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'(4A) Where a person is charged with an offence under subsections (1) and (2) above, and relies on a defence under subsections (3) and (4) above, if the person adduces evidence which is sufficient to raise an issue with respect to the matter, the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not.'.
Government amendments Nos. 52, 34 and 53.
No. 101, in page 3, line 11, leave out second 'and'.
No. 100, in page 3, line 14, at end insert
'and
'(c) an offence to which section 31 of the Immigration and Asylum Act 1999 (c. 33) applies.'.
Government amendments Nos. 54 and 55.
No. 102, in page 3, line 23, at end insert—
'(11) The Secretary of State shall, before commencement of this section, and thereafter from time to time as he may decide necessary, publish detailed guidance on the interpretation and implementation of section 2 of this Act.
(12) Guidance issued under subsection (11) shall not be made unless a draft has been laid before Parliament and approved by resolution of each House of Parliament.'.
Beverley Hughes: I shall speak to Government amendments Nos. 48 to 55 and 34, and I intend to resist Opposition amendments Nos. 1, 2, 3, 99, 100, 101 and 102. We are dealing with clause 2 and the offence of deliberately disposing of or destroying documents.
I want first to deal with amendment No. 3 and Government amendments Nos. 48, 49 and 50, which address the linked matters of confining the clause 2
offence to ports, finding a better description of when the offence is committed and allowing a period of three days for in-country applicants to produce their documents.Concerns were expressed in Committee about the definition of "first interview". Another concern was that someone should not be caught by the offence if, for example, their passport was mistakenly left at home—that was part of the reason why the Opposition tabled their amendments. I have considered those concerns carefully and have sought to address them in Government amendments Nos. 48 to 55. I shall set out briefly what they do and why I tabled them. As I mentioned in our debate on clause 2 in Committee, we expect that the criminal offence will in practice be used most against people who arrive at ports without documents. In those circumstances, there will rarely be an innocent explanation for lack of documentation; for people arriving in-country, however, there may be more reasons why they no longer have appropriate documentation. As was acknowledged in Committee, cases of destruction or disposal of documents by people applying in-country—for example, at the asylum screening unit—should not be excluded from the scope of the offence.
Members who served on the Committee will recall that I used as an example an issue that we are investigating at the moment. We believe and have evidence to suggest that people already given refugee status in other European countries are using those documents to come in straightforwardly through our channels at port, and then turning up at the asylum screening unit without those documents and claiming asylum. I do not think that any hon. Member would want us to be unable to take action on such behaviour.
To retain the coverage of both in-country and port claims in the offence, while not penalising people who, for example, have left their passport at home, Government amendment No. 50 allows in-country applicants three days to return with a document, should they not have it with them when making their application. While we expect people to realise that they need to bring their immigration documents, we accept both that that is not always the case and that people who were aware of the need for such documentation will sometimes forget it all the same. We do not want to penalise people who do not seek to frustrate our immigration controls and are willing to co-operate with the authorities. However, if the offence is to act as a deterrent, it must bite on both in-country and port cases. I hope that Government amendment No. 50 will reassure Members that concerns expressed in Committee have been dealt with.
There was also concern that someone could, under clause 2, avoid the offence if they had a passport when they were interviewed, but subsequently disposed of it. For port cases, there was concern that if someone was, for example, asked for a passport by a surveillance officer, that could be construed as a first interview. If so, someone who destroyed the passport between showing it to a surveillance officer and the immigration control interview might not be caught by the offence. For in-country cases, a person might be able to avoid the offence by claiming to have been interviewed at port. That could be relied on mainly, although not necessarily exclusively, by people granted leave on entry.
To address that problem, the term "first interview" has been replaced by
- "at a leave or asylum interview",
Government amendment No. 34 and amendments Nos. 100 and 101 relate to article 31 of the refugee convention. In Committee, I said that the reasonable excuse contained in clause 2 provided for the protection offered under article 31, but I understood that that was an important issue, so I undertook to consider the way in which the defence, as set out in clause 2, would operate to ensure that it did not have the unintended effect of penalising any refugee who was protected by article 31.
In particular, we have looked at subsection (5)(b), which rules out as a reasonable excuse three situations in which a person has deliberately destroyed or disposed of documents. We have concluded that the first two situations require no amendment, as there can never be a justifiable reason for a person to dispose of a passport to delay the handling of their claim or to enhance its chances of success. The third situation is where a person disposes of a passport at the behest of an agent or facilitator. In the great majority of cases, disposing of a passport for that reason is unacceptable, and it is important that clause 2 sends out the clear message that that is so.
Mr. Henry Bellingham (North-West Norfolk) (Con): Is the Minister aware that there was a large influx of Chinese immigrants into my constituency during the summer? Many were illegal, and many of their passports and other documents had been destroyed by the people traffickers—the triads and snakehead gangs—who had imported them into this country at great expense to them and their families. What is her view on that?
Beverley Hughes: The offence contained in the clause is designed to address precisely that kind of behaviour, so that we can send out the message that, if people destroy their documents, even at the behest of a facilitator or an agent, they will be liable to prosecution, except in the very special circumstance that I shall outline. Although some members of the Committee expressed concern that that would penalise the person who entered the country illegally, not the facilitator, we can already take strong measures against facilitators.
If we are to change people's behaviour, we need parallel measures that we can use to try to ensure that people do not destroy their documents. As hon. Members will know, as well leaving us unable to identify people at the point at which they make their claim, the destruction of documents causes great difficulty in returning people to their own country if their claims fail. Without documentation is it very difficult to satisfy other countries that such people are indeed their own nationals, and one can understand why. We would feel
the same if we were asked to take people back. We would want evidence, which is very difficult to supply without documentation.
Mr. Hilton Dawson (Lancaster and Wyre) (Lab): I recognise the progress that has been made, but children who come to this country may have destroyed their documents at the behest of people who may well have exerted all sorts of force and influence on them. Can my right hon. Friend assure me that the best interests of those children are being recognised in the amendments and Bill that she is proposing?
Beverley Hughes: I assure my hon. Friend that the authorities—the immigration service, the police and the Crown Prosecution Service—will take such issues into account in operating the offence. I do not want to exclude children specifically from the Bill because that would provide a perverse incentive for people to declare themselves to be under 18. I can assure him—we had this discussion in Committee—that the guidance published for the authorities will make particular reference to that point.
In the great majority of cases, as I have said, disposing of a passport, even at the behest of an agent or facilitator is unacceptable, but I accept that there may be rare cases in which refugees are so vulnerable, possibly traumatised and dependent on the facilitator for ensuring safe flight from persecution in their country that it would be unreasonable to expect them to ignore the facilitator's instructions. In those rare cases, refugees could argue that they had good cause for no longer having their passport, thus meriting the protection of article 31 of the convention.
Government amendment No. 34 will modify subsection (5)(b)(iii), so that disposal on the advice or instruction of a facilitator is unacceptable,
- "unless in the circumstances of the case it is unreasonable to expect non-compliance with the instructions or advice."
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