Clause 8 - Offence of illegal working

Immigration Bill – in a Public Bill Committee at 2:30 pm on 27th October 2015.

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Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office) 2:30 pm, 27th October 2015

I beg to move amendment 68, in clause 8, page 5, line 6, after “if”, insert “without reasonable excuse”

To provide for a defence against the offence of illegal working.

We have reached an area in the Bill on which there is greater disagreement. We welcome the provisions that bear down on employers who exploit employees. That is in keeping with our welcoming of the director of labour market enforcement. However, we have considerable difficulty with the notion of creating an offence that can be committed by employees, which is strict and without any defences.

I begin by drawing the Committee’s attention to the baseline evidence from the Migration Advisory Committee 2014 report, which makes a number of comments pertinent to clause 8. It says:

“The combination of non-compliance and insufficient enforcement can lead to instances of severe exploitation, particularly of vulnerable groups such as migrants.”

That same 2014 report records the Committee’s research on labour market exploitation of migrant workers in particular:

“We were struck on our visits around the country by the amount of concern that was expressed by virtually everyone we spoke to about the exploitation of migrants in low-skilled jobs…The TUC told us that migrants, particularly from lower income EU accession countries, are often likely to take up low-skilled work, partly due to the nature of the labour market but also due to the labour market profile of such migrants.”

A little later the report says:

“During our visits to places which had experienced relatively high levels of migrants the point that migrant workers are more likely to be exploited than resident workers as they are not aware of their rights and are afraid they may be sacked/evicted/deported if they complain was raised on a number of occasions.”

The Committee cites its meeting with the Equality and Human Rights Commission, which

“expressed the view that migrant workers, and especially agency workers, were more likely than resident workers to put up with poor working conditions and bad treatment by employers because they were not aware of their rights, they do not know who to complain to and are scared that if they do complain they could lose their job. The EHRC said it is often better for a migrant to be in the UK with a job, albeit a low-paid one, than in their home country without a job.”

The background is a general recognition that migrants and vulnerable employees are extremely vulnerable under all current conditions and often feel that they simply cannot come forward, even under current circumstances, to explain to anyone what is happening to them for fear, as that committee set out, of being sacked or deported. Here, for the first time in the Bill, the offence of illegal working applies to employees rather than employers. The great fear is that that will simply mean that those who are the most exploited and vulnerable will become more exploited and vulnerable as they are pushed further and further away from any legal protection.

The offence is one, pretty much, of strict liability, in the sense that it is triggered by not having the right immigration status. There is no mental element in any way; nor is any defence set out in clause 8. Amendment 68 would resolve that issue by inserting a defence of “reasonable excuse”. Obviously, that is a fall-back position; the in-principle position is that there should not be an offence for employees. It makes them more exploited and vulnerable, and less likely to come forward. As a general proposition, outside of the immigration context, it has been the thinking for some time that to criminalise  those who are employees or victims is usually a mistake if we want effective enforcement action. The further they are pushed away from law enforcement, the less likely we are to get to the truth. They will not come forward to protect themselves.

Photo of James Brokenshire James Brokenshire Minister of State (Home Office) (Security and Immigration) 2:45 pm, 27th October 2015

To understand the hon. and learned Gentleman’s logic and thinking, is he arguing that some offences that already exist for people who have entered the country illegally should be done away with? If I follow his line of argument, he is saying that any criminal offence is problematic and should not be there.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

I am grateful to the Minister for that intervention. No, I am not going that far. Those offences are on the statute book. They are much wider than offences in the working environment. I am starting from the proposition that this group of people has been recognised as the most vulnerable and exploited in the workplace, and the least likely to be able to come forward and explain what has happened to them.

The Minister raises a different point, which is that it is often thought—I certainly think this—that new criminal offences should not be introduced in legislation unless there is a clear need for them and there is a gap in the current enforcement mechanisms that the new offence is intended to fill. For many years, there was criticism of Governments for simply introducing criminal offences as a response to a non-problem when there was no evidence of the need for the offence. This is an example of that. As we heard in evidence last week, the problem is the low likelihood of intervention, inspection or any enforcement action. There is no evidence that this offence, for employees, is needed. There are existing offences with which they can be charged. In those circumstances, the clause fails the fundamental non-immigration test that we should not be legislating to introduce offences when there is no evidence that the offence is needed because there has never been any evidence of a case where action could not be taken because the offence did not exist.

Photo of James Brokenshire James Brokenshire Minister of State (Home Office) (Security and Immigration)

Following what the hon. and learned Gentleman is saying about offences, it seems that his principal point is about those who are vulnerable coming forward. That takes us into broader issues on the national referral mechanism and some of the steps we have taken through the Modern Slavery Act to shine a light. Our focus needs to be on those broader issues—if I have followed the line of his argument—on helping people to come forward. This offence would not have the impact that he is suggesting, because of all the other inhibitions about those who may be enslaving people and putting them in fear. Rather, we need to tackle the broader themes and help people to come forward, which is what the Government and Members across the House have rightly focused on.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

I am grateful to the Minister. Of course, any measures to give people the confidence to come forward should be pursued. There would be general agreement about that—in particular, in relation to some of the offences we have been discussing. However, adding an offence when there is no evidence that it is needed simply makes a bad situation worse. If the Minister has evidence that anybody at all has ever said, “The problem  here is that we haven’t got an offence for the employees”, I have not seen it and it has not been set out in any great detail.

Photo of Paul Blomfield Paul Blomfield Labour, Sheffield Central

Does my hon. and learned Friend accept that the nub of the Government’s argument in relation to this offence, as we understand it, is to reduce pull factors—to create a disincentive for those coming to this country to enter into illegal work? Is he concerned, as I am, that the Government seem to have no evidence that it will work? We have heard substantial evidence that this may be counterproductive, but there is no evidence from the Government that it will work as a deterrent and undermine pull factors.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

I agree with my hon. Friend and am grateful for his intervention. What is important is that the objective behind the Bill is properly pursued. There is a real risk that introducing an offence against the employee will be counterproductive if it drives underground the very group of people who are the most vulnerable when there is little or no evidence that the offence is needed.

I want to go a little further than that, because this is an offence without any mental element in the Bill. It is strict in the sense that absent the right status, the offence is made out, and then it is an offence without a defence, which is an unusual combination in criminal law. For example, some people will be here working in the belief that they have the right status because they are sponsored by the employer or somebody else. However, unbeknown to them, they may not have status because their employer has not correctly completed all the necessary arrangements for sponsorship. They fall into a category of individuals who are here without the required status, but without any knowledge of that or any intention to be in that position. Given the inflexibility of the offence, they would be immediately criminalised without even the opportunity of raising a defence of reasonable excuse. Their defence would be, “I am working. I had understood that my employer or somebody else had completed all the necessary forms and legalities. It now transpires they haven’t, but I had absolutely no reason to think that to be the case.” At the very least, if the clause is to stand, such an offence—there could be many other examples—ought to have a reasonable excuse defence, and that argument lies behind the amendment.

Photo of Sarah Champion Sarah Champion Shadow Minister (Home Office)

I speak in support of my hon. and learned Friend. It is fundamentally wrong to make the employee a criminal—it makes no sense. I have not been convinced by any of the witnesses we have heard or any of the evidence that I have seen that this is the right way to achieve the Government’s objectives.

My main concern is that the measure will compound exploitation. I would like to quote Caroline Robinson, one of our witnesses, from FLEX—Focus on Labour Exploitation—who put the three issues more succinctly than I can. She said:

“First, we think that people will be fearful of coming forward to be referred into the UK national referral mechanism as victims of trafficking…The second reason is that we know that traffickers use the threat of deportation, removal and reporting to immigration officials in order to abuse and exploit workers…The third reason is something that was raised a lot on Second Reading, namely the criminalisation of trafficked persons. Although the Home Secretary set out the statutory defence, which is in the Modern Slavery Act 2015, it is quite narrow in its terms. The schedules exclude a  number of offences for the victims of trafficking, such as aggravated criminal damage, but if I was to leave the building in which I was held I would no longer be covered by the statutory defence in the Modern Slavery Act.”––[Official Report, Immigration Public Bill Committee, 20 October 2015; c. 24-25, Q50.]

My biggest concern is that the measure will stop whistleblowers. How will we identify bad employers if the very people who can give us that evidence are too scared to come forward for fear of being criminalised? It is not only bad employers that could be overlooked, but health and safety risks that could impact on a number of employees.

I am pleased about the Modern Slavery Act, which is a good and strong piece of legislation. I am also very pleased that the Minister has made it clear that people are protected under the Act if they are trafficked into the country. If they are used as a slave, they are exploited. However, I would like clarification from the Minister about how someone will be dealt with if their status shifts. For example, if someone was trafficked into the country and forced into slavery, but then managed to escape and became an illegal worker, would they be protected because at the start of their journey they were protected under the Modern Slavery Act, meaning that they would be treated as a victim, or would they be criminalised because, at the end of their journey, they were an illegal worker? What happens the opposite way round? If a person comes to the UK as an undocumented worker and is then exploited by their employer, at what point would they be protected if, having come to the country illegally as a worker, they were then used as a slave?

Photo of Chloe Smith Chloe Smith Conservative, Norwich North

The hon. Lady and I both served on the Committee that considered the Bill that became the Modern Slavery Act. I looked at the list of exemptions in that Act while we heard the piece of evidence that she quoted. It is worth reminding the Committee that there is a set of defences in the Act, and to that set of defences, there is a set of exemptions. In that set of exemptions—this is rather like a Russian doll, but bear with me—there is an exemption on this point of criminal damage. In other words, an individual might be at risk of being accused of criminal damage only if they had behaved recklessly and endangered somebody’s life. That is in the Modern Slavery Act 2015, which the hon. Lady and I debated. Has she reflected on that before trying to advance this line of argument that the provision is all one thing, rather than being nuanced?

Photo of Sarah Champion Sarah Champion Shadow Minister (Home Office) 3:00 pm, 27th October 2015

I thank the hon. Lady for her intervention; she is always fantastic on detail. My answer is yes, but I am not a lawyer, so I would like the Minister to lay out, in language that a former charity worker can understand, the protections for people who are exploited. To be honest, I am unclear. A number of our witnesses said they were unclear, although I recall that clarification was sought on this point.

I will give the hypothetical example of a woman who paid a criminal gang for her passage here and came expecting a job. She was given a job, but then told that she had to pay additional costs, which took away all of her income, effectively making her a slave without legal protection under our current system. She could be  beholden to that employer for an indefinite period and be too terrified to speak out, because I can guarantee that the employer would use the fact that she would be reported and become a criminal if she did.

I do not see how clause 8 helps that person in any way. I would like clarification from the Minister about how that person could have the confidence to come forward when their employer is telling them that they will be criminalised if they do so. Surely the best approach is to stick with clause 9, under which the employer becomes liable for the actions and will be criminalised for those actions.

We know where the employers are. They will be registered at Companies House and they will be filing their taxes. It will be a lot easier to follow that trail to get the prosecutions, particularly with limited resources, rather than spending an indefinite period trying to track down illegal workers when we do not know who they are, where they are working or their status, just on the off chance that we might catch and criminalise them so that we send out the right message. Surely it is better to go for the employers.

Photo of Anne McLaughlin Anne McLaughlin Shadow SNP Spokesperson (Civil Liberties)

I wonder whether there is a misunderstanding, or at least an underestimation, of how vulnerable some of these workers are. Does the Minister realise the extent of their vulnerability? If he does, will he change his mind about criminalising those who work illegally?

I will cite an example of not a young vulnerable woman trafficked here as a sex slave, but someone whom hon. Members might use as an example of why we need to criminalise. On my travels a few years ago, I spent time with a man called Mehdi, who was fit and healthy in his mid-thirties. He was married to Rezi, who was pregnant with their first child. They sought asylum in the UK—I met him some years after all this happened—and ended up in Glasgow where, despite their best efforts, they were refused asylum because they could not prove they were in danger. She had a miscarriage and they were made destitute. They were told they would be deported and they embarked on a terrible downward spiral. They removed themselves from all support mechanisms, so frightened were they of being found and deported to certain danger, but they could not survive here, so Mehdi found a job. He knew he was not allowed to do that, as did his employers, who took advantage of that knowledge and made him work extremely long hours for £3 an hour.

Mehdi was abused, exploited and occasionally beaten. He was worked until he would regularly collapse with exhaustion, but he had no choice. Some Government Members might argue that he did have a choice because he could have gone back to his home country. However, he was not working not just to feed himself and get by in life in Glasgow, but to save money to buy false passports so that the couple could get out of the UK and away from the danger of deportation to his home country. Who among us would not do whatever it took to protect our loved ones and our own lives if we had to?

If the Bill had been in force when Mehdi was doing all that, what might the outcome have been for this loving and protective husband? This kindly but damaged man could very well have ended up in jail, followed by  being deported to the country that he was so afraid of returning to. For him, the worst part would have been leaving his wife—

Sitting suspended for Divisions in the House.

On resuming—

Photo of Peter Bone Peter Bone Conservative, Wellingborough

Before I ask Anne McLaughlin to continue her speech, I thought it might be advisable to take discussion of the clause with the amendment and not have a stand part debate. If anyone wants to make a contribution on the clause, please feel free to do so now.

Photo of Anne McLaughlin Anne McLaughlin Shadow SNP Spokesperson (Civil Liberties)

It has come to my attention that some Conservative Members did not listen to absolutely every word, so I wondered whether they would like me to recap from the start, or just to summarise where I was.

I was speaking about someone I met on my travels who had sought asylum in the UK and ended up in Glasgow. Mehdi, with his wife Rezi, were refused asylum, were destitute and were threatened with deportation. They were terrified of being returned to their country of origin because of what would happen to them. Mehdi ended up working illegally for £3 an hour, being completely exploited, and he did that because he did not have a choice. The point I was making was that he did not do that just to get by and to be able to buy food and clothes. He was doing it because they were saving up to be smuggled out of the country, not back to their country of origin, but to another country that they would enter illegally because they were so afraid of being sent back to their home country.

I was making the point that if this Bill had been in place then, Mehdi would have faced the additional risk of going to prison. I spent some time with him and he was most certainly not someone who—

Photo of Kate Hollern Kate Hollern Labour, Blackburn

What situation would the family have been in had this legislation been in place then?

Photo of Anne McLaughlin Anne McLaughlin Shadow SNP Spokesperson (Civil Liberties)

It would depend on whether he had been caught working. He would be prosecuted and could have been imprisoned. Thankfully for Mehdi and Rezi, that did not happen, but there are many other people like them. She was extremely vulnerable. Had the Bill been around and they had been imprisoned, she would have been left destitute, facing deportation without him by her side. With him by her side, she was terrified enough. He would have gone to prison and then, undoubtedly, he would have been deported separately from her.

A fit, healthy married man in his 30s who is working illegally is not someone we typically highlight when trying to attract compassion from those who wish to control illegal working and are also concerned about vulnerable people, but who among us could not feel compassion for Mehdi and Rezi? We should remember that even those who are not the archetypal exploitable worker often have truly heart-breaking stories and are often left with no choices. The Bill would make it even riskier for them. If it is riskier, they will become ever more dependent on their abusive, exploitative employers.  They deserve our compassion and support to get out of those situations. They do not deserve the threat of a prison sentence hanging over them.

Photo of Paul Blomfield Paul Blomfield Labour, Sheffield Central

On amendment 68, I welcome the observations the Minister made in his latter comments. The Bill creates an unreasonable anomaly between the caveats it provides for employers and the absence of any for employees. As I understand it, under clause 9, employers are only guilty of the offence of employing an illegal worker if they do so “knowing” or

“having reasonable cause to believe” that the person is an illegal worker.

We are saying to employers that there is a test of reasonableness before they are criminalised for the act of wrongful employment. The problem with clause 8 is that there is no such test of reasonableness. With the amendment, we seek to bring some equivalence between the way we approach employers and the way we approach employees by enabling them to be able to demonstrate “reasonable excuse” for the predicament in which they find themselves. Although I have reservations about the entire clause, were the Government successful in retaining it, I hope they would look generously on the amendment, which could provide that equivalence.

I have concerns about clause 8 more generally, as it criminalises the act of illegal working. I take the point made by my hon. and learned Friend the shadow Minister that we might disagree on this matter across the House. However, I do not think we need to. A number of us have said that we are at one on the objectives of the Bill, as we were with the Modern Slavery Act. In seeking to ensure that clause 8 does not stand part of the Bill, we are at one with the Government’s policy objectives of achieving effective labour market enforcement and, indeed, of combating modern slavery. Less than two years ago, in November 2013, the Home Secretary made combating modern slavery a priority. I do not have the experience that Conservative Members and, indeed, my hon. Friend the Member for Rotherham have of serving on that Bill Committee but I commend those who were involved on that legislation, just as I commend the Home Secretary on the priority that she placed on combating modern slavery. That aim won wide support, found expression in the Modern Slavery Act, and took us in the right direction. The problem with clause 8 of this Bill is that it risks undoing some of the good of the Modern Slavery Act.

I am sure that the Government do not intend to undermine their own legislation so soon after it has become law so I hope that the Minister will give serious regard to the points that we are raising in suggesting that clause 8 should not stand part of the Bill. I hope he recognises that if it does, slavery is more likely to thrive. I notice that he is shaking his head and I look forward to his response.

I put this to the Minister: what do we know? What is all the evidence clear about? I am happy for him to intervene if he disagrees, but all the evidence is clear on one thing. The more vulnerable workers are, the stronger the hand of the gangmasters or the unscrupulous employers who seek to exploit them. I am sure that the Minister agrees, as I notice he does not wish to intervene. Vulnerability plays into the hands of those who seek to exploit, such as unscrupulous employers. The more vulnerable workers feel, the less likely they are to come  forward to report their abusers. Clause 8 increases that vulnerability and strengthens the hands of the gangmasters. I note that the Minister is again shaking his head. I would be happy for him to intervene if he can provide any evidence to suggest that that is not the case. When we took evidence from witnesses, we heard from many experts who said that this was the case; none said that it was not.

The clause, by threatening exploited workers with 12 months in prison if they are deemed to have committed the offence of illegal working, gives another crucial card to the suit of cards that gangmasters can play. It does not only affect those who have committed the offence of illegal working; it changes the psychology and relationship even between the employer and the employees who have not committed an offence. According to the National Crime Agency, in cases that it has taken up, 78% of those who have been exploited for their labour in the UK actually have the right to work here as EEA nationals. Rights awareness among those workers is low and their options are limited, which allows unscrupulous employers to hold the threat of removal over them.

Photo of James Brokenshire James Brokenshire Minister of State (Home Office) (Security and Immigration)

I have listened carefully to the hon. Gentleman. In the example he just gave, he said that the individuals concerned had the right to work. How would they be caught under the clause if they would not be working illegally?

Photo of Paul Blomfield Paul Blomfield Labour, Sheffield Central

I thank the Minister for that intervention because it gives me the opportunity to explain more clearly; I apologise if I did not do so before. The point I am making is that clause 8 affects those who do not have the right to work, because it criminalises them and makes it less likely that they will whistleblow and report their employers. Rights awareness is low, even among those who have the right to work here. We have seen various cases where exploitative practices have been blown apart. Part of the intimidation and the way in which employers were enforcing compliance was by cloaking a series of threats that did not apply in those cases. That is my point.

Photo of James Brokenshire James Brokenshire Minister of State (Home Office) (Security and Immigration) 3:45 pm, 27th October 2015

The hon. Gentleman makes an interesting point, but he seems to be articulating some of the broader issues that we know are redolent around slavery and trafficking, on debt bondage, housing, and physical enslavement. It is those threats and issues and the threat of deportation that might be more redolent in the examples that he has given, rather than law enforcement.

Photo of Paul Blomfield Paul Blomfield Labour, Sheffield Central

I take the Minister’s point, but why give those who exploit yet another card to play? The threat of 12 months’ imprisonment and criminalisation is the card that will be exercised both in relation to those who have no right to be here, or to be working, and in relation to those who do.

Photo of Sarah Champion Sarah Champion Shadow Minister (Home Office)

One of our witnesses, Caroline Robinson from Focus on Labour Exploitation, said:

“We know that 78% of those exploited for their labour are, in fact, documented in the UK.”––[Official Report, Immigration Public Bill Committee, 20 October; c. 28, Q59.]

Photo of Paul Blomfield Paul Blomfield Labour, Sheffield Central

My hon. Friend makes exactly the point that I was seeking to make. Even where people have rights to work, the lack of rights awareness and the intimidatory relationship between exploiter and exploited make this another card to play. I see the Minister is still shaking his head. Even if we were to restrict the measure simply to those who did not have the right to work, we are still giving the exploiter another card to intimidate and therefore make it less likely that people would be willing to whistleblow. I am happy for the Minister to intervene on me. Perhaps he could illustrate the evidence that suggests the clause will be of assistance—not the intuition, the belief, the view, but the evidence.

Photo of James Brokenshire James Brokenshire Minister of State (Home Office) (Security and Immigration)

The hon. Gentleman is encouraging me to intervene. I will take him through the logic as to why we think the clause is necessary. The interesting and thoughtful way in which he always presents his case identifies broader issues, and I do not see this offence changing the situation in the way that he says. The cases that he has enunciated and the evidence that the hon. Member for Rotherham highlighted show that in the majority of cases people did have rights and are not touched by the offence. The area is complex, and I know that the hon. Gentleman understands this. It is about the broader issues and themes that I touched on earlier.

Photo of Peter Bone Peter Bone Conservative, Wellingborough

Order. Mr Blomfield, I have used that trick a lot of times, but, given that the Minister is going to speak and that some of the responses will have to be lengthy, the matter is not right for an intervention, so it might be better if the Minister deals with some of the issues in his remarks later.

Photo of Paul Blomfield Paul Blomfield Labour, Sheffield Central

I am pleased to know that I am following in sound footsteps, Chair, but I will take your advice.

Photo of Anne McLaughlin Anne McLaughlin Shadow SNP Spokesperson (Civil Liberties)

Is the hon. Gentleman aware that it is not only the exploitative employer who can continue to exploit the person who is working illegally? Undocumented workers face threats from all sorts of people. I spoke to somebody who had worked illegally for different reasons to the previous person I talked about. They were not only ruthlessly exploited by the employer, but were blackmailed by colleagues who themselves were working legally, but were aware or at least suspected that this person was working illegally. He faced blackmail, threats and intimidation. Although he said, “Actually, you don’t know what my status is”, the point that the blackmailers made was, “Are you willing to take that risk?” Of course, such workers are not. The exploitation comes from all around, not just from one employer.

Photo of Paul Blomfield Paul Blomfield Labour, Sheffield Central

The hon. Lady adds another dimension to my argument that the clause makes those who are already in a precarious situation more vulnerable and open to exploitation. In an earlier intervention, my hon. Friend the Member for Rotherham mentioned the evidence given by Caroline Robinson from Focus on Labour Exploitation, which works directly with  victims of trafficking for labour exploitation and of which I am the trustee along with some Members from other parties.

FLEX has identified three drivers of labour exploitation. The first is the feeling among migrant workers that they deserve less or have fewer rights than UK citizens. The second is a lack of checks on labour standards in the workplace, including everything from health and safety to minimum wage enforcement. The third is a fear of officials, especially of immigration officials. The Bill makes each of those drivers worse, and clause 8 has a particular effect on the first and third factors.

First, on the rights of migrant workers, the clause puts the focus on immigration status as a condition of asserting labour rights. By criminalising the exploited worker, whether they are committing the offence of illegal working or not, they can be treated and threatened by a gangmaster as if they are. On the second driver, we have talked at length about a number of aspects of labour market enforcement. The Bill seems to reflect the Government’s desire to move further towards an intelligence-based approach to enforcement. Essential to that intelligence is whistleblowing. We need to ensure that we do nothing in the Bill to discourage exploited workers from coming forward and thereby give gangmasters another card to play. Sadly, the clause risks doing exactly that.

On the third driver of labour exploitation, the problem that we identified earlier—the overlap between labour market enforcement and immigration enforcement—is at the heart of the Bill. The clause gives undocumented workers another reason to be worried. The consequence is that labour exploitation is not rooted out and continues to be a pull factor for migration, which is against the Government’s policy objectives.

Mr Bone, I will take your advice. I will not ask the Minister to intervene, but I press him to share evidence from anywhere in the world that shows that the approach of criminalising workers, unlike many other aspects of the Bill with which we agree, assists in the policy objective that he outlined and we share.

Photo of Sarah Champion Sarah Champion Shadow Minister (Home Office)

Will my hon. Friend comment on something else that Caroline Robinson said, which gets to the nub of his point that clause 8 does not meet the Government’s objective? She said:

“What we think will prevent people from working here undocumented is to reduce the demand for undocumented workers. To do that, we require enforcement of labour standards across the board. To be clear, the demand for undocumented workers is not because employers prefer undocumented over documented workers; it is because they cannot pay documented workers below minimum wage as easily as they can undocumented workers.”––[Official Report, Immigration Public Bill Committee, 20 October 2015; c. 28, Q59.]

Photo of Paul Blomfield Paul Blomfield Labour, Sheffield Central

My hon. Friend will not be surprised to know that I agree. The quotation adds very much to the case that I seek to make; perhaps it makes the point more clearly than I was doing.

I want to move on and talk about international examples. I have challenged the Minister and I am confident that he will come back with examples later. I have challenged him to give comparisons, but let me share one that was shared with me yesterday when I met representatives of the Council of Europe convention on  action against trafficking in human beings—GRETA. They shared with me the example of Italy. They had done some work and talked about the amendments made to the Italian Consolidated Immigration Act in 2002, the so-called Bossi Fini law, which was aimed at regulating migrant worker flows by introducing a system of entry quotas, and which was supplemented in 2009 by the criminalisation of irregular entry and stay. Their concern was that the requirements of a formal employment contract in order to obtain a residence permit exposed migrant workers who were already at risk of labour exploitation because of their irregular migration status. They were worried that irregular migrants would be afraid to report cases of exploitation to the authorities because they were concerned about being detained and expelled. The United Nations special rapporteur on trafficking in persons, especially in women and children, reported on the negative consequences of the criminalisation of irregular migration for victims of trafficking.

In response to points made to them by GRETA, the Italian authorities indicated that there were 14 convictions for trafficking in human beings in 2010 and nine in 2011. GRETA was concerned that those conviction rates were very low and urged the Italian authorities to strengthen their efforts to ensure that crimes related to trafficking were proactively investigated and prosecuted promptly and effectively. They asked the Italian authorities to study the implications of their immigration legislation, particularly the offence of illegal entry and stay. As a consequence, in January 2014, the Italian Senate approved Government measures to decriminalise those aspects of illegal immigration. They had recognised that the approach of criminalisation was not only unhelpful and policy-neutral but actively counterproductive.

Photo of James Brokenshire James Brokenshire Minister of State (Home Office) (Security and Immigration)

I am interested in what the hon. Gentleman is saying, but does he accept that the approach of immigration enforcement in relation to those who have entered the country illegally and committed an offence is to deport rather than prosecute?

Photo of Paul Blomfield Paul Blomfield Labour, Sheffield Central

I accept that it is to deport. Clearly, those who are here without rights, having exercised due process to establish whether they have a right to remain, should be deported. There is no disagreement on that, but does the provision of criminalising illegal working in clause 8 assist in that process or not? All the evidence seems to suggest that it will drive people underground, out of sight and make them less likely to whistleblow. That will frustrate the aspirations of the Government, with which we agree, to tackle both illegal working and its exploitation.

Photo of James Brokenshire James Brokenshire Minister of State (Home Office) (Security and Immigration)

We have had a wide-ranging debate on clause 8 and the amendment tabled by the hon. and learned Member for Holborn and St Pancras. It is important to take a step back. In all the contributions to date, the focus has been on the victims of trafficking and the effects of it; I will come on to those issues in more detail. There has not been much focus on the impact of illegal working on the rest of the population. For example, an illegal worker in effect takes a job from someone who is here legally—people born in this country, or those who have gone through all the right routes to come to this country.

The hon. Member for Glasgow North East made an impassioned contribution about an individual case. I am not familiar with it, obviously, and have to take at face value everything she told me. However, the measure we are debating has equal implications for someone in her constituency who is unemployed and cannot get a job. It is part of a broader strategy that links back to discussions on part 1 of the Bill on labour market enforcement and the role of the director, of enforcement and of doing more and better. There are also the offences that we are coming on to and the separate role of the Gangmasters Licensing Authority and how we can better direct its activity to go after those who are acting inappropriately and contributing to the problem. We need to see things in that broader context of the impact of illegal working on legitimate businesses and those who play by the rules, on wage levels and on the availability of work for British citizens and other lawful residents. It is important to underline that broader context when discussing the intent behind a number of provisions in the Bill, which need to be looked at as a whole, rather than always in isolation.

Photo of Sarah Champion Sarah Champion Shadow Minister (Home Office) 4:00 pm, 27th October 2015

I could have used exactly that point in my argument, because it is the employer who makes the decision whether to employ the legal person or the illegal person. Why are we going after the illegal people when already, under section 24 of the Immigration Act 2014, we have the power to deport them? The Minister has cited other Acts under which we can deport. Why are we not punishing the employer who is wilfully employing illegal workers?

Photo of James Brokenshire James Brokenshire Minister of State (Home Office) (Security and Immigration)

The Bill is doing both. It is taking steps in relation to employers and to employees, including with the overall enforcement approach. That is why I put things in that broader context. I will respond later to some of the specific questions on purpose, intent and how things fit in the overall deportation strategy. It is important to contextualise that so that the Committee understands the intent of the Government.

Photo of Anne McLaughlin Anne McLaughlin Shadow SNP Spokesperson (Civil Liberties)

The argument I was making was not that we should allow people who are not permitted to work in this country to work in this country; my point was that those people are often the most vulnerable. A man who is fit and healthy and in his mid-30s might not appear to be that vulnerable on the face of it, but imprisoning him would not make him less likely to commit the offence—he was left with no choice—nor would it change his situation. My argument was not that it is in some way acceptable for people to lose their jobs because others are working illegally; I was arguing that the imprisonment aspect, the criminalisation, is not necessary and will make no difference.

Photo of James Brokenshire James Brokenshire Minister of State (Home Office) (Security and Immigration)

I hear the point that the hon. Lady is making, although I do not want to get into the specifics of the case, as I am not entirely familiar with it, so it would not be appropriate or fair, for her or myself, for me to do so. In many cases, however, there is that choice of leaving the country. She might want to make a broader point about assisted voluntary returns and other means of appropriate removal, but that is the context for my arguments about the purpose of the clause and how it fits with other measures in the Bill to  support the approach of discouraging people from coming to this country and to deal with some of the broader impacts of illegal working.

Keir Starmer rose—

Photo of James Brokenshire James Brokenshire Minister of State (Home Office) (Security and Immigration)

I will give way to the hon. and learned Gentleman, but I hope that the Committee will then allow me to articulate some of the broader issues that will help our debate.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

I am grateful. The Minister talks about illegal wage undercutting. Professor Metcalf rightly said in his evidence that if more rogue employers were brought to task for exploitation, it would reduce illegal wage undercutting and unlock wealth creation by legitimate business by releasing them from unfair competition from exploitative rivals. We need to bring rogue employers to book for all the reasons that the Minister has set out, but our central point is that if we are to achieve that, it will be important that those who are being exploited feel able to come forward.

The evidence to date is that even for documented individuals, there is a huge problem, which I think is generally accepted. The next proposition—it will be interesting to know whether the Minister disagrees with the proposition—is that while we have a bad situation for documented workers, it is likely to be far worse for undocumented workers. What assurance can the Minister give that the accepted bad situation will not be made worse by these provisions and that, in the end, the goal of bringing more rogue employers to book will not be lost?

Photo of James Brokenshire James Brokenshire Minister of State (Home Office) (Security and Immigration)

The hon. and learned Gentleman, perhaps understandably, given his perspective, is fastening on to this issue without looking at the broader context that I outlined. We can have a broader discussion about the national referral mechanism—we had such debates during our consideration of the Modern Slavery Act 2015—and elements that inhibit people from coming forward. More direct control is likely, as the hon. Member for Sheffield Central highlighted, because this is a complex arena. A debt bonder may wish to impose a number of different conditions and restrictions may be put in place. That goes to other issues such as confinement and the challenge of removal, rather than the legal issues that we are highlighting today.

I want to develop a point that I started in interventions on the hon. Member for Sheffield Central. Home Office immigration enforcement’s normal response, when it encounters illegal workers with no permission to be here, is to try to remove them from the UK as quickly as possible, which has to be the right approach. Action is also taken against non-compliant employers in the form of civil penalties or prosecution. We will come on to that in the next clause, although a strict liability approach is taken against employers under the civil penalty arrangements, so the prosecution element is added to that. That remains the right approach.

Photo of James Brokenshire James Brokenshire Minister of State (Home Office) (Security and Immigration)

If I may, I would like to make a bit of progress.

We are also keen to take action in the Bill to address a genuine gap in the law that currently impedes the Home Office’s ability to address the economic incentives behind illegal work and impairs our clear message that those  engaging in such activity should not profit from it. It is already a criminal offence to enter or remain in the UK illegally, as I have highlighted. However, migrants who require permission to be in the UK but do not have it, such as overstayers, may not be committing a separate offence of working illegally if they engage in paid work, including employment and self-employment. That is the gap for overstayers who go on to work. In other words, they have not come into the country illegally, so the courts do not always regard earnings derived from working illegally as the proceeds of crime when considering cash seizure or asset confiscation cases. The new offence tackles for the first time the difficult issue of those in self-employed occupations.

What is important in the context of the Bill is how the offence links to economic incentives and proceeds of crime legislation. As hon. Members will see, there is a specific reference to the Proceeds of Crime Act 2002 in the clause. I would articulate this as focusing on some of the economic benefits that might be derived. We think that there are benefits in how this is framed to assist immigration enforcement officers in their work, because they have identified this specific element in the course of their activities when seeking the removal of people from this country.

Photo of Paul Blomfield Paul Blomfield Labour, Sheffield Central

It would be helpful if the Minister could tell us how many people fall into the category of those who are working illegally because they are overstayers. I anticipate that the number will be much smaller than the general figures. This is about balancing the impact on one group against the negative impact on another. Will he provide those numbers, both specifically and as a proportion of overall illegal workers?

Photo of James Brokenshire James Brokenshire Minister of State (Home Office) (Security and Immigration)

The hon. Gentleman makes an interesting point, but as he will well know, one challenge that we have faced is understanding overstaying, which was why we introduced exit checks at the start of this year to identify more clearly patterns of behaviour, sectors and other elements that are relevant to those who are not overstaying the leave granted to this country. He asks me for information that is not currently held, and it is equally difficult to estimate the size of the population who are working illegally. I am sure that the labour market enforcement director will consider that when he examines the size of the problem in his reports to Ministers, but that does not undercut what immigration enforcement representatives say to me about the gap in the existing legal framework.

We need to ensure that there is an overarching approach on criminal law and, as I have said, there is a criminal aspect of people entering the country illegally. We are creating an additional offence for those who are overstaying, who are not covered by the existing criminal law. That means that they are not subject to proceeds of crime legislation, which is having the negative impact about which we have heard.

I share the concerns of the hon. and learned Member for Holborn and St Pancras about ensuring that an offence is used when circumstances suggest that it is the right approach. However, it is important to remember that individuals with an irregular immigration status will have committed a criminal offence under existing legislation by coming into the UK in the manner that I have described, regardless of whether they are working. Therefore, I do not accept arguments made about how  the criminal law, or an extension to it in the form of the offence we are discussing, will make the situation more difficult, as has been suggested. However, there are some important points to which I want to respond, including what the hon. Member for Rotherham said about slavery and existing offences under the Modern Slavery Act 2015. She served on the Modern Slavery Public Bill Committee, so she understands these issues.

Photo of James Brokenshire James Brokenshire Minister of State (Home Office) (Security and Immigration)

If I may finish this point, I will be happy to give way to the hon. and learned Gentleman.

The provisions of the Modern Slavery Act aim to encourage victims of modern slavery to come forward and give evidence, and to provide them with the confidence to do so, without fear of being inappropriately prosecuted or convicted. However, section 45 was carefully drawn to avoid inadvertently creating a loophole through which serious criminals could avoid justice, such as if they had been a trafficking victim at one point, but eventually became a member of an organised crime group and, motivated by profit, victimised others. There is always a balance to be struck, as was the case when framing the defence under section 45, and that balance applies to the defences that will operate under the Bill. This issue needs to be seen in that context.

As the hon. Member for Rotherham will understand—I know the hon. and learned Member for Holborn and St Pancras understands this, given his experience—the statutory defence acts as an additional protection on top of guidance from the Director of Public Prosecutions on whether prosecution is in the public interest. It is also in a court’s powers to stop an inappropriate prosecution for abuse of process. Although we need to think about the relevant section of the Modern Slavery Act, it is also important to bear in mind the DPP’s guidance. The normal decisions that the Crown Prosecution Service takes are equally relevant to these issues.

I said that I would give way to the hon. Member for Blackburn, so I will; I apologise for not doing so sooner.

Photo of Kate Hollern Kate Hollern Labour, Blackburn 4:15 pm, 27th October 2015

On economic stability and the creation of unfair competition through what is, to my mind, exploitation, I find it difficult to understand why the penalty for an employee is much harder than that for an employer. We would presume that an employer would be more aware of rules and regulations in this country, yet they have a get out: they did not know or have “reasonable cause to believe”. The balance needs to be shifted and more onus should be put on the employer who is exploiting people to the detriment of other businesses within the same field. At the same time, we are criminalising people who, whether here illegally or because of a process of right to stay, will probably be unaware of their situation, and certainly—

Photo of Peter Bone Peter Bone Conservative, Wellingborough

Order. I apologise for interrupting the hon. Lady, but either I am getting more tired or the interventions are getting longer—perhaps it is a combination of the two. She is making a perfectly fair point, but it might be better if she tries to catch my eye later as her intervention was veering towards a speech.

Photo of James Brokenshire James Brokenshire Minister of State (Home Office) (Security and Immigration)

As I have said, the primary response will be to seek to remove people from the UK. We judge that the offence will be helpful in particularly serious cases in which there may be aspects of culpability or links to organised crime, so it gives us an important additional mechanism. Given that the hon. Lady wants additional sanctions against and more punishment of employers, I hope she will welcome clause 9(2), which provides for an increase in the punishment for employers.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

I have two quick points. As I understand it, the Minister is saying that for the vast majority of cases in which other offences have been committed, the policy will remain as deportation rather than prosecution—that is a pretty long-standing position. For that class of individuals, the Bill therefore adds absolutely nothing, except to the unlikelihood of people coming forward. The new offence is in fact designed to tackle a smaller number of individuals—the numbers are unknown—who might not fit within that category of “deport not prosecute”, so as to get to any proceeds. The new offence is being introduced to crack that particular nut. My second point—

Photo of Peter Bone Peter Bone Conservative, Wellingborough

Order. As we are trying to do this properly through interventions, why not sit down for a minute and then you can intervene again with your second point?

Photo of James Brokenshire James Brokenshire Minister of State (Home Office) (Security and Immigration)

To respond to the point on proceeds of crime, the Government are committed to taking robust action to prevent illegal working. In our judgment, the current situation encourages illegal migrants to come to the UK, and those who are already here to overstay their leave and remain in the UK. We are clear that working without permission should be an offence that has consequences for an immigrant’s earnings. It is unfair if firms are undercutting their competitors through exploitation and the use of illegal labour. The Government will have the ability to seize cash sums and, as the hon. and learned Gentleman will know from other provisions of the Bill, that may have implications for bank accounts. The way in which powers could be used operationally in various contexts is a thread that goes through the Bill. Some of the unlawful proceeds that are being derived can be actioned through various mechanisms in the Bill.

It is important that we are closing a gap and sending out a clear message on the implications of illegal working. I underline the core element behind the Government’s focus, which is to deport and remove those with no entitlement to be here.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

I want to move on to the question of defences and the guidance that the Director of Public Prosecutions may issue. I am not concerned about the defence under the Modern Slavery Act—we had that exchange earlier and I understand the position—but the wider point of when that defence is unavailable. There is no defence of reasonable excuse in the Bill, so the individual in the example I cited earlier, who may not know that their leave to remain has ceased to have effect but therefore becomes a criminal, has no escape route. Does the Minister accept that in such circumstances it is not right to leave it to the DPP’s discretion? In other words, should not the DPP’s discretion be exercised according to the known offence and known defences? If there is a case for a defence, that ought to be in the Bill,  rather than left to the discretion of the DPP. That is not to suggest that discretion does not operate in many cases, but if there is a proper case for having a defence, it ought to be for Parliament to write that into the Bill and then for the DPP to exercise discretion as to how it operates in individual cases. The alternative is the DPP effectively introducing a back-door defence, which has not been thought to be an appropriate use of guidelines.

Photo of James Brokenshire James Brokenshire Minister of State (Home Office) (Security and Immigration)

First and foremost, I underline the point that, for those who are in the country unlawfully, the priority will be to see that they are removed. That is the first line of approach that immigration enforcement would take. Secondly, the use of the DPP’s guidance makes it clear that it is generally not in the public interest to prosecute an adult victim of slavery or trafficking where the crime they committed was a direct consequence of their slavery or trafficking situation and they were compelled to commit the crime.

A wide debate took place prior to the Modern Slavery Act as to whether that was sufficient in its own right or whether additional provisions were required. There was an extended debate between the non-governmental organisations, the DPP, the Crown Prosecution Service and policing. On balance, it was judged that the further defence provided in section 45 was appropriate. However, guidance can be provided on what is in the best interests of justice in that determination. Clearly, this will be a matter for individual cases, but, as I have already indicated, the primary approach that we want to take in respect of people who are here unlawfully is to see that they are removed.

The offence is to strengthen the message that the Government and the country send. Also, we want a method of dealing with serious or significant cases where an individual may be seeking to absolutely frustrate the system. The offence can be seen as an appropriate and effective tool in the work of immigration and enforcement in conducting their work. I suspect there will be a point of difference between us on that and it may be for the Committee to express its view on the issues, rather than to try to suggest there is not a difference of opinion when there is.

All victims, regardless of their involvement in criminal activity, are entitled to the same level of protection and support through the national referral mechanism and are assessed against exactly the same criteria. Support is tailored to each individual’s need and can include accommodation or outreach support and access to medical, legal and psychological support. As many hon. Members will know, the Government fund the Salvation Army to provide that service through a network of specialist charities across England and Wales.

On the point about whether the measures will strengthen the hands of the exploitative employer, as has been postulated, that is precisely why we are taking tougher action in the rest of the Bill against employers who exploit illegal labour. We are changing the knowledge base required in relation to the subsequent offence, as well as strengthening the approach to enforcement through the creation of the new role of director of labour market enforcement. Where employers repeatedly flout the law, we propose to use new powers to close their business premises and apply special measures as directed by the courts. Again, it is about the broad context.

I know that traffickers and those involved in such criminality are insidious in some of the techniques that they use. They use a wide range of techniques to exploit their victims, including debt bondage, physical force or threats to put victims in fear. There is no way entirely to stop traffickers misleading victims about what will happen if they come forward; they will often use such direct tactics to intimidate. The Government are making identifying and protecting victims of modern slavery, and giving them the confidence to come forward, fundamental to our modern slavery strategy.

That is why the Modern Slavery Act introduced the new statutory defence for victims who commit crimes due to their exploitation. Last year, the Home Office set up a modern slavery helpline and website and ran a national television campaign, with which many people will be familiar, to reach out to victims and encourage the public to report suspected modern slavery. In many cases, it is happening under our noses, in our communities and across our country.

As I have consistently said during my involvement in the initial preparation of the Bill, we must shine a light into those dark places, to see what is there in plain sight but is somehow unseen by us. That is the reason for the practical implementation of the Modern Slavery Act and the work that we are doing through a number of measures through the commissioner. It is about raising awareness and knowledge within law enforcement, so that the signs of slavery can be spotted and victims given the support that they need. That includes setting up specialist teams at the border to identify and protect victims when they enter or leave the UK. We are taking a multi-faceted approach in a way that has not been undertaken before. That is not a partisan view; good work has been done across the House on confronting modern slavery, and I welcome the contribution made to that work by numerous Members over an extended period.

Because of all that complexity and the elements that I have highlighted, I am simply not persuaded that the proposals make the situation worse in the manner postulated. As has been said, it is often those with the right to be in this country who are held here and kept in appalling conditions. We want to shine a light on those dark places from which they cannot escape, often physically, due to the manner in which they have been enslaved. That is precisely the reason for raising understanding in law enforcement and more generally across the population of this country, in order to deal with these issues when they become apparent. I know that I should refer to the contribution that you have made over a number of years, Mr Bone, to get us to a position in which we can have this debate with much greater understanding of the issues concerned. It is significant.

I see the issue in the broader context of what we are seeking to achieve in the Bill in terms of dealing with labour market exploitation, but I do not see that as inconsistent with the important work that we have done and will continue to do to confront slavery, traffickers and exploitation, and to go after those causing human misery in our country. I am proud to be part of a Government who take these issues seriously and are seeking to make a difference in that way.

Photo of Peter Bone Peter Bone Conservative, Wellingborough

Kate Hollern, would you like to say something now, as I have rather rudely cut you off?

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

In the light of the fact that we have discussed the clause and the amendment together, I do not feel the need to add anything on the amendment, save to say that we will press it to a vote.

Question put, That the amendment be made.

The Committee divided: Ayes 7, Noes 9.

Division number 2 Decision Time — Clause 8 - Offence of illegal working

Aye: 7 MPs

No: 9 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Question put, That the clause stand part of the Bill.

The Committee divided: Ayes 9, Noes 7.

Division number 3 Decision Time — Clause 8 - Offence of illegal working

Aye: 9 MPs

No: 7 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly agreed to.

Clause 8 ordered to stand part of the Bill.