Nationality, Immigration and Asylum Bill

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Angela Watkinson: I wish to press the Minister a little further. Will every court be expected to be competent in dealing with those cases, or are they all likely to be concentrated in a single specialist court, such as that at Bow street?

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Ms Winterton: I expect that many of those cases will not take place in magistrates courts, because of the nature of the offences and the penalties that they attract. However, we hope that the courts will be sufficiently competent to deal with such complicated situations

Simon Hughes: This matter raises many interesting points, some of which will be addressed again on clause stand part, and one of which will be raised again in the second of the further group of amendments. I give notice that I will not seek a Division on this amendment.

I understand the argument that trafficking is—by definition—a transnational issue, and that it would be especially useful, for securing a conviction, if one had evidence that more than one frontier had been crossed and that there was more than one jurisdiction.

I still think that issues are raised here that tread new ground. For instance, is this a new type of legislating? The Minister may have an opportunity to reflect on that—or to take advice on it—before the clause stand part debate. I am not aware that we have previously made law in this way, which is outside straightforward domestic law, European Union law and European human rights law—both of which are now applied in our domestic courts—and extradition law, which is when we respond to an application from another country.

The courts are used to taking evidence of what is the law in foreign countries. For instance, in a wardship of a child case, they might take evidence as to what is the law in—let us say—an American state, to work out whether its courts would grant responsibility for the child to the mother. I understand the issue, and we may wish to return to it for the reasons that the amendments prompt.

I ask the Minister to reflect on the fact that it appears that, if this goes through, one could be found guilty in an English court—and the same would apply in a court in Scotland and Northern Ireland—for thinking that one was committing an offence here under, let us say, Italian law, even though one was not doing so. We will convict people who have reasonable cause for thinking—perhaps because somebody has told them—that they are committing an offence under Greek law, even though, in fact, what they have done is not an offence, even under Greek law. That pushes the credibility of what one should be convicted for over a couple of lines, beyond which we would not normally be happy to go. That issue might unite hon. Members of all parties—it is not a party political matter.

We will also need to return to the point about travel within the state. I understand offences relating to entering and leaving states, crossing boundaries and so forth, but I am not aware that it is an offence to travel within the UK. It is an offence to enter illegally, and it may even be an offence to leave illegally, but I am not aware of travel within the UK being an offence. We appear to be introducing something without precedent.

Having listened to the Minister's argument and understood the background to the Government's thinking, I think that we should return to the issues

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raised in the amendments. I understand that pressure is coming from European Union initiatives, and I shall return to that matter in the clause stand part debate. For the time being, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Simon Hughes: I beg to move amendment No. 331, in page 56, leave out lines 26 to 44.

The Chairman: With this we may discuss the following amendments: No. 307, in page 56, line 28 leave out 'and for gain'.

No. 309, in page 56, line 41 after 'organisation', insert 'approved by the Secretary of State'.

No. 308, in page 56, line 42, leave out '(7)' and insert '(6)'.

Simon Hughes: Clause 112 is a portmanteau clause that creates a series of new offences. The amendments relate to the second of those, which is helping an asylum seeker to enter the UK. The last debate concerned assisting unlawful immigration between member states, and the two offences are markedly different for obvious reasons. The amendment would remove proposed new section 25A.

I expect that the Minister's initial objection would be that it is wrong to seek to smuggle someone into the UK as an asylum seeker for personal profit. There is already an exemption in 25A(3), which states that one cannot be found guilty if one is acting on behalf of an organisation that exists to assist asylum seekers. However, let us forget for one moment the point about ''for gain''. Suppose that when I went to Kosovo with the hon. Member for Walthamstow and the former Member for Fareham, Peter Lloyd, and met a family in desperate straits as a result of the civil war. If I got a telephone call a week after my return from one of the family wishing to seek asylum in the UK, it should not be an offence for me to try to get them into the UK. To put it bluntly, I should be entitled to help people to seek asylum if I think it proper. It is immoral to make that an offence.

It would be different if I was acting for personal or corporate gain or profit, and amendment No. 307 addresses that issue. I do not think it wrong for me knowingly to facilitate the arrival in the UK of someone I believe to be an asylum seeker. We have a nonsense system at the moment, as I have endlessly said to the Minister and his colleagues. There is no legal way into Britain for an asylum seeker. If there is civil war in Sri Lanka, Sierra Leone, the horn of Africa, Iraq or Iran, and people from such countries wish to seek asylum, there is no legitimate way for them to put their cases to come to the UK without getting here. If they are honest with the system, there is no way that they can get here legally.

People such as myself have always maintained that one ought to be able to apply for asylum in the UK either in the country from which one is fleeing, or if that is not safe, in the nearest possible country. One should be able to go to the British Embassy, high commission or consulate, a UNHCR office or Red Cross office and say, ''I want to come to the UK.''

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That is why we have argued that it would be a good thing for British officials to be on the other side of the channel to process applications for asylum. People in Sangatte could then put their cases to the British authorities and have them dealt with there, ideally under the umbrella of the UNHCR or a similar body.

Apart from the ''for gain'' point, which I understand, I would hope that by the time the Bill becomes law, we shall have removed the provision. If we are to honour our international obligations, under which people are entitled to put a case for and be granted asylum, both of which are legitimate in international law, it should not be an offence to help someone to find asylum here. I do not understand how the first obligation in international law is compatible with making that an offence.

Angela Watkinson: I want to speak to amendments Nos. 307 to 309. I shall discuss amendment No. 308 first, because in that one I sense a slight whiff of success.

The clause refers in subsection (4) to ''subsections (4) to (7)'', but try as I may, I have been unable to find subsection (7). I believe that the previous section ends at subsection (6), so I may have detected a drafting error.

Amendment No. 307 would amend subsection (1) by omitting the words ''and for gain'', a phrase that requires additional explanation. If criminal racketeers conduct such enterprise, clearly they do it for gain—considerable gain, in most cases—and should be punished most severely. However, others who would be subject to the Bill, such as members of an asylum seeker's family or other misguided individuals, might act for altruistic reasons or for the greater good or corporate gain, for example. Does the word ''gain'' in subsection (1) mean only financial gain? Other forms of gain may be involved. Would they be covered, too?

Amendment No. 309 is merely a probing amendment. New section 25A(3) seems to create a defence for

    ''a person acting on behalf of an organisation which aims to assist asylum-seekers.''

Anyone could create such an organisation, which need not be large and could be a front for criminality. That should be avoided at all costs. We suggest that the Secretary of State must approve the organisation. For example, the Refugee Council and the Immigration Advisory Service, which was established by my hon. Friend the Member for Woking, would obviously be approved by the Secretary of State, whereas others might not. The requirement would tighten up the interpretation of the word ''organisation'' in the clause and would avoid a possible loophole being created.

Ms Winterton: I hope that I shall be able to give some reassurances. As has been said, the current offence of facilitating the entry of an asylum claimant does not apply to anything done other than for gain. The provision was inserted by the Immigration and Asylum Act 1999. It is a linear descendant of the provision inserted by the Asylum and Immigration Act 1996, which is sometimes referred to as the good Samaritan defence.

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I refer first to the example given by the hon. Member for Southwark, North and Bermondsey. Under new section 25A(1),

    ''A person commits an offence if...he knowingly and for gain facilitates the arrival''

of an asylum seeker. The hon. Gentleman is not talking about illegal entry. If he were to assist someone in making an illegal entry—for example, if he smuggled them in, one way or another, after his visit—that would be an offence. If someone, having entered the UK, reports and claims asylum, an illegal entry has been made, but the hon. Gentleman's scenario is not about facilitating illegal entry in that way.

Once someone has entered the UK, they are an illegal entrant, whether or not they subsequently claim asylum, and the facilitator has committed the offence, whether or not they are acting for gain. Even if the hon. Gentleman were acting from the best of reasons, it would be problematic for him to assist an illegal entry. The offence does not relate to assisting a person who comes to the UK and claims asylum without attempting to avoid immigration control or to pass through illegally. The hon. Gentleman would therefore be covered in the scenario that he has outlined.

The hon. Member for Upminster (Angela Watkinson) referred to the issue of what is, and what is not, ''for gain''. Of course there is financial gain, which is fairly clear, but one could also include services in kind or for drugs, and so on. ''Gain'' would have to expand to include that; it would not be limited just to gains made in cash, for obvious reasons that I am sure we all understand. Without the consideration of gain, there is no offence.

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