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Lord Thomas of Gresford: I find it somewhat ironic that I sat here until one o'clock in the morning the other day with a view to proposing this amendment which stands in my name and yet I missed the beginning of the Committee's deliberations on this particular amendment now. What concerns me about new Section 25 is the maximum sentence of 14 years, or an unlimited fine, that it imposes. The level of sentencing implies something serious. The Committee should appreciate that when there is a maximum sentence of such a degree, that has an effect upon sentences all through the calendar.
Previously, the offence of harbouring an illegal immigrant carried a maximum sentence of six months, but upping the tariff to this extent, making the maximum 14 years, suggests that the offence is aimed at trafficking in people, which would explain why it carries the same maximum as that in new Section 25A, which covers the offence of helping asylum seekers to enter the United Kingdom. But in proposed new Section 25A, the offence contains the vital words that the offence is to be committed,
- "knowingly and for gain".
As an alternative approach, in Amendment No. 238ZGP we attempt to clarify the meaning of the words "for gain" in new Section 25A(1)(a). Again, the maximum sentence of 14 years indicates a serious criminal offence, aimed at the "snakehead", as they describe them in Hong Kong, who smuggles people into the country. One way or the other, the maximum sentence imposed in the new section is excessive.
Lord Filkin: I regret that at the start of our sixth day in Committee on the Bill, I am unable to accept the amendment. Let me explain why.
Turning to Amendment No. 238ZGA, the Government do not accept that assisting someone to break the law should not be an offence unless done for financial gain. Let me give the Committee an illustration from reports in the newspapers last week. A woman arrived in Italy with her boyfriend in her suitcase, claiming that she was transporting a pile of ornamental bricks. I assume that that comes under seeking to break the immigration rules for love rather than for financial gain. Nevertheless, it is an offence.
Turning to Amendment No. 238ZGC, I am aware that it replicates a provision in new Section 25A. The provision is necessary in that section, but we are not persuaded that it is necessary here. We accept that people who work for organisations of the kind described may be involved in assisting the arrival of
asylum seekers in the United Kingdom, and that it is appropriate to make special provision for them for that offence. However, we do not believe that their work requires them to assist persons to breach immigration laws, so we do not think that a special defence is necessary or desirable.For example, while those organisations may assist asylum seekers to arrive in the UK, we do not accept that they need to resort to smuggling them through immigration control once they arrive. Neither do we accept that there is any need to bring them through other member states in breach of the laws of those countries. Similarly, if a person who has entered illegally claims asylum and is given temporary admission, they are then not remaining here illegally and it is therefore not an offence under new Section 25 to assist or facilitate that.
However, if someone enters illegally or overstays, does not claim asylum and receives assistance that facilitates their remaining illegally, there is no reason why someone acting on behalf of an organisation of the kind specified should necessarily be immune from prosecution, as would be the case under the amendment. As drafted, the amendment would apply to anyone employed by an organisation of the kind described, whether or not the immigration offender whom they assisted was an asylum seeker. We see no good reason why we should want to provide an exemption in such circumstances.
I turn to Amendment No. 238ZGK. The amendment proposes to reduce the maximum level of the penalty to two years. As the Committee will know, the maximum penalty for the present offence is 10 years' imprisonment, so the amendment would reduce it to substantially less than the seven years that the House recognised as insufficient only three years ago.
We estimate that about three-quarters of recorded illegal entrants receive assistance from organised criminal gangs. It is a multi-million—indeed, multi-billion—pound industry, and a maximum penalty of two years' imprisonment would be utterly inadequate. When we debate later amendments, we shall discuss whether it should be possible to try some immigration offences summarily. As the Committee may anticipate, we will affirm the importance of retaining that provision. That is because a wide spectrum of offences will be covered under immigration law, some of which one may view as criminal but relatively venal, as opposed to repeated multiple traffickers. Allowing trial under summary procedure would, of course, involve only a two-year maximum sentence, and therefore appropriately preserve the options of prosecuting authorities.
Turning to Amendment No. 238ZGP, the parliamentary draftsman opted for the phrase "for gain". But in neither case is the gain limited to financial gain, as would be the case under the amendment. The current drafting would catch someone whose recompense is not hard cash, but some sort of benefit in kind.
I turn to the question of the noble Lord, Lord Avebury, about the insertion of the words "for gain" in the Immigration Act 1971. I will check, but my understanding is that Section 25 covers,
- "Any person knowingly concerned in making or carrying out arrangements".
The noble Earl, Lord Russell, repeated his challenge: is it possible to have a legal route for entry to the United Kingdom and to make an asylum claim? An illegal entrant has, by definition, entered illegally and committed an offence. That is self-evident. But a lawful asylum seeker may claim entry in safety at a point of arrival. At that point, he will not yet have entered until he passes through control. Therefore, the strict answer is that a person who has arrived in this country, wants to claim asylum and, at the point where he meets with the immigration officer, claims asylum is not at that point in breach of immigration laws.
The noble Earl also invited a debate about whether, if legal routes of entry were wider and easier, we would see an end to asylum claims that are used by some—not all—who are economic migrants. I wish that I believed that that was entirely true; unfortunately, I do not. The number of people who may want to come to the United Kingdom—for work or other reasons—is so large that, even if we considerably increase the managed migration route, I still believe that there would be such people. But I agree with the thrust of his argument that it is important to develop managed migration, which is why we have doubled the number of work permits issued during the past two years and may well go substantially further.
I would also stress that it is important that, when countries have got a grip on the confusion between asylum claimants and work migrants, it may be possible to expand resettlement as a process that many of us believe would deal with justice with people who have need for asylum but cannot reach the United Kingdom or other countries.
On the point raised by the noble Lord, Lord Hylton, I think that I have already addressed why we think that the words "for gain" are appropriate.
The noble Baroness, Lady Anelay, asked about non-profit organisations. I have sought to explain why I think that it is possible to leave them free to carry out the work that they perform, which in the broad measure of cases is good, right and necessary, and not to incriminate themselves. She asked a tough question about whether they should be exempt from European Union laws. We will be obliged—we support this—to incorporate as part of the Schengen agreement, or the parts of Schengen with which we agree, to support other EU countries on their migration and asylum and immigration routes. We think that it is right and proper that we should do so. Therefore, they must act within those laws.
Can I distinguish between "facilitating" and "trafficking"? Perhaps not off the cuff. My impromptu response is that "trafficking" has the connotation of being substantial and extensive. I shall, however, reflect on that matter and come back to the House on it when there is more time. I shall write accordingly.
I suggest that, for the reasons that I have given, it might be appropriate to withdraw the amendments.
7.30 p.m.
Earl Russell: I thank the Minister for his answer about the lawful asylum seeker. It was a good and fair answer, and I accept it. Does the Minister think that the rest of the Bill is in line with the answer that he gave? For example, will the clauses apply to people who assist illegal immigrants who nevertheless make a claim for asylum and, even more, to people who make a claim for asylum that is ultimately successful?
The same question might be asked about carriers' liability. Like the sun, that provision is meant to shine both on the just and the unjust. How can the Minister avoid penalising those who enter intending to claim asylum, do so lawfully and are successful?
Lord Filkin: I am reluctant to go further than the answer that I gave, using a specific example of how it was possible for someone to come into the country and make an asylum claim without being in breach of immigration law. In essence, the noble Earl's question touches on the challenge that faces most western European countries and many others.
The noble Earl has himself asked how we can find ways of giving a fair hearing and a refuge to people who claim asylum while so many people—for reasons that are understandable but which we cannot accept—seek entry to the country to work and use asylum as their route for doing so. All governments face a major problem in dealing with the convergence of those two streams. I will reflect on the noble Earl's point; if I can give a further answer over the summer, I will be pleased to do so.
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