Clause 22

UK Borders Bill – in a Public Bill Committee at 2:30 pm on 15th March 2007.

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Disposal of property

Photo of Damian Green Damian Green Shadow Minister (Home Affairs)

I beg to move amendment No. 120, in clause 22, page 12, line 30, leave out ‘six’ and insert ‘twelve’.

Photo of Sir David Amess Sir David Amess Conservative, Southend West

With this it will be convenient to discuss the following amendments: No. 121, in clause 22, page 12, line 37, after ‘property’, insert

‘that has been held for twelve months’.

No. 122, in clause 22, page 12, line 38, after ‘where’, insert

‘all reasonable steps have been taken but’.

No. 123, in clause 22, page 13, line 7, at end insert—

‘(ca) may not allow disposal of property less than twelve months following its seizure,’.

Photo of Damian Green Damian Green Shadow Minister (Home Affairs)

The effect of the first two amendments, amendment No. 121 being consequential on amendment No. 120, would be to extend from six to 12 months the period during which a magistrates court may make an order to return property to its owner. It is worth the Committee, and Ministers in particular, considering what constitutes a reasonable length of time during which somebody can claim back their property from the Government. I am sure that it is accepted on both sides of the Committee that the Government cannot be expected to hold on to a person’s property for an inordinate length of time or for an indefinite period. Clearly there has to be a cut-off point, but what is a reasonable cut-off point? We do not believe that extending that period from six to 12 months puts an extreme or disproportionate burden on the administration of justice.

There are positive arguments in favour of such an extension. It is quite likely that some people who have their property seized in connection with immigration offences, and might be entitled to it back, are some of the poorest, most vulnerable people in society. Previously, we have had some interesting exchanges about whether the force of the law is aimed at falling more on employers of illegal workers rather than the illegal workers themselves. There has been a fair degree of consensus that it is both more useful and more just to tackle the employers. It is also more efficient, as that would be the way to stop most illegal working. It is nevertheless unarguable that illegal workers will get caught up in the process. We have agreed that many of them are working illegally not only because they are in the country illegally, but because in their vulnerable position they can be exploited and paid below the minimum wage. They are therefore overwhelmingly likely to be poor.

The first and obvious point to make about that group of people is that any property seized from them will not amount to much. More importantly, it might be all their worldly goods. It is not a question of someone paying a fine; it might be everything that they have. In those circumstances, it is important to consider the length of time during which the property can be reclaimed. Ministers might consider whether there is not a moral obligation to keep the case open for as long as is practical, so that the small amount of property that such people have may be returned to them after a reasonable amount of time. Many of them will not be familiar with any kind of legal mechanism for retrieving their own property. Many of them will have little command of the language and absolutely no experience of the legal system in this country, and might well come from countries where for the state eventually to give back property that it has seized is a wholly alien idea. They are therefore unlikely to be sufficiently up to the mark to get their property back.

I would guess that many people who have lived their entire life in this country would be surprised to discover that they can get their property back from the state after it has been seized, but I think that that would be even more applicable to those who might be affected by this aspect of the Bill. Among that group, possible suspicion of the attitude of the state will be increased by some of the terms of the Bill, which they might find onerous. We have had discussions about how much control the Government should take, and are taking, over where people live and how often and to whom they should report. If someone has been arrested, had their property seized and been through a legal process, then come out the other end without having been convicted, they will be unlikely to want to come forward and make themselves known to the state. It may be worth considering giving them some encouragement to do so.

Amendment No. 122 would require the Secretary of State to take reasonable steps to identify the owner of seized property, taking account of the fact that the person may, in the circumstances, need help to retrieve their property. For example, it would be difficult to identify the owner of the property if it had been seized from one of the houses in multiple occupation, which we heard about in an evidence session, where many people live. I have heard in other forums of houses in which beds are rented out for eight-hour periods and occupied for 24 hours a day. Three and four-bedroomed family homes may have 30 or 40 people living in them.

It is not beyond the bounds of possibility that in such circumstances, identifying the owner of seized property will not be straightforward and it would not be enough for the authorities to sit back and assume that it would be clear. A few simple, routine steps could be taken that would establish what belongs to whom, and amendment No. 122 and the consequential amendment No. 123 would lay that obligation on the Secretary of State, so that in this relatively small corner of the powers and actions that the Bill promotes there would be some obvious fairness.

Photo of Joan Ryan Joan Ryan Parliamentary Under-Secretary, Home Office, The Parliamentary Under-Secretary of State for the Home Department 2:45 pm, 15th March 2007

During the exercise of their statutory functions, immigration officers can lawfully seize and retain property, which may include forged passports, forgery equipment and other evidence of immigration-related offences. In addition, the Bill gives the courts new, extra powers to cause property used by convicted offenders to commit immigration-related crime to be forfeited to the Secretary of State. At present, the immigration and nationality directorate lacks the necessary legal powers to dispose of property that comes into its possession.

The immigration service is increasing its capacityto investigate immigration-related crime and as a consequence the Home Office will incur rising costs in storing and increasing amounts of seized and forfeited property. In some cases, the retention of the property could become unlawful, so it is necessary to provide for the disposal of the property that is held by the IND in similar circumstances to those in which the police and SOCA can dispose of property. The powers have two separate aspects: first, the court has the power to order the disposal of the property, and secondly, the Secretary of State may make regulations for its disposal. I will come to that in a moment.

Many of the hon. Gentleman’s points were about ensuring that adequate and appropriate safeguards are in place in respect of the power of disposal. I will attempt to reassure him about the safeguards. In respect of amendment No. 120, he will know that clause 22 is intended to make provisions that are equivalent to the existing powers of disposal of the police; it is nothing further than that.

Increasing the time in which a person claiming forfeited property can apply to the court for a disposal order would be inconsistent with the existing legislation and I believe that it would be unjustified.

Where we are talking about forfeited property, there will already have been court proceedings, during which the court decided to make the forfeiture order. As part of those proceedings, a claimed owner would be able to make representations. For example, under section 25C of the Immigration Act 1971 the court must give an interested person the chance to make representation before forfeiting a vehicle used to commit a people-smuggling offence.

Once property has been forfeited, a person claiming the property will have a further six months to apply to the court for the return of the property, provided that they can show that they had nothing to do with the original offence that led to the property being forfeited. That is in line with the police and SOCA legislation, and it gives ample opportunity for the court to take account of the legitimate rights of an innocent property owner. The property owner can state their claim at the forfeiture hearing and they also have another six months in which to lay a claim before disposal.

If property is seized from a vulnerable person, the owner will be ascertained and in that situation the court can only order that the property is returned to the owner. So, the property has been forfeited because it has been used to commit a crime; the property will only be returned to that person, as I said, if they show that they had nothing to do with the crime. Therefore, there is protection for a vulnerable person.

In relation to amendments Nos. 121 and 123, the clause allows regulations to be made for the disposal of property where the owner cannot be ascertained, or where the court has already ordered forfeiture.

There are safeguards in the clause to protect the rights of the innocent property owner. Where a court makes a disposal order, that does not affect in any way the right of any person to bring legal proceedings for recovery of the property within six months of the date of that order. Under the police and SOCA regulations, property may be disposed of only after it has been in the possession of the Secretary of State for a year.

Therefore, where the owner cannot be ascertained, the clause absolutely meets the aims of the amendment that the hon. Gentleman has suggested, namely that the period of time before property can be disposed of is increased from six months to 12 months. It is in relation to forfeited property that the period of six months applies. As I said, the safeguard in that situation is that there has already been an order of the court and the person who wants to lay claim to the property can do so. So, if the property has been ordered to be forfeited, it is a period of six months before disposal; if the owner cannot be ascertained, the period before disposal is 12 months.

Those measures are appropriate safeguards. They apply at the moment, both to the police and to SOCA in disposing of property, and they are working well.

Amendment No. 122 is, in fact, unnecessary because in cases where regulations enable disposal of property because the owner cannot be ascertained, the Secretary of State must act reasonably under usual principles of administrative law. That point is already covered; the Secretary of State must take reasonable steps to ensure that the owner cannot be ascertained before disposal and they would be expected to demonstrate that that was the case.

Having given those reassurances, I hope that the hon. Gentleman is able to withdraw his amendment. I would reiterate that the safeguards apply; we meet some of his requirements, and where we do not extend the period of time to 12 months, that is because there has already been an opportunity at a forfeiture order hearing for the individual to lay their claim.

Photo of Damian Green Damian Green Shadow Minister (Home Affairs)

I am very grateful for the Under-Secretary’s full exposition, in the light of which I am reassured and beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 22 ordered to stand part of the Bill.

Photo of Damian Green Damian Green Shadow Minister (Home Affairs)

I beg to move amendment No. 97, in clause 23, page 13, line 21, at end add—

‘(2) In section 21(2)(a)(i) of the Immigration, Asylum and Nationality Act 2006 (c. 13) for “two years” substitute “four years”.’.

This is an attempt to help the Government by putting into practice some of the rhetoric that we hear from Ministers. On Second Reading, the Minister rightly made great play of the Bill’s importance in attempting to crack down on illegal employment and, specifically, on those who employ illegal labour. As I mentioned in my remarks on the previous group of amendments, that was the subject of some of the most arresting evidence from witnesses. Indeed, over recent weeks the Government have embarked on a range of activities, some of which will be useful, but others worse than useless, in order to crack down on illegal working—a worthwhile ideal. One can see what they are trying to do.

Amendment No. 97 would help the Government by increasing the maximum penalty for those who knowingly employ illegal immigrants from two to four years in prison. That is dear to the hearts of the Minister and the Home Secretary, which is why I am hopeful that the amendment will get a sympathetic hearing from Labour Members. It refers to the common difficulty that we have debated in this Committee and with the witnesses: is the real problem with illegal immigrants tricking employers into believing that they are here legitimately or with employers deliberately employing them precisely because they are illegal immigrants?

Given that the Minister has been so assiduous in quoting Sir Andrew Green, it is only fair that I quote Jack Dromey, who made a very interesting point. He said that he had heard about Portuguese workers in this country deliberately obtaining false Brazilian passports so that they can pretend to be illegal workers and take jobs below the minimum wage. If their employers had  known that they were legal workers, they would not have taken them. That shows the Alice in Wonderland state of some of our employment practices.

That tells us two things: first, some people are desperate to find work in this country but do not think that they can find any, even at the minimum wage, and secondly—this is significant for the amendment—some employers are ruthless and clued up enough to want to employ only illegal workers and would not contemplate employing legal ones. There is no difference of opinion on that in the Committee. We need to crack down on those people.

In parenthesis, clearly such activity might well promote illegal immigration on which, I am afraid, the Minister’s biometric passports and so on will have very little effect. We need a very strong deterrent for anyone wanting to indulge in such practices. The amendment would strengthen the Bill by sending out a clear message to the small number of irresponsible employers who damage the name of British business. Understandably, they are unpopular with trade unionists and employers organisations, who I know have been urging the Government to make sure that they crack down effectively on this type of illegitimate employment practice. This amendment enables the Government—indeed, enables the House—to send out a very clear signal of what we think about that type of exploitative employment practice. We think it should be unacceptable and we think that its consequences should be extremely serious. That is why we propose doubling the potential maximum penalty. I hope this finds favour with the Minister.

Photo of John Hemming John Hemming Liberal Democrat, Birmingham, Yardley 3:00 pm, 15th March 2007

The amendment goes to the nub of an issue that was raised previously by the trade unions but is also a concern of the CBI. The question is how we enforce immigration regulations. There is an element of consensus in both the trade unions and the employer organisations that we should crack down on those people who intentionally go out to employ undocumented workers—the example cited was supposed to be from Leicestershire.

The challenge is to distinguish between those people and the ones who get trapped in a situation where what is known in one part of the organisation is not necessarily known to the management. The challenge is to identify mens rea—the strategy of going for undocumented workers because they have no employment rights and therefore they can make more money out of them, or potentially not pay taxes and so on.

I am inclined to support this provision on the explanation given, but the challenge actually does not necessarily rest in the Bill. The view of the CBI is that these issues will be addressed in future circumstances. But it is very important indeed that we get the balance on this right; because otherwise one ends up with the situation that Jack Dromey referred to, which causes a lot of problems when you have legitimate employers but the balance between the work force and the employer changes. The subtleties here have a substantial impact.

Photo of Joan Ryan Joan Ryan Parliamentary Under-Secretary, Home Office, The Parliamentary Under-Secretary of State for the Home Department

The clause is a minor technical amendment to ensure that there continues to be a power of arrest for the new offence of knowingly employing an illegal  worker when the existing similar offence under section 8 of the Asylum and Immigration Act 1996 is repealed. This amendment will add the power of arrest with warrant.

Knowingly employing an illegal worker is a significant offence. The offence was introduced in the Immigration, Asylum and Nationality Act 2006, and we have already toughened up the offence. A person convicted of employing an illegal worker under the 1996 Act can only be fined, whereas under the new offence in section 21 of the 2006 Act, those convicted face a maximum of two years imprisonment and an unlimited fine or both.

It is indeed the case that many people we have taken evidence from have made a clear and significant point, as we do ourselves, about the role of illegal employment and the need to bear down on illegal employers. But I would say to the hon. Member for Ashford that our view is that the two-year maximum is an adequate and proportionate way of dealing with these offenders. It is comparable to other maximum sentences for non-violent crimes. His colleagues and, I presume, he himself supported the 2006 Act. This is a new offence. They made no objection at the time to the two years. He will also know that we have not yet implemented this measure, so it has not yet been tested as it is recent legislation. There is no current evidence that four years would be a better deterrent than two, so our view is as it was when that Act was introduced in 2006—that two years is the appropriate response and already represents a significant toughening of the measures.

Photo of Crispin Blunt Crispin Blunt Opposition Whip (Commons)

The response to that is that one of the benefits of a Public Bill Committee is that we have been able to hear evidence, which the other Committee was not. The evidence has convinced us that four years would be more appropriate. If someone were sentenced to two years, how long could they actually expect to spend in prison?

Photo of Joan Ryan Joan Ryan Parliamentary Under-Secretary, Home Office, The Parliamentary Under-Secretary of State for the Home Department

That would depend on a number of factors, not least that person’s behaviour in prison. It is not something on which I can give the hon. Gentleman an answer in years or months, as he is probably aware. I accept that he listened to the evidence. We have not only listened to the evidence but we had a significant amount of discussion on the matter while constructing the Bill. Like all those who gave evidence, we recognise the crucial significance of dealing with illegal employers, and particularly the notion of “knowingly.” That brings me to the points made by the hon. Member for Birmingham, Yardley.

There are civil penalties for those who are careless and employ an illegal worker but do not do so knowingly. Employing illegal workers is a serious matter—a criminal offence with a criminal conviction. A prison sentence of two years is significant and we should not lose sight of the fact that an unlimited fine can also be applied. On that basis, and because we do not have evidence that four years would be a greater deterrent than two, we are not able to support the amendment. I urge hon. Members to support the clause as it stands.

Photo of Damian Green Damian Green Shadow Minister (Home Affairs)

I am disappointed that the Under-Secretary thinks that, particularly as I was not treading on the tentative ground of the fact that the tough clause in last year’s Act is still not in force, which she  then brought up. I thought that I would forgo the opportunity to point out that that is yet another example of the classic problem with the current Home Office—the fact that it introduces legislation as a substitute or displacement activity for effective action. Last year’s provisions are not yet in place, but we are considering this year’s Act. We are promised an Act next year as well. Legislation is ever flowing, but activity on the ground is rather less visible. That is unsurprising, because the Home Office cannot get round to implementing all the legislation that it passes.

The fact that the two-year sentence is not yet in operation, meaning that we cannot hear any evidence as to whether it is effective, is not a particularly strong argument against the amendment. There is no evidence about two years, four years or any period that one cares to name, so the Under-Secretary cannot pray that in aid. As she rightly said, we supported that part of the 2006 Act because we believe not only that the offence is serious but that, considering the figures, it is increasingly common. The knock-on effects of it being known around the world that Britain is the place to come and work illegally are very serious. At the extreme end of horror are episodes such as the cockle pickers and the dead Chinese people in the lorry in Folkestone. However, even without such terrible tragedies it is bad in all sorts of ways for this country. It is bad for employment and for social cohesion that Britain has become one of the parts of the world in which illegal working is endemic. I am not reassured by the Minister’s arguments, so I seek to press the amendment.

Question put, That the amendment be made: —

The Committee divided: Ayes 6, Noes 8.

Division number 11 Nimrod Review — Statement — Clause 22

Aye: 6 MPs

No: 8 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Clause 23 ordered to stand part of the Bill.

Clause 24 ordered to stand part of the Bill.