Nationality, Immigration and Asylum Bill

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Simon Hughes: I should like to compare two examples: the case of someone who comes here as a visitor or student and asks for asylum is covered—they cross the border legally, because they come with status—and that of a Kosovan who could not get a visa and came here intending, from the moment he left Kosovo, to seek asylum. Clearly, as one cannot make an application from Kosovo to come to the UK as an asylum seeker, they would have to cross with no status. I assume that it will still be perfectly lawful for me to help that person to leave Kosovo with no prearranged visa. Such a person should be able to land in the UK and apply for asylum, because otherwise the key and obvious objective could not be met.

Ms Winterton: The issue is someone passing through immigration control without presenting themselves and saying ''I claim asylum.'' Illegal entry is coming into the country without doing that—arriving and immediately saying ''I claim asylum'' is different.

We recognise, as did the previous Administration, that there may be cases in which people are motivated by humanitarian considerations and provide assistance for people in danger to get here. That is why we resist amendment No. 307.

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We do not accept that organised criminal gangs should be free to import people into the United Kingdom with impunity. That would be the effect of amendment No. 331, although I cannot imagine that it was the intention behind it.

5.30 pm

The original offence contained a protection for employees of organisations that exist to help refugees. Clearly, individuals who earn a salary could be said to be acting for gain, but not in a way that could be regarded as reprehensible. I am not persuaded that an approved list would be appropriate because it would be difficult to maintain and keep up to date. Our approach towards such good Samaritan cases would be on a case-by-case basis, and it would be inappropriate to have a list. However, we will seek to refine the definition of organisations for the purpose of the clause, and if appropriate, we hope to return on Report with a clearer definition. However, I cannot accept the amendment.

I am extremely indebted to the hon. Members for Woking and for Upminster for their keen proof reading. We can accept amendment No. 308. I hope that, because I shall accept that amendment, the hon. Member for Southwark, North and Bermondsey will consider withdrawing amendment No. 331.

Simon Hughes: The hon. Member for Upminster may chalk up her first success, and I wish her many greater ones as her time in the House continues.

The Government's willingness to examine the definition of organisations is welcome. I should be grateful if the Minister would examine the point about ''for gain''. I do not have all the previous legislation in front of me, so I do not know whether the definition of ''for gain'' is explained in that, but we should ensure that when tackling profiteers we do not catch other people who might have an indirect gain, a family advantage or a family reunion.

I was grateful for the Minister's clarification. We understand each other, and understand that honourably assisting an asylum seeker to come to a port of entry or border to say, ''I'm an asylum seeker'' is different from a person who is smuggled into the country.

We may need to examine the subsidiary issue—my hon. Friend the Member for Sheffield, Hallam (Mr. Allan) and I shall do further work on it—of whether there is a failure in the previous listed offence because it does not cover this eventuality by an exemption. By definition, there might have had to be a border crossing outside the United Kingdom in order for a person to get here, and technically an offence might have been committed under the previous section. With that proviso—we will return to it during the Bill's final wrap-up—I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No. 308, in page 56, line 42, leave out '(7)' and insert '(6)'.—[Angela Watkinson.]

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

Mr. Malins: I begin by warmly congratulating my hon. Friend the Member for Upminster on her notable success. Hers is the only Opposition amendment that has been accepted, which shows the force of her argument.

The clause breaks new ground, and we must examine it carefully. I summarise my thoughts by saying this: the Government are not on top of the issue. They have not answered points satisfactorily, and they should take the clause away, re-examine it and perhaps deal with these matters in an extradition Bill.

We must be clear what the clause says. In simple terms, it says that a person in this country can and will be tried in this country for aiding and abetting an activity that is an offence not in this country but in another country. It goes on to say that that person will be tried under rules of evidence that may differ entirely from the rules of evidence in the country where the activity is an offence. Furthermore, he may receive a sentence that would be unlawful in the country where the activity is an offence. He may offend if he does something that he believes, wrongly, to be an offence in the country concerned. That is nonsense, as is the fact that he will be tried in this country by courts that are unqualified to deal with issues that may affect the activity that is the crime in the other country.

When asked where the cases will be tried and what the expertise level will be, the Minister answered, disappointingly, that she believed that people would not be tried in magistrates courts because of the important powers of sentence. In that case, why is the offence not indictable only? Why can it be tried in the magistrates courts with a maximum penalty of six months? As the Bill stands, a case can be tried in a rural magistrates court. Complicated issues such as extradition have previously been limited to specialist courts and specialist stipendiary magistrates and district judges. There are only four in London who are qualified to deal with such cases. Those of us who sit part-time on the judiciary are not qualified to deal with such matters.

There is nothing in the Bill to stop cases being tried—yes, tried, not only committed for trial—in any magistrates court in this country. The Minister may say that there is nothing to stop any such case going to a Crown court. One would have thought that the judiciary, magistrates and clerks would be aware of that and would have received expert training. There has not been any such expert training, and none is proposed.

For the reasons that I have given, I do not think that the Government have thought through the clause. They must think about it much more. We shall not vote against it, because I am sure that the Government will recognise that there are real problems of principle as well as detail. I hope that they will take on board those issues and consider whether the matters should more properly be placed in an extradition Bill. On Report or Third Reading, or perhaps in the other place, I hope that they will clarify the situation and make it much more satisfactory.

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Simon Hughes: I follow the hon. Gentleman by making similar noises of concern about the clause, which introduces three new offences and provides for forfeiture of vehicle, ship or aircraft in the event of any of those offences being committed. We have most difficulty with the first new offence of assisting unlawful immigration. I do not pretend to be an expert in that part of European Union law, but I understand that the offence has been proposed because of the EU directive on mutual recognition of expulsion decisions, on which we are obliged to legislate by the end of 2002. If that is the case, it is entirely proper. However, the offence should be included in an extradition Bill, where we will consider cross-border arrangements for law enforcement and the EU arrest warrant, or in a stand-alone piece of legislation that would have proper parliamentary scrutiny.

We may be in the process of creating Europewide offences, but this is difficult territory. I have not read the full record, but Lord Rooker answered questions about the EU arrest warrant in a debate in the House of Lords yesterday. There is concern across the political spectrum in both Houses about such offences. Whether people are pro-EU or anti-EU, they are concerned that there are common standards, principles, evidence and processes, as well as common tariffs, to which the hon. Gentleman referred. Like him, my hon. Friend the Member for Sheffield, Hallam and I do not propose to vote against the clause, which contains reasonable provisions.

I have questions on the proposals. Am I right in thinking that they set a precedent? Have any other countries in the EU legislated for this, or are we the first? If they have, have there been charges elsewhere in the EU under what I presume is comparable legislation? Have the judiciary—magistrates, district and Crown court judges—been consulted, and have they responded? I would be surprised if they had happily signed up to the legislation, saying that it was uncomplicated and that they were fine about it. Something is wrong with the process if they have not been consulted. All those who are expected to implement the legislation should be consulted. The Bill should not include this legislation. There is a general view that the Government have tacked the provisions into this Bill, perhaps for understandable reasons, when they should be in a general criminal justice or other Bill. Time should be spent getting it right.

Ms Winterton: On other legislation, section 71 of the Criminal Justice Act 1993 deals with EC taxation offences and has similar certificate provisions. I have listened carefully to everything that hon. Gentlemen have said, but it is important to emphasise that we are trying to enable the UK to participate in a joint approach to combat such crime on a European, not simply a national, level. We are asked over and over again to ensure that we are working with other European member states on this issue, and the legislation is part of that. If we are not able to tackle the issue on a Europewide basis, we will fail in our duty and not respond to public opinion on the matter.

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