

For both those reasons, I ask the Minister to consider carefully how these provisions could be used by the court in a valuable way, and whether they might make life even more difficult for both the prosecution authorities and the defendant, who would be deprived of what might in fact be valid arguments in their defence.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking 4:45 pm, 8th January 2004

I will speak briefly to amendment No. 13. I tabled it because I can foresee situations in which a defendant wants the court to be told that he destroyed his documents because he was instructed to do so. ''Instructed'' is an interesting word. The Minister might want to expand on whether it means instructed with threats, forced or encouraged. There are subtle differences between a number of terms, ranging from orders down to instructions—are they the same?—and advice given, and so forth. The defendant who wants to make that case, unless I am mistaken, finds himself precluded from doing so because it says specifically under the statute that complying with instructions given by a person is not a reasonable excuse. That would, I think, preclude him from raising the matter, which might be grossly unfair. If I am wrong about that, I will be corrected. There may be occasions when, if a person is complying with instructions—whatever instructions are—that could, or possibly should, amount to something that they can put before the court as a defence.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

The hon. Member for Somerton and Frome wants to delete quite a large chunk of subsection (5). Up to a point, I can see that that is not unreasonable—if I can use that adjective. If the passage in subsection (5)(b)(i), which reads

''delaying the handling or resolution of a claim or application or the taking of a decision,'' were to be permitted, it would amount to abuse of process. I cannot believe that any court would allow an abuse of process defence to destroy its purpose. To place the argument in context, the subsection says that, for the purpose of a defence under the earlier subsections,

''the fact that a document was deliberately destroyed is not a reasonable excuse for not being in possession of it, unless it is shown that the destruction was . . . for a reasonable cause''.

Paragraph (b) states that

'''reasonable cause' does not include the purpose of . . . delaying the handling or resolution of a claim or application or the taking of a decision''.

That hardly surprises me. I do not know that we need to have it spelled out that anyone who abuses the process—which, by implication, he must have accepted by making the application for asylum in the first place—and abuses the court system by which he wants his claim to be handled or judged, and then says that that amounts to a reasonable cause, is wrong. I agree with the hon. Gentleman to the extent that we do not need paragraph (b)(i).

Photo of Tom Harris Tom Harris Labour, Glasgow Cathcart

Although we do not have the opportunity to delve into the minds of the drafters, would the hon. and learned Gentleman not agree that it is possible on some occasions that an applicant may feel that it is justified to try to delay a decision on his application? He might believe, contrary to what the authorities are telling him, that he should not be sent home, and might tell the court that he openly sought to delay the process because he felt personally that he would suffer an injustice if he were sent home. In the mind of some asylum seekers and applicants, would that not be a good reason to destroy one's own papers? The paragraph could have been so worded to combat that defence.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

The applicant might think that, but he would be wrong, and I do not think that it would do him any good.

To complete my point, we come to amendment No. 13, which talks about removing the words ''instructions or''. Although I understand the arguments of my hon. Friend the Member for Woking, I think that the Government are right to use the word ''advice'' alone. Some people may well say that they were advised by their handler—or whatever the expression is—to throw away their documents, or to destroy them. Some might say that they were instructed to. It seems that in order to discourage people from falling into the hands of those nasty people, who might then persuade them to do bad things with their documents for one reason or another, it is probably right—I hope that my hon. Friend does not think that I am being disloyal to his arguments—that paragraph (b)(iii) should remain as it is. If we get to a case where somebody says that they were persuaded or instructed or advised, short of duress, to do the wrong thing—deliberately to destroy a document—that could be taken into account when considering the penalty. If the court is persuaded that the instructions or advice were given with menace, but not sufficient menace to constitute duress, the court would perhaps choose the lower end of punishment. If the destruction was deliberate, paragraph (b)(iii) is just about bearable. However, paragraph (b)(i) is unnecessary.

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 have had a patient and mutually considerate debate. However, I recall the point made by my hon. Friend the Member for Cardiff, Central about the intentions of some of the amendments, as I cannot help wondering what they are intended to achieve. Removing subsection

(5)(b)(iii) would render the intent of the clause neutered and completely superfluous, because of what we know about why people destroy their documents.

I think that the hon. Member for Somerton and Frome is, with respect, moving to a focus that would make it difficult to prosecute anybody for the offence of destroying their documents. I wonder where his sympathies really lie: he started today's discussion by saying that he wanted to strike the right balance between the rights of individual claimants and the need to ensure that we have a fair asylum system that is not open to abuse. With the amendment, he is clearly bending over backwards in the interests of people who are not necessarily genuine claimants and who are destroying their documents.

The vast majority of people who enter the country on planes, ferries and Eurostar who destroy their documents en route do so for one of the three reasons identified in subsection (5)(b), but mostly for the reason identified in sub-paragraph (iii). They do so because such illegal immigration is a reflection of international organised crime: it is very big business. The facilitators are often on the plane with people; they collect the passports before people get to immigration control and reuse them. If that sub-paragraph were removed from the clause, somebody could, in their defence in court, rely on the reasonable defence that the facilitator or agent instructed or advised them to destroy their documents. That would be nothing other than a facilitator's charter.

I hope that the hon. Gentleman will withdraw the amendment; if he presses, it, we shall resist it most strongly. Subsection (5)(b)(iii) goes to the heart of why people destroy their documents. If we enable people, in putting their defence, to use any of those arguments—particularly that in sub-paragraph (iii)—we are simply allowing the facilitators to carry on doing what they are doing now, with no effective remedy within the scope of this offence.

The hon. and learned Member for Harborough asked—reasonably, I believe—why we need subsection (5)(b)(i) and (ii), because they would constitute—if that was a reflection of somebody's motivation—an attempted abuse of the system, and therefore ought not to be able to be drawn on as a defence.

We have to be absolutely certain that some defences that might be raised—that are likely to be raised and are very easy to raise in one way or another—are never accepted by the courts. The courts know, because it is in the Bill, that these reasons would never be entertained. While it may be that sub-paragraphs (i) and (ii) are unlikely to be successfully argued, the comment of my hon. Friend the Member for Glasgow, Cathcart, is a good one. If a person subjectively feels fear of return, it is perhaps conceivable that a court could be put in the position of feeling that it has to take cognisance of that conception, therefore allowing the defence in relation to subsection (5)(b)(ii), by taking into account what they believe might be a genuine

motivation. We feel that it is much safer and clearer for the courts if we put these reasons in the Bill, although I accept the principle of his arguments.

As I said earlier, the point about the offence in clause 2 is to try to change people's behaviour, to try to break the power of facilitators and agents who exploit—and it is an exploitation—many thousands of people, take money from them and tell them that, if they get them into the UK, they can stay here. We have to challenge both those issues. We have to try to change the behaviour of people who destroy their documents. In so doing, I hope that we can begin to break the power of the facilitators who control so much of this traffic.

Photo of Edward Garnier Edward Garnier Conservative, Harborough 5:00 pm, 8th January 2004

The Minister's last remark is a constructive one. It highlights one of the problems with which we are all faced in this Committee: the Government have the intention of looking tough on false asylum seekers. It is perfectly respectable to want to do that, but how they go about putting it into practice is interesting. They do it by undermining the judicial system by which these claims are assessed, rather than by putting in place administrative machinery to deal with it. Although she did not talk about it, I am sure that in the back of the Minister's mind was the question of the numbers of asylum seekers whose cases are being dealt with.

One of the answers that the Minister keeps missing is the absence of proper expenditure in the administrative system that is designed to remove failed asylum seekers. If the Government did more of that and less of this, we might achieve a great deal.

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 challenge the hon. Member to tell me what he thinks is in the back of my mind, and I should like to put him straight on the point that he has just made, by referring to a point that I made earlier.

One of the consequences of being able to change people's behaviour and ensure that they do not destroy their documents—as well as breaking the power of facilitators—is that we will be more able to determine where somebody has come from, the route they have travelled, and their identity and nationality. That is crucial in being able to remove people. There are many people whom we want to remove. We are talking very actively with a number of countries that will not accept their people back unless we can establish nationality. Some countries, China in particular, are not happy with the nationality alone, and want to know the identity of the person and where they come from in the country. We have no chance whatever of removing people to such states unless we can identify them. Attaching people securely to the document on which they left the country from which they travelled, and with which they arrived in this country, is an essential part of that process.

The hon. and learned Gentleman should get under the skin of the system a bit more and understand such factors before criticising what the Government are doing. We cannot simply leave people on the tarmac of an airport in another country and expect the authorities there to accept them. We would not accept

people in those circumstances, and other countries are in exactly the same position, so establishing nationality and identity is crucial.

Keeping people attached to the documents with which they come in is a crucial part of the process. It is central to increasing the number of people returned. Despite those difficulties, we are returning more and more people than ever before, and more than the Conservative Government ever achieved. We still need to do better, however, and this measure is a crucial piece of the armoury for trying to do better on removals as well as on tackling facilitators and agents.

With those comments, I hope that the hon. Member for Somerton and Frome will withdraw the amendment.

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

I did say right from the beginning that I did not intend to press the amendments, because I simply wanted to explore the issues relating to these subsections. It was instructive that, first, the Minister decided what my intentions were—without evidence, if I may say so—then the hon. and learned Member for Harborough decided what her intentions were, without evidence, and then she refuted that. In the microcosm of the Committee, we had the process that she envisages happening in the court, which involves establishing what the intentions of an individual might have been in destroying the documents, and the assertion of the immigration officer or constable against the assertion of the defendant and their representatives. That is exactly the point that I wanted to explore, so it was a useful exchange.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

I know that it is late and people want to move on to other things, but I just want to assure the hon. Gentleman that of course I had the evidence—I just did not condescend to reveal it to the Committee.

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

But would the hon. and learned Gentleman have satisfied the Committee in accordance with the burden of proof required? That is the question.

Photo of Tom Harris Tom Harris Labour, Glasgow Cathcart

On a balance of probabilities, he might.

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

That is one concern. Given the Minister's protestations, we might have been satisfied on the balance of probabilities, and it might have been the wrong decision. That is what worries me.

I want to make it plain that I am not trying to find an escape route for people who deliberately foul up the system in the way that we are discussing. I hope that the Minister, in the spirit of the way in which the Committee is debating these matters, will not repeat that accusation. I want law that works effectively. My concern, as I said and the hon. and learned Member for Harborough amplified, is that, in the first instance, we have something that would not in any case have been considered a reasonable cause if proven, but that is unprovable except in the exceptional circumstances of a defendant volunteering the information under caution. Therefore, what is proposed is broadly redundant.

Let me explain what worries me about the instructions from the traffickers. It is essential that we deal with this issue effectively. My proposal is not about removing the provision for doing so, but about ensuring that we do not pass a law that is overturned by a court considering the provisions of article 31 of the refugee convention. If we do that, we will have lost all the progress that the Minister is trying to make. That is why I am testing the measure at this stage—that is what Committees are for.

It is bizarre that there is no offence on the part of the trafficker for giving the instruction to destroy or for collecting the passports and doing so. In clause 4, there is an offence of trafficking where the exploitation has to be proven. But going round collecting passports and getting them burned, or whatever, is not an offence by that person under the clause. Perhaps the Minister would like to look at 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)

Just for clarification, and as I am sure he will realise when he thinks about it, offences of facilitation are already included in earlier Acts.

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

The specific act of destroying travel documents is not covered. I stand to be corrected on this, and if I am wrong I apologise to the Minister. Given that that is why we are introducing clause 2, it

seems perverse that it does not include reference to the person who gives the advice or instructions to destroy documents as described in subsection (5)(b)(iii). That seems to be a loophole or an omission that the Minister might want to look at.

I do not want to detain the Committee further on this. There are important issues, and I ask the Minister to accept that I want to improve the Bill, rather than to undermine its provisions. There are areas associated with this provision that she could clarify. For instance, how will people boarding planes be aware of the new law? That is critical to the success of the whole operation. That is a far more potent weapon than writing something into a statute that the person arriving from abroad is unlikely ever to read.

Identifying people as they disembark at our airports rather than at the immigration desk is another way to establish a much more effective system. There are many areas where the Minister and I can usefully seek improvements. When I raise points of concern about the law that she proposes, it is because I want a law that functions successfully. There is concern in this area, but I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Further consideration adjourned.—[Mr. Heppell.]

Adjourned accordingly at thirteen minutes past Five o'clock till Tuesday 13 January at ten minutes past Nine o'clock.