Clause 38 - Assisting unlawful immigration or asylum seeker

Nationality and Borders Bill – in a Public Bill Committee at 12:00 pm on 28th October 2021.

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Photo of Bambos Charalambous Bambos Charalambous Shadow Minister (Home Office) 12:00 pm, 28th October 2021

I beg to move amendment 33, in clause 38, page 37, line 22, leave out subsection (2).

This amendment deletes the subsection which removes “and for gain” from section 25A(1)(a) of the Immigration Act 1971. Currently, under section 25A(1)(a), a person commits an offence if the person knowingly “and for gain” facilitates the arrival in the UK of an individual who the person knows, or has reasonable cause to believe, is an asylum seeker. This amendment preserves the status quo.

Following on from clause 37, clause 38 proposes to remove the words “and for gain” from section 25A of the Immigration Act 1971. Presently, under section 25A(1), it is an offence for a person knowingly and for gain to facilitate the arrival or entry, or attempted arrival or entry, of an asylum seeker into the UK. Clause 38 therefore seeks to broaden the section 25A offence to allow the Home Office to charge more people for facilitating the arrival of asylum seekers to the UK. Under the clause, someone acting purely altruistically to help an asylum seeker would be committing a criminal offence. It extends who could be convicted of the offence of knowingly facilitating the entry to the UK of an asylum seeker to individuals acting out of compassion for other people for no financial benefit.

As the Committee will know, the clause has received widespread criticism, and rightly so. I am not, for example, the first to observe that clause 38 would almost certainly have criminalised and prosecuted the likes of Sir Nicholas Winton for his life-saving actions in rescuing hundreds of children on the Kindertransport in 1939. Indeed, in July, when the Bill passed its Second Reading, many highlighted that clause 38 is so draconian that it could criminalise the Royal National Lifeboat Institution and its volunteers for helping those in danger at sea. If they were deemed to be facilitating asylum seekers’ arrival in the UK, they could face life imprisonment—life in prison for saving lives! I ask the Minister and this Committee: when did saving lives become a criminal offence?

These measures will criminalise friends, family members and individuals with humanitarian motives. The Minister’s predecessor, Chris Philp, attempted to provide reassurance on Second Reading by claiming that the Government have

“no intention in this Bill to criminalise bona fide, genuine rescue operations”.—[Official Report, 20 July 2021; Vol. 699, c. 915.]

However, the Bill as it is currently written does not provide any similarly explicit reassurances.

The Refugee and Migrant Children’s Consortium is especially concerned about the clause and its impact on people who provide assistance to vulnerable young people seeking asylum. It is concerned that such measures must in no way serve to deter people from saving the lives of babies and children at sea, with tragic examples demonstrating the cost of there being no safe and legal routes to the UK for families fleeing persecution. The Opposition have repeatedly drawn attention to that in Committee.

For asylum seekers who assist each other in coming to the UK to claim asylum, the implications of this measure are incredibly serious. Clause 38 increases the penalty for this offence to life imprisonment. These increased sentences, as raised by Zoe Gardner of the Joint Council for the Welfare of Immigrants in one of the Committee’s evidence sessions, risk being used to prosecute asylum seekers themselves, not the smuggling gangs and members of international criminal gangs they are intended for.

For example, according to the National Crime Agency, there is evidence that asylum seekers can often be forced to carry out work without pay for smuggling gangs. In an investigation by The Independent newspaper, migrants reported traffickers taking their money for crossings to the UK, only to then demand that they work for free in order to make the journey, and that work includes being forced to steer vessels during dangerous crossings.

In The Independent investigation, one Yemeni man demonstrated how traffickers are aware that they can criminalise asylum seekers and refugees in this way. He described the power this gives them, in that a smuggler

“told me, ‘I can kill you here, no one will identify me and I will escape.’ He took videos of me and of my friends while we were preparing boats for other journeys. He said, ‘I could now accuse you of being a smuggler, you could be in jail.’ ”

This proves how the persecuted can be coerced and controlled by these criminals, and will in turn in effect become criminals themselves under the punitive policy making of the Home Office.

Of course, the prosecution of victims for the crimes of their perpetrators is something that the refugee convention, drafted 70 years ago, considers. Article 31 of the convention is intended to protect refugees from prosecution for irregular entry because refugees are, by definition, forced into dangerous and risky situations during their flight. This is something the Government are deliberately trying to wash their hands of—and to do what? To pursue a reckless policy that will prosecute those who are demonstrably not criminals, but genuine asylum seekers and refugees.

It is worth considering whether clause 38 is indeed workable. As we know, clause 37 is likely to be unenforceable and clause 38 is equally, if not more, outrageous. In relation to our international law obligations, there does not appear to be any consideration of how this clause and the new expanded criminal offences in clauses 37 and 38 will be compatible with the duty of a ship to attempt to rescue persons in danger at sea. For example, article 98(1) of the United Nations convention of the law of the sea provides that every state shall require ships

“to render assistance to any person found at sea in danger of being lost”,

and

“to proceed with all possible speed to the rescue of persons in distress”.

More interestingly in relation to clause 38, paragraph 2.1.10 of the annex to the international convention on maritime search and rescue 1979—the SAR convention—explicitly obliges

“that assistance be provided to any person in distress at sea. They shall do so regardless of the nationality or status of such a person or the circumstances in which that person is found.”

With these rules in mind, it appears that the UK cannot legally prohibit vessels from rescuing asylum seekers at sea, and I urge the Minister to consider the Opposition’s amendment 33, which will preserve the status quo.

Our amendment will delete the subsection that removes “and for gain” from section 25A(1)(a) of the Immigration Act 1971. This will ensure that those who assist persons for gain will be prosecuted, while genuine asylum seekers and refugees are protected. It will bring the Bill in line with the advice provided by the Crown Prosecution Service in July, which confirmed that

“in cases involving the use of a boat where the sole intention is to be intercepted by BF at sea and brought into port for asylum claims to be made, no breach of immigration law will take place…The same applies where the intention is to sail the boat to a designated port of entry in order to claim asylum.”

In 2019, the Home Secretary vowed to make dangerous channel crossings unviable, but numbers have only increased since then. To distract from the Government’s failure, the Bill and measures in parts 2 and 3 have been introduced under the entirely baseless premise that people seeking asylum can be deterred from doing so. In reality, the Bill will not deter people from seeking asylum. It will, however, line the pockets of people-smugglers and push genuine asylum seekers and refugees into their hands and into increasingly dangerous journeys and complicated routes.

The Opposition are worried that, if measures in clauses 37 and 38 are enforced, the Government will let vulnerable people with a genuine need for protection be punished, rather than the traffickers, people-smugglers and organised criminal gangs who push them into these dangerous crossings. Targeting them takes international co-operation, not washing our hands of our international obligations under international human rights and maritime law.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Home Affairs) 12:15 pm, 28th October 2021

I wish briefly to associate myself with everything the shadow Minister just said; he covered pretty much all the ground that I would have covered. This ridiculous clause tramples all over our international obligations. I suspect what will happen today, as happened on Second Reading, is that we will be reassured that the clause will be used in a certain way so that the RNLI and others will not be targeted. Maybe I am wrong, which would be good, but the scope of the clause is extraordinary.

If the defence, as it was on Second Reading, is, “We’re not going to go after these people,” that is not good enough. You have to put that on the face of the Bill. We cannot create criminal offences and ask folk to go about breaching those laws and committing crimes in the hope that the Government keep their promise that they will not be prosecuted. It is a fundamental rule of legal principle—[Interruption.] The Minister is shaking his head: if that is not the defence, I look forward to hearing what is.

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

I am grateful to the hon. Members for Enfield, Southgate and for Halifax for providing the opportunity to explain the difficulties involved in securing convictions for an odious crime that targets and exploits vulnerable people and allows organised criminals to thrive.

Gain can be obtained in many ways, but cannot always be proved to the evidential standard required for a successful prosecution: for example, money transfers made by other family members abroad or made cash in hand, promises of servitude by the asylum seeker or others, or the provision of assistance in the facilitation act, such as by avoiding paying a fee by agreeing to steer a small boat. It is right that all available evidence should be considered and all relevant behaviour taken into account in investigating a serious offence. We are, at present, limited by what is an unrealistic evidential requirement that does not take account of the reality of how international organised crime operates.

In amending the offence, we are mindful of the excellent work of those acting from humanitarian motives both now and in the past. I understand fully hon. Members’ concerns that the wrong people will be drawn into the investigative and judicial process. We are therefore retaining the defence available to organisations whose aim is to assist asylum seekers and who do not charge for their services. I also recognise the bravery of volunteers working for the RNLI and lifeboat crews who undertake vital work in protecting lives at sea.

I will set out my intention to amend this clause on Report to ensure that organisations such as the RNLI, those directed by Her Majesty’s Coastguard, and individuals who fulfil their obligations in rescuing those in distress at sea may continue as they do now. We also intend to ensure that this provision does not prevent those responsible for vessels from complying with their obligations if they discover stowaways on board as they journey to the UK. I understand that some members of the Committee would prefer to have those amendments ready to debate now, but the issues are complex and we must ensure that we do not inadvertently provide loopholes to be exploited by criminal gangs who will look for any means to avoid prosecution.

The effect of amendment 33 is that, by retaining the constraint and having to prove the offence was committed again, we will only rarely be able to respond to and deter those committing the offence and will continue to place an unrealistic burden on our law enforcement officers and prosecutors. I therefore ask the hon. Gentleman to withdraw the amendment, although I hope he will be reassured that I intend to table on Report an amendment to address the crux of the issues that he raised. I hope that hon. Members across the House will feel able to support the amendment that I intend to table.

Photo of Bambos Charalambous Bambos Charalambous Shadow Minister (Home Office)

I heard what the Minister said, but Second Reading was back in July and there has been plenty of time to table an amendment. What could be achieved by his amendment can easily be achieved by voting for this one, so I wish to press our amendment.

Question put, That the amendment be made.

Division number 33 Nationality and Borders Bill — Clause 38 - Assisting unlawful immigration or asylum seeker

Aye: 7 MPs

No: 8 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Committee divided: Ayes 7, Noes 8.

Question accordingly negatived.

Photo of Neil Coyle Neil Coyle Labour, Bermondsey and Old Southwark

I beg to move amendment 162, in clause 38, page 37, line 23, at end insert—

‘(3) In section 25A(3) of the Immigration Act 1971 (helping asylum seeker to enter United Kingdom), for paragraph (a) substitute—

“(a) aims to—

(i) protect lives at sea, or

(ii) assist asylum-seekers; and””

This amendment would add people working on behalf of organisations that aim to protect lives at sea to those who are exempt for prosecution for helping someone seeking asylum to enter the UK, as long as those organisations do not charge for their services.

In moving this amendment, I remind colleagues of my registered interest in respect of the excellent support that I get from RAMP––the Refugee, Asylum and Migration Policy Project––and especially from Heather Staff. I also thank the British Red Cross for its work, with a personal thank you to John Featonby for his advice and support to me and my team.

I guess that the amendment tries to help the Government, because the Minister says that he wants to table an amendment on Report. If he accepts this one, he may not need to. He called me a crafty parliamentarian last week, but there is nothing crafty about this. This is a genuine offer of a ready-made amendment that he can accept. It is a humanitarian exemption that would add people working on behalf of organisations that aim to protect life at sea to those exempt from prosecution for helping someone avoid drowning, as long as those organisations do not charge for their services and are not profit-making. It is exactly along the lines he has just outlined.

Sadly, as things stand, my amendment is necessary because this clause is deeply un-British. It denies our traditions and our heritage––our Christian heritage––of not walking on by. We have touched on Islington, which I believe has 137 asylum-seeking refugees and is a borough sanctuary. My own borough of Southwark had 1,022 in June according to Home Office figures. That number has since escalated massively because of the humiliation of our withdrawal from Afghanistan. But we do not whinge in Southwark. We do not whine about our Christian commitment and moral duty to the people we are supporting. We do not mind our international obligations being upheld. We are proud to be supportive of those in need.

It is extraordinary that the Bill, and this clause in particular, seeks to make UK citizens bad Samaritans. Without my amendment, the clause requires turning a blind eye. It requires people to watch other people die. It is a sickening extension of the culture war. It is in breach of our international obligations and law. The proposed changes risk UK-flagged vessels being pushed into a Kafkaesque Catch-22: assist those in distress and risk criminal liability or do not assist, breach duties of international law and witness the deaths of other people. This risks criminalising voluntary assistance while failing to provide for a humanitarian exemption.

My amendment presses the Government for such an exemption, along the lines that the Minister outlined and says that he wants. Not least, it would honour our international commitments and protect the RNLI and its amazing work across our country. From this Room, we can see the Thames. The busiest RNLI station in the country is here in London. Since 2002, the RNLI has saved more than 300 lives in the Thames, including in my constituency.

The RNLI saved 372 people from drowning in our waters in 2019, and more than 143,000 people since its creation in 1824. That is an astonishing achievement that we should be proud of and support. It is also astonishing that in its 200-year history, it has never been so attacked or vilified, including by the far right, and inflamed by Government narrative and rhetoric. It is with some regret that we seek to amend clause 38, to spell out that those who do their duty and protect lives at sea and in our waters, including when they need to rescue asylum seekers, are not penalised and do not face prison sentences.

The Government say that they want to stop smuggling and penalise smugglers, but if that was the case there would be no need to remove the words “for gain”. Instead, with one swipe, the Government have intentionally—or perhaps not, if anyone wants to be more generous than I—endangered the commitment to save life at sea, here and at other points, putting legislation at odds with our national maritime commitments. It is also deeply dehumanising, in a way that no UK Government have ever systematically attempted in the past. We have only ever seen such things abroad—I do not think I need to list all the countries involved—with catastrophic consequences, in time, for those involved.

To emphasise the humanitarian issues, I want to quote some of those frontline RNLI crew members in the English channel, who put it like this:

“I think what you realise when you get to the migrant boats, when you get to these dinghies, I think what hits you more than anything, irrespective of your own thoughts on this situation is the desperation that they must be in to put themselves in this situation and then you look at them as human beings irrespective of where they have come from, human beings that are in a state of distress that need rescuing, so every other thought goes out of your mind.”

Another said:

“While there are people in small boats in the channel, there is danger. My motivation is to stop anyone drowning and washing up on the beaches. I don’t care what time of day or night it is, a life is a life, and I will continue to give my best to the RNLI to protect as many as we can. I’d like to think that the crew all feel the same. You have to put the politics of it to one side; they are human beings in distress, and they need us. I am grateful that the RNLI support us and that we don’t discriminate against anyone. I am proud of the work that we do and the lives that we have saved. I want us to shout about what we do and the care and empathy that we show.”

He goes on:

“This country is having a crisis of empathy and I love that the RNLI are standing up for our morals and showing what I truly believe is the Britain we should all be proud of.”

That is the Britain that I am also proud of. I believe that the Government have stoked a filthy culture war, and it has got filthy in our waters—due not just to the sewage that they are dumping in it, but the hate that they provoke and the consequences it has had.

Let me talk about the situation as it stands before we get to the amendment that tries to protect the humanitarian organisations involved. Another crew member put it like this:

“Our inshore lifeboat was called to a small inflatable with seven people on board…four adults and three children…They’d broken down…Everybody on the boat [was]…sick, we thought they all needed medical attention...we needed to get them ashore, [and] some of the paramedics…were there to take care of them [and] were able to establish that they had exposure. But when we got there, some members of the public who saw us coming in with two families, little children, four or five years old in this boat, were standing there on the beach”

—I apologise in advance, Sir Roger

“shouting, ‘Fuck off back to France’ at us as we tried to bring them in”.

This crew member said they had never been met by an angry mob like that before, and it was one of the most upsetting things they had ever seen. That situation is happening right now as a direct result of irresponsible rhetoric and policies.

Another crew member said:

“We’ve had some vile abuse thrown at us. We’ve been accused of all sorts of things. I’ve personally had personal phone calls at the lifeboat station people telling me what they think of me by bringing migrants in, but at the end of the day we are here to save lives at sea and all the time we are here that is what we will carry on doing.”

I pay tribute to the heroism and courage in the face of irresponsibility from this Administration.

Removing the words “for gain” has caused unnecessary distress already, in an already tough job and situation. I urge the Government to reconsider their communications on the Bill—specifically the clause and in relation to my amendment—and on the issue more widely, especially the language used when talking about asylum seekers. It has already led to such horrendous abuse of the RNLI and others, as well as the degrading language around people in need of sanctuary.

The Government are responsible for the hate that asylum seekers and volunteers and professionals at RNLI face. There are also further unintended victims of the childishness on the issue. I speak as a proud member of Her Majesty’s loyal Opposition. I am fearful that, should my amendment not be accepted, this grubby politics risks a course of action that will drag Her Majesty into the mess that the Government are creating. Without my amendment, if people continue to film and to seek action against the volunteers and the crew, and organisations such as the RNLI, which save lives, the chances of prosecution and prison will increasingly grow, both on an individual basis and with respect to attacks on the organisation itself.

There is a reason for the “R” in RNLI: the president is His Royal Highness the Duke of Kent. He is the Queen’s first cousin, and he succeeded both his father and his mother to become RNLI president in 1969. If the Committee does not agree to the amendment, we risk the astonishing situation—created entirely by the Government—of the Queen facing calls to lock up her own cousin. Those more attuned to British history will know that that would have been more likely under the first Queen Elizabeth than under the current monarch. It is a genuinely ridiculous situation.

The Duke of Kent is not the only royal with proud RNLI connections, as Prince Philip was a proud supporter, too. The Duke of Edinburgh became a member of its council in 1972—well before I was born—and the state-of-the-art Shannon class boat will be called Duke of Edinburgh in his memory. By not accepting the amendment to protect the work of the volunteers and crew of the RNLI, the Government are not just putting at risk the great work of the RNLI, but insulting the Duke of Edinburgh’s memory.

The royal connection does not end there. One last but very significant royal connection is through Her Majesty the Queen, who has been patron of the RNLI since 1952, giving seven decades of service to the organisation. The Government’s proposals are nothing short of an attack on the monarch. We should thank and honour her for her service to our country, including the RNLI, which is a British institution that faces such an awful challenge as a result of this badly thought-through Bill.

The Minister says that he wants to amend the Bill later, but he has had months to draft such an amendment. I offer my amendment today to protect Her Majesty and the RNLI. Without my amendment, or the one the Minister says he will table, the ultimate sanction for Her Majesty would be an invitation to spend some time at her own pleasure.

In 70 years of connection with the RNLI, Her Majesty has named five classes of lifeboat that serve and save lives on our shores without discrimination: the Solent class, the Mersey class, the Waveney class and the two Severn classes. The Government simply claim that organisations such as the RNLI will not be criminalised, but that is not clear in the Bill, and it is not inconceivable that Her Majesty would be dragged into the unseemly row about the role of the RNLI. I urge the Government to meet royal representatives before they draft their amendment for consideration on Report, and I hope that they will not bring the royal family into disrepute by leaving the Bill as it is.

My amendment would make the humanitarian exemption crystal clear, and it could save the Government considerable embarrassment. The RNLI does not aim to assist asylum seekers, but it does aim to save lives and does not charge for the privilege. Will the Minister set that out clearly in the Bill? I am glad that he has mentioned drafting an amendment, and I look forward to seeing it. Those who share our concerns about the attacks on the RNLI, and about the position in which the Government are leaving it, can donate. I will not read out the full web address, but I will suggest that they search “donate RNLI” online.

The RNLI has implored Ministers not to politicise its work. In July, the RNLI said that it was “very proud” of its humanitarian work and that it would continue to respond to coastguard callouts to rescue at-risk channel migrants, in line with its legal duty. Mark Dowie, chief executive of the RNLI, said:

“Imagine being out of sight of land, running out of fuel, coming across incredibly busy shipping lanes when you’re frightened and you don’t know which direction you’re going in. That is by anyone’s standards distress. Our role in this is incredibly important: simply to respond to a need to save lives”.

Although the charity does not take a stance on political matters, he also said:

“These islands have the reputation for doing the right thing and being decent societies, and we should be very proud of the work we’re doing to bring these people home safe.”

I wholeheartedly support that sentiment.

In the light of the attacks and agitation by the far right, spread by irresponsible Ministers in the narrative used by the Government, including the Home Secretary yesterday, the RNLI put out another statement more recently. In July, it said very powerfully:

“Our charity exists to save lives at sea. Our mission is to save every one. Our lifesavers are compelled to help those in need without judgement of how they came to be in the water. They have done so since the RNLI was founded in 1824 and this will always be our ethos.”

I urge the Government to accept my amendment and end their attacks on the RNLI—an amazing and profoundly British institution—and, by association, on the royal family.

Of course, other parties that are affected by the Government’s plans could benefit from the amendment. The removal of “for gain” could still catch merchant, fishing and private vessels that are bound by international duties to rescue a person in distress at sea under maritime conventions. Significantly, for merchant vessels the change to the Immigration Act 1971 creates novel criminal liability for private vessels such as merchant, fishing or pleasure craft involved in rescues. Those not acting on behalf of an organisation and voluntarily providing assistance could now face criminal liability as a result of the legislation. While statistics on rescues by private vessels in UK territorial waters are not readily available, globally, of the 152,000 individuals rescued at sea in 2015, some 16,000 were aided by merchant ships. The Government said yesterday that they want to increase the use of the red ensign. Here is a means for them to do that, rather than risk criminalising the activity of those ships.

In light of the Bill, private pleasure craft have already been advised to avoid giving assistance to vessels in distress, because the Government have introduced legislation without an amendment. The cruising manager—I find that an interesting title—of the Royal Yachting Association is quoted as saying:

“People believe you must render assistance at sea but you don’t have to if it puts your boat in danger. It sounds very harsh, but you could have a massive bureaucratic problem. Our advice is stand off and report”.

That is a direct result of the Bill, without the amendment. The Minister says he wants to introduce one later, but as things stand, lives have been put at risk because private craft have been told not to intervene. Throughout the Committee, Government and Opposition Members have said that they do not want to put lives at risk, so the amendment would help them to meet their stated aim.

Before I conclude, let me touch on one or two other matters, such as direct discrimination and trying to distinguish who to help at sea. The Bill requires sailors, fisherman, merchants or anyone at sea to know the nationality of the person they are saving. It is unclear to me how people check someone’s passport, or their nationality, before bringing them aboard.

David Matyas, writing in the European Journal of International Law, has highlighted the fact that the Bill also risks discrimination against non-white UK nationals—people who might not “look British”. As he puts it, more delicately:

“Without the cover of the ‘and for gain’ condition, however, private seafarers may take overly broad impressions of who they ‘believe to not be a UK national’”.

So, they may pull out by virtue of their beliefs about who might be British. They may not help non-white UK nationals as a result of where the Government have put them.

The proposals are scandalous. We have a Government who seek to make the seas less safe for all—including through sewage, of course—and to criminalise charities and sailors if they stop people drowning. We have also seen reports that the Government want to give immunity for “pushbacks”. We will come to that matter when we debate clause 41, so I will not discuss it further today.

This is the UK Government seemingly suggesting that they could make themselves exempt from international law. There is no such immunity. My hon. Friend the Member for Enfield, Southgate has mentioned the UN convention on the law of the sea—the constitution of the oceans—under which the UK has a duty to render assistance at sea. We are a state party to UNCLOS, for the reasons my hon. Friend has given. Under international treaty law, the UK and its flagged vessels have duties to perform rescues at sea. Unlike in the Mediterranean, where the allocation of duties is obscured by territorial jurisdictions, the obligations in the Channel are much clearer—it is France or us.

Let me refer to two other legal treaties. The safety of life at sea convention, to which the UK is also a state party, states at regulation V that the

“master of a ship at sea which is in a position to be able to provide assistance, on receiving a signal from any source that persons are in distress at sea, is bound to proceed with all speed to their assistance.”

The salvage convention, also ratified by the UK, establishes a duty to render assistance, stating at article 10 that

“every master is bound, so far as he can do so without serious danger to his vessel and persons thereon, to render assistance to any person in danger of being lost at sea.”

We have international obligations. We need humanitarian means to intervene when people find themselves distressed, stranded or at risk of being lost—which means dying, nothing else. We need that protection. The obligation is clear, the morality is clear, the risk to lives is clear, and the risk of disgrace is clear if the Minister fails to accept the amendment.

The Minister might claim that the RNLI will be protected later, but why have the Government put the RNLI in this position in the first place? Why put merchant fishing vessels in an extremely difficult place or leave matters to discretion? Why be shy about these exemptions, and why were they not in the Bill to begin with? If this is about smugglers and people traffickers, why not make that abundantly clear by accepting amendment 162?

The explanatory notes to the Bill state that the removal of the “for gain” condition is driven by evidentiary difficulties, but that seems to have been contradicted by the Minister today, although if the goal of the change is to ease the evidentiary burden for prosecutors, that simply must not be done when lives are in danger at sea. Establishing a humanitarian exception is a solution to this situation. I hope my amendment is accepted today, or, in the fine traditions and spirit of parliamentary democracy, I look forward to its being stolen by the Government when we consider the Bill on Report.

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

I am grateful to the hon. Gentleman, of whom I am very fond, for tabling the amendment. When I referred to him in a previous sitting as a crafty parliamentarian, I meant that in the nicest of ways. I am very fond of him, and I know that he is a canny parliamentarian who is passionate about the issues he raises.

Let me touch on various points that the hon. Gentleman made. The RNLI does, rightly, have a proud royal connection, and long may that continue. Of course, the RNLI, Her Majesty’s Coastguard and others provide an invaluable service in saving lives at sea. We as a Government are conscious of that, and that tradition and that vital service must continue to be upheld. The hon. Gentleman mounted a passionate defence of the monarchy, and I think I speak for the whole Government when I say that we are proud monarchists. Perhaps he might have a word with some of his colleagues about the stance they have traditionally taken in relation to the monarchy over the years, but we have proud support for our monarchy in this country.

I also want to say that the behaviour the hon. Gentleman talked about as being exhibited towards members of the RNLI and volunteers is completely unacceptable and despicable. There is a responsibility on Members across the House to speak with one voice in saying that such behaviour is despicable, and we should condemn it in the strongest terms. I think the Committee is united in that, and I hope the hon. Gentleman will take that message back to the RNLI volunteers he is engaging with in his constituency, because we do speak with one voice in that regard.

On that note, I want to mention the incident off the coast of Harwich during the past few days. Two men were rescued, but, unfortunately, an extensive search and rescue operation had to be called off after a man was reported to have entered the water. That incident highlights yet again the extreme danger of crossing the channel in small boats and the callous disregard for life shown by the criminal gangs responsible for facilitating crossings. I want to place on record my thanks to all those who responded to the incident and who continue to work tirelessly to protect lives at sea while securing our border. Their work is invaluable—it is incredibly important—and I know all Members would wish thanks to be expressed to them for the work they do.

I appreciate that the hon. Gentleman’s amendment seeks to protect those who act to save lives at sea, but as I have already set out, it is the Government’s intention to amend the clause on Report to do just that. The only thing I would add—Members have rightly spoken passionately about the importance of the issue—is that I want to be confident that the amendment delivering that is as robust as it needs to be, and that it achieves properly and to the fullest extent the objective I think we all share.

I therefore ask the hon. Gentleman to let me take the matter away. What has been said in Committee has been heard. There are already efforts under way to develop this amendment for consideration on Report. I hope that gives the hon. Gentleman the confidence to withdraw his amendment. We will make sure that we table an appropriate amendment on Report, which I like to think Members from across the House will feel able to vote for, and that will deliver on the objective that we all share.

On clause 38, the offence under section 25 of the Immigration Act 1971 is our key control against those facilitating clandestine entry to the UK. Facilitation may include behaviour linked to recruiting, transporting, transferring, harbouring, receiving or exchanging control over another person. The related offence under section 25A of that Act relates to helping the arrival or entry, for gain, of an asylum seeker to the UK. The maximum penalties for these offences do not fully reflect the seriousness of the criminality that may be involved in facilitating the travel of illegal migrants to the UK, or that otherwise exploits them. People smugglers endanger lives and may cause public harm, including, for example, by arranging for transport in refrigerated lorries, or by returning to the UK an individual who was previously excluded or deported from the UK for national security reasons or because of serious criminal conduct.

The provision of a higher maximum sentence of life imprisonment demonstrates the gravity with which Parliament expects courts to treat the most serious offenders. The increase in the maximum sentence will also align facilitation sentencing with the sentences available to courts for human trafficking convictions under the Modern Slavery Act 2015. The measure will allow robust, visible action to combat illegal migration and activities associated with it, and with people smuggling.

The increasingly sophisticated methods employed by facilitators to hide facilitation gain not only frustrates crime investigations but hinders the Crown Prosecution Service in bringing successful prosecutions. As I have explained, gain can be obtained in many ways, and cannot always be proved to the standard required for a successful prosecution. For example, money transfers may be made by family members abroad, or made in cash, and there may be promises of servitude by the asylum seeker or others, or promises to assist in the facilitation act. To be clear, people smuggling has terrible consequences for asylum seekers, their families and others. We therefore propose removing the “for gain” element of the offence.

We intend to retain the defence available to persons acting on behalf of humanitarian and charitable organisations that aim to assist asylum seekers, and that do not charge for their services. I understand concerns raised in the House regarding the impact that removing the “for gain” element may have on individual acts of kindness. Historically, individuals have felt compelled to take compassionate action, albeit often working with the knowledge of the Home Office and charitable organisations, but this was in the absence of organisations such as the United Nations High Commissioner for Refugees. I reassure Committee members that those working openly and transparently in accordance with the published aims of an approved body and under its direction need not fear these measures. However, individuals taking maverick action that ignores lawful controls may well be liable to prosecution. We will carefully examine the circumstances of each case, and will work with the Crown Prosecution Service in England and Wales, the Crown Office and Procurator Fiscal Service in Scotland, and the Public Prosecution Service in Northern Ireland; they will determine whether a prosecution is proportionate and in the public interest.

The clause is directed at criminals who are acting to exploit and endanger people, not humanitarian charity workers. It is also directed at those who, by their attempt to evade regulations, deliberately and recklessly endanger themselves and others. We intend to deter illegal migration and create an effective sanction.

I have set out my intention to amend the clause on Report to ensure that organisations such as the RNLI, as well as those directed by Her Majesty’s Coastguard and individuals fulfilling their obligation to rescue those in distress at sea, may continue to act as they do now. We also intend to ensure that the provision does not prevent those responsible for vessels from complying with their obligations if they discover stowaways on board as they journey to the UK.

I have heard what the Committee has said, and the Committee has on record my undertaking to develop an amendment for Report. Also, I intend to write to the Committee to further put on record that we are working towards this aim strongly, and in a considered way; yet again, I want to put that beyond any doubt.

Photo of Neil Coyle Neil Coyle Labour, Bermondsey and Old Southwark 12:45 pm, 28th October 2021

I note the Minister’s words and offer, but he has not explained why this amendment specifically does not do the job that he is seeking to do in the later stages. There is no explanation of what the Government would do differently from what is on the table today, so it is unclear why he will not accept the amendment. The Bill was published some months ago, and the Government have had about three months to suggest an amendment. I have already spoken about the current situation and the attacks on the RNLI: people throwing things, people spitting at crews. That will affect its recruitment and damage its reputation and, by association, all those who are patrons or otherwise involved. We need to offer better protection to the RNLI from today and send a clear signal that its work is invaluable and that we respect and honour what it does.

Question put, That the amendment be made.

Division number 34 Nationality and Borders Bill — Clause 38 - Assisting unlawful immigration or asylum seeker

Aye: 7 MPs

No: 8 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Committee divided: Ayes 7, Noes 8.

Question accordingly negatived.

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

Division number 35 Nationality and Borders Bill — Clause 38 - Assisting unlawful immigration or asylum seeker

Aye: 8 MPs

No: 7 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Committee divided: Ayes 8, Noes 7.

Question accordingly agreed to.

Clause 38 ordered to stand part of the Bill.

Clause 39 ordered to stand part of the Bill.

Schedule 4 agreed to.

Clause 40 ordered to stand part of the Bill.