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:
"those asylum seekers who fail to provide
documents without a good explanation and/or have travelled through
a safe third country and/or who claim late, would have this taken
into account when considering the credibility of their claim."
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:
- arriving at a UK port without
valid travel documentation; and
- in the case of those with no right to remain
in the UK, failing to co-operate with the re-documentation process
(where "a person did or did not do something that had the
effect of frustrating, obstructing or otherwise interfering with
the re-documentation process").[4]
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).
Back
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