Immigration, Asylum and Nationality Bill


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Mr. McNulty: First and by the by, ''grace period''—as the hon. Gentleman will know, given his distinguished legal career—means absolutely nothing in legal terms. Were we to accept the amendment, which we shall not for reasons that I will come on to, it would have to be rewritten. There is no such recognised term.

Secondly, given the—I was going to say ''promiscuous'', but ''prodigious'' will probably do—nature of the Home Office's legislative schedule, I appreciate why the hon. Gentleman has not been in his place in this Committee all the time. These things blur when we are having so much fun, but I think that it was only yesterday—so I do not blame Hansard in terms of the record being produced—that I did a little exposition on section 24(1)(b) and (c) of the 1971 Act, which addressed that point. I said that we would consider the notion of whether, in primary legislation or in rules, we should address entirely the point. I took the point that if there is only one appeal and it is only invoked on a decision to remove, there would be some gap. I have undertaken to consider that matter and to address it.

Mr. Malins: I was in Committee at that time; I think that it was when the Minister accused me of having being in the House for more than 20 years by 1971. I had to correct him as to my age in no uncertain terms.

Mr. McNulty: I remember vividly the hon. Gentleman protesting that he was only 18 at the time. I do remember and I apologise; he was in the Room.

In the main, following the comments that I have made about the term grace period, which he kindly accepts, and those about considering precisely the terms captured by the amendment—which I accept was tabled long before yesterday's deliberations—I hope that he will withdraw his amendment.

Mr. Malins: The amendment has been a useful probing amendment and I am grateful for the Minister's response. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

Dr. Harris: I rise briefly to pick up on the point that the Minister has just made about his willingness to consider the matter. As he is aware, many people are concerned about clauses 1, 4 and 9 together, and particularly clauses 1 and 9. That is not only because they might create a hole, but because it does not seem well to distinguish between people who apply for extensions in time, particularly in relation to clause 1, and those who fail to.
 
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Could the Minister clarify whether he recognises not just that there will be a problem if the removal appeal is not triggered until some time after the refusal, but that there is also the problem that people who seek a time extension will be punished to the same extent as overstayers? Does he accept those points?

My second question is: if the Minister considers that the point that he has just accepted may require a revision of the Bill through an amendment, when are we likely to see that amendment? That will have an impact on how we proceed both in the Committee and on Report. Can he give an undertaking that if primary legislation is needed, he will indicate that by letter, even if the clauses cannot be drafted during the Committee stage? We would all appreciate that; it is a critical point that has been raised both by Opposition Members and by the hon. Member for Walthamstow. It would help us and would mean that we would not seek a stand part debate.

Mr. McNulty: First, I have not just accepted that point. As I said, I did so yesterday when I accused the hon. Member for Woking of being absolutely illegal. Had he been in the House in 1971 aged 18 he would have been conning the public and breaking the law, because I think that the minimum age limit at that time for being a Member of Parliament was still 21.

The Chairman: As it still is.

Mr. McNulty: As it still is—and it should be changed. I believe that it has changed at local government level but not at our level.

So I have not just accepted that point. I have accepted the problem that the hon. Member for Woking has raised again, of clauses 1, 3 and 9 and their interlocking nature, which we have spoken about today and over the past couple of days, and how they relate to all those issues vis-à-vis section 24(1)(b) of the 1971 principal Act. I have undertaken to consider that matter, and if I can, I will try to get back to the Committee on that before Report.

In passing, however, given that when we have considered clause 11 and schedule 1 we will effectively have put this element of the Bill to bed, I do not accept that that has an impact on the rest of the Bill and our deliberations on it. However, I do undertake to consider how that delay, and all the other points that have been raised, relate to the interlocking nature of clauses 1, 3 and 9. That includes some of the points that the hon. Gentleman raised. I have said clearly that if primary legislation or rule changes are needed, or if greater explanations are required from me as to why neither of those two things are needed, I will happily come back to the Committee with those elements.

Question put and agreed to.

Clause 9 ordered to stand part of the Bill.

Clause 10 ordered to stand part of the Bill.
 
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Schedule 1

Immigration and Asylum Appeals:

Consequential Amendments

Amendments made: No. 59, in schedule 1, page 27, line 9, at end insert

    '3A After section 82(3) insert—

    ''(3A) If a person has made an application for variation of limited leave to enter or remain, of a kind referred to in subsection (2)(fa) or (fb), and that application has been refused, his leave to enter or remain is extended by virtue of this subsection during any period within which an appeal against the refusal—

    (a) could be brought (ignoring any possibility of an appeal out of time with permission), or

    (b) is pending.''.'.

No. 60, in schedule 1, page 27, line 29, leave out from 'orders)' to end of line 30 and insert 'for subsection (3A) substitute'.—[Mr. McNulty.]

Schedule 1, as amended, agreed to.

Clause 11

Penalty

Mr. Malins: I beg to move amendment No. 7, in clause 11, page 5, line 11, leave out 'an adult' and insert 'a person'.

The Chairman: With this it will be convenient to discuss the following amendments:

No. 8, in clause 11, page 5, line 25, after 'knew', insert 'or believed'.

No. 1, in clause 17, page 8, line 16, at end insert 'or believing'.

No. 2, in clause 17, page 8, line 17, leave out 'an adult' and insert 'a person'.

Mr. Malins: We are moving to the part of the Bill concerned with employment, and this is the first of the clauses dealing with the civil penalty. I am sure, Mr. Illsley, that the briefer I am in moving the amendments, the more likely you are to grant a short stand part debate, when one or two matters of a more general nature might be raised.

The amendments are brief. The first seeks to change the word ''adult'' to ''person''. There is probably an obvious answer to the question that I am about to ask. Should it not be contrary to the section to employ someone who is under 18, rather than ''an adult''? There are instances of employment of young persons, which is, in a sense, almost more culpable than employing an adult. Is there any reason why the clause should not refer to a person rather than an adult? If it is supposed to refer to an adult, what is the position in respect of younger people? Would there be any penalty for someone who employed a young person who was not an adult, and who was subject to immigration control and so on? If not, why not?

Amendment No. 8, to subsection (4), would strengthen the penalty provision by providing that the excuse did not apply to an employer who knew ''or believed'' at any time that the action was contrary to the section. It would place a heavier burden on the employer than the Bill currently does.

Amendments Nos. 1 and 2 repeat the same
 
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arguments for clause 17, which we will deal with later, in relation to the criminal offence as opposed to the penalty provision.

Andy Burnham: It is a relief to move to a new aspect of the Bill. I thank the hon. Member for Woking for his comments. The Conservative Administration introduced the section 8 provisions, which are along the lines of these provisions, so there is some agreement between us. I will address his specific points, but before doing so let me say that I am conscious of his wish to have a clause stand part debate. I, too, would welcome such a debate.

The section 8 offence of employing someone without the relevant immigration status was introduced in 1995. Since it came into force, in January 1997, there have been 17 successful prosecutions, so although we could support the provision, the section 8 offence has not been widely used. There have been only a handful of prosecutions in each year since the provision came into force. That is some of the background to the clauses dealing with illegal working. I believe that it will help members of the Committee if I refer them to the codes of practice that we have published alongside the clauses, to provide the detail of how they will work.

I shall now deal with amendments Nos. 7 and 8 and, following on from those, amendments Nos. 1 and 2, which, as the hon. Member for Woking said, relate to clause 17. Amendment No. 7 would leave out the words ''an adult'' and insert ''a person''. I believe that the hon. Gentleman's concern is that the provision may leave out children or young adults—those aged 16 or younger. May I refer him to clause 21? For the purposes of the Bill, it defines an ''adult'' as

    ''a person who has attained the age of 16''.

Mr. Malins: I missed that.

Andy Burnham: It is easy to do. The reason why we are comfortable with the Bill as drafted is that the UK policy on abolishing child labour is based on existing legislation. There is sufficient protection in such legislation prohibiting the employment of children under the compulsory school age of 16. The specific legislation is the Employment of Women, Young Persons and Children Act 1920, which, unlike the Immigration Act 1971, I do not believe the hon. Gentleman was around to see into force. The 1920 Act lays out clearly the restrictions on the employment of young people under 16, and for the purposes of this Bill, they are satisfactorily covered by that legislation.

Amendment No. 8 involves an issue of some substance. It relates to the scope of the civil penalty arrangements, and it would, if accepted, restrict somewhat further the circumstances in which an employer could establish an excuse against a penalty under clause 11. The clause already provides that the excuse is lost if it can be shown that the employer knew at any time during a period of employment that it was contrary to the spirit of clause 11. The amendment would provide additionally that the employer would lose his excuse if it could be shown that he believed that the employment in question was unlawful.
 
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The amendment is unnecessary because in practice it would be impossible to operate a workable distinction between knowing and believing. Clause 11 is concerned with facts rather than intentions, and with facts relating to the status of the employee and the documents that the employer has checked. For the information of members of the Committee, those documents are laid out in lists 1 and 2 at the end of the code of practice on the avoidance of race discrimination while seeking to prevent illegal working.

For example, if it can be shown that an employer knew that a document produced by an employee purporting to demonstrate his entitlement to work was a forgery, the employer loses his excuse against a penalty if the employee is an illegal worker. The inclusion of ''believe'' in this context does not add value. It is a point of semantics, but the only practical distinction between knowing and believing is that beliefs can be wrong. Knowledge implies a correctness of belief. Insofar as an employer believed he was employing illegally but it later transpired that the person was entitled to work, liability as laid out in clause 11(1) would not arise. There is nothing for the concept of belief to bite on in this context, so it would not add anything to the Bill.

In clause 17 similar provisions are introduced relating to the criminal sanctions on employers who knowingly employ a person without valid immigration status. The same points that I made to the hon. Gentleman about young people apply. If the test were to be about believing, it could lead to intrusion by the immigration authorities trying to establish that action.

I can reassure the hon. Gentleman that we have considered the spirit of and intention behind his amendments, but that we do not believe that they are necessary. The Bill would be less clear and sharp if we were to accept the amendments. I hope that he will withdraw them—I will keep talking until he gets back to his chair—because the Bill will retain a sharper focus if we do not accept them.

3.30 pm
 
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