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Nationality, Immigration and Asylum Bill
7.5 p.m.
The Parliamentary Under-Secretary of State, Home Office (Lord Filkin): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Filkin.)
On Question, Motion agreed to.
House in Committee accordingly.
[The DEPUTY CHAIRMAN OF COMMITTEES (Baroness Turner of Camden) in the Chair.]
Clause 124 [Assisting unlawful immigration, &c.]:
Lord Avebury moved Amendment No. 238ZGA:
- Page 65, line 16, after "act" insert "for financial gain"
The noble Lord said: In moving Amendment No. 238ZGA, I shall speak also to Amendments Nos. 238ZGK and 238ZGP. I begin by explaining that Clause 124 replaces the provisions of Section 25 of the Immigration Act 1971 concerning offences relating to
assisting unlawful entry. But in Amendment No. 238ZGA's formulation we have the missing ingredient that the offence is committed for gain.Existing Section 25 of the 1971 Act refers to entry into the United Kingdom while this clause concerns those who facilitate a breach of immigration laws, meaning a breach of any law which has effect in a member state controlling entry into the state, transit across the state or being present in a member state. So it also extends our extraterritorial jurisdiction to cover breaches of immigration law in every state in the European Union, which of course we are required to do in order to comply with Article 27 of the Schengen convention.
Article 27 of the Schengen convention provides:
- "The Contracting Parties undertake to impose appropriate penalties on any person who, for purposes of gain, assists or tries to assist an alien to enter or reside within the territory of one of the Contractual Parties contrary to the laws of that Contracting Party on the entry and residence of aliens".
On Amendment 238ZGK we are concerned that the suggested penalty of 14 years' imprisonment fails to take into account the difference in substance and effect between the offence of facilitation and the far more serious crimes of trafficking for sexual and other forms of exploitation. The maximum term of imprisonment on conviction of an offence under this provision is set at 14 years. We are concerned that that is far too high for the nature of the offence. It is to be compared with the trafficking offences where that same maximum penalty has been imposed. We believe that the penalties for facilitation should reflect the fact that no harm to a person is incurred by the act of facilitation. We agree that there is a difference in kind between people operating in organised gangs on a large scale and someone helping an individual to evade controls as a one-off exercise. We do not see that reflected in the existing provisions of the Bill. I believe that two years would be a more appropriate penalty for this offence: it corresponds with offences of a similar nature which are already on the statute book. I beg to move.
Earl Russell: The last time we were discussing this Bill, very late in the evening, I asked the Minister if he could tell us of any legal route by which a lawful asylum seeker, who was nevertheless an illegal immigrant, could enter this country in order to claim asylum. I have not yet heard an answer to that question. Whether I hear one before the conclusion of this debate will materially influence the case and the position I ultimately take.
This clause seems to be treating asylum seekers in much the same way as in the 17th century they treated ships coming from countries where they had the plague; as something so dangerous that it was not safe even to allow one of them near our shore. The right to
claim asylum is a lawful right enshrined in international law and confirmed by treaty to which this country is a party. I hope that it is clear to all Members of the Committee that a legal asylum seeker and an illegal immigrant may be, and very often are, one and the same person. What I want to know is how is a person who is a lawful asylum seeker, but who is nevertheless an illegal immigrant, to gain entry to this country where he can make his claim for asylum in safety?I appreciate that this amendment is designed against traffickers. I have no wish to defend them. In particular, I have no wish to defend traffickers who traffic in women for purposes of prostitution or who traffic in children for the same purpose, and of whom there are too many. When we reach those clauses in the Bill I will support in principle what the Government are trying to do, although try to make one or two changes in it.
What appears to me to be an attempt to keep asylum seekers away from our shores absolutely and completely causes me very deep dismay. Even where one deals with traffickers in asylum seekers—as I remarked when we were discussing carriers' liability—if there is a big enough demand for something the market will satisfy it, legally or illegally. The Minister ought to bear that in mind. The best way of putting illegal traffickers out of business is to allow a legal route of entry.
If anything like this clause had been in force in the 1930s, I believe that my parents and most of their friends would have ended up serving 14-year sentences in prison because almost all of them knew quite well somebody who was Jewish and an academic scholar in one of the countries where the Nazis came to power. Almost all of them had done unlawful things to help these people to enter this country, many of whom have now become among its most distinguished citizens.
I remember attending a degree ceremony at the University of London where one of the honorary degrees was given to the person who had organised the reception network for these academics. Two honorary degrees were given to people she had helped to enter this country and two more were given to people who were the children of those whom she had helped to enter.
To serve a 14-year prison sentence for doing that seems to me to be rather perverse. If one had been in Kosovo in 1999 and had encountered an Albanian and the Serbs had burned down the house next door and expected them to come back the next night, I wonder how many of us would not have been prepared to give help. I appreciate that one cannot combine the privileges of being a legislator and announcing a willingness to break the law. I bear that in mind constantly. However, although not from a religious point of view, I respect the principle that there is a point where a law actually commands one to sin where it is extremely difficult to obey it. Were this law to be on the statute book I could imagine circumstances in
which I would find the task of obeying it gave me very great difficulty. As a legislator that is the point at which I must stop.7.15 p.m.
Lord Hylton: I support the first amendment moved by the noble Lord, Lord Avebury. If it were accepted it would enable resources to be concentrated on the pursuit, prosecution and dealing severely with traffickers. It would also leave out of the equation people who, for some reason or other, have made a breach of immigration rules or laws by inadvertence.
As regards the amendment in the name of the noble Baroness, Lady Anelay, I believe it is necessary in defence of not only non-governmental organisations, but also of asylum seekers. We then come to Amendment No. 238ZGK. I agree thoroughly with the noble Earl, Lord Russell, that the maximum penalty stated on the face of the Bill is far too high.
Baroness Anelay of St Johns: I speak to Amendment No. 238ZGC in this group which stands in my name. I welcome the support given to that amendment by the noble Lord, Lord Hylton.
Amendment No. 238ZGC seeks to probe the scope of the offence to be created by the new Section 25 of the Immigration Act 1971, as substituted by Clause 124. As the noble Lord, Lord Avebury, has already made clear, in new Section 25A the Government seek to reproduce existing provisions in Section 25 of the 1971 Act relating to facilitating the entry of asylum seekers for gain to the United Kingdom. A person has a defence under subsection (3) of the new Section 25A if he is acting on behalf of an organisation which aims to assist asylum seekers and does not charge for its services.
My amendment seeks to probe the issue of whether or not non-profit making organisations which assist asylum seekers might be caught by the provisions of the offence in new Section 25. But while a defence is available in respect of the offence contained in new Section 25A, which relates only to the United Kingdom, have the Government considered whether non-profit organisations which assist asylum seekers might fall foul of the provisions of the immigration laws of other member states of the EU? If so, would they then be caught under the new offence which extends to the laws of those states, and would they not have a defence under the new Section 25?
Finally, I refer to Amendment No. 238ZGK, spoken to by the noble Lord, Lord Avebury, as regards the reduction of the penalty from 14 years to two years. I found his explanation interesting as regards the provenance of that particular amendment in that he seeks to have a difference in definition between facilitation and trafficking. I certainly see some troublesome issues in trying to define when someone is facilitating rather than trafficking. I invite the Minister to give the Committee an explanation of whether or not there would be problems or whether the Government would be able to define it and therefore take the matter on board. When I first looked at the
amendment I felt that my support would be with the Government for wanting to mark that a serious offence was created by this part of the Bill.
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