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Earl Russell: My Lords, I was rather surprised to hear the noble Lord say that he was in sympathy with the general objectives of Clause 5. Is the noble Lord telling the House that he believes the objectives of this clause are confined to dealing with racketeers?

Baroness Blatch: My Lords, I shall leave the noble Lord to answer that question for himself.

Section 25(1) of the Immigration Act 1971 contains, and always has contained, an offence of facilitating the entry of an illegal entrant. The offence is committed where a person facilitates the entry of someone,

The words "knows or has reasonable cause for believing" have not caused any problems since the 1971 Act was passed, and have been incorporated into the two new offences which would be created by Clause 5(1) of this Bill.

These amendments would delete "reasonable cause for believing" from the three offences, the existing illegal entry offence and the two new offences. I understand, from discussions we had earlier in Committee, that this change may have been prompted by a desire to protect those who have a legitimate interest in providing advice and assistance in immigration cases, particularly lawyers. It was felt that it would be difficult for any adviser to disprove that he or she had reasonable cause for believing that an application with which they were involved included deception.

I would make two points. The first seems to be fundamental. It would be necessary to prove that an adviser knew or had reasonable cause for believing that deception was involved in order to secure a conviction. That is rather a different matter to the adviser disproving knowledge or belief of deception. I am afraid the noble Lord got that point wrong. Evidence would have to be assembled to prove the case.

My second point concerns the wording of the offences if the amendments were accepted. The standard of proof required to secure a conviction would be absolute. It would have to be shown that the adviser knew. This provides the easy get-out clause for precisely the people against whom the new measures are aimed. They could plead ignorance and stand a very good chance of being acquitted.

In conclusion, I have not been persuaded that the phrase "or has reasonable cause for believing" should be removed from the offences, because to do so would be to reduce the chances of convicting immigration racketeers, an aim which has received considerable support on all sides of the House.

Lord McIntosh of Haringey: Perhaps I may deal first with the intervention of the noble Earl, Lord Russell. I accept that Clause 5 contains matters other than dealing with racketeers. But those other

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matters are the subject of amendments that we tabled at Committee stage and again on Report since many were not debated in Committee. We are, as always, concerned with the detail of the Bill, and concerned to see that the Bill expresses properly objectives which we can share.

There are occasions when Bills are wholly unacceptable, and when that happens we express blanket disapproval. However, the general objective of cleaning up the immigration advice business, so to speak, is one shared by all parts of the House and, however defective, that is the principal purpose of Clause 5.

I listened carefully to the Minister and accept that the burden of proof is that it has to be shown that the adviser knew about the deception rather than that he has to satisfy himself first. For that reason alone this is not an amendment I propose to press. I was particularly interested in what the Minister said towards the end of her reply; that is, that in determining the case there was a strict definition of "knows". I do not see that in Clause 5. I am not suggesting that the Minister should expand on it at the moment. I want to read carefully what she said and be sure that I understand its import. If that is the case, then it is possible that the anxieties of legitimate immigration practitioners--not only lawyers, but also those who work for charities and local organisations--are met in the wording of Clause 5. I am not satisfied that that is the case at the moment. I want to read what the Minister said and think about it before the next stage. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 43 to 45 not moved.]

Baroness Blatch moved Amendment No. 46:

Page 5, leave out lines 14 to 17 and insert ("which is done--
(a) by a person otherwise than for gain, or in the course of his employment by a bona fide organisation whose purpose it is to assist refugees; or
(b) in relation to a person who has been detained under paragraph 16 of Schedule 2 to this Act, or has been granted temporary admission under paragraph 21 of that Schedule;").

The noble Baroness said: My Lords, had we discussed Amendment No. 43 I would have told the House that there is a case for tightening up the protection in Clause 5(2) for advisers. That is what Amendment No. 46 involves.

Amendment No. 46 is in response to the concerns raised at a previous stage and I expected them to be raised again tonight. I should say at the outset that it has always been the intention that this offence should be firmly targeted at the activities of immigration racketeers. It has never been the intention that the introduction of the new offence should have an adverse effect on the provision of lawful and legitimate advice and assistance to those seeking asylum in the United Kingdom.

Lord McIntosh of Haringey: My Lords, before the Minister proceeds perhaps I may say that I am not responsible for Amendment No. 43. The anxieties expressed at Committee stage are expressed in Amendments Nos. 47 to 49, which we have not yet

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moved. The Deputy Speaker has not yet advised the House that they would fall through pre-emption if Amendment No. 46 is agreed to. My understanding was that we would deal with those amendments--which express our concerns--at the same time as Amendment No. 46, if only for the pre-emption reason.

Baroness Williams of Crosby: My Lords, perhaps I may add that I did not move Amendment No. 43 because I understood that Amendment No. 46 had been tabled in part to deal with the issues that we raised at an earlier stage. I wanted to hear what the noble Baroness had to say and also save the time of the House.

Baroness Blatch: My Lords, I am simply saying that I am responding to concerns. Nothing I say on Amendment No. 46--I hope the House will accept that amendment--will preclude anything that noble Lords have to say on Amendments Nos. 47 to 49. I reserve my right to respond to those amendments after they have been spoken to by noble Lords.

The existing defences to the new offence set out in the Bill provide that it will not apply to activities done otherwise than for gain, or in the course of employment by a bona fide organisation whose purpose is to assist refugees. It has been recognised that these defences were incomplete in as much as they do not protect those people such as lawyers who have a legitimate and lawful interest in providing advice, assistance and representation to asylum seekers who have applied for asylum on arrival in the United Kingdom.

The amendment is the consequence of the recognition of the lacuna in the defences available to the new offence following consideration of the points previously raised about the scope of the offence. It provides that where a person has been detained under paragraph 16 of Schedule 2 to the 1971 Act or has been granted temporary admission under paragraph 21 of that schedule, assistance, advice or representation provided to that person will fall outside the scope of the new offence. This will mean that there will be no prospect of a prosecution for the new offence being considered where a lawyer provided his services to an asylum seeker who has been temporarily admitted pending the resolution of his port asylum application.

The acceptance of this amendment targets the new offence even more firmly at immigration racketeers, and clearly exempts those who have a legitimate interest in assisting asylum seekers who have arrived in the United Kingdom. I commend it to the House.

11 p.m.

Lord Dubs: My Lords, I should like to speak to Amendments Nos. 47, 48 and 49. The amendments seek to improve the proposition put forward by the Minister, although technically they are amendments to the Bill unamended. Nevertheless, the points would still apply as amendments to the Bill as amended by the noble Baroness's Amendment No. 46.

I welcome what the Minister said. I think it helps us and Amendment No. 46 takes the process further forward. Amendment No. 47 seeks to replace the word

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"gain" with "remuneration" because "remuneration" is, if anything, wider than "gain" and it would therefore cover organisations where people do not get any financial benefit directly. Amendment No. 48 seeks to leave out the words "employment by" and insert "work for". The adviser may not technically be "employed by" an organisation. He may "work for" an organisation in a voluntary capacity. Therefore, the amendment widens the concept and ensures that the scope of the clause would affect more people than the narrower definition in the Bill. With regard to Amendment No. 49, the Bill as now drafted uses the words "bona fide organisation". Amendment No. 49 would add,

    "a partnership, company or other legal entity",
and so on. That would allow for organisations which are not, strictly speaking, within the definition of "bona fide organisations". For the avoidance of doubt, these should be included.

I have some difficulty with a point that is not the direct subject of an amendment. I refer to the use of the word "refugee" in the original wording of Clause 5. Indeed, it is included in the amendment to which I am speaking and it is included in the Government's amendment. I hope that would not limit the help to asylum seekers. Elsewhere in the clause there is reference to "asylum seekers" but in this instance there is reference to

    "a bona fide organisation whose purpose it is to assist refugees".
I am not sure whether that is a mistake or whether it is deliberate. If it is deliberate, it means that there would be no help to asylum seekers. If it is a mistake, I hope we can find some way of rectifying it.

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