Select Committee on Home Affairs First Report

2  Undocumented passengers

Proposed new criminal offences

6. The Government aims to tackle the problem of asylum seekers deliberately destroying or disposing of their travel and identity documents and refusing to co-operate with the re-documentation process in order to prevent removal. The new measures are intended to ensure that:

7. The Government argues that this would clarify an existing requirement, and extend it to the category of those who have travelled through a safe third country. Two new criminal offences would be created:

8. Provision is made in the Bill to enact these proposals as follows. Clause 2 creates a criminal offence if, when a person is first interviewed by an immigration officer after his arrival in the UK, he does not have a valid passport or equivalent document with him and he does not have a reasonable excuse for not being in possession of such a document. The offence will carry a maximum penalty of a six months (Magistrates' Court) or a two year (Crown Court) prison sentence, and/or a maximum fine.

9. Clause 6 sets out various behaviours which a "deciding authority" (i.e. an immigration officer, adjudicator, appeal tribunal or the Secretary of State) is required to take account of when assessing the credibility of an asylum seeker. This behaviour is any which the deciding authority thinks:

  • is designed or likely to conceal information
  • is designed or likely to mislead
  • is designed or likely to obstruct or delay the handling or resolution of the claim or the taking of a decision in relation to the claimant, or
  • otherwise damages the claimant's credibility.

The non-production of passports without reasonable explanation, the production of false passports as if they were valid, and the failure to answer questions without reasonable explanation are all defined as "behaviours designed to conceal or mislead".

10. Clause 14 creates a new offence of failing to comply, without reasonable excuse, with steps that the Secretary of State may require someone to take so as to enable their deportation or removal from the UK. These steps include necessary action to re-obtain valid travel documents for asylum-seekers who have lost or destroyed their original documents. The offence will carry the same penalties as under Clause 2.

11. Several of our witnesses opposed the Government's proposals in regard to undocumented passengers. JUSTICE opposed the proposal to create a statutory presumption affecting the credibility of asylum seekers who fail on arrival to provide adequate documentation. They argued that "visa controls make the possession of false documents virtually inevitable for asylum seekers". JUSTICE pointed out that Article 31 of the 1951 Refugee Convention provides that refugees should not have penalties imposed on them as a consequence of illegally entering or being present in the country of refuge, provided that they come "directly from a territory where their life and freedom was threatened", "present themselves without delay to the authorities and show good cause for their illegal entry or presence".

12. In a court case in 2000, that of Adimi, it was held that the policy of prosecuting refugees travelling on false documents was contrary to Article 31.[5] Section 31 of the Immigration and Asylum Act 1999 subsequently offered a defence against prosecution in compliance with international obligations, but JUSTICE commented that this is "narrowly drafted" and "there have continued to be high levels of prosecutions of asylum seekers for false documentation as a result of lack of or inadequate procedural guidance" to the Immigration Service, the CPS and criminal duty solicitors.[6]

13. JUSTICE also claimed that—

    "A recent court case, awarding compensation to two asylum seekers who were prosecuted and jailed for travelling on forged passports, brought to light the fact that up to 5,000 asylum seekers appear to have been wrongfully convicted and imprisoned for using false documents without considering whether or not Article 31 provided a defence."[7]

14. This claim was denied by the Minister of State, who told us that, although central statistics were not kept on how many people were prosecuted for travelling on false documents,

    "I am confident that the figure of 5,000 supplied by JUSTICE is a very significant over-estimate of the true figure. … The actual number of convictions would be lower than … 1,000 and the number of convictions of asylum seekers would be lower still. Also, as a further indication of scale, since the Adimi judgement, fewer than 20 people have successfully claimed compensation for wrongful conviction."[8]

15. The Law Society expressed concern that the Government's new proposal will lead to breaches of Article 31. They argued that even deliberate destruction of documentation does not mean that an asylum application is without merit: "asylum seekers often destroy their documents because they are advised to by traffickers or because they fear that those documents will put others in the country they are fleeing in danger".[9]

16. Citizens Advice opposed both proposed new offences. They stated that "the Home Office is still paying out large sums in compensation to some of the hundreds of individuals prosecuted and imprisoned in the 1990s, in breach of Article 31, for using forged travel documents to transit the UK". They also opposed the proposed offence of failing to co-operate with redocumentation, on the grounds that those who do so are already liable to indefinite detention under existing powers "and it is difficult to see how the prospect of a (relatively short) prison sentence will be any more effective as an inducement to co-operation".[10]

17. Mr Peter Gilroy, Strategic Director of Social Services at Kent County Council, noted that "care will need to be taken that this system does not seem to criminalise people justifiably fleeing persecution".[11]

18. In response to these comments, the Minister of State at the Home Office, Beverley Hughes MP, told us that:

    "The very large majority of people who arrive at our ports who are going to claim asylum arrive undocumented. Secondly, a large majority of those actually arrive at airports, where, patently, they will have had documents in order to board the plane. So we are convinced that a large proportion of people who claim asylum at ports, particularly at airports, have documents when they board, but destroy them, or they are taken away from them by facilitators. It is very important, both in terms of assessing a person's claim, but also in terms of removing somebody if their claim is refused, to be able to document people. ... It is also important in terms of trying further to break the power of the facilitators, the criminal gangs who are often providing people with fraudulent documentation, that we do so."[12]

19. The Minister of State also told us that the principal purpose of the new measures was to attempt to break the hold of the criminal facilitators, and that she did not think that the position of genuine refugees would be made worse by the measures.[13]

20. The Minister of State confirmed in response to a question that where a genuine refugee has no practical way of obtaining legitimate travel documents, and then travels on false documents and arrives at a port, provided he does not destroy those documents, he will not be committing any new offence by travelling on false documentation.[14] In respect of this latter point, we note the provision in Clause 2 that "a reasonable excuse for not being in possession" of a valid passport or equivalent document will be a defence for a person charged with the offence created by the clause. We assume, in the light of the Minister's comments, that a "reasonable excuse" will include circumstances where a person fleeing persecution has no practical way of obtaining valid documents. We recommend that the Government make this clear explicitly in the text of the Bill.

21. We note the Minister's assurance that:

    "If somebody has a credible reason for destroying their documents, that will be taken into account. The measure is to take the factors into account in making an assessment, and if the person at the point of interview is open and transparent, gives us full information about their situation and reasons why, and that makes a credible account, then there will not be any adverse consequences for that person."[15]

22. We understand the intention behind these new measures. As we pointed out in our previous report on asylum removals, the deliberate loss or destruction of valid documentation is a major impediment to the removal of failed asylum seekers from the UK.[16] It is important to tackle this problem, and to strike at the operations of the criminal gangs who organise the passage of many asylum seekers. However, we are concerned that, despite the Minister's assurances, genuine refugees who through necessity travel on false documents and who use the services of illegal facilitators may be convicted under this proposed legislation. We note that under Clause 2 of the Bill, a "reasonable cause" for not producing valid documents "does not include the purpose of … complying with instructions or advice given by a person who offers advice about, or facilitates, immigration into the United Kingdom".

23. We support in principle the Government's new measures to penalise, in certain circumstances, those who deliberately lose or destroy their travel documentation. However, to avoid disadvantaging genuine refugees, we recommend that the Government should take steps to ensure, as far as is reasonably possible, that the potential consequences of deliberately losing or destroying their documentation is drawn to the attention of people arriving in the UK, both immediately on arrival at a port, and (by requiring carriers to provide this information) prior to arrival. In our main report on asylum applications we will make further recommendations about provision of information to asylum seekers.

24. One further possibility we explored with the Minister and her officials was that of immigration officers meeting passengers on selected flights as they disembarked from the plane; if that were done, even if passengers destroyed or lost their documents during the flight, it would be immediately apparent where they had come from.[17] The Director-General of IND, Mr Bill Jeffrey, told us that this was occasionally done, but for manpower reasons, and to avoid inconveniencing legitimate passengers, it was not done very often. [18]

25. Mr Jeffrey also said that IND was "looking at more covert ways of ensuring that we can in fact link people back to the flights that they arrived from". The Minister of State told us more about this in writing: aircraft are met by immigration officers specially trained in overt surveillance and document examination, and since August 2003 a dedicated CCTV system has been used at Heathrow Airport to support the work of these officers. This has been successful in increasing the linkage rate of inadmissible passengers to their flight of arrival (averaging 84% at Heathrow in November 2003). In addition, immigration officers at Heathrow have recently received training in the use of covert surveillance in the restricted zones of airports, targeted at illegal 'facilitators'.[19]

26. We support the use of surveillance techniques to assist in linking passengers who lose or destroy their travel papers with their flight of arrival. We recommend that consideration be given to extending such schemes to airports other than Heathrow, and to seaports. We also recommend that the tactic of deploying immigration officers to meet passengers as they disembark from selected flights should be used more often, both to establish where people who have disposed of their travel documents have arrived from, and to send a discouraging message to the criminal 'facilitators'.

Requirement for carriers to copy documents before travel

27. The Government announced on 27 October that it was considering the creation of a power to require carriers to take copies of passengers' identity documents before they travel. The Government stated that it was discussing the practicalities of this with industry representatives.[20]

28. In oral evidence to us the Minister of State said that she did not envisage this proposed new power applying to all incoming passengers:

    "It would be a waste of resources to simply have a blanket requirement, and we are not proposing a blanket requirement; we are proposing the idea of an enabling power in the Bill that would allow us to make that request of carriers on selected and very targeted routes. Also, for specific periods of time. The risk from certain routes actually changes quite a lot, and we monitor that very closely, and we have the intelligence to be able to ask a carrier for a specific period of time to photocopy documents on a particular route."[21]

29. Although the Minister of State disavowed any intention on the part of the Government to bring in a "blanket requirement", the Home Secretary, speaking in the House on 2 December, said:

    "If we introduce a measure to require copying, it should be universal so that all carriers that transport people into the country would be on equal terms, thus ensuring that it would not disadvantage any carrier."[22]

The Home Secretary's comments appear to contradict the position stated by the Minister of State. We recommend that the Government should clarify its intentions as to whether or not, if it were to introduce a power to require carriers to copy travel documents, this would apply to all carriers and all flights.

30. The Minister said that she was aware of one example of another country which imposed an equivalent requirement: the Netherlands, which had legislated to require all carrier to produce copies of documents in respect of all passengers from a list of about 20 specified countries. She said that she was not aware of any problems arising from this.[23]

31. The Medical Foundation for the Care of Victims of Torture told us that this proposal might—

    "interfere with [an asylum seeker's] attempt to flee persecution and unnecessarily expose them to additional danger. The deterrent effect may only be to push even more people into the backs of lorries and to make even more perilous journeys."[24]

Mr Bill Jeffrey, Director-General of the Immigration and Nationality Department, asked to comment on this claim, said that "the purpose of the provision would not be to cause carriers to refuse to board people whom they otherwise would board, so I do not think the point in that sense is well made."[25]

32. The Bill published on 27 November does not in fact make provision for a power to require carriers to copy travel documents. The Home Office press release which accompanied the Bill stated that "the Government is still considering introducing" such a requirement.[26]

33. The Minister candidly acknowledged to us that "there are logistical and practical issues … to be resolved". We recognise that a power such as the Government envisages may be useful if used in the targeted manner described by the Minister. We believe that the Government should demonstrate that the proposal would not cause undue delays to legitimate passengers and that the costs imposed on airlines would be commensurate with the benefits to be gained in tackling abuse of the asylum system. We hope that the Government will not seek to amend the Bill to introduce this provision without first publishing the results of its consultations with carriers and other interested parties. We believe that it would be desirable for the Government to publish an assessment of the operation of similar powers in the Netherlands.

4   Appendix, p 26 below Back

5   R v Uxbridge Magistrates Court ex parte Adimi (and others) [neutral citation number CO-1167-99] Back

6   Ev 24-25 Back

7   Ev 25, citing Clare Dyer, 'Couple with forged passports win £130,600 for wrongful jailing', The Guardian, 1 October 2003. Back

8   Ev 17-18 Back

9   Ev 29 Back

10   Ev 17 Back

11   Ev 27 Back

12   Q 824 Back

13   Q 826 Back

14   Q 825 Back

15   Q 827 Back

16   Home Affairs Committee, Fourth Report of Session 2002-03, Asylum Removals (HC 654-I), paras 56-58. The report was published on 8 May 2003, and the Government's reply was published on 18 July 2003 as the Committee's Second Special Report of Session 2002-03 (HC 1006).


17   Qq 843-46 Back

18   Q 845 Back

19   Ev 18 Back

20   Appendix, p 26 below Back

21   Q 841 Back

22   HC Deb, 2 December 2003, col 386 Back

23   Qq 835-36 Back

24   Ev 36 Back

25   Q 837 Back

26   Home Office press release 326/2003, Final phase of asylum reform,issued 27 November 2003 Back

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