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New Clause 3
Removal of asylum claimants in other circumstances
'.--(1) Subsection (2) applies if the Secretary of State intends to remove a person who has made a claim for asylum ("the claimant") from the United Kingdom to--
(a) a member State, or a territory which forms part of a member State, otherwise than under standing arrangements; or
(b) a country other than a member State which is designated by order made by the Secretary of State for the purposes of this section.
(2) Nothing in section 6 of the Immigration and Asylum Appeals Act 1993 (protection of claimants from deportation etc.) prevents the claimant's removal if--
(a) the Secretary of State has certified that, in his opinion, the conditions set out in subsection (6) are fulfilled;
(b) the certificate has not been set aside on an appeal under section 51; and
(c) the time for giving notice of such an appeal has expired and no such appeal is pending.
(3) Subsection (4) applies if the Secretary of State intends to remove a person who has made a claim for asylum ("the claimant") from the United Kingdom to a country which is not--
(a) a member State; or
(b) a country designated under subsection (1)(b).
(4) Nothing in section 6 of the Immigration and Asylum Appeals Act 1993 (protection of claimants from deportation etc.) prevents the claimant's removal if--
(a) the Secretary of State has certified that, in his opinion, the conditions set out in subsection (6) are fulfilled;
(b) the certificate has not been set aside on an appeal under section 51 or 57; and
(c) the time for giving notice of such an appeal has expired and no such appeal is pending.
(5) For the purposes of subsections (2)(c) and (4)(c), an appeal under section 51 is not to be regarded as pending if the Secretary of State has issued a certificate under section 58(2)(a) in relation to the allegation on which it is founded.
(6) The conditions are that--
(a) he is not a national or citizen of the country to which he is to be sent;
(b) his life and liberty would not be threatened there by reason of his race, religion, nationality, membership of a particular social group, or political opinion; and
(c) the government of that country would not send him to another country otherwise than in accordance with the Refugee Convention.
(5) "Standing arrangements" has the same meaning as in section (Removal of asylum claimants under standing arrangements with member States).'.--[Mr. Straw.]
Brought up, read the First and Second time, and added to the Bill.
Brought up, and read the First time.
The Parliamentary Under-Secretary of State for the Home Department (Mr. Mike O'Brien):
I beg to move, That the clause be read a Second time.
The new clause amends section 25 of the Immigration Act 1971 and sends a clear and tough message to the racketeers engaged in encouraging illegal entry--they will go to prison for longer on conviction. It increases from seven years to 10 the maximum custodial sentence that can be imposed following conviction on indictment for certain offences. The offences are: knowingly facilitating the entry of illegal entrants; knowingly facilitating for profit the entry of asylum seekers; and knowingly facilitating the obtaining of leave by deception.
The decision to increase the maximum sentence follows comments from the Court of Appeal earlier this year. It was suggested that an increase was needed to allow an appropriate sentence in the growing number of cases in which someone is convicted in a single act of facilitation relating to the entry of a large number of people. We believe that 10 years' imprisonment is the appropriate maximum penalty.
The offence of facilitating the entry of asylum seekers was created by the previous Government. It is not an offence to facilitate the entry of someone who intends to claim asylum when that is not done for gain or is done by someone employed by a bona fide refugee organisation acting in the course of employment. It is an offence to
facilitate the entry of an asylum applicant when it is done for gain. The offence is aimed at racketeers, not refugee groups.
Mr. Peter Bottomley (Worthing, West):
How is intent to be established? A commercial airline may bring people in for money--they paid for their tickets--who are discovered to be coming here unlawfully. Where is the distinction to be drawn?
Mr. O'Brien:
Clearly, an airline that is lawfully bringing someone in is acting lawfully. A racketeer who is bringing in large numbers of people without consent, without information being given to the immigration authorities and without permission to be here is clearly acting unlawfully. I am not quite sure why that should be a problem, but I hope that that clarifies the matter.
Secondly, the new clause amends the definition of an asylum seeker to include someone who intends to claim asylum under the European convention on human rights as well as someone who intends to claim asylum under the 1951 refugee convention. That is to reflect the fact that, once the Human Rights Act 1998 comes into force, people will be able to claim under the ECHR as well as under the refugee convention. The offence of facilitating the entry of an asylum seeker would be rendered meaningless without the amendment, as someone who was prosecuted for the offence would always be able to argue that he believed that the asylum seeker in question had been going to claim under the ECHR, not the refugee convention.
The new clause, therefore, closes that loophole and ensures that the position of those claiming asylum under the ECHR and refugee status is put on a broadly equal footing in respect of these offences. The offence does not currently apply to things done in the course of employment by a bona fide refugee organisation.
Finally, the new clause amends section 25(5) of the 1971 Act. Section 25(5) makes it an offence for a British citizen, or a British dependent territories citizen, British overseas citizen, British subject or British protected person, who is acting outside the UK, to facilitate the entry of an illegal entrant. Subsection (4) of the new clause extends that extra-territorial jurisdiction to acts committed outside the UK by British citizens in order to facilitate the entry of asylum applicants where that is done for profit.
It is in the nature of the offence that, in some cases, the offending actions take place outside the UK. Successive Administrations have taken the view that, where the offence is committed by a British citizen, we should have jurisdiction to prosecute the offender.
'.--(1) Section 25 of the 1971 Act (assisting illegal entry) is amended as follows.
(2) In subsection (1), for "seven" substitute "ten".
(3) For subsection (1A) substitute--
"(1A) Nothing in subsection (1)(b) applies to anything done in relation to a person who--
(a) has been detained under paragraph 16 of Schedule 2 to this Act;
(b) has been granted temporary admission under paragraph 21 of that Schedule.
(1B) Nothing in subsection (1)(b) applies to anything done by a person otherwise than for gain.
(1C) Nothing in subsection (1)(b) applies to anything done to assist an asylum claimant by a person in the course of his employment by a bona fide organisation, if the purposes of that organisation include assistance to persons in the position of the asylum claimant.
(1D) "Asylum claimant" means a person who intends to make a claim that it would be contrary to the United Kingdom's obligations under the Refugee Convention or the Human Rights Convention for him to be removed from, or required to leave, the United Kingdom.
(1E) "Refugee Convention" and "Human Rights Convention" have the meanings respectively given to them in the Immigration and Asylum Act 1999."
(4) In subsection (5), for "Subsection (1)(a)" substitute "Paragraphs (a) and (b) of subsection (1)".'.--[Mr. Mike O'Brien.]
4 pm
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