Nationality, Immigration and Asylum Bill

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Angela Watkinson (Upminster): I shall speak to amendment No. 306. Subsection (2) defines immigration law as

    ''a law which has effect in a member State''.

The amendment would replace ''member State'' with ''the United Kingdom''. The clause begs the question whether our magistrates, judges and juries can be expected to have specific knowledge of, or the ability to interpret, the complex immigration law of other member states. The explanatory notes state:

    ''This is a measure required to enable the United Kingdom to comply with Article 27 of the Schengen Convention.''

To the best of my knowledge, and the Minister will correct me if I am wrong, this country is not a signatory to that convention. The notes continue:

    ''It will also assist compliance with a European Directive on Unauthorised Entry, Transit and Residence and its associated Framework Decision, which have yet to be formally adopted.''

The clause suggests that our courts will try cases involving foreign laws. If so, what special training is required? Alternatively, will such cases—like extradition, they are a highly specialised field—be tried only in Bow street court? If only a limited number of judges and magistrates have sufficient knowledge to handle those cases, that may not be the best way to avoid a backlog. I would be grateful for the Minister's clarification.

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Ms Winterton: Amendments Nos. 306, 327 and 328 would confine the offences to actions that breach UK law, but that runs counter to the purpose of the new section. If we accept the amendments, we might as well retain existing section 25 and increase the penalty. A common European approach is necessary and justified; otherwise, we could not implement reciprocal arrangements. Time and again action is demanded on a European level, so being unable to implement reciprocal arrangements would defeat the whole object. Magistrates are required to know the laws of other member states, particularly in this context.

Mr. Malins: The Minister says that we already require magistrates to know the laws of other member states. On what authority does she say so? What judicial training courses over the last two years have focused specifically on those matters? I do not believe that such knowledge is currently required.

Ms Winterton: I shall endeavour to find out further information on training courses. Magistrates must be able to read the certificates prescribed by member states; it is part of the process. We cannot expect intimate knowledge, but awareness of and ability to understand different certificates is important.

Simon Hughes: This complicated issue intrigues and slightly troubles me. I understand that English judges, magistrates and district judges enforce English law, European Union law and, in the case of the Bow street magistrate, extradition law. That will be expanded under Government legislation, but their job does not currently involve enforcing the law of other member states. Our jurisdiction does not say that it is an offence here to break the law of another member state. We extradite people if they have committed an offence in another member state; we do not try them here. Surely that must be right.

Ms Winterton: The point is that, where we have reciprocal arrangements, judges and magistrates must be aware of what becomes European law. There are instances of that, and eventually what we are discussing will become part of it. In respect of the offences that we are debating and reciprocal arrangements, there must be that knowledge. I am happy to pursue the question of any other type of training later, but with regard to including facilitation of breaches of immigration law of other member states, magistrates would have to do what I said to comply with reciprocal arrangements.

An offence of assisting illegal transit across the state does not exist in UK law, but other member states may have laws on that, which is why it was included in the European directive. The reference in new section 25(2) to a law that controls entitlement to travel within the state is intended to cover that and seemed a sensible way to capture the various laws that may regulate illegal transit in other member states. Of course, it is difficult to transit across a state without travelling within it.

Amendments Nos. 325 and 332 would make prosecution for the offence of facilitation extremely difficult. In many cases, the facilitator may not know

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the precise provision of immigration law that is being breached. Even where he does know, that would be difficult to prove in all circumstances. However, whether he knows or not, the circumstances may be such that he has reasonable grounds to believe that he is committing some offence.

Under the clause, the prosecution would succeed if it showed that the facilitator had reasonable grounds to believe that he was committing a breach of immigration law. The provision is vital and will become even more so when the offence is expanded to include breaches of the laws of other EU member states. If we are to take action on this matter, it is important to have a robust system for doing so. The amendments would be unworkable in practice, so we cannot accept them.

4.29 pm

Sitting suspended.

5 pm

On resuming—

Ms Winterton: To sum up, we should be clear about the certification process and how we see the court process working. If a prosecution were taking place we would ask the Government of another member state for a certificate under new section 25(3) of the Immigration Act 1971. A certificate from Italy, for example, would state that it was an offence under Italian law to take someone across Italy from Albania. If we were prosecuting a person in our courts and had evidence that that had taken place, the certificate would prove conclusively that it was an offence and it would not be necessary to revisit the matter in court. That is the idea of the certificate. Magistrates will not know about all the laws of every member state, but the certification process will provide courts with conclusive proof of what those laws state. Any training would be on how the new system worked, not necessarily on the substance of all the laws in other countries.

Mr. Malins: If the offence committed in Italy carried a maximum sentence of five years, could our courts sentence up to 14 years, or vice versa?

Ms Winterton: Yes. I believe that in most cases we would be looking at a number of offences that had been committed, and not only here: evidence could be used from other countries too. As hon. Members know, this type of activity is certainly cross-border and across other member states. When bringing together a case we should have as much evidence as possible. Naturally, the laws that we will apply would be our British laws in our court.

Simon Hughes: We may return to some wider questions. Does the Minister accept that there are several difficulties already? First, the offence of crossing Italy to go to Albania—to use her example—might have various component elements to make it an offence under Italian law. For example, a person might have to be over 18, act knowingly or commit the act more than once. Offences are defined in different ways, and a person would have to know that.

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Secondly, if an act is an offence in another country, why would it be dealt with here?

Ms Winterton: May I return to the hon. Gentleman's first point about the certification process? If the offence were to be an offence, it would have to be stated that Italian law provides that taking a person across Italy is not an offence if a person is under 18. The law should be on the certificate to ensure that that does not cause argument in the British court. If an accused person who was under 18 argued that a person had to be over 18 to commit an offence under Italian law, there could be an argument about that, but it would be up to the court to decide. I hope that that helps.

Will the hon. Gentleman remind me of his other question?

Simon Hughes: Why would we not send people back to be dealt with in the Italian court?

Ms Winterton: All other procedures, such as extradition proceedings, may apply—the measure does not overrule that. Organised activities will occur in many different countries. In building a case against an individual, given the severe penalties that we are discussing, it would be in everybody's best interests to get all relevant evidence in one place. In the scenario in which the person was tried here, we would want to take account of other information. Offences might have been committed in other countries, but it may be judged that it would help the prosecution by proceeding in that way rather than another way.

Mr. Malins: If we deal with an offence under Italian immigration law that is tried in this country, will Italian rules of evidence apply or will ours? Are we really giving ourselves power of sentence that might be well above what a person might get for the same offence if it were tried in Italy?

Ms Winterton: If we tried a person in this country, we would believe that they had committed an offence here. However, the inclusion of evidence of offences that we believed had been committed in other countries might strengthen our prosecution case. I emphasise that the point of the certificate is not to pass a judgment on what an individual might have done, but to say that it is an offence to do X in Italy. No judgment would be made about the individual, because the certificate would simply state what is an offence in that country. It would be for the court to decide whether the person committed that offence. For example, if the person who was being prosecuted had been on a long journey, there might be evidence that offences had been committed in several countries. It is important that we have the ability to bring that to the court's attention, so that we can substantiate our evidence that an offence has been committed here.

I hope that that helps to clarify the position.

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