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Mr. O'Brien: The hon. and learned Gentleman will be aware that the previous Government introduced carriers'
liability for airlines, and that the figure has been about £2,000 per individual illegally carried. That is the type of figure that we are considering.
Mr. Clappison: That was a stupid point.
Mr. Garnier: I am not sure that the Minister's reply answered my point. [Interruption.] I should be most grateful if the Minister--
Mr. Deputy Speaker: Order. I am sorry to interrupt the hon. and learned Gentleman, but there are far too many sedentary interventions that are not adding to the debate.
Mr. Garnier: Although I appreciate that £2,000 is mentioned later in the Bill, I am not sure that the Minister's reply sensibly answered my question. If he would like to consider the matter, I should be grateful if he could explain the position more fully.
I am concerned also about clause 18(4), which states:
Clause 18(5) is also unclear, as it does not seem to explain what will happen in the case of, for example, a clandestine entrant who is concealed within a container that is separate from the bed of the trailer, which is itself separate from the tractor unit. All those vehicles or containers could be subject to separate ownership, separate hiring agreements, separate hire purchase agreements or separate leasing agreements. The Bill is unclear about the liability of each of those owners who may know of the concealed person.
Clause 20 deals with defences--at least there are some. No doubt the Minister will say that the burden of proof in all immigration cases tends to be on the defendant or respondent, but we are talking about huge financial penalties and vehicles that could be the only trading equipment of a company being subject to confiscation and sale, so it is important to flag up the difficulties that many defendants will face when the burden is placed firmly on them to prove their innocence.
Clause 20(2) says:
There is a further problem in clause 21, which says that the Secretary of State can serve penalty notices on the responsible persons. Subsection (4) grandly states that
But clause 20(6) is extraordinary. It says that if a person on whom a penalty notice is served, or--this is the important point--who is treated as having had a penalty notice served on him, alleges that he is not liable for the penalty, he may give written notice of his allegation to the Secretary of State. If he has not received the notice, even if he is being treated as having had it served on him, how is he to know when he is to give written notice? That is illogical.
I should like an explanation of the definitions in clause 28 of "small ship" and "small aircraft". What is the magic of the weight definitions? Why cannot a bigger vessel or aircraft be subject to the same penalties as a small ship or aircraft under clause 22(1)?
Clause 22(4) says:
Mr. Clappison:
My hon. and learned Friend is making an important point with his legal expertise. Does he agree that the issue needs to be examined in some detail? The risk of detention of the vehicle could create such economic loss for the lorry firm or lorry driver that they may be pressured into admitting the offence and not advancing any defence to get their vehicle back quicker.
Mr. Garnier:
I am sure that my hon. Friend will want to press the Minister on that in the Special Standing Committee. I wanted to flag up the issue, which relates to clause 27(4) as well.
I am also concerned about the words "significant doubt" in clause 23. Subsection (3)(b) says that the court may release a transporter if it considers that
Under clause 24, the court that deals with applications will be the magistrates court, or its equivalent in other parts of the United Kingdom. It would be more sensible for applications to be dealt with by a Crown court or its equivalent, because the issues involve equipment of great value and, as the hon. Member for Leicester, East was quick to say, the law is very complicated. Magistrates are perfectly capable of dealing with all sorts of matters, but
it would not do any harm to bring such issues before a Crown court or its equivalent in other parts of the United Kingdom.
Clause 25 says:
Mr. Neil Gerrard (Walthamstow):
Before I turn to the detail of the Bill, I want to say a few words about the background. When such issues are debated, the atmosphere is at worst hysterical--as we saw in some of the press coverage last year of what was happening in Dover and the south-east--and even at best full of misinformation, as we heard in the comments of the right hon. Member for Sutton Coldfield (Sir N. Fowler) about numbers, origins and rates of success.
We should remember that the majority of asylum seekers across the world--the 25 million or 30 million displaced people--are not in this country or in Europe and never will be. The majority of them live in poor countries adjacent to the countries from which they have fled. We in Europe are rich and we are not carrying the bulk of the burden of asylum seekers. It is being carried by poor countries across the world. Even in Europe, this country does not carry a disproportionate burden.
The right hon. Member for Sutton Coldfield talked about the vast majority of cases being unjustified because they were economic migrants. Some 40 per cent. of asylum applications in this country come from just four areas: the former Federal Republic of Yugoslavia, Somalia, Afghanistan and Sri Lanka. Anyone who knows what is happening in those countries should not be surprised by that figure.
We know that there are problems with the current system. Well, there is no system. We were left with a shambles. The previous Government intended to leave asylum seekers who applied in-country destitute. The local authorities were left to pick up the burden, leaving a shambles. The Home Office system cannot cope. Something must be done about that.
The question must be whether the right action is being taken. Some of the Government's action has been welcome, including the abolition of primary purpose and the greater openness in looking at country reports when asylum decisions are taken. However, the hon. and
learned Member for Harborough (Mr. Garnier) referred to parts of the Bill where it is difficult to see precisely what will happen.
I disapproved of the previous Government using regulations to deal with the detail of legislation, and I have not changed my view. In some parts of the Bill--even those parts that are to be welcomed, such as the restoration of visit visa appeals--we do not know what the fees will be, or what fees will be set for bonds. We do not know what the fees will be for the regulation of advisers.
My hon. Friend the Member for Leicester, East(Mr. Vaz) referred to the administrative changes that are needed within the Home Office. I do not blame the present incumbents, because we inherited an appalling system which tried to deal on paper with huge numbers of cases, with no proper information technology systems and no mechanism for tracing what was done. However, if we try to embark on a new system without sorting out the existing shambles--while the Home Office is trying also to administer support--it will be a disaster.
We need to put in legal resources at the beginning of the process. UNHCR said in response to the White Paper:
I am pleased that the Bill will be discussed in a Special Standing Committee, a clear sign that the Government will listen to concerns raised not just by those within this House, but by organisations outside.
On immigration--which only a small part of the Bill deals with--the changes are, by and large, welcome, including the proposals on the visit visa appeal and the regulation of advisers. However, we must look at how the bond system will relate to the appeals system when the two are working alongside each other, as some people may be subject to both. In what cases will bonds be applied?
My hon. Friend the Member for Leicester, East said that his constituents would not mind paying modest fees to have decent decisions taken. If I read the Bill correctly, those fees may not be so modest. The explanatory notes suggest that people will be charged full costs. I would like to see some examples of what that will mean to those applying for leave to remain or for indefinite leave.
I have a serious worry about taking appeal rights away from people who currently have them. Some may be overstayers, and may not have adhered to the conditions attached to their leave to remain. They are very often people who have been in this country for a long time, and may have children born here. In effect, they may have settled here. It may be perfectly legitimate to argue that, in many of those cases, the situation should never have been allowed to arise. However, those cases exist, and many people will lose appeal rights. I have seen nothing in the Bill to suggest that there is any transition, or that anybody who currently has an appeal right will not lose it as soon as the Bill comes into force. Nor do I see what the mechanism might be if compassionate circumstances are to be taken into account.
The same problem applies to one-stop appeals. In response to an intervention by my hon. Friend the Member for Slough (Fiona Mactaggart), my right hon.
Friend the Home Secretary pointed out that that process would deal with all appealable aspects. That still leaves us with the question of how compassionate issues might be looked at. If an applicant is refused asylum and is not given exceptional leave to remain, he can appeal against the asylum refusal on the grounds of the UN convention or the European convention on human rights. However, it will still be difficult to appeal against a refusal to use discretion.
Ministers will know that I have argued that we ought to think about formalising exceptional leave and about having a proper right of appeal. I am worried about the proposal which suggests that, in the view of the Immigration Appeal Tribunal, it can be decided that an appeal lacks merit--before the appeal has been heard--and that a financial penalty will be applied if someone persists with the appeal.
I have looked through many of the responses to the White Paper and the one issue raised consistently was that of support. Ministers have said that cash benefits act as a draw. I am not sure that I have seen hard evidence to back that up. In 1996, the Tory Government took benefits away from people who applied in-country, but left them for those who applied at port. If cash benefits are a draw, one might have expected to see a change in the balance of applications. Perhaps more people would sus out that it was better to apply at the port of entry rather than in-country. However, that has not happened, and that balance has not changed.
I represent a London borough, and I know of the pressures in terms of temporary accommodation. If the Government are determined to go ahead with a cashless system, the big question will be whether dispersal will work. The history of dispersal is not a happy one. The Vietnamese boat people drifted back very quickly to where they knew people.
I can think of no reason to assume that London is the only place in this country where asylum seekers can live and be accommodated. That is a ridiculous suggestion. If we are to disperse to places where there is no shortage of housing, it is almost inevitable that those places will be deprived areas which are suffering unemployment and economic problems; that is why there is empty housing. We must look at how we provide support, legal advice, education and medical help, and at whether £7 a week--the sort of cash figure that is being talked about--is sufficient to maintain any dignity for someone living on vouchers.
There is nothing in the Bill about settlement. That issue may be outside the scope of the Bill, but if we do not put real resources into helping people to settle, it is inevitable that there will be a drift back. There is a danger that we will create clusters of socially excluded people. Tensions and arguments may grow between established ethnic minority communities in deprived areas and people who have been shipped into those areas, who may be seen to be competing for, and taking away, resources.
We are told that the search and arrest powers to be given to immigration officers will be modelled on the Police and Criminal Evidence Act 1984. I am not sure what "modelled" means and what the differences will be, but there is a big issue concerning accountability. If I am arrested, charged and taken to court, and my lawyers can show that the police have not followed the provisions of PACE, there is some redress: I may be acquitted, and it
is likely that evidence against me will be ruled inadmissible if it was obtained by methods that do not fit with PACE. What will the redress be in immigration cases? People who are arrested might be put on a plane in a couple of days, so how can we be sure that procedures along the lines of PACE are followed?
I understand perfectly the necessity for change. We do not have a working system, with proper decision making and methods in the Home Office for tracking cases through. It is ridiculous that we have multiple layers of appeals that allow cases to be dragged out and fraudulent advisers to push people into totally unfounded claims. I welcome some of the changes in the Bill, fulfilling manifesto commitments, but there are serious difficulties that must be considered in other parts of the Bill.
"Payment of the full amount of a penalty by one or more of the persons responsible for the clandestine entrant discharges the liability of each of the persons responsible for that entrant."
It is said to be a civil penalty, not a criminal one. Does that mean that each co-defendant will be entitled to apply to any other co-defendant for a contribution? If the first defendant has paid the full sum, will he be able subsequently to recover a contribution from the others?
"It is a defence for the carrier to show that he, or an employee of his who was directly responsible for allowing the clandestine entrant to be concealed, was acting under duress."
Clause 20(3) provides for the carrier not knowing to be a defence. I should be more comfortable if the Bill said that it was for the prosecutor or immigration authority to prove the guilt of the defendant. There are further problems with subsections (5) and (6) of clause 20, which deal with the defences of duress and those listed under subsection (3). I shall not detain the House further on that, save to say that the provisions are unclearly worded. A little more thought ought to be given to them.
"the Secretary of State is to be taken to have served the required penalty notice on each of them"--
albeit that subsection (5) requires the Secretary of State to
"take reasonable steps to secure that the penalty notice is actually served on each of those responsible persons."
That is very nice.
"The detention of a transporter under this section is lawful even though it is subsequently established that the penalty notice on which the detention was based was ill-founded in respect of all or any of the penalties to which it was related."
There is a potential for huge economic loss there. It is grossly unfair if the Government, through their agencies, can go around giving tickets to the owners or hirers of such vehicles, causing economic loss--albeit that the Secretary of State was not acting maliciously or unreasonably--and not be responsible for compensating the carrier.
"there is a significant doubt as to whether the penalty is payable".
What does that mean? That woefully unclear expression is used again in clause 27(2)(b).
"No charge is payable in respect of any person who is shown by the owner or train operator"--
once again the burden of proof is placed on the defendant--
"to have produced the required document or documents to him or his representative".
How can that be done when a traveller destroys an apparently genuine document because it is forged? My hon. Friend the Member for Woking drew attention to that.
"The Achilles heel of the current asylum system is, in our view, the quality of initial decision-making. As long as Home Office decisions on asylum applications are inconsistent, leaning on questionable credibility arguments, they will be challenged in appeal."
We must improve that.
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