| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
Earl Russell: I do. I answered that point on the previous night of our proceedings when I think that the noble Lord was no longer in the Chamber.
We have here a tide flowing. We can no more stop it than could King Canute. The only way we can stop the action being done for gain—the noble Lord and I both deplore that—is to open a legal route for it to be done properly. I think that we are in agreement.
Lord Filkin: Under Section 24(1)(b) of the 1971 Act, it is an offence to be concerned in making or carrying out arrangements for securing the entry to the UK of an asylum claimant. This does not apply to anything done "otherwise than for gain" or in the course of employment by a bona fide organisation. In other words, while the offence covers people who seek to profit from facilitating the entry of asylum claimants, it does not apply to individuals and charities who are motivated by humanitarian concern rather than the prospect of gain.
The current wording was inserted by the 1999 Act. The original provision dates from the Asylum and Immigration Act 1996. It was introduced following a decision of the House of Lords in the case of R v Naillie. In that case the court found that facilitating the arrival of an asylum seeker is not facilitating illegal entry. We want it to be an offence to do so, but only if done for profit. It is offensive if it is done for profit, hence new Section 25A.
We are not talking about cases of illegal entry. Once someone has entered the UK unlawfully in breach of the immigration laws, he is an illegal entrant, whether or not he subsequently claims asylum. The person who has knowingly assisted him has committed an offence whether or not he was acting for gain. However, someone who arrives at a port—as I indicated earlier to the noble Earl, Lord Russell—and immediately claims asylum without attempting to avoid the control or pass through illegally has not entered illegally and is not attempting to enter illegally. If new Section 25A is deleted, as Amendment No. 238ZGN seeks, anyone who assisted him would not be committing a criminal offence.
Where the person providing that assistance is not acting "for gain", but is simply motivated by humanitarian considerations, we accept that it would be inappropriate to criminalise his actions. However, we cannot accept that organised gangs should be free to import people into the UK with impunity. They would do so claiming they were merely seeking people to come here to claim asylum. It is obvious that is how they would act.
Removing the equivalent of the present offence of facilitating the arrival of an asylum seeker "for gain" would leave a massive gap in our ability to tackle organised illegal entry. It would allow the facilitator to claim he believed the people he assisted were intending to claim asylum when they arrived, which would be difficult to disprove, even if, in the event, they subsequently entered illegally. Alternatively, the people being assisted could be told to claim asylum as soon as they arrived. Either way, those involved—the traffickers, the organised gangs—would be able to charge what they liked in the knowledge that if caught they could not be prosecuted.
I am sure that those who profit from exploiting illegal migrants would be delighted by such a development, but I very much doubt that that was what noble Lords had in mind in tabling Amendment No. 238ZGN.
To recap—the offence is one of profiting from bringing asylum claimants to the United Kingdom. It is the making a profit that is the offence. Otherwise, all illegal facilitators would claim asylum, as I have indicated.
Lord Avebury: There is another ingredient to the offence apart from the profit. The person who commits it has to belong to an organisation. The noble Lord has not addressed his mind to the case where the person facilitating entry is an individual and does not belong to an organisation and is therefore not covered by subsection (3).
Lord Filkin: Off the cuff, in this specific question that we are debating it would be whether or not the people were acting for the purpose of gain as to whether they would criminalise themselves.
The noble Lord, Lord Hylton, addressed the question of claiming asylum in an embassy. If a person walks into an embassy and seeks asylum, in those circumstances that would not be done for gain.
I shall not open up a debate again with the noble Earl, Lord Russell, about whether the solution to the explosion of asylum claims and of illegal migration is simply to open up managed migration routes or to open up more legitimate means for asylum claimants. We shall differ on this issue. It is my view that we would see a massive increase in the number of asylum claimants coming to this country if we had facilitated routes of entry for people. It is a tragedy that that is the case, but in my opinion it is clearly the case.
We disagree, therefore, that we should not criminalise the offence of smuggling people into the United Kingdom. These are criminal gangs making substantial profits. If it is not an offence the traffickers would get off scot-free and continue to ply their trade with impunity. For those reasons, the Government believe that the clause, as it stands, is appropriate and that the amendment is inappropriate.
Earl Russell: I do not think that the Minister can wrap up this debate quite that easily, unless he can indicate that there is some way in which asylum seekers may come into this country legally without employing the services of those who do it for gain. Does the phrase "for gain" cover the ordinary carriers both for the trains and the airlines or is that entirely dealt with under carriers' liability? If there is no legal means what are they meant to do?
I hear the Minister's nightmare about what would happen if he accepted this amendment, but if that were seriously the case, when we consider the number of poor people in this world, surely the number of asylum seekers would be running into millions instead of being, as they are, no more than a cricket crowd.
9.30 p.m.
Lord Filkin: I would be cautious about responding in too much detail to the noble Earl, Lord Russell, on the assertion about the numbers of asylum seekers who would be coming to the United Kingdom in those circumstances. One can see that as being either half full or half empty—a lot or a few. From recollection we have about 1.5 per 10,000, which is about in the middle league. What is surprising is that how many who do come here have a disposition for the extreme west of Europe.
As the noble Earl said, there are very many poor people in this world who one would hope had a right to less poverty and more opportunity. It is obvious that many of those will try to better themselves by coming to this country. It would be good if in the real world we could open our doors and make that a reality, but it is not sensible social policy or politics to do so for a second, which is why we are where we are on this Bill. It is also why it is so challenging for this or any other government to seek to try to preserve our responsibilities to support asylum seekers while seeking to deter an ever-increasing volume of potential economic migrants.
Lord Thomas of Gresford: I begin by looking at the title of the new Clause 25A, which is
- "Helping asylum-seeker to enter United Kingdom".
Having listened to the Minister's response, we agree with him that we cannot support the activity of organised gangs importing people into this country. That is Clause 25 and not 25A. When the Minister sought to define Clause 25A a little further he indicated that it was an offence punishable by 14 years imprisonment for someone to bring an asylum seeker to the United Kingdom without any attempt to avoid the immigration controls. The person who presents himself at the port and claims asylum is not doing anything illegal yet under this proposed new clause the person who facilitates his arrival there, if he accepts something—it does not have to be financial—commits a very serious criminal offence.
It seems to me that the noble Lord is falling into the trap, which I suggested might be the case, of confusing new Clause 25 with the proposed Clause 25A, which adds nothing to the previous clause. I did not find at all satisfactory the noble Lord's reply to the question put to him by my noble friend Lord Avebury about the position of an individual who assists an asylum seeker and does not charge for his services. On the question posed by my noble friend Lord Avebury about what happens to an individual who assists asylum seekers and does not charge for his services, I do not find the Minister's reply at all satisfactory. We shall have to consider those matters; we shall have to read what the Minister said in Hansard; but I am certain that we shall return to the matter at a later stage.
Lord Judd: I have a great deal of sympathy with the endeavour behind the position of Members on the Liberal Democrat Benches, but, with some hesitation, I put it to them that they, too, need to do a little more work on amendments. Notwithstanding the strictures of the noble Earl, Lord Russell, I suggest that there is a distinction between a person providing a service for gain in the manner that has been described—when the situation arises—and someone providing a service for gain that is in fact an enticement to custom: encouraging people to do something. There is a difference here that, in view of all the subsequent trauma that people may encounter, needs to be reflected by a little more finesse in the amendments.
Next Section
Back to Table of Contents
Lords Hansard Home Page