Clause
21
Forfeiture
of detained
property
Question
proposed, That the clause stand part ofthe
Bill.
Damian
Green:
I have a technical question for the Minister.
Subsection (1) says:
“A court making a
forfeiture order about property may order that the property be taken
into the possession of the Secretary of State (and not of the
police).”
I assume that
that allows the property to be forfeited to immigration officers, but I
should be grateful for clarification as to what the practical effect of
that part of the clause would be.
The
Parliamentary Under-Secretary of State for the Home Department (Joan
Ryan):
The hon. Gentleman’s assumption is correct.
The purpose of the clause is to give the courts extended powers so that
property can be forfeited to the Secretary of State and immigration
officers acting on behalf of the Secretary of State. At the moment,
forfeiture is to the police rather than to the Secretary of State. The
purpose of the clause is, therefore, exactly as he outlines.
Question put and agreed
to.
Clause 21
ordered to stand part of the Bill.
Clause
22
Disposal
of
property
Damian
Green:
I beg to move amendment No. 120, in
clause 22, page 12, line 30, leave
out ‘six’ and insert
‘twelve’.
The
Chairman:
With this it will be convenient to discuss the
following amendments: No. 121, in
clause 22, page 12, line 37, after
‘property’, insert
‘that has been held for twelve
months’.
No.
122, in
clause 22, page 12, line 38, after
‘where’, insert
‘all reasonable steps
have been taken
but’.
No.
123, in
clause 22, page 13, line 7, at
end insert—
‘(ca) may not
allow disposal of property less than twelve months following its
seizure,’.
Damian
Green:
The effect of the first two amendments, amendment
No. 121 being consequential on amendment No. 120, would be to extend
from six to 12 months the period during which a magistrates court may
make an order to return property to its owner. It is worth the
Committee, and Ministers in particular, considering what constitutes a
reasonable length of time during which somebody can claim back their
property from the Government. I am sure that it is accepted on both
sides of the Committee that the Government cannot be expected to hold
on to a person’s property for an inordinate length of time or
for an indefinite period. Clearly there has to be a cut-off point, but
what is a reasonable cut-off point? We do not believe that extending
that period from six to 12 months puts an extreme or disproportionate
burden on the administration of justice.
There are positive arguments in
favour of such an extension. It is quite likely that some people who
have their property seized in connection with immigration offences, and
might be entitled to it back, are some of the poorest, most vulnerable
people in society. Previously, we have had some interesting exchanges
about whether the force of the law is aimed at falling more on
employers of illegal workers rather than the illegal workers
themselves. There has been a fair degree of consensus that it is both
more useful and more just to tackle the employers. It is also more
efficient, as that would be the way to stop most illegal working. It is
nevertheless unarguable that illegal workers will get caught up in the
process. We have agreed that many of them are working illegally not
only because they are in the country illegally, but because in their
vulnerable position they can be exploited and paid below the minimum
wage. They are therefore overwhelmingly likely to be poor.
The first and obvious point to
make about that group of people is that any property seized from them
will not amount to much. More importantly, it might be all their
worldly goods. It is not a question of someone paying a fine; it might
be everything that they have. In those circumstances, it is important
to consider the length of time during which the property can be
reclaimed. Ministers might consider whether there is not a moral
obligation to keep the case open for as long as is practical, so that
the small amount of property that such people have may be returned to
them after a reasonable amount of time. Many of them will not be
familiar with any kind of legal mechanism for retrieving their own
property. Many of them will have little command of the language and
absolutely no experience of the legal system in this country, and might
well come from countries where for the state eventually to give back
property that it has seized is a wholly alien idea. They are therefore
unlikely to be sufficiently up to the mark to get their property
back.
I would guess
that many people who have lived their entire life in this country would
be surprised to discover that they can get their property back from the
state after it has been seized, but I think that that would be even
more applicable to those who might be affected by this aspect of the
Bill. Among that group, possible suspicion of the attitude of the state
will be increased by some of the terms of the Bill, which they might
find onerous. We have had discussions about how much control the
Government should take, and are taking, over where people live and how
often and to whom they should report. If someone has been arrested, had
their property seized and been through a legal process, then come out
the other end without having been convicted, they will be unlikely to
want to come forward and make themselves known to the state. It may be
worth considering giving them some encouragement to do
so.
2.45
pm
Amendment No.
122 would require the Secretary of State to take reasonable steps to
identify the owner of seized property, taking account of the fact that
the person may, in the circumstances, need help to retrieve their
property. For example, it would be difficult to identify the owner of
the property if it had been seized from one of the houses in multiple
occupation, which we heard about in an evidence session, where many
people live. I have heard in other forums of houses in which beds are
rented out for eight-hour periods and occupied for 24 hours a day.
Three and four-bedroomed family homes may have 30 or 40 people living
in them.
It is not
beyond the bounds of possibility that in such circumstances,
identifying the owner of seized property will not be straightforward
and it would not be enough for the authorities to sit back and assume
that it would be clear. A few simple, routine steps could be taken that
would establish what belongs to whom, and amendment No. 122 and the
consequential amendment No. 123 would lay that obligation on the
Secretary of State, so that in this relatively small corner of the
powers and actions that the Bill promotes there would be some obvious
fairness.
Joan
Ryan:
During the exercise of their
statutory functions, immigration officers can lawfully seize and retain
property, which may include forged passports, forgery equipment and
other evidence of immigration-related offences. In addition, the Bill
gives the courts new, extra powers to cause property used by convicted
offenders to commit immigration-related crime to be forfeited to the
Secretary of State. At present, the immigration and nationality
directorate lacks the necessary legal powers to dispose of property
that comes into its possession.
The immigration service is
increasing its capacityto investigate immigration-related
crime and as a consequence the Home Office will incur rising costs in
storing and increasing amounts of seized and forfeited property. In
some cases, the retention of the property could become unlawful, so it
is necessary to provide for the disposal of the property that is held
by the IND in similar circumstances to those in which the police and
SOCA can dispose of property. The powers have two separate aspects:
first, the court has the power to order the disposal of the property,
and secondly, the Secretary of State may make regulations for its
disposal. I will come to that in a moment.
Many of the hon.
Gentleman’s points were about ensuring that adequate and
appropriate safeguards are in place in respect of the power of
disposal. I will attempt to reassure him about the safeguards. In
respect of amendment No. 120, he will know that clause 22 is intended
to make provisions that are equivalent to the existing powers of
disposal of the police; it is nothing further than that.
Increasing the time in which a
person claiming forfeited property can apply to the court for a
disposal order would be inconsistent with the existing legislation and
I believe that it would be unjustified.
Where we are talking about
forfeited property, there will already have been court proceedings,
during which the court decided to make the forfeiture order. As part of
those proceedings, a claimed owner would be able to make
representations. For example, under section 25C of the Immigration Act
1971 the court must give an interested person the chance to make
representation before forfeiting a vehicle used to commit a
people-smuggling offence.
Once property has been
forfeited, a person claiming the property will have a further six
months to apply to the court for the return of the property, provided
that they can show that they had nothing to do with the original
offence that led to the property being forfeited. That is in line with
the police and SOCA legislation, and it gives ample opportunity for the
court to take account of the legitimate rights of an innocent property
owner. The property owner can state their claim at the forfeiture
hearing and they also have another six months in which to lay a claim
before disposal.
If
property is seized from a vulnerable person, the owner will be
ascertained and in that situation the court can only order that the
property is returned to the owner. So, the property has been forfeited
because it has been used to commit a crime; the property will only be
returned to that person, as I said, if they show that they had nothing
to do with the crime. Therefore, there is protection for a vulnerable
person.
In relation
to amendments Nos. 121 and 123, the clause allows regulations to be
made for the disposal of property where the owner cannot be
ascertained, or where the court has already ordered
forfeiture.
There are
safeguards in the clause to protect the rights of the innocent property
owner. Where a court makes a disposal order, that does not affect in
any way the right of any person to bring legal proceedings for recovery
of the property within six months of the date of that order. Under the
police and SOCA regulations, property may be disposed of only after it
has been in the possession of the Secretary of State for a
year.
Therefore,
where the owner cannot be ascertained, the clause absolutely meets the
aims of the amendment that the hon. Gentleman has suggested, namely
that the period of time before property can be disposed of is increased
from six months to 12 months. It is in relation to forfeited property
that the period of six months applies. As I said, the safeguard in that
situation is that there has already been an order of the court and the
person who wants to lay claim to the property can do so. So, if the
property has been ordered to be forfeited, it is a period of six months
before disposal; if the owner cannot be ascertained, the period before
disposal is 12 months.
Those measures are appropriate
safeguards. They apply at the moment, both to the police and to SOCA in
disposing of property, and they are working well.
Amendment No. 122 is, in fact,
unnecessary because in cases where regulations enable disposal of
property because the owner cannot be ascertained, the Secretary of
State must act reasonably under usual principles of administrative law.
That point is already covered; the Secretary of State must take
reasonable steps to ensure that the owner cannot be ascertained before
disposal and they would be expected to demonstrate that that was the
case.
Having given
those reassurances, I hope that the hon. Gentleman is able to withdraw
his amendment. I would reiterate that the safeguards apply; we meet
some of his requirements, and where we do not extend the period of time
to 12 months, that is because there has already been an opportunity at
a forfeiture order hearing for the individual to lay their
claim.
Damian
Green:
I am very grateful for the Under-Secretary’s
full exposition, in the light of which I am reassured and beg to ask
leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Clause
22 ordered to stand part of the
Bill.
Clause
23
Employment: Arrest
Damian
Green:
I beg to move amendment No. 97, in
clause 23, page 13, line 21, at
end add—
‘(2) In section
21(2)(a)(i) of the Immigration, Asylum and Nationality Act 2006
(c. 13) for “two years” substitute “four
years”.’.
This
is an attempt to help the Government by putting into practice some of
the rhetoric that we hear from Ministers. On Second Reading, the
Minister rightly made great play of the Bill’s importance in
attempting to crack down on illegal employment and, specifically, on
those who employ illegal labour. As I mentioned in my remarks on the
previous group of amendments, that was the subject of some of the most
arresting evidence from witnesses. Indeed, over recent weeks the
Government have embarked on a range of activities, some of which will
be useful, but others worse than useless, in order to crack down on
illegal working—a worthwhile ideal. One can see what they are
trying to
do.
Amendment
No. 97 would help the Government by increasing the maximum penalty for
those who knowingly employ illegal immigrants from two to four years in
prison. That is dear to the hearts of the Minister and the Home
Secretary, which is why I am hopeful that the amendment will get a
sympathetic hearing from Labour Members. It refers to the common
difficulty that we have debated in this Committee and with the
witnesses: is the real problem with illegal immigrants tricking
employers into believing that they are here legitimately or with
employers deliberately employing them precisely because they are
illegal
immigrants?
Given that
the Minister has been so assiduous in quoting Sir Andrew Green, it is
only fair that I quote Jack Dromey, who made a very interesting point.
He said that he had heard about Portuguese workers in this country
deliberately obtaining false Brazilian passports so that they can
pretend to be illegal workers and take jobs below the minimum wage. If
their employers had
known that they were legal workers, they would not have taken them. That
shows the Alice in Wonderland state of some of our employment
practices.
That
tells us two things: first, some people are desperate to find work in
this country but do not think that they can find any, even at the
minimum wage, and secondly—this is significant for the
amendment—some employers are ruthless and clued up enough to
want to employ only illegal workers and would not contemplate employing
legal ones. There is no difference of opinion on that in the Committee.
We need to crack down on those
people.
In
parenthesis, clearly such activity might well promote illegal
immigration on which, I am afraid, the Minister’s biometric
passports and so on will have very little effect. We need a very strong
deterrent for anyone wanting to indulge in such practices. The
amendment would strengthen the Bill by sending out a clear message to
the small number of irresponsible employers who damage the name of
British business. Understandably, they are unpopular with trade
unionists and employers organisations, who I know have been urging the
Government to make sure that they crack down effectively on this type
of illegitimate employment practice. This amendment enables the
Government—indeed, enables the House—to send out a very
clear signal of what we think about that type of exploitative
employment practice. We think it should be unacceptable and we think
that its consequences should be extremely serious. That is why we
propose doubling the potential maximum penalty. I hope this finds
favour with the
Minister.
3
pm
John
Hemming:
The amendment goes to the nub
of an issue that was raised previously by the trade unions but is also
a concern of the CBI. The question is how we enforce immigration
regulations. There is an element of consensus in both the trade unions
and the employer organisations that we should crack down on those
people who intentionally go out to employ undocumented
workers—the example cited was supposed to be from
Leicestershire.
The challenge
is to distinguish between those people and the ones who get trapped in
a situation where what is known in one part of the organisation is not
necessarily known to the management. The challenge is to identify mens
rea—the strategy of going for undocumented workers because they
have no employment rights and therefore they can make more money out of
them, or potentially not pay taxes and so on.
I am inclined
to support this provision on the explanation given, but the challenge
actually does not necessarily rest in the Bill. The view of the CBI is
that these issues will be addressed in future circumstances. But it is
very important indeed that we get the balance on this right; because
otherwise one ends up with the situation that Jack Dromey referred to,
which causes a lot of problems when you have legitimate employers but
the balance between the work force and the employer changes. The
subtleties here have a substantial
impact.
Joan
Ryan:
The clause is a minor technical
amendment to ensure that there continues to be a power of arrest for
the new offence of knowingly employing an illegal
worker when the existing similar offence under section 8 of the Asylum
and Immigration Act 1996 is repealed. This amendment will add the power
of arrest with warrant.
Knowingly employing an illegal
worker is a significant offence. The offence was introduced in the
Immigration, Asylum and Nationality Act 2006, and we have already
toughened up the offence. A person convicted of employing an illegal
worker under the 1996 Act can only be fined, whereas under the new
offence in section 21 of the 2006 Act, those convicted face a maximum
of two years imprisonment and an unlimited fine or both.
It is indeed
the case that many people we have taken evidence from have made a clear
and significant point, as we do ourselves, about the role of illegal
employment and the need to bear down on illegal employers. But I would
say to the hon. Member for Ashford that our view is that the two-year
maximum is an adequate and proportionate way of dealing with these
offenders. It is comparable to other maximum sentences for non-violent
crimes. His colleagues and, I presume, he himself supported the 2006
Act. This is a new offence. They made no objection at the time to the
two years. He will also know that we have not yet implemented this
measure, so it has not yet been tested as it is recent legislation.
There is no current evidence that four years would be a better
deterrent than two, so our view is as it was when that Act was
introduced in 2006—that two years is the appropriate response
and already represents a significant toughening of the
measures.
Mr.
Crispin Blunt (Reigate) (Con):
The
response to that is that one of the benefits of a Public Bill Committee
is that we have been able to hear evidence, which the other Committee
was not. The evidence has convinced us that four years would be more
appropriate. If someone were sentenced to two years, how long could
they actually expect to spend in
prison?
Joan
Ryan:
That would depend on a number of factors, not least
that person’s behaviour in prison. It is not something on which
I can give the hon. Gentleman an answer in years or months, as he is
probably aware. I accept that he listened to the evidence. We have not
only listened to the evidence but we had a significant amount of
discussion on the matter while constructing the Bill. Like all those
who gave evidence, we recognise the crucial significance of dealing
with illegal employers, and particularly the notion of
“knowingly.” That brings me to the points made by the
hon. Member for Birmingham,
Yardley.
There
are civil penalties for those who are careless and employ an illegal
worker but do not do so knowingly. Employing illegal workers is a
serious matter—a criminal offence with a criminal conviction. A
prison sentence of two years is significant and we should not lose
sight of the fact that an unlimited fine can also be applied. On that
basis, and because we do not have evidence that four years would be a
greater deterrent than two, we are not able to support the amendment. I
urge hon. Members to support the clause as it
stands.
Damian
Green:
I am disappointed that the Under-Secretary thinks
that, particularly as I was not treading on the tentative ground of the
fact that the tough clause in last year’s Act is still not in
force, which she
then brought up. I thought that I would forgo the opportunity to point
out that that is yet another example of the classic problem with the
current Home Office—the fact that it introduces legislation as a
substitute or displacement activity for effective action. Last
year’s provisions are not yet in place, but we are considering
this year’s Act. We are promised an Act next year as well.
Legislation is ever flowing, but activity on the ground is rather less
visible. That is unsurprising, because the Home Office cannot get round
to implementing all the legislation that it
passes.
The fact that
the two-year sentence is not yet in operation, meaning that we cannot
hear any evidence as to whether it is effective, is not a particularly
strong argument against the amendment. There is no evidence about two
years, four years or any period that one cares to name, so the
Under-Secretary cannot pray that in aid. As she rightly said, we
supported that part of the 2006 Act because we believe not only that
the offence is serious but that, considering the figures, it is
increasingly common. The knock-on effects of it being known around the
world that Britain is the place to come and work illegally are very
serious. At the extreme end of horror are episodes such as the cockle
pickers and the dead Chinese people in the lorry in Folkestone.
However, even without such terrible tragedies it is bad in all sorts of
ways for this country. It is bad for employment and for social cohesion
that Britain has become one of the parts of the world in which illegal
working is endemic. I am not reassured by the Minister’s
arguments, so I seek to press the amendment.
Question put, That the
amendment be made:
—
The
Committee divided: Ayes 6, Noes
8.
Division
No.
11
]
Davies,
David T.C.
(Monmouth)
Question
accordingly negatived.
Clause 23 ordered to stand
part of the Bill.
Clause 24 ordered to stand
part of the
Bill.
| 
